Revisions to the DOE Contractor Employee Protection Program, 37752-37763 [2019-16569]

Agencies

• DEPARTMENT OF ENERGY

[Federal Register Volume 84, Number 149 (Friday, August 2, 2019)]
[Rules and Regulations]
[Pages 37752-37763]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-16569]


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DEPARTMENT OF ENERGY

10 CFR Part 708

[DOE-OHA-2019-0017]
RIN 1903-AA09


Revisions to the DOE Contractor Employee Protection Program

AGENCY: Office of Hearings and Appeals, Department of Energy.

ACTION: Final rule.

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SUMMARY: The DOE Contractor Employee Protection Program extends 
whistleblower protections similar to those in the Whistleblower 
Protection Act to employees of DOE contractors and subcontractors. The 
Office of Hearings and Appeals (OHA) is amending its regulations to 
modernize the Department of Energy's (DOE or Department) contractor 
employee whistleblower program, as well as to provide improvements 
within the existing program.

DATES: This final rule is effective October 1, 2019.

FOR FURTHER INFORMATION CONTACT: Kristin L. Martin, Attorney-Advisor, 
Office of Hearings and Appeals, U.S. Department of Energy, 1000 
Independence Ave. SW, Washington, DC 20585-0107, (202) 287-1550, Email: 
[email protected]. Inquiries must identify the final rule for 
the DOE Contractor Employee Protection Program.

SUPPLEMENTARY INFORMATION: 

I. Background

    While most DOE facilities are run by contractors, and DOE 
contractor employees far outnumber DOE employees, the Whistleblower 
Protection Act only protects federal employees. Therefore, in order to 
ensure safe, well-managed workplaces at its facilities, DOE enacted a 
whistleblower protection program for contractor employees in 1992, the 
DOE Contractor Employee Protection Program, now codified at 10 CFR part 
708. 57 FR 7533 (March 3, 1992). On April 30, 2019, the OHA published a 
Notice of Proposed Rulemaking (84 FR 18164) proposing the first 
revision to the program since 1999.

II. Summary of Final Rule

    The final rule makes the following revisions to part 708. All 
section numbers reference the section numbers in the revised 
regulation.

A. Headings

    The final rule updates part 708's section headings for clarity, so 
that

[[Page 37753]]

readers will be able to more quickly pinpoint the location of the 
information they seek. The updated headings may also offer guidance 
when the scope, purpose, or meaning of a section's content is unclear.

B. Sec.  708.2 Definitions

    1. The final rule moves the definition of ``Administrative Judge'' 
so that the definitions are in alphabetical order. The final rule also 
updates this definition to reflect the role Administrative Judges will 
play in part 708 proceedings under the revised rule.
    2. The final rule adds a definition of ``Alternative Dispute 
Resolution.'' The OHA believes that this definition better highlights 
the flexibility and scope of DOE's conflict management and resolution 
resources.
    3. The final rule discontinues the use of the word ``you'' in Part 
708 to describe employees of contractors. Regulated parties include 
contractors as well as employees and the use of ``you'' makes it 
difficult to distinguish between them. Accordingly, third-person titles 
and pronouns are used throughout the part and the definition of ``you'' 
has been removed.
    4. For clarity and inclusivity, the final rule adds a clause 
stating that the use of the singular includes the plural and that the 
male pronoun is gender neutral. Such a clause reduces ambiguity and 
allows for more concise language in the regulation.
    5. The final rule adds a definition of ``complainant.''

C. Sec.  708.8 Application to Pending Cases

    Revisions to part 708 will apply to cases filed on or after the 
effective date of the finalized revisions.

D. Sec.  708.9 How to File Complaints or Other Documents

    1. The final rule combines the filing instructions and the 
definition of ``filed'' into one section located in the introductory 
subpart. This will clarify that the definition and instructions apply 
generally throughout part 708.
    2. The final rule mandates that all documents filed with the OHA be 
filed electronically, except when permission is granted to file in 
another manner. Electronic filing is faster, more reliable, and more 
cost-efficient than paper filing. It also coordinates with DOE 
electronic records retention policies. However, not everyone can file 
electronically and some materials are better mailed or faxed for 
logistical reasons. Accordingly, any person wishing to file via non-
electronic means may contact the OHA--whether by phone, email, U.S. 
Mail, or another service--and request permission. The OHA will consider 
granting such requests in circumstances where good cause has been shown 
why the document cannot or should not be filed electronically. This 
section does not affect parties' ability to file documents by any other 
method with any other DOE element.
    3. The final rule specifies that a complaint may be withdrawn by 
the complainant at any time. This codifies the OHA's longstanding 
practice.

E. Sec.  708.10 Informal Resolution of Complaints

    The final rule consolidates most references to Alternative Dispute 
Resolution into one section, located in the introductory subpart to 
signal its general applicability. The section reflects DOE's policy 
encouraging the use of Alternative Dispute Resolution and underscores 
the voluntary nature of the process. It also allows for Alternative 
Dispute Resolution at any time during the part 708 process, but advises 
that the process will not be stayed for Alternative Dispute Resolution. 
Finally, the section describes to whom the parties must submit written 
resolutions reached through Alternative Dispute Resolution.

F. Sec.  708.17 Notification of Complaints and Opportunities To Respond

    1. In a recent decision, the OHA required the office that initially 
received the complaint, in that case the Employee Concerns Program, to 
provide the complainant with the employer's response to the complaint 
and to allow the complainant an opportunity to submit additional 
comments thereafter. In the Matter of Charles K. MacLeod, Case No. WBU-
16-0005 (2016) (Reconsideration). The final rule codifies that 
requirement in part 708. The section will also require that the 
complainant's additional comments be provided to the employer. Such 
codification allows for a more transparent process.
    2. Codification also allows the OHA to stipulate time limits for 
responses and additional comments. The final rule extends the time for 
employers to file a response to 15 days. The time period for the 
complainant to submit additional comments is 10 days from receipt of 
the employee's response.

G. Sec.  708.18 Dismissal for Lack of Jurisdiction or Other Good Cause

    1. The final rule requires that decisions dismissing a complaint 
for lack of jurisdiction or other good cause include the contact 
information for OHA's Alternative Dispute Resolution Office (ADR 
Office). Even when a Part 708 complaint is dismissed, the underlying 
workplace conflict often remains. DOE encourages the use of Alternative 
Dispute Resolution to resolve conflict at the lowest level, as quickly 
as possible. Inclusion of the Alternative Dispute Resolution Office's 
contact information in dismissals may encourage the parties to continue 
seeking a resolution to their conflict even after their involvement 
with Part 708 ends.
    2. The final rule extends the time frame for issuance of a decision 
to dismiss a complaint from 15 to 20 days, in order to accommodate the 
submission of the employer's response and the complainant's additional 
comments, pursuant to proposed Sec.  708.17.

H. Sec.  708.19 Appealing a Dismissal of a Complaint by the Head of 
Field Element or EC Director for Lack of Jurisdiction or Other Good 
Cause

    1. The final rule changes the title of this section to specify that 
it applies to appeals of dismissals by EC Directors or Heads of Field 
Elements. This will differentiate it from appeals of dismissals by 
Administrative Judges. The difference is that dismissals by 
Administrative Judges are initial agency decisions, while dismissals by 
EC Directors of Heads of Field Elements are not.
    2. The final rule adds an appellate standard of review to the 
section describing its procedures for an appeal of an ECP Director or 
Head of Field Element dismissal. Standards of review have long been 
included in other sections of part 708 and the addition of an appellate 
standard enhances consistency and fairness. The final rule incorporates 
the common appellate standard of review of reviewing findings of fact 
for clear error and reviewing conclusions of law de novo.
    3. The final rule formally specifies that appeals are not available 
concerning decisions not to dismiss a complaint. This has been the 
OHA's longstanding policy. Adding this language to part 708 codifies 
this policy.
    4. The final rule specifies that the OHA Director has the powers 
necessary to adjudicate the appeal proceeding. For example, the OHA 
Director may order briefing or oral argument from the parties if he 
deems it necessary. The final rule adds this language to Sec.  708.33 
for the same reason.

