[Federal Register Volume 65, Number 56 (Wednesday, March 22, 2000)]
[Rules and Regulations]
[Pages 15218-15221]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-6916]
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DEPARTMENT OF ENERGY
10 CFR Part 820
Procedural Rules for DOE Nuclear Activities; General Statement of
Enforcement Policy
AGENCY: Department of Energy.
ACTION: Final rule; amendment of enforcement policy statement and
confirmation of interim rule.
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SUMMARY: The Department of Energy (DOE) is amending its General
Statement of Enforcement Policy, which is in an Appendix to the
Procedural Rules for DOE Nuclear Activities, to state that DOE may use
information collected by DOE and the Department of Labor (DOL)
concerning whistleblower proceedings as a basis for enforcement actions
and civil penalties under the Procedural Rules for DOE Nuclear
Activities if the retaliation against DOE contractor employees relates
to matters of nuclear safety in connection with a DOE nuclear activity.
DOE also confirms the interim amendments to the enforcement policy
statement published October 8, 1997.
DATES: This amended Policy and confirmation of the interim rule
published October 8, 1997 as final takes effect on April 21, 2000.
FOR FURTHER INFORMATION CONTACT:
Keith Christopher, U. S. Department of Energy, Office of Investigation
and Enforcement, EH-10, 19901 Germantown Road, Germantown, MD 20874
(301) 903-0100.
Ben McRae, U. S. Department of Energy, Office of General Counsel, GC-
52, 1000 Independence Avenue, SW, Washington, DC 20585 (202) 586-6975.
SUPPLEMENTARY INFORMATION:
I. Background
II. Basis for Amendment of Enforcement Policy
III. Procedural Requirements
A. Review Under Executive Order 12866
B. Review Under the Regulatory Flexibility Act
C. Review Under the Paperwork Reduction Act
D. Review Under the National Environmental Policy Act
E. Review Under Executive Order 13132
F. Review Under Executive Order 12988
G. Review Under the Unfunded Mandates Reform Act of 1995
H. Congressional Notification
I. Background
The Department of Energy (DOE) has adopted procedural rules in 10
CFR part 820 (Part 820) to provide for the enforcement of violations of
DOE Nuclear Safety Requirements for which civil and criminal penalties
can be imposed under the Price-Anderson Amendments Act of 1988 (Pub. L.
100-408, August 20, 1988) (PAAA). 56 FR 64290 (proposed Dec. 9, 1991),
58 FR 43680 (final Aug. 17, 1993). Appended to the rule is a General
Statement of Enforcement Policy (Enforcement Policy). The Enforcement
Policy sets forth the general framework through which DOE would seek to
enforce compliance with DOE's nuclear safety rules, regulations and
orders by a DOE contractor, subcontractor, or a supplier (hereinafter
referred to collectively as ``contractor''). Following that
promulgation, DOE amended the Enforcement Policy with an opportunity
for comment. 62 FR 52479 (Oct. 8, 1997). No comments were received and
the amendments are made final today.
DOE's whistleblower regulations, 10 CFR part 708 (Department of
Energy Contractor Employee Protection Program) (Part 708), establish
requirements prohibiting retaliation against DOE contractor employees
who have undertaken certain whistleblower actions. DOE's Office of
Hearings and Appeals (OHA) has responsibility for resolution of
whistleblower complaints under Part 708. The regulations provide
criteria and procedures to protect employees of DOE contractors who
believe they have suffered retaliation for disclosing information
concerning danger to public health or safety, substantial violations of
law, fraud or gross mismanagement; for participating in congressional
proceedings; or for refusing to participate in dangerous activities. If
an act of retaliation has occurred, OHA may order reinstatement,
transfer preference, back pay, reimbursements of costs and expenses, or
other remedies necessary to abate the violation. 10 CFR part 708, 57 FR
7533 (final March 3,1992), 61 FR 55230 (notice Oct. 25, 1996), 64 FR
12862 (interim final March 15, 1999), 64 FR 37396 (interim final rule
and amendment July 12, 1999), 65 FR 6314 (final Feb. 9, 2000), 65 FR
9201 (correction Feb. 24, 2000).
In late 1992, Congress amended the Energy Reorganization Act, 42
U.S.C. 5801, et seq. (ERA), to prohibit any employer, including a DOE
contractor indemnified under section 170.d. of the Atomic Energy Act of
1954, as amended, 42 U.S.C. 2011, et seq. (AEA), from discriminating
against any employee with respect to his or her compensation, terms,
conditions or privileges of employment because the employee assisted or
participated, or is about to assist or participate in any manner, in
any action to carry out the purposes of the ERA or the AEA. 42 U.S.C.
