[Federal Register Volume 63, Number 2 (Monday, January 5, 1998)]
[Proposed Rules]
[Pages 374-386]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-80]
[[Page 373]]
_______________________________________________________________________
Part V
Department of Energy
_______________________________________________________________________
10 CFR Part 708
Criteria and Procedures for DOE Contractor Employee Protection Program;
Proposed Rule
48 CFR Parts 922, 952, and 970
Acquisition Regulation; Department of Energy Management and Operating
Contracts; Proposed Rule
Federal Register / Vol. 63, No. 2 / Monday, January 5, 1998 /
Proposed Rules
[[Page 374]]
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DEPARTMENT OF ENERGY
10 CFR Part 708
[RIN 1901-AA78]
Criteria and Procedures for DOE Contractor Employee Protection
Program
AGENCY: Department of Energy.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Energy (DOE) proposes amendments for its
contractor employee protection program which provides recourse to DOE
contractor employees who believe they have been retaliated against for
activities such as a disclosure of information regarding management of
environmental, safety, health, and other matters, for participating in
Congressional proceedings, or for refusing to engage in illegal or
dangerous activities.
DATES: Written comments should be forwarded not later than March 6,
1998.
ADDRESSES: Comments (3 copies) may be submitted to William A. Lewis,
Jr., Director, Office of Employee Concerns, Department of Energy, 1000
Independence Avenue, SW, Washington, D.C. 20585, 202-586-4034.
FOR FURTHER INFORMATION CONTACT: Richard S. Fein, Office of Employee
Concerns, Department of Energy, 1000 Independence Avenue, SW,
Washington, D.C. 20585, 202-586-4043.
SUPPLEMENTARY INFORMATION:
I. Introduction and Background
In 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
is responsible for safeguarding public and employee health and safety;
ensuring compliance with applicable laws, rules, and regulations; and
preventing 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 DOE and contractor employees in an aggressive
partnership to identify problems and seek their resolution. In that
regard, employees of DOE contractors are encouraged to come forward
with information that reasonably and in good faith they believe
evidences unsafe, unlawful, fraudulent, or wasteful practices.
Employees providing such information are entitled to protection from
consequent discrimination by their employers with respect to
compensation, 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
reprisal 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
designee. These new procedures were made available to those contractor
employees who allege health and safety violations, but are not covered
by the Department of Labor (DOL) procedures. In addition, contractor
employees who alleged employment reprisal 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 DOL.
This rule was not intended to cover complaints of reprisal stemming
from or relating to other types of discrimination by contractors, such
as discrimination on the basis of race, color, religion, sex, age,
national origin, or other similar basis.
After the operation of the rule for more than four years, the
Department took steps to obtain the views of interested parties on the
operation of the rule. 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, claimants and
attorneys), to recommend regulatory changes that might help to
streamline the process and make it more responsive to the needs of both
claimants and contractors. Comments were received from 28 individuals
or organizations in response to the Department of Energy's Notice of
Inquiry. These comments are summarized in III. below.
The procedures set forth in part 708 are designed specifically to
deal with allegations of reprisals against contractor employees and to
provide relief where appropriate. Reprisals 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 a reprisal by a DOE contractor results from an
employee's involvement in matters of nuclear safety in connection with
a DOE nuclear activity, the reprisal could constitute a violation of a
DOE Nuclear Safety Requirement. The reprisal could therefore be subject
to the investigatory and adjudicatory procedures of both part 820 and
part 708, and could result in 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 would be followed in situations where an
alleged reprisal action fell under both this part and part 820 can be
found in Federal Register Volume 57, No. 95, Friday, May 15, 1992, at
20796-20798.
II. Summary of Changes
A. The employee coverage would be modified in Secs. 708.1,
708.2(b), 708.3 and 708.4 by eliminating the requirement that persons
need to be employed by contractors performing their work on sites owned
or leased by DOE. The proposed new language would instead cover
employees of contractors performing work directly related to the
operation of programs and activities at DOE-owned or -leased sites,
even if the contractor is located, or the work is performed, off-site.
An example would be involvement in the preparation of environmental
impact statements related to programs and activities on DOE-owned and -
leased sites. The definition of ``work performed on-site,'' currently
found in Sec. 708.4, would be deleted since it would no longer be used
as a basis for determining jurisdiction under the rule.
B. In order to fully meet the intent of the current rule not to
duplicate protections available under other Federal statutory
provisions, the proposed rule, in Secs. 708.2(b) and 708.6(a)(i), would
continue to exclude from coverage employee complaints for which
protection is provided under 29 CFR part 24, ``Procedures for the
Handling of Discrimination Under Federal Employee Protection
Statutes.'' This exclusion would also reflect coverage of DOE employees
contained in the Energy Policy Act of 1992, (Public Law 102-486) which
amended section 210(a), now 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
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subcontractor of the Department of Energy that is indemnified by the
Department of Energy under section 170 d. 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.''
Additional protections were afforded to contractor employees under
section 6006 of the Federal Acquisition Streamlining Act of 1994
(Public Law 103-355) against reprisals for engaging in certain
protected activities. Section 6006 (implementing regulations found in
48 CFR part 3, Subpart 3.9) assigns responsibilities to Inspectors
General (including the Inspector General for the Department of Energy),
to implement these protections. The proposed regulation would also
exclude from coverage complaints that fall within the scope of Section
6006, and its implementing regulations found in 48 CFR part 3, Subpart
3.9.
C. The Office of Contractor Employee Protection, and the position
of Director of the Office of Contractor Employee Protection, no longer
exist within DOE. Under the proposed rule, therefore, references to the
Office of Contractor Employee Protection or the Director of the Office
of Contractor Employee Protection would be removed.
Responsibilities for certain functions currently assigned to the
Director of the Office of Contractor Employee Protection would be the
responsibilities of other officials under the proposed rule. The
responsibility for making determinations of jurisdictional coverage of
complaints where the jurisdictional coverage is questioned, currently
contained in Sec. 708.7(a), would be the responsibility of the Director
of the Office of Employee Concerns. Responsibility for conducting
inquiries under the proposed Sec. 708.8 (formerly designated as
investigations) would be the responsibility of the Deputy Inspector
General for Inspections. The Deputy Inspector General for Inspections,
under proposed Sec. 708.8(f), would have the responsibility for serving
copies of Reports of Inquiry on the parties. The responsibilities of
the Director of the Office of Contractor Employee Protection to serve
copies of initial and final decisions on the parties would be the
responsibility of the Director of the Office of Hearings and Appeals
under Secs. 708.10(a) and (b) of the proposed rule.
D. The proposed language in Secs. 708.3 and 708.5(a)(i) would cover
protections for disclosures of ``substantial'' violations of laws, rule
or regulations and ``gross'' mismanagement. The criteria of
``substantial'' violations of law is consistent with Section 6006 of
the Federal Acquisition Streamlining Act of 1994, (Public Law 103-355).
Similarly, the criterion of ``gross'' mismanagement is consistent with
the provisions of the Whistleblower Protection Act of 1989 (5 U.S.C.
2302(b)(8)). (See also Sen. Rep. No. 413, 100th Cong., 2nd Sess., 13,
26, 34.)
E. Section 708.5(a)(1) of the proposed rule would expand 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.
F. Section 708.5(a)(1) would further define 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 current rule in Sec. 708.5(a)(1) only requires that the
complainant ``in good faith believes'' the information he or she
discloses. The additional criterion, that the complainant
``reasonably'' believes the information, is consistent with the
Whistleblower Protection Act of 1989 and many State statutes which
afford protection to both public and private sector employees against
reprisal for whistleblowing activities.
G. Section 708.6(c) of the proposed rule would increase the time
limit for filing a complaint from 60 to 90 days. The time limit for
filing a complaint would still be tolled during the time a complainant
is seeking remedial action through internal contractor procedures. The
use of internal grievance procedures would still be required under the
rule, but the proposed rule would permit individuals to file a
complaint if they have not received a response on a grievance relating
to the subject of the complaint within 120 days of the filing of the
grievance.