[[Page 37754]]

I. Sec.  708.20 Review by the Secretary of Energy of a Decision on 
Appeal of a Dismissal

    The final rule formally specifies that Secretarial review is not 
available concerning appellate decisions to reverse a dismissal of a 
complaint. This has been the OHA's longstanding policy. Adding this 
language to part 708 codifies the policy.

J. Sec.  708.21 Referral to the Office of Hearings and Appeals

    1. The final rule eliminates the option to have a hearing without 
an investigation. Over the years, OHA has observed that investigations 
are crucial to help refine and clarify the issues for hearing. 
Moreover, the selection of a hearing without an investigation by 
complainants has been rare. From time to time, a complainant has 
requested a hearing without an investigation, usually in an effort to 
obtain a decision more quickly. In such cases, the hearings typically 
became far more wide-ranging, unfocused, and inefficient. Without the 
clarifying work of the investigation, the complainant usually suffers a 
significant disadvantage, and the task of rendering a decision by the 
Administrative Judge becomes more complicated as a result, particularly 
when the complainant lacks legal representation. Accordingly, the 
benefits of requiring an investigation prior to hearing far outweigh 
the benefits of maintaining the option for a hearing without an 
investigation.
    2. The final rule moves information regarding the conduct and 
obligations of OHA personnel and the rights and obligations of parties 
to Sec.  708.21. These provisions were previously included in Sec.  
708.28. However, as they are applicable to all part 708 proceedings 
before the OHA, the provisions are properly placed at the beginning of 
Subpart C to indicate their general applicability.

K. Sec.  708.22 Investigation of Complaints

    1. The final rule removes provisions relating to hearings without 
an investigation, pursuant to revisions to Sec.  708.21.
    2. The OHA final rule amends Sec.  708.22(a) to state that 
investigators may not participate or advise in a case after the 
investigation is completed. This revision allows for the elimination of 
pre-revision Sec.  708.25(b), which stated the same with similar 
language.
    3. The OHA final rule allows for dismissal of complaints prior to 
the completion of the investigation. The OHA believes this change will 
improve the efficiency of the part 708 process, while still fully 
protecting the parties' rights. Occasionally, it becomes immediately 
clear after the investigation starts that the complaint lacks merit or 
that the OHA lacks jurisdiction. In such cases, it could be a waste of 
the parties' and the OHA's time and resources to continue with a full 
investigation. Allowing for dismissal prior to the completion of the 
investigation--while still providing an opportunity for appellate 
review if dismissal is believed to be in error--will help to eliminate 
this waste and streamline the process.
    In the event that a complaint, upon preliminary investigation, is 
believed by the investigator to be clearly without merit or to lack a 
jurisdictional basis, the investigator may request that the OHA 
Director appoint an Administrative Judge to make a formal determination 
regarding whether dismissal is appropriate. The investigator will 
provide a written statement to the Administrative Judge that will 
outline the factual and legal reasons the investigator has for 
referring the complaint for dismissal. If the Administrative Judge does 
decide to dismiss the complaint, he will issue a decision containing 
the factual and legal bases for dismissal, and serve the decision on 
all the parties, along with the investigator's written statement. If 
the Administrative Judge decides not to dismiss the complaint, he will 
issue a written statement to be served on all the parties and order the 
investigation to continue. The Administrative Judge may ask the OHA 
Director to appoint a new investigator.
    For an investigator to refer a complaint for dismissal, he must 
believe that there is no genuine dispute of material fact and the 
complainant's claims are wholly without merit, or that the complaint 
warrants dismissal for one of the reasons listed in Sec.  708.18(c). A 
dismissal for lack of merit prior to the completion of an investigation 
will seldom occur, as the applicable standard is quite difficult to 
meet. First, there must appear to be no dispute among the parties as to 
the relevant facts. Second, in light of those undisputed facts, the 
complainant's claims must lack merit--i.e., fail to give rise to an 
entitlement to relief under Part 708. Under those circumstances, and 
only under those circumstances, may the investigator refer the 
complaint to an Administrative Judge for dismissal on the merits. The 
Administrative Judge may exercise all powers necessary, including 
requesting submissions from the parties, to evaluate whether dismissal 
is appropriate. If the Administrative Judge disagrees with the 
investigator's assessment and finds that the parties do not agree on 
all of the relevant facts or that the claims are not entirely without 
merit, he must decline to dismiss the complaint. If the Administrative 
Judge does dismiss the complaint, appeal to the OHA Director and, if 
that fails, Secretarial review are available to the complainant.
    4. The final rule states that no report of investigation will be 
issued when a complaint is dismissed prior to the completion of the 
investigation. Without a full investigation, the report of 
investigation would be incomplete. However, the Administrative Judge 
will issue an initial agency decision that will include a summary of 
the factual findings available, which would normally be included in a 
report of investigation, as well as legal conclusions sufficient to 
support an initial agency decision. The Administrative Judge will serve 
the decision on all parties.
    5. The final rule states that the procedures in Sec. Sec.  708.32-
708.35 apply to an appeal of a dismissal of a complaint before 
completion of the investigation. These sections govern appeals of all 
other initial agency decisions under Part 708. The final rule amends 
those sections and others to accommodate appeals of initial agency 
decisions issued prior to completion of the investigation, such that 
all parties are afforded the same due process.

L. Sec.  708.23 Time To Issue a Report of Investigation

    The final rule tolls the time to issue a report of investigation 
pending an Administrative Judge's decision on whether to dismiss a case 
referred for such purpose by an investigator. OHA investigations are 
quite comprehensive and require significant time to complete. Tolling 
the time to issue the report of investigation is necessary to ensure 
that investigators do not lose valuable time while waiting for an 
Administrative Judge to issue a decision.

M. Sec.  708.26 Time and Location of Hearings

    The final rule codifies the option to conduct Part 708 hearings via 
video teleconference. While this option is already available, adding it 
to the regulation increases transparency and informs litigants of this 
option. Video teleconferencing preserves Department resources while 
maintaining the integrity of the proceedings. The OHA currently 
conducts nearly 90 percent of its personnel security hearings via video 
teleconference and has been successful in maintaining the benefits of 
an in-person hearing while reducing the

[[Page 37755]]

OHA's travel costs to a fraction of their previous levels.

N. Sec.  708.27 The Administrative Judge May Not Require That the 
Parties Participate in Alternative Dispute Resolution

    The final rule amends the language of Sec.  708.27 to clarify the 
section's purpose. Prior to these revisions, many readers interpreted 
the language of this section as an endorsement of Alternative Dispute 
Resolution similar to others already in the regulation. However, the 
purpose of Sec.  708.27 is to prohibit an Administrative Judge from 
requiring participation in Alternative Dispute Resolution. Unlike many 
state and federal court systems where Alternative Dispute Resolution 
may be ordered, DOE is committed to maintaining a voluntary Alternative 
Dispute Resolution process. Accordingly, Alternative Dispute Resolution 
is widely encouraged, but may not be required for litigants of part 708 
complaints.

O. Sec.  708.28 Hearing Procedures

    The final rule clarifies that Administrative Judges may issue 
rulings that might result in termination of the proceeding before 
completion of the hearing. This was permitted under previous versions 
of the regulation, however the new language is clearer and less 
vulnerable to ambiguity.

P. Sec.  708.30 Timing for Issuing an Initial Agency Decision

    The final rule separates the timing of issuing an initial agency 
decision from the procedures for issuing such.

Q. Sec.  708.31 Procedure for Issuing an Initial Agency Decision

    The final rule consolidates the procedures for issuing an initial 
agency decision and the procedures for issuing an initial agency 
decision if no hearing was conducted. The final rule also moves 
procedural provisions from Sec.  708.30 to Sec.  708.31, creating 
separate sections for timing and procedure.

