[Federal Register Volume 78, Number 164 (Friday, August 23, 2013)]
[Rules and Regulations]
[Pages 52389-52391]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-20597]



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Rules and Regulations
                                                Federal Register
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Federal Register / Vol. 78, No. 164 / Friday, August 23, 2013 / Rules 
and Regulations

[[Page 52389]]



DEPARTMENT OF ENERGY

10 CFR Parts 708 and 710

RIN 1992-AA36


Hearing Officer and Administrative Judge

AGENCY: Office of Hearings and Appeals, Department of Energy (DOE).

ACTION: Final rule; technical amendments.

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SUMMARY: DOE is amending its regulations which set forth the procedures 
for processing complaints by employees of DOE contractors alleging 
retaliation by the employers for disclosure of certain information, for 
participation in congressional proceedings, or for refusal to 
participate in dangerous activities, and which set forth the procedures 
for resolving questions concerning eligibility for DOE authorization to 
access classified matter or special nuclear material by replacing the 
term ``Hearing Officer'' with ``Administrative Judge.''

DATES: This rule is effective on August 23, 2013.

FOR FURTHER INFORMATION CONTACT: Poli A. Marmolejos, Director, Office 
of Hearings and Appeals, HG-1, 1000 Independence Avenue SW, Washington, 
DC 20585; Poli.Marmolejos@hq.doe.gov; 202-287-1566.

SUPPLEMENTARY INFORMATION: 

I. Introduction

    Regulations at 10 CFR part 708 set forth the 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. 
Various DOE personnel are assigned specific duties in this process. 
Currently, whenever the parties fail to resolve complaints informally 
and the complainant requests a hearing under Sec.  708.21, a ``hearing 
officer'' presides over an evidentiary administrative hearing.
    Regulations at 10 CFR part 710 set forth the criteria and 
procedures for resolving questions concerning eligibility for DOE 
access authorization (or security clearance). Various DOE personnel are 
assigned specific duties in this process. Currently, a ``hearing 
officer'' presides over an evidentiary administrative review hearing 
when an applicant for, or holder of, access authorization requests such 
a hearing under Sec.  710.21.
    Personnel in other agencies of the Federal Government who perform 
identical or similar duties, both in the specific contexts of adverse 
employment actions and security clearance and in other areas, are 
commonly referred to as ``Administrative Judges.''
    To accurately recognize the adjudicative duties performed by DOE 
hearing officers under parts 708 and 710, and for greater consistency 
with the title employed by other Federal agencies for positions that 
carry the same or essentially identical duties and responsibilities, 
this final rule replaces all references to the term ``Hearing 
Officer,'' in both parts, with the term ``Administrative Judge.''
    The regulatory amendments in this final rule do not alter 
substantive rights or obligations under current law.

II. Procedural Requirements

A. Review Under Executive Orders 12866 and 13563

    It has been determined that this nomenclature change is not ``a 
significant regulatory action,'' as defined in Executive Order 12866, 
``Regulatory Planning and Review,'' 58 FR 51735 (October 4, 1993). 
Accordingly, this action is not subject to review under Executive Order 
12866 by the Office of Information and Regulatory Affairs of the Office 
of Management and Budget (OMB).
    DOE has also reviewed this regulation pursuant to Executive Order 
13563 (76 FR 3281 (Jan. 21, 2011)). Executive Order 13563 is 
supplemental to, and explicitly reaffirms the principles, structures, 
and definitions governing, the regulatory review established in 
Executive Order 12866. To the extent permitted by law, agencies are 
required by Executive Order 13563 to: (1) Propose or adopt a regulation 
only upon a reasoned determination that its benefits justify its costs 
(recognizing that some benefits and costs are difficult to quantify); 
(2) tailor regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives, taking into account, 
among other things, and to the extent practicable, the costs of 
cumulative regulations; (3) select, in choosing among alternative 
regulatory approaches, those approaches that maximize net benefits 
(including potential economic, environmental, public health and safety, 
and other advantages; distributive impacts; and equity); (4) to the 
extent feasible, specify performance objectives, rather than specifying 
the behavior or manner of compliance that regulated entities must 
adopt; and (5) identify and assess available alternatives to direct 
regulation, including providing economic incentives to encourage the 
desired behavior, such as user fees or marketable permits, or providing 
information upon which choices can be made by the public.
    DOE emphasizes as well that Executive Order 13563 requires agencies 
to use the best available techniques to quantify anticipated present 
and future benefits and costs as accurately as possible. In its 
guidance, the Office of Information and Regulatory Affairs has 
emphasized that such techniques may include identifying changing future 
compliance costs that might result from technological innovation or 
anticipated behavioral changes. DOE believes that today's rule is 
consistent with the principles of Executive Order 13563.

B. Administrative Procedure Act

    The regulatory amendments in this notice of final rulemaking 
reflect a nomenclature change that relates solely to internal agency 
organization, management, and personnel. As such, pursuant to 5 U.S.C. 
553(a)(2), this rule is not subject to the rulemaking requirements of 
the Administrative Procedure Act, including the requirements to provide 
prior notice and an opportunity for public comment and a 30-day delay 
in effective date.

[[Page 52390]]

C. Review Under the 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 this rule 
of agency organization, management, and personnel is not subject to the 
requirement to provide prior notice and an opportunity for public 
comment under 5 U.S.C. 553 or any other law, this rule is not subject 
to the analytical requirements of the Regulatory Flexibility Act.

D. Review Under the Paperwork Reduction Act

    This final rule does not impose a collection of information 
requirement subject to the Paperwork Reduction Act (44 U.S.C. 3501 et 
seq.).

