[Federal Register Volume 64, Number 49 (Monday, March 15, 1999)]
[Rules and Regulations]
[Pages 12862-12876]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-5876]



[[Page 12861]]

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Part IV





Department of Energy





_______________________________________________________________________



10 CFR Part 708



48 CFR Parts 913, 922, and 970



Criteria and Procedures for DOE Contractor Employee Protection Program; 
Department of Energy Acquisition Regulations; Interim Final Rule

  Federal Register / Vol. 64, No. 49 / Monday, March 15, 1999 / Rules 
and Regulations  

[[Page 12862]]



DEPARTMENT OF ENERGY

10 CFR Part 708

48 CFR Parts 913, 922, and 970

RIN 1901-AA78


Criteria and Procedures for DOE Contractor Employee Protection 
Program; Department of Energy Acquisition Regulations

AGENCY: Department of Energy.

ACTION: Interim final rule and opportunity for public comment.

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SUMMARY: This document provides the text of a revised regulation 
governing the Department of Energy's (DOE) contractor employee 
protection program. The program provides procedures to protect 
employees of DOE contractors who believe they have suffered retaliation 
for disclosing information concerning danger to health or safety, 
substantial violations of law, or gross mismanagement; for 
participating in Congressional proceedings; or for refusing to 
participate in dangerous activities. This rulemaking also makes 
conforming changes to procurement regulations to address the expanded 
scope of the Department's whistleblower protection program.

DATES: It is effective April 14, 1999. Interested persons may submit 
comments by May 14, 1999.

ADDRESSES: Comments may be mailed to Roger Klurfeld, Assistant 
Director, or Thomas O. Mann, Deputy Director, Office of Hearings and 
Appeals, Department of Energy, 1000 Independence Avenue, SW, 
Washington, DC 20585-0107, telephone number 202-426-1449, FAX 202-426-
1415, e-mail: [email protected], [email protected].

FOR FURTHER INFORMATION CONTACT: Roger Klurfeld, Assistant Director, or 
Thomas O. Mann, Deputy Director, Office of Hearings and Appeals, 
Department of Energy, 1000 Independence Avenue, SW, Washington, DC 
20585-0107, telephone number 202-426-1449, FAX 202-426-1415, e-mail: 
[email protected], [email protected].

SUPPLEMENTARY INFORMATION:

I. Introduction and Background

    In exercising its proprietary responsibilities for the control and 
management of its nuclear weapon maintenance and environmental cleanup 
sites, research and development laboratories, test sites, and other 
Government-owned or -leased facilities, the DOE must take steps to 
safeguard public and employee health and safety; ensure compliance with 
applicable laws, rules, and regulations; and prevent fraud, 
mismanagement, waste, and abuse. To this end, the Secretary of Energy 
has taken vigorous action to assure that all such DOE facilities are 
well-managed and efficient, while at the same time operated in a manner 
that does not expose the workers or the public to needless risks or 
threats to health and safety. The DOE is endeavoring to involve both 
Federal and contractor employees in a partnership to aggressively 
identify problems and seek their resolution. In that regard, employees 
of DOE contractors are encouraged to come forward with information that 
they reasonably and in good faith believe evidences unsafe, unlawful, 
fraudulent, or wasteful practices. Employees providing such information 
are entitled to protection from consequent retaliation by their 
employers with respect to compensation, and the terms, conditions, or 
privileges of employment.
    The original rule was published in the Federal Register on March 3, 
1992 (57 FR 7533). In order to assure workplace conditions at DOE 
facilities that are harmonious with safety and good management, the 
rule was intended to improve the procedures for resolving complaints of 
retaliation by establishing procedures for independent fact-finding and 
hearing before a Hearing Officer at the affected DOE field 
installation, followed by an opportunity for review by the Secretary or 
his designee. These procedures were made available to those contractor 
employees who alleged health and safety violations, but were not 
covered by the Department of Labor regulations in 29 CFR part 24. In 
addition, contractor employees who alleged employment retaliation 
resulting from the disclosure of information relating to waste, fraud, 
or mismanagement, or from the participation in proceedings conducted 
before Congress or pursuant to the rule, or from the refusal to engage 
in illegal or dangerous activities, could also utilize the procedures 
regardless of whether they are covered by the health and safety 
protection procedures of the Department of Labor. This rule was not 
intended to cover complaints of retaliation stemming from or relating 
to other types of discrimination by contractors, such as discrimination 
based on race, color, religion, sex, age, national origin, or other 
similar basis.
    After the rule had been in effect for more than four years, the 
Department took steps to obtain the views of interested parties on its 
operation. A Notice of Inquiry was published on October 25, 1996 (61 FR 
55230), in which DOE invited members of the public, particularly those 
persons with experience under the DOE contractor employee protection 
program (e.g., contractors, complainants and attorneys), to recommend 
regulatory changes that might help to streamline the process and make 
it more responsive to the needs of both complainants and contractors. 
Comments were received from 28 individuals or organizations in response 
to the Department of Energy's Notice of Inquiry.
    The procedures set forth in Part 708 are designed specifically to 
deal with allegations of retaliation against contractor employees and 
to provide relief where appropriate. Retaliation against contractor 
employees may also lead to the imposition of penalties under the Price 
Anderson Amendments Act of 1988 (Pub. L. 100-49, August 20, 1988), 
implemented by DOE under 10 CFR part 820 (Part 820). Pursuant to Part 
820, to the extent an act of retaliation by a DOE contractor results 
from an employee's involvement in matters of nuclear safety in 
connection with a DOE nuclear activity, the retaliation could 
constitute a violation of a DOE Nuclear Safety Requirement. The 
retaliation could therefore be subject to the investigatory and 
adjudicatory procedures of both part 820 and part 708, and could 
warrant relief to the employee under Part 708 and the imposition of 
civil penalties on the DOE contractor under part 820. A full discussion 
of the relationship between this part and 10 CFR part 820 and the 
procedures that are followed in situations where an alleged act of 
retaliation falls under both this part and part 820 can be found in 
Federal Register Volume 57, No. 95, Friday, May 15, 1992, at 20796-98.
    After considering the comments received in response to the Notice 
of Inquiry, DOE published a Notice of Proposed Rulemaking (NOPR) in the 
Federal Register on January 5, 1998 (63 FR 733), which suggested 
substantial revisions to Part 708. DOE received a number of comments on 
those proposed revisions. In response to the comments on the NOPR, DOE 
has made extensive procedural changes to part 708. To give the public 
further opportunity to comment, this regulation is being issued as an 
interim final rule, effective 30 days after the date of publication in 
the Federal Register. The public will have 60 days after the date of 
publication to submit comments on the interim final rule.

[[Page 12863]]

II. Summary of Changes

    Since publishing the NOPR, DOE has rewritten Part 708 in ``plain 
language'' style, consistent with the ``Memorandum on Plain Language in 
Government Writing'' which the President issued on June 1, 1998. We 
have broken down the regulatory sections into more discrete units that 
are easier to understand. The section titles are in the form of 
questions to help guide a reader through the procedures in the rule. In 
addition, we have rearranged the order of some sections. As a result, 
the section numbers in this interim final rule do not correspond to 
their precursors in either the original rule or the NOPR.
    DOE has modified the employee coverage in Secs. 708.2 and 708.3 by 
eliminating the requirement that to be eligible for protection under 
this rule, complainants must be employed by contractors performing work 
on sites that DOE owns or leases. The new language instead covers 
employees of contractors performing work directly related to activities 
at DOE-owned or -leased sites, even if the contractor is located, or 
the work is performed, off-site. An example is an employee involved in 
the preparation of environmental impact statements related to programs 
and activities on DOE-owned and -leased sites. Accordingly, we have 
deleted the definition of ``work performed on-site,'' previously found 
in Sec. 708.4. We are making conforming changes to the Department of 
Energy Acquisition Regulations (DEAR) provisions regarding coverage. In 
addition, DOE has deleted the provision, found in the original 1992 
version of Sec. 708.2(a), that the underlying procurement contract 
contain a clause requiring compliance with all applicable safety and 
health regulations. This provision is no longer necessary since DOE 
contracts now require compliance with Part 708 when specifically 
applicable.
    In order to avoid duplicate review of allegations of whistleblower 
retaliation under various Federal statutes and regulations, the interim 
final rule in Sec. 708.4 excludes from coverage employee complaints 
that are submitted for review under Department of Labor regulations 
found at 29 CFR part 24, ``Procedures for the Handling of 
Discrimination Under Federal Employee Protection Statutes.'' These 
would include complaints submitted by DOE contractor employees under 
section 211(a) of the Energy Reorganization Act of 1974 (42 U.S.C. 
5851(a)). That Act added protection for employees of ``a contractor or 
subcontractor of the Department of Energy that is indemnified by the 
Department of Energy under section 170d. of the Atomic Energy Act of 
1954 (42 U.S.C. 2210(d)), but such term shall not include any 
contractor or subcontractor covered by Executive Order 12344.''
    Section 6006 of the Federal Acquisition Streamlining Act of 1994 
(Public Law 103-355) (section 6006) afforded additional protections to 
contractor employees against retaliation for disclosing information to 
a Member of Congress, or an authorized official of an agency or of the 
Department of Justice, relating to a substantial violation of law 
related to a contract (including the competition for or negotiation of 
a contract). Section 6006 assigns responsibilities to Inspectors 
General (including the Inspector General for the Department of Energy) 
to implement these protections. Section 708.4 excludes from coverage 
employee complaints that are submitted for review to the DOE Office of 
Inspector General pursuant to section 6006. The regulation implementing 
section 6006 is found at 48 CFR part 3, Subpart 3.9, ``Whistleblower 
Protections for Contractor Employees.''
    The Office of Contractor Employee Protection, and the position of 
Director of the Office of Contractor Employee Protection, no longer 
exist within DOE. We have removed references to the ``Office of 
Contractor Employee Protection'' and the ``Director of the Office of 
Contractor Employee Protection'' from the interim final rule. DOE has 
reassigned the functions previously assigned to the Director of the 
Office of Contractor Employee Protection to other officials.
    Under Sec. 708.17(a) of the interim final rule, the Director of the 
Office of Employee Concerns or the ``Head of Field Element'' (i.e., the 
manager of the local DOE office) can dismiss a complaint for lack of 
jurisdiction or other good cause. An employee may appeal a dismissal at 
this initial stage to the Director of the Office of Hearings and 
Appeals (OHA) under Sec. 708.18(a). In addition, the OHA Director will 
consider appeals of Hearing Officer decisions. The OHA Director's 
appeal decision, either on jurisdiction or on the merits of an 
individual case, will be the final agency action, except when a 
``petition for Secretarial review'' is filed under Sec. 708.19 
(jurisdiction) or Sec. 708.35 (appeal on the merits). The Secretary 
will reverse or revise a decision by the OHA Director only under 
extraordinary circumstances.
    DOE has amended the language now contained in Secs. 708.5(a)(1) and 
708.5(a)(3) to afford protection for disclosures of ``substantial'' 
violations of laws, rules or regulations and ``gross'' mismanagement, 
instead of ``violations of laws, rules or regulations'' and 
``mismanagement.''
    Section 708.5(a) of the interim final rule expands coverage of 
disclosures to include those 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.
    Section 708.5(a) of the interim final rule further defines the 
nature of the disclosure, requiring that the employee's disclosure 
involves information he or she ``reasonably and in good faith 
believes'' is true. The previous rule in Sec. 708.5(a)(1) only required 
that the complainant ``in good faith believes'' the information he or 
she disclosed. The ``reasonableness'' criterion is consistent with the 
Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16 
(1989) (codified at scattered sections of 5 U.S.C.), and many state 
statutes which afford protection to both public and private sector 
employees against retaliation for whistleblowing activities.
    The standard adopted in Secs. 708.5 through 708.7 is analogous to 
that adopted for the rights of employees to stop work in the face of 
health and safety concerns in the Department of Labor regulations under 
the Occupational Safety and Health Act (the OSH Act). Thus, 29 CFR 
1977.12(b)(2) provides that an employee who, ``with no reasonable 
alternative, refuses in good faith to expose himself to the dangerous 
condition,'' is protected against discrimination based on that conduct 
where ``the employee's apprehension of death or injury [is] of such a 
nature that a reasonable person, under the circumstances then 
confronting the employee, would conclude that there is a real danger of 
death or serious injury * * *'' and where there is insufficient time or 
opportunity either to seek effective redress from the employer or to 
notify the Occupational Safety and Health Administration of the danger. 
See Section 11(c) of the OSH Act.
    Similarly, under Part 708 an employee's refusal to participate in 
an activity, policy, or practice is protected where ``[a] reasonable 
person, under the circumstances that confronted the employee, would in 
good faith 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 * * * .'' Section 708.6(a). 
Moreover, under Sec. 708.7 the employee must have asked the contractor 
to

