Department of Labor: 72 FED REG 44956

8/14/2019 Department of Labor: 72 FED REG 44956

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44956 Federal Register / Vol. 72, No. 154/ Friday, August 10, 2007 / Rules and Regulations

not a significant regulatory actionunder Executive Order 12866; (2) is nota significant rule under DOTRegulatory Policies and Procedures (44FR 11034; February 26, 1979); and (3)does not warrant preparation of aregulatory evaluation as the anticipatedimpact is so minimal. Since this is aroutine matter that will only affect air

traffic procedures and air navigation, itis certified that this rule, whenpromulgated, would not have asignificant economic impact on asubstantial number of small entitiesunder the criteria of the RegulatoryFlexibility Act.

List of Subjects in 14 CFR Part 71

Airspace, Incorporation by reference,Navigation (air).

Adoption of the Amendment

I In consideration of the foregoing, theFederal Aviation Administration

amends 14 CFR part 71 as follows:

PART 71DESIGNATION OF CLASS A,B, C, D, AND E AIRSPACE AREAS; AIRTRAFFIC SERVICE ROUTES; ANDREPORTING POINTS

I 1. The authority citation for 14 CFRpart 71 continues to read as follows:

Authority: 49 U.S.C. 106(g), 40103, 40113,40120; E.O. 10854, 24 FR 9565, 3 CFR, 19591963 Comp., p. 389.

71.1 [Amended].

I 2. The incorporation by reference in14 CFR 71.1 of the Federal Aviation

Administration Order 7400.9P, AirspaceDesignations and Reporting Points,dated September 1, 2006, and effectiveSeptember 15, 2006 is amended asfollows:

Paragraph 6005 Class E airspace areasextending upward from 700 feet or moreabove the surface of the earth.

* * * * *

ANM UT E5 Beaver, UT [New]

Beaver Municipal Airport, UT(Lat. 381351N., long. 1124031W.)

Bryce Canyon VORTAC(Lat. 374121N., long. 1121814W.)

That airspace extending upward from 700feet above the surface within a 5.0-mileradius of Beaver Municipal Airport andwithin 3 miles each side of the 261bearingfrom the Airport extending from the 5.0-mileradius to 14.0 miles west of the Airport, andthat airspace extending upward from 1,200feet above the surface beginning at lat.381924N., long. 1133000W.; thence easton V244 to lat. 382222N., long.1123747W.; thence south on V257 toBRYCE CANYON VORTAC; thence west onV293 to lat. 375630N., long. 1130000W.; to point of beginning.

* * * * *

Issued in Seattle, Washington, on April 26,2007.

Clark Desing,

Manager, System Support Group, WesternService Center.

[FR Doc. E715579 Filed 8907; 8:45 am]

BILLING CODE 491013P

DEPARTMENT OF LABOR

Occupational Safety and HealthAdministration

29 CFR Part 24

[Docket Number: OSHA20070028]

RIN 1218AC25

Procedures for the Handling ofRetaliation Complaints Under theEmployee Protection Provisions of SixFederal Environmental Statutes andSection 211 of the Energy

Reorganization Act of 1974, asAmended

AGENCY: Occupational Safety and HealthAdministration, Labor.ACTION: Interim final rule; request forcomments.

SUMMARY: The Department of Laboramends the regulations governing theemployee protection (whistleblower)provisions of Section 211 of the EnergyReorganization Act of 1974, as amended(ERA), to implement the statutorychanges enacted into law on August 8,2005, as part of the Energy Policy Act

of 2005. The regulations also make theprocedures for handling retaliationcomplaints under Section 211 of theERA and the environmentalwhistleblower statutes listed in Part 24as consistent as possible with the morerecently promulgated procedures forhandling retaliation complaints underother employee protection provisionsadministered by the OccupationalSafety and Health Administration(OSHA), see 29 CFR parts 19791981.DATES: This interim final rule iseffective on August 10, 2007. Commentsand additional materials must besubmitted (postmarked, sent orreceived) by October 9, 2007.ADDRESSES: You may submit commentsand additional materials by any of thefollowing methods:

Electronically: You may submitcomments and attachmentselectronically at http://www.regulations.gov, which is theFederal eRulemaking Portal. Follow theinstructions online for makingelectronic submissions.

Fax: If your submissions, includingattachments, do not exceed 10 pages,

you may fax them to the OSHA DocketOffice at (202) 6931648.

Mail, hand delivery, express mail,messenger or courier service: You mustsubmit three copies of your commentsand attachments to the OSHA DocketOffice, Docket No. OSHA20070028,U.S. Department of Labor, Room N2625, 200 Constitution Avenue, NW.,

Washington, DC 20210. Deliveries(hand, express mail, messenger andcourier service) are accepted during theDepartment of Labors and DocketOffices normal business hours, 8:15a.m.4:45 p.m., e.t.

Instructions: All submissions mustinclude the Agency name and the OSHAdocket number for this rulemaking(Docket No. OSHA20070028).Submissions, including any personalinformation you provide, are placed inthe public docket without change andmay be made available online at http://www.regulations.gov. Therefore, OSHA

cautions you about submitting personalinformation such as social securitynumbers and birth dates. For furtherinformation on submitting commentsplus additional information on therulemaking process, see the PublicParticipation heading in theSUPPLEMENTARY INFORMATION section ofthis document.

Docket: To read or downloadsubmissions or other material in thedocket, go to http://www.regulations.govor the OSHA Docket Office at theaddress above. All documents in thedocket are listed in the http://

www.regulations.govindex; however,some information (e.g., copyrightedmaterial) is not publicly available toread or download through the Web site.All submissions, including copyrightedmaterial, are available for inspectionand copying at the OSHA Docket Office.

FOR FURTHER INFORMATION CONTACT:Nilgun Tolek, Director, Office ofInvestigative Assistance, OccupationalSafety and Health Administration, U.S.Department of Labor, Room N3610,200 Constitution Avenue, NW.,Washington, DC 20210; telephone (202)6932199. This is not a toll-free number.The alternative formats available arelarge print, electronic file on computerdisk (Word Perfect, ASCII, Mates withDuxbury Braille System) and audiotape.

SUPPLEMENTARY INFORMATION:

I. Background

The Energy Policy Act of 2005, PublicLaw 10958, was enacted on August 8,2005. Among other provisions, this newlaw amended the employee protectionprovisions for nuclear whistleblowersunder Section 211 of the ERA, 42 U.S.C.5851; the statutory amendments affect

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only ERA whistleblower complaints.The amendments to the ERA apply towhistleblower claims filed on or afterAugust 8, 2005, the date of theenactment of Section 629 of the EnergyPolicy Act of 2005. The changes to theregulations also affect the sixenvironmental whistleblower statutes

because the same procedures apply to

each of the statutes covered in Part 24.The regulatory changes recognize theimportance of consistency in theprocedures governing the whistleblowerstatutes administered by OSHA.

II. Public Participation

Submission of Comments and Access toDocket

You may submit comments andadditional materials (1) electronically athttp://www.regulations.gov,which isthe Federal eRulemaking Portal; (2) byfacsimile (FAX); or (3) by hard copy. Allsubmissions must identify the Agency

name and the OSHA docket number forthis rulemaking (Docket No. OSHA20070028). You may supplementelectronic submissions by uploadingdocument attachments and fileselectronically. If, instead, you wish tomail additional materials in reference toan electronic or fax submission, youmust submit three copies to the OSHADocket Office (see ADDRESSES section).The additional materials must clearlyidentify your electronic submissions byname, date, and docket number soOSHA can attach them to yoursubmissions.

