[Federal Register Volume 81, Number 156 (Friday, August 12, 2016)]
[Proposed Rules]
[Pages 53337-53342]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-19103]
[[Page 53337]]
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DEPARTMENT OF ENERGY
10 CFR Part 820
[Docket No. EA-RM-16-PRDNA]
RIN 1992-AA52
Procedural Rules for DOE Nuclear Activities
AGENCY: Office of Enterprise Assessments, Office of Enforcement, Office
of Nuclear Safety Enforcement, Department of Energy.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The U.S. Department of Energy (DOE) is proposing to amend its
Procedural Rules for DOE Nuclear Activities to clarify that the
Department may assess civil penalties against certain contractors and
subcontractors for violations of the prohibition against retaliating
against an employee who reports violations of law, mismanagement,
waste, abuse, or dangerous/unsafe workplace conditions, among other
protected activities, concerning nuclear safety (referred to as
``whistleblowers''). Specifically, this proposed rule would clarify
that the prohibition against whistleblower retaliation is a DOE Nuclear
Safety Requirement to the extent that it concerns nuclear safety. The
proposed rule would also explain the circumstances under which DOE
would investigate alleged violations of this prohibition. The proposed
rule would also delineate which DOE regulations are DOE Nuclear Safety
Requirements.
DATES: DOE will accept comments, data, and information regarding this
notice of proposed rulemaking (NOPR) submitted on or before September
12, 2016.
ADDRESSES: Any comments submitted must identify the NOPR for Procedural
Rules for DOE Nuclear Activities and provide docket number EA-RM-16-
PRDNA and/or regulatory information number (RIN) 1992-AA52. Comments
may be submitted using any of the following methods:
1. Federal eRulemaking Portal: www.regulations.gov. Follow the
instructions for submitting comments.
2. Email: [email protected]. Include the docket number
and/or RIN in the subject line of the message. Submit electronic
comments in Microsoft Word, or PDF file format, and avoid the use of
special characters or any form of encryption.
3. Postal Mail: EA-10/Germantown Building, U.S. Department of
Energy, 1000 Independence Avenue SW., Washington, DC 20585-1290. If
possible, please submit all items on a CD, in which case it is not
necessary to include printed copies.
As a result of potential delays in the receipt and processing of
mail sent through the U.S. Postal Service, DOE encourages respondents
to submit comments electronically to ensure timely receipt.
For detailed instructions on submitting comments and additional
information on the rulemaking process, see section III of this document
(Public Participation).
Docket: The docket, which includes Federal Register notices, public
meeting attendee lists and transcripts, comments received, and other
supporting documents/materials, is available for review at http://www.regulations.gov. All documents in the docket are listed in the
www.regulations.gov index. However, some documents listed in the index
may not be publicly available, such as those containing information
that is exempt from public disclosure. A link to the docket Web page
can be found at: http://energy.gov/ea/office-enterprise-assessments.
This Web page will contain a link to the docket for this proposed
rulemaking on the www.regulations.gov site. The www.regulations.gov Web
page contains simple instructions on how to access all documents,
including public comments, in the docket. See section III for further
information on how to submit comments through www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Steven Simonson, U.S. Department of Energy, Office of Enterprise
Assessments/Germantown Building, 1000 Independence Ave. SW.,
Washington, DC 20585-1290. Phone: (301) 903-2816. Email:
[email protected].
K.C. Michaels, U.S. Department of Energy, Office of the General
Counsel, 1000 Independence Ave. SW., Washington, DC 20585-0121. Phone:
(202) 586-3430. Email: [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Authority and Background
II. Discussion of Proposed Amendment
III. Public Participation
IV. Procedural Issues and Regulatory Review
I. Authority and Background
Pursuant to the Atomic Energy Act of 1954 (AEA) (42 U.S.C. 2011 et
seq.), DOE has issued regulations governing nuclear safety management
(at 10 CFR part 830) and occupational radiation protection (at 10 CFR
part 835). Section 234A of the AEA (42 U.S.C. 2282a) authorizes DOE to
impose civil penalties for violations of these regulations.
