Criteria and Procedures for DOE Contractor Employee Protection Program; Department of Energy Acquisition Regulations

SUMMARY: This document provides the text of a revised regulation

governing the Department of Energy's (DOE) contractor employee

protection program. The program provides procedures to protect

employees of DOE contractors who believe they have suffered retaliation

for disclosing information concerning danger to health or safety,

substantial violations of law, or gross mismanagement; for

participating in Congressional proceedings; or for refusing to

participate in dangerous activities. This rulemaking also makes

conforming changes to procurement regulations to address the expanded

scope of the Department's whistleblower protection program.

DATES: It is effective April 14, 1999. Interested persons may submit

comments by May 14, 1999.

ADDRESSES: Comments may be mailed to Roger Klurfeld, Assistant

Director, or Thomas O. Mann, Deputy Director, Office of Hearings and

Appeals, Department of Energy, 1000 Independence Avenue, SW,

Washington, DC 20585-0107, telephone number 202-426-1449, FAX 202-426-

1415, e-mail: [email protected], [email protected].

FOR FURTHER INFORMATION CONTACT: Roger Klurfeld, Assistant Director, or

Thomas O. Mann, Deputy Director, Office of Hearings and Appeals,

Department of Energy, 1000 Independence Avenue, SW, Washington, DC

20585-0107, telephone number 202-426-1449, FAX 202-426-1415, e-mail:

[email protected], tho[email protected].

SUPPLEMENTARY INFORMATION:

I. Introduction and Background

In exercising its proprietary responsibilities for the control and

management of its nuclear weapon maintenance and environmental cleanup

sites, research and development laboratories, test sites, and other

Government-owned or -leased facilities, the DOE must take steps to

safeguard public and employee health and safety; ensure compliance with

applicable laws, rules, and regulations; and prevent fraud,

mismanagement, waste, and abuse. To this end, the Secretary of Energy

has taken vigorous action to assure that all such DOE facilities are

well-managed and efficient, while at the same time operated in a manner

that does not expose the workers or the public to needless risks or

threats to health and safety. The DOE is endeavoring to involve both

Federal and contractor employees in a partnership to aggressively

identify problems and seek their resolution. In that regard, employees

of DOE contractors are encouraged to come forward with information that

they reasonably and in good faith believe evidences unsafe, unlawful,

fraudulent, or wasteful practices. Employees providing such information

are entitled to protection from consequent retaliation by their

employers with respect to compensation, and the terms, conditions, or

privileges of employment.

The original rule was published in the Federal Register on March 3,

1992 (57 FR 7533). In order to assure workplace conditions at DOE

facilities that are harmonious with safety and good management, the

rule was intended to improve the procedures for resolving complaints of

retaliation by establishing procedures for independent fact-finding and

hearing before a Hearing Officer at the affected DOE field

installation, followed by an opportunity for review by the Secretary or

his designee. These procedures were made available to those contractor

employees who alleged health and safety violations, but were not

covered by the Department of Labor regulations in 29 CFR part 24. In

addition, contractor employees who alleged employment retaliation

resulting from the disclosure of information relating to waste, fraud,

or mismanagement, or from the participation in proceedings conducted

before Congress or pursuant to the rule, or from the refusal to engage

in illegal or dangerous activities, could also utilize the procedures

regardless of whether they are covered by the health and safety

protection procedures of the Department of Labor. This rule was not

intended to cover complaints of retaliation stemming from or relating

to other types of discrimination by contractors, such as discrimination

based on race, color, religion, sex, age, national origin, or other

similar basis.

After the rule had been in effect for more than four years, the

Department took steps to obtain the views of interested parties on its

operation. A Notice of Inquiry was published on October 25, 1996 (61 FR

55230), in which DOE invited members of the public, particularly those

persons with experience under the DOE contractor employee protection

program (e.g., contractors, complainants and attorneys), to recommend

regulatory changes that might help to streamline the process and make

it more responsive to the needs of both complainants and contractors.

Comments were received from 28 individuals or organizations in response

to the Department of Energy's Notice of Inquiry.

The procedures set forth in Part 708 are designed specifically to

deal with allegations of retaliation against contractor employees and

to provide relief where appropriate. Retaliation against contractor

employees may also lead to the imposition of penalties under the Price

Anderson Amendments Act of 1988 (Pub. L. 100-49, August 20, 1988),

implemented by DOE under 10 CFR part 820 (Part 820). Pursuant to Part

820, to the extent an act of retaliation by a DOE contractor results

from an employee's involvement in matters of nuclear safety in

connection with a DOE nuclear activity, the retaliation could

constitute a violation of a DOE Nuclear Safety Requirement. The

retaliation could therefore be subject to the investigatory and

adjudicatory procedures of both part 820 and part 708, and could

warrant relief to the employee under Part 708 and the imposition of

civil penalties on the DOE contractor under part 820. A full discussion

of the relationship between this part and 10 CFR part 820 and the

procedures that are followed in situations where an alleged act of

retaliation falls under both this part and part 820 can be found in

Federal Register Volume 57, No. 95, Friday, May 15, 1992, at 20796-98.

After considering the comments received in response to the Notice

of Inquiry, DOE published a Notice of Proposed Rulemaking (NOPR) in the

Federal Register on January 5, 1998 (63 FR 733), which suggested

substantial revisions to Part 708. DOE received a number of comments on

those proposed revisions. In response to the comments on the NOPR, DOE

has made extensive procedural changes to part 708. To give the public

further opportunity to comment, this regulation is being issued as an

interim final rule, effective 30 days after the date of publication in

the Federal Register. The public will have 60 days after the date of

publication to submit comments on the interim final rule.

[[Page 12863]]

II. Summary of Changes

Since publishing the NOPR, DOE has rewritten Part 708 in ``plain

language'' style, consistent with the ``Memorandum on Plain Language in

Government Writing'' which the President issued on June 1, 1998. We

have broken down the regulatory sections into more discrete units that

are easier to understand. The section titles are in the form of

questions to help guide a reader through the procedures in the rule. In

addition, we have rearranged the order of some sections. As a result,

the section numbers in this interim final rule do not correspond to

their precursors in either the original rule or the NOPR.

DOE has modified the employee coverage in Secs. 708.2 and 708.3 by

eliminating the requirement that to be eligible for protection under

this rule, complainants must be employed by contractors performing work

on sites that DOE owns or leases. The new language instead covers

employees of contractors performing work directly related to activities

at DOE-owned or -leased sites, even if the contractor is located, or

the work is performed, off-site. An example is an employee involved in

the preparation of environmental impact statements related to programs

and activities on DOE-owned and -leased sites. Accordingly, we have

deleted the definition of ``work performed on-site,'' previously found

in Sec. 708.4. We are making conforming changes to the Department of

Energy Acquisition Regulations (DEAR) provisions regarding coverage. In

addition, DOE has deleted the provision, found in the original 1992

version of Sec. 708.2(a), that the underlying procurement contract

contain a clause requiring compliance with all applicable safety and

health regulations. This provision is no longer necessary since DOE

contracts now require compliance with Part 708 when specifically

applicable.

In order to avoid duplicate review of allegations of whistleblower

retaliation under various Federal statutes and regulations, the interim

final rule in Sec. 708.4 excludes from coverage employee complaints

that are submitted for review under Department of Labor regulations

found at 29 CFR part 24, ``Procedures for the Handling of

Discrimination Under Federal Employee Protection Statutes.'' These

would include complaints submitted by DOE contractor employees under

section 211(a) of the Energy Reorganization Act of 1974 (42 U.S.C.

5851(a)). That Act added protection for employees of ``a contractor or

subcontractor of the Department of Energy that is indemnified by the

Department of Energy under section 170d. of the Atomic Energy Act of

1954 (42 U.S.C. 2210(d)), but such term shall not include any

contractor or subcontractor covered by Executive Order 12344.''

Section 6006 of the Federal Acquisition Streamlining Act of 1994

(Public Law 103-355) (section 6006) afforded additional protections to

contractor employees against retaliation for disclosing information to

a Member of Congress, or an authorized official of an agency or of the

Department of Justice, relating to a substantial violation of law

related to a contract (including the competition for or negotiation of

a contract). Section 6006 assigns responsibilities to Inspectors

General (including the Inspector General for the Department of Energy)

to implement these protections. Section 708.4 excludes from coverage

employee complaints that are submitted for review to the DOE Office of

Inspector General pursuant to section 6006. The regulation implementing

section 6006 is found at 48 CFR part 3, Subpart 3.9, ``Whistleblower

Protections for Contractor Employees.''

The Office of Contractor Employee Protection, and the position of

Director of the Office of Contractor Employee Protection, no longer

exist within DOE. We have removed references to the ``Office of

Contractor Employee Protection'' and the ``Director of the Office of

Contractor Employee Protection'' from the interim final rule. DOE has

reassigned the functions previously assigned to the Director of the

Office of Contractor Employee Protection to other officials.