Because of security-relatedprocedures, the use of regular mail maycause a significant delay in the receiptof submissions. For information aboutsecurity procedures concerning thedelivery of materials by hand, expressdelivery, messenger or courier service,please contact the OSHA Docket Officeat (202) 6932350 (TTY (877) 8895627).

Submissions are posted withoutchange at http://www.regulations.gov.Therefore, OSHA cautions commentersabout submitting personal informationsuch as social security numbers and

birth dates. Although all submissionsare listed in the http://www.regulations.govindex, someinformation (e.g., copyrighted material)is not publicly available to read ordownload through http://www.regulations.gov. All submissions,including copyrighted material, areavailable for inspection and copying atthe OSHA Docket Office. Information onusing the http://www.regulations.govWeb site to submit comments, requestsfor hearings and attachments, and toaccess the docket is available at the Web

sites User Tips link. Contact the OSHADocket Office for information aboutmaterials not available through the Website and for assistance in using theinternet to locate docket submissions.

Electronic copies of this FederalRegister document are available athttp://www.regulations.gov.Thisdocument, as well as news releases and

other relevant information, also areavailable at OSHAs Web page at http://www.osha.gov.

III. Summary of Statutory Changes toERA Whistleblower Provisions

Section 629 of Public Law 10958(119 Stat. 785) amended Section 211 ofthe ERA, 42 U.S.C. 5851 by making thechanges described below.

Revised Definition of Employer

Section 211 of the ERA defined acovered employer to include:licensees of the Nuclear RegulatoryCommission (Commission);applicants for such licenses, and theircontractors and subcontractors;contractors and subcontractors of theDepartment of Energy, except thoseinvolved in naval nuclear propulsionwork under Executive Order 12344;licensees of an agreement State underSection 274 of the Atomic Energy Act of1954; applicants for such licenses, andtheir contractors and subcontractors.The August 2005 amendments revisedthe definition ofemployer to extendcoverage to employees of contractorsand subcontractors of the Commission;the Commission; and the Department of

Energy.

De Novo Review

The August 2005 amendments addeda provision for de novo review by aUnited States District Court in the eventthat the Secretary has not issued a finaldecision within one year after the filingof a complaint, and there is no showingthat the delay is due to the bad faith ofthe complainant.

IV. Summary and Discussion ofRegulatory Provisions

The regulatory provisions in this part

have been revised in the interest ofconsistency to conform to theregulations implementing the employeeprotection provisions of the followingstatutes that are administered andenforced by the Secretary of Labor:Wendell H. Ford Aviation Investmentand Reform Act for the 21st Century(AIR21), codified at 29 CFR part 1979;the Sarbanes-Oxley Act of 2002(SOX), codified at 29 CFR part 1980;and the Pipeline Safety ImprovementAct of 2002 (PSIA), codified at 29CFR 1981. The section numbers of this

regulation also have been changed tocorrespond with the numbering underthe regulations implementing AIR21,SOX, and PSIA. Although theseregulations are intended to conform tothose implementing AIR21, SOX, andPSIA, they make one change interminology; they refer to actions

brought under the employee protection

provisions of these statutes as actionsalleging retaliation rather thandiscrimination. This change interminology, which is not intended tohave substantive effect, reflects thatclaims brought under these employeeprotection provisions are prototypicalretaliation claims. A retaliation claim isa specific type of discrimination claimthat focuses on actions taken as a resultof an employees protected activityrather than as a result of an employeescharacteristics (i.e., race, gender, orreligion). The burdens of proving aretaliation claim are the same as those

of a standard discrimination claim. SeeEssexv. United Parcel Service, Inc., 111F.3d 1304, 1308 (7th Cir. 1997).

Section 24.100 Purpose and Scope

This section (formerly 24.1)describes the purpose of the regulationsimplementing the employee protectionprovisions of seven statutes enforced bythe Secretary of Labor and provides anoverview of the procedures covered bythe regulations. The section has beenrevised to refer to the Federal WaterPollution Control Act, instead of theClean Water Act. They are synonymous,

but the Office of Administrative Law

Judges and the Administrative ReviewBoard generally use Federal WaterPollution Control Act, and we do sohere for the sake of consistency. Inaddition, the section has beenrenumbered to conform to thenumbering system for regulations thatimplement AIR21, SOX, and the PSIA.Thus, for example, former 24.1

becomes current 24.100.

Section 24.101 Definitions

This new section includes generaldefinitions applicable to the employeeprotection provisions of the seven

statutes listed in 24.100(a). Thissection does not include program-specific definitions, which may befound in the statutes.

Section 24.102 Obligations andProhibited Acts

This section (formerly 24.2)describes the whistleblower activity thatis protected under the statutes covered

by this Part and the type of conduct thatis prohibited in response to anyprotected activity. The languagegenerally has been revised to conform to

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the language in the regulations thatimplement the AIR21, SOX, and PSIAwhistleblower provisions. The changesare not intended to be substantive.References to the statutes listed in24.100(a) have deleted the adjectiveFederal as unnecessary. Paragraph (e)has been moved from former Sec. 24.9.We note that the ARB interprets the

phrase deliberate violations for thepurpose of denying protection to anemployee as including an element ofwillfulness. See Fields v. United StatesDepartment of Labor AdministrativeReview Board, 173 F.3d 811, 814 (11thCir. 1999) (petitioners knowinglyconducted unauthorized and potentiallydangerous experiments).

Section 24.103 Filing of RetaliationComplaint

This section (formerly 24.3) hasbeen revised to be consistent with theregulatory procedures implementing thewhistleblower provisions of the AIR21,SOX, and PSIA. Thus, the sectionheading has been changed fromComplaint to Filing of RetaliationComplaint. Also, paragraph (c) has

been changed to paragraph (b) and theheading has been changed from Formof Complaint to Nature of filing;paragraph (d) has been changed toparagraph (c); and paragraph (b) has

been changed to paragraph (d) and thelanguage has been changed to conformwith that appearing in the AIR21, SOX,and PSIA regulations. Finally,paragraph (e) Relationship to section11(c) complaints has been added to

explain the policy of the Secretaryregarding the relationship betweencomplaints filed under the statuteslisted in Sec. 24.100(a) and a complaintunder Section 11(c) of the OccupationalSafety and Health Act.

Section 24.104 Investigation

This section (formerly 24.4) hasbeen revised so that its language willconform more closely to the language ofthe regulations implementing AIR21,SOX, and PSIA. Additionally, formerparagraph (b) of24.5 has been revisedand moved to this section, and former

paragraph (d) of

24.4 has been revisedand moved to 24.105, where it moreappropriately appears under Issuanceof findings and orders.