Specifically, section 234A authorizes civil penalties against
contractors, subcontractors, and suppliers that are covered by an
indemnification agreement under section 170.d. of the AEA (42 U.S.C.
2210(d)) (commonly known as the Price-Anderson Act) that violate DOE
rules, regulations, or orders ``related to nuclear safety.'' DOE has
issued Procedural Rules for DOE Nuclear Activities at 10 CFR part 820
(part 820), which establishes a process for imposing civil penalties
under section 234A.
Separate from part 820, DOE has also issued regulations at 10 CFR
part 708 (part 708) that prohibit a contractor or subcontractor from
retaliating against employees for reporting violations of law,
mismanagement, waste, abuse, or dangerous/unsafe workplace conditions,
participating in proceedings, or refusing to participate in an activity
that may constitute a violation of law or cause a reasonable fear of
injury (referred to as ``whistleblowers''). These regulations establish
an affirmative duty on the part of contractors not to retaliate against
whistleblowers; and establish a process for an employee alleging
retaliation to file a claim for reinstatement, transfer-preference,
back-pay, and legal fees among other forms of relief.
DOE is proposing to amend part 820 to clarify that DOE may impose
civil penalties against a contractor or subcontractor for violating the
prohibition against whistleblower retaliation found in part 708, to the
extent it concerns nuclear safety. The proposed rule would not alter
the existing procedures for imposing civil penalties, but would
establish requirements specific to whistleblower retaliation concerning
nuclear safety. The proposed rule would also provide, in the text of
part 820, a list of all other DOE Nuclear Safety Requirements.
II. Discussion of Proposed Amendment
A. What are DOE Nuclear Safety Requirements and when may DOE impose
civil penalties?
The current version of part 820 includes a definition for ``DOE
Nuclear Safety Requirements,'' and it states that DOE has authority to
impose civil penalties for violations of any DOE Nuclear Safety
Requirement set forth in the Code of Federal Regulations, Compliance
Orders issued under subpart C to part 820, and any program, plan, or
other provision required to implement one of these rules or orders.\1\
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The rule does not identify the particular rules and regulations that
DOE regards as DOE Nuclear Safety Requirements.
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\1\ The use of the word ``order'' in this context refers to
Compliance Orders issued under subpart C to part 820, not to orders
issued under the DOE Directives Program.
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DOE proposes to amend part 820 to update the definition of DOE
Nuclear Safety Requirements, to add a new section to part 820, and to
amend the guidance in appendix A to part 820--General Statement of
Enforcement Policy. In particular, DOE proposes that the following are
enforceable DOE Nuclear Safety Requirements to the extent they concern
nuclear safety:
10 CFR part 830 (nuclear safety management);
10 CFR part 835 (occupational radiation protection);
10 CFR 820.11 (information accuracy requirements);
Compliance Orders issued pursuant to 10 CFR part 820, subpart C;
10 CFR 708.43 (duty of contractors not to retaliate against
whistleblowers).
The lack of a definitive list of regulations included in the
definition of DOE nuclear safety requirements in the text of part 820
has led to a question regarding the scope of DOE's authority to issue
civil penalties for violations of these regulations, particularly the
prohibition against whistleblower retaliation in part 708. To address
this question, DOE proposes to amend part 820 to clarify that part 830,
part 835, Sec. 820.11, Compliance Orders issued pursuant to subpart C
to part 820, and Sec. 708.43 as it concerns nuclear safety each
represent DOE Nuclear Safety Requirements and that DOE may assess civil
penalties for violations of these rules. This amendment is consistent
with the original intent in promulgating part 820, as evidenced by
appendix A of this part, the preambles to previous rulemakings (e.g. 58
FR 43680, 43681 (Aug. 17, 1993)).
DOE considers each of these provisions to be a DOE Nuclear Safety
Requirement and has previously exercised enforcement activity on the
basis of violations of these regulations. Parts 830 and 835 both have a
clear connection to nuclear safety in that each regulation directly and
explicitly governs the conduct of persons whose conduct may affect
nuclear safety. Further, part 830 states explicitly that the
requirements of part 830 are DOE Nuclear Safety Requirements and 10 CFR
830.5 provides that violations of part 830 may be enforced through
civil penalties in accordance with part 820.