[[Page 12864]]

correct the problem, and the contractor must have refused to do so. In 
addition, for the refusal to participate to constitute a protected 
refusal under Part 708, the employee must have notified a DOE official, 
a Member of Congress, or a government official with responsibility over 
such matters within thirty days after the refusal to participate.
    We further recognize that employees who stop work may be considered 
to have engaged in an unprotected work stoppage for which the employer 
is free to take action under the Labor Management Relations Act (LMRA) 
unless they do so ``in good faith because of abnormally dangerous 
conditions * * *'' See LMRA, Section 502. We did not receive any 
comments suggesting that there has been a conflict with Section 502 of 
the LMRA. However, we would be interested in any comments directed to 
actual concerns in this regard.
    Section 708.14 of the interim final rule increases the time limit 
for filing a complaint from 60 to 90 days. The time limit for filing a 
complaint will still be tolled while a complainant is seeking remedial 
action through internal contractor procedures. DOE still requires the 
exhaustion of internal grievance procedures, but the interim final rule 
permits individuals to file a complaint under Part 708 if they have not 
received a response on a grievance relating to the complaint within 150 
days of filing of the grievance. The program will no longer permit an 
employee to bypass an internal grievance procedure on the grounds that 
it is ``ineffectual,'' and we have deleted the provision formerly found 
in Sec. 708.6(c)(2) from the corresponding provision, Sec. 708.13, of 
the interim final rule. The reason for this change is to encourage the 
use of internal grievance procedures to resolve allegations of 
retaliation at the earliest stage possible.
    Under Sec. 708.15(a), as long as the complainant is pursuing final 
and binding grievance-arbitration processes, a complaint under this 
regulation will be dismissed for lack of jurisdiction. After exhausting 
such procedures, an individual is free to file a complaint under Part 
708 to resolve any remaining issues under Sec. 708.5. Such a complaint 
may be dismissed for good cause, however, as provided in Sec. 708.17 
(for example, if the issues in the complaint have been substantially 
resolved or the employer has made a formal offer to provide a remedy 
that DOE considers to be equivalent to what would be provided as a 
remedy under this regulation). This approach respects the labor-
management relationship that applies to many DOE contractor employees, 
and is consistent with the deference given to final and binding 
arbitration decisions issued under collective bargaining agreements.
    Section 708.16(a) provides that within 15 days of receiving a 
complaint, the EC Director or the Head of Field Element will give the 
respondent contractor a copy of the complaint and advise the contractor 
that it has ten business days after receipt of the complaint to submit 
comments to the appropriate DOE office. Section 708.16(b) has been 
added to require that notice and an opportunity for comment also be 
provided to labor organizations on complaints filed by employees they 
represent.
    Under Sec. 708.18, the OHA Director is responsible for deciding 
initial appeals of dismissals of complaints on jurisdictional grounds. 
Under Sec. 708.8(c) of the original rule, the Deputy Secretary, as the 
delegee of the Secretary, routinely made these decisions. In practice, 
however, that system has proved to be inefficient, and DOE believes the 
OHA Director will be better able to process jurisdictional appeals on 
an expedited basis. The OHA Director's decision on a jurisdictional 
appeal is the final agency decision unless a party files a petition for 
Secretarial review within 30 days under Sec. 708.19. The Secretary will 
reverse or revise a decision by the OHA Director only under 
extraordinary circumstances.
    Section 708.21 encourages informal resolution of complaints, and 
language has been added to recommend the use of mediation to settle 
disputes. We have deleted the provision in Sec. 708.8(b) of the 
original rule that ``the Head of the Field Element or designee shall 
enter into a settlement agreement which terminates the complaint.'' 
That provision is unnecessary, since the only parties to a settlement 
under part 708 would be the contractor and its employee.
    If the parties cannot resolve a complaint by informal means such as 
mediation, a complainant has two options for referral to the OHA under 
Sec. 708.21: a hearing without an investigation, or an investigation 
followed by a hearing. This departs from the procedure under the 
previous rule, which provided that all complaints that were accepted 
and that had not been resolved informally were investigated before the 
parties had the right to request a hearing.
    If a complainant requests an investigation followed by a hearing, 
the OHA Director will appoint an investigator under Sec. 708.22. The 
OHA investigator will investigate the complaint under Sec. 708.22, and 
issue a report of investigation under Sec. 708.23 within 60 days. The 
OHA Director may extend the deadline for completion of an investigation 
only once by up to 30 days under Sec. 708.23(a).
    If the OHA convenes a hearing, under Sec. 708.26(a) it will take 
place within 90 days after receipt of the complaint, or issuance of the 
report of investigation, whichever is later. This represents a change 
from Sec. 708.9(b) in the original rule, which required the hearing to 
take place within 60 days. As a practical matter, the 60 day deadline 
did not always give the parties sufficient preparation time, and it 
routinely had to be extended. Under Sec. 708.24, the parties can agree 
to cancel a hearing, in which case the Hearing Officer will issue the 
initial agency decision based on the existing record.
    The hearing procedures are contained in Secs. 708.25 through 
708.28. DOE has added language in Secs. 708.28(b)(1) and 708.28(b)(2) 
authorizing the Hearing Officer, at the request of a party, to provide 
for reasonable discovery by the parties. Discovery is a process used to 
enable a party to learn about the other party's evidence before a 
hearing takes place. Discovery eliminates the element of surprise from 
a hearing, and it can facilitate the settlement of disputes. It can 
take the form of ``oral depositions,'' where a representative of one 
party asks questions of a witness for the other party. The deposition 
is recorded and transcribed by a court reporter. Discovery can also 
take the form of written ``interrogatories,'' where one party gives 
written questions to a witness for the other party, who answers them in 
writing. Additionally, one party may make a ``request for production of 
documents'' of the other party. A party may also request permission to 
enter and inspect the property and facilities of the other party. 
Finally, ``requests for admissions'' is another form of written 
discovery by which one party asks the other party to admit certain 
facts.
    The burdens of proof for the complainant and for the contractor are 
set out in a separate section, Sec. 708.29, for emphasis. An employee 
can also argue that the claimed legitimate reason for taking action 
against the employee was a pretext for retaliation. The Hearing Officer 
will issue an initial agency decision under Sec. 708.30 (if a hearing 
is held) or Sec. 708.31 (if no hearing is held). The legal standard in 
Sec. 708.29 applies to all cases, whether or not a hearing is held. The 
interim final rule extends the time for issuing the initial agency 
decision from 30 to 60 days after the cancellation of the hearing, 
receipt of the transcript, or

[[Page 12865]]

receipt of the post-hearing submissions, whichever occurs later.
    Appeals of cases will now go to the OHA Director for his review 
rather than directly to the Secretary or his designee. Any party may 
appeal an initial agency decision from an OHA Hearing Officer to the 
OHA Director under Sec. 708.32, and procedures for considering an 
appeal are set out in Sec. 708.33. Under Sec. 708.34, the OHA Director 
will be responsible for issuing the decision on an appeal within 60 
days after he closes the record. A party aggrieved by a Hearing Officer 
decision has not exhausted its administrative remedies until it files 
an appeal with the OHA Director and the OHA Director issues a decision 
granting or denying the appeal. The OHA Director's decision on an 
appeal is the final agency decision unless a party files a petition for 
Secretarial review within 30 days under Sec. 708.35. The Secretary will 
reverse or revise a decision by the OHA Director only under 
extraordinary circumstances. The types of relief that DOE may order now 
appear in Sec. 708.36.
    The right to petition for Secretarial review has been retained to 
emphasize DOE's strong, ongoing commitment to whistleblower protection. 
DOE anticipates that petitions for Secretarial review will be 
relatively rare under this interim final rule, and that the appeal 
decisions issued by the OHA Director, either on jurisdiction or on the 
merits of an individual case, will be the final agency action in most 
cases. This is consistent with the Department of Labor's procedures. In 
1996, the Department of Labor amended its whistleblower procedures to 
eliminate final appellate review by the Secretary, and created an 
Administrative Appeals Board analogous to the OHA Director responsible 
for handling them. 61 FR 19978. The Department of Labor's new system 
was set up to cure inefficiencies and reduce delays in issuing final 
agency decisions. DOE has decided to transfer appeals from the 
Secretary to the OHA Director with the same goals in mind. These 
changes from the process described in the NOPR will expedite the final 
resolution of whistleblower complaints by DOE.
    The extant OHA management structure ensures that the different 
functions for which OHA will now be responsible under part 708 will be 
performed by different staff members. The OHA has used a similar 
separation of functions in other programs for over 25 years, and it has 
worked successfully to ensure the fair and equitable treatment of 
initial and appellate submissions by independent decision-makers.
    We have added a new section (Sec. 708.8) to the interim final rule 
to explicitly state that the revised procedures shall apply in any 
complaint proceeding pending at the informal resolution stage, the 
investigative stage or the hearing stage on the effective date of this 
rule. Appeals currently pending before the Secretary's designee, the 
Deputy Secretary, will be decided by the Deputy Secretary (rather than 
be transferred to the OHA Director). It is well established in the law 
that an agency may apply new procedural rules in pending proceedings as 
long as their application does not impair the rights of, or otherwise 
cause injury or prejudice to, a party. See, e.g., Landgraf v. USI Film 
Products, 511 U.S. 244, 275 (1994); Lindh v. Murphy, 117 S.Ct. 2059, 
2063-64 (1997); Natural Resources Defense Council, Inc. v. NRC, 680 
F.2d 810, 817 n.17 (D.C. Cir. 1982) (citing Pacific Molasses Co. v. 
FTC, 356 F.2d 386 (5th Cir. 1966)). DOE will apply the revised 
procedures to pending cases consistent with the case law.
    Finally, this rulemaking also makes conforming changes to the 
Department of Energy Acquisition Regulations (DEAR) required by 
expansion of the scope of the whistleblower protection program to cover 
work done on behalf of DOE directly related to activities at DOE-owned 
or -leased sites.