This rule sets forth two differentstandards of causationmotivatingfactor and contributing factordepending on the whistleblower statuteunder which a complaint is filed. Wheninvestigating or adjudicatingwhistleblower complaints under the sixenvironmental whistleblower statutes,the Department of Labor relies on thetraditional standards derived from Title

VII and other discrimination law as setforth under Mt. Healthy City SchoolDistrict Board of Education v. Doyle,429 U.S. 274 (1977); Texas Dept ofCommunity Affairs v. Burdine, 450 U.S.248 (1981); and McDonnell DouglasCorp. v. Green, 411 U.S. 792 (1973). SeeDarteyv. Zack Co. of Chicago, No. 82ERA2, 1983 WL 189787, at *3*4

(Secy of Labor Apr. 25, 1983(discussing Burdine, 450 U.S. at 254255)). Under these standards, acomplainant seeking to prove retaliationmust first establish a prima facie casethat protected activity was a motivatingfactor in the adverse action, whichcreates a presumption of retaliation.See, e.g., St. Marys Honor Ctr. v. Hicks,509 U.S. 502 (1993). Once acomplainant establishes a prima faciecase, the employer has the burden ofproducing a legitimate, nonretaliatoryexplanation for its actions. If theemployer presents such evidence, the

presumption in favor of the complainantdisappears, and the complainant mustestablish by a preponderance of theevidence that the employersexplanation was a pretext, that is, thatthe real reason for the adverse actionwas retaliation. A prima facie case,together with proof that the employersexplanation is pretext, permits (but doesnot require) a trier of fact to findretaliation. See Reeves v. SandersonPlumbing Products, Inc., 530 U.S. 133,147148 (2000); St. Marys HonorCenter, 509 U.S. at 519 (It is notenough * * * to disbelieve the

employer; the factfinder must believethe plaintiffs explanation of intentionaldiscrimination.); Darteyv. Zack, supra.Thus, under these principles, anemployee must prove by apreponderance of the evidence thatretaliation was a motivating factor forthe adverse employment action. TheSecretary can conclude from theevidence that the employers reason forthe retaliation was a pretext and rule forthe employee, or that the employer wasnot motivated in whole or in part byprotected activity and rule for theemployer, or that an employer acted outof mixed motives. See Darteyv. Zack,1983 WL 189787, at *4. If the Secretaryconcludes that the employer acted outof mixed motives, the employer canescape liability by proving, by apreponderance of the evidence, that itwould have reached the same decisioneven in the absence of protectedactivity. Id. (discussing Mt. Healthy, 429U.S. at 287).

Paragraph (b) of this section, whichsets forth procedures that apply only inERA cases, applies the ERAs statutory

burdens of proof. Since the 1992

amendments to the ERA, itswhistleblower provisions, in contrast tothe other whistleblower provisionslisted under Sec. 24.100(a), havecontained specific statutory standardsfor the dismissal and adjudication ofcomplaints and for the resolution ofmixed motive or dual motive cases. See42 U.S.C. 5851(b)(3)(A) through

(b)(3)(D); Public Law 102486, section2902, 106 Stat. at 31233124. The ERArequires that a complainant make aninitial prima facie showing thatprotected activity was a contributingfactor in the unfavorable personnelaction alleged in the complaint, i.e., thatwhistleblowing activity, alone or incombination with other factors, affectedin some way the outcome of theemployers personnel decision. 42U.S.C. 5851(b)(3)(A). If the complainantdoes not make the prima facie showing,the investigation must be discontinuedand the complaint dismissed. See

Trimmerv. United States Dept of Labor,174 F.3d 1098, 1101 (10th Cir. 1999)(noting that the distinct burden-shiftingframework of the 1992 ERAamendments served a gatekeepingfunction that stemmed frivolouscomplaints). Even in cases where thecomplainant successfully makes a primafacie showing, the investigation must bediscontinued if the employerdemonstrates, by clear and convincingevidence, that it would have taken thesame unfavorable personnel action inthe absence of the protected activity. 42U.S.C. 5851(b)(3)(B). Thus, under the

ERA, the Secretary must dismiss thecomplaint and not investigate (or ceaseinvestigating) if either: (1) Thecomplainant fails to meet the primafacie showing that protected activitywas a contributing factor in theunfavorable personnel action; or (2) theemployer rebuts that showing by clearand convincing evidence that it wouldhave taken the same unfavorablepersonnel action absent the protectedactivity.

Assuming that an investigationproceeds beyond the gatekeeping phase,the ERA provides statutory burdens of

proof that require an employee to provethat the alleged protected activity was acontributing factor to the allegedadverse action. 42 U.S.C. 5851(b)(3)(C).If the employee proves that the allegedprotected activity was a contributingfactor to the adverse action, theemployer, to escape liability, mustprove by clear and convincingevidence that it would have taken thesame action in the absence of theprotected activity. A contributing factoris any factor, which alone or incombination with other factors, tends to



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affect in any way the outcome of thedecision.Marano v. Dept of Justice, 2F.3d 1137, 1140 (Fed. Cir. 1993)(Whistleblower Protection Act, 5 U.S.C.1221(e)(1)); cf. Trimmer, 174 F.3d at1101 (the 1992 amendments aimed, inpart, to make it easier for [ERA]whistleblowers to prevail in theirdiscrimination suits)). In proving that

protected activity was a contributingfactor in the adverse action, acomplainant need not necessarily provethat the respondents articulated reasonwas a pretext in order to prevail,

because a complainant alternatively canprevail by showing that therespondents reason, while true, is onlyone of the reasons for its conduct, andthat another reason was complainantsprotected activity. See Klopfenstein v.PCC Flow Techs. Holdings, Inc., No. 04149, 2006 WL 1516650, *13 (ARB May31, 2006) (discussing contributing factortest under SOX) (citing Rachidv.Jack

in the Box, Inc., 376 F.3d 305, 312 (5thCir. 2004).

The ERA statutory burdens of proofdo not address the evidentiary standardthat applies to a complainants proofthat protected activity was acontributing factor in an adverse action.The Secretary therefore adheres totraditional Title VII discrimination lawfor that determination, i.e., thecomplainant must prove by apreponderance of the evidence thathis protected activity contributed to histermination; otherwise, the burdennever shifts to the employer to establish

its clear and convincing evidencemixed-motive defense. See, e.g., Dysertv. United States Secretary of Labor, 105F.3d 607, 609 (11th Cir. 1997)(upholding Departments interpretationof 42 U.S.C. 5851(b)(3)(C), as requiringan employee to prove by apreponderance of the evidence thatprotected activity was a contributingfactor in an adverse action); see alsoTrimmer, 174 F.3d at 1102 ([o]nly ifthe complainant meets his burden [ofproving by a preponderance of theevidence that he engaged in protectedactivity that was a contributing factor in

an unfavorable employment decision]does the burden then shift to theemployer to demonstrate by clear andconvincing evidence that it would havetaken the same unfavorable personnelaction in the absence of such

behavior.); Stone & WebsterEngineering Corp. v. Herman, 115 F.3d1568, 1572 (11th Cir. 1997) (undersection 5851, an employee must firstpersuade the Secretary that protectedactivity was a contributing factor in anadverse action and then, if the employeesucceeds, the employer must prove by

clear and convincing evidence that itwould have taken the same action in theabsence of protected activity).

