[Federal Register: February 9, 2000 (Volume 65, Number 27)]
[Rules and Regulations]
[Page 6314-6319]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF ENERGY
10 CFR Part 708
RIN 1901-AA78
Criteria and Procedures for DOE Contractor Employee Protection
Program
AGENCY: Office of Hearings and Appeals, Department of Energy.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Energy (DOE) adopts, with minor changes, an
interim final rule published on March 15, 1999, to amend the DOE
contractor employee protection program (``whistleblower'') regulations.
EFFECTIVE DATE: This final rule is effective on March 10, 2000.
FOR FURTHER INFORMATION CONTACT: Roger Klurfeld, Assistant Director,
or Thomas O. Mann, Deputy Director, Office of Hearings and Appeals,
Department of Energy, 1000 Independence Ave., SW, Washington, DC 20585-
0107; telephone: 202-426-1449; e-mail: roger.klurfeld@hq.doe.gov,
thomas.mann@hq.doe.gov.
SUPPLEMENTARY INFORMATION:
I. Introduction
On March 15, 1999, DOE published an interim final rule in the
Federal Register (64 FR 12862) that comprehensively revised the
regulations for the DOE contractor employee protection program, which
are codified
[[Page 6315]]
at 10 CFR part 708. DOE became aware during the comment period on the
interim final rule that three provisions in the original Part 708 had
been inadvertently omitted from the interim final rule. DOE published
an amendment to the interim final rule on July 12, 1999 (64 FR 37396)
to correct the omission.
DOE provided a 60-day public comment period for the interim final
rule published on March 15, 1999. DOE did not invite public comments on
the July 12, 1999, amendment to the interim final rule because those
changes were procedural and DOE determined that no purpose would be
served by inviting comments.
Section 3164 of the National Defense Authorization Act for Fiscal
Year 2000 directs DOE to establish a whistleblower protection program
for covered individuals (DOE and DOE contractor employees engaged in
the defense activities of the Department) who disclose to certain
Governmental (including certain Congressional) personnel ``classified
or other information'' that they reasonably believe provides evidence
of violations of law, gross mismanagement, a gross waste of funds or
abuse of authority, or a false statement to Congress on an issue of
material fact. DOE is aware of the new statutory requirement, and we
are working separately on the implementation of the program mandated in
section 3164. We are evaluating its effect, if any, on the DOE
contractor employee protection program regulations.
II. Summary and Response to Comments on the Interim Final Rule
DOE received written comments from five interested organizations
and individuals on the interim final amendments to the DOE contractor
employee protection program regulations. This section of the
Supplementary Information summarizes the issues raised in the comments
and gives DOE's response, as follows:
Comment: Three different commenters expressed concern about the
definition of the term ``contractor'' in Sec. 708.2, which was changed
in the interim final rule to extend protection to certain employees who
do not work at DOE sites. Under the old rule, an employee eligible for
protection under this rule must have been employed by a contractor
performing work on sites that DOE owns or leases. The new language
covers employees of contractors performing work ``directly related to
activities'' at DOE-owned or DOE-leased sites, even if the contractor
is located, or the work is performed, off-site. Two of the comments
express the concern that the phrase directly related to activities does
not draw a bright line between those employees who will now be
protected by these regulations and those who will not, and that the
definition of contractor will be difficult to apply. The third comment
challenges the decision to expand the scope of coverage, arguing that
off-site coverage will be ``difficult to manage,'' will drive away
potential bidders for DOE contracts, thus raising the costs of
procurement, and is unnecessary because ``other laws adequately protect
employees of commercial entities.''
Response: We have decided that this language should remain
unchanged from the interim final rule. As with any rule, determining
who is and who is not covered by Part 708 will sometimes require
interpretation. Even the previous formulation, though it appeared to
present more of a bright line distinction, was subject to
interpretation. See C. Lawrence Cornett, 26 CCH Fed. Energy Guidelines
para.87,504 (1996); META, Inc., 26 CCH Fed. Energy Guidelines
para.87,501 (1996) (these cases are also available on the Office of
Hearings and Appeals Internet web site, http://www.oha.doe.gov). More
important, the definition of contractor in the interim final rule will
cover the employees we intend to protect, i.e. those performing work
that promotes the mission of the Department of Energy. Clearly, some
interpretation through case law will be needed as we face some
particular factual circumstances, but we believe that the rule is
adequately clear as it applies to most cases.
