[Federal Register Volume 64, Number 49 (Monday, March 15, 1999)]
[Rules and Regulations]
[Pages 12862-12876]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-5876]
[[Page 12861]]
_______________________________________________________________________
Part IV
Department of Energy
_______________________________________________________________________
10 CFR Part 708
48 CFR Parts 913, 922, and 970
Criteria and Procedures for DOE Contractor Employee Protection Program;
Department of Energy Acquisition Regulations; Interim Final Rule
Federal Register / Vol. 64, No. 49 / Monday, March 15, 1999 / Rules
and Regulations
[[Page 12862]]
DEPARTMENT OF ENERGY
10 CFR Part 708
48 CFR Parts 913, 922, and 970
RIN 1901-AA78
Criteria and Procedures for DOE Contractor Employee Protection
Program; Department of Energy Acquisition Regulations
AGENCY: Department of Energy.
ACTION: Interim final rule and opportunity for public comment.
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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: roger.klurfeld@hq.doe.gov, thomas.mann@hq.doe.gov.
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:
roger.klurfeld@hq.doe.gov, mas.mann@hq.doe.gov.
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