III. Summary and Discussion of Public Comments Received Pursuant to 
the January 5, 1998 Notice of Proposed Rulemaking

    DOE received comments from three individuals, two contractors and 
one public interest group in response to the Department of Energy's 
Notice of Proposed Rulemaking (NOPR), published in the Federal Register 
on January 5, 1998.
    Comment: One commenter recommended that disclosures should have 
some factual basis, and not just be evaluated on whether they were made 
in good faith. The commenter also recommended that the complainant be 
required to provide evidence that the action taken against the employee 
was retaliatory, including a showing that the disclosure ``would likely 
provoke censure'' by the contractor.
    Response: We believe that the change to the rule in Sec. 708.5(a) 
accomplishes the first objective of the commenter. Section 708.5(a) now 
requires that the employee's disclosure involve information he or she 
``reasonably and in good faith believes'' is true. This 
``reasonableness'' criterion is consistent with the federal 
Whistleblower Protection Act of 1989, many state statutes, and 
administrative and judicial decisions.
    Section 708.29 of the interim final rule requires that the 
complainant show, by a preponderance of the evidence, that there was a 
protected disclosure that was a contributing factor in the alleged 
retaliation against the complainant. This usually entails proving that 
the person taking the retaliation had actual or imputed knowledge of 
the protected activity. A reasonable inference can be drawn from the 
circumstances that the protected activity was a consideration in taking 
the alleged retaliation. We therefore believe the interim final rule 
includes the second element sought by the commenter. Alternatively, the 
employee can demonstrate that the contractor's asserted legitimate 
reason was a pretext for retaliation for the protected conduct.
    Comment: One commenter suggested that the DOE pay for the legal 
costs of indigent whistleblowers and provide counsel for such 
whistleblowers during a mediation phase or when the whistleblower has 
to deal face to face with contractors who are represented by counsel.
    Response: The procedures established under this rule are intended 
to be informal and designed to facilitate prompt resolution. Providing 
attorneys would undermine that objective. Moreover, DOE has no evidence 
that unavailability of legal counsel has impeded whistleblowers in 
pursuing their complaints. Legal services may be available through 
local bar associations, from public interest groups that represent 
whistleblowers or from attorneys who represent clients in these types 
of cases on a contingent fee basis. Finally, complainants who prevail 
may receive attorney fees and costs as part of the remedy provided, and 
settlement agreements between the parties may also include attorney 
fees for a complainant. These mechanisms should ensure that counsel can 
be obtained where warranted by the complexity of the issues.
    Comment: A commenter requested that the rule include additional 
information regarding the definition of off-site subcontractors that 
are covered by the rule. The commenter raised a question about the 
possible coverage of employees of outside law firms that handle a 
contractor's litigation or engineering firms that design on-site 
facilities.
    Response: We do not believe that a more precise definition is 
possible that would avoid questions such as those the commenter raised. 
In the NOPR, and the language being adopted today in Sec. 708.2, 
``contractor'' is defined as


[[Page 12866]]


a seller of goods or services who is a party to

    (1) A management and operating contract or other type of contract 
with DOE to perform work directly related to DOE-owned or -leased 
facilities, or
    (2) A subcontract under a contract of the type described in 
paragraph (1) of this definition, but only with respect to work related 
to activities at DOE-owned or -leased facilities.
    Further, Sec. 708.2 of the rule defines ``employee'' as

a person employed by a contractor, and any person previously employed 
by a contractor if that person's complaint alleges that employment was 
terminated for conduct described in Sec. 708.5 of this subpart.
    It is conceivable that the employees the commenter cited as 
examples could be the targets of retaliation by a contractor for 
activities protected by part 708. As described by the commenter, the 
work being performed may directly relate to activities on DOE sites. 
There have been decisions under part 708 in which DOE found contractors 
in violation of this part for pressuring subcontractors to take actions 
against employees who have engaged in protected activities. Analysis of 
similar allegations would have to consider jurisdictional issues 
including the nature of the relationship among the DOE contractor, the 
complainant and the complainant's employer, the nature of the protected 
activity by the complainant, and the status of the complainant as an 
``employee'' under this part.
    Comment: The commenter also questioned the provision allowing a 
complainant to bypass the investigative phase and submit the complaint 
directly to the Office of Hearings and Appeals. The commenter stated it 
was particularly concerned that this process would not afford an 
employer the opportunity to avoid cases involving ``trivial'' matters; 
it would not allow an employer to provide evidence that a complaint 
does not warrant a hearing; and there would be cost savings by 
requiring an investigation, thereby reducing the number of trivial 
matters receiving administrative review. The commenter has also 
recommended that DOE provide employers with the entire complaint, and 
not merely ``a statement of the issues raised in the complaint'' as 
proposed in Sec. 708.6.
    Response: Under Sec. 708.9(a) of the original rule, either party 
had a right to request a hearing after the issuance of a report of 
investigation. The interim final rule changes this procedure in two 
ways. First, under Sec. 708.21(a) an investigation will no longer be 
required, but will only occur if requested by the complainant. Second, 
under Sec. 708.24, all parties can agree to cancel a hearing.
    The interim final rule provides, in Sec. 708.16(a), that upon 
receipt of a complaint, DOE will give the contractor a copy of the 
complaint and advise the firm that it may submit information to rebut 
the allegations in the complaint within ten days after receiving the 
complaint. This process is similar to that followed by the Department 
of Labor, in 29 CFR part 24, for processing whistleblower complaints 
filed under the Energy Reorganization Act. We believe this process 
provides a more equitable opportunity for all parties to address the 
issues that have been raised.
    The interim final rule also contains the requirement that 
disclosures be made ``reasonably and in good faith.'' The new language 
in Sec. 708.5(a) includes protections for disclosures of 
``substantial'' violations of laws, rule or regulations and ``gross'' 
mismanagement. These more stringent criteria will also avoid cases 
involving what the commenter referred to as ``trivial'' matters.
    The interim final rule requires complainants to use established 
grievance-arbitration procedures before filing a Part 708 complaint. To 
the extent that employers have internal mechanisms to deal with issues 
raised by employees, they will have a full opportunity to learn the 
nature of the allegations, to respond to those allegations, and to 
resolve the dispute internally before the filing of a complaint under 
Part 708. The interim final rule also stresses the availability of 
informal resolution, including mediation. This process has proven 
highly successful for clarifying issues raised in a complaint to 
facilitate the resolution of disputes by the parties themselves. We 
hope that parties will make maximum use of this phase of part 708.
    Comment: The commenter also recommended that DOE dismiss a case if 
the Deputy Inspector General for Inspections makes a determination not 
to pursue an investigation of the complaint.
    Response: In the interim final rule, we have changed the provision 
in the NOPR that drew this comment. The OHA is now responsible for all 
steps in processing a complaint, once DOE accepts jurisdiction, except 
when a party requests Secretarial review. Under Sec. 708.21 of the 
interim final rule, the complainant alone will have the option to 
forego an investigation, and proceed directly to the hearing stage. We 
therefore decline to adopt the commenter's suggestion.
    Comment: A commenter indicated agreement with several of the 
proposed changes, including the change in the time limit for filing a 
complaint; the right of a complainant to request a hearing 240 days 
after referral of a complaint to the Deputy Inspector General for 
Inspections; the ability of the Hearing Officer to provide for 
reasonable discovery; the issuance of a decision within 60 days of the 
close of a hearing; and the inclusion of off-site employees in the 
definition of employees covered by the rule. The commenter also 
recommended that DOE should make jurisdictional decisions within 30 to 
45 days of the filing of a complaint, and grant punitive and emotional 
damages as additional remedies to successful complainants.
    Response: Section 708.17(a) of the interim final rule provides 15 
days as the period for resolving jurisdictional issues. Such decisions 
may require the Head of Field Element or the Director of the Office of 
Employee Concerns to obtain additional information from a complainant 
or a contractor, and the 15-day time period is a target, rather than an 
absolute requirement. In any event, DOE will expedite determinations of 
jurisdiction as much as possible. The streamlined OHA process under the 
interim final rule will obviate any need for the proposed right to 
request a hearing after a complaint has been pending before the DOE for 
240 days.
    With respect to the request for punitive or emotional damages, this 
issue was also raised by another commenter. That commenter pointed out 
that ``other statutory schemes,'' including 29 CFR part 24, which the 
Department of Labor administers, provide compensatory damages beyond 
the restitutionary remedies afforded under this part. We consider this 
issue below.
    Comment: A commenter recommended the elimination of the provision 
of the proposed rule that would preclude an employee from filing under 
part 708 if the complaint could be filed under other statutory 
mechanisms, including under 29 CFR part 24 or 48 CFR part 3, Subpart 
3.9. The commenter noted that the amendments to the Energy 
Reorganization Act of 1992, codified at 42 U.S.C. 5851(h), state:

    This section may not be construed to expand, diminish, or 
otherwise affect any rights otherwise available to an employee under 
Federal or State law to redress the employee's discharge or other 
discriminatory action taken by the employer against the employee.


