Procedural Rules for DOE Nuclear Activities, 53337-53342 [2016-19103]

Download as PDF Federal Register / Vol. 81, No. 156 / Friday, August 12, 2016 / Proposed Rules DEPARTMENT OF ENERGY 10 CFR Part 820 [Docket No. EA–RM–16–PRDNA] RIN 1992–AA52 Procedural Rules for DOE Nuclear Activities Office of Enterprise Assessments, Office of Enforcement, Office of Nuclear Safety Enforcement, Department of Energy. ACTION: Notice of proposed rulemaking. AGENCY: The U.S. Department of Energy (DOE) is proposing to amend its Procedural Rules for DOE Nuclear Activities to clarify that the Department may assess civil penalties against certain contractors and subcontractors for violations of the prohibition against retaliating against an employee who reports violations of law, mismanagement, waste, abuse, or dangerous/unsafe workplace conditions, among other protected activities, concerning nuclear safety (referred to as ‘‘whistleblowers’’). Specifically, this proposed rule would clarify that the prohibition against whistleblower retaliation is a DOE Nuclear Safety Requirement to the extent that it concerns nuclear safety. The proposed rule would also explain the circumstances under which DOE would investigate alleged violations of this prohibition. The proposed rule would also delineate which DOE regulations are DOE Nuclear Safety Requirements. DATES: DOE will accept comments, data, and information regarding this notice of proposed rulemaking (NOPR) submitted on or before September 12, 2016. ADDRESSES: Any comments submitted must identify the NOPR for Procedural Rules for DOE Nuclear Activities and provide docket number EA–RM–16– PRDNA and/or regulatory information number (RIN) 1992–AA52. Comments may be submitted using any of the following methods: 1. Federal eRulemaking Portal: www.regulations.gov. Follow the instructions for submitting comments. 2. Email: part820rulemaking@ hq.doe.gov. Include the docket number and/or RIN in the subject line of the message. Submit electronic comments in Microsoft Word, or PDF file format, and avoid the use of special characters or any form of encryption. 3. Postal Mail: EA–10/Germantown Building, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585–1290. If possible, please submit all items on a ehiers on DSK5VPTVN1PROD with PROPOSALS SUMMARY: VerDate Sep<11>2014 14:23 Aug 11, 2016 Jkt 238001 CD, in which case it is not necessary to include printed copies. As a result of potential delays in the receipt and processing of mail sent through the U.S. Postal Service, DOE encourages respondents to submit comments electronically to ensure timely receipt. For detailed instructions on submitting comments and additional information on the rulemaking process, see section III of this document (Public Participation). Docket: The docket, which includes Federal Register notices, public meeting attendee lists and transcripts, comments received, and other supporting documents/materials, is available for review at http://www.regulations.gov. All documents in the docket are listed in the www.regulations.gov index. However, some documents listed in the index may not be publicly available, such as those containing information that is exempt from public disclosure. A link to the docket Web page can be found at: http://energy.gov/ea/officeenterprise-assessments. This Web page will contain a link to the docket for this proposed rulemaking on the www.regulations.gov site. The www.regulations.gov Web page contains simple instructions on how to access all documents, including public comments, in the docket. See section III for further information on how to submit comments through www.regulations.gov. FOR FURTHER INFORMATION CONTACT: Steven Simonson, U.S. Department of Energy, Office of Enterprise Assessments/Germantown Building, 1000 Independence Ave. SW., Washington, DC 20585–1290. Phone: (301) 903–2816. Email: Steven.Simonson@hq.doe.gov. K.C. Michaels, U.S. Department of Energy, Office of the General Counsel, 1000 Independence Ave. SW., Washington, DC 20585–0121. Phone: (202) 586–3430. Email: Kenneth.Michaels@hq.doe.gov. SUPPLEMENTARY INFORMATION: Table of Contents I. Authority and Background II. Discussion of Proposed Amendment III. Public Participation IV. Procedural Issues and Regulatory Review I. Authority and Background Pursuant to the Atomic Energy Act of 1954 (AEA) (42 U.S.C. 2011 et seq.), DOE has issued regulations governing nuclear safety management (at 10 CFR part 830) and occupational radiation protection (at 10 CFR part 835). Section 234A of the AEA (42 U.S.C. 2282a) authorizes DOE to impose civil PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 53337 penalties for violations of these regulations. Specifically, section 234A authorizes civil penalties against contractors, subcontractors, and suppliers that are covered by an indemnification agreement under section 170.d. of the AEA (42 U.S.C. 2210(d)) (commonly known as the PriceAnderson Act) that violate DOE rules, regulations, or orders ‘‘related to nuclear safety.’’ DOE has issued Procedural Rules for DOE Nuclear Activities at 10 CFR part 820 (part 820), which establishes a process for imposing civil penalties under section 234A. Separate from part 820, DOE has also issued regulations at 10 CFR part 708 (part 708) that prohibit a contractor or subcontractor from retaliating against employees for reporting violations of law, mismanagement, waste, abuse, or dangerous/unsafe workplace conditions, participating in proceedings, or refusing to participate in an activity that may constitute a violation of law or cause a reasonable fear of injury (referred to as ‘‘whistleblowers’’). These regulations establish an affirmative duty on the part of contractors not to retaliate against whistleblowers; and establish a process for an employee alleging retaliation to file a claim for reinstatement, transferpreference, back-pay, and legal fees among other forms of relief. DOE is proposing to amend part 820 to clarify that DOE may impose civil penalties against a contractor or subcontractor for violating the prohibition against whistleblower retaliation found in part 708, to the extent it concerns nuclear safety. The proposed rule would not alter the existing procedures for imposing civil penalties, but would establish requirements specific to whistleblower retaliation concerning nuclear safety. The proposed rule would also provide, in the text of part 820, a list of all other DOE Nuclear Safety Requirements. II. Discussion of Proposed Amendment A. What are DOE Nuclear Safety Requirements and when may DOE impose civil penalties? The current version of part 820 includes a definition for ‘‘DOE Nuclear Safety Requirements,’’ and it states that DOE has authority to impose civil penalties for violations of any DOE Nuclear Safety Requirement set forth in the Code of Federal Regulations, Compliance Orders issued under subpart C to part 820, and any program, plan, or other provision required to implement one of these rules or orders.1 1 The use of the word ‘‘order’’ in this context refers to Compliance Orders issued under subpart E:\FR\FM\12AUP1.SGM Continued 12AUP1 ehiers on DSK5VPTVN1PROD with PROPOSALS 53338 Federal Register / Vol. 81, No. 156 / Friday, August 12, 2016 / Proposed Rules The rule does not identify the particular rules and regulations that DOE regards as DOE Nuclear Safety Requirements. DOE proposes to amend part 820 to update the definition of DOE Nuclear Safety Requirements, to add a new section to part 820, and to amend the guidance in appendix A to part 820— General Statement of Enforcement Policy. In particular, DOE proposes that the following are enforceable DOE Nuclear Safety Requirements to the extent they concern nuclear safety: 10 CFR part 830 (nuclear safety management); 10 CFR part 835 (occupational radiation protection); 10 CFR 820.11 (information accuracy requirements); Compliance Orders issued pursuant to 10 CFR part 820, subpart C; 10 CFR 708.43 (duty of contractors not to retaliate against whistleblowers). The lack of a definitive list of regulations included in the definition of DOE nuclear safety requirements in the text of part 820 has led to a question regarding the scope of DOE’s authority to issue civil penalties for violations of these regulations, particularly the prohibition against whistleblower retaliation in part 708. To address this question, DOE proposes to amend part 820 to clarify that part 830, part 835, § 820.11, Compliance Orders issued pursuant to subpart C to part 820, and § 708.43 as it concerns nuclear safety each represent DOE Nuclear Safety Requirements and that DOE may assess civil penalties for violations of these rules. This amendment is consistent with the original intent in promulgating part 820, as evidenced by appendix A of this part, the preambles to previous rulemakings (e.g. 58 FR 43680, 43681 (Aug. 17, 1993)). DOE considers each of these provisions to be a DOE Nuclear Safety Requirement and has previously exercised enforcement activity on the basis of violations of these regulations. Parts 830 and 835 both have a clear connection to nuclear safety in that each