H. Under Sec. 708.6(d), the proposed rule would not cover
allegations of reprisal for having engaged in protected activities if
those issues had been ruled upon in binding arbitration pursuant to a
collective bargaining agreement. Such binding arbitration would be
considered the pursuit of a remedy under ``other applicable law.'' This
approach respects the labor-management relationship that applies to
many DOE contractor employees, and is consistent with the deference
given to binding arbitration decisions issued pursuant to collective
bargaining agreements.
I. Section 708.7(a) would continue to encourage informal
resolution, and language has been added to specify the use of mediation
as a means for resolving disputes. Settlement agreements under the rule
would be between the parties; the language in the current rule that
``the Head of the Field Elements or designee shall enter into a
settlement agreement which terminates the complaint'' has been deleted.
J. Section 708.7(b)(3) and (c) of the proposed rule would give
complainants the right, if informal resolution is unsuccessful, to
elect to have the complaint submitted directly to the Office of
Hearings and Appeals for a hearing, thereby bypassing the inquiry
phase. Under the current rule, all complaints that are accepted for
processing and which have not been informally resolved are investigated
prior to the parties having the right to request a hearing.
K. Section 708.8(a) of the proposed rule would grant discretion to
the Deputy Inspector General for Inspections whether or not to direct
the conduct of an inquiry into a complaint.
L. Section 708.8(c) would provide for complainants to be advised of
their right to request a hearing on their complaint in cases where the
Deputy Inspector General for Inspections decides not to conduct an
inquiry into the complaint.
M. Under Sec. 708.8(g) of the proposed rule, complainants would
have a right to request a hearing if a Report of Inquiry has not been
issued within 240 days of the date the Deputy Inspector General for
Inspections was advised that informal resolution of the complaint was
not reached.
N. Language would be added to Sec. 708.8(d) that would provide for
the taking of sworn statements as part of inquiries conducted at the
direction of the Deputy Inspector General for Inspections, when deemed
appropriate by the inspector.
O. Language would be added in Sec. 708.9(c)(2) authorizing the
Hearing Officer to provide for reasonable discovery by the parties as
part of hearing proceedings.
P. Section 708.9(b) would extend the time for holding a hearing
from 60 to 90 days after the complaint file is received by the Office
of Hearings and Appeals.
Q. Section 708.10(b) would extend the time for the issuance of a
decision by the Office of Hearings and Appeals from 30 to 60 days after
the receipt of the transcript of the hearing or after post-hearing
briefs or other evidence permitted under Sec. 708.9(h), whichever is
later.
No changes are being proposed with respect to Secs. 708.13, 708.14
or 708.15, and those sections are therefore not included in this
notice.
Consideration is being given to publishing the final rule in a
different format, which might make the requirements and procedures of
the
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program more easily understood by users of the program. One possible
alternative is to use a question and answer format. An example of this
format might be as follows:
Which Contractor Employees Are Covered?
This part applies to any contractor employee if the employee
works for a contractor responsible for the conduct of DOE programs
or the operation of DOE-owned or leased facilities, regardless of
the employee's work location.
III. Summary of Public Comments Received Pursuant to the October 25,
1996, Notice of Inquiry
Substantive comments were received from 28 individuals or
organizations in response to the Department of Energy's Notice of
Inquiry, published in the Federal Register on October 25, 1996. For
purposes of summarizing the comments, references made to the Office of
Contractor Employee Protection (OCEP) by the commenters have been
retained, even though that office was abolished and its functions were
absorbed into existing Office of Inspector General functions as of
October 1, 1996.
Comments 1-11
One commenter, a public interest group that represents
whistleblowers, submitted eleven comments regarding possible
modifications to the contractor employee protection program. Twenty-
four other commenters specifically endorsed four of these
recommendations (comments 1, 3, 5 and 9 below). The rationales for the
comments of these 24 other commenters parallel those contained in the
comments submitted by the public interest organization. The eleven
comments submitted by the public interest organization were:
Comment 1: Reconstitute the Office of Contractor Employee
Protection under the newly created Office of Employee Concerns, and
have it ensure ``independent investigations; performed in a timely
manner; supported by a verifiable report of investigation, with
supporting evidence in the way of relevant records and sworn statements
attached;'' and ``aggressively pursue its mandate to attempt to mediate
and resolve concerns at an early stage.''
Response: Since the Office of Contractor Employee Protection became
a part of the Office of Inspector General on October 1, 1996, the
Office of Inspector General has provided a significant amount of
training to its inspection staff on the review of complaints under the
DOE Contractor Employee Protection Program. The proposed revisions to
the regulations institutionalize the responsibility for conducting
inquiries (formerly referred to as investigations) under the Deputy
Inspector General for Inspections. The Department believes the
continuation of this responsibility in the Office of Inspector General
will meet the needs of the parties to a complaint in an effective and
efficient manner. This includes the specific goals cited by the
commenter, i.e., the availability of independent, timely
investigations, with reports of investigation containing supporting
evidence.
Attempts at informal resolution remain a crucial aspect of the
rule. DOE is proposing amendments to section 708.7(a) to further
encourage the use of various Alternative Dispute Resolution mechanisms,
primarily mediation.
Comment 2: Expand the coverage of the OCEP to include DOE
employees, not just contractor employees, change the definition of a
protected disclosure to include reports to any governmental agency, not
just to Congress or the DOE, clarify the protections under Part 708 to
be extended to employees of contractors performing work at or related
to DOE-owned or leased facilities, and clarify that the ``disclosure of
a `substantial and specific danger to employee or public health and
safety' includes current dangers as well as dangers arising in the
future as a result of action or inaction at DOE sites.''
Response: The Department does not believe that it is either
necessary or appropriate to duplicate protections of Federal employees
beyond those specifically provided to Federal employees by the
Whistleblower Protection Act of 1989, implemented by the Merit Systems
Protection Board and the Office of Special Counsel.
The coverage of the scope of disclosures would be modified in
section 708.5(a) to include disclosures to other governmental officials
who have responsibility for the oversight of activities at DOE sites.
The scope of the rule would be modified to cover employees engaged
in work related to activities on DOE-owned or -leased sites, and would
not require that the employee or the contractor actually be located at
the DOE site. The tests for employee coverage would be the nature of
the work being performed and the substance of the disclosure.
With respect to the issue of the required specificity of
disclosures related to the environment, safety or health, the proposed
rule would retain the current language. The language is consistent with
the provisions of the whistleblower protections available to Federal
employees. The Senate Report accompanying the Civil Service Reform Act
of 1978 explained that general criticisms or complaints, or those of a
non-substantial nature, were not intended to be covered. The Report
stated that ``the Committee intends that only disclosures of public
health and safety dangers which are both substantial and specific are
to be protected. Thus, for example, general criticism by an employee of
the Environmental Protection Agency that the Agency is not doing enough
to protect the environment would not be protected under this
subsection.'' ( S. Rep. No 969, 95th Cong., 2nd Sess. 21 (1978)
reprinted in 1978 U.S. Code Cong. & Ad. News 2730.)
Comment 3: Guarantee employees a right to a timely investigation,
and provide employees the right to request a full hearing if a report
has not been issued on a complaint within 180 days of its having been
filed.
Response: One of the primary goals of the proposed rule is to
streamline the process in order to provide a timely review of
complaints. A proposed provision would permit a complainant to request
a hearing if a report of inquiry has not been issued within 240 days of
the complaint being referred to the Deputy Inspector General for
Inspections. While this time frame is slightly longer than recommended
by the commenter, the Department believes it provides a more realistic
time frame for the issuance of a report of inquiry. In addition,
complainants would have the option under the proposed rule to elect to
bypass the inquiry phase and go directly to a hearing if informal
resolution is unsuccessful.
Comment 4: Require DOE investigators to take sworn testimony from
all witnesses interviewed, or, in the alternative, produce an affidavit
from the investigator certifying that the notes reflect the substance
of the witness interview.
Response: The Department believes that inspectors of the Office of
Inspector General must retain the discretion to determine when sworn
statements will be taken. Language has been added to the rule
specifying that sworn statements may be part of the record of
inspection when deemed appropriate.
Comment 5: Guarantee the right of employees to engage in reasonable
discovery at the hearing stage, including the right for parties at the
hearing stage to obtain documentary and other physical evidence through
interrogatories and requests for production, to take depositions of
necessary witnesses, enter and examine premises of contractors where
necessary and relevant, and the right to obtain continuances in order
to engage in
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reasonable discovery. The commenter noted that discovery is permitted
under whistleblower hearings before Department of Labor Administrative
Law Judges, reflected in 29 CFR 18.13 through 18.24.
