[Federal Register Volume 65, Number 56 (Wednesday, March 22, 2000)]
[Rules and Regulations]
[Pages 15218-15221]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-6916]


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DEPARTMENT OF ENERGY

10 CFR Part 820


Procedural Rules for DOE Nuclear Activities; General Statement of 
Enforcement Policy

AGENCY: Department of Energy.

ACTION: Final rule; amendment of enforcement policy statement and 
confirmation of interim rule.

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SUMMARY: The Department of Energy (DOE) is amending its General 
Statement of Enforcement Policy, which is in an Appendix to the 
Procedural Rules for DOE Nuclear Activities, to state that DOE may use 
information collected by DOE and the Department of Labor (DOL) 
concerning whistleblower proceedings as a basis for enforcement actions 
and civil penalties under the Procedural Rules for DOE Nuclear 
Activities if the retaliation against DOE contractor employees relates 
to matters of nuclear safety in connection with a DOE nuclear activity. 
DOE also confirms the interim amendments to the enforcement policy 
statement published October 8, 1997.

DATES: This amended Policy and confirmation of the interim rule 
published October 8, 1997 as final takes effect on April 21, 2000.

FOR FURTHER INFORMATION CONTACT:
Keith Christopher, U. S. Department of Energy, Office of Investigation 
and Enforcement, EH-10, 19901 Germantown Road, Germantown, MD 20874 
(301) 903-0100.
Ben McRae, U. S. Department of Energy, Office of General Counsel, GC-
52, 1000 Independence Avenue, SW, Washington, DC 20585 (202) 586-6975.

SUPPLEMENTARY INFORMATION:

    I. Background
    II. Basis for Amendment of Enforcement Policy
    III. Procedural Requirements
    A. Review Under Executive Order 12866
    B. Review Under the Regulatory Flexibility Act
    C. Review Under the Paperwork Reduction Act
    D. Review Under the National Environmental Policy Act
    E. Review Under Executive Order 13132
    F. Review Under Executive Order 12988
    G. Review Under the Unfunded Mandates Reform Act of 1995
    H. Congressional Notification

I. Background

    The Department of Energy (DOE) has adopted procedural rules in 10 
CFR part 820 (Part 820) to provide for the enforcement of violations of 
DOE Nuclear Safety Requirements for which civil and criminal penalties 
can be imposed under the Price-Anderson Amendments Act of 1988 (Pub. L. 
100-408, August 20, 1988) (PAAA). 56 FR 64290 (proposed Dec. 9, 1991), 
58 FR 43680 (final Aug. 17, 1993). Appended to the rule is a General 
Statement of Enforcement Policy (Enforcement Policy). The Enforcement 
Policy sets forth the general framework through which DOE would seek to 
enforce compliance with DOE's nuclear safety rules, regulations and 
orders by a DOE contractor, subcontractor, or a supplier (hereinafter 
referred to collectively as ``contractor''). Following that 
promulgation, DOE amended the Enforcement Policy with an opportunity 
for comment. 62 FR 52479 (Oct. 8, 1997). No comments were received and 
the amendments are made final today.
    DOE's whistleblower regulations, 10 CFR part 708 (Department of 
Energy Contractor Employee Protection Program) (Part 708), establish 
requirements prohibiting retaliation against DOE contractor employees 
who have undertaken certain whistleblower actions. DOE's Office of 
Hearings and Appeals (OHA) has responsibility for resolution of 
whistleblower complaints under Part 708. The regulations provide 
criteria and procedures to protect employees of DOE contractors who 
believe they have suffered retaliation for disclosing information 
concerning danger to public health or safety, substantial violations of 
law, fraud or gross mismanagement; for participating in congressional 
proceedings; or for refusing to participate in dangerous activities. If 
an act of retaliation has occurred, OHA may order reinstatement, 
transfer preference, back pay, reimbursements of costs and expenses, or 
other remedies necessary to abate the violation. 10 CFR part 708, 57 FR 
7533 (final March 3,1992), 61 FR 55230 (notice Oct. 25, 1996), 64 FR 
12862 (interim final March 15, 1999), 64 FR 37396 (interim final rule 
and amendment July 12, 1999), 65 FR 6314 (final Feb. 9, 2000), 65 FR 
9201 (correction Feb. 24, 2000).
    In late 1992, Congress amended the Energy Reorganization Act, 42 
U.S.C. 5801, et seq. (ERA), to prohibit any employer, including a DOE 
contractor indemnified under section 170.d. of the Atomic Energy Act of 
1954, as amended, 42 U.S.C. 2011, et seq. (AEA), from discriminating 
against any employee with respect to his or her compensation, terms, 
conditions or privileges of employment because the employee assisted or 
participated, or is about to assist or participate in any manner, in 
any action to carry out the purposes of the ERA or the AEA. 42 U.S.C. 
5851 (ERA Sec. 211). The Department of Labor (DOL) has the 
responsibility under Sec. 211 to investigate employee complaints of 
discrimination and may, after an investigation and opportunity for 
hearing, order a violator to take affirmative action to abate the 
violation, reinstate the complainant to his or her

