57 FR 7533-02
1992 WL 38191 (F.R.)
(Cite as: 57 FR 7533)


                             RULES and REGULATIONS

                              DEPARTMENT OF ENERGY

                                10 CFR Part 708

     Criteria and Procedures for DOE Contractor Employee Protection Program

                             Tuesday, March 3, 1992

AGENCY: Department of Energy (DOE).

ACTION: Final rule.

SUMMARY: This rule establishes criteria and procedures for the investigation, hearing, and review of allegations from DOE 
contractor employees of employer reprisal resulting from (1) employee disclosure of information to the DOE, to members of Congress, 
or to the contractor, (2) employee participation in proceedings before Congress or pursuant to this rule, or (3) employee refusal 
to engage in illegal or dangerous activities, when such disclosure, participation, or refusal pertains to employer practices which 
the employee believes to be unsafe, to violate laws, rules, or regulations, or to involve fraud, mismanagement, waste, or abuse.  
This part is applicable to employees of DOE contractors and subcontractors performing work directly related to the activities of 
the DOE at DOE-owned or  -leased sites.  Contractors found to have discriminated against an employee in reprisal for such 
disclosure, participation, or refusal will be directed by the DOE to provide relief to the complainant.

EFFECTIVE DATE: This final rule is effective April 2, 1992.

FOR FURTHER INFORMATION CONTACT:Juanita E. Smith or Armin Behr, Office of Contractor Human Resource Management, Department of 
Energy, 1000 Independence Avenue SW., Washington, DC 20585, (202) 586-9032 or (FTS) 896-9032, or Sandra L. Schneider, Deputy 
Assistant General Counsel for General Law, or June Davis, Office of General Counsel, Department of Energy, 1000 Independence Avenue 
SW., Washington, DC 20585, (202) 586-8618 or (FTS) 896-8618.

SUPPLEMENTARY INFORMATION:

I. Introduction and Background

 In the control and management of its production plants, research and development laboratories, test sites, and other 
Government-owned or -leased facilities, the DOE is responsible for safeguarding public and employee health and safety; ensuring 
compliance with applicable laws, rules, and regulations; and preventing fraud, mismanagement, waste, and abuse.  To this end, the 
Secretary of Energy has taken vigorous action to assure that all such DOE facilities are well-managed and efficient, while at the 
same time operated in a manner that does not expose the workers or the public to needless risks or threats to health and safety.  
The DOE is endeavoring to involve both DOE and contractor employees in an aggressive partnership to identify problems and seek 
their resolution.  In that regard, employees of DOE contractors are encouraged to come forward with information that in good faith 
they believe evidences unsafe, unlawful, fraudulent, or wasteful practices.  Employees providing such information are entitled to 
protection from consequent discrimination by their employers with respect to compensation, terms, conditions, or privileges of 
employment.
 Currently, there are certain statutory proscriptions against employer reprisal.  For example, section 11(c) of the Occupational 
Safety and Health Act of 1970 (OSHA), Public Law 91-596, prohibits employers from discharging or in any manner discriminating 
against an employee because the employee has filed a complaint or caused to be instituted a proceeding under the Act relating to 
occupational safety and health.  29 U.S.C. 660(c).  As a general rule, the Department of Labor (DOL) enforces the provisions of the 
occupational safety and health laws.  However, in a 1974 agreement between DOL and DOE's predecessor agency, the Atomic Energy 
Commission (AEC), the AEC was recognized as possessing *7534 express statutory authority to prescribe enforceable regulations and 
orders to provide health and safety protection in connection with any authorized AEC activities.  (This would include the 
activities of DOE contractors at nuclear facilities owned or leased by the Government and operated by contractors.) As set forth in 
the agreement, section 4(b)(1) of OSHA (29 U.S.C. 653(b)(1)) and sections 161b.  and 161i.(3) of the Atomic Energy Act of 1954 (42 
U.S.C. 2201b.  and 2201i.(3)) make the provisions of OSHA inapplicable to the working conditions of AEC contractor employees 
working in Government-owned or -leased, contractor-operated (GOCO) facilities.  The agreement recognized that "AEC issues safety 
and health standards and enforces those standards under its contractual authority pursuant to the AEC statute." (These provisions 
would not be applicable to the non-nuclear facilities subsequently transferred to, or statutorily established in, DOE.)
 There also exists in current law a "whistleblower" protection provision specifically applicable to Nuclear Regulatory Commission 
(NRC) licensees. Section 210 of the Energy Reorganization Act of 1974 (42 U.S.C. 5851) affords reprisal protection to employees of 


licensees of the NRC who testify, assist, or otherwise participate in proceedings designed to carry out the purposes of the Atomic 
Energy Act or the Energy Reorganization Act.  The Department of Labor performs the adjudicative functions in section 210 
proceedings.  In that regard, an issue has arisen as to whether reprisal complaints made by DOE contractor employees and 
subcontractor employees are cognizable under the procedures set forth in section 210.  In connection with several complaints of 
reprisal filed by employees of DOE contractors, the jurisdictional issue has prompted administrative litigation resulting in a 
determination by the Secretary of Labor that DOL lacks jurisdiction over DOE contractor-operated facilities, and that section 210 
applies to NRC licensees only.
 In view of its recognized jurisdiction over complaints of reprisal from employees of its contractors at facilities formerly 
operated by the AEC and the Energy Research and Development Administration, the DOE established an administrative mechanism to deal 
with complaints of reprisal by such employees.  Under the existing procedure (which has been in effect since shortly after the 
inception of the DOE), a contractor employee who believes that he or she has been the object of reprisal by his or her employer 
with regard to disclosures involving health and safety issues in the workplace may file a complaint with the cognizant manager or 
head of the DOE facility involved (Head of Field Element), who is authorized to investigate and resolve the complaint.  The current 
procedure, however, does not identify specific fact-finding procedures and makes no provision for an on-the-record hearing or 
review of the Head of Field Element's decision.
 Accordingly, in order to assure workplace conditions at DOE facilities that are harmonious with safety and good management, the 
DOE intends to improve the current procedures for resolving complaints of reprisal by establishing procedures for independent 
fact-finding and hearing before a Hearing Officer at the affected DOE field installation, followed by an opportunity for review by 
the Secretary or designee.  These new procedures are intended to be available to those contractor employees who allege health and 
safety violations, but are not covered by the DOL procedures.  In addition, contractor employees who allege employment reprisal 
resulting from the disclosure of information relating to waste, fraud, or mismanagement, or from the participation in proceedings 
conducted before Congress or pursuant to this rule, or from the refusal to engage in illegal or dangerous activities, may also 
utilize these procedures regardless of whether they are covered by the health and safety protection procedures of DOL.  This rule 
is not intended to cover complaints of reprisal stemming from or relating to other types of discrimination by contractors, such as 
discrimination on the basis of race, color, religion, sex, age, national origin, or other similar basis.
 The procedures set forth in this notice resemble the procedures currently utilized by DOL in adjudicating complaints of reprisal 
filed under section 210 of the Energy Reorganization Act, but are tailored to the unique needs of DOE and its relationship with the 
contractors to which the rule will apply.  The rule enlarges and clarifies current DOE policy by specifically providing that the 
reprisal protections apply to contractor and subcontractor employees who report what they, in good faith, believe to be a violation 
of law, rule, or regulation; a substantial and specific danger to public health or safety; or fraud, mismanagement, gross waste of 
funds, or abuse of authority. In addition, the rule protects employees who (1) participate in proceedings before Congress, (2) 
participate in proceedings conducted pursuant to the rule, or (3) refuse to engage in illegal or dangerous activities.  The rule is 
designed to provide an appropriate administrative remedy if a prohibited reprisal is found to have occurred.