Response: Discovery has been available as part of the hearing
process before the Office of Hearings and Appeals, and additional,
clarifying language has been added to the rule recognizing the
availability of discovery at the hearing stage.
Comment 6: Require that DOE Office of Hearings and Appeals Hearing
Officers have a Juris Doctorate from an accredited law school and/or
relevant and significant amounts of legal training in order to protect
the procedural and substantive due process rights of the parties.
Response: The Department believes that the part 708 hearing process
must be conducted with professionalism, the highest integrity and
demonstrated competence. The expressed concern that hearing officers
are not now required to possess law degrees might be a valid concern if
evidence indicated that an unfair, inadequate or unprofessional
adjudications have occurred as a consequence of this fact. This has not
been the case. In addition, there is no such positive educational
requirement for Federal employees serving in the capacity of Hearing
Officer.
Comment 7: Abolish the requirement that employees first exhaust
available corporate grievance processes or certify the futility of
doing so. This is an unnecessary, and usually fruitless and often
counterproductive step that facilitates coverups.
Response: The Department continues to believe that allegations of
whistleblower reprisal should be resolved at the lowest possible
levels, and that this includes seeking remedies through procedures made
available by contractors to its employees. The current and proposed
rules require the use of internal procedures first, but provide for
bypassing such procedures if they are, as the commenter argues, futile.
The Department believes that the complainant who does not wish to
utilize available internal procedures must establish that available
procedures are not operated in good faith. The proposed rule would,
however, allow an employee to file a complaint under the rule where
internal grievance procedures exist, but where the employee has not
received a final decision on the grievance within 120 days of having
filed the grievance with the contractor.
Comment 8: Expand the period for filing a complaint from the
present 60-day requirement to 180 days, with a provision that if the
contractor has failed to adequately notify employees of provisions of
part 708, the limitation period would be waived. The commenter cited
Congress' extension of the period for filing whistleblower complaints
under the Energy Reorganization Act to 180 days (42 U.S.C. 2000e-
5(e)(1)).
Response: The time for filing would be increased from 60 to 90 days
under the proposed rule. Because the rule tolls the period for filing
while a complainant seeks remedial action through internal contractor
procedures, the time frame for filing in essence would extend the 90-
day filing requirement. In addition, since the implementation of the
Contractor Employee Protection Program in April 1992, the 60-day filing
requirement has not been applied where good cause was shown for
extending the filing deadline.
Comment 9: Include, in the definition of discrimination, the abuse
of the security clearance process against an employee who falls within
the category of a protected employee under the rule, and permit the
investigation of personnel security abuses to be investigated and
remedied under part 708.
Response: Allegations that the security clearance procedure has
been abused may be raised in the regulatory process, found in 10 CFR
Part 710, provided to employees for challenging adverse security
determinations. There is no need to duplicate that process under this
rule, especially since remedial action under this rule cannot include
determinations that an adverse security clearance determination should
be changed. In addition, personnel security actions are taken by DOE
officials, not contractor management, and neither the current nor this
proposed rule includes the review of actions taken by DOE officials.
Comment 10: Specify that the rule is additive, rather than
substitutive or a precondition for the exercise of other rights and
remedies.
Response: The current rule was intended to provide whistleblower
protection for contractor employees who lacked standing to raise
allegations of reprisal under statute, specifically, Department of
Labor procedures. The current rule excludes from coverage employees who
have the ability to raise allegations of whistleblower reprisal to the
Department of Labor. The proposed rule would continue that policy, and
also exclude from coverage complaints that fall within the statutory
jurisdiction of the Office of Inspector General under section 6006 of
the Federal Acquisition Streamlining Act of 1994. The Department
believes that it should not duplicate remedies available to contractor
employees under statute.
Comment 11: Expand available remedies to allow for the award of
compensatory damages, including damages for mental anguish, pain and
suffering, and emotional distress resulting from an contractor's
wrongful actions.
Response: The current rule provides make whole remedies, primarily
in the area of unwarranted personnel actions, and to prevent the
continuation of discrimination against employees in reprisal for their
having engaged in protected activities. DOE presently is unaware of
substantial policy reasons or other justifications for revising and
expanding the remedies available under part 708. The proposed rule
would therefore continue the make whole damages available under the
rule.
Recommendations received from other commenters were:
Comment: A commenter recommended that complainants should be
required to document their certifications that internal procedures have
been exhausted or that such procedures are nonexistent, ineffectual or
expose the employee to reprisal.
Response: This comment has been addressed in response to Comment 7
above.
Comment: A commenter recommended that final orders on whistleblower
complaints should be subject to judicial review, either under a
provision of the Wunderlich Act found at 41 U.S.C. 321, due to the
contractual basis for part 708, or under the Administrative Procedure
Act provisions found at 5 U.S.C. 701-706, if part 708 was promulgated
under statute, i.e., the Atomic Energy Act.
Response: The Department believes that the determination as to the
availability of judicial review for complaints processed under this
rule is a subject for courts to rule upon, and therefore the rule is
silent on the issue.
Comment: A commenter recommended that DOE streamline the intake
process by assigning an individual to determine whether the claimant
has stated a prima facie case.
Response: Initial determinations of jurisdiction, including the
establishment of a prima facie case, is a basic part of the processing
of complaints. This function, under the proposed rule, would rest
initially with the Director of the Office of Employee Concerns, the
Heads of Field Elements, or their designees, with complainants having
the right to seek a review of adverse jurisdictional determinations
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from the Secretary or designee. The assignment of particular
individuals or staffing levels to this function would not be
appropriate under the rule.
Comment: A commenter recommended that bargaining unit employees be
required to make use of grievance provisions, including binding
arbitration. Where there is a finding for the employee, or the employee
does not believe he or she has not been made whole, the employee should
be able to file with DOE; if the ruling is in favor of the company, the
employee should not be permitted to file a complaint with DOE.
Response: The proposed rule would continue the policy that the use
of negotiated grievance procedures is required as an available internal
grievance process. The proposed rule would also provide that
determinations under binding arbitration, pursuant to a bargaining unit
agreement, will be considered dispositive of the issues under
appropriate statute, to the extent the arbitration included the
allegation that an action was taken against the employee in reprisal
for activities protected under this rule.
Comment: A commenter recommended that a contractor be allowed 30
days to respond to a complaint, or an extension of 30 days upon request
of both parties. Following that period, investigations should be
completed within 60 days and a preliminary decision issued.
Response: The proposed rule would continue to provide a 30-day
period during which the parties are encouraged to seek informal
resolution of the issues presented in a complaint. The rule would not
preclude these efforts from extending beyond the 30-day period, and
extensions can be sought for these efforts where it appears progress on
resolution is possible. The proposed rule would eliminate some of the
timeframes for processing specified in the original rule because they
created unrealistic expectations, and therefore a 60-day time frame for
the completion of inquiries is not included in the proposed rule.
Comment: A commenter recommended that settlements should not be
encouraged immediately, but should be addressed after a preliminary
decision has been issued.
Response: Experience had shown that complaints are often settled
successfully when the parties engage in informal resolution, especially
mediation, early in the process. The President has also directed the
use of alternative dispute resolution when appropriate in Executive
Order 12988. Mediation provides an excellent means for the parties to
address the issues raised and their interests. Where cases are not
resolved early in the process, further attempts at resolution are
always available, including after the issuance of an initial decision.
Comment: A commenter recommended that from the time a complaint is
filed until there is a preliminary decision, complainants or their
representatives should not be permitted to have access to OCEP or other
DOE offices without advance notice to the other party, and an
opportunity for the opposing counsel to participate and rebut either in
person or by telephone conference allegations raised by a complainant.
The commenter also stated that remedies should be reinstatement for
wrongful discharge; back pay for the discharged employee to the date of
reinstatement or the offer of reinstatement; or transfer preference. It
was also recommended that there be a $10,000 cap on complainant
attorney fees and that no front end or extended benefits should be
permitted as remedies.
