[Federal Register Volume 66, Number 12 (Thursday, January 18, 2001)]
[Rules and Regulations]
[Pages 4639-4643]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-1328]


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DEPARTMENT OF ENERGY

10 CFR Part 1044

[Docket No. SO-RM-00-3164]
RIN 1992-AA26


Office of Security and Emergency Operations; Security 
Requirements for Protected Disclosures Under Section 3164 of the 
National Defense Authorization Act for Fiscal Year 2000

AGENCY: Department of Energy.

ACTION: Interim final rule and opportunity for public comment.

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SUMMARY: The Department of Energy (DOE) is publishing an interim final 
rule to prescribe the security procedures that a DOE employee or DOE 
contractor employee, including an employee or contractor employee of 
the National Nuclear Security Administration, who is engaged in defense 
activities must follow to make a protected disclosure of classified or 
other controlled information under the whistleblower protection 
provisions in section 3164 of the National Defense Authorization Act 
for Fiscal Year 2000. Anyone who follows these procedures when making a 
disclosure of classified or other controlled information may not be 
discharged, demoted, or otherwise discriminated against as a reprisal 
for making the disclosure.

EFFECTIVE DATE: The interim final rule is effective February 20, 2001. 
Interested persons may submit written comments on this interim rule by 
February 20, 2001. Comments received after this date will be considered 
to the extent practicable.

ADDRESSES: Written comments (3 copies) should be addressed to: U.S. 
Department of Energy, Docket No. SO-RM-00-3164, Attn: Richard Farman, 
Office of General Counsel, GC-74, 1000 Independence Ave., SW., 
Washington, DC 20585.
    All comments received will be available for public inspection as 
part of the administrative record on file for this rulemaking in the 
Department of Energy Freedom of Information Office Reading Room, Room 
1E-090, Forrestal Building, 1000 Independence Avenue, S.W, Washington, 
DC 10585, (202) 586-6020, between 9 a.m. and 4 p.m., Monday through 
Friday, except Federal holidays. The docket material for this 
rulemaking will be filed under Docket No. SO-RM-00-3164.

FOR FURTHER INFORMATION CONTACT: Cathy Tullis, Office of Security and 
Emergency Operations (SO-211), U.S. Department of Energy, 19901

[[Page 4640]]

Germantown Road, Germantown, MD 20874-1290, (301) 903-4805.

SUPPLEMENTARY INFORMATION:

I. Introduction

    Today's notice adds a new Part 1044 to Title 10 of the Code of 
Federal Regulations to establish security requirements for the 
disclosure of classified and other controlled information under section 
3164 of the National Defense Authorization Act for Fiscal Year 2000 
(NDAA for FY 2000) (42 U.S.C. 7239). Section 3164 directs the Secretary 
of Energy to establish a program to ensure that DOE employees or DOE 
contractor employees engaged in defense activities may not be 
discharged, demoted, or otherwise discriminated against as a reprisal 
for making protected disclosures. The Secretary is required by section 
3164(g) to prescribe regulations to ensure the security of any 
information disclosed under the program (42 U.S.C. 7239(g)). To qualify 
as a ``protected disclosure' of classified or other controlled 
information, a covered employee must take appropriate steps to protect 
the security of the information in accordance with guidance provided by 
the DOE Inspector General, and reveal the information only to a person 
or entity specified in the statute (42 U.S.C. 7239(c)).
    Section 3164(j) of the NDAA for FY 2000 provides that complaints of 
discriminatory acts taken in reprisal for making a protected disclosure 
may be submitted to the DOE Office of Hearings and Appeals for 
investigation (42 U.S.C. 7239(j)). Section 3164(k) directs the 
Secretary of Energy to take appropriate actions to abate acts of 
reprisal (42 U.S.C. 7239(k)).