To furnish additional guidance to the DOE contractor community,
without considering any specific case, examples of contractor employees
we intend to cover by this rule include contractor employees engaged in
defense-related industrial activities that are central to the DOE's
mission, such as workers processing or transporting nuclear materials,
or workers involved in the preparation of environmental assessments of
proposed actions involving radioactive waste or mixed waste, wherever
they work, on-site or off-site. By contrast, part 708 is not intended
to cover contractor employees delivering office supplies or servicing
vending machines, regardless of where they are located, because their
work is ancillary to, rather than central to DOE's mission. In
addition, this rule is meant to cover employees who work on the
Department's mission under the terms of a procurement ``contract,'' but
not employees who work under the terms of a ``grant'' or a
``cooperative agreement,'' as those terms are defined in the Federal
Grant and Cooperative Agreement Act, 31 U.S.C. 6301 et seq., or under
the terms of a ``cooperative research and development agreement''
(CRADA), as that term is defined by the Stevenson-Wydler Technology
Innovation Act, 15 U.S.C. 3710a(d)(1).
Comment: One commenter maintains that DOE has created a
``camouflaged loophole'' by the interim final rule's use of the word
``retaliation,'' instead of ``discrimination,'' to define actions
prohibited by contractors against employees who engaged in conduct
protected by part 708. According to this commenter, retaliation ``is a
legal term of art requiring animus or hostility,'' so that a claim of
retaliation can be defeated by a showing that the contractor officials
had no ``hard feelings'' against a whistleblower.
Response: A reading of the definition of retaliation in Sec. 708.2
shows that this commenter has misinterpreted the significance of the
interim final rule's use of a different generic term to describe the
types of conduct prohibited by this rule. The term was changed as part
of DOE's effort to rewrite Part 708 in ``plain language.'' The kinds of
conduct prohibited by the definition of retaliation in the interim
final rule are the same as those previously prohibited in the
definition of discrimination under the old rule. Moreover, the term
retaliation more precisely describes the nature of the conduct
prohibited under Part 708, and avoids possible confusion with
``discrimination'' as that term is used in Title VII of the Civil
Rights Act of 1964 and other Federal anti-discrimination statutes, as
EEO violations are not covered by the DOE contractor employee
protection program.
Court decisions under the Whistleblower Protection Act of 1989,
Pub. L. 101-12, 103 Stat. 16 (1989) (codified as amended in scattered
sections of 5 U.S.C.), do consider ``the existence and strength of any
motive to retaliate on the part of the agency officials who were
involved in the decision'' to take action against a Federal employee
covered by that whistleblower protection program as one of several
factors to determine whether an employer has met its burden of proving
by clear and convincing evidence that it would have taken the same
action absent the protected conduct. Cadell v. Dep't of Justice, 66
M.S.P.R. 347, 351 (1995), aff'd 96 F.3d 1367, 1370 (Fed. Cir. 1996);
Sanders v. Dep't of the Army, 64 M.S.P.R. 136 (1994), aff'd 50 F.3d 22
(Fed. Cir. 1995). Evidence of an employer's motive is therefore
relevant in a whistleblower
[[Page 6316]]
case, but contrary to the commenter's assertion, evidence of a benign
motive in and of itself will not meet the contractor's burden under
Part 708.
Comment: Also concerning the definition of retaliation in ? 708.2,
this same commenter asserted that the use of the phrase ``action with
respect to the employee's compensation, terms, conditions or privileges
of employment'' in that provision does not include common forms of
harassment such as retaliatory investigations, removal of support
staff, removal from a case or assignment, or tampering with (denying,
suspending or revoking) a security clearance. The commenter also
asserts that the rule should be changed to explicitly cover psychiatric
examinations, and security clearances, as well as ``any other
significant change in duties, responsibilities or working conditions.''
Response: The other types of adverse actions mentioned in the
comment are generally meant to be covered by the broad definition of
retaliation used in Sec. 708.2. The definition enumerates examples of
prohibited employment practices, but the list does not purport to be
exclusive. For example, OHA decisions have recognized that the removal
of the complainant from one job assignment and his reassignment to
another job constituted retaliation, even though removal from an
assignment is not specifically mentioned in Sec. 708.2. Ronald Sorri,
23 CCH Fed. Energy Guidelines para.87,503 at 89,010 (1993). It is not
necessary to rewrite the definition of retaliation in order to give DOE
the necessary flexibility to carry out the policy objectives of Part
708.
