[Federal Register Volume 84, Number 83 (Tuesday, April 30, 2019)]
[Proposed Rules]
[Pages 18164-18175]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-08599]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 84, No. 83 / Tuesday, April 30, 2019 / 
Proposed Rules  

[[Page 18164]]



DEPARTMENT OF ENERGY

10 CFR Part 708

[DOE-OHA-2019-0017]
RIN 1903-AA09


Revisions to the DOE Contractor Employee Protection Program

AGENCY: Office of Hearings and Appeals, Department of Energy.

ACTION: Notice of proposed rulemaking and request for comments.

-----------------------------------------------------------------------

SUMMARY: The DOE Contractor Employee Protection Program extends 
whistleblower protections similar to those in the Whistleblower 
Protection Act to employees of DOE contractors and subcontractors. The 
Office of Hearings and Appeals (OHA) proposes to modernize the 
Department of Energy's (DOE or Department) contractor employee 
whistleblower program, as well as provide improvements within the 
existing program.

DATES: Comments are due by May 30, 2019.

ADDRESSES: Inquiries should be sent to the Office of Hearings and 
Appeals, U.S. Department of Energy, 1000 Independence Ave. SW, 
Washington, DC 20585-0107, (202) 287-1550, Email: 
[email protected]. Comments must identify the Notice of 
Proposed Rulemaking for the DOE Contractor Employee Protection Program. 
Comments may be submitted using any of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov/docket?D=DOE-OHA-2019-0017. Follow the instructions for submitting 
comments.
    2. Email: [email protected].

FOR FURTHER INFORMATION CONTACT: Kristin L. Martin, Attorney-Advisor, 
Office of Hearings and Appeals, U.S. Department of Energy, 1000 
Independence Ave. SW, Washington, DC 20585-0107, (202) 287-1550, Email: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Regulatory History

    While most DOE facilities are run by contractors, and DOE 
contractor employees far outnumber DOE employees, the Whistleblower 
Protection Act only protects federal employees. Therefore, in order to 
ensure safe, well-managed workplaces at its facilities, DOE enacted a 
whistleblower protection program for contractor employees in 1992, the 
DOE Contractor Employee Protection Program, now codified at 10 CFR part 
708. 57 FR 7533 (March 3, 1992). The program underwent a previous 
revision in 1999.

II. Summary of Proposed Revisions

    The OHA proposes the following revisions. All section numbers 
reference the section numbers in the revised regulation.

A. Headings

    The OHA proposes to update Part 708's section headings for clarity, 
so that readers will be able to more quickly pinpoint the location of 
the information they seek. The updated headings may also offer guidance 
when the scope, purpose, or meaning of a section's content is unclear.

B. Sec.  708.2 Definitions

    1. The OHA proposes moving the definition of ``Administrative 
Judge'' so that the definitions are in alphabetical order. The OHA also 
proposes updating this definition to reflect the role Administrative 
Judges will play in Part 708 proceedings under the revised rule.
    2. The OHA proposes adding a definition of ``Alternative Dispute 
Resolution''. OHA believes that this definition better highlights the 
flexibility and scope of DOE's conflict management and resolution 
resources.
    3. The OHA proposes discontinuing the use of the word ``you'' in 
Part 708 to describe employees of contractors. Regulated parties 
include contractors as well as employees and the use of ``you'' makes 
it difficult to distinguish between them. Accordingly, third person 
titles and pronouns are used throughout the part and the definition of 
``you'' has been removed.
    4. For clarity and inclusivity, the OHA proposes to add a clause 
stating that the use of the singular includes the plural and that the 
male pronoun is gender neutral. Such a clause reduces ambiguity and 
allows for more concise language in the regulation.
    5. The OHA proposes to add a definition of ``complainant.''

C. Sec.  708.8 Application to Pending Cases

    The OHA proposes that revisions to Part 708 will apply to cases 
filed on or after the effective date of the finalized revisions.

D. Sec.  708.9 How To File Complaints or Other Documents

    1. Currently, the word ``filed'' is defined separately from the 
filing instructions, which are contained in a subpart with a specific, 
limited scope. The OHA proposes to combine these sections in the 
introductory subpart. This will clarify that the definition and 
instructions apply generally throughout Part 708.
    2. The OHA proposes to mandate that all documents filed with the 
OHA be filed electronically, except when permission is granted to file 
in another manner. Electronic filing is faster, more reliable, and more 
cost-efficient than paper filing. It also coordinates with DOE 
electronic records retention policy. However, not everyone can file 
electronically and some materials are better mailed or faxed for 
logistical reasons. Accordingly, any person wishing to file via non-
electronic means may contact the OHA--whether by phone, email, U.S. 
Mail, or another service--and request permission. The OHA will consider 
granting such requests in circumstances where good cause has been shown 
why the document cannot or should not be filed electronically. This 
section does not affect parties' ability to file documents by any other 
method with any other DOE element.
    3. The OHA proposes to specify that a complaint may be withdrawn by 
the complainant at any time. This codifies the OHA's longstanding 
practice.

E. Sec.  708.10 Informal Resolution of Complaints

    Currently, references to Alternative Dispute Resolution are 
scattered throughout the part. The OHA proposes to consolidate most of 
these references into one section, located in the introductory subpart 
to signal its general applicability. The section reflects DOE's policy 
encouraging the use of Alternative Dispute Resolution and underscores 
the voluntary nature of the process. It also allows for Alternative

[[Page 18165]]

Dispute Resolution at any time during the Part 708 process, but advises 
that the process will not be stayed for Alternative Dispute Resolution. 
Finally, the section describes to whom the parties must submit written 
resolutions reached through Alternative Dispute Resolution.

F. Sec.  708.17 Notification of Complaints and Opportunities To Respond

    1. In a recent decision, the OHA required the office that initially 
received the complaint, in that case the Employee Concerns Program, to 
provide the complainant with the employer's response to the complaint 
and to allow the complainant an opportunity to submit additional 
comments thereafter. In the Matter of Charles K. MacLeod, Case No. WBU-
16-0005 (2016) (Reconsideration). The OHA proposes to codify that 
requirement in Part 708. The section will also require that the 
complainant's additional comments be provided to the employer. Such 
codification allows for a more transparent process.
    2. Codification also allows the OHA to stipulate time limits for 
responses and additional comments. The OHA proposes to extend the time 
for employers to file a response to 15 days. The time period proposed 
for the complainant to submit additional comments is 10 days from 
receipt of the employee's response.

G. Sec.  708.18 Dismissal for Lack of Jurisdiction or Other Good Cause

    1. The OHA proposes to require that decisions dismissing a 
complaint for lack of jurisdiction or other good cause include the 
contact information for OHA's Alternative Dispute Resolution Office 
(ADR Office). Even when a Part 708 complaint is dismissed, the 
underlying workplace conflict often remains. DOE encourages the use of 
Alternative Dispute Resolution to resolve conflict at the lowest level, 
as quickly as possible. Inclusion of the Alternative Dispute Resolution 
Office's contact information in dismissals may encourage the parties to 
continue seeking a resolution to their conflict even after their 
involvement with Part 708 ends.
    2. The OHA proposes to extend the time frame for issuance of a 
decision to dismiss a complaint from 15 to 20 days, in order to 
accommodate the submission of the employer's response and the 
complainant's additional comments, pursuant to proposed Sec.  708.17.