II. Organization

 The proposed rule (published in the Federal Register (55 FR 9326) on March 13, 1990) was organized chronologically, from the 
filing of the complaint to the eventual implementation by the Head of Field Element of the final decision of the DOE.
 Section 708.5 lists the types of activities for which employees are to be protected from employer reprisal.  Section 708.6 sets 
forth the procedures to be followed for filing complaints of reprisal, and specifies the requisite contents of a complaint. Section 
708.7 sets forth a 30-day time period in which the Head of Field Element or designee shall attempt an informal resolution of a 
complaint filed under s 708.6.  Section 708.7 also sets forth the procedure for forwarding the complaint to the Director of a newly 
created office, the Office of Contractor Employee Protection (Director), for a preliminary determination of whether it should be 
summarily dismissed.
 Section 708.8 sets forth the responsibility of the Director to track complaints and notify parties of their rights under the rule. 
It allows for dismissal of a complaint for stated reasons under certain procedures and permits any party to apply to the Secretary 
or designee for review of an order of dismissal.  Section 708.8 also sets forth the procedures for an independent investigation, 
delineates the authority of the investigator to conduct the investigation, and specifies the required content of the Report of 
Investigation.
 Section 708.9 describes the procedures for an on-the-record hearing at the DOE field installation.  The rule permits a party, 
within 15 days of receipt of the Report of Investigation, to request a hearing on the complaint.  Upon receipt of a request for a 
hearing, the Director is required to transmit the file to the DOE Office of Hearings and Appeals for appointment of a Hearing 
Officer.
 Section 708.10 provides that the Director will issue the initial agency decision in cases where no hearing is requested.  If a 
hearing is held, s 708.10 requires the Hearing Officer to issue the initial agency decision.  In making initial agency decisions, 
the Director and Hearing Officer may rely upon, but are not bound by, the Report of *7535 Investigation.  Initial agency decisions 
may be appealed to the Secretary or designee.
 Section 708.11 establishes the responsibility of the Secretary or designee for conducting a review of the entire record at the 
request of any party, and for issuing a final decision, including an order for appropriate remedy if violations are found to have 
occurred. The liability for costs incurred by the contractor in implementing the order issued by the Secretary or designee will be 
consistent with the provisions of the Department of Energy Acquisition Regulations (DEAR) and the Federal Acquisition Regulations.  
In this regard, a Final Rule, published in the Federal Register on June 19, 1991 (56 FR 28099), and amended on August 12, 1991 (56 
FR 38174) and on August 26, 1991 (56 FR 41962), modified the DEAR with respect to certain contracting practices relating to cost 
allowability for some profit-making management and operation contractors.
 Under the provisions of the DOE's contracts with the contractors to which this rule will apply, the Head of Field Element is 
required by s 708.12 to implement the final decision of the DOE under the rule.  The original s 708.13 providing protections 


against conflicts of interest by the Head of Field Element when participating in a complaint under this rule has been eliminated in 
view of the new provisions assigning the decision-making responsibility to the Director or the Hearing Officer.  Section 708.13 
(former s 708.14) requires contractors to inform their employees of the Contractor Employee Protection Program set forth in this 
rule.  Proposed s 708.15 (now s 708.14) has been modified to provide that the Secretary of Energy may, if he deems it in the public 
interest, refer any complaints filed pursuant to this rule to other Federal agencies for investigation and factual determination.  
Proposed s 708.16 (now s 708.15) has been modified to permit the Secretary or designee to extend the time frames set forth in the 
rule. Conforming amendments to the DEAR, as necessary, will be proposed by a separate rulemaking.

III.  Public Comment

 The proposed rule was published in the Federal Register (55 FR 9326) on March 13, 1990.  Interested persons were invited to submit 
written comments and a public hearing was held in Washington, DC, on May 4, 1990.  The DOE received 19 pieces of correspondence: 7 
from contractor employees and employee interest groups; 7 from contractors and contractor associations; and 5 from members of 
Congress.  One individual appeared in person to speak at the public hearing. The comments addressed the following areas of concern:

A. Authority

 Comments received questioned the DOE's authority to promulgate this rule.  This rule is issued pursuant to the broad authority 
granted the agency by the Atomic Energy Act of 1954, as amended (42 U.S.C. 2201), the Energy Reorganization Act of 1974, as amended 
(42 U.S.C. 5814 and 5815), and the Department of Energy Organization Act, as amended (42 U.S.C. 7251, 7254, 7255, and 7256) to 
prescribe such rules and regulations as necessary or appropriate to protect health, life, and property and the otherwise administer 
and manage the responsibilities and functions of the agency.  Subpoena authority is specifically vested in the Secretary (and may 
be delegated to his duly authorized agents) by section 645 of the Department of Energy Organization Act, as amended (42 U.S.C. 
7255).

B. Scope of the Rule

 Comments received respecting the scope of the rule fell into the following categories: (1) Extension of the rule's applicability 
to all subcontractors; (2) expansion of the rule's protection to cover disclosures made to contractors, labor unions, citizen 
groups, the press, State and Federal regulatory officials, and members of Congress; (3) extension of the rule to protect employees 
who are subject to disciplinary action for refusal to engage in illegal or dangerous activities; (4) clarification of whether the 
rule is applicable to disclosures of security violations; and (5) clarification of the rule's coverage of employees who have 
"participated" in proceedings under this part 708.

1. Extension of the Rule to Cover Employees of all Subcontractors

 Correspondence received in response to the request for comment on extension of the rule to cover employees of subcontractors at 
all tiers tended to support such an extension on grounds that the interests protected under the rule are equally valid for 
employees of all subcontractors.  Comments stating that the rule should not be extended to all tiers of subcontractors reasoned 
that such a rule would be difficult to administer, that it would result in reluctance on the part of subcontractors to do work 
under DOE prime contracts, and that it would make it difficult to meet DOE goals of placing a fair proportion of acquisitions with 
small businesses and small disadvantaged businesses.  The DOE believes that the health and safety of all contractor employees is of 
utmost importance and overrides enforcement and administrative difficulties that could be incurred in extending the rule to second- 
and lower-tier subcontractors.  In consideration of these comments, s 708.4 has been amended to make the rule applicable to 
contractors at all tiers, and the exclusion for contracts not exceeding $25,000 has been deleted.

2. Disclosures Made to Parties Other than DOE

 Comments were received advocating expansion of the rule's protection to cover, in addition to disclosures made to DOE, in-house 
disclosures made to the complainant's employer, and disclosures made to labor unions, citizen groups, the press, State and Federal 
regulatory officials, and members of Congress.
 The DOE encourages cooperation between employees and management to achieve the goals of safe and efficient operations of DOE 
facilities, and views such cooperation as imperative.  This is reflected in the requirement of s 708.6 that an employee exhaust 
internal company remedies to the extent possible prior to filing a complaint under this part.  Internal company remedies include 
procedures provided for in negotiated collective bargaining agreements.
 The DOE has determined to afford protection to employees who have made disclosures to contractors.  Disclosures to contractors 
will include quality assurance reports and other similar reports made in the course an employee's job responsibilities.  Due to the 
responsibility of the Congress for oversight of the Executive Branch, s 708.5(a)(1) also has been amended to include disclosures 
made to members of Congress within the scope of the rule's protection.
 A fundamental purpose of this rule is to encourage individuals to feel free to disclose to the DOE information relative to health 
and safety problems or mismanagement at DOE-owned or
-leased facilities so that the DOE can take corrective action. The DOE does not believe that disclosures to other parties fosters 
this objective. Additionally, the DOE believes that extension of this rule to employees making disclosures to other parties could 
unduly complicate these procedures with evidentiary problems respecting whether a disclosure had actually been made.  A factual 
issue of this sort could allow the rule to be used as a vehicle by disgruntled employees to shield themselves from adverse *7536 
personnel action merely by alleging that a disclosure had been made. Consequently, for the reasons stated, the DOE is reluctant to 


extend protection under this part to disclosures made to other parties.
 Thus, with the exception of disclosures made to members of Congress and disclosures to contractors, the DOE believes it is 
inappropriate to expand the rule as suggested.  Employees who wish to be protected against contractor reprisal for calling 
attention to problems regarding health and safety, fraud, mismanagement, waste, and abuse, or any other matter covered by this 
rule, must disclose the problem to DOE, to a member of Congress, or to the contractor. A disclosure to any higher tier contractor 
will also satisfy the disclosure requirement of the rule.  Disclosures to DOE can be accomplished by contacting, telephonically, in 
writing, or otherwise, the responsible health and safety officer at DOE field offices, the DOE Headquarters Office of Environment, 
Safety and Health, the DOE Headquarters Office of Nuclear Safety, or the DOE Office of Inspector General.  Employees making 
protected disclosures to DOE may request confidentiality.
 The DOE believes that circumstances may occasionally arise whereby a disclosure does not fall within the scope of the rule, but 
the DOE, for equitable reasons, may wish to extend coverage of the rule.  Accordingly, at the discretion of the Director, 
complaints of reprisal which do not fall within the scope of the rule may be accepted if, after careful consideration of the 
circumstances surrounding such a complaint, the DOE determines that acceptance of the complaint is equitable and furthers the 
purpose of the rule. However, in no event will coverage under the rule be extended to employees of contractors over whom DOE does 
not exercise enforcement authority with respect to the requirements of this rule.  The determination to accept a complaint for 
equitable reasons will be made on a case by case basis.  A decision by the Director to reject such a complaint may be appealed to 
the Secretary or designee.

3. Protection of Employees Refusing to Participate in Illegal or Dangerous Activities

 Comment was received stating that the rule should be extended to protect employees who refuse to participate in illegal or 
extremely dangerous activities.  The DOE agrees, and s 708.5 has been amended to extend the protection of the rule to employees who 
refuse to participate in illegal activities or in activities which a reasonable person would believe pose a serious danger to the 
employee, other employees, or the public (provided such dangerous activity is not within the scope of the employee's employment 
responsibilities).  Before refusing to participate in the illegal or dangerous activity, the employee must attempt through the 
contractor to correct the violation or eliminate the danger.  If such attempt is unsuccessful and the employee refuses to 
participate in the illegal or dangerous activity, the employee, within 30 days following such refusal, must report the violation or 
dangerous activity to DOE, a member of Congress, or the contractor, and must explain the reasons why the employee believed the 
activity to be illegal or dangerous and thus justified a refusal to participate in the activity.