regulation directly and explicitly governs the conduct of persons whose conduct may affect nuclear safety. Further, part 830 states explicitly that the requirements of part 830 are DOE Nuclear Safety Requirements and 10 CFR 830.5 provides that violations of part 830 may be enforced through civil penalties in accordance with part 820. Compliance Orders issued pursuant to subpart C to part 820 and § 820.11 also have a clear connection to nuclear safety. Subpart C allows the Secretary of C to part 820, not to orders issued under the DOE Directives Program. VerDate Sep<11>2014 14:23 Aug 11, 2016 Jkt 238001 Energy to order any person involved in a DOE nuclear activity to remediate a situation that violates or potentially violates the AEA, another statute relating to a DOE nuclear activity, or a DOE Nuclear Safety Requirement. Because the underlying violations would involve nuclear safety, Compliance Orders issued under subpart C govern conduct that relates to and may affect nuclear safety. Section 820.11 requires that information pertaining to a nuclear activity that is provided to or maintained for inspection by DOE must be complete and accurate in all respects and prohibits any person involved in a nuclear activity from concealing or destroying information concerning a violation of a DOE Nuclear Safety Requirement. If information regarding a nuclear activity is incomplete or inaccurate, this impedes DOE’s ability to conclude that a contractor is adhering to proper safety precautions. Likewise, if a person willfully destroys information regarding a safety violation, it becomes less likely that the violation will be rectified. Section 708.43 establishes an affirmative duty on the part of DOE contractors (including subcontractors) not to retaliate against whistleblowers. Section 708.36 provides various forms of relief to whistleblower employees. Providing this relief is important, but the Department also has a strong interest in preventing whistleblower retaliation and ensuring that workers feel free to raise important safety concerns. DOE and its contractors rely to a significant extent on workers to bring attention to unsafe conditions. If workers witness any retaliation against an employee for raising a potential nuclear safety issue, it may contribute to a chilled work environment in which workers do not feel free to report such issues. Accordingly, § 708.43, as it applies to activities at DOE nuclear facilities that concern nuclear safety, constitutes a DOE Nuclear Safety Requirement. B. What is the effect of administrative and judicial whistleblower proceedings on DOE’s enforcement process? An employee alleging retaliation by a DOE contractor or subcontractor has several different mechanisms to file a claim for relief, including filing a claim pursuant to part 708, with the DOE Office of the Inspector General, with the Department of Labor under 29 CFR part 24, or in federal or state court. For most of these mechanisms, a contractor employee may seek a ‘‘make whole’’ remedy including reinstatement, transfer-preference, back-pay, and legal fees, among other forms of PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 compensation. DOE considers the imposition of civil penalties for whistleblower retaliation as a complementary process to these proceedings. Relief to contractor employees who have been found to suffer retaliation is important, but DOE also has a separate and strong interest in deterring future whistleblower retaliation in connection with nuclear safety issues. A ‘‘make whole’’ remedy to the employee may not be sufficiently punitive to deter future retaliation against whistleblowers. In these situations, separate enforcement with the possibility of imposing civil penalties would allow DOE to craft a remedy that is specifically designed to address these safety concerns. As a matter of regulatory concern, DOE recognizes that conducting enforcement proceedings concerning retaliation in parallel with administrative or judicial proceedings may lead to conflicting results. DOE’s current enforcement policy explains that DOE will generally await the completion of an administrative proceeding before deciding whether to take action. DOE proposes to codify this policy into the regulatory text with respect to proceedings before DOE under part 708, the DOE Office of the Inspector General under 41 U.S.C. 4705 or 4712, the Department of Labor under 29 CFR part 24, or a federal or state court. Specifically, DOE proposes that it will not take any action under part 820 with respect to alleged retaliation until after the deadlines have passed for filing a claim under part 708 or 29 CFR part 24—i.e. 180 days after the alleged violation occurs.2 If an administrative or judicial proceeding is filed after DOE has already initiated any action under part 820, DOE will immediately suspend its activities under part 820 until the issuance of a final decision in the proceeding—including the exhaustion of appeals. In such instances, DOE will not take any action under part 820 until sixty days after a final decision in an administrative or judicial proceeding finds that a retaliation occurred. DOE proposes that it will generally exercise enforcement discretion that is consistent with the final decision of an 2 For a part 708 claim, the employee must file within 90 days after the employee knew or reasonably should have known about the alleged retaliation. For a claim under 29 CFR part 24, the employee must file within 180 days of an alleged violation prohibited by section 211 of the Energy Reorganization Act of 1974 (42 U.S.C. 5851). There is a three-year deadline for filing a complaint with the Inspector General under 41 U.S.C. 4712, but there is no explicit deadline under 41 U.S.C. 4705. Statutes of limitations before federal and state courts vary. E:\FR\FM\12AUP1.SGM 12AUP1 Federal Register / Vol. 81, No. 156 / Friday, August 12, 2016 / Proposed Rules agency or court. If a final decision finds that retaliation occurred, DOE will consider whether that retaliation constitutes a violation of § 708.43, and if so, whether to take action under part 820. On the other hand, if a final decision finds that no retaliation occurred, DOE will not take any further action under part 820 with respect to the alleged retaliation unless DOE becomes aware of significant new information that was not available in the prior proceeding. DOE is aware that the various statutory and regulatory prohibitions against whistleblower retaliation are not identical. Section 708.43 prohibits retaliation against an employee who engages in one of a number of specified activities. It is conceivable that a contractor could retaliate against an employee for an action that is not protected under § 708.43, but that is protected under a different statutory or regulatory prohibition. Therefore, in the event that a final decision finds that a prohibited retaliation has taken place, DOE will make a determination of whether that retaliation also constitutes a violation of § 708.43 before pursuing remedial measures under part 820 against the contractor. ehiers on DSK5VPTVN1PROD with PROPOSALS C. What is DOE’s enforcement policy regarding whistleblower retaliation? Section XIII to appendix A to part 820 currently sets forth DOE’s Whistleblower Enforcement Policy. As mentioned in this preamble, this appendix is a general statement of policy and is not binding on DOE or its contractors. In addition to codifying DOE’s existing policy to await the completion of administrative proceedings, as described in this preamble, DOE also proposes to codify two other statements of the enforcement policy into a new section of part 820 governing whistleblower enforcement. Specifically, DOE proposes to codify paragraphs d and e of section XIII, which provide that DOE may collect information gathered during administrative proceedings and give appropriate weight to that information in DOE’s enforcement process, respectively. DOE also proposes to codify paragraph k of section XIII, which provides that the commencement of an administrative or judicial proceeding regarding an alleged retaliation does not prevent DOE from investigating violations of DOE Nuclear Safety Requirements other than § 708.43. Under this NOPR, DOE is also proposing amendments to section XIII of appendix A to conform with the VerDate Sep<11>2014 14:23 Aug 11, 2016 Jkt 238001 53339 proposed changes to the regulatory text of part 820. IV. Procedural Issues and Regulatory Review III. Public Participation A. Review Under Executive Order 12866 This notice of proposed rulemaking 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 notice of proposed rulemaking was not subject to review by the Office of Information and Regulatory Affairs of the Office of Management and Budget. DOE will accept comments, data, and information regarding this proposed rule submitted on or before the date provided in the DATES section at the beginning of this proposed rule. Interested parties may submit comments, data, and other information using any of the methods described in the ADDRESSES section at the beginning of this proposed rule. Please refer to specific proposed rule provisions, if possible. If you submit information that you believe to be exempt by law from public disclosure, you should submit one complete copy marked ‘‘confidential,’’ and one copy marked ‘‘nonconfidential’’ with the information believed to be confidential deleted. DOE is responsible for the final determination with regard to disclosure or nondisclosure of the information and for treating it accordingly under the DOE Freedom of Information regulations at 10 CFR 1004.11. Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person that would result from public disclosure; (6) when such information might lose its confidential character due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest. It is DOE’s policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure). DOE has determined that this rulemaking does not raise the kinds of substantial issues or impacts that, pursuant to 42 U.S.C. 7191, would require DOE to provide an opportunity for oral presentation of views, data and arguments. Therefore, DOE has not scheduled a public hearing on these proposed amendments to part 820. PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 B. 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 required by Executive Order 13272, ‘‘Proper Consideration of Small Entities in Agency Rulemaking,’’ 67 FR 53461 (Aug. 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process. 68 FR 7990. DOE has made its procedures and policies available on the Office of the General Counsel’s Web site (http://energy.gov/ gc/office-general-counsel). DOE has reviewed this proposed rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. The proposed rule would amend DOE’s Procedural Rules for DOE Nuclear Activities to clarify that DOE may assess civil penalties against certain contractors and subcontractors for violations of the prohibition against retaliating against whistleblowers. While the amended part 820 would expose small entities that are contractors and subcontractors to potential liability for civil penalties, DOE does not expect that a substantial number of these entities will violate a DOE Nuclear Safety Requirement resulting in the imposition of a civil penalty. On this basis, DOE certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a regulatory flexibility analysis for this rulemaking. DOE’s certification and supporting statement of factual basis will be provided to the Chief Counsel for Advocacy of the Small Business Administration pursuant to 5 U.S.C. 605(b). E:\FR\FM\12AUP1.SGM 12AUP1 53340 Federal Register / Vol. 81, No. 156 / Friday, August 12, 2016 / Proposed Rules C. Paperwork Reduction Act This proposed rule would not impose new information or record keeping requirements. Accordingly, OMB clearance is not required under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. D. National Environmental Policy Act DOE has determined that this proposed rule is covered under the Categorical Exclusion in DOE’s National Environmental Policy Act regulations at paragraph A.5 of appendix A to subpart D, 10 CFR part 1021, which applies to rulemaking that interprets or amends an existing rule or regulation without changing the environmental effect of the rule or regulation that is being amended. The proposed rule would amend DOE’s regulations on civil penalties with respect to certain DOE contractors and subcontractors in order to clarify that civil penalties are available for violations of the prohibition against whistleblower retaliation found in § 708.43 that concern nuclear safety. These proposed amendments are procedural and would not change the environmental effect of part 820. Accordingly, neither an environmental assessment nor an environmental impact statement is required. ehiers on DSK5VPTVN1PROD with PROPOSALS E. Unfunded Mandates Reform Act of 1995 Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531 et seq., requires each Federal agency, to the extent permitted by law, to prepare a detailed assessment of the effects of any Federal mandate in an agency rule that may result in costs to State, local, or tribal governments, or to the private sector, of $100 million or more (adjusted annually for inflation) in any one year. 2 U.S.C. 1532. While the proposed rule may expose DOE contractors and subcontractors to potential liability for civil penalties for retaliating against a whistleblower in connection with a protected activity relating to nuclear safety, DOE does not expect that these civil penalties will approach $100 million in any single year. Therefore, the requirements of Title II of the Unfunded Mandates Reform Act of 1995 do not apply. F. Treasury and General Government Appropriations Act, 1999 Section 654 of the Treasury and General Government Appropriations Act, 1999, 5 U.S.C. 601 note, requires Federal agencies to issue a Family Policymaking Assessment for any proposed rule that may affect family wellbeing. While this proposed rule would apply to individuals who may be VerDate Sep<11>2014 14:23 Aug 11, 2016 Jkt 238001 members of a family, the rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment. G. Executive Order 13132 Executive Order 13132, ‘‘Federalism,’’ 64 FR 43255 (Aug. 4, 1999), imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. DOE has examined this proposed rule and has determined that it would not preempt State law and 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. H. 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 (Feb. 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 PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 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. I. Treasury and General Government Appropriations Act, 2001 The Treasury and General Government Appropriations Act, 2001, 44 U.S.C. 3516 note, provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB’s guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE’s guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed this notice of proposed rulemaking under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines. J. Executive Order 13211 Executive Order 13211, ‘‘Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,’’ 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to the Office of Information and Regulatory Affairs (OIRA) a Statement of Energy Effects for any proposed significant energy action. A ‘‘significant energy action’’ is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. This regulatory action has been determined to not be a significant regulatory action, and it would not have an adverse effect on the supply, distribution, or use of energy. Thus, this action is not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects. K. Approval of the Office of the Secretary The Secretary of Energy has approved the publication of this proposed rule. E:\FR\FM\12AUP1.SGM 12AUP1 53341 Federal Register / Vol. 81, No. 156 / Friday, August 12, 2016 / Proposed Rules List of Subjects in 10 CFR Part 820 Administrative practice and procedure, Enforcement, Government contracts, Nuclear safety, Penalties, Whistleblowing. Issued in Washington, DC, on August 5, 2016. Glenn S. Podonsky, Director, Office of Enterprise Assessments. For the reasons stated in the preamble, DOE hereby proposes to amend part 820 of chapter III of title 10 of the Code of Federal Regulations 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; 50 U.S.C. 2410. 2. Section 820.2 is amended by revising the definition for ‘‘DOE Nuclear Safety Requirements’’ to read as follows: ■ § 820.2 Definitions. * * * * * DOE Nuclear Safety Requirements means the set of rules, regulations, orders, and other requirements relating to nuclear safety adopted by DOE to govern the conduct of persons in connection with any DOE nuclear activity and includes any program, plan, or other provision required to implement these rules, regulations, orders, or other requirements. DOE Nuclear Safety Requirements include the following, to the extent that subject activities concern nuclear safety: (i) 10 CFR part 830; (ii) 10 CFR part 835; (iii) 10 CFR 820.11; (iv) Compliance Orders issued pursuant to 10 CFR part 820, subpart C; and (v) 10 CFR 708.43. * * * * * ■ 3. Section 820.14 is added to subpart A to read as follows: ehiers on DSK5VPTVN1PROD with PROPOSALS § 820.14 Whistleblower protection. (a) Covered acts. An act of retaliation (as defined in 10 CFR 708.2) by a DOE contractor, prohibited by 10 CFR 708.43, that results from a DOE contractor employee’s involvement in an activity listed in 10 CFR 708.5(a) through (c) may constitute a violation of a DOE Nuclear Safety Requirement if it concerns nuclear safety. (b) Commencement of investigation. The Director may not initiate an investigation or take any other action under this part with respect to an alleged act of retaliation by a DOE VerDate Sep<11>2014 14:23 Aug 11, 2016 Jkt 238001 contractor until 180 days after an alleged violation of 10 CFR 708.43 occurs. (c) Administrative or judicial proceedings. The Director shall immediately suspend any ongoing activities under this part and