R. Sec.  708.33 Procedure for Appeals

    1. The final rule adds an appellate standard of review to the 
section describing its procedures for an appeal of an initial agency 
decision. Standards of review have long been included in other sections 
of part 708 and the addition of an appellate standard lends itself to 
consistency and fairness. The final rule incorporates the common 
appellate standard of review of reviewing findings of fact for clear 
error and reviewing conclusions of law de novo. The final rule removes 
the OHA Director's ability to initiate an investigation and to consider 
new facts and evidence discovered in the appeal decision. This practice 
is at odds with the new appellate standard and subverts the deference 
to be owed to the Administrative Judge's fact finding.
    2. The final rule specifies that the OHA Director has the powers 
necessary to adjudicate the appeal proceeding. For example, the OHA 
Director may order briefing or oral argument from the parties if he 
deems it necessary. The final rules adds this language to Sec.  708.19 
for the same reason.

S. Sec.  708.34 Procedure for Issuing an Appeal Decision

    1. The final rule specifies two additional ways in which the OHA 
Director may rule on an appeal of an initial agency decision. These 
additional types of rulings are tailored for those situations where the 
complainant is appealing the dismissal of his complaint prior to 
completion of the investigation. Specifically, if the OHA Director 
determines that the complaint was properly dismissed by the 
Administrative Judge, he will deny the appeal. If he determines the 
complaint should not have been dismissed, he will vacate the initial 
agency decision and order further processing of the complaint.
    2. The final rule specifies that an appeal decision to reverse 
dismissal of a complaint is not a final agency action and is not 
subject to a petition for Secretarial review. This has been the OHA's 
longstanding policy. Adding this language to Part 708 codifies the 
policy.

T. Sec.  708.40 Notice of Program Requirements

    The final rule requires employers covered by part 708 to post the 
telephone number and website or email address of the DOE office at 
which employees may file complaints. This is in addition to the 
existing requirement that employers post the name and address of such 
DOE office. Paperless communication is encouraged at DOE and the new 
contact information provided will further the Department's effort to 
increase the usage of paperless communication.

U. Sec.  708.42 Extension of Deadlines

    The final rule limits remedies available where OHA has not met part 
708's timing requirements. A decision should not be vulnerable to 
reversal simply because the OHA or other DOE component does not issue 
it in a timely manner. Specifically, failure by the DOE to comply with 
timing requirements does not create a substantive right for any party 
to overturn a DOE decision on a complaint. The OHA and all DOE 
components will continue to strive to meet all requirements and 
deadlines.

III. Response to Public Comment

    In the Notice of Proposed Rulemaking, the OHA specifically 
requested comment on two elements of the proposed rule:
    1. The procedure by which complaints may be dismissed during 
investigations; and
    2. Whether the OHA should be required by the regulation to appoint 
a new investigator in the event that a case is not dismissed after 
being referred for dismissal during an investigation.
    The OHA received only one comment, which did not address either of 
the elements mentioned above.
    The received comment expressed concern that the proposed rule did 
not highlight the protections afforded to whistleblowers under federal 
statutes and Department of Labor regulations. While the OHA recognizes 
the importance of those whistleblower programs and of notifying 
whistleblowers of their rights, the OHA does not administer those 
programs. It would be inappropriate for an OHA rulemaking to impose any 
requirement related to programs that the OHA does not administer. 
Therefore, for the reasons discussed in the preamble and the proposed 
rule (84 FR 18164; April 30, 2019), the OHA is publishing the 
rulemaking as proposed.

IV. Regulatory Review

A. Executive Order 12866

    It was determined that this action is not a significant regulatory 
action subject to review under Executive Order 12866, ``Regulatory 
Planning and Review,'' 58 FR 51735 (Oct. 4, 1993) by the Office of 
Information and Regulatory Affairs (OIRA) of the Office of Management 
and Budget (OMB).

B. Executive Orders 13771, and 13777

    On January 30, 2017, the President issued Executive Order 13771, 
``Reducing Regulation and Controlling Regulatory Costs.'' That Order 
stated the policy of the executive branch is to be prudent and 
financially responsible in the expenditure of funds, from both public 
and private sources. The Order stated it is essential to manage the 
costs associated with the governmental imposition of private 
expenditures required to comply with Federal regulations.
    Additionally, on February 24, 2017, the President issued Executive 
Order 13777, ``Enforcing the Regulatory

[[Page 37756]]

Reform Agenda.'' The Order required the head of each agency designate 
an agency official as its Regulatory Reform Officer (RRO). Each RRO 
oversees the implementation of regulatory reform initiatives and 
policies to ensure that agencies effectively carry out regulatory 
reforms, consistent with applicable law. Further, E.O. 13777 requires 
the establishment of a regulatory task force at each agency. The 
regulatory task force is required to make recommendations to the agency 
head regarding the repeal, replacement, or modification of existing 
regulations, consistent with applicable law. At a minimum, each 
regulatory reform task force must attempt to identify regulations that:
    (i) Eliminate jobs, or inhibit job creation;
    (ii) Are outdated, unnecessary, or ineffective;
    (iii) Impose costs that exceed benefits;
    (iv) Create a serious inconsistency or otherwise interfere with 
regulatory reform initiatives and policies;
    (v) Are inconsistent with the requirements of Information Quality 
Act, or the guidance issued pursuant to that Act, in particular those 
regulations that rely in whole or in part on data, information, or 
methods that are not publicly available or that are insufficiently 
transparent to meet the standard for reproducibility; or
    (vi) Derive from or implement Executive Orders or other 
Presidential directives that have been subsequently rescinded or 
substantially modified.
    Pursuant to OMB's Guidance Implementing Executive Order 13771, 
Titled ``Reducing Regulation and Controlling Regulatory Costs (April 5, 
2017), this action does not constitute an ``E.O. 13771 regulatory 
action'' because it does not meet the E.O. 12866 definition of a 
significant regulatory action. DOE determined, however, that this 
action furthers the policy goals outlined in Executive Order 13777, 
``Enforcing the Regulatory Reform Agenda,'' which encourages the 
repeal, replacement, or modification of existing regulations that, 
among other things, are outdated, unnecessary, or ineffective. Prior to 
this action, Part 708 was outdated and, in some sections, inefficient. 
This action clarifies the regulation and streamlines the proceedings, 
which should result in increased time and resource savings for 
litigants and DOE.

C. 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 (August 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 General Counsel's 
website: https://www.gc.doe.gov.
    DOE has reviewed this final rule under the provisions of the 
Regulatory Flexibility Act and the procedures and policies published on 
February 19, 2003. This final rule alters procedural rules primarily 
for the OHA, with little impact on the conduct of or burdens on 
litigants. DOE has determined that the final rule will not result in a 
significant economic impact on a substantial number of small entities 
because few small entities are involved in part 708 proceedings and 
because the final rule contains few changes in the obligations of the 
litigants.
    DOE will provide its certification and supporting statement of 
factual basis to the Chief Counsel for Advocacy of the Small Business 
Administration for review under 5 U.S.C. 605(b).

D. The Paperwork Reduction Act of 1995

    Proposed Part 708 does not contain information collection 
requirements subject to review and approval by OMB under the Paperwork 
Reduction Act.

