[Federal Register Volume 84, Number 149 (Friday, August 2, 2019)]
[Rules and Regulations]
[Pages 37752-37763]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-16569]
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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: Final rule.
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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) is amending its regulations to
modernize the Department of Energy's (DOE or Department) contractor
employee whistleblower program, as well as to provide improvements
within the existing program.
DATES: This final rule is effective October 1, 2019.
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]. Inquiries must identify the final rule for
the DOE Contractor Employee Protection Program.
SUPPLEMENTARY INFORMATION:
I. Background
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). On April 30, 2019, the OHA published a
Notice of Proposed Rulemaking (84 FR 18164) proposing the first
revision to the program since 1999.
II. Summary of Final Rule
The final rule makes the following revisions to part 708. All
section numbers reference the section numbers in the revised
regulation.
A. Headings
The final rule updates part 708's section headings for clarity, so
that
[[Page 37753]]
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 final rule moves the definition of ``Administrative Judge''
so that the definitions are in alphabetical order. The final rule also
updates this definition to reflect the role Administrative Judges will
play in part 708 proceedings under the revised rule.
2. The final rule adds a definition of ``Alternative Dispute
Resolution.'' The OHA believes that this definition better highlights
the flexibility and scope of DOE's conflict management and resolution
resources.
3. The final rule discontinues 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 final rule adds 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 final rule adds a definition of ``complainant.''
C. Sec. 708.8 Application to Pending Cases
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. The final rule combines the filing instructions and the
definition of ``filed'' into one section located in the introductory
subpart. This will clarify that the definition and instructions apply
generally throughout part 708.
2. The final rule mandates 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 policies. 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 final rule specifies 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
The final rule consolidates most references to Alternative Dispute
Resolution 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
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 final rule codifies 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 final rule extends the time for
employers to file a response to 15 days. The time period 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 final rule requires 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 final rule extends 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 final rule changes 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 final rule adds 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 final rule incorporates
the common appellate standard of review of reviewing findings of fact
for clear error and reviewing conclusions of law de novo.
3. The final rule formally specifies 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 final rule specifies 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 final rule adds this language to Sec. 708.33
for the same reason.
[[Page 37754]]
I. Sec. 708.20 Review by the Secretary of Energy of a Decision on
Appeal of a Dismissal
The final rule formally specifies 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 final rule eliminates 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 final rule moves information regarding the conduct and
obligations of OHA personnel and the rights and obligations of parties
to Sec. 708.21. These provisions were previously included in Sec.
708.28. However, as they are applicable to all part 708 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 final rule removes provisions relating to hearings without
an investigation, pursuant to revisions to Sec. 708.21.
2. The OHA final rule amends 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 final rule allows 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.
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 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 on all the parties and order the
investigation to continue. The Administrative Judge may ask the OHA
Director to appoint a new investigator.
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 final rule states 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 final rule states 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 final rule amends
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 final rule tolls 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 final rule codifies 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
[[Page 37755]]
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 final rule amends 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 final rule clarifies that Administrative Judges may issue
rulings that might result in termination of the proceeding before
completion of the hearing. This was permitted under previous versions
of the regulation, however the new language is clearer and less
vulnerable to ambiguity.
P. Sec. 708.30 Timing for Issuing an Initial Agency Decision
The final rule separates 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 final rule consolidates the procedures for issuing an initial
agency decision and the procedures for issuing an initial agency
decision if no hearing was conducted. The final rule also moves
procedural provisions from Sec. 708.30 to Sec. 708.31, creating
separate sections for timing and procedure.
R. Sec. 708.33 Procedure for Appeals
1. The final rule adds 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 final rule incorporates the common
appellate standard of review of reviewing findings of fact for clear
error and reviewing conclusions of law de novo. The final rule removes
the OHA Director's ability to initiate an investigation and to consider
new facts and evidence discovered in the appeal decision. This practice
is at odds with the new appellate standard and subverts the deference
to be owed to the Administrative Judge's fact finding.
2. The final rule specifies 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 final rules adds this language to Sec. 708.19
for the same reason.
S. Sec. 708.34 Procedure for Issuing an Appeal Decision
1. The final rule specifies 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 final rule specifies 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 final rule requires employers covered by part 708 to post the
telephone number and website or email address of the DOE office at
which employees may file complaints. This is 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 final rule limits 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. Response to Public Comment
In the Notice of Proposed Rulemaking, the OHA specifically
requested 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.
The OHA received only one comment, which did not address either of
the elements mentioned above.
The received comment expressed concern that the proposed rule did
not highlight the protections afforded to whistleblowers under federal
statutes and Department of Labor regulations. While the OHA recognizes
the importance of those whistleblower programs and of notifying
whistleblowers of their rights, the OHA does not administer those
programs. It would be inappropriate for an OHA rulemaking to impose any
requirement related to programs that the OHA does not administer.
Therefore, for the reasons discussed in the preamble and the proposed
rule (84 FR 18164; April 30, 2019), the OHA is publishing the
rulemaking as proposed.
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
[[Page 37756]]
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 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 final rule under the provisions of the
Regulatory Flexibility Act and the procedures and policies published on
February 19, 2003. This final rule alters procedural rules primarily
for the OHA, with little impact on the conduct of or burdens on
litigants. DOE has determined that the final rule will 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 final 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 final 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 final 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 final 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
[[Page 37757]]
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 final 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 final 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 final
rule.
List of Subjects in 10 CFR Part 708
Administrative practice and procedure; Whistleblower Protection
Signed in Washington, DC, on July 26, 2019.
Poli A. Marmolejos,
Director, Office of Hearings and Appeals.
For the reasons set out in the preamble, the DOE revises part 708
of title 10, Code of Federal Regulations to read as follows:
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 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.
[[Page 37758]]
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.
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
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
[[Page 37759]]
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;
(c) A statement that all of the facts that the complainant has
included in his 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 paragraph (a) of this section, the complaint may be dismissed for
lack of jurisdiction as provided in Sec. 708.18 of this subpart.
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
[[Page 37760]]
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 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
[[Page 37761]]
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. The Administrative Judge's decision, regardless of
outcome, will be served on all the parties. 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.
(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 paragraph (h) of this section may be appealed
in accordance with the procedures set forth in Sec. Sec. 708.32,
708.33, 708.34, and 708.35. Decisions not to dismiss under paragraph
(i) of this section 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.
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,
[[Page 37762]]
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.
(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.
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
[[Page 37763]]
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 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 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. Sec.
708.22 through 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 (c).
[FR Doc. 2019-16569 Filed 8-1-19; 8:45 am]
BILLING CODE 6450-01-P