Compliance Orders issued pursuant to subpart C to part 820 and
Sec. 820.11 also have a clear connection to nuclear safety. Subpart C
allows the Secretary of Energy to order any person involved in a DOE
nuclear activity to remediate a situation that violates or potentially
violates the AEA, another statute relating to a DOE nuclear activity,
or a DOE Nuclear Safety Requirement. Because the underlying violations
would involve nuclear safety, Compliance Orders issued under subpart C
govern conduct that relates to and may affect nuclear safety. Section
820.11 requires that information pertaining to a nuclear activity that
is provided to or maintained for inspection by DOE must be complete and
accurate in all respects and prohibits any person involved in a nuclear
activity from concealing or destroying information concerning a
violation of a DOE Nuclear Safety Requirement. If information regarding
a nuclear activity is incomplete or inaccurate, this impedes DOE's
ability to conclude that a contractor is adhering to proper safety
precautions. Likewise, if a person willfully destroys information
regarding a safety violation, it becomes less likely that the violation
will be rectified.
Section 708.43 establishes an affirmative duty on the part of DOE
contractors (including subcontractors) not to retaliate against
whistleblowers. Section 708.36 provides various forms of relief to
whistleblower employees. Providing this relief is important, but the
Department also has a strong interest in preventing whistleblower
retaliation and ensuring that workers feel free to raise important
safety concerns. DOE and its contractors rely to a significant extent
on workers to bring attention to unsafe conditions. If workers witness
any retaliation against an employee for raising a potential nuclear
safety issue, it may contribute to a chilled work environment in which
workers do not feel free to report such issues. Accordingly, Sec.
708.43, as it applies to activities at DOE nuclear facilities that
concern nuclear safety, constitutes a DOE Nuclear Safety Requirement.
B. What is the effect of administrative and judicial whistleblower
proceedings on DOE's enforcement process?
An employee alleging retaliation by a DOE contractor or
subcontractor has several different mechanisms to file a claim for
relief, including filing a claim pursuant to part 708, with the DOE
Office of the Inspector General, with the Department of Labor under 29
CFR part 24, or in federal or state court. For most of these
mechanisms, a contractor employee may seek a ``make whole'' remedy
including reinstatement, transfer-preference, back-pay, and legal fees,
among other forms of compensation. DOE considers the imposition of
civil penalties for whistleblower retaliation as a complementary
process to these proceedings. Relief to contractor employees who have
been found to suffer retaliation is important, but DOE also has a
separate and strong interest in deterring future whistleblower
retaliation in connection with nuclear safety issues. A ``make whole''
remedy to the employee may not be sufficiently punitive to deter future
retaliation against whistleblowers. In these situations, separate
enforcement with the possibility of imposing civil penalties would
allow DOE to craft a remedy that is specifically designed to address
these safety concerns.
As a matter of regulatory concern, DOE recognizes that conducting
enforcement proceedings concerning retaliation in parallel with
administrative or judicial proceedings may lead to conflicting results.
DOE's current enforcement policy explains that DOE will generally await
the completion of an administrative proceeding before deciding whether
to take action. DOE proposes to codify this policy into the regulatory
text with respect to proceedings before DOE under part 708, the DOE
Office of the Inspector General under 41 U.S.C. 4705 or 4712, the
Department of Labor under 29 CFR part 24, or a federal or state court.
Specifically, DOE proposes that it will not take any action under part
820 with respect to alleged retaliation until after the deadlines have
passed for filing a claim under part 708 or 29 CFR part 24--i.e. 180
days after the alleged violation occurs.\2\ If an administrative or
judicial proceeding is filed after DOE has already initiated any action
under part 820, DOE will immediately suspend its activities under part
820 until the issuance of a final decision in the proceeding--including
the exhaustion of appeals. In such instances, DOE will not take any
action under part 820 until sixty days after a final decision in an
administrative or judicial proceeding finds that a retaliation
occurred.
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\2\ For a part 708 claim, the employee must file within 90 days
after the employee knew or reasonably should have known about the
alleged retaliation. For a claim under 29 CFR part 24, the employee
must file within 180 days of an alleged violation prohibited by
section 211 of the Energy Reorganization Act of 1974 (42 U.S.C.