Under traditional Title VII burdenshifting principles applicable to the sixenvironmental whistleblower statutes, ifthe Secretary concludes that theemployer acted for both prohibited andlegitimate reasons (i.e., a mixed

motive case), the employer can escapeliability by proving, by a preponderanceof the evidence, that it would havereached the same decision even in theabsence of the protected conduct. SeeDarteyv. Zack, 1983 WL 189787, at *4(discussing Mt. Healthy, 429 U.S. at287). However, the 1992 ERAamendments altered the employers

burden in a mixed motive case; underthe ERA, once the Secretary concludesthat the employer acted for bothprohibited and legitimate reasons, theemployer can escape liability only byproving by clear and convincing

evidence that it would have reached thesame decision even in the absence of theprotected activity. 42 U.S.C.5851(b)(3)(D). The clear andconvincing evidence standard is ahigher burden of proof for employersthan the former preponderance of theevidence standard. See 138 Cong. Rec.32,081, 32,082 (1992).

Section 24.105 Issuance of Findingsand Orders

The procedures set forth in thissection formerly appeared under aparagraph of24.4, the Investigationssection. This new section was created

for purposes of clarification andconsistency with the regulationsimplementing the AIR21, SOX, andPSIA whistleblower provisions. Theformer regulations provided that theAssistant Secretary would issue aNotice of Determination at theconclusion of the investigation, or upondismissal of a complaint. Theseregulations no longer use the termNotice of Determination. Instead, theregulations refer to the issuance offindings and orders, the nomenclatureused in the regulations implementingAIR21, SOX, and PSIA. This change in

nomenclature is not intended to besubstantive.The 30-day timeframe for completion

of the investigation has been retainedbecause it is a statutory requirementunder the majority of the whistleblowerstatutes covered by this part (the SolidWaste Disposal Act, the Federal WaterPollution Control Act, and theComprehensive EnvironmentalResponse, Compensation and LiabilityAct have no timeframe). The currentregulations provide a 5-business-daytimeframe for filing objections to the

findings. These new regulations havebeen changed to provide that if noobjections to the Assistant Secretarysfindings and order are filed within 30days of their receipt, the findings andorder of the Assistant Secretary will

become the final order of the Secretary.Thus, the timeframe for objecting to thefindings and/or order and for requesting

a hearing has been extended from 5business days to 30 days. The Secretaryis aware that, since the ERA, the CleanAir Act (CAA), the Safe DrinkingWater Act (SDWA), and the ToxicSubstances Control Act (TSCA)provide that the Secretary should issuea final decision within 90 days of thefiling of the complaint, allowing theparties 30 days in which to object to theAssistant Secretarys findings and anyorder issued may have an impact on theDepartments meeting the 90-daytimeframe. Although the ERAamendments in 2005 did not change the

90-day timeframe, the Secretary believesthat in amending the ERA in 2005,Congress recognized that itappropriately could take up to one yearto complete the investigatory andadjudicative processing of awhistleblower complaint (i.e., issue afinal decision of the Secretary) underthese environmental statutes.Accordingly, the Secretary believes thatallowing 30 days for a party to object tothe Assistant Secretarys findings andrequest a hearing is warranted. Not onlydoes the extension make the regulationsmore consistent with those

implementing AIR21, SOX, and PSIA, italso offers the parties a more reasonabletimeframe in which to consider whetherto appeal the Assistant Secretarysfindings.

Subpart BLitigation

Section 24.106 Objections to theFindings and Order and Request for aHearing

Formerly, the procedures forrequesting a hearing before anadministrative law judge (ALJ) wereset forth under 24.6. As indicatedabove, to be effective, objections to the

findings of the Assistant Secretary mustbe in writing and must be filed with theChief Administrative Law Judge, U.S.Department of Labor, 800 K Street, NW.,Washington, DC 20001 within 30 daysof receipt of the findings. The date ofthe postmark, facsimile transmittal, or e-mail communication is considered thedate of the filing. The filing ofobjections is also considered a requestfor a hearing before an ALJ. Althoughthe parties are directed to serve a copyof their objections to the other parties ofrecord, as well as the OSHA official who



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issued the findings and order, theAssistant Secretary, and the AssociateSolicitor, Division of Fair LaborStandards, U.S. Department of Labor, N2716, 200 Constitution Ave., NW.,Washington, DC 20210, the failure toserve copies of the objections to theother parties of record does not affectthe ALJs jurisdiction to hear and decide

the merits of the case. See Shiraniv.Calvert Cliffs Nuclear Power Plant, Inc.,No. 04101, 2005 WL 2865915, *7 (ARBOct. 31, 2005).

Section 24.107 Hearings

This section has been revised toconform to the regulationsimplementing the whistleblowerprovisions under AIR21, SOX, andPSIA. It adopts the rules of practice ofthe Office of Administrative Law Judgesat 29 CFR Part 18, Subpart A. In orderto assist in obtaining full developmentof the facts in whistleblowerproceedings, formal rules of evidence donot apply. The section specificallyprovides for consolidation of hearings if

both the complainant and respondentobject to the findings and/or order of theAssistant Secretary. Otherwise, thissection no longer addresses proceduralissues, e.g., place of hearing, right tocounsel, procedures, evidence andrecord of hearing, oral arguments and

briefs, and dismissal for cause, becausethe Office of Administrative Law Judgeshas adopted its own rules of practicethat cover these matters. In order forhearings to be conducted asexpeditiously as possible, and

particularly in light of the uniqueprovision in the ERA allowingcomplainants to seek a de novo hearingin federal court if the Secretary has notissued a final decision within one yearof the filing of the complaint, thissection provides that the ALJ has broadauthority to limit discovery. Forexample, an ALJ may limit the numberof interrogatories, requests forproduction of documents, ordepositions allowed. An ALJ also mayexercise discretion to limit discoveryunless the complainant agrees to delayfiling a complaint in federal court for

some definite period of time beyond theone-year point. If a complainant seeksexcessive or burdensome discoveryunder the ALJs rules and procedures atpart 18 of Title 29, or fails to adhere toan agreement to delay filing a complaintin federal court, a district courtconsidering a request for de novo reviewmight conclude that such conductresulted in a delay due to the claimants

bad faith.Former paragraphs (f) and (g) of this

section have been moved to section24.108.

Section 24.108 Role of FederalAgencies

This new section was added toconform these regulations to thoseimplementing AIR21, SOX, and PSIA.As noted above, the substance of thissection formerly was set forth underparagraphs (f) and (g) of24.6, thesection covering hearings. Nosubstantive changes are intended. Underthe ERA and the environmentalwhistleblower statutes, OSHA does notordinarily appear as a party in theproceeding. The Secretary has foundthat in most whistleblower cases, partieshave been ably represented and thepublic interest has not required theDepartments participation.Nevertheless, the Assistant Secretary, athis or her discretion, may participate asa party or amicus curiae at any time inthe administrative proceedings. Forexample, the Assistant Secretary mayexercise his or her discretion to

prosecute the case in the administrativeproceeding before an ALJ; petition forreview of a decision of an ALJ,including a decision based on asettlement agreement between thecomplainant and the respondent,regardless of whether the AssistantSecretary participated before the ALJ; orparticipate as amicus curiae before theALJ or in the Administrative ReviewBoard proceeding. Although weanticipate that ordinarily the AssistantSecretary will not participate, theAssistant Secretary may choose to do soin appropriate cases, such as cases

involving important or novel legalissues, large numbers of employees,alleged violations which appearegregious, or where the interests ofjustice might require participation bythe Assistant Secretary. TheEnvironmental Protection Agency, theNuclear Regulatory Commission, andthe Department of Energy, at thoseagencies discretion, also mayparticipate as amicus curiae at any timein the proceedings.

