Proposed Rule2026-19332
Revisions to the Office of Hearings and Appeals Procedural Regulations for the DOE Contractor Employee Protection Program
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Published
September 22, 2026
Issuing agencies
Energy Department
Abstract
The United States (U.S.) Department of Energy (DOE) publishes a proposed rule to amend its regulations, which set forth the policies and procedures for resolving questions concerning protections for DOE contractor employees alleging retaliation by their employers. The proposed revisions would clarify deadlines and tolling practices throughout the regulation; make grammatical changes throughout the rule for consistency with national policies and DOE practices; and update references to DOE officials and offices in order to ensure clarity, consistency, and fairness in DOE's administration of the Contractor Employe Protection Program.
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[Federal Register Volume 91, Number 182 (Tuesday, September 22, 2026)]
[Proposed Rules]
[Pages 60007-60018]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-19332]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 91, No. 182 / Tuesday, September 22, 2026 /
Proposed Rules
[[Page 60007]]
DEPARTMENT OF ENERGY
10 CFR Part 708
[DOE-HQ-2026-0496]
RIN 1910-AA55
Revisions to the Office of Hearings and Appeals Procedural
Regulations for the DOE Contractor Employee Protection Program
AGENCY: Office of Hearings and Appeals. Department of Energy.
ACTION: Notice of proposed rulemaking and request for comments.
-----------------------------------------------------------------------
SUMMARY: The United States (U.S.) Department of Energy (DOE) publishes
a proposed rule to amend its regulations, which set forth the policies
and procedures for resolving questions concerning protections for DOE
contractor employees alleging retaliation by their employers. The
proposed revisions would clarify deadlines and tolling practices
throughout the regulation; make grammatical changes throughout the rule
for consistency with national policies and DOE practices; and update
references to DOE officials and offices in order to ensure clarity,
consistency, and fairness in DOE's administration of the Contractor
Employe Protection Program.
DATES: Written comments on this proposed rule must be received on or
before October 22, 2026. See section III, Public Participation, for
details.
ADDRESSES: Interested persons are encouraged to submit comments using
the Federal eRulemaking Portal at <a href="http://www.regulations.gov">www.regulations.gov</a> under docket
number DOE-HQ-2026-0496. Please follow the instructions for submitting
comments in section III. Alternatively, interested persons may submit
comments, identified by docket number DOE-HQ-2026-0496, by any of the
following methods:
(1) Email: <a href="/cdn-cgi/l/email-protection#81cec9c0c1e9f0afe5eee4afe6eef7"><span class="__cf_email__" data-cfemail="135c5b52537b623d777c763d747c65">[email protected]</span></a>. Please include the docket number DOE-HQ-
2026-0496 in the subject line of the message.
(2) Postal Mail: U.S. Department of Energy, Office of Hearings and
Appeals, 1000 Independence Avenue SW, Washington, DC 20585.
(3) Hand Delivery/Courier: U.S. Department of Energy, Office of
Hearings and Appeals, 1000 Independence Avenue SW, Washington, DC
20585. If possible, please submit all items on a CD, in which case it
is not necessary to include printed copies.
No telefacsimiles (``faxes'') will be accepted.
FOR FURTHER INFORMATION CONTACT: Erin C. Weinstock, U.S. Department of
Energy, Office of Hearings and Appeals, 1000 Independence Avenue SW,
Washington, DC 20585; (301) 366-1076, <a href="/cdn-cgi/l/email-protection#753a3d34351d045b111a105b121a03"><span class="__cf_email__" data-cfemail="d49b9c9594bca5fab0bbb1fab3bba2">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background and Summary
II. Section-by-Section Description of Proposed Changes
III. Regulatory Review
A. Executive Order 12866 and Executive Order 14192
B. Regulatory Flexibility Act
C. Paperwork Reduction Act of 1995
D. National Environmental Policy Act of 1969
E. Executive Order 12988
F. Executive Order 13132
G. Executive Order 13175
H. Unfunded Mandates Reform Act of 1995
I. Treasury and General Government Appropriations Act of 1999
J. Treasury and General Government Appropriations Act, 2001
K. Executive Order 13211
IV. Public Participation
V. Approval of the Office of the Secretary
I. Background and Summary
DOE is publishing this notice of proposed rulemaking in order to
update and clarify DOE's policies and procedures for processing
complaints by employees of DOE contractors alleging retaliation by
their employers for:
(1) Disclosure of information concerning dangers to public or
worker health or safety, substantial violations of law, or gross
mismanagement;
(2) Participation in Congressional proceedings; or
(3) Refusal to participate in dangerous activities.
The current rule was last updated in 2019.\1\ Since then, the rule
has been applied to numerous investigations, hearings, appeals, and
petitions for Secretarial review regarding contractor complaints filed
under this rule. The proposed changes are intended to address areas of
potential confusion and bring the regulations in line with current
practice in order to ensure clarity, consistency, and fairness in DOE's
administration of the Contractor Employe Protection Program. The
proposed revisions would:
---------------------------------------------------------------------------
\1\ 84 FR 37757 (Aug. 2, 2019). DOE rescinded 10 CFR 708.10 in
2025. 90 FR 31136 (July 14, 2025).
(1) Update definitions to reflect current practice and
understanding;
(2) Encourage use of alternative dispute resolution services;
(3) Authorize the processing of a complaint to be tolled when
parties use alternative dispute resolution services and make clear
what kinds of alternative dispute resolution services qualify for
tolling;
(4) Allow agency officials to grant extensions to file or amend
a complaint for good reason;
(5) Provide clearer deadlines for parties and agency officials;
(6) Formalize requirements regarding the submission of
confidential information;
(7) Extend time to complete an investigation;
(8) Clarify the role of the Administrative Judge in hearings;
(9) Update titles of various DOE officials; and
(10) Amend the regulations so they are gender neutral and in
line with regulations throughout the Federal Government.
II. Section-by-Section Description of Proposed Changes
A. Section 708.1
The proposed rule would amend Sec. 708.1, ``Scope and purpose,''
by updating the descriptions of the types of protected disclosures that
are covered by part 708 to match the text of Sec. 708.5, ``Protected
conduct,'' for consistency.
B. Section 708.2
The proposed rule would amend Sec. 708.2, ``Definitions,'' by
deleting ``(a)'' before ``For purposes of this part''.