5851). There is a three-year deadline for filing a complaint with
the Inspector General under 41 U.S.C. 4712, but there is no explicit
deadline under 41 U.S.C. 4705. Statutes of limitations before
federal and state courts vary.
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DOE proposes that it will generally exercise enforcement discretion
that is consistent with the final decision of an
[[Page 53339]]
agency or court. If a final decision finds that retaliation occurred,
DOE will consider whether that retaliation constitutes a violation of
Sec. 708.43, and if so, whether to take action under part 820. On the
other hand, if a final decision finds that no retaliation occurred, DOE
will not take any further action under part 820 with respect to the
alleged retaliation unless DOE becomes aware of significant new
information that was not available in the prior proceeding.
DOE is aware that the various statutory and regulatory prohibitions
against whistleblower retaliation are not identical. Section 708.43
prohibits retaliation against an employee who engages in one of a
number of specified activities. It is conceivable that a contractor
could retaliate against an employee for an action that is not protected
under Sec. 708.43, but that is protected under a different statutory
or regulatory prohibition. Therefore, in the event that a final
decision finds that a prohibited retaliation has taken place, DOE will
make a determination of whether that retaliation also constitutes a
violation of Sec. 708.43 before pursuing remedial measures under part
820 against the contractor.
C. What is DOE's enforcement policy regarding whistleblower
retaliation?
Section XIII to appendix A to part 820 currently sets forth DOE's
Whistleblower Enforcement Policy. As mentioned in this preamble, this
appendix is a general statement of policy and is not binding on DOE or
its contractors. In addition to codifying DOE's existing policy to
await the completion of administrative proceedings, as described in
this preamble, DOE also proposes to codify two other statements of the
enforcement policy into a new section of part 820 governing
whistleblower enforcement. Specifically, DOE proposes to codify
paragraphs d and e of section XIII, which provide that DOE may collect
information gathered during administrative proceedings and give
appropriate weight to that information in DOE's enforcement process,
respectively. DOE also proposes to codify paragraph k of section XIII,
which provides that the commencement of an administrative or judicial
proceeding regarding an alleged retaliation does not prevent DOE from
investigating violations of DOE Nuclear Safety Requirements other than
Sec. 708.43.
Under this NOPR, DOE is also proposing amendments to section XIII
of appendix A to conform with the proposed changes to the regulatory
text of part 820.
III. Public Participation
DOE will accept comments, data, and information regarding this
proposed rule submitted on or before the date provided in the DATES
section at the beginning of this proposed rule. Interested parties may
submit comments, data, and other information using any of the methods
described in the ADDRESSES section at the beginning of this proposed
rule. Please refer to specific proposed rule provisions, if possible.
If you submit information that you believe to be exempt by law from
public disclosure, you should submit one complete copy marked
``confidential,'' and one copy marked ``non-confidential'' with the
information believed to be confidential deleted. DOE is responsible for
the final determination with regard to disclosure or nondisclosure of
the information and for treating it accordingly under the DOE Freedom
of Information regulations at 10 CFR 1004.11. Factors of interest to
DOE when evaluating requests to treat submitted information as
confidential include: (1) A description of the items; (2) whether and
why such items are customarily treated as confidential within the
industry; (3) whether the information is generally known or available
from other sources; (4) whether the information has previously been
made available to others without obligation concerning its
confidentiality; (5) an explanation of the competitive injury to the
submitting person that would result from public disclosure; (6) when
such information might lose its confidential character due to the
passage of time; and (7) why disclosure of the information would be
contrary to the public interest.
It is DOE's policy that all comments may be included in the public
docket, without change and as received, including any personal
information provided in the comments (except information deemed to be
exempt from public disclosure).
DOE has determined that this rulemaking does not raise the kinds of
substantial issues or impacts that, pursuant to 42 U.S.C. 7191, would
require DOE to provide an opportunity for oral presentation of views,
data and arguments. Therefore, DOE has not scheduled a public hearing
on these proposed amendments to part 820.