Response: It is often necessary to follow-up with complainants in
order to clarify the issues presented to make jurisdictional
determination, or to determine appropriate parties who need to be
contacted in order to pursue informal resolution. The Department
believes these initial contacts are necessary for the effective
implementation of the rule, but recognizes that they must be carried
out in a manner that does not unfairly prejudice either party.
The remedies in the rule are intended to be make whole remedies,
and the Department therefore is not proposing to set arbitrary limits
on possible remedies.
Comment: A commenter recommended that if DOE will be disallowing
costs to contractors found to have violated the rule, complainants who
lose should be required to reimburse the contractor or DOE.
Response: The rule has been established to provide a mechanism for
employees who believed they have been subjected to wrongful
discriminatory acts to obtain appropriate remedies. The Department
believes the adoption of the recommendation would discourage employees
from coming forward with allegations of wrongdoing, and therefore has
not included it in the proposed rule.
Comment: A commenter recommended that regulatory revisions to the
Contractor Employee Protection Program should become fully effective on
publication, and not be dependent on the inclusion of the rule in
contractual agreements.
Response: The Department believes that the provisions of the
proposed rule would not create an undue burden on DOE contractors whose
contracts include a clause requiring compliance with Part 708. The
proposed rule would therefore not require renegotiation of the contract
clause in order to become effective with respect to contractors
currently subject to the rule.
Comment: A commenter recommended that DOE make the punishment of
the contractors severe by permitting compensatory damages and require
action against managers found to have discriminated against
whistleblowers.
Response: The comment regarding compensatory damages has been
addressed in response to Comment 11 above. The focus of the rule is
corrective, and not punitive. With respect to requiring action against
management officials, as noted in the comments that accompanied the
publication of the current rule, the Department believes it is within
the contractor's managerial responsibility and discretion to address
matters associated with employees found to have participated in
discriminatory conduct. The proposed rule therefore does not contain
provisions for the Department to require disciplinary action against
contractor employees.
Comment: A commenter recommended that employees should be kept
informed as to the status of their cases.
Response: The recommendation of the commenter is an operational
suggestion that does not rise to the level of an issue that needs to be
included in the rule, but is a suggestion that will be fully considered
by the various offices responsible for the implementation of the rule.
Comment: A commenter recommended that time frames contained in Part
708 should be followed.
Response: The original rule contained time frames for complaint
processing that were not realistic, and therefore led to
dissatisfaction with the process. One primary goal of the proposed rule
is to streamline, and therefore speed up, the complaint process. The
proposed rule therefore has more realistic time frames, and in some
cases, processing time frames have been removed where they cannot be
estimated.
Comment: A commenter recommended that attorneys should be assigned
to assist whistleblowers whose cases go to the Office of Hearings and
Appeals for a hearing due to the limited funds available to
whistleblowers. Another commenter recommended that
[[Page 379]]
OCEP receive additional staffing and resources in order to improve the
timeliness of whistleblower complaint processing.
Response: The Department may not assist whistleblowers in
processing their cases since this would constitute providing Government
attorneys to private citizens. It would also be impermissible with
respect to the requirement that the Department remain neutral in these
matters. The staffing requirements within the Department are dependent
on a number of factors, and it is neither possible nor appropriate to
reflect staffing decisions as part of the rule.
Comment: A commenter recommended that outcomes of investigations
under Part 708 should be made public similar to the publication of
Office of Hearing and Appeals decisions on the World Wide Web.
Response: The processing of complaints under this rule almost
always involves highly personal information about the complainant and
other individuals, including witnesses and co-workers. As a result,
consideration must be given to the protection of personal privacy of
individuals involved in the complaints. This comment is not being
adopted, but comments on this issue may be submitted under this Notice
of Proposed Rulemaking.
Comment: A commenter recommended that contractors should be
required to adhere to agreements made in settlement of whistleblower
complaints.
Response: Under the proposed rule, settlement agreements, as well
as their enforcement, would be between the parties. The language in the
current rule that ``the Head of the Field Elements or designee shall
enter into a settlement agreement which terminates the complaint'' has
been deleted.
Comment: A commenter recommended that DOE cease paying litigation
costs to contractors in whistleblower cases.
Response: This issue has been considered by the Department and is
the subject of a separate Notice of Proposed Rulemaking.
Comment: A commenter recommended that any disclosure of official or
incidental misconduct anywhere in the course of DOE contractor business
by any person should be protected under Part 708, including disclosures
of business or scientific fraud, waste of government resources, abuse
or misuse of staff or resources, and false claims in the course of
program proposals.
Response: The coverage of protected disclosures in the proposed
rule is consistent with those found in almost all whistleblower
protection statutes, including the Whistleblower Protection Act of
1989, as amended, which provides protections for Federal employee
whistleblowers. In Senate Report No. 413, 100th Congress, 2nd Session,
page 12, it was stated that
While the Committee is concerned about improving the protection
of whistleblowers, it is also concerned about the exhaustive
administrative and judicial remedies . . . that could be used by
employees who have made disclosures of trivial matters. CSRA [Civil
Service Reform Act of 1978] specifically established a de minimus
standard for disclosures affecting the waste of funds by defining
such disclosures as protected only if they involved ``a gross waste
of funds.'' Under S.508, the Committee establishes a similar de
minimus standard for disclosures of mismanagement only if they
involve ``gross mismanagement.''
Comment: A commenter recommended that whistleblowers should be
granted protection against reprisal after bringing charges of reprisal
under part 708, and investigations should be reopened, regardless of
initial findings, if a negative personnel action is taken against an
employee who had filed a complaint under part 708.
Response: Both the current and proposed rule would protect
employees from discriminatory acts, including retaliation for having
previously filed a complaint.
Comment: A commenter recommended that complainants be required only
to show that retaliatory consequences followed a protected disclosure,
and not be required to prove, by a preponderance of the evidence, a
linkage between the disclosure and the negative action.
Response: Whistleblower protection programs consistently require a
prima facie showing by a complainant that his or her protected activity
was a consideration in the alleged discriminatory act taken against
them. This usually consists of proving, by a preponderance of the
evidence, that the complainant had engaged in a protected activity;
that they were subjected to a discriminatory act; that the person
taking the discriminatory act was aware of the protected activity; and
that from the circumstances, a reasonable inference can be drawn that
the protected activity was a consideration in taking the alleged
discriminatory act. Once a prima facie case is established, the
contractor must provide by a more difficult burden of proof, i.e.,
clear and convincing evidence, that it would have taken the same action
absent the protected activity. The proposed rule would not change the
burdens of proof currently applicable to the parties.
Comment: A commenter recommended that in order to avoid the need
for employees to ``blow the whistle,'' a procedure could be followed
that provides a ``due process'' for resolving ethical conflict and
dissent. The procedure, which was to be submitted, was published in the
Professional Ethics Report of the American Association for the
Advancement of Science and in the Ethics Update by the National
Institute of Engineering Ethics.
Response: In some situations, differences of professional opinion
may not in fact constitute disclosures protected under the rule, but
are issues that require consideration and resolution between employees
and contractors. The availability of these and similar procedures aimed
at resolving differences of professional opinions are encouraged by the
Department both to deal with important issues that are raised and as a
means for informally resolving differences.
IV. Public Comments
A. Consideration and Availability of Comments
Interested persons are invited to participate by submitting data,
views, or arguments with respect to the proposed modifications to the
provisions of the DOE Contractor Employee Protection Program, 10 CFR
Part 708, set forth in this notice. Three copies of written comments
should be submitted to the address indicated in the ADDRESSES section
of this notice. All written comments received by the date indicated in
the DATES section of this notice and all other relevant information in
the record will be carefully assessed and fully considered prior to
publication of the final rule. All comments received will be available
for public inspection in the DOE Reading Room, Room 1E-190, Forrestal
Building, 1000 Independence Avenue, SW, Washington, DC 20585, between
the hours of 9 am and 4 pm, Monday through Friday, except Federal
holidays. Any information considered to be confidential must be so
identified and submitted in writing, one copy only. DOE reserves the
right to determine the confidential status of the information and to
treat it according to our determination (See 10 CFR 1004.11).
B. Public Hearing Determination
The Department has concluded that this proposed rule does not
involve a substantial issue of fact or law and that
[[Page 380]]
the proposed rule should not have a substantial impact on the nation's
economy or a large number of individuals or businesses. Therefore,
pursuant to Public Law 95-91, the DOE Organization Act, and the
Administrative Procedure Act (5 U.S.C. 553), the Department does not
plan to hold a public hearing on the proposed rule. However, should a
sufficient number of people request a public hearing, the Department
will reconsider its determination.
