Federal Register: October 30, 2001 (Volume 66, Number 210)
Rules and Regulations
Page 54643-54645
DEPARTMENT OF ENERGY
10 CFR Part 1044
[Docket No. SO-RM-00-3164]
RIN 1992-AA26
Office of Security and Emergency Operations; Security
Requirements for Protected Disclosures Under Section 3164 of the
National Defense Authorization Act for Fiscal Year 2000
AGENCY: Department of Energy.
ACTION: Final rule.
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SUMMARY: The Department of Energy (DOE) adopts, with minor change, an
interim final rule published on January 18, 2001, which prescribed the
security procedures that a DOE employee or DOE contractor employee,
including an employee or contractor employee of the National Nuclear
Security Administration, must follow to make a protected disclosure of
classified or other controlled information under section 3164 of the
National Defense Authorization Act for Fiscal Year 2000.
EFFECTIVE DATE: This final rule is effective November 29, 2001.
FOR FURTHER INFORMATION CONTACT: Raymond C. Holmer, Office of
Safeguards and Security (SO-211.3), U.S. Department of Energy, 19901
Germantown Road, Germantown, MD 20874, (301) 903-7325 or by electronic
mail raymond.holmer@hq.doe.gov.
SUPPLEMENTARY INFORMATION:
I. Introduction
On January 18, 2001, DOE published an interim final rule in the
Federal Register (66 FR 4639). The interim final rule added a new part
1044 to title 10 of the Code of Federal Regulations to establish
security requirements for the disclosure of classified and other
controlled information under section 3164 of the National Defense
Authorization Act for Fiscal Year 2000 (NDAA for FY 2000) (42 U.S.C.
7239). Section 3164 directed the Secretary of Energy to establish a
program to ensure that DOE employees or DOE contractor employees
engaged in defense activities may not be discharged, demoted, or
otherwise discriminated against as a reprisal for making protected
disclosures. The Secretary was required by section 3164(g) to prescribe
regulations to ensure the security of any information disclosed under
the program (42 U.S.C. 7239(g)). To qualify as a ``protected
disclosure'' of classified or other controlled information, a covered
employee must take appropriate steps to protect the security of the
information in accordance with guidance provided by the DOE Inspector
General, and reveal the information only to a person or entity
specified in the statute (42 U.S.C. 7239(c)).
DOE provided a 30-day public comment period for the interim final
rule, and the rule was to become effective on February 20, 2001. In
accordance with the memorandum of January 20, 2001, from the Assistant
to the President and Chief of Staff, entitled ``Regulatory Review
Plan,'' published in the Federal Register on January 24, 2001, (66 FR
7702) DOE temporarily delayed for 60 days the effective date of the
interim final rule (66 FR 8747, February 2, 2001). Upon completion of
its review of the regulation, DOE published a notice in the Federal
Register on May 10, 2001, (66 FR 23833) confirming the effective date
of the interim final rule as April 23, 2001.
II. Discussion of Public Comment
DOE received one comment during the public comment period provided
for the interim final rule. The Special Counsel of the U.S. Office of
Special Counsel stated her concern that the interim final rule failed
to include any reference to section 3164(l) of the NDAA for FY 2000,
which provides that the protections of section 3164 are independent of,
and not subject to any limitations that may be provided in, the
Whistleblower Protection Act of 1989 (Pub. L. 101-12) or any other law
that may provide protection for disclosures of information by an
employee of DOE or of a DOE contractor. The Special Counsel requested
DOE to clarify this issue in the final rule by making clear that
whistleblower disclosures of classified or controlled information by
DOE employees, including disclosures to the Special Counsel or to the
DOE Inspector General, are also protected under the Whistleblower
Protection Act of 1989.
DOE agrees that the scope of the section 3164 whistleblower
protection program should be addressed in the
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final rule to avoid confusion by employees of DOE and its contractors.
Therefore, DOE is amending section 1044.01 to include a new paragraph
(b) that tracks the language of section 3164(l) of the NDAA for FY
2000.
III. Procedural Requirements
A. Review Under Executive Order 12866
Today's regulatory action has been determined not to be ``a
significant regulatory action'' under Executive Order 12866,
``Regulatory Planning and Review,'' (58 FR 51735, October 4, 1993).
Accordingly, this action was not subject to review under that Executive
Order by the Office of Information and Regulatory Affairs of the Office
of Management and Budget (OMB).
B. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (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 will not have a ``significant economic
impact on a substantial number of small entities.'' This final rule
prescribes the security procedures that a DOE or DOE contractor
employee engaged in defense activities must follow when making a
protected disclosure of classified or other controlled information
under section 3164 of the NDAA for FY 2000. DOE is not required by the
Administrative Procedure Act (5 U.S.C. 553) or any other law to propose
this rule for public comment. Accordingly, the Regulatory Flexibility
Act requirements do not apply to this rulemaking, and no regulatory
flexibility analysis has been prepared.