suspend any time limits under this part when an administrative or judicial proceeding commences based on the same alleged act of retaliation. While an administrative or judicial proceeding, including appeals, is pending, the Director may not exercise any authority under this part based on an alleged violation of 10 CFR 708.43, including issuing enforcement letters, subpoenas, orders to compel attendance, Consent Orders, Preliminary Notices of Violation, or Final Notices of Violation. Once such a proceeding commences, the Director shall not conduct any activities under this part until sixty days after a final decision of an agency or court finds that a retaliation occurred. (d) Final decision. For the purposes of this section, a final decision of an agency or court includes any of the following: (1) A final agency decision pursuant to 10 CFR part 708; (2) A final decision or order of the Secretary of Labor pursuant to 29 CFR part 24; (3) A decision by the Secretary upon a report by the Inspector General; (4) A decision by a federal or state court. (e) Evidentiary record. If a final decision of an agency or court finds that retaliation occurred, the Director may obtain and use information collected as part of those proceedings. The Director has discretion to give appropriate weight to information obtained from these proceedings and to initiate and conduct further investigation if the Director deems necessary, particularly with regard to the relationship between the retaliation and nuclear safety. (f) Underlying nuclear safety requirements. Notwithstanding the commencement of an administrative or judicial proceeding based on an alleged act of retaliation, this section shall not prevent the Director from taking any action consistent with this part regarding compliance with DOE Nuclear Safety Requirements other than 10 CFR 708.43. ■ 4. Section 820.20 is amended by revising paragraphs (a) and (b) to read as follows: § 820.20 Purpose and scope. (a) Purpose. This subpart establishes the procedures for investigating the nature and extent of violations of DOE Nuclear Safety Requirements, for PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 determining whether a violation of DOE Nuclear Safety Requirements has occurred, for imposing an appropriate remedy, and for adjudicating the assessment of a civil penalty. (b) Basis for civil penalties. DOE may assess civil penalties against any person subject to the provisions of this part who has entered into an agreement of indemnification under 42 U.S.C. 2210(d) (or any subcontractor or supplier thereto), unless exempted from civil penalties as provided in paragraph (c) of this section, on the basis of a violation of a DOE Nuclear Safety Requirement. * * * * * ■ 5. Appendix A to part 820 is amended by revising 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 taken any actions listed in 10 CFR 708.5(a) through(c), including disclosing information, participating in proceedings, or refusing to participate in certain activities. DOE contractor employees may seek relief for allegations of retaliation through one of several mechanisms, including filing a complaint with DOE pursuant to 10 CFR part 708 (part 708), the Department of Labor (DOL) under sec. 211 of the Energy Reorganization Act (sec. 211), implemented in 29 CFR part 24, or the DOE Inspector General (IG). b. An act of retaliation by a DOE contractor, prohibited by 10 CFR 708.43, that results from a DOE contractor employee’s involvement in an activity listed in 10 CFR 708.5(a) through (c), may constitute a violation of a DOE Nuclear Safety Requirement under 10 CFR part 820 if it concerns nuclear safety. To avoid the potential for inconsistency with one of the mechanisms available to an aggrieved DOE contractor employee alleging retaliation referenced in section XIII.a, the Director will not take any action under this part with respect to an alleged violation of 10 CFR 708.43 until a request for relief under one of these mechanisms, if any, has been fully adjudicated, including appeals. With respect to an alleged retaliation, the Director will generally only take action that is consistent with the findings of a final decision of an agency or court. If a final decision finds that retaliation occurred, the Department will consider whether that retaliation constitutes a violation of § 708.43, and if so, whether to take action under part 820. If a final decision finds that no retaliation occurred, the Director will generally not take any action under part 820 with respect to the alleged retaliation absent significant new information that was not available in the prior proceeding. c. DOE encourages its contractors to cooperate in resolving whistleblower E:\FR\FM\12AUP1.SGM 12AUP1 53342 Federal Register / Vol. 81, No. 156 / Friday, August 12, 2016 / Proposed Rules complaints raised by contractor employees in a prompt and equitable manner. Accordingly, in considering what remedy is appropriate for an act of retaliation concerning nuclear safety, the Director will take into account the extent to which a contractor cooperated in proceedings for remedial relief. d. In considering what remedy is appropriate for an act of retaliation concerning nuclear safety, 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. e. 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. [FR Doc. 2016–19103 Filed 8–11–16; 8:45 am] Authority for This Rulemaking BILLING CODE 6450–01–P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA–2014–1068; Airspace Docket No. 14–AWP–12] Proposed Amendment of Class E Airspace, Kahului, HI Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). AGENCY: This action proposes to modify Class E airspace designated as an extension to a Class C surface area, and modify Class E airspace extending upward from 700 feet above the surface at Kahului Airport, Kahului, HI. Due to changes to the available instrument flight procedures since the last review and advances in Global Positioning System (GPS) mapping accuracy, the FAA found airspace modifications are necessary to ensure the safety and management of Instrument Flight Rules (IFR) operations at the airport with a minimum amount of airspace restriction. DATES: Comments must be received on or before September 26, 2016. ADDRESSES: FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at http://www.faa.gov/ air_traffic/publications/. For further information, you can contact the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Bldg. Ground Floor Rm. W12– ehiers on DSK5VPTVN1PROD with PROPOSALS SUMMARY: VerDate Sep<11>2014 14:23 Aug 11, 2016 Jkt 238001 140, Washington, DC 20590; Telephone: 1–800–647–5527, or 202–366–9826. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of FAA Order 7400.9Z at NARA, call 202–741– 6030, or go to http://www.archives.gov/ federal_register/code_of_federalregulations/ibr_locations.html. FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15. FOR FURTHER INFORMATION CONTACT: Tom Clark, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203–4511. SUPPLEMENTARY INFORMATION: The FAA’s authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency’s authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class E airspace at Kahului Airport, Kahului, HI. Comments Invited Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: ‘‘Comments to Docket No. FAA–2014–1068; Airspace Docket No. 14–AWP–12.’’ The postcard PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 will be date/time stamped and returned to the commenter. Availability of NPRMs An electronic copy of this document and other recently published rulemaking documents may be accessed and downloaded through the Internet at http://www.regulations.gov. You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 1601 Lind Avenue SW., Renton, WA 98057. Availability and Summary of Documents Proposed for Incorporation by Reference This document proposes to amend FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.9Z lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points. The Proposal The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 to modify the Kahului Airport, Kahului, HI, Class E airspace area designated as an extension to a Class C surface area. The current Class E surface area airspace extension to the north is not required and to the south is longer than required to support IFR operations to/from the airport. The proposed Class E surface airspace includes that area within 3 miles each side of the airport 203° bearing extending from the airport 5-mile radius to 7 miles southwest of the airport. This proposal would also modify the Class E airspace area extending upward from 700 feet above the surface by excluding that area extending beyond 12 miles from the coast, and would slightly expand the airspace northeast of the airport to within 3.6 miles each side of the 038° bearing from the airport extending from the 5-mile radius to 11.7 miles northeast of the airport. The airspace area would otherwise remain the same, except as noted above. The expanded Class E airspace area is necessary to contain IFR arrival E:\FR\FM\12AUP1.SGM 12AUP1