Under Sec. 708.17(a) of the interim final rule, the Director of the

Office of Employee Concerns or the ``Head of Field Element'' (i.e., the

manager of the local DOE office) can dismiss a complaint for lack of

jurisdiction or other good cause. An employee may appeal a dismissal at

this initial stage to the Director of the Office of Hearings and

Appeals (OHA) under Sec. 708.18(a). In addition, the OHA Director will

consider appeals of Hearing Officer decisions. The OHA Director's

appeal decision, either on jurisdiction or on the merits of an

individual case, will be the final agency action, except when a

``petition for Secretarial review'' is filed under Sec. 708.19

(jurisdiction) or Sec. 708.35 (appeal on the merits). The Secretary

will reverse or revise a decision by the OHA Director only under

extraordinary circumstances.

DOE has amended the language now contained in Secs. 708.5(a)(1) and

708.5(a)(3) to afford protection for disclosures of ``substantial''

violations of laws, rules or regulations and ``gross'' mismanagement,

instead of ``violations of laws, rules or regulations'' and

``mismanagement.''

Section 708.5(a) of the interim final rule expands coverage of

disclosures to include those made to other government officials, such

as those from other Federal or state agencies who have responsibility

for oversight of activities on DOE-owned or -leased sites.

Section 708.5(a) of the interim final rule further defines the

nature of the disclosure, requiring that the employee's disclosure

involves information he or she ``reasonably and in good faith

believes'' is true. The previous rule in Sec. 708.5(a)(1) only required

that the complainant ``in good faith believes'' the information he or

she disclosed. The ``reasonableness'' criterion is consistent with the

Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16

(1989) (codified at scattered sections of 5 U.S.C.), and many state

statutes which afford protection to both public and private sector

employees against retaliation for whistleblowing activities.

The standard adopted in Secs. 708.5 through 708.7 is analogous to

that adopted for the rights of employees to stop work in the face of

health and safety concerns in the Department of Labor regulations under

the Occupational Safety and Health Act (the OSH Act). Thus, 29 CFR

1977.12(b)(2) provides that an employee who, ``with no reasonable

alternative, refuses in good faith to expose himself to the dangerous

condition,'' is protected against discrimination based on that conduct

where ``the employee's apprehension of death or injury [is] of such a

nature that a reasonable person, under the circumstances then

confronting the employee, would conclude that there is a real danger of

death or serious injury * * *'' and where there is insufficient time or

opportunity either to seek effective redress from the employer or to

notify the Occupational Safety and Health Administration of the danger.

See Section 11(c) of the OSH Act.

Similarly, under Part 708 an employee's refusal to participate in

an activity, policy, or practice is protected where ``[a] reasonable

person, under the circumstances that confronted the employee, would in

good faith 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 * * * .'' Section 708.6(a).

Moreover, under Sec. 708.7 the employee must have asked the contractor

to

[[Page 12864]]

correct the problem, and the contractor must have refused to do so. In

addition, for the refusal to participate to constitute a protected

refusal under Part 708, the employee must have notified a DOE official,

a Member of Congress, or a government official with responsibility over

such matters within thirty days after the refusal to participate.

We further recognize that employees who stop work may be considered

to have engaged in an unprotected work stoppage for which the employer

is free to take action under the Labor Management Relations Act (LMRA)

unless they do so ``in good faith because of abnormally dangerous

conditions * * *'' See LMRA, Section 502. We did not receive any

comments suggesting that there has been a conflict with Section 502 of

the LMRA. However, we would be interested in any comments directed to

actual concerns in this regard.

Section 708.14 of the interim final rule increases the time limit

for filing a complaint from 60 to 90 days. The time limit for filing a

complaint will still be tolled while a complainant is seeking remedial

action through internal contractor procedures. DOE still requires the

exhaustion of internal grievance procedures, but the interim final rule

permits individuals to file a complaint under Part 708 if they have not

received a response on a grievance relating to the complaint within 150

days of filing of the grievance. The program will no longer permit an

employee to bypass an internal grievance procedure on the grounds that

it is ``ineffectual,'' and we have deleted the provision formerly found

in Sec. 708.6(c)(2) from the corresponding provision, Sec. 708.13, of

the interim final rule. The reason for this change is to encourage the

use of internal grievance procedures to resolve allegations of

retaliation at the earliest stage possible.

Under Sec. 708.15(a), as long as the complainant is pursuing final

and binding grievance-arbitration processes, a complaint under this

regulation will be dismissed for lack of jurisdiction. After exhausting

such procedures, an individual is free to file a complaint under Part

708 to resolve any remaining issues under Sec. 708.5. Such a complaint

may be dismissed for good cause, however, as provided in Sec. 708.17

(for example, if the issues in the complaint have been substantially

resolved or the employer has made a formal offer to provide a remedy

that DOE considers to be equivalent to what would be provided as a

remedy under this regulation). This approach respects the labor-

management relationship that applies to many DOE contractor employees,

and is consistent with the deference given to final and binding

arbitration decisions issued under collective bargaining agreements.

Section 708.16(a) provides that within 15 days of receiving a

complaint, the EC Director or the Head of Field Element will give the

respondent contractor a copy of the complaint and advise the contractor

that it has ten business days after receipt of the complaint to submit

comments to the appropriate DOE office. Section 708.16(b) has been

added to require that notice and an opportunity for comment also be

provided to labor organizations on complaints filed by employees they

represent.

Under Sec. 708.18, the OHA Director is responsible for deciding

initial appeals of dismissals of complaints on jurisdictional grounds.

Under Sec. 708.8(c) of the original rule, the Deputy Secretary, as the

delegee of the Secretary, routinely made these decisions. In practice,

however, that system has proved to be inefficient, and DOE believes the

OHA Director will be better able to process jurisdictional appeals on

an expedited basis. The OHA Director's decision on a jurisdictional

appeal is the final agency decision unless a party files a petition for

Secretarial review within 30 days under Sec. 708.19. The Secretary will

reverse or revise a decision by the OHA Director only under

extraordinary circumstances.

Section 708.21 encourages informal resolution of complaints, and

language has been added to recommend the use of mediation to settle

disputes. We have deleted the provision in Sec. 708.8(b) of the

original rule that ``the Head of the Field Element or designee shall

enter into a settlement agreement which terminates the complaint.''

That provision is unnecessary, since the only parties to a settlement

under part 708 would be the contractor and its employee.

If the parties cannot resolve a complaint by informal means such as

mediation, a complainant has two options for referral to the OHA under

Sec. 708.21: a hearing without an investigation, or an investigation

followed by a hearing. This departs from the procedure under the

previous rule, which provided that all complaints that were accepted

and that had not been resolved informally were investigated before the

parties had the right to request a hearing.

If a complainant requests an investigation followed by a hearing,

the OHA Director will appoint an investigator under Sec. 708.22. The

OHA investigator will investigate the complaint under Sec. 708.22, and

issue a report of investigation under Sec. 708.23 within 60 days. The

OHA Director may extend the deadline for completion of an investigation

only once by up to 30 days under Sec. 708.23(a).

If the OHA convenes a hearing, under Sec. 708.26(a) it will take

place within 90 days after receipt of the complaint, or issuance of the

report of investigation, whichever is later. This represents a change

from Sec. 708.9(b) in the original rule, which required the hearing to

take place within 60 days. As a practical matter, the 60 day deadline

did not always give the parties sufficient preparation time, and it

routinely had to be extended. Under Sec. 708.24, the parties can agree

to cancel a hearing, in which case the Hearing Officer will issue the

initial agency decision based on the existing record.

The hearing procedures are contained in Secs. 708.25 through

708.28. DOE has added language in Secs. 708.28(b)(1) and 708.28(b)(2)

authorizing the Hearing Officer, at the request of a party, to provide

for reasonable discovery by the parties. Discovery is a process used to

enable a party to learn about the other party's evidence before a

hearing takes place. Discovery eliminates the element of surprise from

a hearing, and it can facilitate the settlement of disputes. It can

take the form of ``oral depositions,'' where a representative of one

party asks questions of a witness for the other party. The deposition

is recorded and transcribed by a court reporter. Discovery can also

take the form of written ``interrogatories,'' where one party gives

written questions to a witness for the other party, who answers them in

writing. Additionally, one party may make a ``request for production of

documents'' of the other party. A party may also request permission to

enter and inspect the property and facilities of the other party.

Finally, ``requests for admissions'' is another form of written

discovery by which one party asks the other party to admit certain

facts.

The burdens of proof for the complainant and for the contractor are

set out in a separate section, Sec. 708.29, for emphasis. An employee

can also argue that the claimed legitimate reason for taking action

against the employee was a pretext for retaliation. The Hearing Officer

will issue an initial agency decision under Sec. 708.30 (if a hearing

is held) or Sec. 708.31 (if no hearing is held). The legal standard in

Sec. 708.29 applies to all cases, whether or not a hearing is held. The

interim final rule extends the time for issuing the initial agency

decision from 30 to 60 days after the cancellation of the hearing,

receipt of the transcript, or

[[Page 12865]]

receipt of the post-hearing submissions, whichever occurs later.