[[Page 12867]]


    Response: The interim final rule provides that an employee is not 
prohibited from filing a complaint under this part merely because 
relief could have been sought under 29 CFR part 24 or 48 CFR part 3, 
Subpart 3.9. The interim final rule, in section 708.15(a), does 
continue the policy contained in the original rule that DOE will 
dismiss a complaint under this part if the complainant, with respect to 
the same facts, is pursuing a remedy available under State or other 
applicable law.
    We take note of the language in the amendments to the Energy 
Reorganization Act of 1992 cited by the commenter, and conclude that 
the statutory language, enacted after the publication and effective 
date of the original part 708, should be given effect by not precluding 
the use of this part by employees who can file under 29 CFR part 24. 
This part provides an alternative to 29 CFR part 24 for DOE contractor 
employees to seek redress for retaliation. However, as discussed below, 
section 708.15(a) of the interim final rule is generally intended to 
avoid consideration on the merits of cases that were first filed in 
another forum.
    The Inspector General, under 48 CFR part 3, Subpart 3.9, is 
required to conduct an initial inquiry of a complaint. However, the 
Inspector General may determine that the complaint is frivolous or for 
other reasons does not merit further investigation. Therefore, although 
an employee may file a complaint under that rule, the employee's 
complaint may not be fully investigated. As such, 48 CFR part 3, 
Subpart 3.9 would not constitute an avenue for redress for an employee 
if the complaint is not investigated fully and it should not preclude 
the subsequent filing of a complaint under part 708 if the Inspector 
General, after conducting an initial inquiry, declines to take further 
action on the matter.
    With a choice of remedies available, DOE wishes to avoid the 
situation where an employee could simultaneously pursue the same 
whistleblower complaint in more than one forum. Under section 708.4(c) 
of the interim final rule, an employee who elects to pursue a remedy 
under 29 CFR part 24 (Department of Labor), or 48 CFR part 3, Subpart 
3.9 (Inspector General), is generally precluded from later using Part 
708. However, section 708.15(a) recognizes two equitable exceptions to 
this general rule: (1) when the prior complaint under 29 CFR part 24 is 
dismissed for lack of jurisdiction by the Department of Labor or (2) 
when the Inspector General, after conducting an initial inquiry, 
declines to take further action on the matter under 48 CFR part 3, 
Subpart 3.9. In either instance, the employee is no longer barred from 
filing a complaint under part 708.
    Comment: The commenter also recommended that Hearing Officers not 
only be given ``the authority to provide for reasonable discovery,'' 
but be required to provide discovery. The commenter cites one case 
processed under this part in which there was a dispute over the extent 
of discovery made available.
    Response: We do not believe that requiring discovery is consistent 
with the necessary authority of a Hearing Officer. To require discovery 
would eliminate the exercise of discretion as to its necessity. We 
recognize that some cases will require reasonable discovery in order to 
develop key factual issues presented in the complaint. This may be 
particularly true in those cases in which the complainant has exercised 
the option under Sec. 708.21(a)(1) to proceed directly to the hearing 
stage without an investigation. Nevertheless, we believe that the 
Hearing Officer must determine the necessity and appropriate scope of 
discovery on a case-by-case basis, as has been the practice to date. As 
provided in Sec. 708.28(b)(1), the Hearing Officer may order discovery 
at the request of a party, based on a showing that the requested 
discovery is designed to produce evidence regarding a matter, not 
privileged, that is relevant to the subject matter of the complaint. 
The citation of a single instance in which there was a disagreement 
over the granting of a motion for discovery does not, in our opinion, 
warrant the change recommended. (The dispute was resolved in that case, 
and the Hearing Officer eventually granted the discovery request.)
    Comment: The commenter also recommended that the definition of 
retaliation should also include the abuse of the security clearance 
process against an employee, and permit DOE to investigate and remedy 
alleged personnel security abuses under part 708. The commenter stated 
that the regulations governing the eligibility for security clearances 
(10 CFR part 710) do not include remedies for adverse consequences 
employees may suffer because of the misuse of the clearance process 
beyond the eligibility determination itself.
    Response: The definition of retaliation in this part includes 
``intimidation, threats, restraint, coercion or similar action taken by 
a contractor against an employee with respect to employment (e.g., 
discharge, demotion, or other negative action with respect to the 
employee's compensation, terms, conditions or privileges of employment) 
in retaliation for the employee's disclosure of information, 
participation in proceedings, or refusal to participate in activities * 
* *.'' It is possible that retaliation as so defined could include 
actions by the contractor that cause the questioning, suspension, or 
termination of a security clearance.
    The commenter is correct that the regulations governing the 
eligibility for security clearances at part 710 do not include remedies 
for adverse consequences employees may suffer because of the misuse of 
the clearance process beyond the eligibility determination itself. With 
respect to the eligibility determination, Sec. 710.4 clearly states 
that the procedures shall not be used for an improper purpose, 
including any attempt to coerce, restrain, threaten, intimidate or 
retaliate against individuals for exercising their rights under 
statute, regulation, or DOE directive. In addition, Part 710 provides 
considerable due process protections for any individual that is the 
subject of an access eligibility determination.
    Because the Department relies solely on part 710 in determining 
eligibility for security clearances and part 710 includes protections 
designed to guard against abuse of that process, there is no review 
available under part 708 procedures for the ultimate determination on 
eligibility for a clearance. Thus, if DOE sustains a negative security 
determination made under part 710, there is no remedy under part 708 
even if the security clearance review was initiated as part of an act 
of retaliation. With respect to consequences beyond the eligibility 
determination, part 708 may apply.
    Comment: This commenter, and one other commenter, recommended that 
we expand the available remedies to include compensatory damages, 
including damages for mental anguish, pain and suffering, and emotional 
distress resulting from a contractor's wrongful actions.
    Response: The restitutionary remedies authorized under Sec. 708.36 
are intended to correct unwarranted employment actions. The goal of 
this regulation is simply to restore employees to the position they 
would have occupied but for the retaliation. Part 708 exists to provide 
an alternative to filing a lawsuit in which a broad range of 
compensatory relief may be available, but it is not intended to suspend 
that option or duplicate the remedies that may be available in 
litigation. Before choosing a forum for seeking redress of an 
unwarranted employment action,

[[Page 12868]]

contractor employees should compare part 708 with other available 
remedies.
    Comment: The commenter also recommended that part 708 cover DOE 
employees. In support of the recommendation, the commenter questioned 
the effectiveness of protections under the Whistleblower Protection Act 
of 1989 and also cited the case of Jenkins v. U.S. Environmental 
Protection Agency, 92-CAA-06, May 18, 1988, a case in which a Federal 
employee was granted protection against retaliation for protected 
whistleblowing under the Clean Air Act.
    Response: Dissatisfaction with the provisions of the Whistleblower 
Protection Act of 1989 or its implementation is a matter for 
legislative consideration; it is not an issue within the scope of this 
rulemaking. Department of Labor procedures under 29 CFR part 24 provide 
an additional statutory forum for Federal employees who seek 
whistleblower protection. We do not believe that these statutory 
protections for Federal employees need to be supplemented by an 
additional DOE regulatory process.
    Comment: One series of comments expressed various concerns about 
the interrelationship between the draft revision of part 708 and the 
scheme of labor-management relations contemplated by the Labor 
Management Relations Act (LMRA), e.g.,
     That the proposed rule would provide a mechanism for 
bypassing the collectively bargained grievance-arbitration process and 
the labor organizations which are the exclusive representatives of the 
employees in the bargaining unit for the purposes of collective 
bargaining with the contractors by allowing the Department and the 
employers to deal directly with employees under part 708 regarding 
terms and conditions of their employment in violation of the LMRA, and
     That the proposed rule would obviate the need to pursue 
disputes related to such matters before the National Labor Relations 
Board or the Federal district courts under sections 301 and 302 of the 
LMRA.
    Thus, the commenter stated, ``the current proposed regulation could 
act to exclude the legal representative of duly established union 
agents from any reprisal claim, and would diminish the contractual 
right for employers and unions to work together to negotiate a fair and 
reasonable settlement of disputes in the workplace* * * .''
    Response: We have carefully reviewed the issues raised by the 
commenter. The original version of part 708 that has been in effect 
since April 2, 1992, does not exclude bargaining unit members, 
including those covered by collective bargaining agreements, from 
coverage and we believe that determination to be clearly correct. DOE 
has unique responsibilities under the Atomic Energy Act to ensure the 
safety of its operations. Allowing members of bargaining units employed 
by DOE contractors to bring to DOE's attention in part 708 proceedings 
instances of retaliation for raising safety and similar issues may 
provide DOE information vital to its capacity to carry out its 
responsibilities, notwithstanding that such complaints may also relate 
to terms and conditions of employment which are mandatory subjects for 
collective bargaining.
    Nonetheless, in light of the comments, DOE has added a provision to 
this interim final rule, new Sec. 708.4(e), to specifically exclude 
from the coverage of part 708 complaints based on terms and conditions 
of employment within the meaning of the National Labor Relations Act if 
the complaint does not involve conduct protected under Sec. 708.5. In 
addition, DOE addresses the commenters' concern about the potential for 
bypassing a complainant's collective bargaining representative by 
including a new provision, Sec. 708.16(b), requiring notice of a 
complaint and a comment opportunity for any union representing a 
complainant who is part of a bargaining unit for collective bargaining 
purposes. Before filing a complaint under part 708, the employee is 
also required by Sec. 708.12(d) of the interim final rule to exhaust 
all applicable grievance-arbitration procedures that have been 
established by agreement of the parties. After exhausting such 
procedures, the represented employee is free to file a complaint under 
part 708 to resolve any issues related to alleged retaliation for 
conduct protected under Sec. 708.5. Such a complaint may be dismissed 
for good cause, however, as provided in Sec. 708.17 if, for example, 
the issues in the complaint have been substantially resolved or the 
employer has made a formal offer to provide a remedy that DOE considers 
to be equivalent to what could be provided as a remedy under this 
regulation.
    We believe that this regulation, as modified, better reflects the 
original regulatory intent of providing procedures for processing 
complaints by employees of DOE contractors alleging retaliation by 
their employers for covered disclosure of information; participation in 
Congressional proceedings; or for refusal to participate in dangerous 
activities while not interfering in matters reserved to the exclusive 
province of the National Labor Relations Board and the federal district 
courts in cases brought pursuant to sections 301 and 302 of the LMRA.
    We are particularly interested in comments addressing the impact of 
these changes.
    Comment: The commenter also recommended that, in light of the 
Supreme Court having granted certiorari in Wright v. Universal Maritime 
Serv. Corp., DOE withdraw the draft rule until such time as the Supreme 
Court issues its ruling. In Wright, the Court of Appeals for the Fourth 
Circuit held that the provisions of a collective bargaining agreement, 
including binding arbitration, are enforceable prior to the employee 
seeking statutorily provided rights.
    Response: Since the submission of this comment, the Supreme Court 
has issued its decision in Wright. See __U.S.__ (No. 97-889, Nov. 16, 
1998). In addition to reviewing that decision, we have further 
clarified the procedures established in part 708 to require exhaustion 
of contractual grievance-arbitration procedures. As modified, we 
believe that we have adequately resolved the concerns expressed by the 
commenter.