Actions taken regarding ``security clearances,'' i.e., resolving
questions about the eligibility of an individual for DOE access
authorization, are governed by another regulation, 10 CFR part 710,
subpart A. The preamble to the interim final rule explains that the
resolution of national security concerns about an employee's
eligibility for a DOE security clearance under part 710 takes
precedence over individual retaliation claims under part 708. See 64 FR
12862 at 12867. However, the preamble recognizes that retaliation
``could include actions by a contractor that cause the questioning,
suspension, or termination of a security clearance,'' and that ``with
respect to consequences beyond the eligibility determination, Part 708
may apply.'' With regard to psychiatric examinations, psychiatric
evaluations can be a proper tool to resolve questions of an
individual's eligibility for a security clearance under Sec. 710.8(h).
Comment: The same commenter also contends that ``the audience for
protected activity is too limited'' under Sec. 708.5. According to this
commenter, the interim final rule ``only protects communications
directly to recipients such as an official at the Department of Energy,
a member of Congress and other governmental agencies with oversight
responsibility at a DOE facility.'' The comment urges that the language
of the rule and the preamble should specify that it will be interpreted
consistently with the case law for employee protection statutes
administered by the Department of Labor, such as amendments to the
Energy Reorganization Act of 1992 (ERA), codified in 42 U.S.C. 5851,
the provision that protects employees of Nuclear Regulatory Commission
(NRC) licensees. The commenter claims that Department of Labor and the
Federal courts have consistently interpreted those statutes to mean
that employees are also protected for disclosures to the media and
citizen associations, which are ``frequently the breeding ground for
investigations and/or enforcement actions by the relevant regulatory
agency.''
Response: As first proposed in 1990, part 708 only would have
covered disclosures to DOE (55 FR 9326). Comments were received that
advocated expanding the coverage to encompass disclosures to citizen
groups, the media, state and Federal regulatory officials, and members
of Congress. The final 1992 version of part 708 extended the coverage
beyond DOE, to include in-house disclosures to the complainant's
employer, higher tier contractors, and to Congress, but went no further
(57 FR 7535). In explaining why we chose to limit coverage to those
parties, DOE noted that a fundamental purpose of this rule is to
encourage DOE contractor employees to feel free to disclose to the DOE
information about health and safety problems or mismanagement at DOE
facilities so that DOE can take corrective action. The Department
reasoned that disclosures to other parties would not foster that
objective. Additionally, DOE believed 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.'' (57 FR 7535). We believe that
reasoning is still sound. Nevertheless, the interim final rule expanded
the coverage to include disclosures made to other government officials,
such as those from other Federal or state agencies who have
responsibility for oversight of activities on DOE-owned or -leased
sites. This reflects the fact that some DOE sites are now subject to
regulatory oversight by other agencies. But there is still no
compelling reason to expand the coverage of this rule to include
disclosures to citizen groups or the media. The Federal courts have
granted protection under 42 U.S.C. 5851 to employees who made
disclosures to parties other than their employers or to the Federal
government to a very limited extent. See Stone & Webster Engineering
Corp. v. Herman, 115 F.3d 1568 (11th Cir., 1997). In Stone & Webster,
the U.S. Court of Appeals affirmed the Secretary of Labor's
determination that a nuclear power plant worker was acting in
furtherance of safety compliance when, after speaking to his employer
about his safety concerns, he spoke to his co-workers about those same
concerns, and thus communication to those workers was protected by the
ERA. According to the holding in that case, which does not control
proceedings under part 708, disclosures to outside parties must be
closely related to the ``regular channels'' of protected activity in
order to be protected under 42 U.S.C. 5851.
Comment: In the same vein, this commenter contends that the scope
of protected activity in Sec. 708.5(a) is unclear because ``it is
possible that employee would be denied relief merely for doing his/her
job.'' The commenter argues that this result ``would cancel protection
for employees whose jobs require them to take risks of whistleblowers--
auditors, inspectors and investigators who make a record of violations
that are too politically hot to handle. . . .'' The commenter
conjectures that the protection of the rule is only available to
employees who make protected disclosures ``after hours,'' outside of
their regular duty assignments.