Section 24.109 Decision and Order ofthe Administrative Law Judge

This section sets forth the content ofthe decision and order of the ALJ, andincludes the standard for finding aviolation under the environmentalstatutes and the ERA. The sectionfurther provides that the AssistantSecretarys determination to dismiss thecomplaint without an investigation orwithout a complete investigationpursuant to 24.104 is not subject toreview. Thus, paragraph (c) of section24.109 clarifies that the AssistantSecretarys determinations on whetherto proceed with an investigation under

the ERA and whether to make particularinvestigative findings under any of thestatutes subject to this Part arediscretionary decisions not subject toreview by the ALJ. The ALJ hears casesde novo and, therefore, as a generalmatter, may not remand cases to theAssistant Secretary to conduct aninvestigation or make further factual

findings. A full discussion of theburdens of proof used by theDepartment of Labor to resolvewhistleblower cases under this part isset forth above in the discussion of24.104.

This section also has been revised toeliminate the requirement under theERA for the ALJ to issue a preliminaryorder of reinstatement separate from thefindings. The section clarifies that whenan ALJs decision finds that thecomplaint has merit and orders relief,the order will be effective immediatelyupon its receipt by the respondent,

except for that part of the orderawarding compensatory damages.Congress intended that whistleblowersunder the ERA be reinstated andprovided additional interim relief basedupon the ALJs order even while thedecision is on review with theAdministrative Review Board. Theprevious regulations have causedconfusing delays to the complainantsright to immediate reinstatement. See,e.g., McNeillv. Crane Nuclear, Inc., No.02002, 2002 WL 31932543, *1*2(Adm. Rev. Bd. Apr. 24, 2006). TheSecretary intends that, by eliminating

any requirement that the ALJ shall alsoissue a preliminary order providing allof the relief specified in therecommended order before an interimorder becomes effective, confusion will

be avoided and congressional intent tohave complainants promptly reinstated

based upon a meritorious ALJ decisionwill be better effectuated. Furthermore,the ALJs order will be effectiveimmediately whether or not the ALJdesignates the decision and/or order asrecommended. As the AdministrativeReview Board recently recognized,every decision of an ALJ is

recommended until it becomes the finaldecision of the Secretary. Welch v.Cardinal Bankshares Corp., No. 06062,2006 WL 861374, * 3 n. 13 (Adm. Rev.Bd. Mar. 31, 2006) (The APAauthorizes ALJs to issue recommendeddecisions. See 5 U.S.C. 554(d) (Theemployee [i.e. ALJ] who presides at thereception of evidence pursuant tosection 556 of this title shall make therecommended decision or initialdecision required by section 557 of thistitle.* * * (emphasis added); 5 U.S.C.557(c) (Before a recommended, initial,



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or tentative decision, or a decision onagency review of the decision ofsubordinate employees * * *. Alldecisions, including initial,recommended, and tentative decisions,are a part of the record. * * *)(emphasis added).).

The substance of the rest of thissection was formerly found in section

24.7. The requirement that the ALJ issuea decision within 20 days after theconclusion of the hearing has beeneliminated because procedures forissuing decisions, including theirtimeliness, is addressed by the Rules ofPractice and Procedure forAdministrative Hearings Before theOffice of Administrative Law Judges at29 CFR 18.57.

Section 24.110 Decision and Orders ofthe Administrative Review Board

The decision of the ALJ is the finaldecision of the Secretary if no timelypetition for review is filed with theAdministrative Review Board. Upon theissuance of the ALJs decision, theparties have 10 business days withinwhich to petition the Board for reviewof that decision, or it becomes the finaldecision of the Secretary and is notsubject to judicial review. The date ofthe postmark, facsimile transmittal, or e-mail communication will be consideredto be the date of filing; if the petition isfiled in person, by hand-delivery orother means, the petition is consideredfiled upon receipt. The appealprovisions in this part have beenrevised, consistent with the

whistleblower provisions of AIR21, SOXand PSIA, to provide that an appeal tothe Board is no longer a matter of right

but is accepted at the discretion of theBoard. Congress intended thesewhistleblower actions to be expeditedand this change may assist in furtheringthat goal. To facilitate review, theparties must specifically identify thefindings and conclusions to which theytake exception, or the exceptionsordinarily will be deemed waived by theparties. The Board has 30 days to decidewhether to grant the petition for review.If the Board does not grant the petition,

the decision of the ALJ becomes thefinal decision of the Secretary. The ERA,CAA, SDWA, and TSCA contain a 90-day timeframe for issuing final agencydecisions. Notwithstanding this shorttimeframe, the Secretary believes that itis appropriate to give the Board 30 daysin which to decide whether to grantreview; as stated above, the Secretary

believes that in amending the ERA inAugust 2005, Congress recognized thatthe Department appropriately could takeup to one year to complete theinvestigatory and adjudicative

processing of a whistleblower complaintunder these statutes. If a timely petitionfor review is filed with the Board, anyrelief ordered by the ALJ, except for thatordered under the ERA, is inoperativewhile the matter is pending before theBoard. The relief ordered by the ALJunder the ERA is effective immediatelyexcept for that portion awarding

compensatory damages. This sectionfurther provides that, when the Boardaccepts a petition for review, its factualdeterminations will be reviewed underthe substantial evidence standard. Thisstandard also is applied to Board reviewof ALJ decisions under thewhistleblower provisions of AIR21,SOX, and PSIA.

This section also provides that in theexceptional case, the Board may grant amotion to stay an ALJs order of reliefunder the ERA, which otherwise will beeffective, while review is conducted bythe Board. The Secretary believes that a

stay of an ALJs order of relief under theERA only would be appropriate wherethe respondent can establish thenecessary criteria for equitableinjunctive relief, i.e., irreparable injury,likelihood of success on the merits, anda balancing of possible harms to theparties and the public favors a stay.

Subpart CMiscellaneous Provisions

Section 24.111 Withdrawal ofComplaints, Objections, and Findings;Settlement

This section provides for proceduresand time periods for withdrawal of

complaints, the withdrawal of findingsby the Assistant Secretary, and thewithdrawal of objections to findings. Italso provides for approval of settlementsat the investigative and adjudicativestages of the case. The regulationsreflect that settlement agreements underthe statutory provisions of the ERA,CAA, SDWA, and TSCA must bereviewed and approved by the Secretaryto ensure that they are just andreasonable and in the public interest.See Beliveau v. United States Dept ofLabor, 170 F.3d 83, 86 (1st Cir. 1999);Macktalv. Secretary of Labor, 923 F.2d

1150, 1154 (5th Cir. 1991). Although ithas been OSHAs practice to reviewsettlements for approval under all theenvironmental whistleblower statutes, itis required by statute only under theones noted above. See Bertacchiv. Cityof Columbus-Division of Sewerage &Drainage, ARB Case No. 05155 (April13, 2006). Notwithstanding thisstatutory distinction, the Departmentencourages the parties to submit allsettlements for review and approval,even those arising under the CERCLA,SWDA, and FWPCA. We note that a

settlement that has not been reviewedand approved by the Secretary will not

be considered a final order enforceableunder section 24.113.