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former position with back pay, and award compensatory damages, 
including attorney fees. 29 CFR part 24, 59 FR 12506 (proposed March 
16, 1994), 63 FR 6614 (final Feb. 9, 1998).
    Before Part 820 was finalized and before Sec. 211 of the ERA was 
enacted, DOE published a Notice of Clarification (Clarification) of 
proposed Part 820 to clarify the intended scope of the proposed 
definition of ``DOE Nuclear Safety Requirements'' as a basis for civil 
penalties, and to clarify the relationship between proposed Part 820 
and Part 708. 57 FR 20796 (May 15, 1992). This Clarification 
established that the regulations prohibiting contractor retaliation in 
Part 708 could constitute DOE Nuclear Safety Requirements if the 
retaliation resulted from the employee's involvement in matters of 
nuclear safety in connection with a DOE nuclear activity. Such 
retaliation against DOE contractor employees would, therefore, be 
subject to the investigatory and adjudicatory procedures of Part 820, 
and could lead to the imposition of civil penalties under Part 820.

II. Basis for Amendment of Enforcement Policy

    DOE's 1992 Clarification indicated that the provisions of the DOE 
whistleblower rule in Part 708 could constitute DOE Nuclear Safety 
Requirements. DOE imposed an affirmative duty on DOE contractors to 
protect the public, workers, and the environment in matters of nuclear 
safety relating to DOE nuclear activities by subjecting the contractors 
to enforcement for retaliation against contractor employees. In 
particular, if DOE found that a contractor retaliated in response to a 
worker raising or disclosing legitimate nuclear safety-related 
information or concerns, the Clarification stated that a violation of 
Part 820 could exist. 57 FR at 20797, 58 FR at 43681.
    Any deterrent to the flow of that information can potentially 
constitute a violation of DOE Nuclear Safety Requirements that are 
imposed through the DOE whistleblower protection provisions. This is 
consistent with the NRC enforcement policy, which subjects licensees to 
possible civil penalties if they discriminate against employees raising 
safety issues or otherwise engaging in protected whistleblower 
activities under the ERA or the AEA. See, e.g., 10 CFR 50.7, 58 FR 
52410 (Oct. 8, 1993), 60 FR 24551 (amended May 9, 1995), 61 FR 6765 
(amended Feb. 22, 1996).
    When DOE put its contractors on notice in 1992 that a violation of 
the whistleblower provisions of Part 708 could result in civil 
penalties, the DOL whistleblower proceedings were not an alternative to 
Part 708. Accordingly, the Clarification did not indicate that 
information collected by DOL in a whistleblower proceeding could be 
used as the basis for issuance of a Preliminary Notice of Violation 
(PNOV) by DOE. Based on experience with DOL proceedings since the 
Clarification, DOE believes that DOL proceedings serve the same 
function as a Part 708 proceeding in determining whether a contractor 
has retaliated against an employee.
    DOE is therefore amending the General Statement of Enforcement 
Policy appended to Part 820 to provide that the Director of the Office 
of Investigation and Enforcement (Director) may use information that 
DOL collects in a Sec. 211 proceeding as a basis for enforcement action 
under Part 820. Specifically, the Director may use this information as 
the basis for initiating enforcement action by issuing a PNOV. In 
determining whether to initiate action under Part 820 with respect to 
an alleged retaliation, the Director would review the report of the 
investigation, the adjudicative record, and any other relevant material 
associated with the proceeding to determine if an adequate basis exists 
to issue a PNOV.
    The Director may also use DOL information to support the 
determination that a contractor has violated or is continuing to 
violate the nuclear safety requirements against contractor retaliation 
and to issue civil penalties or other appropriate remedy in a Final 
Notice of Violation (FNOV). 10 CFR 820.24-820.25.
    The Director will have discretion to give appropriate weight to 
information collected in DOL and in OHA investigations and proceedings. 
In deciding whether additional investigation or information is needed, 
the Director will consider the extent to which the facts in the 
proceedings have been adjudicated as well as any information presented 
by the contractor.
    DOE has a policy of encouraging its contractors to cooperate in 
resolving whistleblower complaints raised by contractor employees. 
Accordingly, in deciding whether to initiate an enforcement action, the 
Director will take into account the extent to which a contractor 
cooperated in a Part 708 or Sec. 211 proceeding, and, in particular, 
whether the contractor resolved the matter promptly without the need 
for an adjudication proceeding.
    In considering whether to initiate an enforcement action and, if 
so, what remedy is appropriate, the Director will also consider the 
egregiousness of the particular case including the level of management 
involved in the alleged retaliation and the specificity of the acts of 
retaliation.
    Normally, the Director will await the completion of the DOL or OHA 
investigation and related deliberative processes before deciding 
whether to take any enforcement action in order to avoid duplication of 
investigative effort. A Part 708 or Sec. 211 proceeding would be 
considered completed when there is either a final decision or a 
settlement of the retaliation complaint, or no additional 
administrative action is available. In egregious cases outlined in the 
Clarification and included in paragraph 7 of Section XIII, DOE may 
initiate an investigation and bring an enforcement action before the 
other proceedings are completed.
    It should be noted, however, that any enforcement action in which 
the Director cites a violation of the whistleblower regulations is 
separate and distinct from violations arising from the substantive 
nuclear safety rules in 10 CFR part 830 (nuclear safety management), 10 
CFR part 835 (occupational radiation protection), and 10 CFR 820.11 
(information accuracy requirements). The Director may begin 
investigations of noncompliances of these nuclear safety rules at any 
time based on the underlying nuclear safety concerns raised by the 
employee regardless of the status of any related whistleblower 
retaliation proceedings.