5851 (ERA Sec. 211). The Department of Labor (DOL) has the
responsibility under Sec. 211 to investigate employee complaints of
discrimination and may, after an investigation and opportunity for
hearing, order a violator to take affirmative action to abate the
violation, reinstate the complainant to his or her
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former position with back pay, and award compensatory damages,
including attorney fees. 29 CFR part 24, 59 FR 12506 (proposed March
16, 1994), 63 FR 6614 (final Feb. 9, 1998).
Before Part 820 was finalized and before Sec. 211 of the ERA was
enacted, DOE published a Notice of Clarification (Clarification) of
proposed Part 820 to clarify the intended scope of the proposed
definition of ``DOE Nuclear Safety Requirements'' as a basis for civil
penalties, and to clarify the relationship between proposed Part 820
and Part 708. 57 FR 20796 (May 15, 1992). This Clarification
established that the regulations prohibiting contractor retaliation in
Part 708 could constitute DOE Nuclear Safety Requirements if the
retaliation resulted from the employee's involvement in matters of
nuclear safety in connection with a DOE nuclear activity. Such
retaliation against DOE contractor employees would, therefore, be
subject to the investigatory and adjudicatory procedures of Part 820,
and could lead to the imposition of civil penalties under Part 820.
II. Basis for Amendment of Enforcement Policy
DOE's 1992 Clarification indicated that the provisions of the DOE
whistleblower rule in Part 708 could constitute DOE Nuclear Safety
Requirements. DOE imposed an affirmative duty on DOE contractors to
protect the public, workers, and the environment in matters of nuclear
safety relating to DOE nuclear activities by subjecting the contractors
to enforcement for retaliation against contractor employees. In
particular, if DOE found that a contractor retaliated in response to a
worker raising or disclosing legitimate nuclear safety-related
information or concerns, the Clarification stated that a violation of
Part 820 could exist. 57 FR at 20797, 58 FR at 43681.
Any deterrent to the flow of that information can potentially
constitute a violation of DOE Nuclear Safety Requirements that are
imposed through the DOE whistleblower protection provisions. This is
consistent with the NRC enforcement policy, which subjects licensees to
possible civil penalties if they discriminate against employees raising
safety issues or otherwise engaging in protected whistleblower
activities under the ERA or the AEA. See, e.g., 10 CFR 50.7, 58 FR
52410 (Oct. 8, 1993), 60 FR 24551 (amended May 9, 1995), 61 FR 6765
(amended Feb. 22, 1996).
When DOE put its contractors on notice in 1992 that a violation of
the whistleblower provisions of Part 708 could result in civil
penalties, the DOL whistleblower proceedings were not an alternative to
Part 708. Accordingly, the Clarification did not indicate that
information collected by DOL in a whistleblower proceeding could be
used as the basis for issuance of a Preliminary Notice of Violation
(PNOV) by DOE. Based on experience with DOL proceedings since the
Clarification, DOE believes that DOL proceedings serve the same
function as a Part 708 proceeding in determining whether a contractor
has retaliated against an employee.
DOE is therefore amending the General Statement of Enforcement
Policy appended to Part 820 to provide that the Director of the Office
of Investigation and Enforcement (Director) may use information that
DOL collects in a Sec. 211 proceeding as a basis for enforcement action
under Part 820. Specifically, the Director may use this information as
the basis for initiating enforcement action by issuing a PNOV. In
determining whether to initiate action under Part 820 with respect to
an alleged retaliation, the Director would review the report of the
investigation, the adjudicative record, and any other relevant material
associated with the proceeding to determine if an adequate basis exists
to issue a PNOV.
The Director may also use DOL information to support the
determination that a contractor has violated or is continuing to
violate the nuclear safety requirements against contractor retaliation
and to issue civil penalties or other appropriate remedy in a Final
Notice of Violation (FNOV). 10 CFR 820.24-820.25.
The Director will have discretion to give appropriate weight to
information collected in DOL and in OHA investigations and proceedings.
In deciding whether additional investigation or information is needed,
the Director will consider the extent to which the facts in the
proceedings have been adjudicated as well as any information presented
by the contractor.
DOE has a policy of encouraging its contractors to cooperate in
resolving whistleblower complaints raised by contractor employees.
Accordingly, in deciding whether to initiate an enforcement action, the
Director will take into account the extent to which a contractor
cooperated in a Part 708 or Sec. 211 proceeding, and, in particular,
whether the contractor resolved the matter promptly without the need
for an adjudication proceeding.
In considering whether to initiate an enforcement action and, if
so, what remedy is appropriate, the Director will also consider the
egregiousness of the particular case including the level of management
involved in the alleged retaliation and the specificity of the acts of
retaliation.