The proposed rule would amend the definition for ``Alternative
Dispute Resolution'' to ``Alternative dispute resolution'' to keep the
capitalization consistent.
The proposed rule would amend the definition of ``Day'' by adding
several sentences that detail how the deadlines operate in practice to
provide clarity to parties.
The proposed rule would replace the term ``EC Director'' with ``ECP
Director''
[[Page 60008]]
here and throughout the following proposed part 708 regulations. The
proposed rule would also replace the term ``Office of Employee
Concerns'' with ``Employee Concerns Program'' to be consistent with the
terminology in DOE O 442.1B.
The proposed rule would amend the definition for ``Party'' by
replacing the term ``party'' with ``individual'' to avoid confusion
that may result from using the same term twice in the definition.
The proposed rule would add a definition for the term ``Law, rule,
or regulation'' and would define the term as ``policies or procedures
that are government mandates or implement government mandates.'' This
proposed addition would clarify the types of violations that may
constitute protected disclosures under part 708.
The proposed rule would add a definition for the term ``Union-
negotiated grievance-arbitration procedure'' and would define the term
as ``one that has been negotiated by a labor organization.'' This
definition is one that is long-established in Office of Hearings and
Appeals (OHA) case law.
The proposed rule would also add a definition of ``Verified email''
and would define the term as ``an email sent to the email address
provided by a party.'' The proposed addition of this definition
reflects a proposed change to acceptable methods of notification under
Sec. 708.18.
Lastly, the proposed rule would delete subsection (b) in its
entirety because the proposed rule would revise part 708 so the
provisions are gender neutral. For example, in place of ``he,'' the
proposed rule would use ``he or she,'' and in place of ``his,'' the
proposed rule would use ``his or her.'' Such revisions are proposed
throughout part 708 and are consistent with the regular practice of DOE
and other federal agencies.
C. Section 708.4
The proposed rule would amend Sec. 708.4, ``Complaints not
covered,'' to clarify which other types of complaints bar an employee
from filing a complaint under Part 708. Specifically, the reference in
Sec. 708.4(c) through Sec. 708.15(a) would refer instead to Sec.
708.16(a) for accuracy. In addition, the words ``a regulation, statute,
or other law, including'' would be added after ``chosen to pursue a
remedy available under'' in Sec. 708.4(c) to clarify the basis upon
which a complaint may be excluded if it is based on the same facts for
which the employee chose to pursue another remedy. The proposed rule
would also revise the list of regulations, statutes, or other laws
listed under Sec. 708.4(c) to update the referenced regulations and to
add ``41 U.S.C. 4712, `Enhancement of contractor protection from
reprisal for disclosure of certain information.'''
D. Section 708.9
The proposed rule would amend Sec. 708.9(a), ``How to file
complaints or other documents,'' to state that a complaint or other
document is considered filed on the date it is received by the
specified official or office.
E. Section 708.10
The proposed rule would add Sec. 708.10, ``Informal resolution of
complaints.'' This section would encourage the use of alternative
dispute resolution services to resolve complaints arising under part
708. To facilitate the use of these services, this section would
explain where parties can seek these services, allow for the tolling of
deadlines under part 708 while using these services, and provide
instructions for the steps to take if a complaint is resolved. The
addition of this section will reduce costs associated with part 708
complaints, increase processing efficiency, and improve the
effectiveness of alternative dispute resolution services for part 708
complaints.
F. Section 708.13
The proposed rule would amend Sec. 708.13, ``Requirements for the
form and content of a complaint,'' so that the term ``union-
negotiated'' is included before ``grievance or arbitration procedures''
to be consistent with the proposed revisions to Sec. 708.2.
G. Section 708.14
The proposed rule would amend the title to Sec. 708.14 so that it
reads ``Exhaustion of union-negotiated grievance-arbitration
procedures'' and would amend Sec. 708.14 so that ``union-negotiated''
is added to every reference to ``grievance-arbitration procedure'' to
be consistent with the proposed revisions to Sec. 708.2.
H. Section 708.15
The proposed rule would amend Sec. 708.15, ``Time to file a
complaint,'' as follows. In the proposed first sentence of Sec.
708.15(b), the word ``any'' replaces the word ``an'' before ``internal
company grievance-arbitration procedure'' to clarify the types of
procedures covered under the regulations. In the second sentence,
``period'' is removed for brevity, the word ``internal'' is removed for
brevity, and the remainder of the sentence is amended to form a
proposed third sentence. The proposed third sentence is amended to
state, before introducing subparts, ``The time begins to run again on
the earlier of:'' and, in subpart (2), ``If a union-negotiated
grievance-arbitration procedure, 150 days after the grievance was
initiated if a final decision has not been issued.'' These changes
clarify that use of any internal company grievance-arbitration
procedure may toll the deadline to file a complaint even if it was not
negotiated by a labor organization. In the proposed Sec. 708.15(d),
``not'' is removed, ``during'' is replaced by ``on a date later than,''
``90 day period'' is replaced by ``applicable deadline,'' and ``filing
within that period'' is replaced by ``meeting that deadline'' to be
consistent with the proposed amended filing deadlines.
I. Section 708.16
The proposed rule would amend Sec. 708.16, ``Duplicative actions
under State or other law,'' as follows. Section 708.16(a)(2) would be
amended to include a relevant duplicate proceeding and would add ``or
41 U.S.C. 4712'' after ``48 CFR part 3, subpart 3.9'', and Sec.
708.16(a)(3) would be amended to include ``union-negotiated'' in front
of ``grievance-arbitration'' to be consistent with the proposed
revisions to Sec. 708.2.