Appeals of cases will now go to the OHA Director for his review

rather than directly to the Secretary or his designee. Any party may

appeal an initial agency decision from an OHA Hearing Officer to the

OHA Director under Sec. 708.32, and procedures for considering an

appeal are set out in Sec. 708.33. Under Sec. 708.34, the OHA Director

will be responsible for issuing the decision on an appeal within 60

days after he closes the record. A party aggrieved by a Hearing Officer

decision has not exhausted its administrative remedies until it files

an appeal with the OHA Director and the OHA Director issues a decision

granting or denying the appeal. The OHA Director's decision on an

appeal is the final agency decision unless a party files a petition for

Secretarial review within 30 days under Sec. 708.35. The Secretary will

reverse or revise a decision by the OHA Director only under

extraordinary circumstances. The types of relief that DOE may order now

appear in Sec. 708.36.

The right to petition for Secretarial review has been retained to

emphasize DOE's strong, ongoing commitment to whistleblower protection.

DOE anticipates that petitions for Secretarial review will be

relatively rare under this interim final rule, and that the appeal

decisions issued by the OHA Director, either on jurisdiction or on the

merits of an individual case, will be the final agency action in most

cases. This is consistent with the Department of Labor's procedures. In

1996, the Department of Labor amended its whistleblower procedures to

eliminate final appellate review by the Secretary, and created an

Administrative Appeals Board analogous to the OHA Director responsible

for handling them. 61 FR 19978. The Department of Labor's new system

was set up to cure inefficiencies and reduce delays in issuing final

agency decisions. DOE has decided to transfer appeals from the

Secretary to the OHA Director with the same goals in mind. These

changes from the process described in the NOPR will expedite the final

resolution of whistleblower complaints by DOE.

The extant OHA management structure ensures that the different

functions for which OHA will now be responsible under part 708 will be

performed by different staff members. The OHA has used a similar

separation of functions in other programs for over 25 years, and it has

worked successfully to ensure the fair and equitable treatment of

initial and appellate submissions by independent decision-makers.

We have added a new section (Sec. 708.8) to the interim final rule

to explicitly state that the revised procedures shall apply in any

complaint proceeding pending at the informal resolution stage, the

investigative stage or the hearing stage on the effective date of this

rule. Appeals currently pending before the Secretary's designee, the

Deputy Secretary, will be decided by the Deputy Secretary (rather than

be transferred to the OHA Director). It is well established in the law

that an agency may apply new procedural rules in pending proceedings as

long as their application does not impair the rights of, or otherwise

cause injury or prejudice to, a party. See, e.g., Landgraf v. USI Film

Products, 511 U.S. 244, 275 (1994); Lindh v. Murphy, 117 S.Ct. 2059,

2063-64 (1997); Natural Resources Defense Council, Inc. v. NRC, 680

F.2d 810, 817 n.17 (D.C. Cir. 1982) (citing Pacific Molasses Co. v.

FTC, 356 F.2d 386 (5th Cir. 1966)). DOE will apply the revised

procedures to pending cases consistent with the case law.

Finally, this rulemaking also makes conforming changes to the

Department of Energy Acquisition Regulations (DEAR) required by

expansion of the scope of the whistleblower protection program to cover

work done on behalf of DOE directly related to activities at DOE-owned

or -leased sites.

III. Summary and Discussion of Public Comments Received Pursuant to

the January 5, 1998 Notice of Proposed Rulemaking

DOE received comments from three individuals, two contractors and

one public interest group in response to the Department of Energy's

Notice of Proposed Rulemaking (NOPR), published in the Federal Register

on January 5, 1998.

Comment: One commenter recommended that disclosures should have

some factual basis, and not just be evaluated on whether they were made

in good faith. The commenter also recommended that the complainant be

required to provide evidence that the action taken against the employee

was retaliatory, including a showing that the disclosure ``would likely

provoke censure'' by the contractor.

Response: We believe that the change to the rule in Sec. 708.5(a)

accomplishes the first objective of the commenter. Section 708.5(a) now

requires that the employee's disclosure involve information he or she

``reasonably and in good faith believes'' is true. This

``reasonableness'' criterion is consistent with the federal

Whistleblower Protection Act of 1989, many state statutes, and

administrative and judicial decisions.

Section 708.29 of the interim final rule requires that the

complainant show, by a preponderance of the evidence, that there was a

protected disclosure that was a contributing factor in the alleged

retaliation against the complainant. This usually entails proving that

the person taking the retaliation had actual or imputed knowledge of

the protected activity. A reasonable inference can be drawn from the

circumstances that the protected activity was a consideration in taking

the alleged retaliation. We therefore believe the interim final rule

includes the second element sought by the commenter. Alternatively, the

employee can demonstrate that the contractor's asserted legitimate

reason was a pretext for retaliation for the protected conduct.

Comment: One commenter suggested that the DOE pay for the legal

costs of indigent whistleblowers and provide counsel for such

whistleblowers during a mediation phase or when the whistleblower has

to deal face to face with contractors who are represented by counsel.

Response: The procedures established under this rule are intended

to be informal and designed to facilitate prompt resolution. Providing

attorneys would undermine that objective. Moreover, DOE has no evidence

that unavailability of legal counsel has impeded whistleblowers in

pursuing their complaints. Legal services may be available through

local bar associations, from public interest groups that represent

whistleblowers or from attorneys who represent clients in these types

of cases on a contingent fee basis. Finally, complainants who prevail

may receive attorney fees and costs as part of the remedy provided, and

settlement agreements between the parties may also include attorney

fees for a complainant. These mechanisms should ensure that counsel can

be obtained where warranted by the complexity of the issues.

Comment: A commenter requested that the rule include additional

information regarding the definition of off-site subcontractors that

are covered by the rule. The commenter raised a question about the

possible coverage of employees of outside law firms that handle a

contractor's litigation or engineering firms that design on-site

facilities.

Response: We do not believe that a more precise definition is

possible that would avoid questions such as those the commenter raised.

In the NOPR, and the language being adopted today in Sec. 708.2,

``contractor'' is defined as

[[Page 12866]]

a seller of goods or services who is a party to

(1) A management and operating contract or other type of contract

with DOE to perform work directly related to DOE-owned or -leased

facilities, or

(2) A subcontract under a contract of the type described in

paragraph (1) of this definition, but only with respect to work related

to activities at DOE-owned or -leased facilities.

Further, Sec. 708.2 of the rule defines ``employee'' as

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.

It is conceivable that the employees the commenter cited as

examples could be the targets of retaliation by a contractor for

activities protected by part 708. As described by the commenter, the

work being performed may directly relate to activities on DOE sites.

There have been decisions under part 708 in which DOE found contractors

in violation of this part for pressuring subcontractors to take actions

against employees who have engaged in protected activities. Analysis of

similar allegations would have to consider jurisdictional issues

including the nature of the relationship among the DOE contractor, the

complainant and the complainant's employer, the nature of the protected

activity by the complainant, and the status of the complainant as an

``employee'' under this part.

Comment: The commenter also questioned the provision allowing a

complainant to bypass the investigative phase and submit the complaint

directly to the Office of Hearings and Appeals. The commenter stated it

was particularly concerned that this process would not afford an

employer the opportunity to avoid cases involving ``trivial'' matters;

it would not allow an employer to provide evidence that a complaint

does not warrant a hearing; and there would be cost savings by

requiring an investigation, thereby reducing the number of trivial

matters receiving administrative review. The commenter has also

recommended that DOE provide employers with the entire complaint, and

not merely ``a statement of the issues raised in the complaint'' as

proposed in Sec. 708.6.

Response: Under Sec. 708.9(a) of the original rule, either party

had a right to request a hearing after the issuance of a report of

investigation. The interim final rule changes this procedure in two

ways. First, under Sec. 708.21(a) an investigation will no longer be

required, but will only occur if requested by the complainant. Second,

under Sec. 708.24, all parties can agree to cancel a hearing.

The interim final rule provides, in Sec. 708.16(a), that upon

receipt of a complaint, DOE will give the contractor a copy of the

complaint and advise the firm that it may submit information to rebut

the allegations in the complaint within ten days after receiving the

complaint. This process is similar to that followed by the Department

of Labor, in 29 CFR part 24, for processing whistleblower complaints

filed under the Energy Reorganization Act. We believe this process

provides a more equitable opportunity for all parties to address the

issues that have been raised.

The interim final rule also contains the requirement that

disclosures be made ``reasonably and in good faith.'' The new language

in Sec. 708.5(a) includes protections for disclosures of

``substantial'' violations of laws, rule or regulations and ``gross''

mismanagement. These more stringent criteria will also avoid cases

involving what the commenter referred to as ``trivial'' matters.