III. 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, Oct. 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 the Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (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 will not have a ``significant economic 
impact on a substantial number of small entities.'' DOE is not required 
by the Administrative Procedures Act (5 U.S.C. 553) or any other law to 
propose this policy statement for public comment. Accordingly, the 
Regulatory Flexibility Act requirements do not apply to this

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rulemaking, and no regulatory flexibility analysis has been prepared.

C. Review Under the Paperwork Reduction Act

    No additional information or record keeping requirements are 
imposed by this policy statement. Accordingly, no OMB clearance is 
required under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

D. Review Under the National Environmental Policy Act

    The Department determined that this policy statement is not a major 
federal action significantly affecting the quality of the human 
environment within the meaning of the National Environmental Policy Act 
(NEPA), 42 U.S.C. 4321 et seq., and does not require preparation of an 
environmental impact statement or an environmental assessment. This 
policy statement amendment clarifies that DOE may use information 
generated in certain whistleblower proceedings involving DOE contractor 
employees as the basis for enforcement under procedures applicable to 
DOE Nuclear Safety Requirements. This action is covered under the 
Categorical Exclusion found at paragraph A.5. of Appendix A to Subpart 
D, 10 CFR part 1021, which applies to rulemakings that do not change 
the environmental effect of the rule being amended.

E. Review Under Executive Order 13132

    Executive Order 13132 (64 FR 43255, Aug. 10, 1999) requires 
agencies to develop an accountable process to ensure meaningful and 
timely input by State and local officials in the development of 
regulatory policies that have federalism implications. ``Policies that 
have federalism implications'' is defined in the Executive Order to 
include regulations that have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. This amendment of DOE's enforcement policy would 
not have a substantial direct effect on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government. 
No further action is required by Executive Order 13132.

F. 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, 
this policy statement meets the relevant standards of Executive Order 
12988.

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 
before establishing any requirements that might significantly or 
uniquely affect small governments. DOE's intergovernmental consultation 
process under the Unfunded Mandates Reform Act of 1995 is described in 
a statement of policy published by the Office of General Counsel on 
March 18, 1997 (62 FR 12820). The policy statement amendment 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 this policy statement amendment prior to its effective 
date. The report will state that it has been determined that the 
amendment is not a ``major rule'' as defined by 5 U.S.C. 804(2).

List of Subjects 10 CFR Part 820

    Government contracts, Nuclear safety, Whistleblowing

    Issued in Washington, DC, on March 14, 2000.
David Michaels,
Assistant Secretary for Environment, Safety and Health.

    For the reason set forth in the preamble, Part 820 of Title 10 of 
the Code of Federal Regulations is amended as set forth below:

PART 820--PROCEDURAL RULES FOR DOE NUCLEAR ACTIVITIES

    1. The authority citation for Part 820 continues to read as 
follows:

    Authority: 42 U.S.C. 2201, 2282(a), 7191; 28 U.S.C. 2461 note.