H. Sec.  708.19 Appealing a Dismissal of a Complaint by the Head of 
Field Element or EC Director for Lack of Jurisdiction or Other Good 
Cause

    1. The OHA proposes changing the title of this section to specify 
that it applies to appeals of dismissals by EC Directors or Heads of 
Field Elements. This will differentiate it from appeals of dismissals 
by Administrative Judges. The difference is that dismissals by 
Administrative Judges are initial agency decisions, while dismissals by 
EC Directors of Heads of Field Elements are not.
    2. The OHA proposes adding an appellate standard of review to the 
section describing its procedures for an appeal of an ECP Director or 
Head of Field Element dismissal. Standards of review have long been 
included in other sections of Part 708 and the addition of an appellate 
standard enhances consistency and fairness. The OHA proposes using the 
common appellate standard of review of reviewing findings of fact for 
clear error and reviewing conclusions of law de novo.
    3. The OHA proposes to formally specify that appeals are not 
available concerning decisions not to dismiss a complaint. This has 
been the OHA's longstanding policy. Adding this language to Part 708 
codifies this policy.
    4. The OHA proposes to specify that the OHA Director has the powers 
necessary to adjudicate the appeal proceeding. For example, the OHA 
Director may order briefing or oral argument from the parties if he 
deems it necessary. The OHA proposes to add this language to Sec.  
708.33 for the same reason.

I. Sec.  708.20 Review by the Secretary of Energy of a Decision on 
Appeal of a Dismissal

    The OHA proposes to formally specify that Secretarial review is not 
available concerning appellate decisions to reverse a dismissal of a 
complaint. This has been the OHA's longstanding policy. Adding this 
language to Part 708 codifies the policy.

J. Sec.  708.21 Referral to the Office of Hearings and Appeals

    1. The OHA proposes eliminating the option to have a hearing 
without an investigation. Over the years, OHA has observed that 
investigations are crucial to help refine and clarify the issues for 
hearing. Moreover, the selection of a hearing without an investigation 
by complainants has been rare. From time to time, a complainant has 
requested a hearing without an investigation, usually in an effort to 
obtain a decision more quickly. In such cases, the hearings typically 
became far more wide-ranging, unfocused, and inefficient. Without the 
clarifying work of the investigation, the complainant usually suffers a 
significant disadvantage, and the task of rendering a decision by the 
Administrative Judge becomes more complicated as a result, particularly 
when the complainant lacks legal representation. Accordingly, the 
benefits of requiring an investigation prior to hearing far outweigh 
the benefits of maintaining the option for a hearing without an 
investigation.
    2. The OHA proposes to move information regarding the conduct and 
obligations of OHA personnel and the rights and obligations of parties 
to Sec.  708.21. These provisions are currently included in Sec.  
708.28. However, as they are applicable to appellate proceedings before 
the OHA, the provisions are properly placed at the beginning of Subpart 
C to indicate their general applicability.

K. Sec.  708.22 Investigation of Complaints

    1. The OHA proposes to remove provisions relating to hearings 
without an investigation, pursuant to revisions to Sec.  708.21.
    2. The OHA proposes to amend Sec.  708.22(a) to state that 
investigators may not participate or advise in a case after the 
investigation is completed. This revision allows for the elimination of 
pre-revision Sec.  708.25(b), which stated the same with similar 
language.
    3. The OHA proposes to allow for dismissal of complaints prior to 
the completion of the investigation. The OHA believes this change will 
improve the efficiency of the Part 708 process, while still fully 
protecting the parties' rights. Occasionally, it becomes immediately 
clear after the investigation starts that the complaint lacks merit or 
that the OHA lacks jurisdiction. In such cases, it could be a waste of 
the parties' and the OHA's time and resources to continue with a full 
investigation. Allowing for dismissal prior to the completion of the 
investigation--while still providing an opportunity for appellate 
review if dismissal is believed to be in error--will help to eliminate 
this waste and streamline the process.
    Under the proposed revision, in the event that a complaint, upon 
preliminary investigation, is believed by the investigator to be 
clearly without merit or to lack a jurisdictional basis, the 
investigator may request that the OHA Director appoint an 
Administrative Judge to make a formal determination regarding whether 
dismissal is appropriate. The investigator will provide a written

[[Page 18166]]

statement to the Administrative Judge that will outline the factual and 
legal reasons the investigator has for referring the complaint for 
dismissal. If the Administrative Judge does decide to dismiss the 
complaint, he will issue a decision containing the factual and legal 
bases for dismissal, and serve the decision on all the parties, along 
with the investigator's written statement. If the Administrative Judge 
decides not to dismiss the complaint, he will issue a written statement 
to be served all the parties and order the investigation to continue. 
The Administrative Judge may ask the OHA Director to appoint a new 
investigator.
    Under the proposed revision, for an investigator to refer a 
complaint for dismissal, he must believe that there is no genuine 
dispute of material fact and the complainant's claims are wholly 
without merit, or that the complaint warrants dismissal for one of the 
reasons listed in Sec.  708.18(c). A dismissal for lack of merit prior 
to the completion of an investigation will seldom occur, as the 
applicable standard is quite difficult to meet. First, there must 
appear to be no dispute among the parties as to the relevant facts. 
Second, in light of those undisputed facts, the complainant's claims 
must lack merit--i.e., fail to give rise to an entitlement to relief 
under Part 708. Under those circumstances, and only under those 
circumstances, may the investigator refer the complaint to an 
Administrative Judge for dismissal on the merits. The Administrative 
Judge may exercise all powers necessary, including requesting 
submissions from the parties, to evaluate whether dismissal is 
appropriate. If the Administrative Judge disagrees with the 
investigator's assessment and finds that the parties do not agree on 
all of the relevant facts or that the claims are not entirely without 
merit, he must decline to dismiss the complaint. If the Administrative 
Judge does dismiss the complaint, appeal to the OHA Director and, if 
that fails, Secretarial review are available to the complainant.
    4. The OHA proposes that no report of investigation will be issued 
when a complaint is dismissed prior to the completion of the 
investigation. Without a full investigation, the report of 
investigation would be incomplete. However, the Administrative Judge 
will issue an initial agency decision that will include a summary of 
the factual findings available, which would normally be included in a 
report of investigation, as well as legal conclusions sufficient to 
support an initial agency decision. The Administrative Judge will serve 
the decision on all parties.
    5. The OHA proposes that the procedures in Sec. Sec.  708.32-708.35 
apply to an appeal of a dismissal of a complaint before completion of 
the investigation. These sections govern appeals of all other initial 
agency decisions under Part 708. The OHA proposes amendments to those 
sections and others to accommodate appeals of initial agency decisions 
issued prior to completion of the investigation, such that all parties 
are afforded the same due process.

