6314 Federal Register / Vol. 65, No. 27 / Wednesday, February 9, 2000 / Rules and Regulations

public display or intended for use in

research facilities (7 U.S.C. 2131). The

commenter added that it is not clear

how USDA has authority if the

noninvasive research does not involve

animals or activities that are in

interstate or foreign commerce or does

not substantially affect such commerce

or its free flow as provided in the AWA

(7 U.S.C. 2131).

The purpose of defining the term field

study in our regulations is to exclude

from the regulations those activities that

meet the definition. Thus, if a study is

conducted on free-living wild animals

in their natural habitat and the study

does not involve an invasive procedure,

does not harm the animals under study,

and does not materially alter the

behavior of the animals under study,

then that activity is not regulated.

The AWA defines animal as any live

or dead dog, cat, nonhuman primate,

guinea pig, hamster, rabbit, or such

other warm-blooded animal as the

Secretary may determine is being used,

or is intended for use, for research,

testing, experimentation, or exhibition

purposes, or as a pet. This definition

does not exclude animals in the wild. If

a research facility conducts a study on

animals in the wild that does not meet

the criteria for a field study, then that

activity would be regulated. The AWA

defines research facility as any school

(except an elementary or secondary

school), institution, organization, or

person that uses or intends to use live

animals in research, tests, or

experiments and that: (1) Purchases or

transports live animals in commerce; or

(2) receives funds under a grant, award,

loan, or contract from a department,

agency, or instrumentality of the United

States for the purpose of carrying out

research, tests, or experiments. * * *’’

One commenter stated that

researchers appear to be circumventing

the AWA by claiming that trap tests

performed on wildlife are field studies.

Trapping, including the testing of traps,

is not regulated by the AWA.

Therefore, for the reasons given in the

proposed rule and in this document, we

are adopting the proposed rule as a final

rule, with the changes discussed in this

document.

Executive Order 12866 and Regulatory

Flexibility Act

This final rule has been reviewed

under Executive Order 12866. The rule

has been determined to be not

significant for the purposes of Executive

Order 12866 and, therefore, has not

been reviewed by the Office of

Management and Budget.

This final rule will clarify that a field

study cannot include an invasive

procedure, harm the animals under

study, or materially alter the behavior of

the animals under study.

We have always intended that field

studies not include any invasive

procedures, harm the animals under

study, or materially alter the behavior of

the animals under study. This rule

makes no substantive changes to the

definition. By clarifying the definition

of field study, this final rule will help

ensure that studies that should be

covered under the Animal Welfare

regulations are covered.

The only entities that will be affected

by this rule will be entities that perform

studies conducted on free-living wild

animals in their natural habitat. We

estimate that at least 50 entities may be

affected by this final rule. These entities

may be considered small and large

entities by Small Business

Administration standards, but this final

rule will only affect a small portion of

the entities’ activities. As we are not

proposing a substantive change in the

definition, the effect on these entities

will not be significant.

Under these circumstances, the

Administrator of the Animal and Plant

Health Inspection Service has

determined that this action will not

have a significant economic impact on

a substantial number of small entities.

Executive Order 12372

This program/activity is listed in the

Catalog of Federal Domestic Assistance

under No. 10.025 and is subject to

Executive Order 12372, which requires

intergovernmental consultation with

State and local officials. (See 7 CFR part

3015, subpart V.)

Executive Order 12988

This final rule has been reviewed

under Executive Order 12988, Civil

Justice Reform. It is not intended to

have retroactive effect. This rule would

not preempt any State and local laws,

regulations, or policies, unless they

present an irreconcilable conflict with

this rule. The Act does not provide

administrative procedures which must

be exhausted prior to a judicial

challenge to the provisions of this rule.

Paperwork Reduction Act

This proposed rule contains no

information collection or recordkeeping

requirements under the Paperwork

Reduction Act of 1995 (44 U.S.C. 3501

et seq.).

List of Subjects in 9 CFR Part 1

Animal welfare, Pets, Reporting and

recordkeeping requirements, Research.

Accordingly, we are amending 9 CFR

part 1 as follows:

PART 1—DEFINITION OF TERMS

1. The authority citation for part 1

continues to read as follows:

Authority: 7 U.S.C. 2131–2159; 7 CFR

2.22, 2.80, and 371.2(g).

2. In § 1.1, the definition of field study

is revised to read as follows:

§ 1.1 Definitions.

* * * * *

Field study means a study conducted

on free-living wild animals in their

natural habitat. However, this term

excludes any study that involves an

invasive procedure, harms, or materially

alters the behavior of an animal under

study.

* * * * *

Done in Washington, DC, this 3rd day of

February 2000.

Richard L. Dunkle,

Acting Administrator, Animal and Plant

Health Inspection Service.

[FR Doc. 00–2922 Filed 2–8–00; 8:45 am]

BILLING CODE 3410–34–P

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

Federal Register / Vol. 65, No. 27 / Wednesday, February 9, 2000 / Rules and Regulations 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 § 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, offsite. 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 ¶87,504

(1996); META, Inc., 26 CCH Fed. Energy

Guidelines ¶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 StevensonWydler 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 § 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 antidiscrimination 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

6316 Federal Register / Vol. 65, No. 27 / Wednesday, February 9, 2000 / Rules and Regulations

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

§ 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 § 708.2.

Ronald Sorri, 23 CCH Fed. Energy

Guidelines ¶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

§ 710.8(h).

Comment: The same commenter also

contends that ‘‘the audience for

protected activity is too limited’’ under

§ 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 inhouse 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 coworkers 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 § 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

§ 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 § 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

Federal Register / Vol. 65, No. 27 / Wednesday, February 9, 2000 / Rules and Regulations 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 § 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 §§ 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 § 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 § 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 § 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 § 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 § 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 § 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

6318 Federal Register / Vol. 65, No. 27 / Wednesday, February 9, 2000 / Rules and Regulations

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

§ 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

§ 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 § 708.13, and

issues related to alleged retaliation for

conduct protected under § 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 § 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 § 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 § 708.15 is met.

Paragraph (b) states, ‘‘Pursuing a remedy

other than final and binding grievancearbitration 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 § 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 § 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 § 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 § 708.15(d),

which in the interim final rule refers to

§ 708.17(c)(2) when it should refer to

§ 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

§ 708.40 is restating what has always

been a part of the rule (see old § 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

Federal Register / Vol. 65, No. 27 / Wednesday, February 9, 2000 / Rules and Regulations 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:

§ 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:

§ 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:

§ 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 § 708.17(c)(3).

5. A new Section 708.40 is added as

follows:

§ 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 §§ 708.5(a)–(c).

[FR Doc. 00–2797 Filed 2–8–00; 8:45 am]

BILLING CODE 6450–01–P

FEDERAL RESERVE SYSTEM

12 CFR Part 272

[Docket No. R–1059]

Rules of Procedure

AGENCY: Federal Open Market

Committee.

ACTION: Final rule; technical

amendment.

SUMMARY: The Federal Open Market

Committee (‘‘the Committee’’) is