4. Disclosures Regarding Security Violations

 Comment was received inquiring whether the protections afforded by the rule would extend to employees disclosing information 
respecting improper adherence to security requirements.  Since the rule protects employees disclosing information pertaining to 
violations of laws, rules, or regulations, an employee disclosing a security matter evidencing a violation of law, rule, or 
regulation would be covered by the rule.  The DOE believes the rule does not require amendment in this regard.

5. Protection of Employees Who Have "Participated" in Proceedings

 Comment was received stating that s 708.5(a)(2), which affords protection to employees who have "participated" in proceedings 
under this part 708, should be expanded to also include those who "initiate" or "assist" in proceedings under part 708.  It was not 
the DOE's intention to exclude from the protection of this rule employees who initiate or assist in proceedings under this part.  
In fact, the DOE intends that the term "participated," as used in s 708.5(a)(2), be liberally construed to include those who have 
initiated, assisted, or in any other manner "participated" in proceedings under part 708.  The term "participated" should not, 
however, be construed to include those employees who, without taking some overt action toward that end, have merely demonstrated an 
intent to participate in such proceedings.  Whether an employee has "participated" in a proceeding under part 708 shall be 
determined on a case-by- case basis, taking into consideration all of the facts and circumstances involved.
 Comment was also received stating that the protection afforded employees who have "participated" in proceedings under part 708 
should be extended to include employees who testify in court, or before Congress or other Federal agencies. As discussed above, the 
DOE is reluctant to offer protection to employees for disclosures made to parties other than DOE, members of Congress, or 
contractors.  For reasons paralleling those discussed above, and with the exception of testimony before Congress, the DOE believes 
it inappropriate to expand the rule as suggested.  Section 708.5(a) has been amended to extend the rule to cover employees who have 
participated in proceedings before Congress.

C. Implementation and Review

 Comments were also received addressing the internal nature of the procedures set forth for the investigation, hearing, and review 
of complaints.  It was suggested by commenters representing employees, as well as commenters representing contractors, that the 
Head of Field Element, the Secretary, and the DOE are not impartial parties with respect to contractor-employee matters. With 
respect to this issue, commenters have suggested that (1) DOE be removed from involvement with the administration and enforcement 
of the contractor employee protection rule and such responsibility be transferred to DOL; (2) an independent investigator be 
appointed and the Head of Field Element be removed from involvement; (3) administrative law judges be utilized in lieu of Hearing 
Officers; and (4) the final decision of the DOE be subject to judicial review.

1. DOE's Involvement



 The DOE is intimately involved with and is ultimately responsible for operations at its facilities, and deems conditions that 
jeopardize health and safety, violate any laws, rules or regulations, or involve fraud, mismanagement, waste, or abuse to be 
directly counterproductive to such operations.  The DOE, therefore, is highly interested in all matters pertaining to operations at 
its facilities, and believes that it is the appropriate agency to administer the Contractor Employee Protection Program set forth 
in this rule.  The DOE does not agree that it lacks the impartiality necessary to assure that both the employee and the contractor 
are afforded a fair investigation and hearing.
 Although DOL oversees the "whistleblower" protection program for *7537 employees of licensees of NRC facilities, the relationship 
between the NRC and its licensees is far less direct than the relationship between DOE and its contractors.  The NRC is merely a 
regulatory agency not responsible for the daily supervision of the operations of its licensees, and the work of licensees is not 
conducted at Federal facilities under contract with the Government. DOE contractors, on the other hand, are performing services for 
DOE, at DOE-owned or -leased facilities, and at DOE expense.  Thus, DOE has a proprietary responsibility with respect to services 
performed by its contractors.  It is reasonable, therefore, that the NRC should refer complaints of employment discrimination made 
by licensee employees to DOL, and that DOE should retain jurisdiction over such complaints when brought against a DOE contractor. 
Moreover, it is highly questionable whether DOE, in the absence of specific statutory authority, may legally transfer such 
responsibility to another Federal agency.  For those cases where deemed appropriate, the rule allows the Secretary to request that 
other Federal agencies investigate the complaint and make the factual determinations upon which the Secretary's final decision will 
be based.

2. Involvement of the Head of Field Element

 The DOE has adopted, in part, the suggestion that the Head of Field Element be removed from involvement in the processing of 
complaints under this rule.  The final rule transfers the responsibilities previously delegated by the proposed rule to the Head of 
Field Element to the Director of a newly created Office of Contractor Employee Protection but preserves the Head of Field Element's 
involvement in attempts at informal settlement.  This change removes decision making responsibilities from the Head of Field 
Element and delegates them to a DOE Headquarters office responsible directly to the Secretary or designee.  DOE believes all 
parties will be better served by this amendment by removing any real or perceived conflict of interest existing under the proposed 
rule. The newly created Office of Contractor Employee Protection will also be responsible for assigning an investigator to review 
allegations of reprisal.
 The DOE believes that the Head of Field Element can play an important role in the informal resolution of employee complaints of 
reprisal.  DOE views precautions that ensure health and safety of employees and the public and that safeguard against 
mismanagement, waste or abuse, as well as compliance with applicable laws, rules, and regulations, to be the direct responsibility 
of line management.  Consequently, DOE looks to the Head of Field Element to be accountable for acts of reprisal stemming from such 
matters and believes such person's direct involvement in the informal resolution of allegations of reprisal to be both necessary 
and appropriate.

3. Hearing Officer

 Comment was received stating that Administrative Law Judges (ALJs) should be used in lieu of Hearing Officers.  Although not 
required, the rule does not preclude the appointment of an ALJ or other Federal official to perform the duties of the Hearing 
Officer.  As an administrative detail, the rule has been revised to allow utilization of Hearing Officers appointed by the Director 
of the DOE Office of Hearings and Appeals.  The Office of Hearings and Appeals is a DOE Headquarters office with a staff of 
professional hearing officers experienced in the conduct of complex adjudicatory proceedings.  For cases adjudicated before a 
Hearing Officer, the Hearing Officer will issue the initial agency decision.

4. Judicial Review

 Comments were received stating that the provision of s 708.12(b) exempting final orders from judicial review under the Contract 
Disputes Act is improper and in violation of the Wunderlich Act. Disagreements regarding issues arising under a complaint and 
respecting whether discrimination in violation of s 708.5 has occurred, and decisions issued pursuant to this part, will not 
constitute disputes or claims arising under or relating to a contract and, therefore, will not give rise to a claim under the 
Contract Disputes Act.  However, circumstances could arise whereby matters involving implementation of final decisions issued 
pursuant to the rule become involved in a claim under the Contract Disputes Act.  For example, a contractor's disagreement, and 
refusal to comply, with a final decision under the rule, could result in a contracting officer's decision to disallow certain costs 
or terminate the contract for default.  In such case, the contractor could file a claim under the disputes procedures of the 
contract respecting the decision to disallow or terminate. Section 708.12(b) has been amended to clarify this point.
 Other comments objected to the lack of access to judicial review by claimants dissatisfied by the outcome of a proceeding under 
this part.  Jurisdiction over such matters, however, cannot be established by a rulemaking.

D. Time Frames

 Comments were received stating that the 30-day period provided in proposed s 708.6(c) (s 708.6(d) of the final rule), within which 
a complaint must be filed, should be extended to 180 days because employees are often unaware of the remedies available to them and 
may not fully appreciate the ramifications of an employer's actions until several months have passed.  The DOE has considered this 
comment, and agrees in part and disagrees in part.  The proposed rule provided that the 30-day limitation period begins to run from 
the day the alleged discriminatory act occurred "or was discovered" (emphasis added).  Thus, under some circumstances, the 
discovery of the negative impact of a personnel action not blatantly discriminatory, might reasonably not arise until several 


months (or more) subsequent to the action itself and could delay the running of the limitations period so that the limitations 
period could extend well beyond 180 days from the occurrence of the discriminatory act. Additionally, the limitations period is 
tolled for any period during which the employee is attempting resolution of his complaint through an internal company grievance 
procedure.
 The date on which a discriminatory act occurred and the date on which it was discovered are factual issues to be determined on a 
case-by-case basis at the time a complaint is filed.  The DOE believes that a 180-day limitations period running from the time an 
employee knew, or should have known, of the discriminatory act is excessive and would make the investigation of complaints more 
difficult as memories grow dimmer with the passage of time. Nevertheless, the DOE believes that a 30-day limitations period may in 
some circumstances be unduly short.  In light of these considerations, proposed s 708.6(c) (s 708.6(d) of the final rule) has been 
amended to require that complaints be filed within 60 days after the alleged discriminatory act occurs, or within 60 days after the 
employee knew, or reasonably should have known, that the alleged discriminatory act occurred, whichever is later.