The interim final rule requires complainants to use established

grievance-arbitration procedures before filing a Part 708 complaint. To

the extent that employers have internal mechanisms to deal with issues

raised by employees, they will have a full opportunity to learn the

nature of the allegations, to respond to those allegations, and to

resolve the dispute internally before the filing of a complaint under

Part 708. The interim final rule also stresses the availability of

informal resolution, including mediation. This process has proven

highly successful for clarifying issues raised in a complaint to

facilitate the resolution of disputes by the parties themselves. We

hope that parties will make maximum use of this phase of part 708.

Comment: The commenter also recommended that DOE dismiss a case if

the Deputy Inspector General for Inspections makes a determination not

to pursue an investigation of the complaint.

Response: In the interim final rule, we have changed the provision

in the NOPR that drew this comment. The OHA is now responsible for all

steps in processing a complaint, once DOE accepts jurisdiction, except

when a party requests Secretarial review. Under Sec. 708.21 of the

interim final rule, the complainant alone will have the option to

forego an investigation, and proceed directly to the hearing stage. We

therefore decline to adopt the commenter's suggestion.

Comment: A commenter indicated agreement with several of the

proposed changes, including the change in the time limit for filing a

complaint; the right of a complainant to request a hearing 240 days

after referral of a complaint to the Deputy Inspector General for

Inspections; the ability of the Hearing Officer to provide for

reasonable discovery; the issuance of a decision within 60 days of the

close of a hearing; and the inclusion of off-site employees in the

definition of employees covered by the rule. The commenter also

recommended that DOE should make jurisdictional decisions within 30 to

45 days of the filing of a complaint, and grant punitive and emotional

damages as additional remedies to successful complainants.

Response: Section 708.17(a) of the interim final rule provides 15

days as the period for resolving jurisdictional issues. Such decisions

may require the Head of Field Element or the Director of the Office of

Employee Concerns to obtain additional information from a complainant

or a contractor, and the 15-day time period is a target, rather than an

absolute requirement. In any event, DOE will expedite determinations of

jurisdiction as much as possible. The streamlined OHA process under the

interim final rule will obviate any need for the proposed right to

request a hearing after a complaint has been pending before the DOE for

240 days.

With respect to the request for punitive or emotional damages, this

issue was also raised by another commenter. That commenter pointed out

that ``other statutory schemes,'' including 29 CFR part 24, which the

Department of Labor administers, provide compensatory damages beyond

the restitutionary remedies afforded under this part. We consider this

issue below.

Comment: A commenter recommended the elimination of the provision

of the proposed rule that would preclude an employee from filing under

part 708 if the complaint could be filed under other statutory

mechanisms, including under 29 CFR part 24 or 48 CFR part 3, Subpart

3.9. The commenter noted that the amendments to the Energy

Reorganization Act of 1992, codified at 42 U.S.C. 5851(h), state:

This section may not be construed to expand, diminish, or

otherwise affect any rights otherwise available to an employee under

Federal or State law to redress the employee's discharge or other

discriminatory action taken by the employer against the employee.

[[Page 12867]]

Response: The interim final rule provides that an employee is not

prohibited from filing a complaint under this part merely because

relief could have been sought under 29 CFR part 24 or 48 CFR part 3,

Subpart 3.9. The interim final rule, in section 708.15(a), does

continue the policy contained in the original rule that DOE will

dismiss a complaint under this part if the complainant, with respect to

the same facts, is pursuing a remedy available under State or other

applicable law.

We take note of the language in the amendments to the Energy

Reorganization Act of 1992 cited by the commenter, and conclude that

the statutory language, enacted after the publication and effective

date of the original part 708, should be given effect by not precluding

the use of this part by employees who can file under 29 CFR part 24.

This part provides an alternative to 29 CFR part 24 for DOE contractor

employees to seek redress for retaliation. However, as discussed below,

section 708.15(a) of the interim final rule is generally intended to

avoid consideration on the merits of cases that were first filed in

another forum.

The Inspector General, under 48 CFR part 3, Subpart 3.9, is

required to conduct an initial inquiry of a complaint. However, the

Inspector General may determine that the complaint is frivolous or for

other reasons does not merit further investigation. Therefore, although

an employee may file a complaint under that rule, the employee's

complaint may not be fully investigated. As such, 48 CFR part 3,

Subpart 3.9 would not constitute an avenue for redress for an employee

if the complaint is not investigated fully and it should not preclude

the subsequent filing of a complaint under part 708 if the Inspector

General, after conducting an initial inquiry, declines to take further

action on the matter.

With a choice of remedies available, DOE wishes to avoid the

situation where an employee could simultaneously pursue the same

whistleblower complaint in more than one forum. Under section 708.4(c)

of the interim final rule, an employee who elects to pursue a remedy

under 29 CFR part 24 (Department of Labor), or 48 CFR part 3, Subpart

3.9 (Inspector General), is generally precluded from later using Part

708. However, section 708.15(a) recognizes two equitable exceptions to

this general rule: (1) when the prior complaint under 29 CFR part 24 is

dismissed for lack of jurisdiction by the Department of Labor or (2)

when the Inspector General, after conducting an initial inquiry,

declines to take further action on the matter under 48 CFR part 3,

Subpart 3.9. In either instance, the employee is no longer barred from

filing a complaint under part 708.

Comment: The commenter also recommended that Hearing Officers not

only be given ``the authority to provide for reasonable discovery,''

but be required to provide discovery. The commenter cites one case

processed under this part in which there was a dispute over the extent

of discovery made available.

Response: We do not believe that requiring discovery is consistent

with the necessary authority of a Hearing Officer. To require discovery

would eliminate the exercise of discretion as to its necessity. We

recognize that some cases will require reasonable discovery in order to

develop key factual issues presented in the complaint. This may be

particularly true in those cases in which the complainant has exercised

the option under Sec. 708.21(a)(1) to proceed directly to the hearing

stage without an investigation. Nevertheless, we believe that the

Hearing Officer must determine the necessity and appropriate scope of

discovery on a case-by-case basis, as has been the practice to date. As

provided in Sec. 708.28(b)(1), the Hearing Officer 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.

The citation of a single instance in which there was a disagreement

over the granting of a motion for discovery does not, in our opinion,

warrant the change recommended. (The dispute was resolved in that case,

and the Hearing Officer eventually granted the discovery request.)

Comment: The commenter also recommended that the definition of

retaliation should also include the abuse of the security clearance

process against an employee, and permit DOE to investigate and remedy

alleged personnel security abuses under part 708. The commenter stated

that the regulations governing the eligibility for security clearances

(10 CFR part 710) do not include remedies for adverse consequences

employees may suffer because of the misuse of the clearance process

beyond the eligibility determination itself.

Response: The definition of retaliation in this part includes

``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)

in retaliation for the employee's disclosure of information,

participation in proceedings, or refusal to participate in activities *

* *.'' It is possible that retaliation as so defined could include

actions by the contractor that cause the questioning, suspension, or

termination of a security clearance.

The commenter is correct that the regulations governing the

eligibility for security clearances at part 710 do not include remedies

for adverse consequences employees may suffer because of the misuse of

the clearance process beyond the eligibility determination itself. With

respect to the eligibility determination, Sec. 710.4 clearly states

that the procedures shall not be used for an improper purpose,

including any attempt to coerce, restrain, threaten, intimidate or

retaliate against individuals for exercising their rights under

statute, regulation, or DOE directive. In addition, Part 710 provides

considerable due process protections for any individual that is the

subject of an access eligibility determination.

Because the Department relies solely on part 710 in determining

eligibility for security clearances and part 710 includes protections

designed to guard against abuse of that process, there is no review

available under part 708 procedures for the ultimate determination on

eligibility for a clearance. Thus, if DOE sustains a negative security

determination made under part 710, there is no remedy under part 708

even if the security clearance review was initiated as part of an act

of retaliation. With respect to consequences beyond the eligibility

determination, part 708 may apply.

Comment: This commenter, and one other commenter, recommended that

we expand the available remedies to include compensatory damages,

including damages for mental anguish, pain and suffering, and emotional

distress resulting from a contractor's wrongful actions.

Response: The restitutionary remedies authorized under Sec. 708.36

are intended to correct unwarranted employment actions. The goal of

this regulation is simply to restore employees to the position they

would have occupied but for the retaliation. Part 708 exists to provide

an alternative to filing a lawsuit in which a broad range of

compensatory relief may be available, but it is not intended to suspend

that option or duplicate the remedies that may be available in

litigation. Before choosing a forum for seeking redress of an

unwarranted employment action,

[[Page 12868]]

contractor employees should compare part 708 with other available

remedies.

Comment: The commenter also recommended that part 708 cover DOE

employees. In support of the recommendation, the commenter questioned

the effectiveness of protections under the Whistleblower Protection Act

of 1989 and also cited the case of Jenkins v. U.S. Environmental

Protection Agency, 92-CAA-06, May 18, 1988, a case in which a Federal

employee was granted protection against retaliation for protected

whistleblowing under the Clean Air Act.