Response: The rule clearly protects employees such as safety and
quality inspectors whose job it is to make disclosures about violations
of rules and dangers to employees and public health and safety. The
commenter has misinterpreted the plain language of Sec. 708.5(a), which
contains nothing that would exclude disclosures that are routinely made
in the course of an employee's work assignment.
Comment: The same commenter expressed concern over the requirement
of Sec. 708.5(a)(1) that an employee's disclosure must concern a
``substantial'' violation of law in order to be protected. This
commenter correctly notes that both the Federal whistleblower
protection statutes and the case law
[[Page 6317]]
have used an objective standard to determine whether activities are
protected. According to this commenter, the insertion of this term
`introduces an unprecedented, subjective wild-card'' that would present
an unduly burdensome test for a worker seeking whistleblower
protection.
Response: The imposition of this requirement in Sec. 708.5(a)(1)
would not result in the adoption of a subjective test that a
whistleblower would have to pass to qualify for protection. As noted in
the preamble to the interim final rule, ``substantial violation of
law'' is the same standard that is used in the Section 6006 of the
Federal Acquisition Streamlining Act of 1994 (FASA), Pub. L. 103-355,
codified in 41 U.S.C. 265, and implemented by the regulation found at
48 CFR part 3, Subpart 3.9, ``Whistleblower Protection for Contractor
Employees.'' The interim final rule emulated the standard in the FASA
because it represents a balanced approach designed to ensure that
minor, insubstantial issues do not waste limited resources, so
whistleblower protection is available to those workers who legitimately
need it.
Comment: The same commenter expressed concern about the phrase ``in
good faith'' that appears in Secs. 708.5(a) and 708.6(a), claiming it
could impose a ``motives test'' that ``allows an employee's intentions
to be put on trial as a precondition to using the rule.'' This
commenter correctly notes that the inclusion of a good faith test in
those provisions is inconsistent with the Whistleblower Protection Act,
which uses the standard that the employee must ``reasonably believe''
the matters they are disclosing are among the types of concerns
enumerated in the Act.
Response: The commenter's views on the ``good faith'' test have
considerable merit. DOE did not intend to place the employee's state of
mind into issue. We think the ``reasonable belief'' standard is
sufficient, in and of itself. None of the other federal whistleblower
protection statutes contains a similar ``good faith'' requirement.
Accordingly, the final rule omits this phrase in order to conform to
the current state of the Federal law on whistleblower protection.
Comment: The same commenter noted that under Sec. 708.13, employees
are now required to ``exhaust all applicable grievance-arbitration
procedures'' before being eligible to file a whistleblower complaint
with DOE under part 708. According to the commenter, this disadvantages
employees because ``grievance systems cannot order mandatory relief and
are run by the same institution that will be an adverse party in any
future litigation.'' The commenter fears that this ``forces the
whistleblower to preview his or her case to the defendant, before even
filing it with the DOE,'' and that the employer will have an advance
opportunity to ``perfect pretexts or defenses,'' ``destroy evidence''
and learn the identity of witnesses to ``pressure'' them. The commenter
states that it ``regularly advises employees to bypass any system of
protection that requires them first to tell their side of the dispute
to the defendant.''
Response: The requirement to exhaust all applicable grievance-
arbitration procedures reflects DOE's commitment to solving problems at
the earliest possible stage. We want the employee and the contractor to
share information about alleged reprisals for protected conduct as
quickly as possible, so that little problems do not escalate into big
ones. We hope that by dealing with the concerns sooner rather than
later and by using existing grievance-arbitration procedures, the
parties will resolve the problem and the employee will not need to file
a complaint under part 708. That is why the new rule requires employees
to use grievance-arbitration processes before filing a complaint under
part 708. DOE has worked to change the culture across the Department's
nationwide complex to sensitize its contractors against reprisal, and
we believe this effort has been reasonably successful. We know of few
recent cases involving the circumstances alluded to by the commenter.