V. 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 proposed regulations meet the relevant standards of Executive Order
12988.
C. Review Under the Regulatory Flexibility Act
This proposed rule has been reviewed under the Regulatory
Flexibility Act of 1980, Public Law 96-354, that 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
would apply are for the most part covered by the current DOE Contractor
Employee Protection Program, which prohibits 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. Many of the proposed 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, the expected shortening of the overall processing time
of complaints may well result in remedies to be less than under the
current rule where violations are found. Accordingly, DOE certifies
that this proposed rule, if adopted, would 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
proposed to be imposed by this rulemaking. Accordingly, no OMB
clearance is required under the Paperwork Reduction Act of 1980 (44
U.S.C. 3501 et seq.).
E. Review Under the National Environmental Policy Act
DOE has concluded that promulgation of this proposed rule falls
into a class of actions which would not individually or cumulatively
have significant impact on the human environment, as determined by
DOE's regulations (10 CFR part 1021, Subpart D) implementing the
National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et
seq.). Specifically, this proposed rule is an employee-relations
mechanism and deals only with administrative procedures regarding
reprisal protection for employees of DOE contractors and
subcontractors. Accordingly, DOE has determined that this is not a
major Federal action with significant impact on the quality of the
human environment and, therefore, the preparation of 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 proposed rule, when finalized, would only affect
employee-contractor relations with respect to the operation of the DOE
Contractor Employee Protection Program. States which 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.
List of Subjects in 10 CFR Part 708
Administrative Practice and Procedure, Energy, Fraud, Government
contracts, Health and safety, Whistleblowing.
Issued in Washington, on December 22, 1997.
Federico Pena,
Secretary of Energy.
For the reasons set forth in the preamble, Chapter III of title 10
of the Code of Federal Regulations is proposed to be amended as set
forth below:
PART 708--DOE CONTRACTOR EMPLOYEE PROTECTION PROGRAM
1. The authority citation for part 708 is revised to read as
follows:
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
2. Section 708.1, Purpose, is revised to read as follows:
Sec. 708.1 Purpose.
This part establishes procedures for timely and effective
processing of complaints by employees of contractors performing work on
behalf of the
[[Page 381]]
Department of Energy (DOE), concerning alleged discriminatory actions
taken by their employers in retaliation for the disclosure of
information involving danger to health and safety, gross mismanagement,
and other matters as provided in Sec. 708.5(a), for the participation
in proceedings before Congress or pursuant to this part, or for the
refusal to engage in illegal or dangerous activities.
3. Section 708.2, Scope, is revised to read as follows:
Sec. 708.2 Scope.
(a) This part is applicable to complaints of reprisal filed after
[the effective date of the final rule] that stem from disclosures,
participations, or refusals involving health and safety matters, if the
underlying procurement contract described in Sec. 708.4 contains a
clause requiring compliance with all applicable safety and health
regulations and requirements of 48 CFR (DEAR) 970.5204-2. For all other
complaints, this part is applicable to acts of reprisal when, after
[the effective date of the final rule], a clause requiring compliance
with this part is included in the underlying procurement contract.
(b) This part is applicable to employees of contractors performing
work on behalf of DOE, directly related to activities at DOE-owned or -
leased sites, unless the procedures contained in 29 CFR part 24,
``Procedures for the Handling of Discrimination Complaints under
Federal Employee Protection Statutes,'' or 48 CFR part 3, ``Federal
Acquisition Regulation; Whistleblower Protection for Contractor
Employees (Ethics),'' are applicable. The procedures of this part do
not apply to complaints of reprisal stemming from, or relating to,
discrimination by contractors on a basis such as race, color, religion,
sex, age, national origin, or other similar basis not specifically
discussed in this part. The protections afforded by this part are not
applicable to any employee who, acting without direction from his or
her employer, deliberately causes, or knowingly participates in the
commission of, any misconduct set forth in Sec. 708.5 that is the
subject of the disclosure.
(c) For complaints not covered by Sec. 708.5(a), the Director, for
good cause shown, may accept a complaint for processing under this
part. However, in no event will coverage under this part be extended to
employees of contractors over whom DOE does not exercise enforcement
authority with respect to the requirements of this part. A
determination by the Director not to accept a complaint pursuant to
this section may be appealed to the Secretary.
4. Section 708.3, Policy, is revised to read as follows:
Sec. 708.3 Policy.
(a) It is the policy of DOE that employees of contractors
performing work on behalf of DOE related to activities at DOE-owned or
-leased sites should be able to:
(1) Provide information to DOE, to Congress, to other governmental
officials who have responsibility for the oversight of the conduct of
operations at DOE sites, or to their contractors, concerning
substantial violations of law, danger to health and safety, or matters
involving gross mismanagement, gross waste of funds, or abuse of
authority;
(2) Participate in proceedings conducted before Congress or
pursuant to this part; and
(3) Refuse to engage in illegal or dangerous activities, without
fear of contractor reprisal.
(b) Contractor employees who believe they have been subject to such
reprisal may submit their complaints to DOE for review and appropriate
administrative remedy as provided in Secs. 708.6 through 708.11 of this
part.
5. Section 708.4, Definitions, is amended by revising the
definitions for Contractor, Director, Employee or employees, and Head
of field element; by revising the definition heading Discrimination or
discriminatory acts to read Discriminatory acts and revising the
definition; by removing the definition for Work performed on site; and
by adding definitions for Deputy Inspector General for Inspections, and
Secretary, in alphabetical order to read as follows:
Sec. 708.4 Definitions.
* * * * *
Contractor means a seller of goods or services who is a party to a
procurement contract as follows:
(1) A Management and Operating Contract or other types of contracts
with DOE involving responsibility for the conduct of DOE programs or
the operation of DOE-owned or -leased facilities, or
(2) Subcontracts under paragraph (1) of this definition; but this
part shall apply to such subcontracts only with respect to work
involving responsibility for the conduct of DOE programs or the
operation of DOE-owned or -leased facilities.
* * * * *
Deputy Inspector General for Inspections means, unless otherwise
indicated, the Deputy Inspector General for Inspections, Office of
Inspector General, or any official to whom the Inspector General
delegates the functions of the Deputy Inspector General for Inspection
under this part.
Director, unless otherwise specified, means the Director of the
Office of Employee Concerns, or any official to whom the Director of
the Office of Employee Concerns delegates his or her functions under
this part.
Discriminatory act(s) means action(s) taken by a contractor with
respect to employment, e.g., discharge, demotion, or other actions with
respect to the employee's compensation, terms, conditions or privileges
of employment, or intimidation, threats, restraining, coercing or other
similar negative action taken against a contractor employee by a
contractor, as a result of the employee's disclosure of information,
participation in proceedings, or refusal to engage in illegal or
dangerous activities, as set forth in Sec. 708.5(a) of this part.
Employee or employees mean(s) any person(s) employed by a
contractor having responsibility for the conduct of DOE programs or the
operation of DOE-owned or -leased facilities, and any person(s)
previously employed by a contractor if such prior employee's complaint
alleges that employment was terminated in violation of Sec. 708.5.
* * * * *
Head of Field Element means an individual who is the manager or
head of a DOE operations office or field office or any official to whom
the Head of the Field Element delegates his or her functions under this
part.
* * * * *
Secretary means the Secretary of Energy or any official to whom the
Secretary delegates his or her functions under this part.
Subpart B--Procedures
6. In Sec. 708.5, Prohibition against reprisals, paragraphs (a)
introductory text, (a)(1) and (a)(3)(iii) are revised to read as
follows:
Sec. 708.5 Prohibition against reprisals.