IV. Procedural Issues and Regulatory Review
A. Review Under Executive Order 12866
This notice of proposed rulemaking 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
notice of proposed rulemaking was not subject to review by the Office
of Information and Regulatory Affairs of the Office of Management and
Budget.
B. 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 required
by Executive Order 13272, ``Proper Consideration of Small Entities in
Agency Rulemaking,'' 67 FR 53461 (Aug. 16, 2002), DOE published
procedures and policies on February 19, 2003, to ensure that the
potential impacts of its rules on small entities are properly
considered during the rulemaking process. 68 FR 7990. DOE has made its
procedures and policies available on the Office of the General
Counsel's Web site (http://energy.gov/gc/office-general-counsel).
DOE has reviewed this proposed rule under the provisions of the
Regulatory Flexibility Act and the procedures and policies published on
February 19, 2003. The proposed rule would amend DOE's Procedural Rules
for DOE Nuclear Activities to clarify that DOE may assess civil
penalties against certain contractors and subcontractors for violations
of the prohibition against retaliating against whistleblowers. While
the amended part 820 would expose small entities that are contractors
and subcontractors to potential liability for civil penalties, DOE does
not expect that a substantial number of these entities will violate a
DOE Nuclear Safety Requirement resulting in the imposition of a civil
penalty. On this basis, DOE certifies that this proposed rule would not
have a significant economic impact on a substantial number of small
entities. Accordingly, DOE has not prepared a regulatory flexibility
analysis for this rulemaking. DOE's certification and supporting
statement of factual basis will be provided to the Chief Counsel for
Advocacy of the Small Business Administration pursuant to 5 U.S.C.
605(b).
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C. Paperwork Reduction Act
This proposed rule would not impose new information or record
keeping requirements. Accordingly, OMB clearance is not required under
the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
D. National Environmental Policy Act
DOE has determined that this proposed rule is covered under the
Categorical Exclusion in DOE's National Environmental Policy Act
regulations at paragraph A.5 of appendix A to subpart D, 10 CFR part
1021, which applies to rulemaking that interprets or amends an existing
rule or regulation without changing the environmental effect of the
rule or regulation that is being amended. The proposed rule would amend
DOE's regulations on civil penalties with respect to certain DOE
contractors and subcontractors in order to clarify that civil penalties
are available for violations of the prohibition against whistleblower
retaliation found in Sec. 708.43 that concern nuclear safety. These
proposed amendments are procedural and would not change the
environmental effect of part 820. Accordingly, neither an environmental
assessment nor an environmental impact statement is required.
E. Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531
et seq., requires each Federal agency, to the extent permitted by law,
to prepare a detailed assessment of the effects of any Federal mandate
in an agency rule that may result in costs to State, local, or tribal
governments, or to the private sector, of $100 million or more
(adjusted annually for inflation) in any one year. 2 U.S.C. 1532. While
the proposed rule may expose DOE contractors and subcontractors to
potential liability for civil penalties for retaliating against a
whistleblower in connection with a protected activity relating to
nuclear safety, DOE does not expect that these civil penalties will
approach $100 million in any single year. Therefore, the requirements
of Title II of the Unfunded Mandates Reform Act of 1995 do not apply.
F. Treasury and General Government Appropriations Act, 1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999, 5 U.S.C. 601 note, requires Federal agencies to issue a
Family Policymaking Assessment for any proposed rule that may affect
family wellbeing. While this proposed rule would apply to individuals
who may be members of a family, the rule would not have any impact on
the autonomy or integrity of the family as an institution. Accordingly,
DOE has concluded that it is not necessary to prepare a Family
Policymaking Assessment.
G. Executive Order 13132
Executive Order 13132, ``Federalism,'' 64 FR 43255 (Aug. 4, 1999),
imposes certain requirements on agencies formulating and implementing
policies or regulations that preempt State law or that have federalism
implications. Agencies are required to examine the constitutional and
statutory authority supporting any action that would limit the
policymaking discretion of the States and carefully assess the
necessity for such actions. DOE has examined this proposed rule and has
determined that it would not preempt State law and 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.