E. Procedural Matters

1. Rules of Evidence

 Comment was received stating that formal rules of evidence should be used, and suggesting that the modified Federal Rules of 
Evidence set forth at 29 CFR part 18 be followed.  The DOE disagrees.  *7538 These proceedings are intended to be administrative in 
form and nature and are not intended to emulate formal trial proceedings.  The DOE believes it would be unfair and overly 
burdensome to those not represented by counsel to require compliance with any formal rules of evidence, including the modified 
Federal Rules of Evidence.  In the interest of achieving justice both expeditiously and without undue expense, the regulation 
states that formal rules of evidence shall not apply.  It is intended, however, that formal rules of evidence be used as a guide, 
and language has been added to proposed s 708.9(d) (s 708.9(c) of the final rule) to reflect this.

2. Post-Hearing Briefs

 Comment was received stating that the rights of the parties to submit post- hearing briefs should not be subject to the discretion 
of the Hearing Officer. The DOE disagrees.  The parties may submit written closing arguments for inclusion in the administrative 
record and all briefs or statements filed before or during the proceeding will be included in the record.  The DOE believes that an 
expeditious resolution of a complaint benefits both the employee and the contractor.  This can best be accomplished by allowing 
post- hearing briefs only when, in the discretion of the Hearing Officer, circumstances warrant the submission of additional 
material.

3. Burden of Proof

 Comment was received suggesting that the complainant's burden of proof should be clarified.  The DOE agrees and a new s 708.9(d) 
has been added to provide that the employee's burden is to demonstrate that the employee in fact did one of the acts described in s 
708.5 (i.e., disclosed information relating to a violation of law or regulation, evidencing a health or safety danger, or 
evidencing matters involving mismanagement, gross waste of funds, or abuse of authority; participated in a Congressional proceeding 
or a proceeding under this part; or refused to engage in an illegal or dangerous activity) and that such act was a contributing 
factor in a discriminatory act taken or intended to be taken against the employee.  The burden then shifts to the contractor to 
demonstrate by clear and convincing evidence that the same personnel action would have been taken absent the employee's protected 
activity.

4. Security Measures

 Comment was received suggesting that the rule be clarified to indicate that appropriate safeguards will be implemented to address 
circumstances involving Restricted Data or national security information.  The DOE agrees and s 708.6(f) has been added for that 
purpose.  Comment was also received criticizing the language of s 708.5(b) which limits protection of the rule to those disclosures 
that are not specifically prohibited by law or specifically required by Executive Order to be kept secret.  In response to this 
comment, s 708.5(b) has been reworded to clarify that the rule is not intended to override provisions of any regulations pertaining 
to classified or sensitive information, and protections will not be available to persons who, in the course of making disclosures 
otherwise protected under the rule, make improper disclosures of Restricted Data, national security information, or any other 
classified or sensitive information protected by Executive Order, statute, or regulation.

F. Interaction With Other Systems of Dispute Resolution

 Comments were received suggesting that the rule in effect would interpose the DOE in all contractor-employee disciplinary and 
performance based actions, and that the rule could be used by disgruntled employees as a shield against disciplinary action 
stemming from substandard performance.  Comments were also received urging that the rule be made inapplicable to those contractors 
with internal company "whistleblower" protection programs in existence.  In contrast, comments were received urging deletion of 
proposed s 708.6(b) (s 708.6(c) of the final rule) which would require employees to certify that internal company grievance 
procedures have been exhausted, are ineffectual, or do not exist.
 The DOE believes that contractors should have the managerial discretion to deal with employee disciplinary matters as they deem 
appropriate, and that contractors with effective employee protection programs should have the opportunity to address and resolve 
complaints of reprisal internally.  The DOE recognizes, however, that in certain instances company procedures are not a substitute 


for Federal administrative procedures.  Accordingly, the DOE believes that s 708.6(c) appropriately requires that internal company 
procedures be utilized when available, and that the rule as a whole does not excessively encroach upon the contractor's right to 
exercise managerial discretion.  The DOE believes that the affirmation requirement of s 708.6(c) strikes a proper balance in 
protecting the rights of both the contractor and the employee.  It ensures that contractors desiring to address such complaints 
internally can secure that opportunity by implementing appropriate internal procedures.  At the same time, the rule protects the 
employee by allowing for an exception where pursuit of internal remedies would be futile or would expose the employee to additional 
employer reprisals.  The affirmation requirement is intended to encourage employees and contractors to work together, when 
possible, to resolve their concerns.  Further, although the complainant is required to include a statement respecting the 
employee's use of internal company procedures, as well as other specific information, the affirmation requirement should not be 
interpreted to require that the complaint itself be in any specific form.  The language of s 708.6(c) has been amended for 
clarification.
 Comment was received inquiring into the use of information gleaned through internal investigations or other proceedings by the 
contractor in its attempt to resolve the complaint internally.  The DOE intends that investigations and other proceedings conducted 
pursuant to this part be de novo.  However, any information collected or documents prepared by the contractor pursuant to internal 
resolution attempts shall be subject to the same inspection by the investigating officer as any other evidence probative of whether 
a violation of s 708.5 has occurred.
 Additionally, some commenters inquired as to the interaction of the proposed rule with "whistleblower" programs implemented 
pursuant to State or other applicable law.  It is not the DOE's intention that this rule should in any way limit an employee's 
right to pursue remedies available under State or other applicable law. However, it is also not the DOE's intention to give 
employees a forum in which to relitigate complaints that have been resolved after investigation and a full evidentiary hearing.  
Therefore, a new s 708.6(a) has been added to require that in those circumstances when redress is available under State or other 
applicable law, the employee must make an exclusive election of remedies.  If an employee files a complaint pursuant to State or 
other applicable law before or concurrently with the filing of a complaint with DOE, the DOE shall not accept jurisdiction over the 
complaint.  If, subsequent to the filing of a complaint with DOE, an employee, pursuant to State or other applicable law, files a 
complaint with respect to the same subject matter, the limitations *7539 period for the filing of a complaint as set forth in s 
708.6(d) will be suspended and the complaint pursuant to this part shall be immediately dismissed.  If, however, an employee elects 
to pursue a remedy available under State or other applicable law, and it is later determined that the State or other tribunal has 
no jurisdiction, the employee may reinstitute or initially file a timely complaint with DOE.  The pursuit of a remedy under a 
negotiated collective bargaining statement will not be considered the pursuit of a remedy under State or other applicable law and 
will not foreclose the employee's right to file a complaint under this part.  Proposed s 709.6(a)-(d) has been modified accordingly 
and redesignated s 708.6(b)-(e).

G. Remedies

 Comments were received addressing the remedies available to an employee under the proposed rule.  It was suggested that, in 
addition to the remedies listed, the rule should allow a transfer preference, an option to retire for employees meeting certain age 
requirements, and interim relief (such as temporary reinstatement) pending final resolution of the complaint.  For those cases in 
which discrimination against an employee in reprisal for a protected disclosure is found to have occurred, the rule aims to make 
the employee whole by restoring such employee to the position in which he or she would otherwise have been, absent the act(s) of 
reprisal, in a manner similar to other "whistleblower" protection rules.  It is not the intention of the DOE to make available to 
the employee options which would not otherwise have been available to that employee.  The DOE believes that to require certain 
employees be granted the option of early retirement would be an overly intrusive interference in management prerogatives.  On the 
other hand, the DOE believes that there are circumstances for which a transfer preference or the granting of interim relief may be 
reasonable and appropriate, and s 708.10(c)(3) has been added and s 708.11(c) has been amended to allow for the inclusion of these 
remedies.
 Comment was also received questioning whether the DOE would require the contractor to take action against employees found to have 
been involved in the discriminatory action.  As stated above, the purpose of this rule is to restore employees subject to acts of 
reprisal to the position in which they would otherwise have been absent such discriminatory action.  The DOE believes that it is 
within the contractor's managerial responsibility and discretion to address disciplinary matters associated with employees found to 
have participated in discriminatory conduct.

H. Allowability of Costs

 Comment was received suggesting that the rule address whether, and to what extent, the costs of relief awarded a complainant, 
including attorney and expert-witness fees, as well as the contractor's costs of defending against a complaint, should be allowable 
costs under a Management and Operating contract.  The DOE disagrees.  Allowability of costs incurred as a result of this part is a 
procurement issue and will be determined in accordance with the Federal Acquisition Regulations, the DOE's Acquisition Regulation 
(DEAR), and contract provisions.  Certain issues relating to allowability of costs were the subject of a Final Rule amending the 
DEAR, published in the Federal Register on June 19, 1991 (56 FR 28099), and amended on August 12, 1991 (56 FR 38174) and on August 
26, 1991 (56 FR 41962).  That rule could affect the reimbursability of costs incurred by contractors in complying with this part.