E. The Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally 
requires Federal agencies to examine closely the impacts of regulatory 
actions on State, local, and tribal governments. Section 101(5) of 
title I of that law defines a Federal intergovernmental mandate to 
include any regulation that would impose upon State, local, or tribal 
governments an enforceable duty, except a condition of Federal 
assistance or a duty arising from participating in a voluntary Federal 
program. Title II of that law requires each Federal agency to assess 
the effects of Federal regulatory actions on State, local, and tribal 
governments, in the aggregate, or to the private sector, other than to 
the extent such actions merely incorporate requirements specifically 
set forth in a statute. Section 202 of that title requires a Federal 
agency to perform a detailed assessment of the anticipated costs and 
benefits of any rule that includes a Federal mandate which may result 
in costs to State, local, or tribal governments, or to the private 
sector, of $100 million or more in any one year (adjusted annually for 
inflation). 2 U.S.C. 1532(a) and (b). Section 204 of that title 
requires each agency that proposes a rule containing a significant 
Federal intergovernmental mandate to develop an effective process for 
obtaining meaningful and timely input from elected officers of State, 
local, and tribal governments. 2 U.S.C. 1534.
    The final rule will not result in the expenditure by State, local, 
and tribal governments in the aggregate, or by the private sector, of 
$100 million or more in any one year. Accordingly, no assessment or 
analysis is required under the Unfunded Mandates Reform Act of 1995.

F. The Treasury and General Government Appropriations Act, 1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any proposed rule that may affect family 
well-being. The final rule will 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 final rule and has 
determined that it will not preempt State law and will 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

[[Page 37757]]

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 whether it is unreasonable to meet 
one or more of them. DOE has completed the required review and 
determined that, to the extent permitted by law, the final 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 final rule under the OMB and DOE guidelines and has 
concluded that it is consistent with applicable policies in those 
guidelines.

J. Delegations

    All DOE delegation orders may be accessed at https://www.directives.doe.gov/.

V. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this final 
rule.

List of Subjects in 10 CFR Part 708

    Administrative practice and procedure; Whistleblower Protection

    Signed in Washington, DC, on July 26, 2019.
Poli A. Marmolejos,
Director, Office of Hearings and Appeals.

    For the reasons set out in the preamble, the DOE revises part 708 
of title 10, Code of Federal Regulations to read as follows:

PART 708--DOE CONTRACTOR EMPLOYEE PROTECTION PROGRAM

Subpart A--General Provisions
Sec.
708.1 Scope and purpose.
708.2 Definitions.
708.3 Complaints covered.
708.4 Complaints not covered.
708.5 Protected conduct.
708.6 Reasonable fear of serious injury.
708.7 Filing a complaint based on retaliation for refusal to 
participate.
708.8 Application to pending cases.
708.9 How to file complaints or other documents.
708.10 Informal resolution of complaints.
Subpart B--Employee Complaint Resolution Process
708.11 Filing a complaint.
708.12 No expectation of confidentiality.
708.13 Requirements for the form and content of a complaint.
708.14 Exhaustion of grievance-arbitration procedures.
708.15 Time to file a complaint.
708.16 Duplicative actions under State or other law.
708.17 Notification of complaints and opportunities to respond.
708.18 Dismissal for lack of jurisdiction or other good cause.
708.19 Appealing the dismissal of a complaint by the Head of Field 
Element or EC Director for lack of jurisdiction or other good cause.
708.20 Review by the Secretary of Energy of a decision on appeal of 
a dismissal.
Subpart C--Investigation, Hearing, and Decision Process
708.21 Referral to the Office of Hearings and Appeals.
708.22 Investigation of complaints.
708.23 Time to issue a report of investigation.
708.24 Hearings not required.
708.25 Appointment of Administrative Judge.
708.26 Time and location of hearings.
708.27 The Administrative Judge may not require that the parties 
participate in alternative dispute resolution.
708.28 Hearing procedures.
708.29 Burdens of proof.
708.30 Timing for issuing an initial agency decision.
708.31 Procedure for issuing an initial agency decision.
708.32 Appealing an initial agency decision.
708.33 Procedure for appeals.
708.34 Procedure for issuing an appeal decision.
708.35 Review by the Secretary of Energy of an appeal decision.
708.36 Remedies.
708.37 Reimbursement of costs and expenses.
708.38 Implementation of final agency decision.
708.39 The Contract Disputes Act.
708.40 Notice of program requirements.
708.41 Referral to another agency.
708.42 Extension of deadlines.
708.43 Affirmative duty not to retaliate.

    Authority:  42 U.S.C. 2201(b), 2201(c), 2201(i), and 2201(p); 42 
U.S.C. 5814 and 5815; 42 U.S.C. 7251, 7254, 7255, and 7256; and 5 
U.S.C. Appendix 3.

Subpart A--General Provisions


Sec.  708.1   Scope and purpose.

    This part provides procedures for processing complaints by 
employees of DOE contractors alleging retaliation by their employers 
for disclosure of information concerning danger to public or worker 
health or safety, substantial violations of law, or gross 
mismanagement; for participation in Congressional proceedings; or for 
refusal to participate in dangerous activities.


Sec.  708.2   Definitions.

    (a) For purposes of this part:
    Administrative Judge means an attorney appointed by the OHA 
Director to preside over the disposition of a complaint.
    Alternative Dispute Resolution means any technique for resolving 
disputes and managing conflict without resorting to litigation in 
either an administrative or judicial forum. Alternative Dispute 
Resolution techniques include, but are not limited to, mediation, 
facilitation, shuttle diplomacy, partnering, and dispute systems 
design.
    Complainant means an employee who has filed a complaint under 10 
CFR part 708.
    Contractor means a seller of goods or services who is a party to a 
management and operating contract or other type of contract with DOE, 
or subcontract to such a contract, to perform work directly related to 
activities at DOE-owned or -leased facilities.
    Day means a calendar day.
    Discovery means a process used to enable the parties to learn about 
each other's evidence before a hearing takes place, including oral 
depositions, written interrogatories, requests for admissions, 
inspection of property, and requests for production of documents.
    DOE Official means any officer or employee of DOE whose duties 
include program management or the investigation or enforcement of any 
law, rule, or regulation relating to Government contractors or the 
subject matter of a contract.

[[Page 37758]]

    EC Director means the Director of the Office of Employee Concerns 
at DOE Headquarters, or any official to whom the Director delegates his 
functions under this part.
    Employee means a person employed by a contractor, and any person 
previously employed by a contractor if that person's complaint alleges 
that employment was terminated for conduct described in Sec.  708.5 of 
this subpart.
    Field element means a DOE operations office or field office that is 
responsible for the management, coordination, and administration of 
operations at a DOE facility.
    Head of Field Element means the manager or head of a DOE operations 
office or field office, or any official to whom those individuals 
delegate their functions under this part.
    Management and operating contract means an agreement under which 
DOE contracts for the operation, maintenance, or support of a 
Government-owned or -leased research, development, special production, 
or testing establishment that is wholly or principally devoted to one 
or more of the programs of DOE.
    OHA Director means the Director of the Office of Hearings and 
Appeals, or any official to whom the Director delegates his functions 
under this part.
    Party means an employee, contractor, or other party named in a 
proceeding under this part.
    Retaliation means an action (including intimidation, threats, 
restraint, coercion, or similar action) taken by a contractor against 
an employee with respect to employment (e.g., discharge, demotion, or 
other negative action with respect to the employee's compensation, 
terms, conditions, or privileges of employment) that would not have 
been taken but for the employee's disclosure of information, 
participation in proceedings, or refusal to participate in activities 
described in Sec.  708.5 of this subpart.
    (b) Throughout this part, the use of a word or term in the singular 
includes the plural, and the use of the male gender is gender neutral.


Sec.  708.3   Complaints covered.

    This part applies to a complaint of retaliation filed by an 
employee of a contractor that performs work on behalf of DOE, directly 
related to activities at a DOE-owned or -leased site, if the complaint 
stems from a disclosure, participation, or refusal described in Sec.  
708.5 of this subpart.


Sec.  708.4   Complaints not covered.