Agencies

[Federal Register Volume 81, Number 156 (Friday, August 12, 2016)]
[Proposed Rules]
[Pages 53337-53342]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-19103]



[[Page 53337]]

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DEPARTMENT OF ENERGY

10 CFR Part 820

[Docket No. EA-RM-16-PRDNA]
RIN 1992-AA52


Procedural Rules for DOE Nuclear Activities

AGENCY: Office of Enterprise Assessments, Office of Enforcement, Office 
of Nuclear Safety Enforcement, Department of Energy.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The U.S. Department of Energy (DOE) is proposing to amend its 
Procedural Rules for DOE Nuclear Activities to clarify that the 
Department may assess civil penalties against certain contractors and 
subcontractors for violations of the prohibition against retaliating 
against an employee who reports violations of law, mismanagement, 
waste, abuse, or dangerous/unsafe workplace conditions, among other 
protected activities, concerning nuclear safety (referred to as 
``whistleblowers''). Specifically, this proposed rule would clarify 
that the prohibition against whistleblower retaliation is a DOE Nuclear 
Safety Requirement to the extent that it concerns nuclear safety. The 
proposed rule would also explain the circumstances under which DOE 
would investigate alleged violations of this prohibition. The proposed 
rule would also delineate which DOE regulations are DOE Nuclear Safety 
Requirements.

DATES: DOE will accept comments, data, and information regarding this 
notice of proposed rulemaking (NOPR) submitted on or before September 
12, 2016.

ADDRESSES: Any comments submitted must identify the NOPR for Procedural 
Rules for DOE Nuclear Activities and provide docket number EA-RM-16-
PRDNA and/or regulatory information number (RIN) 1992-AA52. Comments 
may be submitted using any of the following methods:
    1. Federal eRulemaking Portal: www.regulations.gov. Follow the 
instructions for submitting comments.
    2. Email: part820rulemaking@hq.doe.gov. Include the docket number 
and/or RIN in the subject line of the message. Submit electronic 
comments in Microsoft Word, or PDF file format, and avoid the use of 
special characters or any form of encryption.
    3. Postal Mail: EA-10/Germantown Building, U.S. Department of 
Energy, 1000 Independence Avenue SW., Washington, DC 20585-1290. If 
possible, please submit all items on a CD, in which case it is not 
necessary to include printed copies.
    As a result of potential delays in the receipt and processing of 
mail sent through the U.S. Postal Service, DOE encourages respondents 
to submit comments electronically to ensure timely receipt.
    For detailed instructions on submitting comments and additional 
information on the rulemaking process, see section III of this document 
(Public Participation).
    Docket: The docket, which includes Federal Register notices, public 
meeting attendee lists and transcripts, comments received, and other 
supporting documents/materials, is available for review at http://www.regulations.gov. All documents in the docket are listed in the 
www.regulations.gov index. However, some documents listed in the index 
may not be publicly available, such as those containing information 
that is exempt from public disclosure. A link to the docket Web page 
can be found at: http://energy.gov/ea/office-enterprise-assessments. 
This Web page will contain a link to the docket for this proposed 
rulemaking on the www.regulations.gov site. The www.regulations.gov Web 
page contains simple instructions on how to access all documents, 
including public comments, in the docket. See section III for further 
information on how to submit comments through www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: 
    Steven Simonson, U.S. Department of Energy, Office of Enterprise 
Assessments/Germantown Building, 1000 Independence Ave. SW., 
Washington, DC 20585-1290. Phone: (301) 903-2816. Email: 
Steven.Simonson@hq.doe.gov.
    K.C. Michaels, U.S. Department of Energy, Office of the General 
Counsel, 1000 Independence Ave. SW., Washington, DC 20585-0121. Phone: 
(202) 586-3430. Email: Kenneth.Michaels@hq.doe.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Authority and Background
II. Discussion of Proposed Amendment
III. Public Participation
IV. Procedural Issues and Regulatory Review

I. Authority and Background

    Pursuant to the Atomic Energy Act of 1954 (AEA) (42 U.S.C. 2011 et 
seq.), DOE has issued regulations governing nuclear safety management 
(at 10 CFR part 830) and occupational radiation protection (at 10 CFR 
part 835). Section 234A of the AEA (42 U.S.C. 2282a) authorizes DOE to 
impose civil penalties for violations of these regulations. 
Specifically, section 234A authorizes civil penalties against 
contractors, subcontractors, and suppliers that are covered by an 
indemnification agreement under section 170.d. of the AEA (42 U.S.C. 
2210(d)) (commonly known as the Price-Anderson Act) that violate DOE 
rules, regulations, or orders ``related to nuclear safety.'' DOE has 
issued Procedural Rules for DOE Nuclear Activities at 10 CFR part 820 
(part 820), which establishes a process for imposing civil penalties 
under section 234A.
    Separate from part 820, DOE has also issued regulations at 10 CFR 
part 708 (part 708) that prohibit a contractor or subcontractor from 
retaliating against employees for reporting violations of law, 
mismanagement, waste, abuse, or dangerous/unsafe workplace conditions, 
participating in proceedings, or refusing to participate in an activity 
that may constitute a violation of law or cause a reasonable fear of 
injury (referred to as ``whistleblowers''). These regulations establish 
an affirmative duty on the part of contractors not to retaliate against 
whistleblowers; and establish a process for an employee alleging 
retaliation to file a claim for reinstatement, transfer-preference, 
back-pay, and legal fees among other forms of relief.
    DOE is proposing to amend part 820 to clarify that DOE may impose 
civil penalties against a contractor or subcontractor for violating the 
prohibition against whistleblower retaliation found in part 708, to the 
extent it concerns nuclear safety. The proposed rule would not alter 
the existing procedures for imposing civil penalties, but would 
establish requirements specific to whistleblower retaliation concerning 
nuclear safety. The proposed rule would also provide, in the text of 
part 820, a list of all other DOE Nuclear Safety Requirements.

II. Discussion of Proposed Amendment

A. What are DOE Nuclear Safety Requirements and when may DOE impose 
civil penalties?

    The current version of part 820 includes a definition for ``DOE 
Nuclear Safety Requirements,'' and it states that DOE has authority to 
impose civil penalties for violations of any DOE Nuclear Safety 
Requirement set forth in the Code of Federal Regulations, Compliance 
Orders issued under subpart C to part 820, and any program, plan, or 
other provision required to implement one of these rules or orders.\1\

[[Page 53338]]

The rule does not identify the particular rules and regulations that 
DOE regards as DOE Nuclear Safety Requirements.
---------------------------------------------------------------------------

    \1\ The use of the word ``order'' in this context refers to 
Compliance Orders issued under subpart C to part 820, not to orders 
issued under the DOE Directives Program.
---------------------------------------------------------------------------