J. Section 708.17
The proposed rule would amend Sec. 708.17, ``Notification of
complaints and opportunities to respond,'' as follows. Section
708.17(a) would be amended to add ``upon its receipt'' to the end of
the third sentence after ``will provide the complainant with a copy of
the employer's response'' to clarify when the response must be
provided; to add ``upon their receipt'' after ``copy of those
additional comments'' to clarify when the complainant's additional
comments to the employer's response is to be provided; and to add a
final sentence that states ``The deadline set forth in this subsection
may be extended by the Head of Field Element or ECP Director (as
applicable) for good reason'' to clarify that the Head of Field Element
or ECP Director may extend the deadline for good reason. Section
708.17(b) would be amended to add ``The Head of Field Element or ECP
Director (as applicable) will provide the comments to the complainant
and employer upon his or her receipt'' to clarify when the comments
submitted by a labor organization bargaining unit representative per
Sec. 708.17(b) must be provided to the complainant and employer. A
proposed Sec. 708.17(c) would be added and states ``The Head of Field
Element or ECP Director (as applicable)
[[Page 60009]]
must provide the contact information for the DOE's Alternative Dispute
Resolution Office to the parties as soon as is practicable after
receiving the complaint'' to promote the use of alternative dispute
resolution.
K. Section 708.18
The proposed rule would amend Sec. 708.18, ``Dismissal for lack of
jurisdiction or other good cause,'' as follows. Section 708.18(a) would
be amended so that the second sentence states ``If the employer does
not file a response, such decisions are issued by the 20th day after
the employer's period to respond under Sec. 708.17(a) has elapsed.''
The third sentence would be amended to state ``If the employer files a
timely response, such decisions are issued by the 20th day after the
complainant files additional comments under Sec. 708.17(a), or the
20th day after the period to file additional comments has elapsed,
whichever is soonest.'' These changes would clarify deadlines and help
the Head of Field Element or ECP Director determine when it will be
decided if a complaint is dismissed. Section 708.18(b) would be amended
by adding ``verified email or'' before ``certified email'' to be
consistent with the proposed amended Sec. 708.2 definition of verified
email. Section 708.18(c)(1) through (c)(4) would be amended to remove
the ``or'' after each semicolon for brevity.
L. Section 708.19
The proposed rule would amend Sec. 708.19, ``Appealing the
dismissal of a complaint by the Head of Field Element or ECP Director
for lack of jurisdiction or other good cause,'' by deleting ``as
evidenced by a receipt for delivery or certified email'' after
``dismissal'' in Sec. 708.19(a) to allow electronic notice.
M. Section 708.20
The proposed rule would amend Sec. 708.20, ``Review by the
Secretary of Energy of a decision on appeal of a dismissal,'' by
replacing ``any party'' with ``the complainant'' in Sec. 708.20(a) to
reflect the reality that only complainants appeal dismissals. The
proposed rule would also replace ``a petition for Secretarial review of
a dismissal'' with ``a notice indicating he or she is petitioning for
Secretarial review'' in Sec. 708.20(a) to clarify that the filing
required by the 30th day after a decision on an appeal under Sec.
708.19 is a notice of appeal rather than a statement of the issues
being raised on appeal.
N. Section 708.21
The proposed rule would amend Sec. 708.21, ``Referral to the
Office of Hearings and Appeals,'' as follows to clarify the deadlines
by which the Head of Field Element or ECP Director must transmit the
complaint to OHA. Section 708.21(a) would be amended by deleting ``the
later of'' before the colon to be consistent with the amendments in the
proposed subparts that follow it. Section 708.21(a)(1) would be amended
to read ``The 25th day after receipt of the final submission permitted
by Sec. 708.17'' for consistency. Section 708.21(a)(2) would be added
and would state ``If the employer does not respond to the complaint,
the 25th day after the period for responses permitted by Sec. 708.17
ends.'' Section 708.21(a)(3) would be added and would state ``If the
complainant does not submit additional comments regarding the response,
the 25th day after the period for additional comments permitted by
Sec. 708.17 ends.'' The proposed rule would renumber Sec.
708.21(a)(2) as proposed Sec. 708.21(a)(4). The language from Sec.
708.21(c) would be moved to proposed Sec. 708.21(d), and a new Sec.
708.21(c) would be added and would state ``Where the Head of Field
Element or ECP Director (as applicable) found the complaint to be
untimely filed, but nonetheless accepted the complaint for processing
as a matter of discretion in accordance with Sec. 708.15(d), he or she
must indicate upon referring the complaint to the Office of Hearings
and Appeals that good reason was found to accept the complaint for
processing.'' The proposed Sec. 708.21(c) would establish a record of
the reason why an untimely complaint was accepted for processing.
Proposed Sec. 708.21(d) would be composed of the language from the
current Sec. 708.21(c) and would be amended to replace ``OHA'' with
``Office of Hearings and Appeals'' for consistency. Section 708.21(e)
would be composed of the language from the current Sec. 708.21(d) and
would amend Sec. 708.21(e)(1) by adding ``and'' to the end of the
phrase and would amend Sec. 708.21(e)(2) by replacing ``OHA'' with
``Office of Hearings and Appeals'' for consistency.
O. Section 708.22
The proposed rule would amend Sec. 708.22, ``Investigation of
complaint,'' as follows. Section 708.22(b) would be amended to add
``Documents containing trade secrets or confidential commercial or
financial information must be marked as such when submitted. A copy of
the document with the protected information redacted must be submitted
with the original document.'' The proposed revision formalizes the
requirement for parties to mark confidential information as such when
submitted.
P. Section 708.23
The proposed rule would amend Sec. 708.23, ``Time to issue a
report of investigation,'' by replacing ``60th'' with ``90th'' and
deleting ``unless the OHA Director, for good cause, extends the
investigation for no more than 30 days'' in Sec. 708.23(a) to extend
the time to issue a report of investigation from 60 days to 90 days.
This proposed revision would reflect the reality that Part 708
investigations very frequently require more than 60 days to complete.
Q. Section 708.26
The proposed rule would amend Sec. 708.26, ``Time and location of
hearings,'' by replacing ``for a location near the site where the
alleged retaliation occurred or the complainant's place of employment''
with ``at a time and place that is appropriate'' in Sec. 708.26(b) to
make clear that the location of the hearing is at the Administrative
Judge's discretion.