II. Discussion of Rule Provisions

    Part 1044 informs DOE and DOE contractor employees engaged in 
defense activities how to make a protected disclosure of classified and 
other controlled information. The definitions in section 1044.03 of 
``classified information'' and ``contractor'' are drawn from 10 CFR 
Part 1045, ``Nuclear Classification and Declassification.'' The same 
definitions apply to this rule because of the similar subject matter. 
DOE defines ``defense activities'' to cover the range of its defense 
activities carried out under the Atomic Energy Act of 1954 (42 U.S.C. 
2011 et seq.). The definition of ``defense activities'' in section 
1044.03 is consistent with the definition of ``Atomic Energy Defense 
Programs'' in DOE's regulations concerning protection of unclassified 
controlled nuclear information (see 10 CFR 1017.3). All Departmental-
related activities involving classified information and Unclassified 
Controlled Nuclear Information are considered to be ``defense 
activities'' covered by this rule.
    The term ``unclassified controlled nuclear information'' is defined 
in section 1044.03, and used in conjunction with ``classified 
information'' throughout the rule to identify the types of information 
that are covered by the protected disclosure provisions of section 3164 
of the NDAA for FY2000. For reasons that follow, DOE has concluded that 
unclassified controlled nuclear information under section 148 of the 
Atomic Energy Act (42 U.S.C. 2168) is the only type of information that 
falls within the meaning of ``other information'' in the phrase 
``classified or other information'' used in section 3164(c)(3) to 
define ``protected disclosures.''
    DOE's interpretation of ``other information'' in section 3164 is 
consistent with the apparent intent of Congress to cover the disclosure 
of controlled information. Under section 3164(g), DOE is required to 
prescribe regulations to ensure the security of any information 
disclosed under the statute. Other provisions impose an obligation on a 
whistleblower to take appropriate steps to protect the security of the 
information to be disclosed (section 3164(c)(1)), and restrict who may 
receive a disclosure of classified or other information (section 
3164(d)). These provisions would not make sense if ``other 
information'' encompassed uncontrolled information. The legislative 
history also shows that Congress intended to address in section 3164 
the disclosure of national security sensitive information. See 
Conference Report on the National Defense Authorization Act for Fiscal 
Year 2000, H.R. Conf. Rep. No. 106-301, at p. 920.
    Section 1044.06 lists the persons and entities that may receive a 
protected disclosure (42 U.S.C. 7239(d)). Section 1044.07 provides that 
the Inspector General will assist the whistleblower by obtaining from 
the Office of Safeguards and Security a determination whether a 
particular person has the appropriate security access authorization to 
receive the classified or other controlled information.
    Sections 1044.08 and 1044.09 provide that a person who wishes to 
make a protected disclosure must submit the information to the 
Inspector General, who in turn will obtain a determination from the 
Office of Nuclear and National Security Information on the security 
classification, if any, of the information. If the information is 
classified or controlled, section 1044.11 provides that the 
whistleblower must follow applicable security requirements concerning 
how to generate, mark, reproduce, store, destroy, and transmit 
classified and other controlled information. These security 
requirements derive from Executive Orders, DOE regulations, and current 
security directives issued by the Office of Safeguards and Security. 
The Inspector General will provide the whistleblower with guidance on 
how to comply with these requirements. The individual has a 
responsibility to obtain assistance and guidance before seeking to make 
a protected disclosure.
    As required by the NDAA for FY 2000, DOE provides in section 
1044.09 that the identity of a whistleblower under this program will be 
protected (42 U.S.C. 7239(f)(3)). Section 1044.12 describes the 
procedures provided in the statute (42 U.S.C. 7239(i)-(k)) for acting 
on complaints of alleged discrimination against employees as reprisal 
for making protected disclosures.

III. Public Comment

    The interim final rule published today prescribes security 
procedures that DOE and DOE contractor employees must follow to make a 
protected disclosure of classified or other controlled information 
under section 3164(g) of the NDAA for FY 2000. As a rule of agency 
procedure, this rulemaking is exempt from the notice and comment 
requirements in the Administrative Procedure Act, 5 U.S.C. 553. DOE, 
nevertheless, is providing an opportunity for interested persons to 
submit written data and views on the interim rule. Interested persons 
should submit their comments to the address indicated in the ADDRESSES 
section of this notice. The outside of the envelope and the comments 
should be labeled as follows: ``Protected Disclosure Rulemaking, Docket 
No. SO-RM-00-3164.'' If you believe that any information or data you 
submit may be exempt from public disclosure by law, you should submit 
one complete copy as well as one copy from which you have deleted the 
information you believe to be exempt from disclosure. The Department 
will determine if the information or data is exempt from disclosure.
    All comments received will be available for public inspection as 
part of the administrative record on file for this rulemaking in the 
Department of Energy Freedom of Information Office Reading Room, Room 
1E-090, Forrestal Building, 1000 Independence Avenue, SW., Washington, 
DC 20585, (202) 586-