Section 24.112 Judicial Review

This section describes the statutoryprovisions for judicial review of

decisions of the Secretary and requires,in cases where judicial review is sought,the Administrative Review Board tosubmit the record of proceedings to theappropriate court pursuant to theFederal Rules of Appellate Procedureand the local rules of such court.Paragraph (d) reflects that originaljurisdiction for judicial review of adecision issued under theComprehensive EnvironmentalResponse, Compensation and LiabilityAct is with the district courts ratherthan the appellate courts. See 42 U.S.C.9610(b) and 9613(b). The paragraph also

reflects, however, that when an agencydecision is based on other statutes thatprovide for direct review in the court ofappeals, principles of judicial economyand consistency justify review of theentire proceeding in the court ofappeals. See Ruudv. United StatesDept of Labor, 347 F.3d 1086, 1090 (9thCir. 2003) ([T]he court of appealsshould entertain a petition to review anagency decision made pursuant to theagencys authority under two or morestatutes, at least one of which providesfor direct review in the court of appeals,where the petition involves a common

factual background and raises acommon legal question. Consolidatedreview of such a petition avoidsinconsistency and conflicts between thedistrict and appellate courts whileensuring the timely and efficientresolution of administrative cases.); seealso Shell Oil Co. v. F.E.R.C., 47 F.3d1186, 1195 (D.C. Cir. 1995) ([W]hen anagency decision has two distinct bases,one of which provides for exclusivejurisdiction in the court of appeals, theentire decision is reviewable exclusivelyin the appellate court.) (citations and

internal question marks omitted).Section 24.113 Judicial Enforcement

This section describes the Secretaryspower under several of the statuteslisted in Sec. 24.100(a) to obtain judicialenforcement of orders and the terms ofa settlement agreement. It also providesfor enforcement of orders of theSecretary by the person on whose behalfthe order was issued under the ERA andthe CAA.



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Section 24.114 District CourtJurisdiction of Retaliation ComplaintsUnder the Energy Reorganization Act

This section sets forth the ERAprovision allowing complainants to

bring an action in district court for denovo review if there has been no finaldecision of the Secretary within oneyear of the filing of the complaint andthere is no delay due to thecomplainants bad faith. It provides thatcomplainants will give notice 15 days inadvance of their intent to file acomplaint in district court. Thisprovision authorizing a federal courtcomplaint is similar to one under thewhistleblower provisions of SOX, but isotherwise unique among thewhistleblower statutes administered bythe Secretary. This statutory schemecreates the possibility that acomplainant will have litigated a claim

before the agency, will receive adecision from an ALJ, and will then file

a complaint in district court while thecase is pending review by the Board.The Act might even be interpreted toallow a complainant to bring an actionin federal court after receiving a finaldecision from the Board, if that decisionwere issued more than one year after thefiling of the complaint. The Secretary

believes that it would be a waste of theresources of the parties, the Department,and the courts for complainants topursue duplicative litigation. TheSecretary notes that the courts haverecognized that, when a party has hada full and fair opportunity to litigate a

claim, an adversary should be protectedfrom the expense and vexation ofmultiple lawsuits and that the publicinterest is served by preserving judicialresources by prohibiting the sameparties making the same claims. SeeMontana v. United States, 440 U.S. 147,153 (1979). When an administrativeagency acts in a judicial capacity andresolves disputed issues of fact properly

before it, which the parties have had anadequate opportunity to litigate, thecourts have not hesitated to apply theprinciples of issue preclusion (collateralestoppel) or claim preclusion (res

judicata) on the basis of thatadministrative decision. See Universityof Tennessee v. Elliott, 478 U.S. 788,799 (1986) (citing United States v. UtahConstruction and Mining Co., 384 U.S.394, 422 (1966)). Therefore, theSecretary anticipates that federal courtswill apply such principles if acomplainant brings a new action infederal court following extensivelitigation before the Department that hasresulted in a decision by an ALJ or theSecretary. Where an administrativehearing has been completed and a

matter is pending before an ALJ or theBoard for a decision, a federal court alsomight treat a complaint as a petition formandamus and order the Department toissue a decision under appropriate timeframes.

Section 24.115 Special Circumstances;Waiver of Rules

This section provides that incircumstances not contemplated bythese rules or for good cause the ALJ orthe Board may, upon application andnotice to the parties, waive any rule asjustice or the administration of thestatutes listed in 24.100(a) requires.

APPENDIX AYour Rights Under theERA

The notice that employers arerequired to post under section 211(i) ofthe ERA has been revised to reflect the2005 amendments. Specifically, thenotice now reflects that the definition ofemployer has been expanded and thatthe employee has a right to file acomplaint in district Court if theSecretary has not issued a final decisionwithin one year of the filing of thecomplaint and the delay is not due tothe bad faith of the employee. As notedabove, we also have substituted the termretaliation for discrimination.

V. Paperwork Reduction Act

This rule contains a reportingprovision (filing a retaliation complaint,24.103) which was previouslyreviewed and approved for use by theOffice of Management and Budget

(OMB) under 29 CFR 24.3 andassigned OMB control number 12180236 under the provisions of thePaperwork Reduction Act of 1995 (Pub.L. 10413).

VI. Administrative Procedure Act

The notice and comment rulemakingprocedures of Section 553 of theAdministrative Procedure Act (APA)do not apply to interpretative rules,general statements of policy, or rules ofagency organization, procedure, orpractice[.] 5 U.S.C. 553(b)(A). This is arule of agency procedure and practice

within the meaning of Section 553(b)(A)of the APA; the agency does not havelegislative rulemaking authority underthe applicable statutes. Thereforepublication in the Federal Register of anotice of proposed rulemaking andrequest for comments is not required.Although this rule is not subject to thenotice and comment procedures of theAPA, we are providing personsinterested in this interim final rule 60days to submit comments. In so doing,we are following the agencys practicewhen it recently promulgated rules for

the handling of whistleblowercomplaints under SOX, AIR21, andPSIA. Specifically, those rules,procedural in nature like this rule, werepublished as interim final rules;however, persons were given 60 days inwhich to submit comments. TheDepartment carefully reviewed thosecomments and then issued its final

rules. Similarly, in this instance, a finalrule will be published after the agencyreceives and carefully reviews thepublics comments.

Furthermore, because this rule isprocedural rather than substantive, thenormal requirement of 5 U.S.C. 553(d)that a rule be effective 30 days afterpublication in the Federal Register isinapplicable. The Assistant Secretaryalso finds good cause to provide animmediate effective date for this rule. Itis in the public interest that the rule beeffective immediately so that partiesmay know what procedures are

applicable to pending cases.VII. Executive Order 12866; UnfundedMandates Reform Act of 1995; SmallBusiness Regulatory EnforcementFairness Act of 1996; Executive Order13132

The Department has concluded thatthis rule is not a significant regulatoryaction within the meaning of ExecutiveOrder 12866 because it is not likely toresult in a rule that may: (1) Have anannual effect on the economy of $100million or more or adversely affect in amaterial way the economy, a sector ofthe economy, productivity, competition,

jobs, the environment, public health orsafety, or State, local, or tribalgovernments or communities; (2) createa serious inconsistency or otherwiseinterfere with an action taken orplanned by another agency; (3)materially alter the budgetary impact ofentitlements, grants, user fees, or loanprograms or the rights and obligations ofrecipients thereof; or (4) raise novellegal or policy issues arising out of legalmandates, the Presidents priorities, orthe principles set forth in ExecutiveOrder 12866. Therefore, no regulatoryimpact analysis has been prepared.