Normally, the Director will await the completion of the DOL or OHA
investigation and related deliberative processes before deciding
whether to take any enforcement action in order to avoid duplication of
investigative effort. A Part 708 or Sec. 211 proceeding would be
considered completed when there is either a final decision or a
settlement of the retaliation complaint, or no additional
administrative action is available. In egregious cases outlined in the
Clarification and included in paragraph 7 of Section XIII, DOE may
initiate an investigation and bring an enforcement action before the
other proceedings are completed.
It should be noted, however, that any enforcement action in which
the Director cites a violation of the whistleblower regulations is
separate and distinct from violations arising from the substantive
nuclear safety rules in 10 CFR part 830 (nuclear safety management), 10
CFR part 835 (occupational radiation protection), and 10 CFR 820.11
(information accuracy requirements). The Director may begin
investigations of noncompliances of these nuclear safety rules at any
time based on the underlying nuclear safety concerns raised by the
employee regardless of the status of any related whistleblower
retaliation proceedings.
III. 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, Oct. 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 the Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (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 will not have a ``significant economic
impact on a substantial number of small entities.'' DOE is not required
by the Administrative Procedures Act (5 U.S.C. 553) or any other law to
propose this policy statement for public comment. Accordingly, the
Regulatory Flexibility Act requirements do not apply to this
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rulemaking, and no regulatory flexibility analysis has been prepared.
C. Review Under the Paperwork Reduction Act
No additional information or record keeping requirements are
imposed by this policy statement. Accordingly, no OMB clearance is
required under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
D. Review Under the National Environmental Policy Act
The Department determined that this policy statement is not a major
federal action significantly affecting the quality of the human
environment within the meaning of the National Environmental Policy Act
(NEPA), 42 U.S.C. 4321 et seq., and does not require preparation of an
environmental impact statement or an environmental assessment. This
policy statement amendment clarifies that DOE may use information
generated in certain whistleblower proceedings involving DOE contractor
employees as the basis for enforcement under procedures applicable to
DOE Nuclear Safety Requirements. This action is covered under the
Categorical Exclusion found at paragraph A.5. of Appendix A to Subpart
D, 10 CFR part 1021, which applies to rulemakings that do not change
the environmental effect of the rule being amended.
E. Review Under Executive Order 13132
Executive Order 13132 (64 FR 43255, Aug. 10, 1999) requires
agencies to develop an accountable process to ensure meaningful and
timely input by State and local officials in the development of
regulatory policies that have federalism implications. ``Policies that
have federalism implications'' is defined in the Executive Order to
include regulations that have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government. This amendment of DOE's enforcement policy would
not have a substantial direct effect on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government.
No further action is required by Executive Order 13132.
F. 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,
this policy statement meets the relevant standards of Executive Order
12988.
G. Review Under the Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each federal agency to prepare a written assessment of the
effects of any federal mandate in a proposed or final agency rule that
may result in the expenditure by State, local, and tribal governments,
in the aggregate, or by the private sector, of $100 million in any one
year. The Act also requires a federal agency to develop an effective
process to permit timely input by elected officers of State, local, and
tribal governments on a proposed ``significant intergovernmental
mandate,'' and requires an agency plan for giving notice and
opportunity to timely input to potentially affected small governments
before establishing any requirements that might significantly or
uniquely affect small governments. DOE's intergovernmental consultation
process under the Unfunded Mandates Reform Act of 1995 is described in
a statement of policy published by the Office of General Counsel on
March 18, 1997 (62 FR 12820). The policy statement amendment published
today does not contain any federal mandate, so these requirements do
not apply.
H. Congressional Notification
As required by 5 U.S.C. 801, DOE will report to Congress
promulgation of this policy statement amendment prior to its effective
date. The report will state that it has been determined that the
amendment is not a ``major rule'' as defined by 5 U.S.C. 804(2).
List of Subjects 10 CFR Part 820
Government contracts, Nuclear safety, Whistleblowing
Issued in Washington, DC, on March 14, 2000.
David Michaels,
Assistant Secretary for Environment, Safety and Health.
For the reason set forth in the preamble, Part 820 of Title 10 of
the Code of Federal Regulations is amended as set forth below:
PART 820--PROCEDURAL RULES FOR DOE NUCLEAR ACTIVITIES
1. The authority citation for Part 820 continues to read as
follows:
Authority: 42 U.S.C. 2201, 2282(a), 7191; 28 U.S.C. 2461 note.
2. Appendix A to Part 820 as amended on October 8, 1997 (62 FR
52479), is adopted as final without change.
