[Federal Register Volume 64, Number 132 (Monday, July 12, 1999)]
[Rules and Regulations]
[Pages 37396-37397]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17658]



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DEPARTMENT OF ENERGY

10 CFR Part 708

RIN 1901-AA78


Criteria and Procedures for DOE Contractor Employee Protection 
Program

AGENCY: Office of Hearings and Appeals, Department of Energy

ACTION: Interim final rule; amendment.

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SUMMARY: The Department of Energy (DOE) amends its DOE contractor 
employee protection program regulations to include three provisions 
inadvertently omitted in an interim final rule published on March 15, 
1999.

DATES: This interim final rule is effective August 11, 1999.

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

SUPPLEMENTARY INFORMATION:

I. Introduction

    On March 15, 1999, DOE published an interim final rule in the 
Federal Register (64 FR 12862) that comprehensively revised the 
regulations for the DOE contractor employee protection program, which 
are codified at 10 CFR Part 708. DOE became aware during the comment 
period on the interim final rule that three provisions in the original 
Part 708 had been inadvertently omitted from the interim final rule. 
These provisions (10 CFR 708.13, 708.14, and 708.15) were not within 
the scope of the Notice of Proposed Rulemaking published on January 5, 
1998. See 63 FR 374, 375 (statement that those provisions would not be 
affected by the rulemaking). This interim final rule amendment restores 
these provisions. It also renumbers them and makes non-substantive 
language changes to conform the provisions to the ``plain language'' 
format used in the interim final rule published on March 15, 1999. In 
addition, Sec. 708.42 (formerly Sec. 708.15) permits the Secretary of 
Energy or Secretary's designee, to extend any deadlines established by 
Part 708, and permits the Director of the Office of Hearings and 
Appeals (OHA Director) to approve the extension of any deadline under 
Sec. 708.22 through Sec. 708.34 of this subpart (relating to the 
investigation, hearing, and OHA appeal process).

II. Public Comment

    DOE ordinarily invites public participation in rulemaking through 
submission of written comments and attendance at a public hearing. 
However, DOE has concluded that an opportunity for public comment on 
this interim final rule is unnecessary and would not be in the public 
interest. DOE received no public comment on the statement in the 
January 5, 1998, NOPR announcing that no changes were proposed for the 
three provisions that are the subject of this rulemaking. Except for 
one change, this rule corrects the inadvertent omission of the 
provisions in the program regulations published on March 15, 1999. The 
new feature added by this rule is the grant of authority to the OHA 
Director to extend any deadlines applicable to the investigation, 
hearing and OHA appeal process. This change is procedural and, thus, 
exempt from notice and comment requirements of the Administrative 
Procedure Act (5 U.S.C. 553(b)). In any event, the change expands the 
procedural opportunities available to affected parties. Because the 
rule does not adversely affect the rights of members of the public, no 
purpose would be served by a public comment opportunity.

III. Regulatory and Procedural Requirements

A. Review Under Executive Order 12866

    Today's regulatory action has been determined not to be ``a 
significant regulatory action'' under Executive Order 12866, 
``Regulatory Planning and Review'' (58 FR 51735, October 4, 1993). 
Accordingly, this action was not subject to review under that Executive 
Order by the Office of Information and Regulatory Affairs of the Office 
of Management and Budget (OMB).

B. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform'' (61 FR 4729, February 7, 1996) imposes on 
Executive agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. With regard to the review 
required by section 3(a), section 3(b) of Executive Order 12988 
specifically requires that Executive agencies make every reasonable 
effort to ensure that the regulation: (1) Clearly specifies the 
preemptive effect , if any; (2) clearly specifies any effect on 
existing federal law or regulation; (3) provides a clear legal standard 
for affected conduct while promoting simplification and burden 
reduction; (4) specifies the retroactive effect, if any; (5) adequately 
defines key terms; and (6) addresses other important issues affecting 
clarity and general draftsmanship under any guidelines issued by the 
Attorney General. Section 3(c) of Executive Order 12988 requires 
Executive agencies to review regulations in light of applicable 
standards in section 3(a) and section 3(b) to determine whether they 
are met or it is unreasonable to meet one or more of them. DOE has 
completed the required review and determined that, to the extent 
permitted by law, this proposed rule meets the relevant standards of 
Executive Order 12988.

C. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. As discussed 
in the Public Comment section of this notice, neither the 
Administrative Procedure Act (5 U.S.C. 553) nor any other law requires 
DOE to propose this rule for public comment. Accordingly, DOE did not 
prepare a regulatory flexibility analysis for this rule.

D. Review Under the Paperwork Reduction Act

    No new collection of information is imposed by this interim final 
rule. Accordingly, no clearance by the Office of Management and Budget 
is required under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

E. Review Under the National Environmental Policy Act

    DOE has concluded that promulgation of this rule falls into a class 
of actions that would not individually or cumulatively have a 
significant impact on the human environment, as determined by DOE's 
regulations implementing the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.). Specifically, this rule deals only with 
administrative procedures regarding retaliation protection for 
employees of DOE contractors and subcontractors, and, therefore, is 
covered under the Categorical Exclusion in paragraph A6

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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, ``Federalism'' (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 substantial effects, the 
Executive Order requires the preparation of a federalism assessment to 
be used in all decisions involved in promulgating and implementing the 
policy action. DOE has analyzed this rulemaking in accordance with the 
principles and criteria contained in Executive Order 12612, and has 
determined there are no federalism implications that would warrant the 
preparation of a federalism assessment. Today's interim final rule 
deals with administrative procedures regarding retaliation protection 
for employees of DOE contractors and subcontractors. This rule will not 
have a substantial direct effect on states, the relationship between 
the states and federal government, or the distribution of power and 
responsibilities among various levels of government.

G. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each federal agency to prepare a written assessment of the 
effects of any federal mandate in a proposed or final rule that may 
result in the expenditure by state, local, and tribal governments, in 
the aggregate, or by the private sector, of $100 million in any one 
year. The Act also requires a federal agency to develop an effective 
process to permit timely input by elected officers of state, local, and 
tribal governments on a proposed ``significant intergovernmental 
mandate,'' and it requires an agency to develop a plan for giving 
notice and opportunity for timely input to potentially affected small 
governments before establishing any requirement that might 
significantly or uniquely affect them. This interim final rule does not 
contain any federal mandate, so these requirements do not apply.

H. Congressional Notification

    As required by 5 U.S.C. 801, DOE will submit to Congress a report 
regarding the issuance of today's interim final rule prior to the 
effective date set forth at the outset of this notice. The report will 
state that it has been determined that the rule is not a ``major rule'' 
as defined by 5 U.S.C. 801(2).

List of Subjects in 10 CFR Part 708

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

    Issued in Washington, on July 6, 1999.
George B. Breznay,
Director, Office of Hearings and Appeals.

    For the reasons set forth in the preamble, Chapter III of title 10 
of the Code of Federal Regulations is amended as set forth below:

PART 708--[AMENDED]

    1. The authority citation for Part 708 continues to read as 
follows:

    Authority: 42 U.S.C. 2201(b), 2201(c), 2201(i) and 2201(p); 42 
U.S.C. 5814 and 5815; 42 U.S.C. 7251, 7254, 7255, and 7256; and 5 
U.S.C. Appendix 3.

    2. Part 708 is amended by adding Sec. 708.40 to subpart C to read 
as follows:


Sec. 708.40  Are contractors required to inform their employees about 
this program?

    Yes. Contractors who are covered by this part must inform their 
employees about these regulations by posting notices in conspicuous 
places at the work site. These notices must include the name and 
address of the DOE office where you can file a complaint under this 
part.
    3. Part 708 is amended by adding Sec. 708.41 to subpart C to read 
as follows:


Sec. 708.41  Will DOE ever refer a complaint filed under this part to 
another agency for investigation and a decision?

    Notwithstanding the provisions of this part, the Secretary of 
Energy retains the right to request that a complaint filed under this 
part be accepted by another Federal agency for investigation and 
factual determinations.
    4. Part 708 is amended by adding Sec. 708.42 to subpart C to read 
as follows:


Sec. 708.42  May the deadlines established by this part be extended by 
any DOE official?

    Yes. The Secretary of Energy (or the Secretary's designee) may 
approve the extension of any deadline established by this part, and the 
OHA Director may approve the extension of any deadline under 
Sec. 708.22 through Sec. 708.34 of this subpart (relating to the 
investigation, hearing, and OHA appeal process).

[FR Doc. 99-17658 Filed 7-9-99; 8:45 am]
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