IV. Implementation and Enforcement

    None of the comments received addressed the implementation and 
enforcement measures formerly contained in Sec. 708.12(b), which now 
appear in Sec. 708.38. However, this is an issue that has received 
comment in relation to litigation of whistleblower matters. Most 
complainants with actions reaching the implementation stage at 
Sec. 708.38 have received the awards ordered by the Department without 
incident or problem, although a small percentage of cases have 
encountered difficulties. In situations where difficulties have arisen, 
the DOE has successfully worked with, and is continuing to work with, 
the complainant and relevant contractor to achieve a resolution. The 
DOE has found that each of these situations is unique and no single 
approach or solution can be used. For this reason, DOE has determined 
that no single approach to ensuring implementation of an ordered remedy 
is appropriate for promulgation in a rulemaking.
    Furthermore, the streamlined process presented in this rulemaking 
will avoid problems that arose due to lengthy processing time. Thus, 
DOE will continue to use its existing measures as described in 
Sec. 708.38.
    The DOE did consider two alternative mechanisms for enforcement of 
its

[[Page 12869]]

decisions. The Department considered providing for assignment of 
contract funds by a contractor for the benefit of a successful 
complainant, and it considered providing for a third party beneficiary 
right in its contracts to successful complainants. The Department seeks 
comment on the mechanisms it considered, suggestions as to other 
mechanisms it might consider, and on its decision to maintain its 
current approach.

V. Public Hearing Determination

    The Department concluded that the proposed rule would not involve a 
substantial issue of fact or law and that the proposed rule would not 
have a substantial impact on the nation's economy or a large number of 
individuals or businesses. No public comments were received requesting 
public hearings and none of the comments received indicated the need 
for such hearings. Therefore, pursuant to Public Law 95-91, the DOE 
Organization Act, and the Administrative Procedure Act (5 U.S.C. 553), 
the Department did not hold a public hearing on the rule.

VI. 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 
Federal 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 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, 
the interim final rule meets the relevant standards of Executive Order 
12988.

C. Review Under the Regulatory Flexibility Act

    This rule has been reviewed under the Regulatory Flexibility Act of 
1980, 5 U.S.C. 601 et seq., which requires preparation of an initial 
regulatory flexibility analysis for any rule that is likely to have a 
significant economic impact on substantial numbers of small entities. 
The contracts and employees to which this rulemaking apply are for the 
most part covered by the original DOE Contractor Employee Protection 
Program, which prohibited discrimination against employees who engage 
in protected activities relating to the disclosure of certain types of 
information or for refusing to engage in unsafe or illegal practices. 
Most of the changes are procedural in nature aimed at streamlining the 
process, and the nature of available remedies has not changed. The 
emphasis on the use of early resolution through Alternative Dispute 
Resolution, primarily mediation, may in fact lessen adverse economic 
impacts. Similarly, where violations are found, the expected shortening 
of the processing time for complaints may result in remedies (e.g., 
back pay) that are less costly to contractors than under the original 
rule. Accordingly, DOE certifies that this rule will not have a 
significant economic impact on a substantial number of small entities, 
and, therefore, no regulatory flexibility analysis has been prepared.

D. Review Under the Paperwork Reduction Act

    No additional information or record keeping requirements are 
imposed by this rulemaking. Accordingly, no OMB clearance 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 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 12612

    Executive Order 12612 (52 FR 41685, October 30, 1987) requires that 
regulations, rules, legislation, and any other policy actions be 
reviewed for any substantial direct effects on States, on the 
relationship between the Federal government and the States, or in the 
distribution of power and responsibilities among the various levels of 
Government. If there are sufficient substantial direct effects, then 
the Executive Order requires the preparation of a federalism assessment 
to be used in all decisions involved in promulgating and implementing a 
policy action. This rule will only affect employee-contractor relations 
with respect to the operation of the DOE Contractor Employee Protection 
Program. States that contract with DOE will be subject to this rule. 
However, DOE has determined that this rule will not have a substantial 
direct impact on the institutional interests or traditional functions 
of the States.

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 agency 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 requires an agency plan for giving notice and 
opportunity to timely input to potentially affected small governments

[[Page 12870]]

before establishing any requirements that might significantly or 
uniquely affect small governments. The rule published today 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 report to Congress 
promulgation of the interim final rule prior to its effective date. The 
report will state that it has been determined that the rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

List of Subjects

10 CFR Part 708

    Administrative practice and procedure, Energy, Fraud, Government 
contracts, Occupational Safety and Health, Whistleblowing.

48 CFR Parts 913, 922 and 970

    Government procurement.

    Issued in Washington, on March 3, 1999.
George B. Breznay,
Director, Office of Hearings and Appeals.

Richard H. Hopf,
Director, Office of Procurement and Assistance Management.
    For the reasons set forth in the preamble, Chapter III of title 10 
and Chapter 9 of title 48 of the Code of Federal Regulations are 
amended as set forth below:
    1. 10 CFR Part 708 is revised to read as follows:

PART 708--DOE CONTRACTOR EMPLOYEE PROTECTION PROGRAM

Subpart A--General Provisions

Sec.
708.1  What is the purpose of this part?
708.2  What are the definitions of terms used in this part?
708.3  What employee complaints are covered?
708.4  What employee complaints are not covered?
708.5  What employee conduct is protected from retaliation by an 
employer?
708.6  What constitutes ``a reasonable fear of serious injury?''
708.7  What must an employee do before filing a complaint based on 
retaliation for refusal to participate?
708.8  Does this part apply to pending cases?
708.9  When is a complaint or other document considered to be 
``filed'' under this part?

Subpart B--Employee Complaint Resolution Process

708.10  Where does an employee file a complaint?
708.11  Will an employee's identity be kept confidential if the 
employee so requests?
708.12  What information must an employee include in a complaint?
708.13  What must an employee do to show that all grievance-
arbitration procedures have been exhausted?
708.14  How much time does an employee have to file a complaint?
708.15  What happens if an employee files a complaint under this 
part and also pursues a remedy under State or other law?
708.16  Will a contractor or a labor organization that represents an 
employee be notified of an employee's complaint and be given an 
opportunity to respond with information?
708.17  When may DOE dismiss a complaint for lack of jurisdiction or 
other good cause?
708.18  How can an employee appeal dismissal of a complaint for lack 
of jurisdiction or other good cause?
708.19  How can a party obtain review by the Secretary of Energy of 
a decision on appeal of a dismissal?
708.20  Will DOE encourage the parties to resolve the complaint 
informally?

Subpart C--Investigation, Hearing and Decision Process

708.21  What are the employee's options if the complaint cannot be 
resolved informally?
708.22  What process does the Office of Hearings and Appeals use to 
conduct an investigation of the complaint?
708.23  How does the Office of Hearings and Appeals issue a report 
of investigation?
708.24  Will there always be a hearing after a report of 
investigation is issued?
708.25  Who will conduct the hearing?
708.26  When and where will the hearing be held?
708.27  May the Hearing Officer recommend mediation to the parties?
708.28  What procedures govern a hearing conducted by the Office of 
Hearings and Appeals?
708.29  What must the parties to a complaint prove?
708.30  What process does the Hearing Officer follow to issue an 
initial agency decision?
708.31  If no hearing is conducted, what is the process for issuing 
an initial agency decision?
708.32  Can a dissatisfied party appeal an initial agency decision?
708.33  What is the procedure for an appeal?
708.34  What is the process for issuing an appeal decision?
708.35  How can a party obtain review by the Secretary of Energy of 
an appeal decision?
708.36  What remedies for retaliation may be ordered in initial and 
final agency decisions?
708.37  Will an employee whose complaint is denied by a final agency 
decision be reimbursed for costs and expenses incurred in pursuing 
the complaint?
708.38  How is a final agency decision implemented?
708.39  Is a decision and order implemented under this part 
considered a claim by the government against a contractor or a 
decision by the contracting officer under sections 6 and 7 of the 
Contract Disputes Act?

    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.

Subpart A--General Provisions


Sec. 708.1  What is the purpose of this part?

    This part provides procedures for processing complaints by 
employees of DOE contractors alleging retaliation by their employers 
for disclosure of information concerning danger to public or worker 
health or safety, substantial violations of law, or gross 
mismanagement; for participation in Congressional proceedings; or for 
refusal to participate in dangerous activities.


Sec. 708.2  What are the definitions of terms used in this part?

    For purposes of this part:
    Contractor means a seller of goods or services who is a party to:
    (1) A management and operating contract or other type of contract 
with DOE to perform work directly related to activities at DOE-owned or 
-leased facilities, or
    (2) A subcontract under a contract of the type described in 
paragraph (1) of this definition, but only with respect to work related 
to activities at DOE-owned or -leased facilities.
    Day means a calendar day.
    Discovery means a process used to enable the parties to learn about 
each other's evidence before a hearing takes place, including oral 
depositions, written interrogatories, requests for admissions, 
inspection of property and requests for production of documents.
    DOE Official means any officer or employee of DOE whose duties 
include program management or the investigation or enforcement of any 
law, rule, or regulation relating to Government contractors or the 
subject matter of a contract.
    EC Director means the Director of the Office of Employee Concerns 
at DOE Headquarters, or any official to whom the Director delegates his 
or her functions under this part.
    Employee means a person employed by a contractor, and any person 
previously employed by a contractor if that person's complaint alleges 
that employment was terminated for conduct described in Sec. 708.5 of 
this subpart.
    Field element means a DOE field-based office that is responsible 
for the management, coordination, and

[[Page 12871]]

administration of operations at a DOE facility.
    Head of Field Element means the manager or head of a DOE operations 
office or field office, or any official to whom those individuals 
delegate their functions under this part.
    Hearing Officer means an individual appointed by the OHA Director 
to conduct a hearing on a complaint filed under this part.
    Management and operating contract means an agreement under which 
DOE contracts for the operation, maintenance, or support of a 
Government-owned or -leased research, development, special production, 
or testing establishment that is wholly or principally devoted to one 
or more of the programs of DOE.
    Mediation means an informal, confidential process in which a 
neutral third person assists the parties in reaching a mutually 
acceptable resolution of their dispute; the neutral third person does 
not render a decision.
    OHA Director means the Director of the Office of Hearings and 
Appeals, or any official to whom the Director delegates his or her 
functions under this part.
    Party means an employee, contractor, or other party named in a 
proceeding under this part.
    Retaliation means an action (including intimidation, threats, 
restraint, coercion or similar action) taken by a contractor against an 
employee with respect to employment (e.g., discharge, demotion, or 
other negative action with respect to the employee's compensation, 
terms, conditions or privileges of employment) as a result of the 
employee's disclosure of information, participation in proceedings, or 
refusal to participate in activities described in Sec. 708.5 of this 
subpart.
    You means the employee who files a complaint under this part, or 
the complainant.