L. Sec.  708.23 Time To Issue a Report of Investigation

    The OHA proposes to toll the time to issue a report of 
investigation pending an Administrative Judge's decision on whether to 
dismiss a case referred for such purpose by an investigator. OHA 
investigations are quite comprehensive and require significant time to 
complete. Tolling the time to issue the report of investigation is 
necessary to ensure that investigators do not lose valuable time while 
waiting for an Administrative Judge to issue a decision.

M. Sec.  708.26 Time and Location of Hearings

    The OHA proposes to codify the option to conduct Part 708 hearings 
via video teleconference. While this option is already available, 
adding it to the regulation increases transparency and informs 
litigants of this option. Video teleconferencing preserves Department 
resources while maintaining the integrity of the proceedings. The OHA 
currently conducts nearly 90 percent of its personnel security hearings 
via video teleconference and has been successful in maintaining the 
benefits of an in-person hearing while reducing the OHA's travel costs 
to a fraction of their previous levels.

N. Sec.  708.27 The Administrative Judge May Not Require That the 
Parties Participate in Alternative Dispute Resolution

    The OHA proposes to amend the language of Sec.  708.27 to clarify 
the section's purpose. Prior to these revisions, many readers 
interpreted the language of this section as an endorsement of 
Alternative Dispute Resolution similar to others already in the 
regulation. However, the purpose of Sec.  708.27 is to prohibit an 
Administrative Judge from requiring participation in Alternative 
Dispute Resolution. Unlike many state and federal court systems where 
Alternative Dispute Resolution may be ordered, DOE is committed to 
maintaining a voluntary Alternative Dispute Resolution process. 
Accordingly, Alternative Dispute Resolution is widely encouraged, but 
may not be required for litigants of Part 708 complaints.

O. Sec.  708.28 Hearing Procedures

    The OHA proposes to clarify that Administrative Judges issue 
rulings that might result in termination of the proceeding before 
completion of the hearing. This is permitted under the current 
regulation, however the proposed language is clearer and less 
vulnerable to ambiguity.

P. Sec.  708.30 Timing for Issuing an Initial Agency Decision

    The OHA proposes to separate the timing of issuing an initial 
agency decision from the procedures for issuing such.

Q. Sec.  708.31 Procedure for Issuing an Initial Agency Decision

    The OHA proposes to consolidate the procedures for issuing an 
initial agency decision and the procedures for issuing an initial 
agency decision if no hearing was conducted. The procedures are 
identical and separating the standards is redundant. The OHA has also 
moved procedural provisions from Sec.  708.30 to Sec.  708.31, creating 
separate sections for timing and procedure.

R. Sec.  708.33 Procedure for Appeals

    The OHA proposes adding an appellate standard of review to the 
section describing its procedures for an appeal of an initial agency 
decision. Standards of review have long been included in other sections 
of Part 708 and the addition of an appellate standard lends itself to 
consistency and fairness. The OHA proposes using the common appellate 
standard of review of reviewing findings of fact for clear error and 
reviewing conclusions of law de novo. Under the current regulations, 
the appellate procedure allows the OHA Director to initiate an 
investigation and to consider new facts and evidence discovered in the 
appeal decision. This practice is at odds with the proposed appellate 
standard and subverts the deference to be owed to the Administrative 
Judge's fact finding. Accordingly, the OHA proposes to remove this 
provision.
    2. The OHA proposes to specify that the OHA Director has the powers 
necessary to adjudicate the appeal proceeding. For example, the OHA 
Director may order briefing or oral argument from the parties if he 
deems it necessary. The OHA proposes to add this language to Sec.  
708.19 for the same reason.

[[Page 18167]]

S. Sec.  708.34 Procedure for Issuing an Appeal Decision

    1. The OHA proposes to specify two additional ways in which the OHA 
Director may rule on an appeal of an initial agency decision. These 
additional types of rulings are tailored for those situations where the 
complainant is appealing the dismissal of his complaint prior to 
completion of the investigation. Specifically, if the OHA Director 
determines that the complaint was properly dismissed by the 
Administrative Judge, he will deny the appeal. If he determines the 
complaint should not have been dismissed, he will vacate the initial 
agency decision and order further processing of the complaint.
    2. The OHA proposes to specify that an appeal decision to reverse 
dismissal of a complaint is not a final agency action and is not 
subject to a petition for Secretarial review. This has been the OHA's 
longstanding policy. Adding this language to Part 708 codifies the 
policy.

T. Sec.  708.40 Notice of Program Requirements

    The OHA proposes that employers covered by Part 708 be required to 
post the telephone number and website or email address of the DOE 
office at which employees may file complaints. This will be in addition 
to the existing requirement that employers post the name and address of 
such DOE office. Paperless communication is encouraged at DOE and the 
new contact information provided will further the Department's effort 
to increase the usage of paperless communication.

U. Sec.  708.42 Extension of Deadlines

    The OHA proposes to limit remedies available where OHA has not met 
Part 708's timing requirements. A decision should not be vulnerable to 
reversal simply because the OHA or other DOE component does not issue 
it in a timely manner. Specifically, failure by the DOE to comply with 
timing requirements does not create a substantive right for any party 
to overturn a DOE decision on a complaint. The OHA and all DOE 
components will continue to strive to meet all requirements and 
deadlines.

III. Public Comment Procedures

    Interested persons are invited to participate in this rulemaking 
proceeding by submitting data, views, or arguments. Written comments 
should be submitted to the address, and in the form, indicated in the 
ADDRESSES section of this notice of proposed rulemaking. To help DOE's 
review of the comments, interested persons are asked to refer to 
specific proposed rule provisions, if possible.
    The OHA would like to specifically request comment on two elements 
of the proposed rule:
    1. The procedure by which complaints may be dismissed during 
investigations; and
    2. Whether the OHA should be required by the regulation to appoint 
a new investigator in the event that a case is not dismissed after 
being referred for dismissal during an investigation.
    If you submit information that you believe to be exempt by law from 
public disclosure, you should submit one complete copy, as well as one 
copy from which the information requested to be exempt by law from 
public disclosure has been redacted. DOE is responsible for the final 
determination regarding disclosure or nondisclosure of the information, 
and for treating information accordingly under the Freedom of 
Information Act and DOE implementing regulations at 10 CFR part 1004.

IV. Regulatory Review

A. Executive Order 12866

    It was determined that this action is not a significant regulatory 
action subject to review under Executive Order 12866, ``Regulatory 
Planning and Review,'' 58 FR 51735 (Oct. 4, 1993) by the Office of 
Information and Regulatory Affairs (OIRA) of the Office of Management 
and Budget (OMB).