Response: Dissatisfaction with the provisions of the Whistleblower

Protection Act of 1989 or its implementation is a matter for

legislative consideration; it is not an issue within the scope of this

rulemaking. Department of Labor procedures under 29 CFR part 24 provide

an additional statutory forum for Federal employees who seek

whistleblower protection. We do not believe that these statutory

protections for Federal employees need to be supplemented by an

additional DOE regulatory process.

Comment: One series of comments expressed various concerns about

the interrelationship between the draft revision of part 708 and the

scheme of labor-management relations contemplated by the Labor

Management Relations Act (LMRA), e.g.,

That the proposed rule would provide a mechanism for

bypassing the collectively bargained grievance-arbitration process and

the labor organizations which are the exclusive representatives of the

employees in the bargaining unit for the purposes of collective

bargaining with the contractors by allowing the Department and the

employers to deal directly with employees under part 708 regarding

terms and conditions of their employment in violation of the LMRA, and

That the proposed rule would obviate the need to pursue

disputes related to such matters before the National Labor Relations

Board or the Federal district courts under sections 301 and 302 of the

LMRA.

Thus, the commenter stated, ``the current proposed regulation could

act to exclude the legal representative of duly established union

agents from any reprisal claim, and would diminish the contractual

right for employers and unions to work together to negotiate a fair and

reasonable settlement of disputes in the workplace* * * .''

Response: We have carefully reviewed the issues raised by the

commenter. The original version of part 708 that has been in effect

since April 2, 1992, does not exclude bargaining unit members,

including those covered by collective bargaining agreements, from

coverage and we believe that determination to be clearly correct. DOE

has unique responsibilities under the Atomic Energy Act to ensure the

safety of its operations. Allowing members of bargaining units employed

by DOE contractors to bring to DOE's attention in part 708 proceedings

instances of retaliation for raising safety and similar issues may

provide DOE information vital to its capacity to carry out its

responsibilities, notwithstanding that such complaints may also relate

to terms and conditions of employment which are mandatory subjects for

collective bargaining.

Nonetheless, in light of the comments, DOE has added a provision to

this interim final rule, new Sec. 708.4(e), to specifically exclude

from the coverage of part 708 complaints based on terms and conditions

of employment within the meaning of the National Labor Relations Act if

the complaint does not involve conduct protected under Sec. 708.5. In

addition, DOE addresses the commenters' concern about the potential for

bypassing a complainant's collective bargaining representative by

including a new provision, Sec. 708.16(b), requiring notice of a

complaint and a comment opportunity for any union representing a

complainant who is part of a bargaining unit for collective bargaining

purposes. Before filing a complaint under part 708, the employee is

also required by Sec. 708.12(d) of the interim final rule to exhaust

all applicable grievance-arbitration procedures that have been

established by agreement of the parties. After exhausting such

procedures, the represented employee is free to file a complaint under

part 708 to resolve any issues related to alleged retaliation for

conduct protected under Sec. 708.5. Such a complaint may be dismissed

for good cause, however, as provided in Sec. 708.17 if, for example,

the issues in the complaint have been substantially resolved or the

employer has made a formal offer to provide a remedy that DOE considers

to be equivalent to what could be provided as a remedy under this

regulation.

We believe that this regulation, as modified, better reflects the

original regulatory intent of providing procedures for processing

complaints by employees of DOE contractors alleging retaliation by

their employers for covered disclosure of information; participation in

Congressional proceedings; or for refusal to participate in dangerous

activities while not interfering in matters reserved to the exclusive

province of the National Labor Relations Board and the federal district

courts in cases brought pursuant to sections 301 and 302 of the LMRA.

We are particularly interested in comments addressing the impact of

these changes.

Comment: The commenter also recommended that, in light of the

Supreme Court having granted certiorari in Wright v. Universal Maritime

Serv. Corp., DOE withdraw the draft rule until such time as the Supreme

Court issues its ruling. In Wright, the Court of Appeals for the Fourth

Circuit held that the provisions of a collective bargaining agreement,

including binding arbitration, are enforceable prior to the employee

seeking statutorily provided rights.

Response: Since the submission of this comment, the Supreme Court

has issued its decision in Wright. See __U.S.__ (No. 97-889, Nov. 16,

1998). In addition to reviewing that decision, we have further

clarified the procedures established in part 708 to require exhaustion

of contractual grievance-arbitration procedures. As modified, we

believe that we have adequately resolved the concerns expressed by the

commenter.

IV. Implementation and Enforcement

None of the comments received addressed the implementation and

enforcement measures formerly contained in Sec. 708.12(b), which now

appear in Sec. 708.38. However, this is an issue that has received

comment in relation to litigation of whistleblower matters. Most

complainants with actions reaching the implementation stage at

Sec. 708.38 have received the awards ordered by the Department without

incident or problem, although a small percentage of cases have

encountered difficulties. In situations where difficulties have arisen,

the DOE has successfully worked with, and is continuing to work with,

the complainant and relevant contractor to achieve a resolution. The

DOE has found that each of these situations is unique and no single

approach or solution can be used. For this reason, DOE has determined

that no single approach to ensuring implementation of an ordered remedy

is appropriate for promulgation in a rulemaking.

Furthermore, the streamlined process presented in this rulemaking

will avoid problems that arose due to lengthy processing time. Thus,

DOE will continue to use its existing measures as described in

Sec. 708.38.

The DOE did consider two alternative mechanisms for enforcement of

its

[[Page 12869]]

decisions. The Department considered providing for assignment of

contract funds by a contractor for the benefit of a successful

complainant, and it considered providing for a third party beneficiary

right in its contracts to successful complainants. The Department seeks

comment on the mechanisms it considered, suggestions as to other

mechanisms it might consider, and on its decision to maintain its

current approach.

V. Public Hearing Determination

The Department concluded that the proposed rule would not involve a

substantial issue of fact or law and that the proposed rule would not

have a substantial impact on the nation's economy or a large number of

individuals or businesses. No public comments were received requesting

public hearings and none of the comments received indicated the need

for such hearings. Therefore, pursuant to Public Law 95-91, the DOE

Organization Act, and the Administrative Procedure Act (5 U.S.C. 553),

the Department did not hold a public hearing on the rule.

VI. Procedural Requirements

A. Review Under Executive Order 12866

Today's regulatory action has been determined not to be ``a

significant regulatory action'' under Executive Order 12866,

``Regulatory Planning and Review,'' (58 FR 51735, October 4, 1993).

Accordingly, this action was not subject to review under that Executive

Order by the Office of Information and Regulatory Affairs of the Office

of Management and Budget (OMB).

B. Review Under Executive Order 12988

With respect to the review of existing regulations and the

promulgation of new regulations, section 3(a) of Executive Order 12988,

``Civil Justice Reform,'' (61 FR 4729, February 7, 1996), imposes on

Federal agencies the general duty to adhere to the following

requirements: (1) Eliminate drafting errors and ambiguity; (2) write

regulations to minimize litigation; and (3) provide a clear legal

standard for affected conduct rather than a general standard and

promote simplification and burden reduction. With regard to the review

required by section 3(a), section 3(b) of Executive Order 12988

specifically requires that Executive agencies make every reasonable

effort to ensure that the regulation: (1) Clearly specifies the

preemptive effect, if any; (2) clearly specifies any effect on existing

Federal law or regulation; (3) provides a clear legal standard for

affected conduct while promoting simplification and burden reduction;

(4) specifies the retroactive effect, if any; (5) adequately defines

key terms; and (6) addresses other important issues affecting clarity

and general draftsmanship under any guidelines issued by the Attorney

General. Section 3(c) of Executive Order 12988 requires Executive

agencies to review regulations in light of applicable standards in

section 3(a) and section 3(b) to determine whether they are met or it

is unreasonable to meet one or more of them. DOE has completed the

required review and determined that, to the extent permitted by law,

the interim final rule meets the relevant standards of Executive Order

12988.

C. Review Under the Regulatory Flexibility Act

This rule has been reviewed under the Regulatory Flexibility Act of

1980, 5 U.S.C. 601 et seq., which requires preparation of an initial

regulatory flexibility analysis for any rule that is likely to have a

significant economic impact on substantial numbers of small entities.

The contracts and employees to which this rulemaking apply are for the

most part covered by the original DOE Contractor Employee Protection

Program, which prohibited discrimination against employees who engage

in protected activities relating to the disclosure of certain types of

information or for refusing to engage in unsafe or illegal practices.

Most of the changes are procedural in nature aimed at streamlining the

process, and the nature of available remedies has not changed. The

emphasis on the use of early resolution through Alternative Dispute

Resolution, primarily mediation, may in fact lessen adverse economic

impacts. Similarly, where violations are found, the expected shortening

of the processing time for complaints may result in remedies (e.g.,

back pay) that are less costly to contractors than under the original

rule. Accordingly, DOE certifies that this rule will not have a

significant economic impact on a substantial number of small entities,

and, therefore, no regulatory flexibility analysis has been prepared.

