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Panoptic Enterprises' FEDERAL CONTRACTS DISPATCH

DATE: October 30, 2001

SUBJECT: Department of Energy; Whistleblower Protection

SOURCE: Federal Register, October 30, 2001, Vol. 66, No. 210, page 54643

AGENCIES: Department of Energy (DOE)

ACTION: Final Rule

SYNOPSIS: DOE is finalizing, with one change, the interim final rule that prescribed the security procedures 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 (Public Law 106-65), Whistleblower Protection Program.

EDITOR'S NOTE: For more on the interim final rule, see the January 18, 2001, FEDERAL CONTRACTS DISPATCH "Department of Energy; Whistleblower Protection."

For more on the announcement of the 60 day delay in the effective date of the interim final rule, see the February 2, 2001, FEDERAL CONTRACTS DISPATCH "Department of Energy; Delay of Effective Dates of Regulations."

For more on the confirmation, at the conclusion of the 60 day delay, of the April 23, 2001, effective date for the interim final rule, see the May 10, 2001, FEDERAL CONTRACTS DISPATCH "Department of Energy (DOE); Whistleblower Protection."

EFFECTIVE DATE: 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 e-mail to raymond.holmer@hq.doe.gov.

SUPPLEMENTAL INFORMATION: On January 18, 2001, DOE published an interim final rule which added a new Part 1044, Security Requirements for Protected Disclosures Under Section 3164 of the National Defense Authorization Act for Fiscal Year 2000, to Title 10 of the Code of Federal Regulations (CFR) 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. The interim final rule was to become effective on February 20, 2001, and comments on the interim final rule were also due on February 20, 2001. However, upon President Bush's inauguration on January 20, 2001, he ordered federal agencies to postpone for 60 days the effective date of all rules and regulations that have been published in the Federal Register but had not taken effect. To comply with the president's order, DOE postponed the effective date of the interim final rule on February 2, 2001.

On May 10, 2001, DOE announced it had completed its review of the interim final rule, that it would not modify its provisions, and that the interim final rule went into effect on April 23, 2001, 60 days after the scheduled effective date of February 20, 2001.

DOE received one comment on the interim final rule during the public comment period. 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 paragraph (l) of Section 3164 of Public Law 106-65, which states that "the protections provided by this section [3164] are independent of, and not subject to any limitations that may be provided in, the Whistleblower Protection Act of 1989 (Public Law 101-512) or any other law that may provide protection for disclosures of information by employees of the Department of Energy or of a contractor of the Department." The Special Counsel requested that DOE 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 agreed that the scope of the Section 3164 whistleblower protection program should be addressed in the final rule to avoid confusion by employees of DOE and its contractors. Therefore, DOE is amending Section 1044.01, What are the purpose and scope of this part?, to include a new paragraph (b) as follows:

"(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."

FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953 or by e-mail to Panoptic@FedGovContracts.com.

Copyright 2001 by Panoptic Enterprises. All Rights Reserved.

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