[[Page 4641]]

6020, between 9 a.m. and 4 p.m., Monday through Friday, except Federal 
holidays.

IV. 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 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.'' Today's interim 
final rule prescribes the security procedures that a DOE or DOE 
contractor employee engaged in defense activities must follow when 
making a protected disclosure of classified or other controlled 
information under section 3164 of the NDAA for FY 2000. DOE is not 
required by the Administrative Procedure Act (5 U.S.C. 553) or any 
other law to propose this rule for public comment. Accordingly, the 
Regulatory Flexibility Act requirements do not apply to this 
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 rulemaking. 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

    Today's rule describes the security requirements a DOE or DOE 
contractor employee engaged in defense activities must follow when 
making a protected disclosure of classified or other controlled 
information under section 3164 of the NDAA for FY 2000. Implementation 
of this rule will not affect whether such information might cause or 
otherwise be associated with an environmental impact. The Department 
has, therefore, determined that this rule is covered under the 
Categorical Exclusion found at paragraph A.6. of Appendix A to Subpart 
D, 10 CFR Part 1021, which applies to rulemakings that are strictly 
procedural. Accordingly, neither an environmental assessment nor an 
environmental impact statement is required.

E. 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 interim final rule meets the relevant standards of Executive Order 
12988.

F. Review Under Executive Order 13132

    Executive Order 13132 (64 FR 43255, August 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. DOE published 
its intergovernmental consultation policy and procedures on March 14, 
2000 (65 FR 13735). ``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. DOE has 
examined this interim final rule and has determined that it 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.

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 DOE on March 18, 1997 (62 FR 12820). 
The interim final rule published today does not contain any federal 
mandate, so these requirements do not apply.

H. Review Under Plain Language Initiative

    Executive Order 12866 and the President's memorandum of June 1, 
1998, require each agency to write all rules in plain language. We 
invite your comments on how to make this rule easier to understand. For 
example:
     Have we organized the material to suit your needs?
     Are the requirements in the rule clearly stated?
     Does the rule contain technical language or jargon that 
isn't clear?
     Would a different format make the rule easier to 
understand?
     What else could we do to make the rule easier to 
understand?

I. 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

[[Page 4642]]

``major rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 10 CFR Part 1044

    Administrative practice and procedure, Classfied information, 
Energy, Government contracts, National security information, Security 
information, Whistleblowing

    Issued in Washington, DC, on November 30, 2000.
T.J. Glauthier,
Deputy Secretary.

    For the reasons set forth in the preamble, DOE hereby amends 
Chapter X of title 10 of the Code of Federal Regulations as set forth 
below:
    1. New Part 1044 is added to read as follows:

PART 1044--SECURITY REQUIREMENTS FOR PROTECTED DISCLOSURES UNDER 
SECTION 3164 OF THE NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL 
YEAR 2000

Sec.
1044.01   What is the purpose of this part?
1044.02   Who must follow the requirements contained in this part?
1044.03   What definitions apply to this part?
1044.04   What is a protected disclosure?
1044.05   What is the effect of a disclosure qualifying as a 
``protected disclosure''?
1044.06   Who may receive a protected disclosure?
1044.07   How can you find out if a particular person is authorized 
to receive a protected disclosure?
1044.08  Do you have to submit the documents for classification 
review before you give them to someone?
1044.09   What do you do if you plan to disclose classified or 
unclassified controlled nuclear information orally rather than by 
providing copies of documents?
1044.10   Will your identity be protected?
1044.11   How do you protect the documents and information that you 
want to disclose?
1044.12   What procedures can you invoke if you believe you have 
been discharged, demoted, or otherwise discriminated against as a 
reprisal for making a protected disclosure?