Sec. 708.3  What employee complaints are covered?

    This part applies to a complaint of retaliation filed by an 
employee of a contractor that performs work on behalf of DOE, directly 
related to activities at a DOE-owned or -leased site, if the complaint 
stems from a disclosure, participation, or refusal described in 
Sec. 708.5.


Sec. 708.4  What employee complaints are not covered?

    If you are an employee of a contractor, you may not file a 
complaint against your employer under this part if:
    (a) The complaint is based on race, color, religion, sex, age, 
national origin, or other similar basis; or
    (b) The complaint involves misconduct that you, acting without 
direction from your employer, deliberately caused, or in which you 
knowingly participated; or
    (c) Except as provided in Sec. 708.15(a), the complaint is based on 
the same facts for which you have chosen to pursue a remedy available 
under:
    (1) Department of Labor regulations at 29 CFR part 24, ``Procedures 
for the Handling of Discrimination Complaints under Federal Employee 
Protection Statutes;''
    (2) Federal Acquisition Regulations, 48 CFR part 3, ``Federal 
Acquisition Regulation; Whistleblower Protection for Contractor 
Employees (Ethics);'' or
    (3) State or other applicable law, including final and binding 
grievance-arbitration, as described in Sec. 708.15 of subpart B; or
    (d) The complaint is based on the same facts in which you, in the 
course of a covered disclosure or participation, improperly disclosed 
Restricted Data, national security information, or any other classified 
or sensitive information in violation of any Executive Order, statute, 
or regulation. This part does not override any provision or requirement 
of any regulation pertaining to Restricted Data, national security 
information, or any other classified or sensitive information; or
    (e) The complaint deals with ``terms and conditions of employment'' 
within the meaning of the National Labor Relations Act, except as 
provided in Sec. 708.5.


Sec. 708.5  What employee conduct is protected from retaliation by an 
employer?

    If you are an employee of a contractor, you may file a complaint 
against your employer alleging that you have been subject to 
retaliation for:
    (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 and in good faith believe 
reveals--
    (1) A substantial violation of a law, rule, or regulation;
    (2) A substantial and specific danger to employees or to public 
health or safety; or
    (3) Fraud, gross mismanagement, gross waste of funds, or abuse of 
authority; or
    (b) Participating in a Congressional proceeding or an 
administrative proceeding conducted under this part; or
    (c) Subject to Sec. 708.7 of this subpart, refusing to participate 
in an activity, policy, or practice if you believe participation 
would--
    (1) Constitute a violation of a federal health or safety law; or
    (2) Cause you to have a reasonable fear of serious injury to 
yourself, other employees, or members of the public.


Sec. 708.6  What constitutes ``a reasonable fear of serious injury?''

    Participation in an activity, policy, or practice may cause an 
employee to have a reasonable fear of serious injury that justifies a 
refusal to participate if:
    (a) A reasonable person, under the circumstances that confronted 
the employee, would in good faith 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
    (b) An employee, because of the nature of his or her employment 
responsibilities, does not have the training or skills needed to 
participate safely in the activity or practice.


Sec. 708.7  What must an employee do before filing a complaint based on 
retaliation for refusal to participate?

    You may file a complaint for retaliation for refusing to 
participate in an activity, policy, or practice only if:
    (a) Before refusing to participate in the activity, policy, or 
practice, you asked your employer to correct the violation or remove 
the danger, and your employer refused to take such action; and
    (b) By the 30th day after you refused to participate, you reported 
the violation or dangerous activity, policy, or practice to a DOE 
official, a member of Congress, another government official with 
responsibility for the oversight of the conduct of operations at the 
DOE site, your employer, or any higher tier contractor, and stated your 
reasons for refusing to participate.


Sec. 708.8  Does this part apply to pending cases?

    The procedures in this part apply prospectively in any complaint 
proceeding pending on the effective date of this part.


Sec. 708.9  When is a complaint or other document considered to be 
``filed'' under this part?

    Under this part, a complaint or other document is considered 
``filed'' on the date it is mailed or on the date it is personally 
delivered to the specified official or office.

[[Page 12872]]

Subpart B--Employee Complaint Resolution Process


Sec. 708.10  Where does an employee file a complaint?

    (a) If you were employed by a contractor whose contract is handled 
by a contracting officer located in DOE Headquarters when the alleged 
retaliation occurred, you must file two copies of your written 
complaint with the EC Director.
    (b) If you were employed by a contractor at a DOE field facility or 
site when the alleged retaliation occurred, you must file two copies of 
your written complaint with the Head of Field Element at the DOE field 
element with jurisdiction over the contract.


Sec. 708.11  Will an employee's identity be kept confidential if the 
employee so requests?

    No. The identity of an employee who files a complaint under this 
part appears on the complaint. A copy of the complaint is provided to 
the contractor and it becomes a public document.


Sec. 708.12  What information must an employee include in a complaint?

    Your complaint does not need to be in any specific form but must be 
signed by you and contain the following:
    (a) A statement specifically describing
    (1) The alleged retaliation taken against you and
    (2) The disclosure, participation, or refusal that you believe gave 
rise to the retaliation;
    (b) A statement that you are not currently pursuing a remedy under 
State or other applicable law, as described in Sec. 708.15 of this 
subpart;
    (c) A statement that all of the facts that you have included in 
your complaint are true and correct to the best of your knowledge and 
belief; and
    (d) An affirmation, as described in Sec. 708.13 of this subpart, 
that you have exhausted (completed) all applicable grievance or 
arbitration procedures.


Sec. 708.13  What must an employee do to show that all grievance-
arbitration procedures have been exhausted?

    (a) To show that you have exhausted all applicable grievance-
arbitration procedures, you must:
    (1) State that all available opportunities for resolution through 
an applicable grievance-arbitration procedure have been exhausted, and 
provide the date on which the grievance-arbitration procedure was 
terminated and the reasons for termination; or
    (2) State that you filed a grievance under applicable grievance-
arbitration procedures, but more than 150 days have passed and a final 
decision on it has not been issued, and provide the date that you filed 
your grievance; or
    (3) State that your employer has established no grievance-
arbitration procedures.
    (b) If you do not provide the information specified in 
Sec. 708.13(a), your complaint may be dismissed for lack of 
jurisdiction as provided in Sec. 708.17 of this subpart.


Sec. 708.14  How much time does an employee have to file a complaint?

    (a) You must file your complaint by the 90th day after the date you 
knew, or reasonably should have known, of the alleged retaliation.
    (b) The period for filing a complaint does not include time spent 
attempting to resolve the dispute through an internal company 
grievance-arbitration procedure. The time period for filing stops 
running on the day the internal grievance is filed and begins to run 
again on the earlier of:
    (1) The day after such dispute resolution efforts end; or
    (2) 150 days after the internal grievance was filed if a final 
decision on the grievance has not been issued.
    (c) The period for filing a complaint does not include time spent 
resolving jurisdictional issues related to a complaint you file under 
State or other applicable law. The time period for filing stops running 
on the date the complaint under State or other applicable law is filed 
and begins to run again the day after a final decision on the 
jurisdictional issues is issued.
    (d) If you do not file your complaint during the 90-day period, the 
Head of Field Element or EC Director (as applicable) will give you an 
opportunity to show any good reason you may have for not filing within 
that period, and that official may, in his or her discretion, accept 
your complaint for processing.


Sec. 708.15  What happens if an employee files a complaint under this 
part and also pursues a remedy under State or other law?

    (a) You may not file a complaint under this part if, with respect 
to the same facts, you choose to pursue a remedy under State or other 
applicable law, including final and binding grievance-arbitration 
procedures, unless:
    (1) Your complaint under State or other applicable law is dismissed 
for lack of jurisdiction;
    (2) Your complaint was filed under 48 CFR part 3, Subpart 3.9 and 
the Inspector General, after conducting an initial inquiry, determines 
not to pursue it; or
    (3) You have exhausted grievance-arbitration procedures pursuant to 
Sec. 708.13, and issues related to alleged retaliation for conduct 
protected under Sec. 708.5 remain.
    (b) Pursuing a remedy other than final and binding grievance-
arbitration procedures does not prevent you from filing a complaint 
under this part.
    (c) You are considered to have filed a complaint under State or 
other applicable law if you file a complaint, or other pleading, with 
respect to the same facts in a proceeding established or mandated by 
State or other applicable law, whether you file such complaint before, 
concurrently with, or after you file a complaint under this part.
    (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)(2).


Sec. 708.16  Will a contractor or a labor organization that represents 
an employee be notified of an employee's complaint and be given an 
opportunity to respond with information?

    (a) By the 15th day after receiving your complaint, the Head of 
Field Element or EC Director (as applicable) will provide your employer 
a copy of your complaint. Your employer has 10 days from receipt of 
your complaint to submit any comments it wishes to make regarding the 
allegations in the complaint.
    (b) If you are part of a bargaining unit represented for purposes 
of collective bargaining by a labor organization, the Head of Field 
Element or EC Director (as applicable) will provide your representative 
a copy of your complaint by the 15th day after receiving it. The labor 
organization will be advised that it has 10 days from the receipt of 
your complaint to submit any comments it wishes to make regarding the 
allegations in the complaint.


Sec. 708.17  When may DOE dismiss a complaint for lack of jurisdiction 
or other good cause?

    (a) The Head of Field Element or EC Director (as applicable) may 
dismiss your complaint for lack of jurisdiction or for other good cause 
after receiving your complaint, either on his or her own initiative or 
at the request of a party named in your complaint. Such decisions are 
generally issued by the 15th day after the receipt of your employer's 
comments.
    (b) The Head of Field Element or EC Director (as applicable) will 
notify you by certified mail, return receipt requested, if your 
complaint is dismissed for lack of jurisdiction or other good cause, 
and give you specific

[[Page 12873]]

reasons for the dismissal, and will notify other parties of the 
dismissal.
    (c) Dismissal for lack of jurisdiction or other good cause is 
appropriate if:
    (1) Your complaint is untimely; or
    (2) The facts, as alleged in your complaint, do not present issues 
for which relief can be granted under this part; or
    (3) You filed a complaint under State or other applicable law with 
respect to the same facts as alleged in a complaint under this part; or
    (4) Your complaint is frivolous or without merit on its face; or
    (5) The issues presented in your complaint have been rendered moot 
by subsequent events or substantially resolved; or
    (6) Your employer has made a formal offer to provide the remedy 
that you request in your complaint or a remedy that DOE considers to be 
equivalent to what could be provided as a remedy under this part.