B. Executive Orders 13771, and 13777

    On January 30, 2017, the President issued Executive Order 13771, 
``Reducing Regulation and Controlling Regulatory Costs.'' That Order 
stated the policy of the executive branch is to be prudent and 
financially responsible in the expenditure of funds, from both public 
and private sources. The Order stated it is essential to manage the 
costs associated with the governmental imposition of private 
expenditures required to comply with Federal regulations.
    Additionally, on February 24, 2017, the President issued Executive 
Order 13777, ``Enforcing the Regulatory Reform Agenda.'' The Order 
required the head of each agency designate an agency official as its 
Regulatory Reform Officer (RRO). Each RRO oversees the implementation 
of regulatory reform initiatives and policies to ensure that agencies 
effectively carry out regulatory reforms, consistent with applicable 
law. Further, E.O. 13777 requires the establishment of a regulatory 
task force at each agency. The regulatory task force is required to 
make recommendations to the agency head regarding the repeal, 
replacement, or modification of existing regulations, consistent with 
applicable law. At a minimum, each regulatory reform task force must 
attempt to identify regulations that:
    (i) Eliminate jobs, or inhibit job creation;
    (ii) Are outdated, unnecessary, or ineffective;
    (iii) Impose costs that exceed benefits;
    (iv) Create a serious inconsistency or otherwise interfere with 
regulatory reform initiatives and policies;
    (v) Are inconsistent with the requirements of Information Quality 
Act, or the guidance issued pursuant to that Act, in particular those 
regulations that rely in whole or in part on data, information, or 
methods that are not publicly available or that are insufficiently 
transparent to meet the standard for reproducibility; or
    (vi) Derive from or implement Executive Orders or other 
Presidential directives that have been subsequently rescinded or 
substantially modified.
    Pursuant to OMB's Guidance Implementing Executive Order 13771, 
Titled ``Reducing Regulation and Controlling Regulatory Costs (April 5, 
2017), this action does not constitute an ``E.O. 13771 regulatory 
action'' because it does not meet the E.O. 12866 definition of a 
significant regulatory action. DOE determined, however, that this 
action furthers the policy goals outlined in Executive Order 13777, 
``Enforcing the Regulatory Reform Agenda,'' which encourages the 
repeal, replacement, or modification of existing regulations that, 
among other things, are outdated, unnecessary, or ineffective. Prior to 
this action, Part 708 was outdated and, in some sections, inefficient. 
This action clarifies the regulation and streamlines the proceedings, 
which should result in increased time and resource savings for 
litigants and DOE.

C. 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 (August 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

[[Page 18168]]

rulemaking process (68 FR 7990). DOE has made its procedures and 
policies available on the Office of General Counsel's website: http://www.gc.doe.gov.
    DOE has reviewed this proposed rule under the provisions of the 
Regulatory Flexibility Act and the procedures and policies published on 
February 19, 2003. This proposed rule would alter procedural rules 
primarily for the OHA, with little impact on the conduct of or burdens 
on litigants. DOE has determined that the proposed rule, if adopted, 
would not result in a significant economic impact on a substantial 
number of small entities because few small entities are involved in 
Part 708 proceedings and because the proposed rule contains few changes 
in the obligations of the litigants.
    DOE will provide its certification and supporting statement of 
factual basis to the Chief Counsel for Advocacy of the Small Business 
Administration for review under 5 U.S.C. 605(b).

D. The Paperwork Reduction Act of 1995

    Proposed Part 708 does not contain information collection 
requirements subject to review and approval by OMB under the Paperwork 
Reduction Act.

E. The Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally 
requires Federal agencies to examine closely the impacts of regulatory 
actions on State, local, and tribal governments. Section 101(5) of 
title I of that law defines a Federal intergovernmental mandate to 
include any regulation that would impose upon State, local, or tribal 
governments an enforceable duty, except a condition of Federal 
assistance or a duty arising from participating in a voluntary Federal 
program. Title II of that law requires each Federal agency to assess 
the effects of Federal regulatory actions on State, local, and tribal 
governments, in the aggregate, or to the private sector, other than to 
the extent such actions merely incorporate requirements specifically 
set forth in a statute. Section 202 of that title requires a Federal 
agency to perform a detailed assessment of the anticipated costs and 
benefits of any rule that includes a Federal mandate which may result 
in costs to State, local, or tribal governments, or to the private 
sector, of $100 million or more in any one year (adjusted annually for 
inflation). 2 U.S.C. 1532(a) and (b). Section 204 of that title 
requires each agency that proposes a rule containing a significant 
Federal intergovernmental mandate to develop an effective process for 
obtaining meaningful and timely input from elected officers of State, 
local, and tribal governments. 2 U.S.C. 1534.
    The proposed rule will not result in the expenditure by State, 
local, and tribal governments in the aggregate, or by the private 
sector, of $100 million or more in any one year. Accordingly, no 
assessment or analysis is required under the Unfunded Mandates Reform 
Act of 1995.

F. The Treasury and General Government Appropriations Act, 1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any proposed rule that may affect family 
well-being. The proposed rule will 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 will not preempt State law and will 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 
whether it is unreasonable to meet one or more of them. DOE has 
completed the required review and determined that, to the extent 
permitted by law, the 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 proposed rule under the OMB and DOE guidelines and has 
concluded that it is consistent with applicable policies in those 
guidelines.

J. Delegations

    All DOE delegation orders may be accessed at https://www.directives.doe.gov/.

V. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this notice of 
proposed rulemaking.

List of Subjects in 10 CFR Part 708

    Administrative practice and procedure; Whistleblower Protection.

    Signed in Washington, DC, on: April 22, 2019.
Poli A. Marmolejos,
Director, Office of Hearings and Appeals.

    For the reasons set out in the preamble, the DOE proposes to revise 
part 708 of title 10, Code of Federal Regulations to read as follows:

[[Page 18169]]

PART 708--DOE CONTRACTOR EMPLOYEE PROTECTION PROGRAM

Subpart A--General Provisions
Sec.
708.1 Scope and purpose.
708.2 Definitions.
708.3 Complaints covered.
708.4 Complaints not covered.
708.5 Protected conduct.
708.6 Reasonable fear of serious injury.
708.7 Filing a complaint based on retaliation for refusal to 
participate.
708.8 Application to pending cases.
708.9 How to file complaints or other documents.
708.10 Informal resolution of complaints.
Subpart B--Employee Complaint Resolution Process
708.11 Filing a complaint.
708.12 No expectation of confidentiality.
708.13 Requirements for the form and content of a complaint.
708.14 Exhaustion of grievance-arbitration procedures.
708.15 Time to file a complaint.
708.16 Duplicative actions under State or other law.
708.17 Notification of complaints and opportunities to respond.
708.18 Dismissal for lack of jurisdiction or other good cause.
708.19 Appealing the dismissal of a complaint by the Head of Field 
Element or EC Director for lack of jurisdiction or other good cause.
708.20 Review by the Secretary of Energy of a decision on appeal of 
a dismissal.
Subpart C--Investigation, Hearing and Decision Process
708.21 Referral to the Office of Hearings and Appeals.
708.22 Investigation of complaints.
708.23 Time to issue a report of investigation.
708.24 Hearings not required.
708.25 Appointment of Administrative Judge.
708.26 Time and location of hearings.
708.27 The Administrative Judge may not require that the parties 
participate in alternative dispute resolution.
708.28 Hearing Procedures.
708.29 Burdens of Proof.
708.30 Timing for issuing an initial agency decision.
708.31 Procedure for issuing an initial agency decision.
708.32 Appealing an initial agency decision.
708.33 Procedure for appeals.
708.34 Procedure for issuing an appeal decision.
708.35 Review by the Secretary of Energy of an appeal decision.
708.36 Remedies.
708.37 Reimbursement of costs and expenses.
708.38 Implementation of final agency decision.
708.39 Sections 6 and 7 of the Contract Disputes Act.
708.40 Notice of program requirements.
708.41 Referral to another agency.
708.42 Extension of deadlines.
708.43 Affirmative duty not to retaliate.