    An employee of a contractor may not file a complaint against his 
employer under this part if:
    (a) The complaint is based on race, color, religion, sex, age, 
national origin, or other similar basis; or
    (b) The complaint involves misconduct that the employee, acting 
without direction from the employer, deliberately caused, or in which 
the employee knowingly participated; or
    (c) Except as provided in Sec.  708.15(a), the complaint is based 
on the same facts for which the employee has chosen to pursue a remedy 
available under:
    (1) Department of Labor regulations at 29 CFR part 24, ``Procedures 
for the Handling of Discrimination Complaints under Federal Employee 
Protection Statutes;''
    (2) Federal Acquisition Regulations, 48 CFR part 3, ``Federal 
Acquisition Regulation; Whistleblower Protection for Contractor 
Employees (Ethics);'' or
    (3) State or other applicable law, including final and binding 
grievance-arbitration, as described in Sec.  708.16 of subpart B; or
    (d) The complaint is based on the same facts in which the employee, 
in the course of a covered disclosure or participation, improperly 
disclosed Restricted Data, national security information, or any other 
classified or sensitive information in violation of any Executive 
Order, statute, or regulation. This part does not override any 
provision or requirement of any regulation pertaining to Restricted 
Data, national security information, or any other classified or 
sensitive information; or
    (e) The complaint deals with ``terms and conditions of employment'' 
within the meaning of the National Labor Relations Act, except as 
provided in Sec.  708.5.


Sec.  708.5   Protected conduct.

    An employee of a contractor may file a complaint against his 
employer alleging that he has been subject to retaliation for:
    (a) Disclosing to a DOE official, a member of Congress, any other 
government official who has responsibility for the oversight of the 
conduct of operations at a DOE site, the employer, or any higher tier 
contractor, information that he reasonably believes reveals--
    (1) A substantial violation of a law, rule, or regulation;
    (2) A substantial and specific danger to employees or to public 
health or safety; or
    (3) Fraud, gross mismanagement, gross waste of funds, or abuse of 
authority; or
    (b) Participating in a Congressional proceeding or an 
administrative proceeding conducted under this part; or
    (c) Subject to Sec.  708.7 of this subpart, refusing to participate 
in an activity, policy, or practice if the employee believed 
participation would--
    (1) Constitute a violation of a Federal health or safety law; or
    (2) Cause the employee to have a reasonable fear of serious injury 
to himself, other employees, or members of the public.


Sec.  708.6   Reasonable fear of serious injury.

    Participation in an activity, policy, or practice may cause an 
employee to have a reasonable fear of serious injury that justifies a 
refusal to participate if:
    (a) A reasonable person, under the circumstances that confronted 
the employee, would conclude there is a substantial risk of a serious 
accident, injury, or impairment of health or safety resulting from 
participation in the activity, policy, or practice; or
    (b) An employee, because of the nature of his employment 
responsibilities, does not have the training or skills needed to 
participate safely in the activity or practice.


Sec.  708.7  Filing a complaint based on retaliation for refusal to 
participate.

    An employee may file a complaint for retaliation for refusing to 
participate in an activity, policy, or practice only if:
    (a) Before refusing to participate in the activity, policy, or 
practice, the employee asked the employer to correct the violation or 
remove the danger, and the employer refused to take such action; and
    (b) By the 30th day after the refusal to participate, the employee 
reported the violation or dangerous activity, policy, or practice to a 
DOE official, a member of Congress, another government official with 
responsibility for the oversight of the conduct of operations at the 
DOE site, his employer, or any higher tier contractor, and stated his 
reasons for refusing to participate.


Sec.  708.8   Application to pending cases.

    The procedures in this part apply in any complaint proceeding filed 
with the Head of Field Element or EC Director, as appropriate, on or 
after the effective date of this part.


Sec.  708.9   How to file complaints or other documents.

    (a) Under this part, a complaint or other document is considered 
filed on the date it is mailed, electronically

[[Page 37759]]

submitted, or personally delivered to the specified official or office.
    (b) A complaint may be withdrawn at any time at the request of the 
complainant.
    (c) Absent exceptional circumstances, all submissions to the Office 
of Hearings and Appeals must be filed electronically in accordance with 
the instructions set forth on the Office of Hearings and Appeals 
website, found at https://www.energy.gov/oha/filing-information. The 
Office of Hearings and Appeals may grant permission to file via mail or 
facsimile.


Sec.  708.10   Informal resolution of complaints.

    (a) DOE encourages the use of alternative dispute resolution. If 
the parties are willing, they can seek to utilize alternative dispute 
resolution techniques, such as settlement discussions or mediation, in 
an attempt to resolve the complaint.
    (b) The parties may engage in alternative dispute resolution at any 
time prior to the issuance of an initial agency decision.
    (c) If the parties resolve the complaint informally, the Head of 
Field Element, EC Director, and the Office of Hearings and Appeals must 
be given a copy of the settlement agreement or a written statement from 
the employee that withdraws the complaint.

Subpart B--Employee Complaint Resolution Process


Sec.  708.11   Filing a complaint.

    (a) If an employee was employed by a contractor whose contract is 
overseen by a contracting officer located in DOE Headquarters when the 
alleged retaliation occurred, the employee must file the written 
complaint with the EC Director.
    (b) If an employee was employed by a contractor at a DOE field 
facility or site when the alleged retaliation occurred, the employee 
must file the written complaint with the Head of Field Element at the 
DOE field element with jurisdiction over the contract.


Sec.  708.12   No expectation of confidentiality.

    The identity of an employee who files a complaint under this part 
appears on the complaint. A copy of the complaint is provided to the 
employer and the complainant's identity cannot be maintained as 
confidential.


Sec.  708.13   Requirements for the form and content of a complaint.

    A complaint does not need to be in any specific form but must be 
signed by the employee and contain the following:
    (a) A statement specifically describing
    (1) The alleged retaliation taken against the employee and
    (2) The disclosure, participation, or refusal covered under Sec.  
708.5 that the employee believes gave rise to the retaliation;
    (b) A statement that the complainant is not currently pursuing a 
remedy under State or other applicable law, as described in Sec.  
708.16 of this subpart;
    (c) A statement that all of the facts that the complainant has 
included in his complaint are true and correct to the best of his 
knowledge and belief; and
    (d) An affirmation, as described in Sec.  708.14 of this subpart, 
that the complainant has exhausted all applicable grievance or 
arbitration procedures.


Sec.  708.14   Exhaustion of grievance-arbitration procedures.

    (a) To show that all applicable grievance-arbitration procedures 
have been exhausted, the complainant must:
    (1) State that all available opportunities for resolution through 
an applicable grievance-arbitration procedure have been exhausted, and 
provide the date on which the grievance-arbitration procedure was 
terminated and the reasons for termination; or
    (2) State that the complainant filed a grievance under applicable 
grievance-arbitration procedures, but more than 150 days have passed 
and a final decision on it has not been issued, and provide the date 
that the grievance was filed; or
    (3) State that the employer has established no grievance-
arbitration procedures.
    (b) If the complainant does not provide the information specified 
in paragraph (a) of this section, the complaint may be dismissed for 
lack of jurisdiction as provided in Sec.  708.18 of this subpart.


Sec.  708.15   Time to file a complaint.

    (a) A complaint must be filed by the 90th day after the date the 
employee knew, or reasonably should have known, of the alleged 
retaliation.
    (b) The period for filing a complaint does not include time spent 
attempting to resolve the dispute through an internal company 
grievance-arbitration procedure. The time period for filing stops 
running on the day the internal grievance is filed and begins to run 
again on the earlier of:
    (1) The day after such dispute resolution efforts end; or
    (2) 150 days after the internal grievance was filed if a final 
decision on the grievance has not been issued.
    (c) The period for filing a complaint does not include time spent 
resolving jurisdictional issues related to a complaint the employee 
files under State or other applicable law. The time period for filing 
stops running on the date the complaint under State or other applicable 
law is filed and begins to run again the day after a final decision on 
the jurisdictional issues is issued.
    (d) If the complaint is not filed during the 90-day period, the 
Head of Field Element or EC Director (as applicable) will give the 
complainant an opportunity to show any good reason he may have for not 
filing within that period, and that official may, in his discretion, 
accept the complaint for processing.


