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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 [email protected]

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

[[Page 54644]]

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

[[Page 54645]]

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]
BILLING CODE 6450-01-P




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