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

Subpart A--General Provisions


Sec.  708.1   Scope and purpose.

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


Sec.  708.2   Definitions.

    (a) For purposes of this part:
    Administrative Judge means an attorney appointed by the OHA 
Director to preside over the disposition of a complaint.
    Alternative Dispute Resolution means any technique for resolving 
disputes and managing conflict without resorting to litigation in 
either an administrative or judicial forum. Alternative Dispute 
Resolution techniques include, but are not limited to, mediation, 
facilitation, shuttle diplomacy, partnering, and dispute systems 
design.
    Complainant means an employee who has filed a complaint under 10 
CFR part 708.
    Contractor means a seller of goods or services who is a party to a 
management and operating contract or other type of contract with DOE, 
or subcontract to such a contract, to perform work directly related to 
activities at DOE-owned or -leased facilities.
    Day means a calendar day.
    Discovery means a process used to enable the parties to learn about 
each other's evidence before a hearing takes place, including oral 
depositions, written interrogatories, requests for admissions, 
inspection of property, and requests for production of documents.
    DOE Official means any officer or employee of DOE whose duties 
include program management or the investigation or enforcement of any 
law, rule, or regulation relating to Government contractors or the 
subject matter of a contract.
    EC Director means the Director of the Office of Employee Concerns 
at DOE Headquarters, or any official to whom the Director delegates his 
functions under this part.
    Employee means a person employed by a contractor, and any person 
previously employed by a contractor if that person's complaint alleges 
that employment was terminated for conduct described in Sec.  708.5 of 
this subpart A.
    Field element means a DOE operations office or field office that is 
responsible for the management, coordination, and administration of 
operations at a DOE facility.
    Head of Field Element means the manager or head of a DOE operations 
office or field office, or any official to whom those individuals 
delegate their functions under this part.
    Management and operating contract means an agreement under which 
DOE contracts for the operation, maintenance, or support of a 
Government-owned or -leased research, development, special production, 
or testing establishment that is wholly or principally devoted to one 
or more of the programs of DOE.
    OHA Director means the Director of the Office of Hearings and 
Appeals, or any official to whom the Director delegates his functions 
under this part.
    Party means an employee, contractor, or other party named in a 
proceeding under this part.
    Retaliation means an action (including intimidation, threats, 
restraint, coercion, or similar action) taken by a contractor against 
an employee with respect to employment (e.g., discharge, demotion, or 
other negative action with respect to the employee's compensation, 
terms, conditions, or privileges of employment) that would not have 
been taken but for the employee's disclosure of information, 
participation in proceedings, or refusal to participate in activities 
described in Sec.  708.5 of this subpart.
    (b) Throughout this part, the use of a word or term in the singular 
includes the plural, and the use of the male gender is gender neutral.


Sec.  708.3   Complaints covered.

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


Sec.  708.4   Complaints not covered.

    An employee of a contractor may not file a complaint against his 
employer under this part if:
    (a) The complaint is based on race, color, religion, sex, age, 
national origin, or other similar basis; or
    (b) The complaint involves misconduct that the employee, acting

[[Page 18170]]

without direction from the employer, deliberately caused, or in which 
the employee knowingly participated; or
    (c) Except as provided in Sec.  708.15(a), the complaint is based 
on the same facts for which the employee has chosen to pursue a remedy 
available under:
    (1) Department of Labor regulations at 29 CFR part 24, ``Procedures 
for the Handling of Discrimination Complaints under Federal Employee 
Protection Statutes;''
    (2) Federal Acquisition Regulations, 48 CFR part 3, ``Federal 
Acquisition Regulation; Whistleblower Protection for Contractor 
Employees (Ethics);'' or
    (3) State or other applicable law, including final and binding 
grievance-arbitration, as described in Sec.  708.16 of subpart B; or
    (d) The complaint is based on the same facts in which the employee, 
in the course of a covered disclosure or participation, improperly 
disclosed Restricted Data, national security information, or any other 
classified or sensitive information in violation of any Executive 
Order, statute, or regulation. This part does not override any 
provision or requirement of any regulation pertaining to Restricted 
Data, national security information, or any other classified or 
sensitive information; or
    (e) The complaint deals with ``terms and conditions of employment'' 
within the meaning of the National Labor Relations Act, except as 
provided in Sec.  708.5.


Sec.  708.5   Protected conduct.

    An employee of a contractor may file a complaint against his 
employer alleging that he has been subject to retaliation for:
    (a) Disclosing to a DOE official, a member of Congress, any other 
government official who has responsibility for the oversight of the 
conduct of operations at a DOE site, the employer, or any higher tier 
contractor, information that he reasonably believes reveals--
    (1) A substantial violation of a law, rule, or regulation;
    (2) A substantial and specific danger to employees or to public 
health or safety; or
    (3) Fraud, gross mismanagement, gross waste of funds, or abuse of 
authority; or
    (b) Participating in a Congressional proceeding or an 
administrative proceeding conducted under this part; or
    (c) Subject to Sec.  708.7 of this subpart, refusing to participate 
in an activity, policy, or practice if the employee believed 
participation would--
    (1) Constitute a violation of a Federal health or safety law; or
    (2) Cause the employee to have a reasonable fear of serious injury 
to himself, other employees, or members of the public.


Sec.  708.6   Reasonable fear of serious injury.

    Participation in an activity, policy, or practice may cause an 
employee to have a reasonable fear of serious injury that justifies a 
refusal to participate if:
    (a) A reasonable person, under the circumstances that confronted 
the employee, would conclude there is a substantial risk of a serious 
accident, injury, or impairment of health or safety resulting from 
participation in the activity, policy, or practice; or
    (b) An employee, because of the nature of his employment 
responsibilities, does not have the training or skills needed to 
participate safely in the activity or practice.


Sec.  708.7   Filing a complaint based on retaliation for refusal to 
participate.

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


Sec.  708.8   Application to pending cases.

    The procedures in this part apply in any complaint proceeding filed 
with the Head of Field Element or EC Director, as appropriate, on or 
after the effective date of this part.


Sec.  708.9   How to file complaints or other documents.

    (a) Under this part, a complaint or other document is considered 
filed on the date it is mailed, electronically submitted, or personally 
delivered to the specified official or office.
    (b) A complaint may be withdrawn at any time at the request of the 
complainant.
    (c) Absent exceptional circumstances, all submissions to the Office 
of Hearings and Appeals must be filed electronically in accordance with 
the instructions set forth on the Office of Hearings and Appeals 
website, found at https://www.energy.gov/oha/filing-information. The 
Office of Hearings and Appeals may grant permission to file via mail or 
facsimile.


Sec.  708.10   Informal resolution of complaints.