R. Section 708.28
The proposed rule would amend Sec. 708.28, ``Hearing procedures,''
as follows. Section 708.28(b) would be amended by replacing the period
with a colon after ``following''. Section 708.28(b)(1) would be amended
to add ``or defense raised in the contractor's response'' at the end of
the sentence to clarify that discovery is appropriate to obtain
evidence concerning a raised defense. Section 708.28(b)(2) would be
amended to replace ``may'' with ``will'' before ``permit'' to clarify
that the Administrative Judge must allow the parties to conduct
discovery upon request. The proposed rule would add Sec. 708.28(b)(3)
and would read ``The period for discovery shall be established by the
presiding Administrative Judge. A party may seek discovery anytime
during the discovery period'' to clarify the Administrative Judge's
powers in the proceeding. The current Sec. 708.28(b)(3) would be
renumbered as proposed Sec. 708.28(b)(4). The proposed rule would add
proposed Sec. 708.28(b)(5) and would read ``The Administrative Judge
may rule on any motions filed by the parties, with or without oral
argument. The Administrative Judge may set deadlines for the filing of
motions and responses'' to clarify the Administrative Judge's power in
the proceeding. The proposed rule would renumber the current Sec.
708.28(b)(4) as proposed Sec. 708.28(b)(6) and would be
[[Page 60010]]
amended so that ``motions,'' after ``direct that written,'' and the
comma after ``documents'' are removed to clarify the Administrative
Judge's powers in the proceeding. The proposed rule would renumber
current Sec. 708.28(b)(5) through (b)(8) to proposed Sec.
708.28(b)(7) through (b)(10). The proposed rule would add Sec.
708.28(c) and would read ``The hearing record consists of all documents
and exhibits filed with the Office of Hearings and Appeals under the
hearing case number; the report of investigation, including any
exhibits or attachments to the report of investigation except as
ordered by the Administrative Judge; the hearing transcript; and all
motions, rulings, and orders.'' This proposed revision would create a
formal and consistent practice about which documents and exhibits are
included in the hearing record.
S. Section 708.29
The proposed rule would amend Sec. 708.29, ``Burdens of proof,''
by dividing the current language into paragraphs (a) and (b) and would
further amend as follows. Proposed Sec. 708.29(a) would be composed of
the first sentence from the original text with the following added
language: ``A complainant can demonstrate that a protected activity was
a contributing factor to an alleged act of retaliation by establishing,
among other things: (1) that the person taking the adverse action had
actual or constructive knowledge of the protected activity; and (2)
that the alleged retaliatory act had sufficient temporal proximity to
the protected activity to give rise to a reasonable inference of a
causal connection.'' Proposed Sec. 708.29(b) would state ``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.'' The proposed amendments clarify how a complainant can meet
their burden of proof by using language long-established in OHA case
law.
T. Section 708.30
The proposed rule would amend Sec. 708.30, ``Timing for issuing an
initial agency decision,'' by replacing ``Sec. 708.28(b)(7)'' with
``Sec. 708.28(b)(9)'' in Sec. 708.30(c) to be consistent with the
proposed amendments to Sec. 708.28(b).
U. Section 708.31
The proposed rule would amend Sec. 708.31, ``Procedure for issuing
an initial agency decision,'' by replacing the text after ``the initial
agency decision will'' with ``as appropriate, order any form of relief
as permitted under Sec. 708.36, or the Administrative Judge will
initiate a second proceeding for the purpose of determining the
appropriate form of relief'' in Sec. 708.31(c) to align the
regulations with the common OHA practice of holding a second hearing to
determine the appropriate form of relief.
V. Section 708.34
The proposed rule would amend Sec. 708.34, ``Procedure for issuing
an appeal decision,'' to include ``or remand the matter to the
Administrative Judge for further proceedings regarding the appropriate
relief'' at the end of the sentence in Sec. 708.34(b)(2) to allow
flexibility for any case to be remanded back to the Administrative
Judge for a determination on appropriate relief.
W. Section 708.36
The proposed rule would amend Sec. 708.36, ``Remedies,'' to
include ``incurred in pursuing the complaint'' after ``reasonable costs
and expenses'' in Sec. 708.36(a)(4) to clarify the scope of allowable
reimbursement for the complainant's cost and expenses.
X. Section 708.40
The proposed rule would amend Sec. 708.40, ``Notice of program
requirements,'' by including ``obtain information about filing and''
after ``the DOE Office where employes can'' to clarify that employee
notices must also inform employees where they can obtain information
about filing a complaint from the appropriate office in addition to
where they can file a complaint.
Y. Section 708.42
The proposed rule would amend Sec. 708.42, ``Extension of
deadlines,'' by removing ``OHA'' after ``relating to the investigation,
hearing, and'' for consistency.
III. Regulatory Review
A. Executive Order 12866 and Executive Order 14192
Section 6(a) of Executive Order (E.O.) 12866 ``Regulatory Planning
and Review'' requires agencies to submit ``significant regulatory
actions'' to the Office of Information and Regulatory Affairs (OIRA)
for review. OIRA has determined that this regulatory action does not
constitute a ``significant regulatory action'' under section 3(f) of
E.O. 12866 because it does not have an annual effect on the economy of
$100 million or adversely affect the economy; create an inconsistency
or interfere with any action planned or taken by another agency;
materially alter the budgetary impact of entitlements, grants, user
fees, loan programs, or the rights and obligations of recipients
thereof; or raise novel legal or policy issues. Accordingly, this
action was not submitted to OIRA for review.
This proposed rule has also been determined to be an ``E.O. 14192
deregulatory action'' under E.O. 14192, ``Unleashing Prosperity Through
Deregulation,'' 90 FR 9065 (February 6, 2025) because the changes would
create a cost savings for the agency. DOE estimates that this proposed
rule will save DOE approximately $250,000 annually by encouraging the
early resolution of complaints through alternative dispute resolution,
with potential additional savings benefits to DOE contractors and
contractor-employees.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires that
an agency prepare an initial regulatory flexibility analysis whenever
an agency is required by section 553 of this title, or any other law,
to publish a general notice of proposed rulemaking for any proposed
rule. This proposed rule would alter procedural rules primarily for the
OHA, with little impact on the conduct of or burdens on regulated
entities. DOE has determined that the proposed rule, if adopted, would
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 proposed rule contains few changes in the
obligations of the litigants. DOE has therefore determined that the
regulatory flexibility analysis is inapplicable.
C. The Paperwork Reduction Act of 1995
Proposed part 708 does not contain information collection
requirements subject to review and approval by the Office of Management
and Budget (OMB) under the Paperwork Reduction Act.