D. Review Under the Paperwork Reduction Act

No additional information or record keeping requirements are

imposed by this rulemaking. Accordingly, no OMB clearance is required

under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

E. Review Under the National Environmental Policy Act

DOE has concluded that promulgation of this rule falls into a class

of actions that would not individually or cumulatively have significant

impact on the human environment, as determined by DOE's regulations

implementing the National Environmental Policy Act of 1969 (42 U.S.C.

4321 et seq.). Specifically, this rule deals only with administrative

procedures regarding retaliation protection for employees of DOE

contractors and subcontractors, and therefore, is covered under the

Categorical Exclusion in paragraph A6 to Subpart D, 10 CFR Part 1021.

Accordingly, neither an environmental assessment nor an environmental

impact statement is required.

F. Review Under Executive Order 12612

Executive Order 12612 (52 FR 41685, October 30, 1987) requires that

regulations, rules, legislation, and any other policy actions be

reviewed for any substantial direct effects on States, on the

relationship between the Federal government and the States, or in the

distribution of power and responsibilities among the various levels of

Government. If there are sufficient substantial direct effects, then

the Executive Order requires the preparation of a federalism assessment

to be used in all decisions involved in promulgating and implementing a

policy action. This rule will only affect employee-contractor relations

with respect to the operation of the DOE Contractor Employee Protection

Program. States that contract with DOE will be subject to this rule.

However, DOE has determined that this rule will not have a substantial

direct impact on the institutional interests or traditional functions

of the States.

G. Review Under the Unfunded Mandates Reform Act of 1995

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-

4) requires each federal agency to prepare a written assessment of the

effects of any federal mandate in a proposed or final agency rule that

may result in the expenditure by State, local, and tribal governments,

in the aggregate, or by the private sector, of $100 million in any one

year. The Act also requires a federal agency to develop an effective

process to permit timely input by elected officers of State, local, and

tribal governments on a proposed ``significant intergovernmental

mandate,'' and requires an agency plan for giving notice and

opportunity to timely input to potentially affected small governments

[[Page 12870]]

before establishing any requirements that might significantly or

uniquely affect small governments. The rule published today does not

contain any federal mandate, so these requirements do not apply.

H. Congressional Notification

As required by 5 U.S.C. 801, DOE will report to Congress

promulgation of the interim final rule prior to its effective date. The

report will state that it has been determined that the rule is not a

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

List of Subjects

10 CFR Part 708

Administrative practice and procedure, Energy, Fraud, Government

contracts, Occupational Safety and Health, Whistleblowing.

48 CFR Parts 913, 922 and 970

Government procurement.

Issued in Washington, on March 3, 1999.

George B. Breznay,

Director, Office of Hearings and Appeals.

Richard H. Hopf,

Director, Office of Procurement and Assistance Management.

For the reasons set forth in the preamble, Chapter III of title 10

and Chapter 9 of title 48 of the Code of Federal Regulations are

amended as set forth below:

1. 10 CFR Part 708 is revised to read as follows:

PART 708--DOE CONTRACTOR EMPLOYEE PROTECTION PROGRAM

Subpart A--General Provisions

Sec.

708.1 What is the purpose of this part?

708.2 What are the definitions of terms used in this part?

708.3 What employee complaints are covered?

708.4 What employee complaints are not covered?

708.5 What employee conduct is protected from retaliation by an

employer?

708.6 What constitutes ``a reasonable fear of serious injury?''

708.7 What must an employee do before filing a complaint based on

retaliation for refusal to participate?

708.8 Does this part apply to pending cases?

708.9 When is a complaint or other document considered to be

``filed'' under this part?

Subpart B--Employee Complaint Resolution Process

708.10 Where does an employee file a complaint?

708.11 Will an employee's identity be kept confidential if the

employee so requests?

708.12 What information must an employee include in a complaint?

708.13 What must an employee do to show that all grievance-

arbitration procedures have been exhausted?

708.14 How much time does an employee have to file a complaint?

708.15 What happens if an employee files a complaint under this

part and also pursues a remedy under State or other law?

708.16 Will a contractor or a labor organization that represents an

employee be notified of an employee's complaint and be given an

opportunity to respond with information?

708.17 When may DOE dismiss a complaint for lack of jurisdiction or

other good cause?

708.18 How can an employee appeal dismissal of a complaint for lack

of jurisdiction or other good cause?

708.19 How can a party obtain review by the Secretary of Energy of

a decision on appeal of a dismissal?

708.20 Will DOE encourage the parties to resolve the complaint

informally?

Subpart C--Investigation, Hearing and Decision Process

708.21 What are the employee's options if the complaint cannot be

resolved informally?

708.22 What process does the Office of Hearings and Appeals use to

conduct an investigation of the complaint?

708.23 How does the Office of Hearings and Appeals issue a report

of investigation?

708.24 Will there always be a hearing after a report of

investigation is issued?

708.25 Who will conduct the hearing?

708.26 When and where will the hearing be held?

708.27 May the Hearing Officer recommend mediation to the parties?

708.28 What procedures govern a hearing conducted by the Office of

Hearings and Appeals?

708.29 What must the parties to a complaint prove?

708.30 What process does the Hearing Officer follow to issue an

initial agency decision?

708.31 If no hearing is conducted, what is the process for issuing

an initial agency decision?

708.32 Can a dissatisfied party appeal an initial agency decision?

708.33 What is the procedure for an appeal?

708.34 What is the process for issuing an appeal decision?

708.35 How can a party obtain review by the Secretary of Energy of

an appeal decision?

708.36 What remedies for retaliation may be ordered in initial and

final agency decisions?

708.37 Will an employee whose complaint is denied by a final agency

decision be reimbursed for costs and expenses incurred in pursuing

the complaint?

708.38 How is a final agency decision implemented?

708.39 Is a decision and order implemented under this part

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?

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 What is the purpose of this part?

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 What are the definitions of terms used in this part?

For purposes of this part:

Contractor means a seller of goods or services who is a party to:

(1) A management and operating contract or other type of contract

with DOE to perform work directly related to activities at DOE-owned or

-leased facilities, or

(2) A subcontract under a contract of the type described in

paragraph (1) of this definition, but only with respect to work 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

or her 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 field-based office that is responsible

for the management, coordination, and

[[Page 12871]]

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.

Hearing Officer means an individual appointed by the OHA Director

to conduct a hearing on a complaint filed 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.

Mediation means an informal, confidential process in which a

neutral third person assists the parties in reaching a mutually

acceptable resolution of their dispute; the neutral third person does

not render a decision.

OHA Director means the Director of the Office of Hearings and

Appeals, or any official to whom the Director delegates his or her

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) as a result of the

employee's disclosure of information, participation in proceedings, or

refusal to participate in activities described in Sec. 708.5 of this

subpart.

You means the employee who files a complaint under this part, or

the complainant.

Sec. 708.3 What employee complaints are 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.

Sec. 708.4 What employee complaints are not covered?

If you are an employee of a contractor, you may not file a

complaint against your 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 you, acting without

direction from your employer, deliberately caused, or in which you

knowingly participated; or

(c) Except as provided in Sec. 708.15(a), the complaint is based on

the same facts for which you have 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. 708.15 of subpart B; or

(d) The complaint is based on the same facts in which you, 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 What employee conduct is protected from retaliation by an

employer?

If you are an employee of a contractor, you may file a complaint

against your employer alleging that you have 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, your employer, or any higher tier

contractor, information that you reasonably and in good faith believe

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 you believe participation

would--

(1) Constitute a violation of a federal health or safety law; or

(2) Cause you to have a reasonable fear of serious injury to

yourself, other employees, or members of the public.

Sec. 708.6 What constitutes ``a 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 in good faith 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 or her employment

responsibilities, does not have the training or skills needed to

participate safely in the activity or practice.

Sec. 708.7 What must an employee do before filing a complaint based on

retaliation for refusal to participate?

You 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, you asked your employer to correct the violation or remove

the danger, and your employer refused to take such action; and

(b) By the 30th day after you refused to participate, you 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, your employer, or any higher tier contractor, and stated your

reasons for refusing to participate.

Sec. 708.8 Does this part apply to pending cases?

The procedures in this part apply prospectively in any complaint

proceeding pending on the effective date of this part.

Sec. 708.9 When is a complaint or other document considered to be

``filed'' under this part?

Under this part, a complaint or other document is considered

``filed'' on the date it is mailed or on the date it is personally

delivered to the specified official or office.

[[Page 12872]]

Subpart B--Employee Complaint Resolution Process

Sec. 708.10 Where does an employee file a complaint?

(a) If you were employed by a contractor whose contract is handled

by a contracting officer located in DOE Headquarters when the alleged

retaliation occurred, you must file two copies of your written

complaint with the EC Director.