    2. Appendix A to Part 820 as amended on October 8, 1997 (62 FR 
52479), is adopted as final without change.
    3. Appendix A to Part 820 is amended by adding a new Section XIII 
to read as follows:

Appendix A to Part 820--General Statement of Enforcement Policy

* * * * *

XIII. Whistleblower Enforcement Policy

    a. DOE contractors may not retaliate against any employee 
because the employee has disclosed information, participated in 
activities or refused to participate in activities listed in 10 CFR 
708.5 (a)-(c) as provided by 10 CFR 708.43. DOE contractor employees 
may seek remedial relief for allegations of retaliation from the DOE 
Office of Hearings and Appeals (OHA) under 10 CFR part 708 (Part 
708) or from the Department of Labor (DOL) under sec. 211 of the 
Energy Reorganization Act (sec. 211), implemented in 29 CFR part 24.
    b. An act of retaliation by a DOE contractor, proscribed under 
10 CFR 708.43, that results from a DOE contractor employee's 
involvement in an activity listed in 10 CFR 708.5(a)-(c) concerning 
nuclear safety in connection with a DOE nuclear activity, may 
constitute a violation of a DOE Nuclear Safety Requirement under 10 
CFR part 820 (Part 820). The retaliation may be subject to the 
investigatory and adjudicatory procedures of both Part 820 and Part 
708. The same facts that support remedial relief to employees under 
Part 708 may be used by the Director of the Office of Investigation 
and

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Enforcement (Director) to support issuance of a Preliminary Notice 
of Violation (PNOV), a Final Notice of Violation (FNOV), and 
assessment of civil penalties. 10 CFR 820.24-820.25.
    c. When an employee files a complaint with DOL under sec. 211 
and DOL collects information relating to allegations of DOE 
contractor retaliation against a contractor employee for actions 
taken concerning nuclear safety, the Director may use this 
information as a basis for initiating enforcement action by issuing 
a PNOV. 10 CFR 820.24. DOE may consider information collected in the 
DOL proceedings to determine whether the retaliation may be related 
to a contractor employee's action concerning a DOE nuclear activity.
    d. The Director may also use DOL information to support the 
determination that a contractor has violated or is continuing to 
violate the nuclear safety requirements against contractor 
retaliation and to issue civil penalties or other appropriate remedy 
in a FNOV. 10 CFR 820.25.
    e. The Director will have discretion to give appropriate weight 
to information collected in DOL and OHA investigations and 
proceedings. In deciding whether additional investigation or 
information is needed, the Director will consider the extent to 
which the facts in the proceedings have been adjudicated as well as 
any information presented by the contractor. In general, the 
Director may initiate an enforcement action without additional 
investigation or information.
    f. Normally, the Director will await the completion of a Part 
708 proceeding before OHA or a sec. 211 proceeding at DOL before 
deciding whether to take any action, including an investigation 
under Part 820 with respect to alleged retaliation. A Part 708 or 
sec. 211 proceeding would be considered completed when there is 
either a final decision or a settlement of the retaliation 
complaint, or no additional administrative action is available.
    g. DOE encourages its contractors to cooperate in resolving 
whistleblower complaints raised by contractor employees in a prompt 
and equitable manner. Accordingly, in deciding whether to initiate 
an enforcement action, the Director will take into account the 
extent to which a contractor cooperated in a Part 708 or sec. 211 
proceeding, and, in particular, whether the contractor resolved the 
matter promptly without the need for an adjudication hearing.
    h. In considering whether to initiate an enforcement action and, 
if so, what remedy is appropriate, the Director will also consider 
the egregiousness of the particular case including the level of 
management involved in the alleged retaliation and the specificity 
of the acts of retaliation.
    i. In egregious cases, the Director has the discretion to 
proceed with an enforcement action, including an investigation with 
respect to alleged retaliation irrespective of the completion status 
of the Part 708 or sec. 211 proceeding. Egregious cases would 
include: (1) Cases involving credible allegations for willful or 
intentional violations of DOE rules, regulations, orders or Federal 
statutes which, if proven, would warrant criminal referrals to the 
U.S. Department of Justice for prosecutorial review; and (2) cases 
where an alleged retaliation suggests widespread, high-level 
managerial involvement and raises significant public health and 
safety concerns.
    j. When the Director undertakes an investigation of an 
allegation of DOE contractor retaliation against an employee under 
Part 820, the Director will apprise persons interviewed and 
interested parties that the investigative activity is being taken 
pursuant to the nuclear safety procedures of Part 820 and not 
pursuant to the procedures of Part 708.
    k. At any time, the Director may begin an investigation of a 
noncompliance of the substantive nuclear safety rules based on the 
underlying nuclear safety concerns raised by the employee regardless 
of the status of completion of any related whistleblower retaliation 
proceedings. The nuclear safety rules include: 10 CFR part 830 
(nuclear safety management); 10 CFR part 835 (occupational radiation 
protection); and 10 CFR part 820.11 (information accuracy 
requirements).

[FR Doc. 00-6916 Filed 3-21-00; 8:45 am]
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