H. 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 (Feb. 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.
I. Treasury and General Government Appropriations Act, 2001
The Treasury and General Government Appropriations Act, 2001, 44
U.S.C. 3516 note, provides for agencies to review most disseminations
of information to the public under guidelines established by each
agency pursuant to general guidelines issued by OMB. OMB's guidelines
were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were
published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed this notice
of proposed rulemaking under the OMB and DOE guidelines and has
concluded that it is consistent with applicable policies in those
guidelines.
J. Executive Order 13211
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355
(May 22, 2001), requires Federal agencies to prepare and submit to the
Office of Information and Regulatory Affairs (OIRA) a Statement of
Energy Effects for any proposed significant energy action. A
``significant energy action'' is defined as any action by an agency
that promulgates or is expected to lead to promulgation of a final
rule, and that: (1) Is a significant regulatory action under Executive
Order 12866, or any successor order; and (2) is likely to have a
significant adverse effect on the supply, distribution, or use of
energy, or (3) is designated by the Administrator of OIRA as a
significant energy action. For any proposed significant energy action,
the agency must give a detailed statement of any adverse effects on
energy supply, distribution, or use should the proposal be implemented,
and of reasonable alternatives to the action and their expected
benefits on energy supply, distribution, and use. This regulatory
action has been determined to not be a significant regulatory action,
and it would not have an adverse effect on the supply, distribution, or
use of energy. Thus, this action is not a significant energy action.
Accordingly, DOE has not prepared a Statement of Energy Effects.
K. Approval of the Office of the Secretary
The Secretary of Energy has approved the publication of this
proposed rule.
[[Page 53341]]
List of Subjects in 10 CFR Part 820
Administrative practice and procedure, Enforcement, Government
contracts, Nuclear safety, Penalties, Whistleblowing.
Issued in Washington, DC, on August 5, 2016.
Glenn S. Podonsky,
Director, Office of Enterprise Assessments.
For the reasons stated in the preamble, DOE hereby proposes to
amend part 820 of chapter III of title 10 of the Code of Federal
Regulations as set forth below:
PART 820--PROCEDURAL RULES FOR DOE NUCLEAR ACTIVITIES
0
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;
50 U.S.C. 2410.
0
2. Section 820.2 is amended by revising the definition for ``DOE
Nuclear Safety Requirements'' to read as follows:
Sec. 820.2 Definitions.
* * * * *
DOE Nuclear Safety Requirements means the set of rules,
regulations, orders, and other requirements relating to nuclear safety
adopted by DOE to govern the conduct of persons in connection with any
DOE nuclear activity and includes any program, plan, or other provision
required to implement these rules, regulations, orders, or other
requirements. DOE Nuclear Safety Requirements include the following, to
the extent that subject activities concern nuclear safety:
(i) 10 CFR part 830;
(ii) 10 CFR part 835;
(iii) 10 CFR 820.11;
(iv) Compliance Orders issued pursuant to 10 CFR part 820, subpart
C; and
(v) 10 CFR 708.43.
* * * * *
0
3. Section 820.14 is added to subpart A to read as follows:
Sec. 820.14 Whistleblower protection.
(a) Covered acts. An act of retaliation (as defined in 10 CFR
708.2) by a DOE contractor, prohibited by 10 CFR 708.43, that results
from a DOE contractor employee's involvement in an activity listed in
10 CFR 708.5(a) through (c) may constitute a violation of a DOE Nuclear
Safety Requirement if it concerns nuclear safety.
(b) Commencement of investigation. The Director may not initiate an
investigation or take any other action under this part with respect to
an alleged act of retaliation by a DOE contractor until 180 days after
an alleged violation of 10 CFR 708.43 occurs.
(c) Administrative or judicial proceedings. The Director shall
immediately suspend any ongoing activities under this part and suspend
any time limits under this part when an administrative or judicial
proceeding commences based on the same alleged act of retaliation.
While an administrative or judicial proceeding, including appeals, is
pending, the Director may not exercise any authority under this part
based on an alleged violation of 10 CFR 708.43, including issuing
enforcement letters, subpoenas, orders to compel attendance, Consent
Orders, Preliminary Notices of Violation, or Final Notices of
Violation. Once such a proceeding commences, the Director shall not
conduct any activities under this part until sixty days after a final
decision of an agency or court finds that a retaliation occurred.