    (a) DOE encourages the use of alternative dispute resolution. If 
the parties are willing, they can seek to utilize alternative dispute 
resolution techniques, such as settlement discussions or mediation, in 
an attempt to resolve the complaint.
    (b) The parties may engage in alternative dispute resolution at any 
time prior to the issuance of an initial agency decision.
    (c) If the parties resolve the complaint informally, the Head of 
Field Element, EC Director, and the Office of Hearings and Appeals must 
be given a copy of the settlement agreement or a written statement from 
the employee that withdraws the complaint.

Subpart B--Employee Complaint Resolution Process


Sec.  708.11   Filing a complaint.

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


Sec.  708.12   No expectation of confidentiality.

    The identity of an employee who files a complaint under this part 
appears on the complaint. A copy of the complaint is provided to the 
employer and the complainant's identity cannot be maintained as 
confidential.


Sec.  708.13   Requirements for the form and content of a complaint.

    A complaint does not need to be in any specific form but must be 
signed by the employee and contain the following:
    (a) A statement specifically describing
    (1) The alleged retaliation taken against the employee and
    (2) The disclosure, participation, or refusal covered under Sec.  
708.5 that the employee believes gave rise to the retaliation;
    (b) A statement that the complainant is not currently pursuing a 
remedy under State or other applicable law, as described in Sec.  
708.16 of this subpart B;
    (c) A statement that all of the facts that the complainant has 
included in his

[[Page 18171]]

complaint are true and correct to the best of his knowledge and belief; 
and
    (d) An affirmation, as described in Sec.  708.14 of this subpart, 
that the complainant has exhausted all applicable grievance or 
arbitration procedures.


Sec.  708.14   Exhaustion of grievance-arbitration procedures.

    (a) To show that all applicable grievance-arbitration procedures 
have been exhausted, the complainant must:
    (1) State that all available opportunities for resolution through 
an applicable grievance-arbitration procedure have been exhausted, and 
provide the date on which the grievance-arbitration procedure was 
terminated and the reasons for termination; or
    (2) State that the complainant filed a grievance under applicable 
grievance-arbitration procedures, but more than 150 days have passed 
and a final decision on it has not been issued, and provide the date 
that the grievance was filed; or
    (3) State that the employer has established no grievance-
arbitration procedures.
    (b) If the complainant does not provide the information specified 
in Sec.  708.14(a), the complaint may be dismissed for lack of 
jurisdiction as provided in Sec.  708.18 of this subpart B.


Sec.  708.15   Time to file a complaint.

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


Sec.  708.16   Duplicative actions under State or other law.

    (a) An employee may not file a complaint under this part if, with 
respect to the same facts, he chooses to pursue a remedy under State or 
other applicable law, including final and binding grievance-arbitration 
procedures, unless:
    (1) The complaint under State or other applicable law is dismissed 
for lack of jurisdiction;
    (2) The complaint was filed under 48 CFR part 3, subpart 3.9 and 
the Inspector General, after conducting an initial inquiry, determines 
not to pursue it; or
    (3) The employee has exhausted grievance-arbitration procedures 
pursuant to Sec.  708.14, and issues related to alleged retaliation for 
conduct protected under Sec.  708.5 remain.
    (b) Pursuing a remedy other than final and binding grievance-
arbitration procedures does not prevent an employee from filing a 
complaint under this part.
    (c) An employee is considered to have filed a complaint under State 
or other applicable law if he files a complaint, or other pleading, 
with respect to the same facts in a proceeding established or mandated 
by State or other applicable law, whether such a complaint is filed 
before, concurrently with, or after a complaint is filed under this 
part.
    (d) If an employee files a complaint under State or other 
applicable law after filing a complaint under this part, the complaint 
under this regulation will be dismissed under Sec.  708.18(c)(3).


Sec.  708.17   Notification of complaints and opportunities to respond.

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


Sec.  708.18   Dismissal for lack of jurisdiction or other good cause.

    (a) The Head of Field Element or EC Director (as applicable) may 
dismiss a complaint for lack of jurisdiction or for other good cause 
after receiving the complaint, either on his own initiative or at the 
request of a party named in the complaint. Such decisions are generally 
issued by the 20th day after the receipt of the employer's response, 
but not before the complainant has submitted comments on the response 
or his time to do so has elapsed, whichever is soonest.
    (b) The Head of Field Element or EC Director (as applicable) will 
notify the complainant by certified mail, return receipt requested, if 
the complaint is dismissed for lack of jurisdiction or other good 
cause, will give specific reasons for the dismissal and the contact 
information for the DOE's Alternative Dispute Resolution Office, and 
will notify other parties of the dismissal.
    (c) Dismissal for lack of jurisdiction or other good cause is 
appropriate if:
    (1) The complaint is untimely; or
    (2) The facts, as alleged in the complaint, do not present issues 
for which relief can be granted under this part; or
    (3) The complainant filed a complaint under State or other 
applicable law with respect to the same facts as alleged in a complaint 
under this part; or
    (4) The complaint is frivolous or without merit on its face; or
    (5) The issues presented in the complaint have been rendered moot 
by subsequent events or substantially resolved; or
    (6) The employer has made a formal offer to provide the remedy 
requested in the complaint or a remedy that DOE considers to be 
equivalent to what could be provided as a remedy under this part.


Sec.  708.19   Appealing the dismissal of a complaint by the Head of 
Field Element or EC Director for lack of jurisdiction or other good 
cause.

    (a) If a complaint is dismissed by the Head of Field Element or EC 
Director, the administrative process is terminated unless the 
complainant appeals the

[[Page 18172]]

dismissal to the OHA Director by the 10th day after receipt of the 
notice of dismissal as evidenced by a receipt for delivery of certified 
mail. Decisions not to dismiss may not be appealed.
    (b) If the complainant appeals a dismissal to the OHA Director, he 
must send copies of his appeal to the Head of Field Element or EC 
Director (as applicable) and all parties. The appeal must include a 
copy of the notice of dismissal, and state the reasons the dismissal 
was erroneous.
    (c) The OHA Director has all powers necessary to adjudicate the 
appeal. The OHA Director will issue a decision on the appeal and notify 
the parties of the decision by the 30th day after it is received. The 
OHA Director will review findings of fact for clear error and 
conclusions of law de novo.
    (d) The OHA Director's decision, either upholding the dismissal by 
the Head of Field Element or EC Director or ordering further processing 
of the complaint, is the final decision on the appeal, unless a party 
files a petition for Secretarial review by the 30th day after receiving 
the appeal decision.


Sec.  708.20   Review by the Secretary of Energy of a decision on 
appeal of a dismissal.

    (a) By the 30th day after receiving a decision on an appeal under 
Sec.  708.19 from the OHA Director, any party may file a petition for 
Secretarial review of a dismissal with the Office of Hearings and 
Appeals. A decision by the OHA Director to reverse a dismissal may not 
be the subject of a petition for Secretarial review.
    (b) By the 15th day after filing the petition for Secretarial 
review, the petitioning party must file a statement setting forth the 
arguments in support of its position. A copy of the statement must be 
served on the other parties, who may file a response by the 20th day 
after receipt of the statement. Any response must also be served on the 
other parties.
    (c) All submissions permitted under this section must be filed with 
the Office of Hearings and Appeals.
    (d) The Secretary (or his designee) will reverse or revise an 
appeal decision by the OHA Director only under extraordinary 
circumstances. Upon consideration of the petition for Secretarial 
review, the Secretary will direct the OHA Director to issue an order 
either upholding the dismissal by the Head of Field Element or EC 
Director or ordering further processing of the complaint. If the 
dismissal is upheld, this is a final agency action.