I. Frivolous Complaints

 Comment was received criticizing the provisions of proposed s 708.8 which allow the Head of Field Element and the DOE to decline 
to accept complaints for processing under this rule.  The DOE believes that, if early in the administrative process complaints are 
determined to be frivolous or without merit, they should be dismissed.  To require full implementation of all protections and 


proceedings provided by the rule when a case is clearly frivolous would be an unwarranted waste of taxpayer money.  However, the 
DOE has amended the rule to remove the authority of the Head of Field Element to dismiss a complaint.  Thus, if the Head of Field 
Element, based on his review of the complaint, believes that a complaint should be summarily dismissed under any of the criteria 
set forth in s 708.8, he must forward the complaint to the Director who will make that determination.  This amendment has been 
adopted in order to promote administrative efficiency and fairness.  On the other hand, because the DOE also believes that an 
employee who has filed a complaint should be given the benefit of any doubt as to the validity of the matters alleged therein, and 
that a complaint should not be dismissed as frivolous unless it is blatantly so on its face, all orders declining to process or 
dismissing complaints are subject to review by the Secretary.  Proposed s 708.8(b)-(e) has been redesignated s 708.8(c)-(f).  
Proposed s 708.8(b) (s 708.8(c) of the final rule) has also been amended to clarify that the complainant may file a written request 
for review by the Secretary or designee of the Director's decision to dismiss a complaint.
 Comment was also received advocating the imposition of penalties or sanctions for submission of malicious or false complaints.  
The DOE believes that exposing the employee to potential penalties and sanctions would operate to discourage employees from coming 
forward with information pertaining to unsafe, unlawful, fraudulent, or wasteful practices, without fear of retribution.  
Consequently, the DOE finds the imposition of administrative penalties to be contrary to the purpose of the Contractor Employee 
Protection Program.  This rule does not, however, affect the applicability of criminal penalties under 18 U.S.C. 1001 and 1621 for 
knowingly and willfully making false, fictitious or fraudulent statements or representations.

J. Other Comments

1. Duplication of Existing Procedures

 Comment was received stating that the rule duplicates existing DOE procedures.  The DOE disagrees.  Although the DOE Inspector 
General has authority to investigate allegations of waste, fraud, and abuse, that oversight authority is not a substitute for a 
program designed to protect employees who conscientiously bring such matters to the DOE's attention.

2. Mandatory Training Sessions

 Comment was received stating that contractors covered by the rule should be required to conduct training sessions to familiarize 
employees with the Contractor Employee Protection Program.  The DOE disagrees.  Although the DOE encourages such training, the DOE 
believes that this is a matter appropriately left to managerial discretion.  The rule requires that information pertaining to this 
program be visibly posted in conspicuous places, and the DOE believes that this strikes a balance between the need to communicate 
information regarding this program to employees and the contractor's right to manage its business.

3. Applicability to Owners, Officers, and Employees of the Contractor

 Comment was received inquiring whether the rule applied to a contractor as a business entity, or to the owners, officers or 
employees of a contractor.  *7540 The final rule defines "contractor" as "a seller of goods or services who is a party to a 
procurement contract * * *." Since the contractor is typically the business entity itself, whether it be a corporation, 
partnership, or other form of business, which is "party to a procurement contract," the DOE intends by this definition that the 
rule will be applicable to the business entity, and that it will be the business entity that is a party to any proceedings under 
the rule.

4. Definition of "Discrimination"

 Comment was received stating that the rule should be modified to contain a more precise definition of the term "discrimination." 
The DOE disagrees.  In defining the term "discrimination," the DOE relied upon other employee protection regulations and statutes 
and listed those types of adverse personnel actions commonly encountered.  As the definition indicates by the phrase "or other 
similar negative actions taken," the adverse actions listed is not intended to be an exclusive listing.

IV. Provisions of the Final Rule

 The DOE is adopting the provisions set forth in the Notice of Proposed Rulemaking with the changes noted above.  In addition, the 
following amendments have been made:
 1.  Section 708.2 has been amended to reflect that the rule is applicable as of its effective date to complaints of reprisal filed 
after that date which stem from disclosures, participations, or refusals involving health and safety matters, provided the 
underlying procurement contract described in s 708.4 contains a clause requiring compliance with all applicable safety and health 
regulations and requirements of DOE (48 CFR 970.5204-2).  For all other complaints, the rule is applicable to acts of reprisal 
occurring after the effective date if the underlying procurement contract described in s 708.4 contains a clause requiring 
compliance with this part.  The DOE intends to amend the Department of Energy Acquisition Regulation to require that all DOE 
contracts and subcontracts contain a provision requiring compliance with this part.
 Section 708.2 has also been amended to clarify that the rule does not cover complaints of reprisal stemming from, or relating to, 
other types of discrimination by contractors such as discrimination on the basis of race, color, religion, sex, age, national 
origin, or such other similar basis.
 2.  Definitions have been revised or added to s 708.4 for "contractor,"  "Director," "day," "employee," "Head of Field Element," 
"party," and "work performed on-site."
 3.  Section 708.6(c) has been changed to clarify the fact that a complaint need not be in any specific form as long as it sets 


forth the specific information required.
 4.  Section 708.8 (a) and (b) has been amended to require that upon the Director's decision to refuse or dismiss a complaint, 
written notification to the Secretary must occur within 15 days of the Director's receipt of the file and a copy of the notice must 
be provided to the complainant.  Section 708.8(a) of the final rule also contains language, previously found in s 708.7(c), 
requiring the Director, rather than the Head of Field Element, to notify parties of their right to an investigation and a hearing 
with respect to complaints which have not been dismissed or settled. Proposed s 708.8(b) (s 708.8(c) of the final rule) has been 
amended to allow for automatic reinstatement of a complaint if there is a determination that the matter cannot be resolved under 
State or other applicable law due to a lack of jurisdiction.
 5.  Proposed s 708.8(c) (s 708.8(d) of the final rule) has been amended to clarify that the authority granted the investigator to 
review documents and places, question persons, and require the production of other evidence, is for the specific purpose of 
determining whether a violation of s 708.5 has occurred.
 6.  Proposed s 708.9(b) has been redesignated s 708.10(a), and has been amended to require the Director to issue the initial 
agency decision in cases where no hearing is requested.  The content of the initial agency decision is also specified.
 7.  Section 708.9(i) has been amended to allow the Hearing Officer to make adverse findings upon the failure of a party to attend 
a hearing or to comply with a lawful order of the Hearing Officer.
 8.  Section 708.9(j) has been amended to clarify that a Hearing Officer's order to dismiss a claim, defense, or party may be 
appealed to the Director for reconsideration.
 9.  Proposed s 708.10(a) and (b) has been redesignated s 708.10(b) and (c).
 10. For purposes of clarification, the phrase "DOE-owned or -leased facilities" has been substituted for the phrase "DOE-owned or 
-controlled facilities," and the phrase "Head of Field Element" has been substituted for the term "Manager."

V. Procedural Requirements

A. Executive Order 12291

 Under Executive Order 12291, agencies are required to determine whether regulations are "major" as defined in the Order and 
therefore subject to the requirement of a Regulatory Impact Analysis.  DOE has reviewed this rule and has determined that it is not 
a major rule for the following reasons: This rule will not have an annual effect of $100 million or more on the economy; will not 
result in a major increase in costs or prices to consumers, individual industries, Federal, State, or local government agencies, or 
geographic regions; and will not have significant adverse effects on competition, employment, investment, productivity, innovation, 
or on the ability of United States-based enterprises to compete with foreign-based enterprises.  DOE submitted this notice to the 
Office of Management and Budget (OMB) for review. OMB has concluded its review.

B. Regulatory Flexibility Act

 In accordance with section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., DOE finds that sections 603 and 604 of 
the said Act do not apply to this rule because, if promulgated, the rule will affect only DOE contractors and subcontractors 
performing on-site at Government-owned or -leased facilities, and will not have a significant economic impact on a substantial 
number of small entities.

C. National Environmental Policy Act

 There is no impact on the human environment under this proposed rule.  It is an employee-relations mechanism and deals only with 
administrative procedures regarding reprisal protection for employees of DOE contractors and subcontractors.  Accordingly, DOE has 
determined that this is not a major Federal action with significant impact upon the quality of the human environment and, 
therefore, preparation of an environmental assessment or an environmental impact statement is not required.

D. Paperwork Reduction Act

 Any paperwork burden imposed by the proposed regulation will be minor and will be within the authority granted by OMB Control 
Number 1910-0600.

E. Federalism

 The principal impact of this regulation will be on government contractors and their employees.  The regulation is unlikely to have 
a substantial direct *7541 effect on the States, the relationship between the States and the Federal government, or the 
distribution of power and responsibilities among various levels of government.  No Federalism assessment under E.O. 12612 is 
required.

List of Subjects in 10 CFR Part 708

 Energy, Government contracts; Health and Safety; Reprisal; Waste, Fraud, and Mismanagement; Whistleblower.
 Issued in Washington, DC, on February 25, 1992.

Berton J. Roth,



Acting Director, Office of Procurement, Assistance and Program Management.