D. National Environmental Policy Act of 1969
DOE has considered this proposed rule in accordance with the
National Environmental Policy Act (NEPA), as amended, DOE's NEPA
regulations, set forth in 10 CFR part 1021, and DOE's NEPA implementing
procedures published outside the Code of Federal Regulations at
<a href="http://www.energy.gov/nepa">www.energy.gov/nepa</a>. DOE has determined that NEPA does not apply to
this action because this proposed rule is an administrative and routine
action excepted from NEPA review. DOE has determined that this
[[Page 60011]]
rulemaking is a Federal action, but it is not ``major'' and therefore
not subject to NEPA. This action is one in which NEPA does not apply
because it does not fall within the definition of ``major Federal
action'' in section 111(10) of NEPA, 42 U.S.C. 4336e(10). See section
2.1(c)(5) of DOE's NEPA implementing procedures. For more information,
please see appendix A of 10 CFR part 1021 (``A5, Interpretive
rulemakings with no change in environmental effect'') and appendix A of
DOE's NEPA implementing procedures, ``A5, Interpretive rulemakings with
no change in environmental effect.''
E. Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of E.O. 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
E.O. 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 E.O. 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 proposed part 708 meets the relevant
standards of E.O. 12988.
F. Executive Order 13132
E.O. 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 the proposed part 708 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 E.O. 13132.
G. Executive Order 13175
Under E.O. 13175, ``Consultation and Coordination with Indian
Tribal Governments,'' 65 FR 67249 (Nov. 9, 2000), DOE may not issue a
discretionary rule that has Tribal implications and imposes substantial
direct compliance costs on Indian Tribal governments without prior
Tribal consultation. DOE has determined that this proposed rule will
not have such effects and has concluded that E.O. 13175 does not apply.
H. The Unfunded Mandates Reform Act of 1995
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally
requires each Federal agency to provide a written statement assessing
the effects of Federal regulatory actions on State, local, and tribal
governments and the private sector that may cause 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 (adjusted
annually for inflation), before promulgating any general notice of
proposed rulemaking, and before promulgating any final rule for which a
general notice of proposed rulemaking was published.
The proposed 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.
I. 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 proposed rule will not affect 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.
J. Treasury and General Government Appropriations Act, 2001
Section 515 of the Treasury and General Government Appropriations
Act, 2001 (44 U.S.C. 3516 note) provides for Federal 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). Pursuant
to OMB Memorandum M-19-15, ``Improving Implementation of the
Information Quality Act'' (April 24, 2019), DOE published updated
guidelines, which are available at: <a href="http://www.energy.gov/sites/prod/files/2019/12/f70/DOE%20Final%20Updated%20IQA%20Guidelines%20Dec%202019.pdf">www.energy.gov/sites/prod/files/2019/12/f70/DOE%20Final%20Updated%20IQA%20Guidelines%20Dec%202019.pdf</a>.
DOE has reviewed this proposed rule under the OMB and DOE guidelines
and has concluded that it is consistent with applicable policies in
those guidelines.
K. Executive Order 3211
E.O. 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 OMB 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 the promulgation of a final
rule or regulation and that ``(1)(i) is a significant regulatory action
under Executive Order 12866, or any successor order, and (ii) is likely
to have a significant adverse effect on the supply, distribution, or
use of energy; or (2) is designated by the Administrator of the Office
of Information and Regulatory Affairs 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 is not a significant regulatory action under
Executive Order 12866. Moreover, it would not have a significant
adverse effect on the supply, distribution, or use of energy, nor has
it been designated as a significant energy action by the Administrator
of OIRA. Therefore, it is
[[Page 60012]]
not a significant energy action, and accordingly, DOE has not prepared
a Statement of Energy Effects.
IV. Public Participation
DOE will accept all comments, data, and information regarding this
proposed rule no later than 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 document.
Submitting comments via <a href="http://www.regulations.gov">www.regulations.gov</a>. The
<a href="http://www.regulations.gov">www.regulations.gov</a> web page will require you to provide your name and
contact information. Your contact information will be viewable to DOE
OHA staff only. Your contact information will not be publicly viewable
except for your first and last names, organization name (if any), and
submitter representative name (if any). If your comment is not
processed properly because of technical difficulties, DOE will use this
information to contact you. If DOE cannot read your comment due to
technical difficulties and cannot contact you for clarification, DOE
may not be able to consider your comment.
However, your contact information will be publicly viewable if you
include it in the comment itself or in any documents attached to your
comment. Any information that you do not want to be publicly viewable
should not be included in your comment, nor in any document attached to
your comment. Otherwise, people viewing comments will see only first
and last names, organization names, correspondence containing comments,
and any documents submitted with the comments.
Do not submit to <a href="http://www.regulations.gov">www.regulations.gov</a> information for which
disclosure is restricted by statute, such as trade secrets and
commercial or financial information (hereinafter referred to as
Confidential Business Information [CBI]). Comments submitted through
<a href="http://www.regulations.gov">www.regulations.gov</a> cannot be claimed as CBI. Comments received through
the website will waive any CBI claims for the information submitted.
For information on submitting CBI, see the Confidential Business
Information section.
DOE processes submissions made through <a href="http://www.regulations.gov">www.regulations.gov</a> before
posting. Normally, comments will be posted within a few days of being
submitted. However, if large volumes of comments are being processed
simultaneously, your comment may not be viewable for up to several
weeks. Please keep the comment tracking number that <a href="http://www.regulations.gov">www.regulations.gov</a>
provides after you have successfully uploaded your comment.
Submitting comments via email, hand delivery/courier, or postal
mail. Comments and documents submitted via email, hand delivery/
courier, or postal mail also will be posted to <a href="http://www.regulations.gov">www.regulations.gov</a>. If
you do not want your personal contact information to be publicly
viewable, do not include it in your comments or any accompanying
documents. Instead, provide your contact information in a cover letter.
Include your first and last names, email address, telephone number, and
optional mailing address. The cover letter will not be publicly
viewable as long as it does not include any comments.
Include contact information each time you submit comments, data,
documents, and other information to DOE. If you submit via postal mail
or hand delivery/courier, please provide all items on a CD, if
feasible, in which case it is not necessary to submit printed copies.
No telefacsimiles (faxes) will be accepted.
Comments, data, and other information submitted to DOE
electronically should be provided in PDF (preferred), Microsoft Word or
Excel, WordPerfect, or text (ASCII) file format. Provide documents that
are not secured, that are written in English, and that are free of any
defects or viruses. Documents should not contain special characters or
any form of encryption, and, if possible, they should carry the
electronic signature of the author.