(d) Final decision. For the purposes of this section, a final
decision of an agency or court includes any of the following:
(1) A final agency decision pursuant to 10 CFR part 708;
(2) A final decision or order of the Secretary of Labor pursuant to
29 CFR part 24;
(3) A decision by the Secretary upon a report by the Inspector
General;
(4) A decision by a federal or state court.
(e) Evidentiary record. If a final decision of an agency or court
finds that retaliation occurred, the Director may obtain and use
information collected as part of those proceedings. The Director has
discretion to give appropriate weight to information obtained from
these proceedings and to initiate and conduct further investigation if
the Director deems necessary, particularly with regard to the
relationship between the retaliation and nuclear safety.
(f) Underlying nuclear safety requirements. Notwithstanding the
commencement of an administrative or judicial proceeding based on an
alleged act of retaliation, this section shall not prevent the Director
from taking any action consistent with this part regarding compliance
with DOE Nuclear Safety Requirements other than 10 CFR 708.43.
0
4. Section 820.20 is amended by revising paragraphs (a) and (b) to read
as follows:
Sec. 820.20 Purpose and scope.
(a) Purpose. This subpart establishes the procedures for
investigating the nature and extent of violations of DOE Nuclear Safety
Requirements, for determining whether a violation of DOE Nuclear Safety
Requirements has occurred, for imposing an appropriate remedy, and for
adjudicating the assessment of a civil penalty.
(b) Basis for civil penalties. DOE may assess civil penalties
against any person subject to the provisions of this part who has
entered into an agreement of indemnification under 42 U.S.C. 2210(d)
(or any subcontractor or supplier thereto), unless exempted from civil
penalties as provided in paragraph (c) of this section, on the basis of
a violation of a DOE Nuclear Safety Requirement.
* * * * *
0
5. Appendix A to part 820 is amended by revising 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 taken any actions listed in 10 CFR 708.5(a)
through(c), including disclosing information, participating in
proceedings, or refusing to participate in certain activities. DOE
contractor employees may seek relief for allegations of retaliation
through one of several mechanisms, including filing a complaint with
DOE pursuant to 10 CFR part 708 (part 708), the Department of Labor
(DOL) under sec. 211 of the Energy Reorganization Act (sec. 211),
implemented in 29 CFR part 24, or the DOE Inspector General (IG).
b. An act of retaliation by a DOE contractor, prohibited by 10
CFR 708.43, that results from a DOE contractor employee's
involvement in an activity listed in 10 CFR 708.5(a) through (c),
may constitute a violation of a DOE Nuclear Safety Requirement under
10 CFR part 820 if it concerns nuclear safety. To avoid the
potential for inconsistency with one of the mechanisms available to
an aggrieved DOE contractor employee alleging retaliation referenced
in section XIII.a, the Director will not take any action under this
part with respect to an alleged violation of 10 CFR 708.43 until a
request for relief under one of these mechanisms, if any, has been
fully adjudicated, including appeals. With respect to an alleged
retaliation, the Director will generally only take action that is
consistent with the findings of a final decision of an agency or
court. If a final decision finds that retaliation occurred, the
Department will consider whether that retaliation constitutes a
violation of Sec. 708.43, and if so, whether to take action under
part 820. If a final decision finds that no retaliation occurred,
the Director will generally not take any action under part 820 with
respect to the alleged retaliation absent significant new
information that was not available in the prior proceeding.
c. DOE encourages its contractors to cooperate in resolving
whistleblower
[[Page 53342]]
complaints raised by contractor employees in a prompt and equitable
manner. Accordingly, in considering what remedy is appropriate for
an act of retaliation concerning nuclear safety, the Director will
take into account the extent to which a contractor cooperated in
proceedings for remedial relief.
d. In considering what remedy is appropriate for an act of
retaliation concerning nuclear safety, 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.
e. 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.
[FR Doc. 2016-19103 Filed 8-11-16; 8:45 am]
BILLING CODE 6450-01-P