Sec.  708.16   Duplicative actions under State or other law.

    (a) An employee may not file a complaint under this part if, with 
respect to the same facts, he chooses to pursue a remedy under State or 
other applicable law, including final and binding grievance-arbitration 
procedures, unless:
    (1) The complaint under State or other applicable law is dismissed 
for lack of jurisdiction;
    (2) The complaint was filed under 48 CFR part 3, subpart 3.9 and 
the Inspector General, after conducting an initial inquiry, determines 
not to pursue it; or
    (3) The employee has exhausted grievance-arbitration procedures 
pursuant to Sec.  708.14, and issues related to alleged retaliation for 
conduct protected under Sec.  708.5 remain.
    (b) Pursuing a remedy other than final and binding grievance-
arbitration procedures does not prevent an employee from filing a 
complaint under this part.
    (c) An employee is considered to have filed a complaint under State 
or other applicable law if he files a complaint, or other pleading, 
with respect to the same facts in a proceeding established or mandated 
by State or other applicable law, whether such a complaint is filed 
before, concurrently with, or after a complaint is filed under this 
part.
    (d) If an employee files a complaint under State or other 
applicable law after filing a complaint under this part, the complaint 
under this regulation will be dismissed under Sec.  708.18(c)(3).


Sec.  708.17   Notification of complaints and opportunities to respond.

    (a) By the 15th day after receiving a complaint, the Head of Field 
Element or EC Director (as applicable) will provide the employer a copy 
of the complaint. The employer has 15 days from receipt of the 
complaint to submit any response it wishes to make regarding the

[[Page 37760]]

allegations in the complaint. The Head of Field Element or EC Director 
(as applicable) will provide the complainant with a copy of the 
employer's response. The complainant has 10 days from receipt of the 
response to submit any additional comments regarding the complaint or 
the response. The Head of Field Element or EC Director (as applicable) 
will provide the employer with a copy of those additional comments.
    (b) If the complainant is part of a bargaining unit represented for 
purposes of collective bargaining by a labor organization, the Head of 
Field Element or EC Director (as applicable) will provide the 
representative a copy of the complaint by the 15th day after receiving 
it. The labor organization will be advised that it has 10 days from the 
receipt of the complaint to submit any comments it wishes to make 
regarding the allegations in the complaint.


Sec.  708.18   Dismissal for lack of jurisdiction or other good cause.

    (a) The Head of Field Element or EC Director (as applicable) may 
dismiss a complaint for lack of jurisdiction or for other good cause 
after receiving the complaint, either on his own initiative or at the 
request of a party named in the complaint. Such decisions are generally 
issued by the 20th day after the receipt of the employer's response, 
but not before the complainant has submitted comments on the response 
or his time to do so has elapsed, whichever is soonest.
    (b) The Head of Field Element or EC Director (as applicable) will 
notify the complainant by certified mail, return receipt requested, if 
the complaint is dismissed for lack of jurisdiction or other good 
cause, will give specific reasons for the dismissal and the contact 
information for the DOE's Alternative Dispute Resolution Office, and 
will notify other parties of the dismissal.
    (c) Dismissal for lack of jurisdiction or other good cause is 
appropriate if:
    (1) The complaint is untimely; or
    (2) The facts, as alleged in the complaint, do not present issues 
for which relief can be granted under this part; or
    (3) The complainant filed a complaint under State or other 
applicable law with respect to the same facts as alleged in a complaint 
under this part; or
    (4) The complaint is frivolous or without merit on its face; or
    (5) The issues presented in the complaint have been rendered moot 
by subsequent events or substantially resolved; or
    (6) The employer has made a formal offer to provide the remedy 
requested in the complaint or a remedy that DOE considers to be 
equivalent to what could be provided as a remedy under this part.


Sec.  708.19  Appealing the dismissal of a complaint by the Head of 
Field Element or EC Director for lack of jurisdiction or other good 
cause.

    (a) If a complaint is dismissed by the Head of Field Element or EC 
Director, the administrative process is terminated unless the 
complainant appeals the dismissal to the OHA Director by the 10th day 
after receipt of the notice of dismissal as evidenced by a receipt for 
delivery of certified mail. Decisions not to dismiss may not be 
appealed.
    (b) If the complainant appeals a dismissal to the OHA Director, he 
must send copies of his appeal to the Head of Field Element or EC 
Director (as applicable) and all parties. The appeal must include a 
copy of the notice of dismissal, and state the reasons the dismissal 
was erroneous.
    (c) The OHA Director has all powers necessary to adjudicate the 
appeal. The OHA Director will issue a decision on the appeal and notify 
the parties of the decision by the 30th day after it is received. The 
OHA Director will review findings of fact for clear error and 
conclusions of law de novo.
    (d) The OHA Director's decision, either upholding the dismissal by 
the Head of Field Element or EC Director or ordering further processing 
of the complaint, is the final decision on the appeal, unless a party 
files a petition for Secretarial review by the 30th day after receiving 
the appeal decision.


Sec.  708.20   Review by the Secretary of Energy of a decision on 
appeal of a dismissal.

    (a) By the 30th day after receiving a decision on an appeal under 
Sec.  708.19 from the OHA Director, any party may file a petition for 
Secretarial review of a dismissal with the Office of Hearings and 
Appeals. A decision by the OHA Director to reverse a dismissal may not 
be the subject of a petition for Secretarial review.
    (b) By the 15th day after filing the petition for Secretarial 
review, the petitioning party must file a statement setting forth the 
arguments in support of its position. A copy of the statement must be 
served on the other parties, who may file a response by the 20th day 
after receipt of the statement. Any response must also be served on the 
other parties.
    (c) All submissions permitted under this section must be filed with 
the Office of Hearings and Appeals.
    (d) The Secretary (or his designee) will reverse or revise an 
appeal decision by the OHA Director only under extraordinary 
circumstances. Upon consideration of the petition for Secretarial 
review, the Secretary will direct the OHA Director to issue an order 
either upholding the dismissal by the Head of Field Element or EC 
Director or ordering further processing of the complaint. If the 
dismissal is upheld, this is a final agency action.

Subpart C--Investigation, Hearing, and Decision Process


Sec.  708.21   Referral to the Office of Hearings and Appeals.

    (a) If a complaint is not dismissed for lack of jurisdiction or 
other good cause, the Head of Field Element or EC Director (as 
applicable) will forward the complaint to the OHA Director by the later 
of:
    (1) The 25th day after receipt of the employer's response, or
    (2) The 5th day after receipt of an order to continue processing 
the complaint following an appeal of dismissal.
    (b) The Head of the Field Element or EC Director (as applicable) 
will notify all parties that the complaint has been referred to the 
Office of Hearings and Appeals.
    (c) The OHA Director and an Administrative Judge appointed to 
preside over any aspect of a part 708 proceeding are prohibited, 
beginning with the complaint's referral to the OHA and until a final 
agency decision is issued, from initiating or otherwise engaging in ex 
parte discussions with any party on the merits of the complaint.
    (d) In all proceedings under this subpart:
    (1) The parties have the right to be represented by a person of 
their choosing or to proceed without representation. The parties are 
responsible for producing witnesses on their behalf, including 
requesting the issuance of subpoenas, if necessary;
    (2) Formal rules of evidence do not apply, but the OHA may use the 
Federal Rules of Evidence as a guide.


Sec.  708.22   Investigation of complaints.