(a) A DOE contractor covered by this part may not engage in
discriminatory acts as defined in Sec. 708.4 because the employee has--
(1) Disclosed to an official of DOE, to a member of Congress, to
other governmental officials who have responsibility for the oversight
of the conduct of operations at DOE sites, or to the contractor
(including any higher tier contractor), information that the employee
reasonably and in good faith believes evidences--
[[Page 382]]
(i) A substantial violation of any law, rule, or regulation;
(ii) A substantial and specific danger to employees or public
health or safety; or
(iii) Fraud, gross mismanagement, gross waste of funds, or abuse of
authority;
* * * * *
(3) * * *
(iii) The employee, within 30 days following such refusal,
discloses to an official of DOE, a member of Congress, a government
official who has responsibility for the oversight of the conduct of
operations at the DOE site, or the contractor, information regarding
the violation or dangerous activity, policy, or practice, and
explaining why he has refused to participate in the activity.
* * * * *
7. Section 708.6, Filing a complaint, is revised to read as
follows:
Sec. 708.6 Filing a complaint.
(a) Who may file a complaint. An employee who believes that he or
she has been discriminated against in violation of this part, and who
does not have a statutory right to raise the issue under 29 CFR part
24, ``Procedures for the Handling of Discrimination Complaints under
Federal Employee Protection Statutes,'' or 48 CFR part 3, ``Federal
Acquisition Regulation; Whistleblower Protection for Contractor
Employees (Ethics),'' or has not, with respect to the same facts,
pursued a remedy available under State or other applicable law,
including binding arbitration pursuant to a collective bargaining
agreement, may file a complaint with DOE through the Head of the Field
Element at the field organization with jurisdiction over the contract
under which the complainant was employed or with the Director of the
Office of Employee Concerns with respect to a contract that is the
responsibility of a contracting officer located in DOE Headquarters.
The identity of an employee who files a complaint under this part
cannot be kept confidential. Two copies of the complaint, with all
attachments, must be filed. Within 15 days of receipt of a complaint,
the Director or the Head of a Field Element, shall provide notification
of the filing of the complaint and a statement of the issues raised in
the complaint, to the contractor or person named in the complaint.
(b) Content of complaint. A complaint filed under paragraph (a) of
this section need not be in any specific form provided it is signed by
the complainant and contains the following: a statement setting forth
specifically the nature of the alleged discriminatory act, and the
disclosure, participation or refusal giving rise to such act; a
statement that the complainant has not, as described in paragraph (f)
of this section, pursued a remedy available under State or other
applicable law; and an affirmation that all facts contained in the
complaint are true and correct to the best of the complainant's
knowledge and belief.
(c) Affirmations required. The complaint must contain a statement
affirming that:
(1) All attempts at resolution through an internal company
grievance procedure have been exhausted; or
(2) The company grievance procedure is ineffectual or exposes the
complainant to contractor reprisals; or
(3) An internal grievance was filed, but a final decision on the
grievance has not been issued within 120 days of its filing; or
(4) The company has no such procedure.
(d) Factual basis for affirmation. The complaint must state the
factual basis for such affirmation; and, if applicable, the date on
which internal company grievance procedures were terminated and the
reasons for termination. A failure to provide this information is a
basis to dismiss the complaint for lack of jurisdiction under
708.8(a)(5).
(e) Time frame for filing a complaint. A complaint filed pursuant
to paragraph (a) of this section must be filed within 90 days after the
alleged discriminatory act occurred or within 90 days after the
complainant knew, or reasonably should have known, of the alleged
discriminatory act, whichever is later. If a complaint is not filed
within the 90-day time limit, the complainant will be provided an
opportunity to show a good reason for the delay. In cases where the
employee has attempted resolution through internal company grievance
procedures, the 90-day period for filing a complaint shall be tolled
during such resolution period and shall not again begin to run until
the day following termination of such dispute-resolution efforts, or
120 days after the filing of an internal grievance where a final
decision on the grievance has not been issued, whichever is sooner.
(f) Tolling of filing deadline. The limitations period specified in
paragraph (e) of this section is suspended upon the filing of a
complaint pursuant to State or other applicable law, and the mere
filing of a complaint pursuant to State or other applicable law does
not bar the employee from re-instituting or filing a complaint with DOE
if the matter cannot be resolved under State or other applicable law
due to a lack of jurisdiction. For purposes of this part, a complaint
is deemed to have been pursued under State or other applicable law if
the employee has, pursuant to proceedings established or mandated by
State or other applicable law, at any time prior to, or concurrently
with, the filing of a complaint with DOE, or at any time during the
processing of a complaint filed with DOE, filed or submitted a timely
complaint, or other pleading with respect to that same matter. The
pursuit of a remedy under a negotiated collective bargaining agreement
is considered to be the pursuit of a remedy through internal company
grievance procedures and not the pursuit of a remedy under State or
other applicable law. However, to the extent a decision is rendered in
binding arbitration, pursuant to a collective bargaining agreement, on
issues related to alleged reprisal for having made disclosures or
engaging in protected activities covered by this part, such arbitration
decision is considered to be a resolution of the matter under
applicable law.
8. Section 708.7 is revised to read as follows:
Sec. 708.7 Acceptance of a complaint and informal resolution.
(a) Jurisdictional determinations. (1) If the Head of Field Element
has cause to believe the complaint does not meet the requirements of
this part, or for other good cause does not merit further review, the
jurisdictional determination will be made by the Director in accordance
with paragraphs (a)(2) through (5) of this section. Reasons for
dismissing complaints for good cause would include determinations that
the facts, as alleged by the complainant, do not present issues for
which relief can be granted under this part; the complaint or
disclosure is frivolous, on its face without merit; the issues
presented have been rendered moot; or the contractor has made a formal
offer to provide remedial action that the complainant has requested or
that is equivalent to what could be provided as a remedy under
Sec. 708.10(c) as an appropriate resolution of the complaint. The
Director shall have the authority to issue determinations of
jurisdiction with respect to complaints filed with the Office of
Employee Concerns.
(2) The Head of Field Element, within 15 days from the date of
receipt of the complaint, shall request a determination from the
Director as to whether attempts at informal resolution should be
undertaken pursuant to this part, or the complaint should be dismissed
The
[[Page 383]]
request should include a statement as to the basis for questioning the
jurisdictional coverage of the complaint.
(3) If the Director determines to dismiss the complaint summarily,
the complaint shall be dismissed and the parties notified by certified
mail of the specific reasons for such dismissal. If the Director
determines preliminarily that there is jurisdiction, he or she shall,
within 15 days from the date he or she received the request for a
jurisdictional determination, so advise the Head of the Field Element
and return the complaint to the Head of the Field Element who shall
thereupon have 30 days to attempt informal resolution of the complaint.
(4) Request for review of dismissal of complaint. If the Director
dismisses a complaint pursuant to paragraph (a)(3) of this section, the
administrative process is terminated unless within 10 calendar days of
receipt of the notice of dismissal the complainant files a written
request for review by the Secretary. Copies of any request for review
shall be served by the complainant on all parties by certified mail,
and the Director shall promptly send a copy to the Secretary.
(5) If the Secretary determines that the complaint should be
considered further, the Secretary shall order the Director or Head of
the Field Element to reinstate the complaint and resume the
administrative process.
(b) Informal resolution. (1) If the complaint is within the
jurisdiction of this part, the Director or the Head of Field Element
shall have 30 days from the date of receipt of a complaint in which to
attempt an informal resolution of the complaint. To this end, the
Director or Head of Field Element may attempt to resolve the complaint
through various Alternative Dispute Resolution techniques, primarily by
encouraging the parties to engage in mediation.
(2) If informal resolution is reached, the Director or the Head of
Field Element shall obtain a copy of the settlement agreement which
terminates the complaint, or a written statement from the complainant
withdrawing the complaint. The agreement or withdrawal of the complaint
shall be made part of the complaint file, with a copy provided to all
parties.
(3) If informal resolution cannot be reached, the Director or Head
of Field Element shall advise the complainant of his or her right to
elect to either have a copy of the complaint forwarded to the Deputy
Inspector General for Inspections for further processing in accordance
with Sec. 708.8; have a copy of the complaint forwarded to the Director
of the Office of Hearings and Appeals for processing in accordance with
Sec. 708.9; or withdraw his or her complaint.
(4) The complainant, within 10 days of receipt of the notice of a
right to make an election under paragraph (b)(3) of this section, shall
indicate his or her election to the Director or the Head of the Field
Element.