(b) If you were employed by a contractor at a DOE field facility or

site when the alleged retaliation occurred, you must file two copies of

your written complaint with the Head of Field Element at the DOE field

element with jurisdiction over the contract.

Sec. 708.11 Will an employee's identity be kept confidential if the

employee so requests?

No. 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 contractor and it becomes a public document.

Sec. 708.12 What information must an employee include in a complaint?

Your complaint does not need to be in any specific form but must be

signed by you and contain the following:

(a) A statement specifically describing

(1) The alleged retaliation taken against you and

(2) The disclosure, participation, or refusal that you believe gave

rise to the retaliation;

(b) A statement that you are not currently pursuing a remedy under

State or other applicable law, as described in Sec. 708.15 of this

subpart;

(c) A statement that all of the facts that you have included in

your complaint are true and correct to the best of your knowledge and

belief; and

(d) An affirmation, as described in Sec. 708.13 of this subpart,

that you have exhausted (completed) all applicable grievance or

arbitration procedures.

Sec. 708.13 What must an employee do to show that all grievance-

arbitration procedures have been exhausted?

(a) To show that you have exhausted all applicable grievance-

arbitration procedures, you 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 you 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 you filed

your grievance; or

(3) State that your employer has established no grievance-

arbitration procedures.

(b) If you do not provide the information specified in

Sec. 708.13(a), your complaint may be dismissed for lack of

jurisdiction as provided in Sec. 708.17 of this subpart.

Sec. 708.14 How much time does an employee have to file a complaint?

(a) You must file your complaint by the 90th day after the date you

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 you file 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 you do not file your complaint during the 90-day period, the

Head of Field Element or EC Director (as applicable) will give you an

opportunity to show any good reason you may have for not filing within

that period, and that official may, in his or her discretion, accept

your complaint for processing.

Sec. 708.15 What happens if an employee files a complaint under this

part and also pursues a remedy under State or other law?

(a) You may not file a complaint under this part if, with respect

to the same facts, you choose to pursue a remedy under State or other

applicable law, including final and binding grievance-arbitration

procedures, unless:

(1) Your complaint under State or other applicable law is dismissed

for lack of jurisdiction;

(2) Your 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) You have exhausted grievance-arbitration procedures pursuant to

Sec. 708.13, 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 you from filing a complaint

under this part.

(c) You are considered to have filed a complaint under State or

other applicable law if you file a complaint, or other pleading, with

respect to the same facts in a proceeding established or mandated by

State or other applicable law, whether you file such complaint before,

concurrently with, or after you file a complaint under this part.

(d) If you file a complaint under State or other applicable law

after filing a complaint under this part, your complaint under this

regulation will be dismissed under Sec. 708.17(c)(2).

Sec. 708.16 Will a contractor or a labor organization that represents

an employee be notified of an employee's complaint and be given an

opportunity to respond with information?

(a) By the 15th day after receiving your complaint, the Head of

Field Element or EC Director (as applicable) will provide your employer

a copy of your complaint. Your employer has 10 days from receipt of

your complaint to submit any comments it wishes to make regarding the

allegations in the complaint.

(b) If you are 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 your representative

a copy of your complaint by the 15th day after receiving it. The labor

organization will be advised that it has 10 days from the receipt of

your complaint to submit any comments it wishes to make regarding the

allegations in the complaint.

Sec. 708.17 When may DOE dismiss a complaint for lack of jurisdiction

or other good cause?

(a) The Head of Field Element or EC Director (as applicable) may

dismiss your complaint for lack of jurisdiction or for other good cause

after receiving your complaint, either on his or her own initiative or

at the request of a party named in your complaint. Such decisions are

generally issued by the 15th day after the receipt of your employer's

comments.

(b) The Head of Field Element or EC Director (as applicable) will

notify you by certified mail, return receipt requested, if your

complaint is dismissed for lack of jurisdiction or other good cause,

and give you specific

[[Page 12873]]

reasons for the dismissal, and will notify other parties of the

dismissal.

(c) Dismissal for lack of jurisdiction or other good cause is

appropriate if:

(1) Your complaint is untimely; or

(2) The facts, as alleged in your complaint, do not present issues

for which relief can be granted under this part; or

(3) You 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) Your complaint is frivolous or without merit on its face; or

(5) The issues presented in your complaint have been rendered moot

by subsequent events or substantially resolved; or

(6) Your employer has made a formal offer to provide the remedy

that you request in your complaint or a remedy that DOE considers to be

equivalent to what could be provided as a remedy under this part.

Sec. 708.18 How can an employee appeal dismissal of a complaint for

lack of jurisdiction or other good cause?

(a) If your complaint is dismissed by the Head of Field Element or

EC Director, the administrative process is terminated unless you appeal

the dismissal to the OHA Director by the 10th day after you receive the

notice of dismissal as evidenced by a receipt for delivery of certified

mail.

(b) If you appeal a dismissal to the OHA Director, you must send

copies of your appeal to the Head of Field Element or EC Director (as

applicable) and all parties. Your appeal must include a copy of the

notice of dismissal, and state the reasons why you think the dismissal

was erroneous.

(c) The OHA Director will issue a decision on your appeal and

notify the parties of the decision by the 30th day after it is

received.

(d) The OHA Director's decision, either upholding the dismissal by

the Head of Field Element or EC Director or ordering further processing

of your complaint, is the final decision on your appeal, unless a party

files a petition for Secretarial review by the 30th day after receiving

the appeal decision.

Sec. 708.19 How can a party obtain 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. 708.18 from the OHA Director, any party may file a petition for

Secretarial review of a dismissal with the Office of Hearings and

Appeals.

(b) By the 15th day after filing the petition for Secretarial

review, a 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) After a petition for Secretarial review is filed, the Secretary

(or his or her delegee) will issue the final agency decision on

jurisdiction over the complaint. The Secretary will reverse or revise

an appeal decision by the OHA Director only under extraordinary

circumstances. In the event he or she determines that a revision in the

appeal decision is appropriate, 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 your

complaint.

Sec. 708.20 Will DOE encourage the parties to resolve the complaint

informally?

(a) Yes. The Head of Field Element or EC Director (as applicable)

may recommend that the parties attempt to resolve the complaint

informally, for example, through mediation.

(b) The period for attempting informal resolution of the complaint

may not exceed 30 days from the date you filed your complaint, unless

the parties agree to extend the time.

(c) The 30-day period permitted for informal resolution of the

complaint stops running when a request to dismiss your complaint on

jurisdictional grounds is filed with the Head of Field Element or EC

Director, and begins to run again on the date the OHA Director returns

the complaint to the Head of Field Element or EC Director for further

processing.

(d) If the parties resolve the complaint informally, the Head of

Field Element or EC Director (as applicable) must be given a copy of

the settlement agreement or a written statement from you withdrawing

the complaint.

Subpart C--Investigation, Hearing and Decision Process

Sec. 708.21 What are the employee's options if the complaint cannot be

resolved informally?

(a) If the attempt at informal resolution is not successful, the

Head of Field Element or EC Director (as applicable) will notify you in

writing that you have the following options:

(1) Request that your complaint be referred to the Office of

Hearings and Appeals for a hearing without an investigation; or

(2) Request that your complaint be referred to the Office of

Hearings and Appeals for an investigation followed by a hearing.

(b) You must notify the Head of Field Element or EC Director (as

applicable), in writing, by the 20th day after receiving notice of your

options, whether you request referral of your complaint to the Office

of Hearings and Appeals for a hearing without an investigation, or an

investigation followed by a hearing.

(c) If the Head of Field Element or EC Director does not receive

your response to the notice of options by the 20th day after your

receipt of that notice, DOE will consider your complaint withdrawn.

(d) If you timely request referral to the Office of Hearings and

Appeals, the Head of Field Element or EC Director (as applicable) will

forward your complaint to the OHA Director by the 5th day after receipt

of your request.

(e) 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, and state whether you have requested a

hearing without an investigation or requested an investigation followed

by a hearing.

Sec. 708.22 What process does the Office of Hearings and Appeals use

to conduct an investigation of the complaint?

(a) If you request a hearing without an investigation, the OHA

Director will not initiate an investigation even if another party

requests one.

(b) If you request an investigation followed by a hearing, the OHA

Director will appoint a person from the Office of Hearings and Appeals

to conduct the investigation. The investigator may not participate or

advise in the initial or final agency decision on your complaint.

(c) 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 employees of the charged contractor who may have relevant

information; take sworn statements; and require the production of any

documents or other evidence.

(d) A contractor must cooperate fully with the investigator by

making employees and all pertinent evidence available upon request.

(e) A person being interviewed in an investigation has the right to

be represented by a person of his or her choosing.

[[Page 12874]]

(f) Parties to the complaint are not entitled to be present at

interviews conducted by an investigator.

(g) If a person other than the complainant requests that his or her

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.