    DOE proposes to amend part 820 to update the definition of DOE 
Nuclear Safety Requirements, to add a new section to part 820, and to 
amend the guidance in appendix A to part 820--General Statement of 
Enforcement Policy. In particular, DOE proposes that the following are 
enforceable DOE Nuclear Safety Requirements to the extent they concern 
nuclear safety:
    10 CFR part 830 (nuclear safety management);
    10 CFR part 835 (occupational radiation protection);
    10 CFR 820.11 (information accuracy requirements);
    Compliance Orders issued pursuant to 10 CFR part 820, subpart C;
    10 CFR 708.43 (duty of contractors not to retaliate against 
whistleblowers).
    The lack of a definitive list of regulations included in the 
definition of DOE nuclear safety requirements in the text of part 820 
has led to a question regarding the scope of DOE's authority to issue 
civil penalties for violations of these regulations, particularly the 
prohibition against whistleblower retaliation in part 708. To address 
this question, DOE proposes to amend part 820 to clarify that part 830, 
part 835, Sec.  820.11, Compliance Orders issued pursuant to subpart C 
to part 820, and Sec.  708.43 as it concerns nuclear safety each 
represent DOE Nuclear Safety Requirements and that DOE may assess civil 
penalties for violations of these rules. This amendment is consistent 
with the original intent in promulgating part 820, as evidenced by 
appendix A of this part, the preambles to previous rulemakings (e.g. 58 
FR 43680, 43681 (Aug. 17, 1993)).
    DOE considers each of these provisions to be a DOE Nuclear Safety 
Requirement and has previously exercised enforcement activity on the 
basis of violations of these regulations. Parts 830 and 835 both have a 
clear connection to nuclear safety in that each regulation directly and 
explicitly governs the conduct of persons whose conduct may affect 
nuclear safety. Further, part 830 states explicitly that the 
requirements of part 830 are DOE Nuclear Safety Requirements and 10 CFR 
830.5 provides that violations of part 830 may be enforced through 
civil penalties in accordance with part 820.
    Compliance Orders issued pursuant to subpart C to part 820 and 
Sec.  820.11 also have a clear connection to nuclear safety. Subpart C 
allows the Secretary of Energy to order any person involved in a DOE 
nuclear activity to remediate a situation that violates or potentially 
violates the AEA, another statute relating to a DOE nuclear activity, 
or a DOE Nuclear Safety Requirement. Because the underlying violations 
would involve nuclear safety, Compliance Orders issued under subpart C 
govern conduct that relates to and may affect nuclear safety. Section 
820.11 requires that information pertaining to a nuclear activity that 
is provided to or maintained for inspection by DOE must be complete and 
accurate in all respects and prohibits any person involved in a nuclear 
activity from concealing or destroying information concerning a 
violation of a DOE Nuclear Safety Requirement. If information regarding 
a nuclear activity is incomplete or inaccurate, this impedes DOE's 
ability to conclude that a contractor is adhering to proper safety 
precautions. Likewise, if a person willfully destroys information 
regarding a safety violation, it becomes less likely that the violation 
will be rectified.
    Section 708.43 establishes an affirmative duty on the part of DOE 
contractors (including subcontractors) not to retaliate against 
whistleblowers. Section 708.36 provides various forms of relief to 
whistleblower employees. Providing this relief is important, but the 
Department also has a strong interest in preventing whistleblower 
retaliation and ensuring that workers feel free to raise important 
safety concerns. DOE and its contractors rely to a significant extent 
on workers to bring attention to unsafe conditions. If workers witness 
any retaliation against an employee for raising a potential nuclear 
safety issue, it may contribute to a chilled work environment in which 
workers do not feel free to report such issues. Accordingly, Sec.  
708.43, as it applies to activities at DOE nuclear facilities that 
concern nuclear safety, constitutes a DOE Nuclear Safety Requirement.

B. What is the effect of administrative and judicial whistleblower 
proceedings on DOE's enforcement process?

    An employee alleging retaliation by a DOE contractor or 
subcontractor has several different mechanisms to file a claim for 
relief, including filing a claim pursuant to part 708, with the DOE 
Office of the Inspector General, with the Department of Labor under 29 
CFR part 24, or in federal or state court. For most of these 
mechanisms, a contractor employee may seek a ``make whole'' remedy 
including reinstatement, transfer-preference, back-pay, and legal fees, 
among other forms of compensation. DOE considers the imposition of 
civil penalties for whistleblower retaliation as a complementary 
process to these proceedings. Relief to contractor employees who have 
been found to suffer retaliation is important, but DOE also has a 
separate and strong interest in deterring future whistleblower 
retaliation in connection with nuclear safety issues. A ``make whole'' 
remedy to the employee may not be sufficiently punitive to deter future 
retaliation against whistleblowers. In these situations, separate 
enforcement with the possibility of imposing civil penalties would 
allow DOE to craft a remedy that is specifically designed to address 
these safety concerns.
    As a matter of regulatory concern, DOE recognizes that conducting 
enforcement proceedings concerning retaliation in parallel with 
administrative or judicial proceedings may lead to conflicting results. 
DOE's current enforcement policy explains that DOE will generally await 
the completion of an administrative proceeding before deciding whether 
to take action. DOE proposes to codify this policy into the regulatory 
text with respect to proceedings before DOE under part 708, the DOE 
Office of the Inspector General under 41 U.S.C. 4705 or 4712, the 
Department of Labor under 29 CFR part 24, or a federal or state court. 
Specifically, DOE proposes that it will not take any action under part 
820 with respect to alleged retaliation until after the deadlines have 
passed for filing a claim under part 708 or 29 CFR part 24--i.e. 180 
days after the alleged violation occurs.\2\ If an administrative or 
judicial proceeding is filed after DOE has already initiated any action 
under part 820, DOE will immediately suspend its activities under part 
820 until the issuance of a final decision in the proceeding--including 
the exhaustion of appeals. In such instances, DOE will not take any 
action under part 820 until sixty days after a final decision in an 
administrative or judicial proceeding finds that a retaliation 
occurred.
---------------------------------------------------------------------------

    \2\ For a part 708 claim, the employee must file within 90 days 
after the employee knew or reasonably should have known about the 
alleged retaliation. For a claim under 29 CFR part 24, the employee 
must file within 180 days of an alleged violation prohibited by 
section 211 of the Energy Reorganization Act of 1974 (42 U.S.C. 
5851). There is a three-year deadline for filing a complaint with 
the Inspector General under 41 U.S.C. 4712, but there is no explicit 
deadline under 41 U.S.C. 4705. Statutes of limitations before 
federal and state courts vary.
---------------------------------------------------------------------------

    DOE proposes that it will generally exercise enforcement discretion 
that is consistent with the final decision of an

[[Page 53339]]

agency or court. If a final decision finds that retaliation occurred, 
DOE will consider whether that retaliation constitutes a violation of 
Sec.  708.43, and if so, whether to take action under part 820. On the 
other hand, if a final decision finds that no retaliation occurred, DOE 
will not take any further action under part 820 with respect to the 
alleged retaliation unless DOE becomes aware of significant new 
information that was not available in the prior proceeding.
    DOE is aware that the various statutory and regulatory prohibitions 
against whistleblower retaliation are not identical. Section 708.43 
prohibits retaliation against an employee who engages in one of a 
number of specified activities. It is conceivable that a contractor 
could retaliate against an employee for an action that is not protected 
under Sec.  708.43, but that is protected under a different statutory 
or regulatory prohibition. Therefore, in the event that a final 
decision finds that a prohibited retaliation has taken place, DOE will 
make a determination of whether that retaliation also constitutes a 
violation of Sec.  708.43 before pursuing remedial measures under part 
820 against the contractor.