(c) The Director or the Head of the Field Element shall advise the
Deputy Inspector General for Inspections or the Director of the Office
of Hearings and Appeals, of the election within 5 days of receipt of
the complainant's response, and shall provide a copy of the complaint
to the appropriate official for further processing. A copy of this
notification shall also be provided to the complainant and the
contractor named in the complaint.
9. Section 708.8 is revised to read as follows:
Sec. 708.8 Acceptance of complaint for inquiry.
(a)(1) Following receipt of notification from the Director or Head
of Field Element that attempts at informal resolution under Sec. 708.7
have been unsuccessful, and that the complainant has elected to have
the complaint referred in accordance with this section, the Deputy
Inspector General for Inspections, unless he or she declines to conduct
an inquiry, may direct the conduct of an inquiry of the complaint.
(2) If informal resolution is reached while an inquiry is being
conducted by the Deputy Inspector General for Inspections, the Director
or the Head of Field Element shall obtain a copy of the settlement
agreement which terminates the complaint, or a written document from
the complainant referencing a final settlement and requesting
withdrawal of the complaint. This document shall be made part of the
file. The Deputy Inspector General for Inspections shall be advised in
writing of the withdrawal of the complaint.
(b)(1) Determination not to conduct an inquiry. If the Deputy
Inspector General for Inspections declines to process a complaint for
inquiry, either after an initial review of the complaint or based upon
information acquired during the inquiry of a complaint, the Deputy
Inspector General of Inspections shall notify the complainant and
contractor, by certified mail or by personal service, that an inquiry
into the complaint will no longer be pursued by that office and that
the complainant has the right to request a hearing on the complaint in
accordance with the provisions of Sec. 708.9. A copy of such notice
declining to pursue an inquiry shall be sent to the Director of the
Office of Hearings and Appeals, and the Director of the Office of
Employee Concerns or the Head of Field Element, as appropriate.
Requests for a hearing under this paragraph must be filed with the
Director of the Office of Hearings and Appeals within 15 days of the
receipt of the determination of the Deputy Inspector General for
Inspections that an inquiry will not be conducted or continued. Copies
of any request for a hearing shall be served by the complainant on all
parties by certified mail.
(2) The authority of the Deputy Inspector General for Inspections
to make the determination not to pursue an inquiry is wholly
independent from jurisdictional determinations made by the Director,
Heads of Field Elements, or the Secretary. Such a determination by the
Deputy Inspector General for Inspections is not subject to review by
the Office of Hearings and Appeals or appealable to the Secretary.
(c) Conducting an inquiry--obtaining information. In conducting an
inquiry under this part, the inspector, for the purpose of determining
whether a violation of Sec. 708.5 has occurred, may enter and inspect
places and records (and make copies thereof), may question persons
alleged to have been involved in discriminatory acts and other
employees of the charged contractor, may take sworn statements, as
deemed necessary, and may require the production of any documentary or
other evidence deemed necessary. At interviews conducted on behalf of
the Deputy Inspector General for Inspections under this part, the
person being interviewed shall have the right to be represented by a
person of his or her own choosing. Parties to the complaint do not have
an independent right to be present at such interviews. The contractor
shall cooperate fully with the inspector in making available employees
and all pertinent evidence.
(d) Confidentiality. The identity of a person, other than the
complainant, requesting confidentiality shall not be released by the
Office of Inspector General unless the Inspector General determines
that it is unavoidable. The inspector shall advise the person to whom
confidentiality is granted that such a grant of confidentiality is
limited to mean that the Office of Inspector General will not disclose
his or her identity as the source of information to anyone outside the
Office of Inspector General, as required by statute, or as determined
by the Inspector General to be unavoidable.
(e) Reports of inquiry. Upon completion of an inquiry, the Deputy
Inspector General for Inspections shall
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issue a Report of Inquiry that shall present the findings reached by
the Deputy Inspector General for Inspections resulting from the conduct
of the inquiry. The Report of Inquiry may also contain recommendations
for remedial action, where appropriate, consistent with the remedies
available under Secs. 708.10(c) and 708.11(c). The Deputy Inspector
General for Inspections shall provide the Report of Inquiry to the
parties involved by certified mail, or by personal service, and provide
a copy to the Director of the Office of Hearings and Appeals.
(f) If a Report of Inquiry has not been issued within 240 days of
the date the Deputy Inspector General for Inspections was advised by
the Director or Head of the Field Element that attempts at informal
resolution were unsuccessful, the complainant may request a hearing in
accordance with Sec. 708.9. When a complainant exercises his or her
right to request a hearing under this section, the Deputy Inspector
General for Inspections will usually terminate any activities related
to the inquiry being conducted on that complaint.
10. Section 708.9, Hearing, is revised to read as follows:
Sec. 708.9 Hearing.
(a) Request for a hearing. (1) Within 15 days of receipt of
notification of his or her right to elect to proceed to a hearing if
informal resolution efforts are not successful, pursuant to
Sec. 708.7(b)(3), a complainant may, in writing to the director of the
Office of Hearings and Appeals, request a hearing.
(2) Within 15 days of receipt of the Report of Inquiry, a party
may, in writing to the Director of the Office of Hearings and Appeals,
request a hearing on the complaint. If a request for a hearing is not
submitted by either party after the Deputy Inspector General for
Inspections has completed an inquiry, the Director of the Office of
Hearings and Appeals shall issue an initial agency decision pursuant to
Sec. 708.10.
(3) A complainant may, in writing to the Director of the Office of
Hearings and Appeals, request a hearing on the complaint within 15 days
of receipt of a notification of a decision by the Deputy Inspector
General for Inspections not to open or continue an inquiry. If a
hearing is not requested, the Director of the Office of Hearings and
Appeals shall dismiss the complaint.
(4) A complainant may, in writing to the Director of the Office of
Hearings and Appeals, request a hearing if a Report of Inquiry has not
been issued within 240 days of the date the Deputy Inspector General
for Inspections was advised by the Director or Head of the Field
Element of the complainant's election to request an inquiry, pursuant
to Sec. 708.7(b)(3), after attempts at informal resolution were
unsuccessful.
(b) If a request for a hearing is filed, the Director of the Office
of Hearings and Appeals shall appoint, as soon as practicable, a
Hearing Officer to conduct a hearing. Hearings will normally be held at
or near the appropriate DOE field organization, within 90 days from the
date the complaint file is received by the Hearing Officer unless the
Hearing Officer determines that another location would be more
appropriate, or unless the complaint is earlier settled by the parties.
The Hearing Officer may, at his or her discretion, recommend to the
parties that they attempt informal resolution of the complaint, through
various Alternative Dispute Resolution techniques, including mediation,
prior to the conduct of the hearing.
(c)(1) Requests for discovery. Upon the request of a party, the
Hearing Officer may order discovery based upon a showing that the
requested discovery is designed to produce evidence that will
materially advance the proceeding. The parties may engage in reasonable
discovery regarding any matter, not privileged, that is relevant to the
subject matter of the complaint. Parties may obtain discovery by one or
more of the following methods: depositions upon oral examination or
written questions; written interrogatories; production of documents or
things or permission to enter upon land or other property, for
inspection and other purposes; and requests for admission.
(2) Hearing procedures. In all proceedings under this part, the
parties shall have the right to be represented by a person of their own
choosing. Formal rules of evidence shall not apply, but shall be used
as a guide for application of procedures designed to assure production
of the most probative evidence available. The Hearing Officer may
exclude evidence which is immaterial, irrelevant, or unduly
repetitious. The Hearing Officer is specifically prohibited from
initiating or otherwise engaging in ex parte discussions on a complaint
matter at any time during the pendency of the complaint proceeding
under this part.
(d) Burdens of proof. The complainant shall have the burden of
establishing by a preponderance of the evidence that there was a
disclosure, participation, or refusal described under Sec. 708.5, and
that such act was a contributing factor in the alleged discriminatory
action(s) taken or intended to be taken against the complainant. Once
the complainant has met this burden, the burden shall shift to the
contractor to prove by clear and convincing evidence that it would have
taken the same action(s) absent the complainant's disclosure,
participation, or refusal.
(e) Testimony. Testimony of witnesses shall be given under oath or
affirmation, and the witnesses shall be subject to cross-examination.
Witnesses shall be advised of the applicability of 18 U.S.C. 1001 and
1621, dealing with the criminal penalties associated with false
statements and perjury.