Campaign form letters. Please submit campaign form letters by the
originating organization in batches of between 50 to 500 form letters
per PDF or as one form letter with a list of supporters' names compiled
into one or more PDFs. This format reduces comment processing and
posting time.
Confidential Business Information. Pursuant to 10 CFR 1004.11, any
person submitting information that he or she believes to be
confidential and exempt by law from public disclosure should submit via
email two well-marked copies: one copy of the document marked
``confidential'' including all the information believed to be
confidential, and one copy of the document marked ``non-confidential''
with the information believed to be confidential deleted. DOE will make
its own determination about the confidential status of the information
and treat it according to its determination.
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).
V. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of this notice of
proposed rulemaking and request for comments.
List of Subjects in 10 CFR Part 708
Administrative practice and procedure; Whistleblower Protection.
Signing Authority
This document of the Department of Energy was signed on September
15, 2026, by Chris Wright, Secretary of Energy. That document with the
original signature and date is maintained by DOE. For administrative
purposes only, and in compliance with requirements of the Office of the
Federal Register, the undersigned DOE Federal Register Liaison Officer
has been authorized to sign and submit the document in electronic
format for publication, as an official document of the Department of
Energy. This administrative process in no way alters the legal effect
of this document upon publication in the Federal Register.
Signed in Washington, DC, on September 18, 2026.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
For the reasons set out in the preamble, DOE proposes to amend part
708 of chapter III of title 10 of the Code of Federal Regulations, as
set forth:
PART 708--DOE CONTRACTOR EMPLOYEE PROTECTION PROGRAM
0
1. The authority citation for part 708 continues to read as follows:
Authority: 42 U.S.C. 2201(b), 2201(c), 2201(i), and 2201(p); 42
U.S.C. 5814 and 5815; 42 U.S.C. 7251, 7254, 7255, and 7256; and 5
U.S.C. Appendix 3.
Sec. Sec. 708.8, 708.11, 708.34, and 708.38 [Amended]
0
2. Remove the words ``EC Director'' and add in their place the words
``ECP Director'' in the following places:
0
a. Section 708.8.
0
b. Section 708.11(a).
0
c. Section 708.34(c).
0
d. Section 708.38(a).
0
3. Revise Sec. 708.1 to read as follows:
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 substantial
[[Page 60013]]
violations of laws, rules, or regulations; substantial and specific
danger to public or worker health or safety; fraud, gross
mismanagement, gross waste of funds, or abuse of authority;
participation in Congressional or administrative proceedings; or
refusal to participate in certain unlawful activities or activities
that make an employee reasonably fearful of serious injury to himself
or herself or others.
0
4. Revise Sec. 708.2 to read as follows:
Sec. 708.2 Definitions.
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. In computing any period of time
prescribed or allowed by these regulations, the day of the act, event,
or default from which the designated period of time begins to run is
not to be included. If the last day of the period is a Saturday,
Sunday, or federal legal holiday, then the period runs until the end of
the following day that is not a Saturday, Sunday, or a federal legal
holiday. Documents received by the Office of Hearings and Appeals on a
Saturday, Sunday, or federal legal holiday, or after 5 p.m., Eastern
Standard Time, are deemed filed on the following regular business 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.
ECP Director means the Director of the Employee Concerns Programs
at DOE Headquarters, or any official to whom the Director delegates his
or her 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 his or her 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 or her
functions under this part.
Party means an employee, contractor, or other individual 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.
Law, rule, or regulation means policies or procedures that are
government mandates or implement government mandates.
Union-negotiated grievance-arbitration procedure means one that has
been negotiated by a labor organization.
Verified email is an email sent to the email address provided by a
party.
0
5. Amend Sec. 708.4 by revising undesignated introductory text and
paragraph (c) to read as follows:
Sec. 708.4 Complaints not covered.
An employee of a contractor may not file a complaint against the
contractor under this part if:
* * * * *
(c) Except as provided in Sec. 708.16(a), the complaint is based
on the same facts for which the employee has chosen to pursue a remedy
available under a regulation, statute, or other law, including:
(1) Department of Labor regulations at 29 CFR part 24, ``Procedures
for the Handling of Retaliation Complaints Under the Employee
Protection Provisions of Six Environmental Statutes and Section 211 of
the Energy Reorganization Act of 1974, as Amended'';
(2) Federal Acquisition Regulation, 48 CFR part 3, subpart 3.9,
``Whistleblower Protections for Contractor Employees'';
(3) 41 U.S.C. 4712, ``Enhancement of contractor protection from
reprisal for disclosure of certain information''; or
(4) State or other applicable law, including final and binding
grievance-arbitration, as described in Sec. 708.16 of subpart B.
* * * * *
0
6. Revise Sec. 708.5 to read as follows:
Sec. 708.5 Protected conduct.
An employee of a contractor may file a complaint against the
contractor alleging that he or she 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 the employee 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 or herself, other employees, or members of the public.
0
7. Amend Sec. 708.6 by revising paragraph (b) to read as follows:
[[Page 60014]]
Sec. 708.6 Reasonable fear of serious injury.
* * * * *
(b) An employee, because of the nature of his or her employment
responsibilities, does not have the training or skills needed to
participate safely in the activity or practice.
0
8. Amend Sec. 708.7 by revising paragraph (b) to read as follows:
Sec. 708.7 Filing a complaint based on retaliation for refusal to
participate.
* * * * *
(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, the employer, or any higher tier contractor, and he or she
stated the reasons for refusing to participate.
0
9. Amend Sec. 708.9 revising paragraph (a) to read as follows:
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 received by the specified official or office.
* * * * *
0
10. Add Sec. 708.10 to read as follows:
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. The Employee
Concerns Program office, the DOE Alternative Dispute Resolution Office,
or another servicing organization may provide alternative dispute
resolution services.
(c) Any relevant deadline in this part, including the deadline for
filing a complaint under Sec. 708.15(a), may be tolled for up to 90
days by the Head of Field Element, the ECP Director, or the Office of
Hearings and Appeals (as applicable) should the parties provide written
notice that they have jointly requested to participate, or continue to
participate, in alternative dispute resolution. The time to meet the
deadline begins to run again on the earlier of:
(1) The day after the tolling period expires; or
(2) The day after a party informs the Head of Field Element, the
ECP Director, or the Office of Hearings and Appeals that the
alternative dispute resolution efforts have ended.