 For the reasons cited above, part 708 is added to chapter III of title 10 of the Code of Federal Regulations as set forth below:

PART 708--DOE CONTRACTOR EMPLOYEE PROTECTION PROGRAM

Subpart A--General Provisions

708.1 Purpose.
708.2 Scope.
708.3 Policy.
708.4 Definitions.

Subpart B--Procedures

708.5 Prohibition against reprisals.
708.6 Filing a complaint.
708.7 Attempt at informal resolution.
708.8 Acceptance of complaint and investigation.
708.9 Hearing.
708.10 Initial agency decision.
708.11 Final decision and order.
708.12 Implementation of decision.
708.13 Communication of program to contractor employees.
708.14 Alternative means of resolution.
708.15 Time frames.

 Authority: 42 U.S.C. 2201(b), 2201(c), 2201(i), and 2201(p); 42 U.S.C. 5814 and 5815; 42 U.S.C. 7251, 7254 7255, and 7256.

Subpart A--General Provisions

s 708.1 Purpose.

 This part establishes procedures for timely and effective processing of complaints by employees of contractors performing work at 
sites owned or leased by the Department of Energy (DOE), concerning alleged discriminatory actions taken by their employers in 
retaliation for the disclosure of information relative to health and safety, mismanagement, and other matters as provided in s 
708.5(a), for the participation in proceedings before Congress or pursuant to this part, or for the refusal to engage in illegal or 
dangerous activities.

s 708.2 Scope.

 (a) This part is applicable to complaints of reprisal filed after the effective date of this part that stem from disclosures, 
participations, or refusals involving health and safety matters, if the underlying procurement contract described in s 708.4 
contains a clause requiring compliance with all applicable safety and health regulations and requirements of DOE (48 CFR 
970.5204-2).  For all other complaints, this part is applicable to acts of reprisal occurring after the effective date of this part 
if the underlying procurement contract described in s 708.4 contains a clause requiring compliance with this part.
 (b) This part is applicable to employees (defined in s 708.4) of contractors  (defined in s 708.4) performing work on-site at 
DOE-owned or -leased facilities, unless the procedures contained in 29 CFR part 24, "Procedures for the Handling of Discrimination 
Complaints under Federal Employee Protection Statutes," are applicable.  The procedures of this part 708 do not apply to contractor 
employees at government-owned, government-operated facilities, or to complaints of reprisal stemming from, or relating to, 
discrimination by contractors on a basis such as race, color, religion, sex, age, national origin, or other similar basis not 
specifically discussed herein.  The protections afforded by this part are not applicable to any employee who, acting without 
direction from his or her employer, deliberately causes, or knowingly participates in the commission of, any misconduct set forth 
in s 708.5 that is the subject of the disclosure.
 (c) For complaints not covered by s 708.5(a), the Director, at his discretion and for good cause shown, may accept a complaint for 
processing under this part.  However, in no event will coverage under the rule be extended to employees of contractors over whom 
DOE does not exercise enforcement authority with respect to the requirements of this part.  A determination by the Director not to 
accept a complaint pursuant to this subsection may be appealed to the Secretary of designee.

s 708.3 Policy.

 It is the policy of DOE that employees of contractors at DOE facilities should be able to provide information to DOE, to Congress, 
or to their contractors concerning violations of law, danger to health and safety, or matters involving mismanagement, gross waste 
of funds, or abuse of authority, to participate in proceedings conducted before Congress or pursuant to this part, and to refuse to 
engage in illegal or dangerous activities without fear of employer reprisal.  Contractor employees who believe they have been 
subject to such reprisal may submit their complaints to DOE for review and appropriate administrative remedy as provided in ss 


708.6 through 708.11 of this part.

s 708.4 Definitions.

 For purposes of this part--
 Contractor means a seller of goods or services who is a party to a procurement contract as follows:
 (1) A Management and Operating Contract;
 (2) Other types of procurement contracts; but this part shall apply to such contracts only with respect to work performed on-site 
at a DOE-owned or
-leased facility; or
 (3) Subcontracts under paragraphs (1) or (2) of this definition; but this part shall apply to such subcontracts only with respect 
to work performed on-site at a DOE-owned or -leased facility.
 Day or days mean(s) calendar day(s).
 Director means, unless otherwise indicated, the Director, Office of Contractor for Employee Protection.
 Discrimination or discriminatory acts mean(s) discharge, demotion, reduction in pay, coercion, restraint, threats, intimidation, 
or other similar negative action taken against a contractor employee by a contractor, as a result of the employee's disclosure of 
information, participation in proceedings, or refusal to engage in illegal or dangerous activities, as set forth in s 708.5(a) of 
this part.
 Employee or employees mean(s) any person(s) employed by a contractor, and any person(s) previously employed by a contractor if 
such prior employee's complaint alleges that employment was terminated in violation of s 708.5.  The determination of whether a 
person has standing as an employee shall be made without regard to the on- or off-site locale of the person's work performance.
 Field organization means a DOE field-based office that is responsible for the management, coordination, and administration of 
operations under its purview.
 Head of Field Element means an individual who is the manager or head of a DOE operations office, other field office, or field 
organization.
 Hearing Officer means an individual appointed by the Director, Office of Hearings and Appeals, pursuant to s 708.9.
 Management and Operating Contract means an agreement under which DOE contracts for the operation, maintenance, or support, on its 
behalf, of a Government- owned or -leased research, development, special production, or testing establishment *7542 wholly or 
principally devoted to one or more of the programs of DOE.
 Official of DOE means any officer or employee of DOE whose duties include program management or the investigation or enforcement 
of any law, rule, or regulation relating to Government contractors or the subject matter of a contract.
 Party or parties mean(s) any employee, contractor, or other party named in a proceeding under this part.
 Work performed on-site means work performed within the boundaries of a DOE- owned or -leased facility.  However, work will not be 
considered to be performed "on-site" when pursuant to the contract it is the only work performed within the boundaries of a 
DOE-owned or -leased facility, and it is ancillary to the primary purpose of the contract (e.g., on-site delivery of goods produced 
off-site).

Subpart B--Procedures

s 708.5 Prohibition against reprisals.

 (a) A DOE contractor covered by this part may not discharge or in any manner demote, reduce in pay, coerce, restrain, threaten, 
intimidate, or otherwise discriminate against any employee because the employee (or any person acting pursuant to a request of the 
employee) has--
 (1) Disclosed to an official of DOE, to a member of Congress, or to the contractor (including any higher tier contractor), 
information that the employee in good faith believes evidences--
 (i) A violation of any law, rule, or regulation;
 (ii) A substantial and specific danger to employees or public health or safety; or
 (iii) Fraud, mismanagement, gross waste of funds, or abuse of authority;
 (2) Participated in a Congressional proceeding or in a proceeding conducted pursuant to this part; or
 (3) Refused to participate in an activity, policy, or practice when--
 (i) Such participation--
 (A) Constitutes a violation of a Federal health or safety law; or
 (B) Causes the employee to have a reasonable apprehension of serious injury to the employee, other employees, or the public due to 
such participation, and the activity, policy, or practice causing the employee's apprehension of such injury--
 (1) Is of such a nature that a reasonable person, under the circumstances then confronting the employee, would conclude there is a 
bona fide danger of an accident, injury, or serious impairment of health or safety resulting from participation in the activity, 
policy, or practice; and
 (2) The employee is not required to participate in such dangerous activity, policy, or practice because of the nature of his or 
her employment responsibilities;
 (ii) The employee, before refusing to participate in an activity, policy, or practice has sought from the contractor and has been 
unable to obtain a correction of the violation or dangerous activity, policy, or practice; and
 (iii) The employee, within 30 days following such refusal, discloses to an official of DOE, a member of Congress, or the 
contractor, information regarding the violation or dangerous activity, policy, or practice, and explaining why he has refused to 
participate in the activity.
 (b) An employee disclosure, participation, or refusal described in s 708.5(a) (1), (2), or (3) shall be subject to this part only 


if it relates to activities alleged to have occurred under work performed by the contractor for DOE.  This part is not intended to 
override any other provision or requirement of any regulation pertaining to Restricted Data, national security information, or any 
other classified or sensitive information, and the protections of this part shall not apply to any person who, in the course of 
making a disclosure described in s 708.5(a) (1) or (3), or in the course of participating in a proceeding described in s 
708.5(a)(2), improperly discloses Restricted Data, national security information, or any other classified or sensitive information 
in violation of any Executive Order, statute, or regulation.

s 708.6 Filing a complaint.