Sec. 708.18  How can an employee appeal dismissal of a complaint for 
lack of jurisdiction or other good cause?

    (a) If your complaint is dismissed by the Head of Field Element or 
EC Director, the administrative process is terminated unless you appeal 
the dismissal to the OHA Director by the 10th day after you receive the 
notice of dismissal as evidenced by a receipt for delivery of certified 
mail.
    (b) If you appeal a dismissal to the OHA Director, you must send 
copies of your appeal to the Head of Field Element or EC Director (as 
applicable) and all parties. Your appeal must include a copy of the 
notice of dismissal, and state the reasons why you think the dismissal 
was erroneous.
    (c) The OHA Director will issue a decision on your appeal and 
notify the parties of the decision by the 30th day after it is 
received.
    (d) The OHA Director's decision, either upholding the dismissal by 
the Head of Field Element or EC Director or ordering further processing 
of your complaint, is the final decision on your appeal, unless a party 
files a petition for Secretarial review by the 30th day after receiving 
the appeal decision.


Sec. 708.19  How can a party obtain review by the Secretary of Energy 
of a decision on appeal of a dismissal?

    (a) By the 30th day after receiving a decision on an appeal under 
Sec. 708.18 from the OHA Director, any party may file a petition for 
Secretarial review of a dismissal with the Office of Hearings and 
Appeals.
    (b) By the 15th day after filing the petition for Secretarial 
review, a party must file a statement setting forth the arguments in 
support of its position. A copy of the statement must be served on the 
other parties, who may file a response by the 20th day after receipt of 
the statement. Any response must also be served on the other parties.
    (c) All submissions permitted under this section must be filed with 
the Office of Hearings and Appeals.
    (d) After a petition for Secretarial review is filed, the Secretary 
(or his or her delegee) will issue the final agency decision on 
jurisdiction over the complaint. The Secretary will reverse or revise 
an appeal decision by the OHA Director only under extraordinary 
circumstances. In the event he or she determines that a revision in the 
appeal decision is appropriate, the Secretary will direct the OHA 
Director to issue an order either upholding the dismissal by the Head 
of Field Element or EC Director or ordering further processing of your 
complaint.


Sec. 708.20  Will DOE encourage the parties to resolve the complaint 
informally?

    (a) Yes. The Head of Field Element or EC Director (as applicable) 
may recommend that the parties attempt to resolve the complaint 
informally, for example, through mediation.
    (b) The period for attempting informal resolution of the complaint 
may not exceed 30 days from the date you filed your complaint, unless 
the parties agree to extend the time.
    (c) The 30-day period permitted for informal resolution of the 
complaint stops running when a request to dismiss your complaint on 
jurisdictional grounds is filed with the Head of Field Element or EC 
Director, and begins to run again on the date the OHA Director returns 
the complaint to the Head of Field Element or EC Director for further 
processing.
    (d) If the parties resolve the complaint informally, the Head of 
Field Element or EC Director (as applicable) must be given a copy of 
the settlement agreement or a written statement from you withdrawing 
the complaint.

Subpart C--Investigation, Hearing and Decision Process


Sec. 708.21  What are the employee's options if the complaint cannot be 
resolved informally?

    (a) If the attempt at informal resolution is not successful, the 
Head of Field Element or EC Director (as applicable) will notify you in 
writing that you have the following options:
    (1) Request that your complaint be referred to the Office of 
Hearings and Appeals for a hearing without an investigation; or
    (2) Request that your complaint be referred to the Office of 
Hearings and Appeals for an investigation followed by a hearing.
    (b) You must notify the Head of Field Element or EC Director (as 
applicable), in writing, by the 20th day after receiving notice of your 
options, whether you request referral of your complaint to the Office 
of Hearings and Appeals for a hearing without an investigation, or an 
investigation followed by a hearing.
    (c) If the Head of Field Element or EC Director does not receive 
your response to the notice of options by the 20th day after your 
receipt of that notice, DOE will consider your complaint withdrawn.
    (d) If you timely request referral to the Office of Hearings and 
Appeals, the Head of Field Element or EC Director (as applicable) will 
forward your complaint to the OHA Director by the 5th day after receipt 
of your request.
    (e) The Head of the Field Element or EC Director (as applicable) 
will notify all parties that the complaint has been referred to the 
Office of Hearings and Appeals, and state whether you have requested a 
hearing without an investigation or requested an investigation followed 
by a hearing.


Sec. 708.22  What process does the Office of Hearings and Appeals use 
to conduct an investigation of the complaint?

    (a) If you request a hearing without an investigation, the OHA 
Director will not initiate an investigation even if another party 
requests one.
    (b) If you request an investigation followed by a hearing, the OHA 
Director will appoint a person from the Office of Hearings and Appeals 
to conduct the investigation. The investigator may not participate or 
advise in the initial or final agency decision on your complaint.
    (c) The investigator will determine the appropriate scope of 
investigation based on the circumstances of the complaint. The 
investigator may enter and inspect places and records; make copies of 
records; interview persons alleged to have been involved in retaliation 
and other employees of the charged contractor who may have relevant 
information; take sworn statements; and require the production of any 
documents or other evidence.
    (d) A contractor must cooperate fully with the investigator by 
making employees and all pertinent evidence available upon request.
    (e) A person being interviewed in an investigation has the right to 
be represented by a person of his or her choosing.

[[Page 12874]]

    (f) Parties to the complaint are not entitled to be present at 
interviews conducted by an investigator.
    (g) If a person other than the complainant requests that his or her 
identity be kept confidential, the investigator may grant 
confidentiality, but must advise such person that confidentiality means 
that the Office of Hearings and Appeals will not identify the person as 
a source of information to anyone outside the Office of Hearings and 
Appeals, except as required by statute or other law, or as determined 
by the OHA Director to be unavoidable.


Sec. 708.23  How does the Office of Hearings and Appeals issue a report 
of investigation?

    (a) The investigator will complete the investigation and issue a 
report of investigation by the 60th day after the complaint is received 
by the Office of Hearings and Appeals, unless the OHA Director, for 
good cause, extends the investigation for no more than 30 days.
    (b) The investigator will provide copies of the report of 
investigation to the parties. The investigation will not be reopened 
after the report of investigation is issued.
    (c) If the parties informally resolve the complaint (e.g., through 
mediation) after an investigation is started, you must notify the OHA 
Director in writing of your decision to withdraw the complaint.


Sec. 708.24  Will there always be a hearing after a report of 
investigation is issued?

    (a) No. An employee may withdraw a hearing request after the report 
of investigation is issued. However, the hearing may be canceled only 
if all parties agree that they do not want a hearing.
    (b) If the hearing is canceled, the Hearing Officer will issue an 
initial agency decision pursuant to Sec. 708.31 of this subpart.


Sec. 708.25  Who will conduct the hearing?

    (a) The OHA Director will appoint a Hearing Officer from the Office 
of Hearings and Appeals to conduct a hearing.
    (b) The Hearing Officer may not be subject to the supervision or 
direction of the investigator.


Sec. 708.26  When and where will the hearing be held?

    (a) The Hearing Officer will schedule a hearing to be held by the 
90th day after receipt of the complaint, or issuance of the report of 
investigation, whichever is later. Any extension of the hearing date 
must be approved by the OHA Director.
    (b) The Hearing Officer will schedule the hearing for a location 
near the site where the alleged retaliation occurred or your place of 
employment, or at another location that is appropriate considering the 
circumstances of a particular case.


Sec. 708.27  May the Hearing Officer recommend mediation to the 
parties?

    The Hearing Officer may recommend, but may not require, that the 
parties attempt to resolve the complaint through mediation or other 
informal means at any time before issuance of an initial agency 
decision on the complaint.


Sec. 708.28  What procedures govern a hearing conducted by the Office 
of Hearings and Appeals?

    (a) In all hearings under this part:
    (1) The parties have the right to be represented by a person of 
their choosing or to proceed without representation. The parties are 
responsible for producing witnesses in their behalf, including 
requesting the issuance of subpoenas, if necessary;
    (2) Testimony of witnesses is given under oath or affirmation, and 
witnesses must be advised of the applicability of 18 U.S.C. 1001 and 
1621, dealing with the criminal penalties associated with false 
statements and perjury;
    (3) Witnesses are subject to cross-examination;
    (4) Formal rules of evidence do not apply, but OHA may use the 
Federal Rules of Evidence as a guide; and
    (5) A court reporter will make a transcript of the hearing.
    (b) The Hearing Officer has all powers necessary to regulate the 
conduct of proceedings:
    (1) The Hearing Officer may order discovery at the request of a 
party, based on a showing that the requested discovery is designed to 
produce evidence regarding a matter, not privileged, that is relevant 
to the subject matter of the complaint;
    (2) The Hearing Officer may permit parties to obtain discovery by 
any appropriate method, including deposition upon oral examination or 
written questions; written interrogatories; production of documents or 
things; permission to enter upon land or other property for inspection 
and other purposes; and requests for admission;
    (3) The Hearing Officer may issue subpoenas for the appearance of 
witnesses on behalf of either party, or for the production of specific 
documents or other physical evidence;
    (4) The Hearing Officer may rule on objections to the presentation 
of evidence; exclude evidence that is immaterial, irrelevant, or unduly 
repetitious; require the advance submission of documents offered as 
evidence; dispose of procedural requests; grant extensions of time; 
determine the format of the hearing; direct that written motions, 
documents, or briefs be filed with respect to issues raised during the 
course of the hearing; ask questions of witnesses; direct that 
documentary evidence be served upon other parties (under protective 
order if such evidence is deemed confidential); and otherwise regulate 
the conduct of the hearing;
    (5) The Hearing Officer may, at the request of a party or on his or 
her own initiative, dismiss a claim, defense, or party and make adverse 
findings upon the failure of a party or the party's representative to 
comply with a lawful order of the Hearing Officer, or, without good 
cause, to attend a hearing;
    (6) The Hearing Officer, upon request of a party, may allow the 
parties a reasonable time to file pre-hearing briefs or written 
statements with respect to material issues of fact or law. Any pre-
hearing submission must be limited to the issues specified and filed 
within the time prescribed by the Hearing Officer.
    (7) The parties are entitled to make oral closing arguments, but 
post-hearing submissions are only permitted by direction of the Hearing 
Officer.
    (8) Parties allowed to file written submissions must serve copies 
upon the other parties within the time prescribed by the Hearing 
Officer.
    (9) The Hearing Officer is prohibited, beginning with his or her 
appointment and until a final agency decision is issued, from 
initiating or otherwise engaging in ex parte (private) discussions with 
any party on the merits of the complaint.