VIII. Regulatory Flexibility AnalysisThe Department has determined that

the regulation will not have a significanteconomic impact on a substantialnumber of small entities. The regulationprimarily implements proceduresnecessitated by statutory amendmentsenacted by Congress. Additionally, theregulatory revisions are necessary forthe sake of consistency with theregulatory provisions governingprocedures under the otherwhistleblower statutes administered by



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the Secretary. Furthermore, nocertification to this effect is requiredand no regulatory flexibility analysis isrequired because no proposed rule has

been issued.

Document Preparation. Thisdocument was prepared under thedirection of the Assistant Secretary,

Occupational Safety and HealthAdministration, U.S. Department ofLabor.

List of Subjects in 29 CFR Part 24

Administrative practice andprocedure, Employment, EnvironmentalProtection, Investigations, Reportingand recordkeeping requirements,Whistleblowing.

Signed in Washington, DC, this 2nd day ofAugust, 2007.

Edwin G. Foulke, Jr.,

Assistant Secretary for Occupational Safetyand Health.

I Accordingly, for the reasons set out inthe preamble part 24 of title 29 of theCode of Federal Regulations is revisedto read as follows:

PART 24PROCEDURES FOR THEHANDLING OF RETALIATIONCOMPLAINTS UNDER FEDERALEMPLOYEE PROTECTION STATUTES

Subpart AComplaints, Investigations,Issuance of Findings

Sec.24.100 Purpose and scope.24.101 Definitions.24.102 Obligations and prohibited acts.24.103 Filing of retaliation complaint.24.104 Investigation.24.105 Issuance of findings and orders.

Subpart BLitigation

24.106 Objections to the findings and orderand request for a hearing.

24.107 Hearings.24.108 Role of Federal agencies.24.109 Decision and orders of the

administrative law judge.24.110 Decision and orders of the

Administrative Review Board.


24.111 Withdrawal of complaints,objections, and findings; settlement.

24.112 Judicial review.24.113 Judicial enforcement.24.114 District court jurisdiction of

retaliation complaints under the EnergyReorganization Act.

24.115 Special circumstances; waiver ofrules.

Appendix A to Part 24Your Rights Underthe Energy Reorganization Act.

Authority: 15 U.S.C. 2622; 33 U.S.C. 1367;42 U.S.C. 300j9(i), 5851, 6971, 7622, 9610.

Subpart AComplaints,Investigations, Issuance of Findings

24.100 Purpose and scope.

(a) This part implements proceduresunder the employee protectionprovisions for which the Secretary ofLabor has been given responsibilitypursuant to the following federal

statutes: Safe Drinking Water Act, 42U.S.C. 300j9(i); Federal WaterPollution Control Act, 33 U.S.C. 1367;Toxic Substances Control Act, 15 U.S.C.2622; Solid Waste Disposal Act, 42U.S.C. 6971; Clean Air Act, 42 U.S.C.7622; Energy Reorganization Act of1974, 42 U.S.C. 5851; andComprehensive EnvironmentalResponse, Compensation and LiabilityAct of 1980, 42 U.S.C. 9610.

(b) This part establishes procedurespursuant to the federal statutoryprovisions listed in paragraph (a) of thissection for the expeditious handling of

retaliation complaints made byemployees, or by persons acting on theirbehalf. These rules, together with thoserules codified at 29 CFR part 18, setforth the procedures for submission ofcomplaints under the federal statutoryprovisions listed in paragraph (a) of thissection, investigations, issuance offindings, objections to findings,litigation before administrative lawjudges, issuance of decisions and orders,post-hearing administrative review, andwithdrawals and settlements.

24.101 Definitions.

Assistant Secretarymeans the

Assistant Secretary of Labor forOccupational Safety and Health or theperson or persons to whom he or shedelegates authority under any of thestatutes listed in 24.100(a).

Complainantmeans the employeewho filed a complaint under any of thestatutes listed in 24.100(a) or on whose

behalf a complaint was filed.OSHA means the Occupational Safety

and Health Administration of theUnited States Department of Labor.

Respondentmeans the employernamed in the complaint, who is allegedto have violated any of the statutes

listed in 24.100(a).Secretarymeans the Secretary ofLabor or persons to whom authorityunder any of the statutes listed in24.100(a) has been delegated.

24.102 Obligations and prohibited acts.

(a) No employer subject to theprovisions of any of the statutes listedin 24.100(a), or to the Atomic EnergyAct of 1954 (AEA), 42 U.S.C. 2011 etseq., may discharge or otherwiseretaliate against any employee withrespect to the employees compensation,

terms, conditions, or privileges ofemployment because the employee, orany person acting pursuant to theemployees request, engaged in any ofthe activities specified in this section.

(b) It is a violation for any employerto intimidate, threaten, restrain, coerce,

blacklist, discharge, or in any othermanner retaliate against any employee

because the employee has:(1) Commenced or caused to be

commenced, or is about to commence orcause to be commenced, a proceedingunder one of the statutes listed in24.100(a) or a proceeding for theadministration or enforcement of anyrequirement imposed under suchstatute;

(2) Testified or is about to testify inany such proceeding; or

(3) Assisted or participated, or isabout to assist or participate, in anymanner in such a proceeding or in anyother action to carry out the purposes of

such statute.(c) Under the Energy Reorganization

Act, and by interpretation of theSecretary under any of the other statuteslisted in 24.100(a), it is a violation forany employer to intimidate, threaten,restrain, coerce, blacklist, discharge, orin any other manner retaliate againstany employee because the employeehas:

(1) Notified the employer of analleged violation of such statute or theAEA of 1954;

(2) Refused to engage in any practicemade unlawful by such statute or the

AEA of 1954, if the employee hasidentified the alleged illegality to theemployer; or

(3) Testified or is about to testifybefore Congress or at any federal or stateproceeding regarding any provision (orproposed provision) of such statute orthe AEA of 1954.

(d)(1) Every employer subject to theEnergy Reorganization Act of 1974, asamended, shall prominently post andkeep posted in any place of employmentto which the employee protectionprovisions of the Act apply, a fullylegible copy of the notice prepared by

OSHA, printed as appendix A to thispart, or a notice approved by theAssistant Secretary that containssubstantially the same provisions andexplains the employee protectionprovisions of the Act and theregulations in this part. Copies of thenotice prepared by OSHA may beobtained from the Assistant Secretaryfor Occupational Safety and Health, U.S.Department of Labor, Washington, DC20210, from local OSHA offices, or fromOSHAs Web site at http://www.osha.gov.

http://www.osha.gov/http://www.osha.gov/http://www.osha.gov/http://www.osha.gov/http://www.osha.gov/http://www.osha.gov/


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(2) Where the notice required byparagraph (d)(1) of this section has not

been posted, the requirement in24.103(d)(2) that a complaint be filedwith the Assistant Secretary within 180days of an alleged violation will beinoperative, unless the respondentestablishes that the complainant hadknowledge of the material provisions of

the notice. If it is established that thenotice was posted at the employeesplace of employment after the allegedretaliatory action occurred or that thecomplainant later obtained knowledgeof the provisions of the notice, the 180days will ordinarily run from whicheverof those dates is relevant.