In addition, under the National Labor Relations Act, a recognized
labor organization serves as the exclusive representative for
collective bargaining purposes of the employees in the recognized
bargaining unit. Successful collective bargaining results in a
collective bargaining agreement between the labor organization and the
employer concerning the terms and conditions of employment of the
employees in the bargaining unit. The collective bargaining agreement
usually includes the establishment of an employee grievance arbitration
procedure and describes how it will operate. A grievance arbitration
procedure represents a continuation of the collective bargaining
process, which the National Labor Relations Act protects. An employer,
even an employer who has allegedly retaliated against a whistleblower,
ignores the bargained-for grievance procedure at its peril. The
National Labor Relations Board, which is responsible for the
enforcement of the provisions of the National Labor Relations Act, does
not permit an employer to bypass dealing with the union in such a
manner. Thus, the provisions of Sec. 708.13 requiring exhaustion of all
applicable grievance arbitration procedures prior to filing a complaint
with DOE under part 708 is a recognition of the importance of the
collective bargaining process in maintaining effective labor-management
relations at DOE's facilities.
Comment: The same commenter noted its approval of Sec. 708.20,
which encourages the parties to use mediation as an alternative dispute
resolution tool, but contends that the rule should also require
mandatory arbitration if mediation does not work.
Response: We decline to adopt this suggestion. If allegations of
reprisal cannot be resolved informally by mediation, the OHA hearing
should be the next step in the process.
Comment: The same commenter has reiterated the argument it raised
twice before (in response to the 1996 Notice of Inquiry and again in
response to the 1998 Notice of Proposed Rulemaking) that discovery must
be mandatory, instead of being subject to the discretion of the hearing
officer. Discovery is authorized in Sec. 708.28(b) of the interim final
rule, which states that the hearing officer ``may order discovery at
the request of a party.''
Response: OHA hearing officers generally leave discovery to the
parties to work out between themselves. It is usually unnecessary for
the hearing officer to become involved in the process. However, to make
certain the discovery process cannot be abused in the ways described in
the comment, it is important for the hearing officer to have the
authority to rule on contested discovery issues if they arise. We
therefore decline to adopt the commenter's suggestion.
Comment: Another comment maintains that the scope of relief
permitted under part 708 is ``unclear'' because Sec. 708.36(a) does not
specifically authorize ``personal and/or institutional discipline for
violating anti-retaliation provisions.'' This commenter maintains that
without the power to punish ``bureaucratic bullies'' who commit acts of
retaliation, the rule cannot deter harassment.
Response: As noted in the preamble to the interim final rule, 64 FR
12867, the restitutionary remedies authorized under Sec. 708.36 are
intended to correct unwarranted employment actions, by restoring
employees to the position they would have occupied but for the
retaliation. They are not designed to punish the persons who are found
to have committed acts of retaliation. Other remedies are available in
different forums for employees who are seeking more than the abatement
of the
[[Page 6318]]
retaliatory practices and basic restitution. We therefore decline to
adopt the approach suggested by the commenter.
Comment: One comment seeks clarification that the decision of an
arbitrator will not be disturbed in cases in which a claim of
retaliation, already the subject of arbitration, is also eligible for
review under this rule. The interim final rule addresses this concern
in Sec. 708.4(c)(3), which provides that an employee may not file a
complaint under these regulations if it is based on the same facts for
which the employee has chosen to pursue a remedy through final and
binding grievance-arbitration procedures or other state or other
applicable law, except as provided by Sec. 708.15(a).
Response: Section 708.15(a)(3) answers this question. An employee
may file a complaint under part 708 after submitting the same facts to
arbitration after he or she has ``exhausted grievance-arbitration
procedures pursuant to Sec. 708.13, and issues related to alleged
retaliation for conduct protected under Sec. 708.5 remain.'' Whether
retaliation issues remain is a question that depends on the facts in
each case.
Comment: This comment also requests clarification of the kinds of
claims precluded, in Sec. 708.4(e), from coverage under these
regulations because they deal with ``terms or conditions of
employment'' within the meaning of the National Labor Relations Act.
Response: As noted in the preamble to the interim final rule, 64 FR
12868, ``terms and conditions of employment'' are subject to review
under part 708 when the complaint alleges that they have been changed
in retaliation for a protected disclosure. Part 708 is not otherwise
intended to intrude into the domain traditionally covered by the
National Labor Relations Act.
Comment: The same comment points out a perceived discrepancy
between paragraphs (a) and (b) of Sec. 708.15. Paragraph (a) provides
that a complaint may not be filed if a remedy under the same facts was
sought ``under State or other applicable law, including final and
binding grievance-arbitration procedures, unless'' one of the
exceptions from the binding election of remedies described in the
ensuing subsections of Sec. 708.15 is met. Paragraph (b) states,
``Pursuing a remedy other than final and binding grievance-arbitration
procedures does not prevent you from filing a complaint under this
part.'' The comment asks whether remedies listed in paragraph (a),
other than the grievance-arbitration procedures, i.e., remedies under
``State or other applicable law,'' also fall within the exception under
paragraph (b).