Sec. 708.29  What must the parties to a complaint prove?

    The employee who files a complaint has the burden of establishing 
by a preponderance of the evidence that he or she made a disclosure, 
participated in a proceeding, or refused to participate, as described 
under Sec. 708.5, and that such act was a contributing factor in one or 
more alleged acts of retaliation against the employee by the 
contractor. Once the employee has met this burden, the burden shifts to 
the contractor to prove by clear and convincing evidence that it would 
have taken the same action without the employee's disclosure, 
participation, or refusal.


Sec. 708.30  What process does the Hearing Officer follow to issue an 
initial agency decision?

    (a) The Hearing Officer will issue an initial agency decision on 
your

[[Page 12875]]

complaint by the 60th day after the later of:
    (1) The date the Hearing Officer approves the parties' agreement to 
cancel the hearing;
    (2) The date the Hearing Officer receives the transcript of the 
hearing; or
    (3) The date the Hearing Officer receives post-hearing submissions 
permitted under Sec. 708.28(b)(7) of this subpart.
    (b) The Hearing Officer will serve the initial agency decision on 
all parties.
    (c) An initial agency decision issued by the Hearing Officer will 
contain appropriate findings, conclusions, an order, and the factual 
basis for each finding, whether or not a hearing has been held on the 
complaint. In making such findings, the Hearing Officer may rely upon, 
but is not bound by, the report of investigation.
    (d) If the Hearing Officer determines that an act of retaliation 
has occurred, the initial agency decision will include an order for any 
form of relief permitted under Sec. 708.36.
    (e) If the Hearing Officer determines that an act of retaliation 
has not occurred, the initial agency decision will state that the 
complaint is denied.


Sec. 708.31  If no hearing is conducted, what is the process for 
issuing an initial agency decision?

    (a) If no party wants a hearing after the issuance of a report of 
investigation, the Hearing Officer will issue an initial agency 
decision by the 60th day after the hearing is canceled pursuant to 
Sec. 708.24. The standards in Sec. 708.30, governing the issuance of an 
initial agency decision, apply whether or not a hearing has been held 
on the complaint.
    (b) The Hearing Officer will serve the initial agency decision on 
all parties.


Sec. 708.32   Can a dissatisfied party appeal an initial agency 
decision?

    (a) Yes. By the 15th day after receiving an initial agency decision 
from the Hearing Officer, any party may file a notice of appeal with 
the OHA Director requesting review of the initial agency decision.
    (b) A party who appeals an initial agency decision (the appellant) 
must serve a copy of the notice of appeal on all other parties.
    (c) A party who receives an initial agency decision by a Hearing 
Officer has not exhausted its administrative remedies until an appeal 
has been filed with the OHA Director and a decision granting or denying 
the appeal has been issued.


Sec. 708.33  What is the procedure for an appeal?

    (a) By the 15th day after filing a notice of appeal under 
Sec. 708.32, the appellant must file a statement identifying the issues 
that it wishes the OHA Director to review. A copy of the statement must 
be served on the other parties, who may file a response by the 20th day 
after receipt of the statement. Any response must also be served on the 
other parties.
    (b) In considering the appeal, the OHA Director:
    (1) May initiate an investigation of any statement contained in the 
request for review and utilize any relevant facts obtained by such 
investigation in conducting the review of the initial agency decision;
    (2) May solicit and accept submissions from any party that are 
relevant to the review. The OHA Director may establish appropriate 
times to allow for such submissions;
    (3) May consider any other source of information that will advance 
the evaluation, provided that all parties are given an opportunity to 
respond to all third person submissions; and
    (4) Will close the record on appeal after receiving the last 
submission permitted under this section.


Sec. 708.34   What is the process for issuing an appeal decision?

    (a) If there is no appeal of an initial agency decision, and the 
time for filing an appeal has passed, the initial agency decision 
becomes the final agency decision.
    (b) If there is an appeal of an initial agency decision, the OHA 
Director will issue an appeal decision based on the record of 
proceedings by the 60th day after the record is closed.
    (1) An appeal decision issued by the OHA Director will contain 
appropriate findings, conclusions, an order, and the factual basis for 
each finding, whether or not a hearing has been held on the complaint. 
In making such findings, the OHA Director may rely upon, but is not 
bound by, the report of investigation and the initial agency decision.
    (2) If the OHA Director determines that an act of retaliation has 
occurred, the appeal decision will include an order for any form of 
relief permitted under Sec. 708.36.
    (3) If the OHA Director determines that the contractor charged has 
not committed an act of retaliation, the appeal decision will deny the 
complaint.
    (c) The OHA Director will send an appeal decision to all parties 
and to the Head of Field Element or EC Director having jurisdiction 
over the contract under which you were employed when the alleged 
retaliation occurred.
    (d) The appeal decision issued by the OHA Director is the final 
agency decision unless a party files a petition for Secretarial review 
by the 30th day after receiving the appeal decision.


Sec. 708.35  How can a party obtain review by the Secretary of Energy 
of an appeal decision?

    (a) By the 30th day after receiving an appeal decision from the OHA 
Director, any party may file a petition for Secretarial review with the 
Office of Hearings and Appeals.
    (b) By the 15th day after filing a petition for Secretarial review, 
the petitioner must file a statement identifying the issues that it 
wishes the Secretary to consider. A copy of the statement must be 
served on the other parties, who may file a response by the 20th day 
after receipt of the statement. Any response must also be served on the 
other parties.
    (c) All submissions permitted under this section must be filed with 
the Office of Hearings and Appeals.
    (d) After a petition for Secretarial review is filed, the Secretary 
(or his or her delegee) will issue the final agency decision on the 
complaint. The Secretary will reverse or revise an appeal decision by 
the OHA Director only under extraordinary circumstances. In the event 
the Secretary determines that a revision in the appeal decision is 
appropriate, the Secretary will direct the OHA Director to issue a 
revised decision which is the final agency action on the complaint.


Sec. 708.36  What remedies for retaliation may be ordered in initial 
and final agency decisions?

    (a) General remedies. If the initial or final agency decision 
determines that an act of retaliation has occurred, it may order:
    (1) Reinstatement;
    (2) Transfer preference;
    (3) Back pay;
    (4) Reimbursement of your reasonable costs and expenses, including 
attorney and expert-witness fees reasonably incurred to prepare for and 
participate in proceedings leading to the initial or final agency 
decision; or
    (5) Such other remedies as are deemed necessary to abate the 
violation and provide you with relief.
    (b) Interim relief. If an initial agency decision contains a 
determination that an act of retaliation occurred, the decision may 
order the contractor to provide you with appropriate interim relief 
(including reinstatement) pending the outcome of any request for review 
of the decision by the OHA Director. Such interim relief will not 
include payment of any money.

[[Page 12876]]

Sec. 708.37  Will an employee whose complaint is denied by a final 
agency decision be reimbursed for costs and expenses incurred in 
pursuing the complaint?

    No. If your complaint is denied by a final agency decision, you may 
not be reimbursed for the costs and expenses you incurred in pursuing 
the complaint.


Sec. 708.38  How is a final agency decision implemented?

    (a) The Head of Field Element having jurisdiction over the contract 
under which you were employed when the alleged retaliation occurred, or 
EC Director, will implement a final agency decision by forwarding the 
decision and order to the contractor, or subcontractor, involved.
    (b) A contractor's failure or refusal to comply with a final agency 
decision and order under this regulation may result in a contracting 
officer's decision to disallow certain costs or terminate the contract 
for default. In the event of a contracting officer's decision to 
disallow costs or terminate a contract for default, the contractor may 
file a claim under the disputes procedures of the contract.


Sec. 708.39   Is a decision and order implemented under this regulation 
considered a claim by the government against a contractor or a decision 
by the contracting officer under sections 6 and 7 of the Contract 
Disputes Act?

    No. A final agency decision and order issued pursuant to this 
regulation is not considered a claim by the government against a 
contractor or ``a decision by the contracting officer'' under sections 
6 and 7 of the Contract Disputes Act (41 U.S.C. 605 and 606).

Title 48

PART 913--SIMPLIFIED ACQUISITION PROCEDURES

    2-3. The authority citation for Parts 913 and 922 continues to read 
as follows:

    Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).

Sec. 913.507  [Removed]

    4. Remove section 913.507.

PART 922--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITION

    5. Section 922.7101 is revised to read as follows:


Sec. 922.7101  Clause.

    The contracting officer shall insert the clause at 970.5204-59, 
Whistleblower Protection for Contractor Employees, in contracts other 
than management and operating contracts that involve work to be done on 
behalf of DOE directly related to activities at DOE-owned or -leased 
sites.

PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS

    6. The authority citation for part 970 continues to read as 
follows:

    Authority: Sec. 161 of the Atomic Energy Act of 1954 (42 U.S.C. 
2201), sec. 644 of the Department of Energy Organization Act, Public 
Law 95-91 (42 U.S.C. 7254).

    7. In section 970.2274-1, remove the last sentence of introductory 
paragraph (a), and remove paragraphs (a)(1) through (a)(3); revise 
paragraphs (b) and (c) as set forth below, and revise the reference in 
paragraph (d) to ``10 CFR 708.12(b)'' to read ``Part 708''.


Sec. 970.2274-1  General.

* * * * *
    (b) Contractors found to have retaliated against an employee in 
reprisal for such disclosure, participation or refusal are required to 
provide relief in accordance with decisions issued under 10 CFR part 
708.
    (c) Part 708 is applicable to employees of contractors, and 
subcontractors, performing work on behalf of DOE directly related to 
DOE-owned or -leased facilities.
* * * * *
    8. Section 970.5204-59 is revised to read as follows:


Sec. 970.5204-59  Whistleblower protection for contractor employees.

    As prescribed in 970.2274-2, insert the following clause in 
management and operating contracts. As prescribed in 922.7101, insert 
the following clause in contracts that are not management and operating 
contracts involving work performed on behalf of DOE directly related to 
activities at DOE-owned or -leased sites.

Whistleblower Protection for Contractor Employees (APR 1999)

    (a) The contractor shall comply with the requirements of ``DOE 
Contractor Employee Protection Program'' at 10 CFR part 708 for work 
performed on behalf of DOE directly related to activities at DOE-
owned or -leased sites.
    (b) The contractor shall insert or have inserted the substance 
of this clause, including this paragraph (b), in subcontracts at all 
tiers, for subcontracts involving work performed on behalf of DOE 
directly related to activities at DOE-owned or -leased sites.

[FR Doc. 99-5876 Filed 3-12-99; 8:45 am]
BILLING CODE 6450-01-P