C. What is DOE's enforcement policy regarding whistleblower 
retaliation?

    Section XIII to appendix A to part 820 currently sets forth DOE's 
Whistleblower Enforcement Policy. As mentioned in this preamble, this 
appendix is a general statement of policy and is not binding on DOE or 
its contractors. In addition to codifying DOE's existing policy to 
await the completion of administrative proceedings, as described in 
this preamble, DOE also proposes to codify two other statements of the 
enforcement policy into a new section of part 820 governing 
whistleblower enforcement. Specifically, DOE proposes to codify 
paragraphs d and e of section XIII, which provide that DOE may collect 
information gathered during administrative proceedings and give 
appropriate weight to that information in DOE's enforcement process, 
respectively. DOE also proposes to codify paragraph k of section XIII, 
which provides that the commencement of an administrative or judicial 
proceeding regarding an alleged retaliation does not prevent DOE from 
investigating violations of DOE Nuclear Safety Requirements other than 
Sec.  708.43.
    Under this NOPR, DOE is also proposing amendments to section XIII 
of appendix A to conform with the proposed changes to the regulatory 
text of part 820.

III. Public Participation

    DOE will accept comments, data, and information regarding this 
proposed rule submitted on or before the date provided in the DATES 
section at the beginning of this proposed rule. Interested parties may 
submit comments, data, and other information using any of the methods 
described in the ADDRESSES section at the beginning of this proposed 
rule. Please refer to specific proposed rule provisions, if possible.
    If you submit information that you believe to be exempt by law from 
public disclosure, you should submit one complete copy marked 
``confidential,'' and one copy marked ``non-confidential'' with the 
information believed to be confidential deleted. DOE is responsible for 
the final determination with regard to disclosure or nondisclosure of 
the information and for treating it accordingly under the DOE Freedom 
of Information regulations at 10 CFR 1004.11. Factors of interest to 
DOE when evaluating requests to treat submitted information as 
confidential include: (1) A description of the items; (2) whether and 
why such items are customarily treated as confidential within the 
industry; (3) whether the information is generally known or available 
from other sources; (4) whether the information has previously been 
made available to others without obligation concerning its 
confidentiality; (5) an explanation of the competitive injury to the 
submitting person that would result from public disclosure; (6) when 
such information might lose its confidential character due to the 
passage of time; and (7) why disclosure of the information would be 
contrary to the public interest.
    It is DOE's policy that all comments may be included in the public 
docket, without change and as received, including any personal 
information provided in the comments (except information deemed to be 
exempt from public disclosure).
    DOE has determined that this rulemaking does not raise the kinds of 
substantial issues or impacts that, pursuant to 42 U.S.C. 7191, would 
require DOE to provide an opportunity for oral presentation of views, 
data and arguments. Therefore, DOE has not scheduled a public hearing 
on these proposed amendments to part 820.

IV. Procedural Issues and Regulatory Review

A. Review Under Executive Order 12866

    This notice of proposed rulemaking 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 
notice of proposed rulemaking was not subject to review by the Office 
of Information and Regulatory Affairs of the Office of Management and 
Budget.

B. 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 required 
by Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' 67 FR 53461 (Aug. 16, 2002), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the rulemaking process. 68 FR 7990. DOE has made its 
procedures and policies available on the Office of the General 
Counsel's Web site (http://energy.gov/gc/office-general-counsel).
    DOE has reviewed this proposed rule under the provisions of the 
Regulatory Flexibility Act and the procedures and policies published on 
February 19, 2003. The proposed rule would amend DOE's Procedural Rules 
for DOE Nuclear Activities to clarify that DOE may assess civil 
penalties against certain contractors and subcontractors for violations 
of the prohibition against retaliating against whistleblowers. While 
the amended part 820 would expose small entities that are contractors 
and subcontractors to potential liability for civil penalties, DOE does 
not expect that a substantial number of these entities will violate a 
DOE Nuclear Safety Requirement resulting in the imposition of a civil 
penalty. On this basis, DOE certifies that this proposed rule would not 
have a significant economic impact on a substantial number of small 
entities. Accordingly, DOE has not prepared a regulatory flexibility 
analysis for this rulemaking. DOE's certification and supporting 
statement of factual basis will be provided to the Chief Counsel for 
Advocacy of the Small Business Administration pursuant to 5 U.S.C. 
605(b).

[[Page 53340]]

C. Paperwork Reduction Act

    This proposed rule would not impose new information or record 
keeping requirements. Accordingly, OMB clearance is not required under 
the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

D. National Environmental Policy Act

    DOE has determined that this proposed rule is covered under the 
Categorical Exclusion in DOE's National Environmental Policy Act 
regulations at paragraph A.5 of appendix A to subpart D, 10 CFR part 
1021, which applies to rulemaking that interprets or amends an existing 
rule or regulation without changing the environmental effect of the 
rule or regulation that is being amended. The proposed rule would amend 
DOE's regulations on civil penalties with respect to certain DOE 
contractors and subcontractors in order to clarify that civil penalties 
are available for violations of the prohibition against whistleblower 
retaliation found in Sec.  708.43 that concern nuclear safety. These 
proposed amendments are procedural and would not change the 
environmental effect of part 820. Accordingly, neither an environmental 
assessment nor an environmental impact statement is required.

E. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531 
et seq., requires each Federal agency, to the extent permitted by law, 
to prepare a detailed assessment of the effects of any Federal mandate 
in an agency rule that may result in costs to State, local, or tribal 
governments, or to the private sector, of $100 million or more 
(adjusted annually for inflation) in any one year. 2 U.S.C. 1532. While 
the proposed rule may expose DOE contractors and subcontractors to 
potential liability for civil penalties for retaliating against a 
whistleblower in connection with a protected activity relating to 
nuclear safety, DOE does not expect that these civil penalties will 
approach $100 million in any single year. Therefore, the requirements 
of Title II of the Unfunded Mandates Reform Act of 1995 do not apply.

F. Treasury and General Government Appropriations Act, 1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999, 5 U.S.C. 601 note, requires Federal agencies to issue a 
Family Policymaking Assessment for any proposed rule that may affect 
family wellbeing. While this proposed rule would apply to individuals 
who may be members of a family, the rule would not have any impact on 
the autonomy or integrity of the family as an institution. Accordingly, 
DOE has concluded that it is not necessary to prepare a Family 
Policymaking Assessment.

G. Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (Aug. 4, 1999), 
imposes certain requirements on agencies formulating and implementing 
policies or regulations that preempt State law or that have federalism 
implications. Agencies are required to examine the constitutional and 
statutory authority supporting any action that would limit the 
policymaking discretion of the States and carefully assess the 
necessity for such actions. DOE has examined this proposed rule and has 
determined that it would not preempt State law and 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.

H. 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 (Feb. 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.

I. Treasury and General Government Appropriations Act, 2001

    The Treasury and General Government Appropriations Act, 2001, 44 
U.S.C. 3516 note, provides for agencies to review most disseminations 
of information to the public under guidelines established by each 
agency pursuant to general guidelines issued by OMB. OMB's guidelines 
were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were 
published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed this notice 
of proposed rulemaking under the OMB and DOE guidelines and has 
concluded that it is consistent with applicable policies in those 
guidelines.

J. Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001), requires Federal agencies to prepare and submit to the 
Office of Information and Regulatory Affairs (OIRA) a Statement of 
Energy Effects for any proposed significant energy action. A 
``significant energy action'' is defined as any action by an agency 
that promulgates or is expected to lead to promulgation of a final 
rule, and that: (1) Is a significant regulatory action under Executive 
Order 12866, or any successor order; and (2) is likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy, or (3) is designated by the Administrator of OIRA as a 
significant energy action. For any proposed significant energy action, 
the agency must give a detailed statement of any adverse effects on 
energy supply, distribution, or use should the proposal be implemented, 
and of reasonable alternatives to the action and their expected 
benefits on energy supply, distribution, and use. This regulatory 
action has been determined to not be a significant regulatory action, 
and it would not have an adverse effect on the supply, distribution, or 
use of energy. Thus, this action is not a significant energy action. 
Accordingly, DOE has not prepared a Statement of Energy Effects.

