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Proposed 708 Criteria and Procedures for DOE Contractor Employee Protection Program

In the control and management of its nuclear weapon maintenance and environmental cleanup sites, research and development laboratories, test sites, and other Government-owned or -leased facilities, the DOE is responsible for safeguarding public and employee health and safety; ensuring compliance with applicable laws, rules, and regulations; and preventing fraud, mismanagement, waste, and abuse. To this end, the Secretary of Energy has taken vigorous action to assure that all such DOE facilities are well-managed and efficient, while at the same time operated in a manner that does not expose the workers or the public to needless risks or threats to health andsafety.

The DOE is endeavoring to involve both DOE and contractor employees in an aggressive partnership to identify problems and seek their resolution. In that regard, employees of DOE contractors are encouraged to come forward with information that reasonably and in good faith they believe evidences unsafe, unlawful, fraudulent, or wasteful practices. Employees providing such information are entitled to protection from consequent discrimination by their employers with respect to compensation, terms, conditions, or privileges of employment.

The original rule was published in the Federal Register on March 3, 1992 (57 FR 7533). In order to assure workplace conditions at DOE facilities that are harmonious with safety and good management, the rule was intended to improve the procedures for resolving complaints of reprisal by establishing procedures for independent fact-finding and hearing before a Hearing Officer at the affected DOE field installation, followed by an opportunity for review by the Secretary or designee. These new procedures were made available to those contractor employees who allege health and safety violations, but are not covered by the Department of Labor (DOL) procedures. In addition, contractor employees who alleged employment reprisal resulting from the disclosure of information relating to waste, fraud, or mismanagement, or from the participation in proceedings conducted before Congress or pursuant to the rule, or from the refusal to engage in illegal or dangerous activities, could also utilize the procedures regardless of whether they are covered by the health and safety protection procedures of DOL. This rule was not intended to cover complaints of reprisal stemming from or relating to other types of discrimination by contractors, such as discrimination on the basis of race, color, religion, sex, age, national origin, or other similar basis.

After the operation of the rule for more than four years, the Department took steps to obtain the views of interested parties on the operation of the rule. A Notice of Inquiry was published on October 25, 1996 (61 FR 55230), in which DOE invited members of the public, particularly those persons with experience under the DOE contractor employee protection program (e.g., contractors, claimants and attorneys), to recommend regulatory changes that might help to streamline the process and make it more responsive to the needs of both claimants and contractors. Comments were received from 28 individuals or organizations in response to the Department of Energy's Notice of Inquiry. These comments are summarized in III. below.

The procedures set forth in Part 708 are designed specifically to deal with allegations of reprisals against contractor employees and to provide relief where appropriate. Reprisals against contractor employees may also lead to the imposition of penalties under the Price Anderson Amendments Act of 1988 (Pub. L. 100-49, August 20, 1988), implemented by DOE under 10 CFR Part 820 (Part 820). Pursuant to Part 820, to the extent a reprisal by a DOE contractor results from an employee's involvement in matters of nuclear safety in connection with a DOE nuclear activity, the reprisal could constitute a violation of a DOE Nuclear Safety Requirement. The reprisal could therefore be subject to the investigatory and adjudicatory procedures of both Parts 820 and Part 708, and could result in relief to the employee under Part 708 and the imposition of civil penalties on the DOE contractor under Part 820. A full discussion of the relationship between this part and 10 CFR Part 820 and the procedures that would be followed in situations where an alleged reprisal action fell under both this part and Part 820 can be found in Federal Register Volume 57, No. 95, Friday, May 15, 1992, at 20796-20798.