Response: The comment reads paragraph (b) to mean that as long as
an employee does not pursue final and binding grievance-arbitration
procedures, a remedy sought under State and other applicable law does
not bar a complaint under these regulations. This is not what we
intended. Rather, paragraph (b) means that seeking a remedy through an
informal procedure that is non-binding and non-final, such as a
contractor's internal employee concerns program, will not bar the
filing of complaints under part 708. Paragraph (b) thus describes one
of the limited conditions under which an employee who has first sought
another remedy will still have recourse to part 708. Paragraph (c) of
Sec. 708.15 makes it clear that electing to pursue a formal legal
remedy ``under State or other applicable law'' does bar a complaint
under part 708.
Comment: Finally, the same comment perceives a discrepancy between
paragraphs (e) and (f) of Sec. 708.22, which state that an individual
being interviewed has the right to representation and that
representatives of parties to the complaint are not entitled to be
present at interviews.
Response: We do not find a discrepancy. While representatives of
parties to the complaint (e.g., their attorneys) do not have a right to
be present during a witness interview, they may attend at the request
of the person being interviewed. Thus, a contractor's counsel may be
present, but only if requested by the subject of the interview. It is
for the interview subject to choose whether he or she wishes to speak
to the investigator with no one else present, or with a representative
present. The comment also seeks clarification whether this section
applies to the procedures of the DOE's Employee Concerns Program. The
provisions of Sec. 708.22 apply to the investigation, hearing and
appeal procedures in subpart C; they do not apply to informal
resolution procedures undertaken by DOE offices, which are described in
subpart B.
Finally, we are correcting a typographical error in Sec. 708.15(d),
which in the interim final rule refers to Sec. 708.17(c)(2) when it
should refer to Sec. 708.17(c)(3), and we are adding the following new
section at the end of the final rule to restore an important policy
statement in the original 1992 version of part 708 that was
inadvertently omitted from the interim final rule:
Section 708.40 Does This Rule Impose an Affirmative Duty on DOE
Contractors Not To Retaliate?
Yes. DOE contractors may not retaliate against any employee because
the employee (or any person acting at the request of the employee) has
taken an action listed in sections 708.5(a)-(c).
DOE never meant to imply that contractors do not have an
affirmative duty not to retaliate against employees who take protected
actions. This new Sec. 708.40 is restating what has always been a part
of the rule (see old Sec. 708.5, ``Prohibition against reprisals''),
and thus it does not require notice and comment.
III. Regulatory and Procedural Requirements
A. Review Under Executive Order 12866
Today's regulatory action has been determined not to be ``a
significant regulatory action'' under Executive Order 12866,
``Regulatory Planning and Review'' (58 FR 51735, October 4, 1993).
Accordingly, this action was not subject to review under that Executive
Order by the Office of Information and Regulatory Affairs of the Office
of Management and Budget (OMB).
B. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
``Civil Justice Reform'' (61 FR 4729, February 7, 1996) imposes on
Executive agencies the general duty to adhere to the following
requirements: (1) Eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction. With regard to the review
required by section 3(a), section 3(b) of Executive Order 12988
specifically requires that Executive agencies make every reasonable
effort to ensure that the regulation: (1) Clearly specifies the
preemptive effect, if any; (2) clearly specifies any effect on existing
federal law or regulation; (3) provides a clear legal standard for
affected conduct while promoting simplification and burden reduction;
(4) specifies the retroactive effect, if any; (5) adequately defines
key terms; and (6) addresses other important issues affecting clarity
and general draftsmanship under any guidelines issued by the Attorney
General. Section 3(c) of Executive Order 12988 requires Executive
agencies to review regulations in light of applicable standards in
section 3(a) and section 3(b) to
[[Page 6319]]
determine whether they are met or it is unreasonable to meet one or
more of them. DOE has completed the required review and determined
that, to the extent permitted by law, this proposed rule meets the
relevant standards of Executive Order 12988.
C. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
preparation of an initial regulatory flexibility analysis for any rule
that by law must be proposed for public comment, unless the agency
certifies that the rule, if promulgated, will not have a significant
economic impact on a substantial number of small entities. Because DOE
is not required by the Administrative Procedure Act (5 U.S.C. 553) or
any other law to propose the rule for public comment, DOE did not
prepare a regulatory flexibility analysis for this rule.
