[Federal Register Volume 64, Number 132 (Monday, July 12, 1999)]
[Rules and Regulations]
[Pages 37396-37397]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17658]
[[Page 37396]]
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DEPARTMENT OF ENERGY
10 CFR Part 708
RIN 1901-AA78
Criteria and Procedures for DOE Contractor Employee Protection
Program
AGENCY: Office of Hearings and Appeals, Department of Energy
ACTION: Interim final rule; amendment.
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SUMMARY: The Department of Energy (DOE) amends its DOE contractor
employee protection program regulations to include three provisions
inadvertently omitted in an interim final rule published on March 15,
1999.
DATES: This interim final rule is effective August 11, 1999.
FOR FURTHER INFORMATION CONTACT: Roger Klurfeld, Assistant Director, or
Thomas O. Mann, Deputy Director, Office of Hearings and Appeals,
Department of Energy, 1000 Independence Ave., S.W., Washington, DC
20585-0107; telephone: 202-426-1449; e-mail: roger.klurfeld@hq.doe.gov,
thomas.mann@hq.doe.gov.
SUPPLEMENTARY INFORMATION:
I. Introduction
On March 15, 1999, DOE published an interim final rule in the
Federal Register (64 FR 12862) that comprehensively revised the
regulations for the DOE contractor employee protection program, which
are codified at 10 CFR Part 708. DOE became aware during the comment
period on the interim final rule that three provisions in the original
Part 708 had been inadvertently omitted from the interim final rule.
These provisions (10 CFR 708.13, 708.14, and 708.15) were not within
the scope of the Notice of Proposed Rulemaking published on January 5,
1998. See 63 FR 374, 375 (statement that those provisions would not be
affected by the rulemaking). This interim final rule amendment restores
these provisions. It also renumbers them and makes non-substantive
language changes to conform the provisions to the ``plain language''
format used in the interim final rule published on March 15, 1999. In
addition, Sec. 708.42 (formerly Sec. 708.15) permits the Secretary of
Energy or Secretary's designee, to extend any deadlines established by
Part 708, and permits the Director of the Office of Hearings and
Appeals (OHA Director) to approve the extension of any deadline under
Sec. 708.22 through Sec. 708.34 of this subpart (relating to the
investigation, hearing, and OHA appeal process).
II. Public Comment
DOE ordinarily invites public participation in rulemaking through
submission of written comments and attendance at a public hearing.
However, DOE has concluded that an opportunity for public comment on
this interim final rule is unnecessary and would not be in the public
interest. DOE received no public comment on the statement in the
January 5, 1998, NOPR announcing that no changes were proposed for the
three provisions that are the subject of this rulemaking. Except for
one change, this rule corrects the inadvertent omission of the
provisions in the program regulations published on March 15, 1999. The
new feature added by this rule is the grant of authority to the OHA
Director to extend any deadlines applicable to the investigation,
hearing and OHA appeal process. This change is procedural and, thus,
exempt from notice and comment requirements of the Administrative
Procedure Act (5 U.S.C. 553(b)). In any event, the change expands the
procedural opportunities available to affected parties. Because the
rule does not adversely affect the rights of members of the public, no
purpose would be served by a public comment opportunity.
III. Regulatory and 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
Executive agencies the general duty to adhere to the following
requirements: (1) Eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction. With regard to the review
required by section 3(a), section 3(b) of Executive Order 12988
specifically requires that Executive agencies make every reasonable
effort to ensure that the regulation: (1) Clearly specifies the
preemptive effect , if any; (2) clearly specifies any effect on
existing federal law or regulation; (3) provides a clear legal standard
for affected conduct while promoting simplification and burden
reduction; (4) specifies the retroactive effect, if any; (5) adequately
defines key terms; and (6) addresses other important issues affecting
clarity and general draftsmanship under any guidelines issued by the
Attorney General. Section 3(c) of Executive Order 12988 requires
Executive agencies to review regulations in light of applicable
standards in section 3(a) and section 3(b) to determine whether they
are met or 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, this proposed rule meets the relevant standards of
Executive Order 12988.
C. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
preparation of an initial regulatory flexibility analysis for any rule
that by law must be proposed for public comment, unless the agency
certifies that the rule, if promulgated, will not have a significant
economic impact on a substantial number of small entities. As discussed
in the Public Comment section of this notice, neither the
Administrative Procedure Act (5 U.S.C. 553) nor any other law requires
DOE to propose this rule for public comment. Accordingly, DOE did not
prepare a regulatory flexibility analysis for this rule.
D. Review Under the Paperwork Reduction Act
No new collection of information is imposed by this interim final
rule. Accordingly, no clearance by the Office of Management and Budget
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 a
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
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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, ``Federalism'' (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 substantial effects, the
Executive Order requires the preparation of a federalism assessment to
be used in all decisions involved in promulgating and implementing the
policy action. DOE has analyzed this rulemaking in accordance with the
principles and criteria contained in Executive Order 12612, and has
determined there are no federalism implications that would warrant the
preparation of a federalism assessment. Today's interim final rule
deals with administrative procedures regarding retaliation protection
for employees of DOE contractors and subcontractors. This rule will not
have a substantial direct effect on states, the relationship between
the states and federal government, or the distribution of power and
responsibilities among various levels of government.
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 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 it requires an agency to develop a plan for giving
notice and opportunity for timely input to potentially affected small
governments before establishing any requirement that might
significantly or uniquely affect them. This interim final rule 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 submit to Congress a report
regarding the issuance of today's interim final rule prior to the
effective date set forth at the outset of this notice. The report will
state that it has been determined that the rule is not a ``major rule''
as defined by 5 U.S.C. 801(2).
List of Subjects in 10 CFR Part 708
Administrative practice and procedure, Energy, Fraud, Government
contracts, Occupational Safety and Health, Whistleblowing.
Issued in Washington, on July 6, 1999.
George B. Breznay,
Director, Office of Hearings and Appeals.
For the reasons set forth in the preamble, Chapter III of title 10
of the Code of Federal Regulations is amended as set forth below:
PART 708--[AMENDED]
1. The authority citation for Part 708 continues 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.
2. Part 708 is amended by adding Sec. 708.40 to subpart C to read
as follows:
Sec. 708.40 Are contractors required to inform their employees about
this program?
Yes. Contractors who are covered by this part must inform their
employees about these regulations by posting notices in conspicuous
places at the work site. These notices must include the name and
address of the DOE office where you can file a complaint under this
part.
3. Part 708 is amended by adding Sec. 708.41 to subpart C to read
as follows:
Sec. 708.41 Will DOE ever refer a complaint filed under this part to
another agency for investigation and a decision?
Notwithstanding the provisions of this part, the Secretary of
Energy retains the right to request that a complaint filed under this
part be accepted by another Federal agency for investigation and
factual determinations.
4. Part 708 is amended by adding Sec. 708.42 to subpart C to read
as follows:
Sec. 708.42 May the deadlines established by this part be extended by
any DOE official?
Yes. The Secretary of Energy (or the Secretary's designee) may
approve the extension of any deadline established by this part, and the
OHA Director may approve the extension of any deadline under
Sec. 708.22 through Sec. 708.34 of this subpart (relating to the
investigation, hearing, and OHA appeal process).
[FR Doc. 99-17658 Filed 7-9-99; 8:45 am]
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