C. Review Under the Paperwork Reduction Act
No additional information or record keeping requirements are
imposed by this rulemaking. Accordingly, no OMB clearance is required
under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
D. Review Under the National Environmental Policy Act
Today's rule describes the security requirements a DOE or DOE
contractor employee engaged in defense activities must follow when
making a protected disclosure of classified or other controlled
information under section 3164 of the NDAA for FY 2000. Implementation
of this rule will not affect whether such information might cause or
otherwise be associated with an environmental impact. The Department
has, therefore, determined that this rule is covered under the
Categorical Exclusion found at paragraph A.6. of Appendix A to subpart
D, 10 CFR part 1021, which applies to rulemakings that are strictly
procedural. Accordingly, neither an environmental assessment nor an
environmental impact statement is required.
E. 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. With regard to the review
required by section 3(a), section 3(b) of Executive Order 12988
specifically requires that Executive agencies make every reasonable
effort to ensure that the regulation: (1) Clearly specifies the
preemptive effect, if any; (2) clearly specifies any effect on existing
Federal law or regulation; (3) provides a clear legal standard for
affected conduct while promoting simplification and burden reduction;
(4) specifies the retroactive effect, if any; (5) adequately defines
key terms; and (6) addresses other important issues affecting clarity
and general draftsmanship under any guidelines issued by the Attorney
General. Section 3(c) of Executive Order 12988 requires Executive
agencies to review regulations in light of applicable standards in
section 3(a) and section 3(b) to determine whether they are met or it
is unreasonable to meet one or more of them. DOE has completed the
required review and determined that, to the extent permitted by law,
this final rule meets the relevant standards of Executive Order 12988.
F. Review Under Executive Order 13132
Executive Order 13132, ``Federalism,'' (64 FR 43255, August 10,
1999) requires agencies to develop an accountable process to ensure
meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.
DOE published its intergovernmental consultation policy and procedures
on March 14, 2000, (65 FR 13735). ``Policies that have federalism
implications'' is defined in the Executive Order to include regulations
that have substantial direct effects 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.
DOE has examined this final rule and has determined that it would not
have a substantial direct effect on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government.
No further action is required by Executive Order 13132.
G. 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 prepare a written assessment of the
effects of any Federal mandate in a proposed or final agency rule that
may result in the expenditure by State, local, and tribal governments,
in the aggregate, or by the private sector, of $100 million in any one
year. The Act also requires a Federal agency to develop an effective
process to permit timely input by elected officers of State, local, and
tribal governments on a proposed ``significant intergovernmental
mandate,'' and requires an agency plan for giving notice and
opportunity to timely input to potentially affected small governments
before establishing any requirements that might significantly or
uniquely affect small governments. DOE's intergovernmental consultation
process under the Unfunded Mandates Reform Act of 1995 is described in
a statement of policy published by DOE on March 18, 1997, (62 FR
12820). The final rule published today does not contain any Federal
mandate, so these requirements do not apply.
H. 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), 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 promulgates or is expected to lead to
the 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
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any proposed significant energy action, the agency must give a detailed
statement of any adverse effects on energy supply, distribution, or use
should the proposed action be implemented, and of reasonable
alternatives to the action and their expected benefits on energy
supply, distribution, and use.
Today's final rule is not a significant energy action. Accordingly,
DOE has not prepared a Statement of Energy Effects.
I. Congressional Notification
As required by 5 U.S.C. 801, DOE will report to Congress
promulgation of the final rule prior to its effective date. 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).
List of Subjects in 10 CFR Part 1044
Administrative practice and procedure, Classified information,
Energy, Government contracts, National security information, Security
information, Whistleblowing.
Issued in Washington, DC, on October 4, 2001.
Spencer Abraham,
Secretary of Energy.
Accordingly, the interim final rule adding 10 CFR part 1044, which
was published at 66 FR 4639 on January 18, 2001, is adopted as a final
rule with the following changes:
PART 1044--SECURITY REQUIREMENTS FOR PROTECTED DISCLOSURES UNDER
SECTION 3164 OF THE NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL
YEAR 2000
1. The authority citation for part 1044 continues to read as
follows:
Authority: 42 U.S.C. 7101 et seq., 7239, and 50 U.S.C. 2401 et
seq.
2. Section 1044.01 is revised to read as follows:
Sec. 1044.01 What are the purpose and scope of this part?
(a) Purpose. This part prescribes the security requirements for
making protected disclosures of classified or unclassified controlled
nuclear information under the whistleblower protection provisions of
section 3164 of the National Defense Authorization Act for Fiscal Year
2000.
(b) Scope. The security requirements for making protected
disclosures in this part are independent of, and not subject to any
limitations that may be provided in, the Whistleblower Protection Act
of 1989 (Public Law 101-12) or any other law that may provide
protection for disclosures of information by employees of DOE or of a
DOE contractor.
[FR Doc. 01-27230 Filed 10-29-01; 8:45 am]
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