    (a) The OHA Director will appoint a person to conduct an 
investigation. The investigator may not participate or advise in any 
proceedings in the case subsequent to the investigation's completion.
    (b) The investigator will determine the appropriate scope of 
investigation based on the circumstances of the complaint. The 
investigator may enter and inspect places and records; make copies of 
records; interview persons alleged to have been involved in retaliation 
and other individuals who

[[Page 37761]]

may have relevant information; take sworn statements; and require the 
production of any documents or other evidence.
    (c) All parties must cooperate fully with the investigator by 
making all pertinent evidence available. The contractor must make 
employees available upon request.
    (d) A person being interviewed in an investigation has the right to 
be represented by a person of his choosing.
    (e) Parties to the complaint are not entitled to be present at 
interviews conducted by an investigator.
    (f) If a person other than the complainant requests that his 
identity be kept confidential, the investigator may grant 
confidentiality, but must advise such person that confidentiality means 
that the Office of Hearings and Appeals will not identify the person as 
a source of information to anyone outside the Office of Hearings and 
Appeals, except as required by statute or other law, or as determined 
by the OHA Director to be unavoidable.
    (g) At any point during the investigation, the investigator may 
request that the OHA Director appoint an Administrative Judge to whom 
the complaint will be referred for a decision on whether dismissal is 
appropriate. The investigator will serve the parties with notice of the 
referral. The investigator will submit a written statement to the 
Administrative Judge outlining the reasons he believes dismissal may be 
appropriate and any facts supporting that belief. The Administrative 
Judge will then decide whether to dismiss the complaint. In making such 
decision, the Administrative Judge will have access to the entire 
investigative file. The Administrative Judge's decision, regardless of 
outcome, will be served on all the parties. A complaint may be 
dismissed prior to the completion of the investigation for:
    (1) Any reason listed in Sec.  708.18(c), or
    (2) Lack of merit, provided the facts obtained by the investigator 
indicate there is no genuine dispute of material fact.
    (h) If the Administrative Judge decides to dismiss the complaint, 
he will issue an initial agency decision that includes the factual and 
legal bases for the dismissal. The investigator's written statement 
will be attached to the Administrative Judge's initial agency decision 
and served on all the parties. No report of investigation will issue 
for a complaint dismissed by the Administrative Judge following a 
referral for dismissal by the investigator.
    (i) If the Administrative Judge decides not to dismiss the 
complaint, he will issue a written statement to that effect which will 
include the factual and legal basis for his decision. The investigation 
will then continue. The OHA Director may, at his discretion, appoint a 
new investigator.
    (j) Dismissals under paragraph (h) of this section may be appealed 
in accordance with the procedures set forth in Sec. Sec.  708.32, 
708.33, 708.34, and 708.35. Decisions not to dismiss under paragraph 
(i) of this section may not be appealed.


Sec.  708.23   Time to issue a report of investigation.

    (a) If the complaint is not dismissed prior to the completion of 
the investigation, the investigator will complete the investigation and 
issue a report of investigation by the 60th day after the complaint is 
received by the Office of Hearings and Appeals, unless the OHA 
Director, for good cause, extends the investigation for no more than 30 
days. If a case is referred for dismissal by an investigator, the time 
to issue the report of investigation stops running on the day of 
referral and, if the Administrative Judge decides against dismissal, 
begins to run again on the day after the Administrative Judge's 
decision issues.
    (b) The investigator will provide copies of the report of 
investigation to the parties. The investigation will not be reopened 
after the report of investigation is issued.


Sec.  708.24   Hearings not required.

    (a) A complainant may withdraw a hearing request after the report 
of investigation is issued. However, the hearing may be canceled only 
if all parties agree that they do not want a hearing.
    (b) If the hearing is canceled, the Administrative Judge will issue 
an initial agency decision pursuant to Sec.  708.31 of this subpart.


Sec.  708.25   Appointment of Administrative Judge.

    The OHA Director will appoint an Administrative Judge from the 
Office of Hearings and Appeals to conduct a hearing.


Sec.  708.26   Time and location of hearings.

    (a) The Administrative Judge will schedule a hearing to be held by 
the 90th day after issuance of the report of investigation. Any 
extension of the hearing date must be approved by the OHA Director.
    (b) The Administrative Judge will schedule the hearing for a 
location near the site where the alleged retaliation occurred or the 
complainant's place of employment, or at another location that is 
appropriate considering the circumstances of a particular case. 
Hearings may be conducted by video teleconference or other remote 
means, at the Administrative Judge's discretion.


Sec.  708.27   The Administrative Judge may not require that the 
parties participate in alternative dispute resolution.

    The Administrative Judge may recommend, but may not require, that 
the parties attempt to resolve the complaint through alternative 
dispute resolution. Within 5 days of appointment, the Administrative 
Judge will make the contact information for the DOE's Alternative 
Dispute Resolution Office available to the parties.


Sec.  708.28   Hearing procedures.

    (a) In all hearings under this part:
    (1) Testimony of witnesses is given under oath or affirmation, and 
witnesses must be advised of the applicability of 18 U.S.C. 1001 and 18 
U.S.C. 1621, dealing with the criminal penalties associated with false 
statements and perjury;
    (2) Witnesses are subject to cross-examination; and
    (3) A court reporter will make a transcript of the hearing.
    (b) The Administrative Judge has all powers necessary to regulate 
the conduct of proceedings, including the following.
    (1) The Administrative Judge may order discovery at the request of 
a party, based on a showing that the requested discovery is designed to 
produce evidence regarding a matter, not privileged, that is relevant 
to the subject matter of the complaint.
    (2) The Administrative Judge may permit parties to obtain discovery 
by any appropriate method, including deposition upon oral examination 
or written questions; written interrogatories; production of documents 
or things; permission to enter upon land or other property for 
inspection and other purposes; and requests for admission.
    (3) The Administrative Judge may issue subpoenas for the appearance 
of witnesses on behalf of either party, or for the production of 
specific documents or other physical evidence.
    (4) The Administrative Judge may rule on objections to the 
presentation of evidence; exclude evidence that is immaterial, 
irrelevant, or unduly repetitious; require the advance submission of 
documents offered as evidence; dispose of procedural requests; grant 
extensions of time; determine the format of the hearing; direct that 
written motions, documents,

[[Page 37762]]

or briefs be filed with respect to issues raised during the course of 
the hearing; ask questions of witnesses; direct that documentary 
evidence be served upon other parties (under protective order if such 
evidence is deemed confidential); and otherwise regulate the conduct of 
the hearing.
    (5) The Administrative Judge may, at the request of a party or on 
his own initiative, dismiss a claim, defense, or party. He may also 
make adverse findings upon the failure of a party or the party's 
representative to comply with a lawful order of the Administrative 
Judge, or, without good cause, to attend a hearing. If the 
Administrative Judge's rulings result in termination of the proceeding 
prior to the completion of the hearing, the Administrative Judge will 
issue an initial agency decision pursuant to Sec.  708.31 of this 
subpart.
    (6) The Administrative Judge, upon request of a party, may allow 
the parties a reasonable time to file pre-hearing briefs or written 
statements with respect to material issues of fact or law. Any pre-
hearing submission must be limited to the issues specified and filed 
within the time prescribed by the Administrative Judge.
    (7) The parties are entitled to make closing arguments, but post-
hearing submissions are only permitted by direction of the 
Administrative Judge.
    (8) Parties allowed to file written submissions must serve copies 
upon the other parties within the time prescribed by the Administrative 
Judge.


Sec.  708.29   Burdens of proof.

    The complainant has the burden of establishing by a preponderance 
of the evidence that he made a disclosure, participated in a 
proceeding, or refused to participate, as described under Sec.  708.5, 
and that such act was a contributing factor in one or more alleged acts 
of retaliation against the complainant by the contractor. Once the 
complainant has met this burden, the burden shifts to the contractor to 
prove by clear and convincing evidence that it would have taken the 
same action without the complainant's disclosure, participation, or 
refusal.


Sec.  708.30   Timing for issuing an initial agency decision.

    The Administrative Judge will issue an initial agency decision on 
the complaint by the 60th day after the later of:
    (a) The date the Administrative Judge approves the parties' 
agreement not to hold a hearing;
    (b) The date the Administrative Judge receives the transcript of 
the hearing; or
    (c) The date the Administrative Judge receives post-hearing 
submissions permitted under Sec.  708.28(b)(7) of this subpart.