(d) If the parties resolve the complaint, the parties must give the
Head of Field Element or the ECP Director and the Office of Hearings
and Appeals (as applicable) a copy of any settlement agreement or a
written statement from the employee that indicates his or her
withdrawal of the complaint.
0
11. Amend Sec. 708.13 by revising paragraphs (c) and (d) to read as
follows:
Sec. 708.13 Requirements for the form and content of a complaint.
* * * * *
(c) A statement that all of the facts that the complainant has
included in the complaint are true and correct to the best of the
complainant's knowledge and belief; and
(d) An affirmation, as described in Sec. 708.14 of this subpart,
that the complainant has exhausted all applicable union-negotiated
grievance-arbitration procedures.
0
12. Revise Sec. 708.14 to read as follows:
Sec. 708.14 Exhaustion of union-negotiated grievance-arbitration
procedures.
(a) To show that all applicable union-negotiated grievance-
arbitration procedures have been exhausted, the complainant must:
(1) State that all available opportunities for resolution through
an applicable union-negotiated grievance-arbitration procedure have
been exhausted, and provide the date on which the union-negotiated
grievance-arbitration procedure was terminated and the reasons for
termination; or
(2) State that the complainant filed a grievance under applicable
union-negotiated 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 union-negotiated
grievance-arbitration procedures that are applicable to the
complainant.
(b) If the complainant does not provide the information specified
in Sec. 708.14(a), the complaint may be dismissed for lack of
jurisdiction as provided in Sec. 708.18 of this, subpart.
0
13. Revise Sec. 708.15 to read as follows:
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 any internal company
grievance-arbitration procedure. The time for filing stops running on
the day the above-listed grievance is filed. The time begins to run
again on the earlier of:
(1) The day after such dispute resolution efforts end; or
(2) If a union-negotiated grievance-arbitration procedure, 150 days
after the grievance was filed if a final decision 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 filed on a date later than the applicable
deadline, the Head of Field Element or ECP Director (as applicable)
will give the complainant an opportunity to show any good reason he or
she may have for not meeting that deadline, and that official may, in
his or her discretion, accept the complaint for processing.
0
14. Revise Sec. 708.16 to read as follows:
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, the employee 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, or 41
U.S.C. 4712, and the Inspector General, after conducting an initial
inquiry, determines not to pursue it; or
(3) The employee has exhausted union-negotiated 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 the employee 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
[[Page 60015]]
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).
0
15. Revise Sec. 708.17 to read as follows:
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 ECP Director (as applicable) will provide the employer with
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
allegations in the complaint. The Head of Field Element or ECP Director
(as applicable) will provide the complainant with a copy of the
employer's response upon its receipt. 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 ECP Director
(as applicable) will provide the employer with a copy of those
additional comments upon receipt. The deadlines set forth in this
subsection may be extended by the Head of Field Element or ECP Director
(as applicable) for good reason.
(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 ECP Director (as applicable) will provide the
representative with 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. The Head of Field
Element or the ECP Director (as applicable) will provide the comments
to the complainant and employer upon receipt.
(c) The Head of Field Element or the ECP Director (as applicable)
must provide the contact information for the DOE's Alternative Dispute
Resolution Office to the parties as soon as is practicable after
receiving the complaint.
0
16. Revise Sec. 708.18 to read as follows:
Sec. 708.18 Dismissal for lack of jurisdiction or other good cause.
(a) The Head of Field Element or the ECP Director (as applicable)
may dismiss a complaint for lack of jurisdiction or for other good
cause after receiving the complaint, either on his or her own
initiative or at the request of a party named in the complaint. If the
employer does not file a response, such decisions are issued by the
20th day after the employer's period to respond under Sec. 708.17(a)
has elapsed. If the employer files a timely response, such decisions
are issued by the 20th day after the complainant files additional
comments under Sec. 708.17(a), or the 20th day after the period to
file additional comments has elapsed, whichever is soonest.
(b) The Head of Field Element or the ECP Director (as applicable)
will notify the complainant by verified email or 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, will provide 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;
(2) The facts, as alleged in the complaint, do not present issues
for which relief can be granted under this part;
(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;
(4) The complaint is frivolous or without merit on its face;
(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.
0
17. Revise Sec. 708.19 to read as follows:
Sec. 708.19 Appealing the dismissal of a complaint by the Head of
Field Element or ECP Director for lack of jurisdiction or other good
cause.
(a) If a complaint is dismissed by the Head of Field Element or ECP
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. Decisions not to dismiss may
not be appealed.
(b) If the complainant appeals a dismissal to the OHA Director, the
complainant must send copies of the appeal to the Head of Field Element
or the ECP 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 the appeal 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 ECP Director or ordering further
processing of the complaint, is the final decision on the appeal,
unless the complainant files a petition for Secretarial review by the
30th day after receiving the appeal decision.
0
18. Revise and republish Sec. 708.20 to read as follows:
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, the complainant may file with the
Office of Hearings and Appeals a notice indicating he or she is
petitioning for Secretarial review. 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 notice of intent to petition
for Secretarial review, the complainant 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 the Secretary's 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 ECP
Director or ordering further processing of the complaint. If the
dismissal is upheld, it is a final agency action.
0
19. Revise Sec. 708.21 to read as follows:
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 the ECP Director (as
applicable) will forward the complaint to the OHA Director by:
(1) The 25th day after receipt of the final submission permitted by
Sec. 708.17;
(2) If the employer does not respond to the complaint, the 25th day
after the period for responses permitted by Sec. 708.17 ends;
[[Page 60016]]
(3) If the complainant does not submit additional comments
regarding the response, the 25th day after the period for additional
comments permitted by Sec. 708.17 ends; or
(4) The 5th day after receipt of an order to continue processing
the complaint following an appeal of dismissal.
(b) The Head of Field Element or ECP Director (as applicable) will
notify all parties that the complaint has been referred to the Office
of Hearings and Appeals.