 (a) An employee who believes that he or she has been discriminated against in violation of this part, and who has not, with 
respect to the same facts, pursued a remedy available under State or other applicable law, may file a complaint with DOE through 
the Head of Field Element at the field organization.  For purposes of this part, a complaint shall be deemed to have been pursued 
under State or other applicable law if the employee has, pursuant to proceedings established or mandated by State or other 
applicable law, at any time prior to, or concurrently with, the filing of a complaint with DOE, or at any time during the 
processing of a complaint filed with DOE, filed or submitted any complaint, action, grievance, or other pleading with respect to 
that same matter.  The pursuit of a remedy under a negotiated collective bargaining agreement will be considered the pursuit of a 
remedy through internal company grievance procedures and not the pursuit of a remedy under State or other applicable law.  The 
limitations period specified in s 708.6(d) shall be suspended upon the filing of a complaint pursuant to State or other applicable 
law, and the mere filing of a complaint pursuant to State or other applicable law shall not bar the employee from re-instituting or 
filing a complaint with DOE if the matter cannot be resolved under State or other applicable law due to a lack of jurisdiction.
 (b) The Head of Field Element may designate an individual to serve as point of contact for processing the complaint and for 
undertaking the responsibilities under s 708.7.
 (c) A complaint filed under paragraph (a) of this section need not be in any specific form provided it is signed by the 
complainant and contains the following: A statement setting forth specifically the nature of the alleged discriminatory act, and 
the disclosure, participation or refusal giving rise to such act; a statement that the complainant has not, as described in 
paragraph (a) of this section, pursued a remedy available under State or other applicable law; and an affirmation that all facts 
contained in the complaint are true and correct to the best of the complainant's knowledge and belief.  Additionally, the complaint 
must contain a statement affirming that:
 (1) All attempts at resolution through an internal company grievance procedure have been exhausted;
 (2) The company grievance procedure is ineffectual or exposes the complainant to employer reprisals; or
 (3) The company has no such procedure.
 The complaint must state the factual basis for such affirmation; and, if applicable, the date on which internal company grievance 
procedures were terminated and the reasons for termination.
 (d) A complaint filed pursuant to paragraph (a) of this section must be filed within 60 days after the alleged discriminatory act 
occurred or within 60 days after the complainant knew, or reasonably should have known, of the alleged discriminatory act, 
whichever is later.  In cases where the employee has attempted resolution through internal company grievance procedures as set 
forth in paragraph (c) of this section, the 60-day period for filing a complaint shall be tolled during such resolution period and 
shall not again begin to run until the day following termination of such dispute-resolution efforts.
 (e) Within 15 days of receipt of a complaint filed pursuant to paragraph (a) of this section, the Head of Field Element or 
designee shall notify:
 *7543 (1) The contractor, person, or persons named in the complaint, and
 (2) The Director, of the filing of the complaint.
A copy of the complaint shall be forwarded to the Director.
 (f) Any person or party responsible for the conduct of any investigation or proceeding pursuant to this part shall ensure that 
appropriate safeguards are implemented to accommodate circumstances involving Restricted Data, national security information, or 
any other classified or sensitive information protected by Executive Order, statute, or regulation.

s 708.7 Attempt at informal resolution.

 (a) The Head of Field Element or designee shall have 30 days from the date of receipt of a complaint in which to attempt an 
informal resolution of the complaint, prior to the initiation of a formal investigation.  To this end, the Head of Field Element or 
designee may attempt to resolve the complaint through consultation and negotiation with the parties involved.  If the Head of Field 
Element or designee has cause to believe the complaint might not meet the requirements of this part, within 5 days from the date of 
receipt of the complaint, the Head of Field Element or designee shall forward the complaint to the Director, without comment and 
without notice to any party, for a determination of whether attempts at informal resolution should be continued or the complaint 
should be dismissed summarily under any of the criteria set forth in s 708.8.  If the Director determines to dismiss the complaint 
summarily, the complaint shall be dismissed and the parties notified pursuant to the procedures set forth in s 708.8.  If the 
Director determines not to dismiss the complaint summarily, he shall, within 15 days from the date he received it, so advise the 
Head of Field Element or designee and return the complaint to the Head of Field Element or designee, who shall thereupon have 30 
days to attempt informal resolution of the complaint.
 (b) If informal resolution is reached, the Head of Field Element or designee shall enter into a settlement agreement which 
terminates the complaint.  The terms of such agreement shall be reduced to writing and made part of the complaint file, with a copy 
provided to all parties.  Any such agreement shall be binding on the parties.
 (c) If informal resolution cannot be reached, the Head of Field Element or designee shall immediately notify the Director and 
provide the file to the Director with a brief summary of the attempts at resolution.



s 708.8 Acceptance of complaint and investigation.

 (a) Unless the Director determines that:
 (1) The complaint has been settled under s 708.7,
 (2) The complaint is untimely,
 (3) The complaint or disclosure is frivolous or on its face without merit,
 (4) The complainant has pursued a remedy available under State or other applicable law, or
 (5) The complaint, for other good cause shown, should not be processed under this part, the Director, within 5 days of receipt of 
the file from the Head of Field Element or designee, shall notify the parties in writing that an investigation will be conducted 
under s 708.8 and of their right to a subsequent hearing under s 708.9.
Within 15 days of receipt of the file from the Head of Field Element or designee, the Director shall appoint an investigator and 
order an investigation of the complaint.  If the Director declines to process a complaint for investigation, the Director shall 
notify the Secretary or designee within 15 days of receipt of the file from the Head of Field Element or designee.  The 
notification shall be in writing and shall set forth the specific reasons for such refusal. A copy of such notice shall be sent to 
the Head of Field Element and shall be delivered by certified mail to the complainant and the contractor.
 (b) If based upon information acquired during investigation of a complaint, the Director determines the existence of grounds for 
dismissal of the complaint, as set forth in s 708.8(a), the Director, within 15 days of receipt of the file from the investigator, 
shall dismiss the complaint and notify the Secretary or designee.  The notification shall be in writing and shall set forth the 
specific reasons for such dismissal.  A copy of such notice shall be sent to the Head of Field Element, and shall be delivered by 
certified mail to the complainant and the contractor.
 (c) If the Director dismisses a complaint pursuant to paragraph (a) or (b) of this section, the administrative process is 
terminated unless within 5 calendar days of receipt of the notice required under paragraph (a) or (b) of this section, the 
complainant files a written request with the Director for review by the Secretary or designee.  Copies of any request for review 
shall be served by the complainant on all parties by certified mail, and the Director shall promptly send a copy to the Secretary.  
If the Secretary or designee determines that the complaint should be considered further, the Secretary or designee shall order the 
Director to reinstate the complaint and resume the administrative process.  If, pursuant to either paragraph (a) or (b) of this 
section, a complaint has been dismissed because the complainant has pursued a remedy available under State or other applicable law, 
the complaint, upon written request by the complainant, will be subject to automatic reinstatement if the matter cannot be resolved 
under State or other applicable law due to a lack of jurisdiction.
 (d) In conducting an investigation under this part, the investigator, for the purpose of determining whether a violation of s 
708.5 has occurred, may enter and inspect places and records (and make copies thereof), may question persons alleged to have been 
involved in discriminatory acts and other employees of the charged contractor, and may require the production of any documentary or 
other evidence deemed necessary.  The contractor shall cooperate fully with the investigator in making available employees and all 
pertinent evidence, including records.
 (e) To the extent practicable, investigations under this part shall be conducted in a manner that protects the confidentiality of 
any person (other than the complainant) who requests leave to provide information on a confidential basis.  Confidentiality shall 
not be extended to any persons who in the course of their employment, or due to the nature of their position, are required to 
provide such information, and all grants of confidentiality shall be subject to waiver by the Hearing Officer if the Hearing 
Officer determines that waiver is necessary to achieve a fair adjudication of the case.  The investigator shall advise all persons 
to whom confidentiality is granted that such grant of confidentiality is conditional, not absolute.
 (f) The investigator, within 60 days of appointment, shall submit a Report of Investigation to the Director.  The Report of 
Investigation shall become a part of the record and shall state specifically a finding, and the factual basis for such finding, 
with respect to each alleged discriminatory act.  Within 10 days of receipt of the Report of Investigation, the Director shall 
serve it on the parties involved by certified mail.

s 708.9 Hearing.

 (a) Unless a complaint has been dismissed pursuant to s 708.8, within 15 days of receipt of the Report of Investigation, a party 
may, in writing, request a hearing on the complaint.  Upon the request of one of the parties *7544 for a hearing, the Director 
shall transmit the complaint file to the Office of Hearings and Appeals.
 (b) Upon receipt of the complaint file from the Director, the Director, Office of Hearings and Appeals shall appoint, as soon as 
practicable, a Hearing Officer to conduct a hearing and shall transmit to the Hearing Officer a copy of the file, including the 
Report of Investigation.  The Hearing Office shall, within seven days following receipt of the complaint file, notify the parties 
of a day, time, and place for the hearing.  Hearings will normally be held at or near the appropriate DOE field organization, 
within 60 days from the date the complaint file is received by the Hearing Officer unless the Hearing Officer determines that 
another location would be more appropriate, or unless the complaint is earlier settled by the parties.
 (c) In all proceedings under this part, the parties shall have the right to be represented by a person of their own choosing.  
Formal rules of evidence shall not apply, but shall be used as a guide for application of procedures and principles designed to 
assure production of the most probative evidence available.  The Hearing Officer may exclude evidence which is immaterial, 
irrelevant, or unduly repetitious.  The Hearing Officer is specifically prohibited from initiating or otherwise engaging in ex 
parte discussions on a complaint matter at any time during the pendency of the complaint proceeding under this part.
 (d) The complainant shall have the burden of establishing by a preponderance of the evidence that there was a disclosure, 
participation, or refusal described under s 708.5, and that such act was a contributing factor in a personnel action taken or 
intended to be taken against the complainant.  Once the complainant has met this burden, the burden shall shift to the contractor 
to prove by clear and convincing evidence that it would have taken the same personnel action absent the complainant's disclosure, 
participation, or refusal.