3. Appendix A to Part 820 is amended by adding a new Section XIII
to read as follows:
Appendix A to Part 820--General Statement of Enforcement Policy
* * * * *
XIII. Whistleblower Enforcement Policy
a. DOE contractors may not retaliate against any employee
because the employee has disclosed information, participated in
activities or refused to participate in activities listed in 10 CFR
708.5 (a)-(c) as provided by 10 CFR 708.43. DOE contractor employees
may seek remedial relief for allegations of retaliation from the DOE
Office of Hearings and Appeals (OHA) under 10 CFR part 708 (Part
708) or from the Department of Labor (DOL) under sec. 211 of the
Energy Reorganization Act (sec. 211), implemented in 29 CFR part 24.
b. An act of retaliation by a DOE contractor, proscribed under
10 CFR 708.43, that results from a DOE contractor employee's
involvement in an activity listed in 10 CFR 708.5(a)-(c) concerning
nuclear safety in connection with a DOE nuclear activity, may
constitute a violation of a DOE Nuclear Safety Requirement under 10
CFR part 820 (Part 820). The retaliation may be subject to the
investigatory and adjudicatory procedures of both Part 820 and Part
708. The same facts that support remedial relief to employees under
Part 708 may be used by the Director of the Office of Investigation
and
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Enforcement (Director) to support issuance of a Preliminary Notice
of Violation (PNOV), a Final Notice of Violation (FNOV), and
assessment of civil penalties. 10 CFR 820.24-820.25.
c. When an employee files a complaint with DOL under sec. 211
and DOL collects information relating to allegations of DOE
contractor retaliation against a contractor employee for actions
taken concerning nuclear safety, the Director may use this
information as a basis for initiating enforcement action by issuing
a PNOV. 10 CFR 820.24. DOE may consider information collected in the
DOL proceedings to determine whether the retaliation may be related
to a contractor employee's action concerning a DOE nuclear activity.
d. The Director may also use DOL information to support the
determination that a contractor has violated or is continuing to
violate the nuclear safety requirements against contractor
retaliation and to issue civil penalties or other appropriate remedy
in a FNOV. 10 CFR 820.25.
e. The Director will have discretion to give appropriate weight
to information collected in DOL and OHA investigations and
proceedings. In deciding whether additional investigation or
information is needed, the Director will consider the extent to
which the facts in the proceedings have been adjudicated as well as
any information presented by the contractor. In general, the
Director may initiate an enforcement action without additional
investigation or information.
f. Normally, the Director will await the completion of a Part
708 proceeding before OHA or a sec. 211 proceeding at DOL before
deciding whether to take any action, including an investigation
under Part 820 with respect to alleged retaliation. A Part 708 or
sec. 211 proceeding would be considered completed when there is
either a final decision or a settlement of the retaliation
complaint, or no additional administrative action is available.
g. DOE encourages its contractors to cooperate in resolving
whistleblower complaints raised by contractor employees in a prompt
and equitable manner. Accordingly, in deciding whether to initiate
an enforcement action, the Director will take into account the
extent to which a contractor cooperated in a Part 708 or sec. 211
proceeding, and, in particular, whether the contractor resolved the
matter promptly without the need for an adjudication hearing.
h. In considering whether to initiate an enforcement action and,
if so, what remedy is appropriate, the Director will also consider
the egregiousness of the particular case including the level of
management involved in the alleged retaliation and the specificity
of the acts of retaliation.
i. In egregious cases, the Director has the discretion to
proceed with an enforcement action, including an investigation with
respect to alleged retaliation irrespective of the completion status
of the Part 708 or sec. 211 proceeding. Egregious cases would
include: (1) Cases involving credible allegations for willful or
intentional violations of DOE rules, regulations, orders or Federal
statutes which, if proven, would warrant criminal referrals to the
U.S. Department of Justice for prosecutorial review; and (2) cases
where an alleged retaliation suggests widespread, high-level
managerial involvement and raises significant public health and
safety concerns.
j. When the Director undertakes an investigation of an
allegation of DOE contractor retaliation against an employee under
Part 820, the Director will apprise persons interviewed and
interested parties that the investigative activity is being taken
pursuant to the nuclear safety procedures of Part 820 and not
pursuant to the procedures of Part 708.
k. At any time, the Director may begin an investigation of a
noncompliance of the substantive nuclear safety rules based on the
underlying nuclear safety concerns raised by the employee regardless
of the status of completion of any related whistleblower retaliation
proceedings. The nuclear safety rules include: 10 CFR part 830
(nuclear safety management); 10 CFR part 835 (occupational radiation
protection); and 10 CFR part 820.11 (information accuracy
requirements).
[FR Doc. 00-6916 Filed 3-21-00; 8:45 am]
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