(c) Where the Head of Field Element or the ECP Director (as
applicable) found the complaint to be untimely filed, but nonetheless
accepted the complaint for processing as a matter of discretion in
accordance with Sec. 708.15(d), he or she must indicate upon referring
the complaint to the Office of Hearings and Appeals that good reason
was found to accept the complaint for processing.
(d) 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 Office of Hearings and
Appeals 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.
(e) 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; and
(2) Formal rules of evidence do not apply, but the Office of
Hearings and Appeals may use the Federal Rules of Evidence as a guide.
0
20. Revise and republish Sec. 708.22 to read as follows:
Sec. 708.22 Investigation of complaints.
(a) The OHA Director will appoint a person to investigate. 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 people alleged to have been involved in retaliation
and other individuals who may have relevant information; take sworn
statements; and require the production of any documents or other
evidence. Documents containing trade secrets or confidential commercial
or financial information must be marked as such when submitted. A copy
of the document with the protected information redacted must be
submitted with the original document.
(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 or her 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 or her
identity be kept confidential, the investigator may grant
confidentiality, but he or she 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 explaining why dismissal may be appropriate and
providing factual support. 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,
the Administrative Judge 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, the Administrative Judge will issue a written statement to
that effect, which will include the factual and legal basis for the
decision. The investigation will then continue. The OHA Director may,
at his or her 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.
0
21. Amend Sec. 708.23 by revising paragraph (a) to read as follows:
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 90th day after the complaint is
received by the Office of Hearings and Appeals. 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.
* * * * *
0
22. Amend Sec. 708.26 by revising paragraph (b) to read as follows:
Sec. 708.26 Time and location of hearings.
* * * * *
(b) The Administrative Judge will schedule the hearing at a time
and place 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.
0
23. Revise Sec. 708.28 to read as follows:
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:
[[Page 60017]]
(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 or defense raised in the
contractor's response.
(2) The Administrative Judge will 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 period for discovery shall be established by the presiding
Administrative Judge. A party may seek discovery anytime during the
discovery period.
(4) 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.
(5) The Administrative Judge may rule on any motions filed by the
parties, with or without oral argument. The Administrative Judge may
set deadlines for the filing of motions and responses.
(6) 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 documents 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.
(7) The Administrative Judge may, at the request of a party or on
his or her own initiative, dismiss a claim, defense, or party. The
Administrative Judge 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.
(8) 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.
(9) The parties are entitled to make closing arguments, but post-
hearing submissions are only permitted by direction of the
Administrative Judge.
(10) Parties allowed to file written submissions must serve copies
upon the other parties within the time prescribed by the Administrative
Judge.
(c) The hearing record consists of all documents and exhibits filed
with the Office of Hearings and Appeals under the hearing case number;
the report of investigation, including any exhibits or attachments to
the report of investigation except as ordered by the Administrative
Judge; the hearing transcript; and all motions, rulings, and orders.
0
24. Revise Sec. 708.29 to read as follows:
Sec. 708.29 Burdens of Proof.
(a) The complainant has the burden of establishing by a
preponderance of the evidence that the complainant 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. A complainant can demonstrate that a protected activity was
a contributing factor to an alleged act of retaliation by establishing,
among other things:
(1) That the person taking the adverse action had actual or
constructive knowledge of the protected activity; and
(2) That the alleged retaliatory act had sufficient temporal
proximity to the protected activity to give rise to a reasonable
inference of a causal connection.
(b) 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.
0
25. Revise Sec. 708.30 to read as follows:
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)(9) of this subpart.
0
26. Amend Sec. 708.31 by revising paragraph (c) to read as follows:
Sec. 708.31 Procedure for issuing an initial agency decision.
* * * * *
(c) If the Administrative Judge determines that an act of
retaliation has occurred, the initial agency decision will, as
appropriate, order any form of relief as permitted under Sec. 708.36,
or the Administrative Judge will initiate a second proceeding for the
purpose of determining the appropriate form of relief. 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.
0
27. Amend Sec. 708.32 by revising paragraph (a) to read as follows:
Sec. 708.32 Appealing an initial agency decision.
(a) By the 15th day after receiving an initial agency decision from
the Administrative Judge, or a supplemental decision with regard to
remedy if the Administrative Judge initiated a second proceeding, any
party may file a notice of appeal with the OHA Director requesting
review of the initial agency decision.
* * * * *
0
28. Revise and republish Sec. 708.33 to read as follows:
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. The appellant must serve a copy
of the statement 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.
0
29. Amend Sec. 708.34 revising paragraph (b)(2) to read as follows:
Sec. 708.34 Procedure for issuing an appeal decision.
* * * * *
(b) * * *
(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
[[Page 60018]]
under Sec. 708.36, or it will remand the matter to the Administrative
Judge for further proceedings regarding the appropriate relief.
(c) The OHA Director will send an appeal decision to all parties
and to the Head of Field Element or ECP Director having jurisdiction
over the contract under which the complainant was employed when the
alleged retaliation occurred.
* * * * *
0
30. Revise Sec. 708.35 to read as follows:
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 notice indicating he or she is
petitioning for Secretarial review with the Office of Hearings and
Appeals, subject to the limitations set forth in Sec. 708.34(d).
(b) By the 15th day after filing a notice of intent to petition for
Secretarial review, the petitioner must file a statement identifying
the issues that the petitioner 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 the Secretary's 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.
0
31. Amend Sec. 708.36 by revising paragraph (a)(4) to read as follows:
Sec. 708.36 Remedies.
(a) * * *
(4) Reimbursement of the complainant's reasonable costs and
expenses incurred in pursuing the complaint, including attorney and
expert-witness fees reasonably incurred to prepare for and participate
in proceedings leading to the initial or final agency decision; or
* * * * *
0
32. Revise Sec. 708.40 to read as follows:
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 obtain information about filing and file complaints under this
part.
0
33. Revise Sec. 708.42 to read as follows:
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. 708.22
through Sec. 708.34 of this subpart (relating to the investigation,
hearing, and appeal process). Failure by DOE to comply with timing
requirements does not create a substantive right for any party to
overturn a DOE decision on a complaint.
0
34. Revise Sec. 708.43 to read as follows:
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.
[FR Doc. 2026-19332 Filed 9-21-26; 8:45 am]
BILLING CODE 6450-01-P
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</html>Indexed from Federal Register on September 22, 2026.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.