 (e) Testimony of witnesses shall be given under oath or affirmation, and the witnesses shall be subject to cross-examination.  
Witnesses shall be advised of the applicability of 18 U.S.C. 1001 and 1621, dealing with the criminal penalties associated with 
false statements and perjury.
 (f) At his or her discretion, the Hearing Officer may arrange for the issuance of subpoenas for witnesses to attend the Hearing on 
behalf of either party, or for the production of specific documents or other physical evidence, provided a showing of the necessity 
for such witness or evidence has been made to the satisfaction of the Hearing Officer.
 (g) All hearings shall be mechanically or stenographically reported.  All evidence upon which the Hearing Officer relies for the 
recommended decision under s 708.10(b) shall be contained in the transcript of testimony, either directly or by appropriate 
reference.  All exhibits and other pertinent documents or records, either in whole or in material part, introduced as evidence, 
shall be marked for identification and incorporated into the record.
 (h) Any party, upon request, may be allowed a reasonable time to file with the Hearing Officer a brief or statement of fact or 
law. A copy of any such brief or statement shall be filed with the Hearing Officer before or during the proceeding and shall be 
served by the submitting party upon each other party by certified mail. The parties may make oral closing arguments, but 
post-hearing briefs will only be permitted at the direction of the Hearing Officer. When permitted, any such brief shall be limited 
to the issue or issues specified by the Hearing Officer and shall be due within the time prescribed by the Hearing Officer.
 (i) At the request of any party, the Hearing Officer may, at his or her discretion, extend the time for any hearing held pursuant 
to this s 708.9. Additionally, the Hearing Officer may, at the request of any party, or on his or her own motion, dismiss a claim, 
defense, or party and make adverse findings--
 (1) Upon the failure without good cause of any party or his or her representative to attend a hearing; or
 (2) Upon the failure of any party to comply with a lawful order of the Hearing Officer.
 (j) In any case where a dismissal of a claim, defense, or party is sought, the Hearing Officer shall issue an order to show cause 
why the dismissal should not be granted and afford all parties a reasonable time to respond to such order. After the time for 
response has expired, the Hearing Officer shall take such action as is appropriate to rule on the dismissal, which may include an 
order dismissing the claim, defense, or party.  An order dismissing a claim, defense, or party may be appealed to the Director for 
reconsideration.

s 708.10 Initial agency decision.

 (a) If a hearing is not requested, the Director, within 30 days of expiration of the time set forth in s 708.9(a) for request of a 
hearing, shall issue an initial agency decision based upon the record, which decision shall be served upon the parties by certified 
mail.  The initial agency decision shall contain appropriate findings, conclusions, and an order, and shall set forth the factual 
basis for each and every finding with respect to each alleged discriminatory act.  In making such findings, the Director may rely 
upon, but shall not be bound by, the findings contained in the Report of Investigation.
 (b) If a hearing has been held, the Hearing Officer shall issue an initial agency decision within 30 days after the receipt of the 
transcript from the proceeding at which evidence was submitted or within 30 days after receipt of any post-hearing briefs permitted 
under s 708.9(h), whichever is later.  The initial agency decision shall contain appropriate findings, conclusions, and an order, 
and shall set forth the factual basis for each and every finding with respect to each alleged discriminatory act.  In making such 
findings, the Hearing Officer may rely upon, but shall not be bound by, the findings contained in the Report of Investigation.  The 
Hearing Officer shall send the initial agency decision, together with the entire record, to the Director who shall promptly serve 
the initial agency decision upon all parties to the proceeding by certified mail.
 (c) The initial agency decision may include an award of reinstatement, transfer preference, back pay, and reimbursement to the 
complainant up to the aggregate amount of all reasonable costs and expenses (including attorney and expert-witness fees) reasonably 
incurred by the complainant in bringing the complaint upon which the decision was issued.
 (1) If the initial agency decision contains a determination that the complaint is without merit, it shall also include a notice 
stating that the decision shall become the final decision of DOE denying the complaint unless, within five calendar days of its 
receipt, a written request is filed with the Director for review by the Secretary or designee.  Copies of any request for review 
shall be served by the requesting party upon all parties by certified mail.
 (2) If the initial agency decision contains a determination that a violation of s 708.5 has occurred, it shall also include an 
appropriate order to the contractor to abate the violation and to provide the complainant with relief, as well as notice to the 
parties that the decision shall become the final decision of DOE unless, within five calendar days of its receipt, a written 
request is filed with the Director for review by the *7545 Secretary or designee. Copies of any request for review shall be served 
by the requesting party upon all parties by certified mail.
 (3) Notwithstanding the provisions of paragraph (c)(2) of this section, if the agency decision contains a determination that a 
violation of s 708.5 has occurred, it may contain an order requiring the contractor to provide the complainant with interim relief, 
including but not limited to reinstatement, pending the outcome of any request for review.  This paragraph shall not be construed 
to require the payment of any award of back pay or attorney fees before the DOE decision is final.

 s 708.11 Final decision and order.

 (a) Upon receipt of a request for review of an initial agency decision by the Secretary or designee, the Director shall forward 
the request, along with the entire record, to the Secretary or designee.
 (b) Within 60 days after the Director receives a request for Secretarial review of an initial agency decision, the Secretary or 
designee shall either direct further processing of the complaint or pursuant to paragraph (c) or (d) of this section, issue a final 
decision, based on the record, including the Report of Investigation.  The final decision shall be forwarded by the Secretary or 
designee to the Director who shall serve it upon all parties by certified mail.
 (1) If the Secretary or designee determines that further processing of the complaint is necessary, the Secretary or designee will 


return the case to the Director, who will forward it with specific instructions to the Office of Hearings and Appeals and/or the 
investigator as appropriate.
 (2) Except to the extent prohibited by law, regulation, or Executive Order, all parties will be provided copies of any information 
compiled as a result of actions taken under paragraph (b)(1) of this section.
 (c) If the Secretary or designee determines that a violation of s 708.5 has occurred, the Secretary or designee shall issue a 
final decision and shall instruct the Director to take appropriate action to implement that decision. Relief ordered by the 
Secretary or designee may include reinstatement, transfer preference, back pay, and reimbursement to the complainant up to the 
aggregate amount of all reasonable costs and expenses (including attorney and expert- witness fees) reasonably incurred by the 
complainant in bringing the complaint upon which the decision was issued or such other relief as is necessary to abate the 
violation and provide the complainant with relief.
 (d) If the Secretary or designee determines that the party charged has not committed a discriminatory act in violation of s 708.5, 
the Secretary or designee shall so notify the Director and issue a final decision dismissing the complaint.  If the Secretary or 
designee determines that there has been no discrimination, the complainant shall not receive reimbursement for the costs and 
expenses provided in paragraph (c) of this section.

s 708.12 Implementation of decision.

 (a) Upon receipt of the final decision of the Secretary or designee under s 708.11, or if the initial agency decision becomes the 
final decision pursuant to s 708.10(c) (1) or (2), the Director shall serve the final decision upon all parties by certified mail, 
and upon the Head of Field Element at the affected DOE field organization.  The Head of Field Element shall take all necessary 
steps to implement the final decision.
 (b) For purposes of sections 6 and 7 of the Contract Disputes Act (41 U.S.C. 605 and 606), a decision implemented by the Head of 
Field Element pursuant to this part shall not be considered a "claim by the government against a contractor" or "a decision by the 
contracting officer." However, a contractor's disagreement, and refusal to comply, with a final decision under this part could 
result in the contracting officer's decision to disallow certain costs or terminate the contract for default.  In such case, the 
contractor could file a claim under the disputes procedures of the contract.

s 708.13 Communication of program to contractor employees.

 (a) All contractors covered by this part shall inform their employees of the applicability of the DOE Contractor Employee 
Protection Program, including identification of the DOE offices to which a protected disclosure can be made and identification of 
appropriate points of contact for initiating employment- reprisal complaints.
 (b) The information required in paragraph (a) of this section shall be prominently posted in conspicuous places at the contractor 
worksite, in all places where notices are customarily posted.  Such notices shall not be altered, defaced, or covered by other 
material.

s 708.14 Alternative means of resolution.

 Notwithstanding the provisions of this part, the Secretary retains the right to request that complaints filed pursuant to this 
part be accepted by other Federal agencies for investigation and factual determinations, when the Secretary deems such referral to 
be in the public interest.

s 708.15 Time frames.

 The time frames set forth in this part may be extended with the approval of the Secretary or designee.

(FR Doc. 92-4653 Filed 2-28-92; 8:45 am)

BILLING CODE 6450-01-M

57 FR 7533-02, 1992 WL 38191 (F.R.)