Sec. 708.23 How does the Office of Hearings and Appeals issue a report

of investigation?

(a) 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.

(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.

(c) If the parties informally resolve the complaint (e.g., through

mediation) after an investigation is started, you must notify the OHA

Director in writing of your decision to withdraw the complaint.

Sec. 708.24 Will there always be a hearing after a report of

investigation is issued?

(a) No. An employee 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 Hearing Officer will issue an

initial agency decision pursuant to Sec. 708.31 of this subpart.

Sec. 708.25 Who will conduct the hearing?

(a) The OHA Director will appoint a Hearing Officer from the Office

of Hearings and Appeals to conduct a hearing.

(b) The Hearing Officer may not be subject to the supervision or

direction of the investigator.

Sec. 708.26 When and where will the hearing be held?

(a) The Hearing Officer will schedule a hearing to be held by the

90th day after receipt of the complaint, or issuance of the report of

investigation, whichever is later. Any extension of the hearing date

must be approved by the OHA Director.

(b) The Hearing Officer will schedule the hearing for a location

near the site where the alleged retaliation occurred or your place of

employment, or at another location that is appropriate considering the

circumstances of a particular case.

Sec. 708.27 May the Hearing Officer recommend mediation to the

parties?

The Hearing Officer may recommend, but may not require, that the

parties attempt to resolve the complaint through mediation or other

informal means at any time before issuance of an initial agency

decision on the complaint.

Sec. 708.28 What procedures govern a hearing conducted by the Office

of Hearings and Appeals?

(a) In all hearings under this part:

(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 in their behalf, including

requesting the issuance of subpoenas, if necessary;

(2) Testimony of witnesses is given under oath or affirmation, and

witnesses must be advised of the applicability of 18 U.S.C. 1001 and

1621, dealing with the criminal penalties associated with false

statements and perjury;

(3) Witnesses are subject to cross-examination;

(4) Formal rules of evidence do not apply, but OHA may use the

Federal Rules of Evidence as a guide; and

(5) A court reporter will make a transcript of the hearing.

(b) The Hearing Officer has all powers necessary to regulate the

conduct of proceedings:

(1) The Hearing Officer 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 Hearing Officer 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 Hearing Officer 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 Hearing Officer 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 Hearing Officer may, at the request of a party or on his or

her own initiative, dismiss a claim, defense, or party and make adverse

findings upon the failure of a party or the party's representative to

comply with a lawful order of the Hearing Officer, or, without good

cause, to attend a hearing;

(6) The Hearing Officer, 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 Hearing Officer.

(7) The parties are entitled to make oral closing arguments, but

post-hearing submissions are only permitted by direction of the Hearing

Officer.

(8) Parties allowed to file written submissions must serve copies

upon the other parties within the time prescribed by the Hearing

Officer.

(9) The Hearing Officer is prohibited, beginning with his or her

appointment and until a final agency decision is issued, from

initiating or otherwise engaging in ex parte (private) discussions with

any party on the merits of the complaint.

Sec. 708.29 What must the parties to a complaint prove?

The employee who files a complaint has the burden of establishing

by a preponderance of the evidence that he or she 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 employee by the

contractor. Once the employee 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 employee's disclosure,

participation, or refusal.

Sec. 708.30 What process does the Hearing Officer follow to issue an

initial agency decision?

(a) The Hearing Officer will issue an initial agency decision on

your

[[Page 12875]]

complaint by the 60th day after the later of:

(1) The date the Hearing Officer approves the parties' agreement to

cancel the hearing;

(2) The date the Hearing Officer receives the transcript of the

hearing; or

(3) The date the Hearing Officer receives post-hearing submissions

permitted under Sec. 708.28(b)(7) of this subpart.

(b) The Hearing Officer will serve the initial agency decision on

all parties.

(c) An initial agency decision issued by the Hearing Officer 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 Hearing Officer may rely upon,

but is not bound by, the report of investigation.

(d) If the Hearing Officer 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.

(e) If the Hearing Officer determines that an act of retaliation

has not occurred, the initial agency decision will state that the

complaint is denied.

Sec. 708.31 If no hearing is conducted, what is the process for

issuing an initial agency decision?

(a) If no party wants a hearing after the issuance of a report of

investigation, the Hearing Officer will issue an initial agency

decision by the 60th day after the hearing is canceled pursuant to

Sec. 708.24. The standards in Sec. 708.30, governing the issuance of an

initial agency decision, apply whether or not a hearing has been held

on the complaint.

(b) The Hearing Officer will serve the initial agency decision on

all parties.

Sec. 708.32 Can a dissatisfied party appeal an initial agency

decision?

(a) Yes. By the 15th day after receiving an initial agency decision

from the Hearing Officer, 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 by a Hearing

Officer 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 What is the procedure for an appeal?

(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) May initiate an investigation of any statement contained in the

request for review and utilize any relevant facts obtained by such

investigation in conducting the review of the initial agency decision;

(2) May solicit and accept submissions from any party that are

relevant to the review. The OHA Director may establish appropriate

times to allow for such submissions;

(3) May consider any other source of information that will advance

the evaluation, provided that all parties are given an opportunity to

respond to all third person submissions; and

(4) Will close the record on appeal after receiving the last

submission permitted under this section.

Sec. 708.34 What is the process 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 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 determines that the contractor charged has

not committed an act of retaliation, the appeal decision will deny 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 you were employed when the alleged

retaliation occurred.

(d) The appeal decision issued by the OHA Director is the final

agency decision unless a party files a petition for Secretarial review

by the 30th day after receiving the appeal decision.

Sec. 708.35 How can a party obtain 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) After a petition for Secretarial review is filed, the Secretary

(or his or her delegee) will issue the final agency decision on the

complaint. The Secretary 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.

Sec. 708.36 What remedies for retaliation may be ordered in initial

and final agency decisions?

(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 your 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 you with relief.

(b) Interim relief. If an initial agency decision contains a

determination that an act of retaliation occurred, the decision may

order the contractor to provide you 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.

[[Page 12876]]

Sec. 708.37 Will an employee whose complaint is denied by a final

agency decision be reimbursed for costs and expenses incurred in

pursuing the complaint?

No. If your complaint is denied by a final agency decision, you may

not be reimbursed for the costs and expenses you incurred in pursuing

the complaint.

Sec. 708.38 How is a final agency decision implemented?

(a) The Head of Field Element having jurisdiction over the contract

under which you were 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) A contractor'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 Is a decision and order implemented under this regulation

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?

No. 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 606).

Title 48

PART 913--SIMPLIFIED ACQUISITION PROCEDURES

2-3. The authority citation for Parts 913 and 922 continues to read

as follows:

Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).

Sec. 913.507 [Removed]

4. Remove section 913.507.

PART 922--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITION

5. Section 922.7101 is revised to read as follows:

Sec. 922.7101 Clause.

The contracting officer shall insert the clause at 970.5204-59,

Whistleblower Protection for Contractor Employees, in contracts other

than management and operating contracts that involve work to be done on

behalf of DOE directly related to activities at DOE-owned or -leased

sites.

PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS

6. The authority citation for part 970 continues to read as

follows:

Authority: Sec. 161 of the Atomic Energy Act of 1954 (42 U.S.C.

2201), sec. 644 of the Department of Energy Organization Act, Public

Law 95-91 (42 U.S.C. 7254).

7. In section 970.2274-1, remove the last sentence of introductory

paragraph (a), and remove paragraphs (a)(1) through (a)(3); revise

paragraphs (b) and (c) as set forth below, and revise the reference in

paragraph (d) to ``10 CFR 708.12(b)'' to read ``Part 708''.

Sec. 970.2274-1 General.

* * * * *

(b) Contractors found to have retaliated against an employee in

reprisal for such disclosure, participation or refusal are required to

provide relief in accordance with decisions issued under 10 CFR part

708.

(c) Part 708 is applicable to employees of contractors, and

subcontractors, performing work on behalf of DOE directly related to

DOE-owned or -leased facilities.

* * * * *

8. Section 970.5204-59 is revised to read as follows:

Sec. 970.5204-59 Whistleblower protection for contractor employees.

As prescribed in 970.2274-2, insert the following clause in

management and operating contracts. As prescribed in 922.7101, insert

the following clause in contracts that are not management and operating

contracts involving work performed on behalf of DOE directly related to

activities at DOE-owned or -leased sites.

Whistleblower Protection for Contractor Employees (APR 1999)

(a) The contractor shall comply with the requirements of ``DOE

Contractor Employee Protection Program'' at 10 CFR part 708 for work

performed on behalf of DOE directly related to activities at DOE-

owned or -leased sites.

(b) The contractor shall insert or have inserted the substance

of this clause, including this paragraph (b), in subcontracts at all

tiers, for subcontracts involving work performed on behalf of DOE

directly related to activities at DOE-owned or -leased sites.

[FR Doc. 99-5876 Filed 3-12-99; 8:45 am]

BILLING CODE 6450-01-P