E. Review Under the National Environmental Policy Act

    DOE has concluded that promulgation of this rule will not 
individually or cumulatively have a significant impact on the human 
environment, as determined by DOE's regulations implementing the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). 
Specifically, this rule amends existing regulations without changing 
the environmental effect of the regulations being amended, and, 
therefore, is covered under the Categorical Exclusion in paragraph A5 
of Appendix A to subpart D, 10 CFR part 1021. Accordingly, neither an 
environmental assessment nor an environmental impact statement is 
required.

F. Review Under Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 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. The Executive Order also requires agencies 
to have an accountable process to ensure meaningful and timely input by 
State and local officials in the development of regulatory policies 
that have federalism implications. On March 14, 2000, DOE published a 
statement of policy describing the intergovernmental consultation 
process it will follow in the development of such regulations (65 FR 
13735). DOE has determined that this final rule does not preempt State 
law and does 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.

G. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform'' (61 FR 4729, February 7, 1996), imposes on 
Federal agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. Section 3(b) of Executive 
Order 12988 specifically requires that Executive agencies make every 
reasonable effort to ensure that the regulation: (1) Clearly specifies 
the preemptive effect, if any; (2) clearly specifies any effect on 
existing Federal law or regulation; (3) provides a clear legal standard 
for affected conduct while promoting simplification and burden 
reduction; (4) specifies the retroactive effect, if any; (5) adequately 
defines key terms; and (6) addresses other important issues affecting 
clarity and general draftsmanship under any guidelines issued by the 
Attorney General. Section 3(c) of Executive Order 12988 requires 
Executive agencies to review regulations in light of applicable 
standards in section 3(a) and section 3(b) to determine whether they 
are met or it is unreasonable to meet one or more of them. DOE has 
completed the required review and determined that, to the extent 
permitted by law, this final rule meets the relevant standards of 
Executive Order 12988.

H. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to assess the effects of a Federal 
regulatory action on State, local, and tribal governments, and the 
private sector. DOE has determined that today's regulatory action does 
not impose a Federal mandate on State, local, or tribal governments or 
on the private sector.

I. Review Under 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 rule that may affect family well-being. 
This 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.

J. Review Under the Treasury and General Government Appropriations Act, 
2001

    The Treasury and General Government Appropriations Act, 2001 (44 
U.S.C. 3501, et seq.) requires that agencies review disseminations of 
information to the public under guidelines established by each agency 
pursuant to general guideline issued by OMB. OMB's guidelines were 
published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were 
published at 67 FR 62446 (October 7, 2002). DOE has reviewed this final 
rule under the OMB and DOE guidelines and has concluded that it is 
consistent with those guidelines.

K. Review Under Executive Order 13211

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

[[Page 52391]]

L. Congressional Notification

    As required by 5 U.S.C. 801, DOE will submit to Congress a report 
regarding the issuance of today's final rule. The report will state 
that it has been determined that the rule is not a ``major rule'' as 
defined by 5 U.S.C. 804(2).

M. Approval by the Office of the Secretary of Energy

    The Office of the Secretary of Energy has approved the issuance of 
this final rule.

List of Subjects

10 CFR Part 708

    Administrative practice and procedure, Government contracts, 
Whistleblowing.

10 CFR Part 710

    Administrative practice and procedure, Classified information, 
Government contracts, Government employees, Nuclear materials.

    Issued in Washington, DC, on August 19, 2013.
Poli A. Marmolejos,
Director, Office of Hearings and Appeals.

    For the reasons stated in the preamble, DOE amends parts 708 and 
710 of chapter III, title 10, Code of Federal Regulations, as set forth 
below:

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(l), 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.  708.2, 708.24, 708.25, 708.26, 708.27, 708.28, 708.30, 
708.31, and 708.32  [Amended]

0
2. Sections 708.2 (definition); 708.24(b); 708.25; 708.26; 708.27; 
708.28(b); 708.30; 708.31; and 708.32(a) and (c) are amended by 
removing the words ``Hearing Officer'' and adding in their place the 
words ``Administrative Judge''.

PART 710--CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILTY FOR 
ACCESS TO CLASSIFIED MATTER OR SPECIAL NUCLEAR MATERIAL

0
3. The authority citation for part 710 continues to read as follows:

    Authority: 42 U.S.C. 2165, 2201, 5815, 7101, et seq., 7383h-l; 
50 U.S.C. 2401 et seq.; E.O. 10450, 3 CFR 1949-1953 comp., p. 936, 
as amended; E.O. 10865, 3 CFR 1959-1963 comp., p. 398, as amended, 3 
CFR Chap. IV; E.O. 13526, 3 CFR 2010 Comp., pp. 298-327 (or 
successor orders); E.O. 12968, 3 CFR 1995 Comp., p. 391.


Sec. Sec.  710.5, 710.21, 710.22, 710.25, 710.26, 710.27, 710.28, 
710.29, 710.30, 710.32, 710.34, and 710.35  [Amended]

0
4. Sections 710.5(a); 710.21(b)(3)(ii) and (6) through (8); 
710.22(a)(1) through (3); 710.25 section heading and (b) through (f); 
710.26(a) through (k), (l) introductory text, (l)(2)(ii), and (p); 
710.27; 710.28 section heading, (a)(1) and (4), (b) introductory text, 
(b)(3), and (c) introductory text; 710.29(i); 710.30(b)(1) and (2); 
710.32(a) and (b) introductory text; 710.34; and 710.35 are amended by 
removing the words ``Hearing Officer'' and adding, in their place, the 
words ``Administrative Judge''.

[FR Doc. 2013-20597 Filed 8-22-13; 8:45 am]
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