[Federal Register Volume 65, Number 27 (Wednesday, February 9, 2000)]
[Rules and Regulations]
[Pages 6314-6319]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-2797]


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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.

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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: <a href="/cdn-cgi/l/email-protection#05776a6260772b6e69707763606961456d742b616a602b626a73"><span class="__cf_email__" data-cfemail="d8aab7bfbdaaf6b3b4adaabebdb4bc98b0a9f6bcb7bdf6bfb7ae">[email protected]</span></a>, 
<a href="/cdn-cgi/l/email-protection#75011d1a1814065b18141b1b351d045b111a105b121a03"><span class="__cf_email__" data-cfemail="bdc9d5d2d0dcce93d0dcd3d3fdd5cc93d9d2d893dad2cb">[email protected]</span></a>.

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


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