Subpart C--Investigation, Hearing and Decision Process


Sec.  708.21   Referral to the Office of Hearings and Appeals.

    (a) If a complaint is not dismissed for lack of jurisdiction or 
other good cause, the Head of Field Element or EC Director (as 
applicable) will forward the complaint to the OHA Director by the later 
of:
    (1) The 25th day after receipt of the employer's response, or
    (2) The 5th day after receipt of an order to continue processing 
the complaint following an appeal of dismissal.
    (b) The Head of the Field Element or EC Director (as applicable) 
will notify all parties that the complaint has been referred to the 
Office of Hearings and Appeals.
    (c) The OHA Director and an Administrative Judge appointed to 
preside over any aspect of a part 708 proceeding are prohibited, 
beginning with the complaint's referral to the OHA and until a final 
agency decision is issued, from initiating or otherwise engaging in ex 
parte discussions with any party on the merits of the complaint.
    (d) In all proceedings under this subpart:
    (1) The parties have the right to be represented by a person of 
their choosing or to proceed without representation. The parties are 
responsible for producing witnesses on their behalf, including 
requesting the issuance of subpoenas, if necessary;
    (2) Formal rules of evidence do not apply, but the OHA may use the 
Federal Rules of Evidence as a guide.


Sec.  708.22   Investigation of complaints.

    (a) The OHA Director will appoint a person to conduct an 
investigation. The investigator may not participate or advise in any 
proceedings in the case subsequent to the investigation's completion.
    (b) The investigator will determine the appropriate scope of 
investigation based on the circumstances of the complaint. The 
investigator may enter and inspect places and records; make copies of 
records; interview persons alleged to have been involved in retaliation 
and other individuals who may have relevant information; take sworn 
statements; and require the production of any documents or other 
evidence.
    (c) All parties must cooperate fully with the investigator by 
making all pertinent evidence available. The contractor must make 
employees available upon request.
    (d) A person being interviewed in an investigation has the right to 
be represented by a person of his choosing.
    (e) Parties to the complaint are not entitled to be present at 
interviews conducted by an investigator.
    (f) If a person other than the complainant requests that his 
identity be kept confidential, the investigator may grant 
confidentiality, but must advise such person that confidentiality means 
that the Office of Hearings and Appeals will not identify the person as 
a source of information to anyone outside the Office of Hearings and 
Appeals, except as required by statute or other law, or as determined 
by the OHA Director to be unavoidable.
    (g) At any point during the investigation, the investigator may 
request that the OHA Director appoint an Administrative Judge to whom 
the complaint will be referred for a decision on whether dismissal is 
appropriate. The investigator will serve the parties with notice of the 
referral. The investigator will submit a written statement to the 
Administrative Judge outlining the reasons he believes dismissal may be 
appropriate and any facts supporting that belief. The Administrative 
Judge will then decide whether to dismiss the complaint. In making such 
decision, the Administrative Judge will have access to the entire 
investigative file. A complaint may be dismissed prior to the 
completion of the investigation for:
    (1) Any reason listed in Sec.  708.18(c), or
    (2) Lack of merit, provided the facts obtained by the investigator 
indicate there is no genuine dispute of material fact.
    The Administrative Judge's decision, regardless of outcome, will be 
served on all the parties.
    (h) If the Administrative Judge decides to dismiss the complaint, 
he will issue an initial agency decision that includes the factual and 
legal bases for the dismissal. The investigator's written statement 
will be attached to the Administrative Judge's initial agency decision 
and served on all the parties. No report of investigation will issue 
for a complaint dismissed by the Administrative Judge following a 
referral for dismissal by the investigator.
    (i) If the Administrative Judge decides not to dismiss the 
complaint, he will issue a written statement to that effect which will 
include the factual and legal basis for his decision. The investigation 
will then continue. The OHA Director may, at his discretion, appoint a 
new investigator.
    (j) Dismissals under Sec.  708.22(h) may be appealed in accordance 
with the procedures set forth in Sec. Sec.  708.32,

[[Page 18173]]

708.33, 708.34, and Sec.  708.35. Decisions not to dismiss under Sec.  
708.22(i) may not be appealed.


Sec.  708.23   Time to issue a report of investigation.

    (a) If the complaint is not dismissed prior to the completion of 
the investigation, the investigator will complete the investigation and 
issue a report of investigation by the 60th day after the complaint is 
received by the Office of Hearings and Appeals, unless the OHA 
Director, for good cause, extends the investigation for no more than 30 
days. If a case is referred for dismissal by an investigator, the time 
to issue the report of investigation stops running on the day of 
referral and, if the Administrative Judge decides against dismissal, 
begins to run again on the day after the Administrative Judge's 
decision issues.
    (b) The investigator will provide copies of the report of 
investigation to the parties. The investigation will not be reopened 
after the report of investigation is issued.


Sec.  708.24   Hearings not required.

    (a) A complainant may withdraw a hearing request after the report 
of investigation is issued. However, the hearing may be canceled only 
if all parties agree that they do not want a hearing.
    (b) If the hearing is canceled, the Administrative Judge will issue 
an initial agency decision pursuant to Sec.  708.31 of this subpart C.


Sec.  708.25   Appointment of Administrative Judge.

    The OHA Director will appoint an Administrative Judge from the 
Office of Hearings and Appeals to conduct a hearing.


Sec.  708.26   Time and location of hearings.

    (a) The Administrative Judge will schedule a hearing to be held by 
the 90th day after issuance of the report of investigation. Any 
extension of the hearing date must be approved by the OHA Director.
    (b) The Administrative Judge will schedule the hearing for a 
location near the site where the alleged retaliation occurred or the 
complainant's place of employment, or at another location that is 
appropriate considering the circumstances of a particular case. 
Hearings may be conducted by video teleconference or other remote 
means, at the Administrative Judge's discretion.


Sec.  708.27   The Administrative Judge may not require that the 
parties participate in alternative dispute resolution.

    The Administrative Judge may recommend, but may not require, that 
the parties attempt to resolve the complaint through alternative 
dispute resolution. Within 5 days of appointment, the Administrative 
Judge will make the contact information for the DOE's Alternative 
Dispute Resolution Office available to the parties.


Sec.  708.28   Hearing Procedures.