Sec.  708.31   Procedure for issuing an initial agency decision.

    (a) The Administrative Judge will serve the initial agency decision 
on all parties.
    (b) An initial agency decision issued by the Administrative Judge 
will contain appropriate findings, conclusions, an order, and the 
factual basis for each finding, whether or not a hearing has been held 
on the complaint. In making such findings, the Administrative Judge may 
rely upon, but is not bound by, the report of investigation.
    (c) If the Administrative Judge determines that an act of 
retaliation has occurred, the initial agency decision will include an 
order for any form of relief permitted under Sec.  708.36. If the 
Administrative Judge does not determine that an act of retaliation has 
occurred, the initial agency decision will state that the complaint is 
denied.


Sec.  708.32   Appealing an initial agency decision.

    (a) By the 15th day after receiving an initial agency decision from 
the Administrative Judge, any party may file a notice of appeal with 
the OHA Director requesting review of the initial agency decision.
    (b) A party who appeals an initial agency decision (the appellant) 
must serve a copy of the notice of appeal on all other parties.
    (c) A party who receives an initial agency decision has not 
exhausted its administrative remedies until an appeal has been filed 
with the OHA Director and a decision granting or denying the appeal has 
been issued.


Sec.  708.33   Procedure for appeals.

    (a) By the 15th day after filing a notice of appeal under Sec.  
708.32, the appellant must file a statement identifying the issues that 
it wishes the OHA Director to review. A copy of the statement must be 
served on the other parties, who may file a response by the 20th day 
after receipt of the statement. Any response must also be served on the 
other parties.
    (b) In considering the appeal, the OHA Director:
    (1) Will possess all powers necessary to adjudicate the appeal.
    (2) Will review findings of fact for clear error and conclusions of 
law de novo; and
    (3) Will close the record on appeal after receiving the last 
submission permitted under this section.


Sec.  708.34   Procedure for issuing an appeal decision.

    (a) If there is no appeal of an initial agency decision, and the 
time for filing an appeal has passed, the initial agency decision 
becomes the final agency decision.
    (b) If there is an appeal of an initial agency decision, the OHA 
Director will issue an appeal decision based on the record of 
proceedings by the 60th day after the record is closed.
    (1) An appeal decision issued by the OHA Director will contain 
appropriate findings, conclusions, an order, and the factual basis for 
each finding, whether or not a hearing has been held on the complaint. 
In making such findings, the OHA Director may rely upon, but is not 
bound by, the report of investigation and/or the initial agency 
decision.
    (2) If the OHA Director determines that an act of retaliation has 
occurred, the appeal decision will include an order for any form of 
relief permitted under Sec.  708.36.
    (3) If the OHA Director does not determine that the employer has 
committed an act of retaliation, the appeal decision will deny the 
complaint.
    (4) If the OHA Director determines that the complaint was properly 
dismissed, the appeal decision will deny the appeal.
    (5) If the OHA Director determines that a complaint should not have 
been dismissed, the appeal decision will vacate the initial agency 
decision and order further processing of the complaint.
    (c) The OHA Director will send an appeal decision to all parties 
and to the Head of Field Element or EC Director having jurisdiction 
over the contract under which the complainant was employed when the 
alleged retaliation occurred.
    (d) The appeal decision issued by the OHA Director--other than an 
appeal decision ordering further processing of a complaint--is the 
final agency decision unless a party files a petition for Secretarial 
review by the 30th day after receiving the appeal decision. A decision 
by the OHA Director to reverse a dismissal may not be the subject of a 
petition for Secretarial review.


Sec.  708.35   Review by the Secretary of Energy of an appeal decision.

    (a) By the 30th day after receiving an appeal decision from the OHA 
Director, any party may file a petition for Secretarial review with the 
Office of Hearings and Appeals.
    (b) By the 15th day after filing a petition for Secretarial review, 
the petitioner must file a statement

[[Page 37763]]

identifying the issues that it wishes the Secretary to consider. A copy 
of the statement must be served on the other parties, who may file a 
response by the 20th day after receipt of the statement. Any response 
must also be served on the other parties.
    (c) All submissions permitted under this section must be filed with 
the Office of Hearings and Appeals.
    (d) The Secretary (or his designee) will reverse or revise an 
appeal decision by the OHA Director only under extraordinary 
circumstances. In the event the Secretary determines that a revision in 
the appeal decision is appropriate, the Secretary will direct the OHA 
Director to issue a revised decision which is the final agency action 
on the complaint. In the event the Secretary determines to reverse an 
appeal decision dismissing the complaint, the Secretary may, as 
appropriate, direct the OHA Director to issue a revised decision 
ordering further processing of the complaint. If no further processing 
is ordered, the Secretary's decision is the final agency action on the 
complaint.


Sec.  708.36   Remedies.

    (a) General remedies. If the initial or final agency decision 
determines that an act of retaliation has occurred, it may order:
    (1) Reinstatement;
    (2) Transfer preference;
    (3) Back pay;
    (4) Reimbursement of the complainant's reasonable costs and 
expenses, including attorney and expert-witness fees reasonably 
incurred to prepare for and participate in proceedings leading to the 
initial or final agency decision; or
    (5) Such other remedies as are deemed necessary to abate the 
violation and provide the complainant with relief.
    (b) Interim relief. If an initial agency decision contains a 
determination that an act of retaliation occurred, the decision may 
order the employer to provide the complainant with appropriate interim 
relief (including reinstatement) pending the outcome of any request for 
review of the decision by the OHA Director. Such interim relief will 
not include payment of any money.


Sec.  708.37   Reimbursement of costs and expenses.

    If a complaint is denied by a final agency decision, the 
complainant will not be reimbursed for the costs and expenses incurred 
in pursuing the complaint.


Sec.  708.38   Implementation of final agency decision.

    (a) The Head of Field Element having jurisdiction over the contract 
under which the complainant was employed when the alleged retaliation 
occurred, or EC Director, will implement a final agency decision by 
forwarding the decision and order to the contractor, or subcontractor, 
involved.
    (b) An employer's failure or refusal to comply with a final agency 
decision and order under this regulation may result in a contracting 
officer's decision to disallow certain costs or terminate the contract 
for default. In the event of a contracting officer's decision to 
disallow costs or terminate a contract for default, the contractor may 
file a claim under the disputes procedures of the contract.


Sec.  708.39   The Contract Disputes Act.

    A final agency decision and order issued pursuant to this 
regulation is not considered a claim by the government against a 
contractor or ``a decision by the contracting officer'' under sections 
6 and 7 of the Contract Disputes Act (41 U.S.C. 605 and 41 U.S.C. 606).


Sec.  708.40   Notice of program requirements.

    Employers who are covered by this part must inform their employees 
about these regulations by posting notices in conspicuous places at the 
work site. These notices must include the name, address, telephone 
number, and website or email address of the DOE office where employees 
can file complaints under this part.


Sec.  708.41   Referral to another agency.

    Notwithstanding the provisions of this part, the Secretary of 
Energy retains the right to request that a complaint filed under this 
part be accepted by another Federal agency for investigation and 
factual determinations.


Sec.  708.42   Extension of deadlines.

    The Secretary of Energy (or the Secretary's designee) may approve 
the extension of any deadline established by this part, and the OHA 
Director may approve the extension of any deadline under Sec. Sec.  
708.22 through 708.34 of this subpart (relating to the investigation, 
hearing, and OHA appeal process). Failure by the DOE to comply with 
timing requirements does not create a substantive right for any party 
to overturn a DOE decision on a complaint.


Sec.  708.43   Affirmative duty not to retaliate.

    DOE contractors will not retaliate against any employee because the 
employee (or any person acting at the request of the employee) has 
taken an action listed in Sec.  708.5(a) through (c).

[FR Doc. 2019-16569 Filed 8-1-19; 8:45 am]
 BILLING CODE 6450-01-P