K. Approval of the Office of the Secretary

    The Secretary of Energy has approved the publication of this 
proposed rule.

[[Page 53341]]

List of Subjects in 10 CFR Part 820

    Administrative practice and procedure, Enforcement, Government 
contracts, Nuclear safety, Penalties, Whistleblowing.

    Issued in Washington, DC, on August 5, 2016.
Glenn S. Podonsky,
Director, Office of Enterprise Assessments.

    For the reasons stated in the preamble, DOE hereby proposes to 
amend part 820 of chapter III of title 10 of the Code of Federal 
Regulations as set forth below:

PART 820--PROCEDURAL RULES FOR DOE NUCLEAR ACTIVITIES

0
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; 
50 U.S.C. 2410.

0
2. Section 820.2 is amended by revising the definition for ``DOE 
Nuclear Safety Requirements'' to read as follows:


Sec.  820.2  Definitions.

* * * * *
    DOE Nuclear Safety Requirements means the set of rules, 
regulations, orders, and other requirements relating to nuclear safety 
adopted by DOE to govern the conduct of persons in connection with any 
DOE nuclear activity and includes any program, plan, or other provision 
required to implement these rules, regulations, orders, or other 
requirements. DOE Nuclear Safety Requirements include the following, to 
the extent that subject activities concern nuclear safety:
    (i) 10 CFR part 830;
    (ii) 10 CFR part 835;
    (iii) 10 CFR 820.11;
    (iv) Compliance Orders issued pursuant to 10 CFR part 820, subpart 
C; and
    (v) 10 CFR 708.43.
* * * * *
0
3. Section 820.14 is added to subpart A to read as follows:


Sec.  820.14  Whistleblower protection.

    (a) Covered acts. An act of retaliation (as defined in 10 CFR 
708.2) by a DOE contractor, prohibited by 10 CFR 708.43, that results 
from a DOE contractor employee's involvement in an activity listed in 
10 CFR 708.5(a) through (c) may constitute a violation of a DOE Nuclear 
Safety Requirement if it concerns nuclear safety.
    (b) Commencement of investigation. The Director may not initiate an 
investigation or take any other action under this part with respect to 
an alleged act of retaliation by a DOE contractor until 180 days after 
an alleged violation of 10 CFR 708.43 occurs.
    (c) Administrative or judicial proceedings. The Director shall 
immediately suspend any ongoing activities under this part and suspend 
any time limits under this part when an administrative or judicial 
proceeding commences based on the same alleged act of retaliation. 
While an administrative or judicial proceeding, including appeals, is 
pending, the Director may not exercise any authority under this part 
based on an alleged violation of 10 CFR 708.43, including issuing 
enforcement letters, subpoenas, orders to compel attendance, Consent 
Orders, Preliminary Notices of Violation, or Final Notices of 
Violation. Once such a proceeding commences, the Director shall not 
conduct any activities under this part until sixty days after a final 
decision of an agency or court finds that a retaliation occurred.
    (d) Final decision. For the purposes of this section, a final 
decision of an agency or court includes any of the following:
    (1) A final agency decision pursuant to 10 CFR part 708;
    (2) A final decision or order of the Secretary of Labor pursuant to 
29 CFR part 24;
    (3) A decision by the Secretary upon a report by the Inspector 
General;
    (4) A decision by a federal or state court.
    (e) Evidentiary record. If a final decision of an agency or court 
finds that retaliation occurred, the Director may obtain and use 
information collected as part of those proceedings. The Director has 
discretion to give appropriate weight to information obtained from 
these proceedings and to initiate and conduct further investigation if 
the Director deems necessary, particularly with regard to the 
relationship between the retaliation and nuclear safety.
    (f) Underlying nuclear safety requirements. Notwithstanding the 
commencement of an administrative or judicial proceeding based on an 
alleged act of retaliation, this section shall not prevent the Director 
from taking any action consistent with this part regarding compliance 
with DOE Nuclear Safety Requirements other than 10 CFR 708.43.
0
4. Section 820.20 is amended by revising paragraphs (a) and (b) to read 
as follows:


Sec.  820.20  Purpose and scope.

    (a) Purpose. This subpart establishes the procedures for 
investigating the nature and extent of violations of DOE Nuclear Safety 
Requirements, for determining whether a violation of DOE Nuclear Safety 
Requirements has occurred, for imposing an appropriate remedy, and for 
adjudicating the assessment of a civil penalty.
    (b) Basis for civil penalties. DOE may assess civil penalties 
against any person subject to the provisions of this part who has 
entered into an agreement of indemnification under 42 U.S.C. 2210(d) 
(or any subcontractor or supplier thereto), unless exempted from civil 
penalties as provided in paragraph (c) of this section, on the basis of 
a violation of a DOE Nuclear Safety Requirement.
* * * * *
0
5. Appendix A to part 820 is amended by revising 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 taken any actions listed in 10 CFR 708.5(a) 
through(c), including disclosing information, participating in 
proceedings, or refusing to participate in certain activities. DOE 
contractor employees may seek relief for allegations of retaliation 
through one of several mechanisms, including filing a complaint with 
DOE pursuant to 10 CFR part 708 (part 708), the Department of Labor 
(DOL) under sec. 211 of the Energy Reorganization Act (sec. 211), 
implemented in 29 CFR part 24, or the DOE Inspector General (IG).
    b. An act of retaliation by a DOE contractor, prohibited by 10 
CFR 708.43, that results from a DOE contractor employee's 
involvement in an activity listed in 10 CFR 708.5(a) through (c), 
may constitute a violation of a DOE Nuclear Safety Requirement under 
10 CFR part 820 if it concerns nuclear safety. To avoid the 
potential for inconsistency with one of the mechanisms available to 
an aggrieved DOE contractor employee alleging retaliation referenced 
in section XIII.a, the Director will not take any action under this 
part with respect to an alleged violation of 10 CFR 708.43 until a 
request for relief under one of these mechanisms, if any, has been 
fully adjudicated, including appeals. With respect to an alleged 
retaliation, the Director will generally only take action that is 
consistent with the findings of a final decision of an agency or 
court. If a final decision finds that retaliation occurred, the 
Department will consider whether that retaliation constitutes a 
violation of Sec.  708.43, and if so, whether to take action under 
part 820. If a final decision finds that no retaliation occurred, 
the Director will generally not take any action under part 820 with 
respect to the alleged retaliation absent significant new 
information that was not available in the prior proceeding.
    c. DOE encourages its contractors to cooperate in resolving 
whistleblower

[[Page 53342]]

complaints raised by contractor employees in a prompt and equitable 
manner. Accordingly, in considering what remedy is appropriate for 
an act of retaliation concerning nuclear safety, the Director will 
take into account the extent to which a contractor cooperated in 
proceedings for remedial relief.
    d. In considering what remedy is appropriate for an act of 
retaliation concerning nuclear safety, 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.
    e. 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.
[FR Doc. 2016-19103 Filed 8-11-16; 8:45 am]
 BILLING CODE 6450-01-P