    (a) In all hearings under this part:
    (1) Testimony of witnesses is given under oath or affirmation, and 
witnesses must be advised of the applicability of 18 U.S.C. 1001 and 18 
U.S.C. 1621, dealing with the criminal penalties associated with false 
statements and perjury;
    (2) Witnesses are subject to cross-examination; and
    (3) A court reporter will make a transcript of the hearing.
    (b) The Administrative Judge has all powers necessary to regulate 
the conduct of proceedings, including the following.
    (1) The Administrative Judge may order discovery at the request of 
a party, based on a showing that the requested discovery is designed to 
produce evidence regarding a matter, not privileged, that is relevant 
to the subject matter of the complaint.
    (2) The Administrative Judge may permit parties to obtain discovery 
by any appropriate method, including deposition upon oral examination 
or written questions; written interrogatories; production of documents 
or things; permission to enter upon land or other property for 
inspection and other purposes; and requests for admission.
    (3) The Administrative Judge may issue subpoenas for the appearance 
of witnesses on behalf of either party, or for the production of 
specific documents or other physical evidence.
    (4) The Administrative Judge may rule on objections to the 
presentation of evidence; exclude evidence that is immaterial, 
irrelevant, or unduly repetitious; require the advance submission of 
documents offered as evidence; dispose of procedural requests; grant 
extensions of time; determine the format of the hearing; direct that 
written motions, documents, or briefs be filed with respect to issues 
raised during the course of the hearing; ask questions of witnesses; 
direct that documentary evidence be served upon other parties (under 
protective order if such evidence is deemed confidential); and 
otherwise regulate the conduct of the hearing.
    (5) The Administrative Judge may, at the request of a party or on 
his own initiative, dismiss a claim, defense, or party. He may also 
make adverse findings upon the failure of a party or the party's 
representative to comply with a lawful order of the Administrative 
Judge, or, without good cause, to attend a hearing. If the 
Administrative Judge's rulings result in termination of the proceeding 
prior to the completion of the hearing, the Administrative Judge will 
issue an initial agency decision pursuant to Sec.  708.31 of this 
subpart C.
    (6) The Administrative Judge, upon request of a party, may allow 
the parties a reasonable time to file pre-hearing briefs or written 
statements with respect to material issues of fact or law. Any pre-
hearing submission must be limited to the issues specified and filed 
within the time prescribed by the Administrative Judge.
    (7) The parties are entitled to make closing arguments, but post-
hearing submissions are only permitted by direction of the 
Administrative Judge.
    (8) Parties allowed to file written submissions must serve copies 
upon the other parties within the time prescribed by the Administrative 
Judge.


Sec.  708.29   Burdens of Proof.

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


Sec.  708.30   Timing for issuing an initial agency decision.

    The Administrative Judge will issue an initial agency decision on 
the complaint by the 60th day after the later of:
    (a) The date the Administrative Judge approves the parties' 
agreement not to hold a hearing;
    (b) The date the Administrative Judge receives the transcript of 
the hearing; or
    (c) The date the Administrative Judge receives post-hearing 
submissions permitted under Sec.  708.28(b)(7) of this subpart C.

[[Page 18174]]

Sec.  708.31   Procedure for issuing an initial agency decision.

    (a) The Administrative Judge will serve the initial agency decision 
on all parties.
    (b) An initial agency decision issued by the Administrative Judge 
will contain appropriate findings, conclusions, an order, and the 
factual basis for each finding, whether or not a hearing has been held 
on the complaint. In making such findings, the Administrative Judge may 
rely upon, but is not bound by, the report of investigation.
    (c) If the Administrative Judge determines that an act of 
retaliation has occurred, the initial agency decision will include an 
order for any form of relief permitted under Sec.  708.36. If the 
Administrative Judge does not determine that an act of retaliation has 
occurred, the initial agency decision will state that the complaint is 
denied.


Sec.  708.32   Appealing an initial agency decision.

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


Sec.  708.33   Procedure for appeals.

    (a) By the 15th day after filing a notice of appeal under Sec.  
708.32, the appellant must file a statement identifying the issues that 
it wishes the OHA Director to review. A copy of the statement must be 
served on the other parties, who may file a response by the 20th day 
after receipt of the statement. Any response must also be served on the 
other parties.
    (b) In considering the appeal, the OHA Director:
    (1) Will possess all powers necessary to adjudicate the appeal.
    (2) Will review findings of fact for clear error and conclusions of 
law de novo; and
    (3) Will close the record on appeal after receiving the last 
submission permitted under this section.


Sec.  708.34   Procedure for issuing an appeal decision.

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


Sec.  708.35   Review by the Secretary of Energy of an appeal decision.

    (a) By the 30th day after receiving an appeal decision from the OHA 
Director, any party may file a petition for Secretarial review with the 
Office of Hearings and Appeals.
    (b) By the 15th day after filing a petition for Secretarial review, 
the petitioner must file a statement identifying the issues that it 
wishes the Secretary to consider. A copy of the statement must be 
served on the other parties, who may file a response by the 20th day 
after receipt of the statement. Any response must also be served on the 
other parties.
    (c) All submissions permitted under this section must be filed with 
the Office of Hearings and Appeals.
    (d) The Secretary (or his designee) will reverse or revise an 
appeal decision by the OHA Director only under extraordinary 
circumstances. In the event the Secretary determines that a revision in 
the appeal decision is appropriate, the Secretary will direct the OHA 
Director to issue a revised decision which is the final agency action 
on the complaint. In the event the Secretary determines to reverse an 
appeal decision dismissing the complaint, the Secretary may, as 
appropriate, direct the OHA Director to issue a revised decision 
ordering further processing of the complaint. If no further processing 
is ordered, the Secretary's decision is the final agency action on the 
complaint.


Sec.  708.36   Remedies.

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


Sec.  708.37   Reimbursement of costs and expenses.

    If a complaint is denied by a final agency decision, the 
complainant will not be reimbursed for the costs and expenses incurred 
in pursuing the complaint.


Sec.  708.38   Implementation of final agency decision.

    (a) The Head of Field Element having jurisdiction over the contract 
under which the complainant was employed when the alleged retaliation 
occurred, or EC Director, will implement a final

[[Page 18175]]

agency decision by forwarding the decision and order to the contractor, 
or subcontractor, involved.
    (b) An employer's failure or refusal to comply with a final agency 
decision and order under this regulation may result in a contracting 
officer's decision to disallow certain costs or terminate the contract 
for default. In the event of a contracting officer's decision to 
disallow costs or terminate a contract for default, the contractor may 
file a claim under the disputes procedures of the contract.


Sec.  708.39   Sections 6 and 7 of the Contract Disputes Act.

    A final agency decision and order issued pursuant to this 
regulation is not considered a claim by the government against a 
contractor or ``a decision by the contracting officer'' under sections 
6 and 7 of the Contract Disputes Act (41 U.S.C. 605 and 41 U.S.C. 606).


Sec.  708.40   Notice of program requirements.

    Employers 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, address, telephone 
number, and website or email address of the DOE office where employees 
can file complaints under this part.


Sec.  708.41   Referral to another agency.

    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.


Sec.  708.42   Extension of deadlines.

    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). Failure by the DOE to comply with 
timing requirements does not create a substantive right for any party 
to overturn a DOE decision on a complaint.


Sec.  708.43   Affirmative duty not to retaliate.

    DOE contractors will not retaliate against any employee because the 
employee (or any person acting at the request of the employee) has 
taken an action listed in Sec.  708.5(a) through Sec.  708.5(c).

[FR Doc. 2019-08599 Filed 4-29-19; 8:45 am]
 BILLING CODE 6450-01-P