    Authority: 42 U.S.C. 7101 et seq., 7239, and 50 U.S.C. 2401 et 
seq.


Sec. 1044.01  What is the purpose of this part?

    This part prescribes the security requirements for making protected 
disclosures of classified or unclassified controlled nuclear 
information under the whistleblower protection provisions of section 
3164 of the National Defense Authorization Act for Fiscal Year 2000.


Sec. 1044.02  Who must follow the requirements contained in this part?

    The requirements apply to you if you are:
    (a) An employee of DOE, including the National Nuclear Security 
Administration, or one of its contractors;
    (b) Engaged in DOE defense activities; and
    (c) Wish to make a protected disclosure as described in 
Sec. 1044.04 of this part.


Sec. 1044.03  What definitions apply to this part?

    The following definitions apply to this subpart:
    Atomic Energy Act means the Atomic Energy Act of 1954, as amended 
(42 U.S.C. 2011 et seq.
    Classified information means:
    (1) Information classified as Restricted Data or Formerly 
Restricted Data under the Atomic Energy Act; or
    (2) Information that has been determined pursuant to Executive 
Order 12958 or prior Executive Orders to require protection against 
unauthorized disclosure and is marked to indicate its classification 
status when in document form (also referred to as ``National Security 
Information'' in 10 CFR Part 1045 or ``defense information'' in the 
Atomic Energy Act).
    Contractor means any industrial, educational, commercial or other 
entity, grantee or licensee at any tier, including an individual, that 
has executed an agreement with the Federal Government for the purpose 
of performing under a contract, license or other agreement.
    Defense activities means activities of DOE engaged in support of:
    (1) The production, testing, sampling, maintenance, repair, 
modification, assembly, disassembly, utilization, transportation, or 
retirement of nuclear weapons or components of nuclear weapons;
    (2) The production, utilization, or transportation of nuclear 
material for military applications; or
    (3) The safeguarding of activities, equipment, or facilities which 
support the production of nuclear weapons or nuclear material for 
nuclear weapons.
    DOE means the Department of Energy, including the National Nuclear 
Security Administration.
    Unclassified controlled nuclear information means unclassified 
government information prohibited from unauthorized dissemination under 
section 148 of the Atomic Energy Act and DOE implementing regulations 
in 10 CFR part 1017.


Sec. 1044.04  What is a protected disclosure?

    A protected disclosure is:
    (a) A disclosure of classified or unclassified controlled nuclear 
information that you reasonably believe provides direct and specific 
evidence of--
    (1) A violation of law or Federal regulation;
    (2) Gross mismanagement, a gross waste of funds, or an abuse of 
authority; or
    (3) A false statement to Congress on pursuant to an issue of 
material fact; and
    (b) Protected pursuant to the procedures in this part, including 
the security procedures referenced in Sec. 1044.11; and
    (c) Revealed only to a person or organization described in 
Sec. 1044.06.


Sec. 1044.05  What is the effect of a disclosure qualifying as a 
``protected disclosure''?

    If a DOE or DOE contractor employee follows the procedures of this 
part when making a disclosure of classified or unclassified controlled 
nuclear information, then the employer (DOE or DOE contractor as 
applicable) may not discharge, demote, or otherwise discriminate 
against the employee as a reprisal for making the disclosure.


Sec. 1044.06  Who may receive a protected disclosure?

    The following persons or organizations may receive a protected 
disclosure:
    (a) A member of a committee of Congress having primary 
responsibility for oversight of the department, agency, or element of 
the Government to which the disclosed information relates;
    (b) An employee of Congress who is a staff member of such a 
committee and has an appropriate security access authorization for the 
information being disclosed;
    (c) The Inspector General of the Department of Energy;
    (d) The Federal Bureau of Investigation; or
    (e) Any other element of the Government designated by the Secretary 
of Energy as authorized to receive the information being disclosed.