D. Review Under the Paperwork Reduction Act
No new collection of information is imposed by this interim final
rule. Accordingly, no clearance by the Office of Management and Budget
is required under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
E. Review Under the National Environmental Policy Act
DOE has concluded that promulgation of this rule falls into a class
of actions that would not individually or cumulatively have a
significant impact on the human environment, as determined by DOE's
regulations implementing the National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.). Specifically, this rule deals only with
administrative procedures regarding retaliation protection for
employees of DOE contractors and subcontractors, and, therefore, is
covered under the Categorical Exclusion in paragraph A6 to subpart D,
10 CFR part 1021. Accordingly, neither an environmental assessment nor
an environmental impact statement is required.
F. Review under Executive Order 13132
Executive Order 13132 (64 FR 43255, August 4, 1999) imposes certain
requirements on agencies formulating and implementing policies or
regulations that preempt State law or that have federalism
implications. Agencies are required to examine the constitutional and
statutory authority supporting any action that would limit the policy
making discretion of the States and carefully assess the necessity for
such actions. DOE has examined today's rule and has determined that it
does not preempt State law and does not have a substantial direct
effect on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. No further
action is required by Executive Order 13132.
G. Review Under the Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each federal agency to prepare a written assessment of the
effects of any federal mandate in a proposed or final rule that may
result in the expenditure by state, local, and tribal governments, in
the aggregate, or by the private sector, of $100 million in any one
year. The Act also requires a federal agency to develop an effective
process to permit timely input by elected officers of state, local, and
tribal governments on a proposed ``significant intergovernmental
mandate,'' and it requires an agency to develop a plan for giving
notice and opportunity for timely input to potentially affected small
governments before establishing any requirement that might
significantly or uniquely affect them. This interim final rule does not
contain any federal mandate, so these requirements do not apply.
H. Congressional Notification
As required by 5 U.S.C. 801, DOE will submit to Congress a report
regarding the issuance of today's final rule. The report will state
that it has been determined that the rule is not a ``major rule'' as
defined by 5 U.S.C. 801(2).
List of Subjects in 10 CFR Part 708
Administrative practice and procedure, Energy, Fraud, Government
contracts, Occupational Safety and Health, Whistleblowing.
Issued in Washington, on February 1, 2000.
George B. Breznay,
Director, Office of Hearings and Appeals.
Accordingly, the interim rule amending 10 CFR part 708 which was
published at 64 FR 12862 on March 15, 1999, and amended at 64 FR 37396
on July 12, 1999, is adopted as a final rule with the following
changes:
PART 708--[AMENDED]
1. The authority citation for part 708 continues to read as
follows:
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; and 5
U.S.C. Appendix 3.
2. Section 708.5(a) (introductory text) is revised to read as
follows:
Sec. 708.5 What employee conduct is protected from retaliation by an
employer?
* * * * *
(a) Disclosing to a DOE official, a member of Congress, any other
government official who has responsibility for the oversight of the
conduct of operations at a DOE site, your employer, or any higher tier
contractor, information that you reasonably believe reveals--
* * * * *
3. Section 708.6(a) is revised to read as follows:
Sec. 708.6 What constitutes ``a reasonable fear of serious injury?''
* * * * *
(a) A reasonable person, under the circumstances that confronted
the employee, would conclude there is a substantial risk of a serious
accident, injury, or impairment of health or safety resulting from
participation in the activity, policy, or practice; or
* * * * *
4. Section 708.15(d) is revised to read as follows:
Sec. 708.15 What happens if an employee files a complaint under this
part and also pursues a remedy under State or other law?
* * * * *
(d) If you file a complaint under State or other applicable law
after filing a complaint under this part, your complaint under this
regulation will be dismissed under Sec. 708.17(c)(3).
5. A new Section 708.40 is added as follows:
Sec. 708.40--Does this rule impose an affirmative duty on
DOE contractors not to retaliate?
Yes. DOE contractors may not retaliate against any employee because
the employee (or any person acting at the request of the employee) has
taken an action listed in Secs. 708.5(a)-(c).
[FR Doc. 00-2797 Filed 2-8-00; 8:45 am]
BILLING CODE 6450-01-P