(f) Subpoenas. The Hearing Officer may subpoena witnesses to attend
the Hearing on behalf of either party, or for the production of
specific documents or other physical evidence, provided a showing of
the necessity for such witness or evidence has been made to the
satisfaction of the Hearing Officer.
(g) Recording of hearings. All hearings shall be mechanically or
stenographically reported. All evidence upon which the Hearing Officer
relies for the recommended decision under Sec. 708.10(b) shall be
contained in the transcript of testimony, either directly or by
appropriate reference. All exhibits and other pertinent documents or
records, either in whole or in material part, introduced as evidence,
shall be marked to identification and incorporated into the record.
(h) Post-hearing submissions. Any party, upon request, may be
allowed a reasonable time to file with the Hearing Officer a brief or
statement of fact or law. A copy of any such brief or statement shall
be filed with the Hearing Officer and shall be served by the submitting
party upon each other party. The parties may make oral closing
arguments, but post-hearing briefs will only be permitted at the
direction of the Hearing Officer. When permitted, any such brief shall
be limited to the issue or issues specified by the Hearing Officer and
shall be due within the time prescribed by the Hearing Officer.
(i) At the request of any party, the Hearing Officer may, at his or
her discretion, extend the time for any hearing held pursuant to this
Sec. 708.9. Additionally, the Hearing Officer may, at the request of
any party, or on his or her own motion, dismiss a claim, defense, or
party and make adverse findings--
(1) Upon the failure without good cause of any party or his or her
representative to attend a hearing; or
(2) Upon the failure of any party to comply with a lawful order of
the Hearing Officer.
(j) In any case where a dismissal of a claim, defense, or party is
sought, the Hearing Officer shall take such action as is appropriate to
rule on the dismissal,
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which may include an order dismissing the claim, defense, or party. An
order dismissing a claim, defense, or party may be appealed to the
Secretary for reconsideration within 15 days of the dismissal order.
11. Section 708.10 is revised to read as follows:
708.10 Initial and final agency decision.
(a) If a hearing is not requested, the Director of the Office of
Hearings and Appeals, within 60 days of expiration of the time set
forth in Sec. 708.9(a) for request of a hearing, shall issue an initial
agency decision based upon the record, which decision shall be served
upon the parties by certified mail. The initial agency decision shall
contain appropriate findings, conclusions, and an order, and shall set
forth the factual basis for each and every finding with respect to each
alleged discriminatory act. In making such findings, the Director of
the Office of Hearings and Appeals, may rely upon, but shall not be
bound by, the findings contained in the Report of Inquiry. The burdens
of proof set forth in Sec. 708.9(d) are applicable to decisions made
under this paragraph.
(b) If a hearing has been held, the Hearing Officer shall issue an
initial agency decision within 60 days after the receipt of the
transcript of the hearing or within 60 days after receipt of any post-
hearing briefs or other information permitted under Sec. 708.9(h),
whichever is later. The initial agency decision shall contain
appropriate findings, conclusions, and an order, and shall set forth
the factual basis for each and every finding with respect to each
alleged discriminatory act. In making such findings, the Hearing
Officer may rely upon, but shall not be bound by, the findings
contained in the Report of Inquiry. The Hearing Officer shall promptly
serve the initial agency decision upon all parties to the proceeding by
certified mail, and send a copy of the initial agency decision to the
Deputy Inspector General for Inspections.
(c) The initial agency decision shall award such relief as is
necessary to abate the violation, including, but not limited to, an
award of reinstatement, transfer preference, back pay, and
reimbursement to the complainant up to the aggregate amount of all
reasonable costs and expenses (including attorney and expert-witness
fees) reasonably incurred by the complainant in bringing the complaint
upon which the decision was issued.
(1) If the initial agency decision contains a determination that
the complaint is without merit, it shall also include a notice stating
that the decision shall become the final decision of DOE denying the
complaint unless, within 15 days of its receipt, a written request for
review by the Secretary is filed with the Director of the Office of
Hearings and Appeals. Copies of any request for review shall be served
by the requesting party upon all parties.
(2) If the initial agency decision contains a determination that a
violation of Sec. 708.5 has occurred, it shall also include an
appropriate order to the contractor to abate the violation and to
provide the complainant with relief, as well as notice to the parties
that the decision shall become the final decision of DOE unless, within
15 days of its receipt, a written request for review by the Secretary
is filed with the Director of the Office of Hearings and Appeals.
Copies of any request for review shall be served by the requesting
party upon all parties by certified mail.
(3) Notwithstanding the provisions of paragraph (c)(2) of this
section, if the agency decision contains a determination that a
violation of Sec. 708.5 has occurred, it may contain an order requiring
the contractor to provide the complainant with interim relief,
including but not limited to reinstatement, pending the outcome of any
request for review. This paragraph shall not be construed to require
the payment of any monetary award before the DOE decision is final.
(d) If a request for review of the initial agency decision is not
filed pursuant to paragraphs (c)(1) or (2) of this section, the
Director of the Office of Hearings and Appeals, shall notify the
parties by certified mail that the initial agency decision is the final
agency decision. A copy of the notification shall be sent to the
Director or the Head of the Field Element, as appropriate.
12. Section 708.11 is revised to read as follows:
Sec. 708.11 Secretarial review and final decision.
(a) Upon receipt of a request for review of an initial agency
decision by the Secretary, the Director of the Office of Hearings and
Appeals shall forward the request, along with the entire record, to the
Secretary.
(b) Within 60 days after the Director of the Office of Hearings and
Appeals has sent the record in a case to the Secretary, the Secretary
shall either direct further processing of the complaint or, pursuant to
paragraph (c) or (d) of this section, issue a final decision, based on
the record, including the Report of Inquiry. The final decision shall
be forwarded by the Secretary to the Director of the Office of Hearings
and Appeals who shall serve it upon all parties by certified mail.
(1) If the Secretary determines that further processing of the
complaint is necessary, the Secretary will return the case to the
Director of the Office of Hearings and Appeals for appropriate action.
(2) Except to the extent prohibited by law, regulation, or
Executive Order, all parties will be provided copies of any information
compiled as a result of actions taken under paragraph (b)(1) of this
section.
(c) If the Secretary determines that a violation of Sec. 708.5 has
occurred, the Secretary shall issue a final decision and shall instruct
the Director of the Office of Hearings and Appeals to take appropriate
action to implement that decision in accordance with Sec. 708.12. The
Secretary may provide such relief as is necessary to abate the
violation, including, but not limited to, an award of reinstatement,
transfer preference, back pay, and reimbursement to the complainant up
to the aggregate amount of all reasonable costs and expenses (including
attorney and expert-witness fees) reasonably incurred by the
complainant in bringing the complaint upon which the decision was
issued or such other relief as is deemed necessary to abate the
violation and provide the complainant with relief.
(d) If the Secretary determines that the party charged has not
committed a discriminatory act in violation of Sec. 708.5, the
Secretary shall so notify the Director of the Office of Hearings and
Appeals and issue a final decision dismissing the complaint. If the
Secretary determines that there has been no discrimination, the
complainant shall not receive reimbursement for the costs and expenses
provided in paragraph (c) of this section.
13. Section 708.12, Implementation of decision, is revised to read
as follows:
Sec. 708.12 Implementation of decision.
(a) Upon receipt of the final decision of the Secretary under
Sec. 708.11, or if the initial agency decision becomes the final
decision pursuant to Sec. 708.10(c) (1) or (2), the Director of the
Office of Hearings and Appeals shall serve the final decision upon all
parties by certified mail, and upon the head of the program or field
office with jurisdiction over the contract under which the complainant
was employed. The DOE official so served shall take all necessary steps
to implement the final decision.
(b) For purposes of sections 6 and 7 of the Contract Disputes Act
(41 U.S.C. 605 and 606), a decision implemented by DOE pursuant to this
part shall not be considered a ``claim by the
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government against a contractor'' or ``a decision by the contracting
officer.'' However, a contractor's disagreement, and refusal to comply,
with a final decision under this part could result in the contracting
officer's decision to disallow certain costs or terminate the contract
for default. In such case, the contractor could file a claim under the
disputes procedures of the contract.
[FR Doc. 98-80 Filed 1-2-98; 8:45 am]
BILLING CODE 6450-01-P