Sec. 1044.07  How can you find out if a particular person is authorized 
to receive a protected disclosure?

    You must contact the Department of Energy Inspector General for 
help in determining whether a particular person is authorized to 
receive the classified or unclassified controlled nuclear information 
you wish to disclose. The Inspector General will contact the Office of 
Safeguards and Security as necessary to determine the security access 
authorization of the person to receive the protected disclosure.

[[Page 4643]]

Sec. 1044.08  Do you have to submit the documents for classification 
review before you give them to someone?

    Yes, you must submit each document with a classification or control 
marking and any unmarked document generated in a classified or 
controlled subject area to the Inspector General. The Inspector General 
forwards each document to the Office of Nuclear and National Security 
Information for a determination as to whether the information in the 
document is properly classified, controlled, or may be released to the 
public.


Sec. 1044.09  What do you do if you plan to disclose classified or 
unclassified controlled nuclear information orally rather than by 
providing copies of documents?

    You must describe in detail to the Inspector General what 
information you wish to disclose. The Inspector General may require 
that the information to be disclosed be put in writing in order to 
ensure the Inspector General obtains and provides accurate advice. The 
Inspector General will consult with the Office of Nuclear and National 
Security Information who will provide you with advice, through the 
Inspector General, as to whether the information is classified or 
controlled and any steps needed to protect the information.


Sec. 1044.10  Will your identity be protected?

    Yes, both the Inspector General and the Office of Nuclear and 
National Security Information must protect, consistent with legal 
requirements, your identity and any information about your disclosure.


Sec. 1044.11  How do you protect the information that you want to 
disclose?

    To protect classified information and unclassified controlled 
nuclear information you plan to disclose, you must:
    (a) Only disclose the information to personnel who possess the 
appropriate clearance and need-to-know for the information disclosed as 
required in 10 CFR part 710, after verifying any special authorizations 
or accesses, such as Sensitive Compartmented Information, Special 
Access Program, and Weapon Data information;
    (b) Use only equipment (such as computers or typewriters) that is 
approved for classified processing for the generation of classified 
documents;
    (c) Mark documents as required by 10 CFR part 1045 (classified 
information), 10 CFR Part 1017 (unclassified controlled nuclear 
information), or as required by the Office of Nuclear and National 
Security Information.
    (d) Use only approved copiers to reproduce documents;
    (e) Store classified documents in facilities approved by the U.S. 
Government for the storage of classified material;
    (f) Use only approved destruction devices to destroy classified 
documents;
    (g) Use only appropriate secure means, such as secure facsimile or 
secure telephone, to provide classified information orally or 
electronically when transmitting or communicating that information 
(e.g. the applicable classified mailing address); and
    (h) Follow any additional specific instructions from the Office of 
Safeguards and Security on how to protect the information.


Sec. 1044.12  What procedures can you invoke if you believe you have 
been discharged, demoted, or otherwise discriminated against as a 
reprisal for making a protected disclosure?

    If you believe you have been discriminated against as a reprisal 
for making a protected disclosure, you may submit a complaint to the 
Director of the Office of Hearings and Appeals, U.S. Department of 
Energy, 1000 Independence Avenue, SW., Washington, DC 20585-0107, or 
you may send your complaint to the Director, Office of Hearings and 
Appeals, by facsimile to FAX number (202) 426-1415. In your complaint, 
you should give your reasons for believing that you have been 
discriminated against as a reprisal for making a protected disclosure, 
and include any information you think is relevant to your complaint. 
The Office of Hearings and Appeals will conduct an investigation of 
your complaint unless the Director determines your complaint is 
frivolous. The Director will notify you in writing if your complaint is 
found to be frivolous. If an investigation is conducted, the Director 
will submit a report of the investigation to you, to the employer named 
in your complaint, and to the Secretary of Energy, or the Secretary's 
designee. The Secretary, or the Secretary's designee, will take 
appropriate action, pursuant to 42 U.S.C. 7239(k), to abate any 
discriminatory actions taken as reprisal for making a protected 
disclosure.

[FR Doc. 01-1328 Filed 1-17-01; 8:45 am]
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