(e) This part shall have no applicationto any employee who, acting withoutdirection from his or her employer (orthe employers agent), deliberatelycauses a violation of any requirement ofany of the statutes listed in 24.100(a)or the AEA of 1954.

24.103 Filing of retaliation complaint.

(a) Who may file. An employee whobelieves that he or she has beenretaliated against by an employer inviolation of any of the statutes listed in24.100(a) may file, or have filed by anyperson on the employees behalf, acomplaint alleging such retaliation.

(b) Nature of Filing. No particularform of complaint is required, exceptthat a complaint must be in writing andshould include a full statement of theacts and omissions, with pertinentdates, which are believed to constitutethe violations.

(c) Place of Filing. The complaintshould be filed with the OSHA AreaDirector responsible for enforcementactivities in the geographical area wherethe employee resides or was employed,

but may be filed with any OSHA officeror employee. Addresses and telephonenumbers for these officials are set forthin local directories and at the followingInternet address: http://www.osha.gov.

(d) Time for Filing. (1) Except asprovided in paragraph (d)(2) of thissection, within 30 days after an allegedviolation of any of the statutes listed in24.100(a) occurs (i.e., when the

retaliatory decision has been both madeand communicated to the complainant),an employee who believes that he or shehas been retaliated against in violationof any of the statutes listed in24.100(a) may file, or have filed by anyperson on the employees behalf, acomplaint alleging such retaliation. Thedate of the postmark, facsimiletransmittal, or e-mail communicationwill be considered to be the date offiling; if the complaint is filed in person,

by hand-delivery, or other means, thecomplaint is filed upon receipt.

(2) Under the Energy ReorganizationAct, within 180 days after an allegedviolation of the Act occurs (i.e., whenthe retaliatory decision has been bothmade and communicated to thecomplainant), an employee who

believes that he or she has beenretaliated against in violation of the Actmay file, or have filed by any person on

the employees behalf, a complaintalleging such retaliation. The date of thepostmark, facsimile transmittal, or e-mail communication will be consideredto be the date of filing; if the complaintis filed in person, by hand-delivery, orother means, the complaint is filed uponreceipt.

(e) Relationship to section 11(c)complaints. A complaint filed underany of the statutes listed in 24.100(a)alleging facts that would constitute aviolation of section 11(c) of theOccupational Safety and Health Act, 29U.S.C. 660(c), will be deemed to be both

a complaint filed under any of thestatutes listed in 24.100(a) and section11(c). Similarly, a complaint filed undersection 11(c) that alleges facts thatwould constitute a violation of any ofthe statutes listed in 24.100(a) will bedeemed to be both a complaint filedunder any of the statutes listed in24.100(a) and section 11(c). Normalprocedures and timeliness requirementsfor investigations under the respectivestatutes and regulations will befollowed.

24.104 Investigation.

(a) Upon receipt of a complaint in theinvestigating office, the AssistantSecretary will notify the respondent ofthe filing of the complaint, of theallegations contained in the complaint,and of the substance of the evidencesupporting the complaint (redacted toprotect the identity of any confidentialinformants). A copy of the notice to therespondent will also be provided to theappropriate office of the federal agencycharged with the administration of thegeneral provisions of the statute(s)under which the complaint is filed.

(b) Within 20 days of receipt of thenotice of the filing of the complaintprovided under paragraph (a) of thissection the respondent may submit tothe Assistant Secretary a writtenstatement and any affidavits ordocuments substantiating its position.Within the same 20 days, therespondent may request a meeting withthe Assistant Secretary to present itsposition.

(c) Investigations will be conducted ina manner that protects theconfidentiality of any person whoprovides information on a confidential

basis, other than the complainant, inaccordance with 29 CFR part 70.

(d) Investigation under the sixenvironmental statutes. In addition tothe investigative procedures set forth in24.104(a), (b), and (c), this paragraphsets forth the procedures applicable toinvestigations under the Safe DrinkingWater Act; Federal Water Pollution

Control Act; Toxic Substances ControlAct; Solid Waste Disposal Act; CleanAir Act; and ComprehensiveEnvironmental Response, Compensationand Liability Act.

(1) A complaint of alleged violationwill be dismissed unless thecomplainant has made a prima facieshowing that protected activity was amotivating factor in the unfavorablepersonnel action alleged in thecomplaint.

(2) The complaint, supplemented asappropriate by interviews of thecomplainant, must allege the existence

of facts and evidence to make a primafacie showing as follows:

(i) The employee engaged in aprotected activity;

(ii) The respondent knew orsuspected, actually or constructively,that the employee engaged in theprotected activity;

(iii) The employee suffered anunfavorable personnel action; and

(iv) The circumstances were sufficientto raise the inference that the protectedactivity was a motivating factor in theunfavorable action.

(3) The complainant will be

considered to have met the requiredburden if the complaint on its face,supplemented as appropriate throughinterviews of the complainant, allegesthe existence of facts and either director circumstantial evidence to meet therequired showing, i.e., to give rise to aninference that the respondent knew orsuspected that the employee engaged inprotected activity and that the protectedactivity was a motivating factor in theunfavorable personnel action. The

burden may be satisfied, for example, ifthe complainant shows that the adversepersonnel action took place shortly afterthe protected activity, giving rise to theinference that it was a motivating factorin the adverse action.

(4) The complaint will be dismissed ifthe respondent demonstrates by apreponderance of the evidence that itwould have taken the same unfavorablepersonnel action in the absence of thecomplainants protected activity.

(e) Investigation under the EnergyReorganization Act. In addition to theinvestigative procedures set forth in24.104(a), (b), and (c), this paragraphsets forth special procedures applicable

http://www.osha.gov/http://www.osha.gov/


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only to investigations under the EnergyReorganization Act.

(1) A complaint of alleged violationwill be dismissed unless thecomplainant has made a prima facieshowing that protected activity was acontributing factor in the unfavorablepersonnel action alleged in thecomplaint.

(2) The complaint, supplemented asappropriate by interviews of thecomplainant, must allege the existenceof facts and evidence to make a primafacie showing as follows:

(i) The employee engaged in aprotected activity;

(ii) The respondent knew orsuspected, actually or constructively,that the employee engaged in theprotected activity;

(iii) The employee suffered anunfavorable personnel action; and

(iv) The circumstances were sufficientto raise the inference that the protectedactivity was a contributing factor in theunfavorable action.

(3) For purposes of determiningwhether to investigate, the complainantwill be considered to have met therequired burden if the complaint on itsface, supplemented as appropriatethrough interviews of the complainant,alleges the existence of facts and eitherdirect or circumstantial evidence tomeet the required showing, i.e., to giverise to an inference that the respondentknew or suspected that the employeeengaged in protected activity and thatthe protected activity was a contributingfactor in the unfavorable personnel

action. The burden may be satisfied, forexample, if the complainant shows thatthe adverse personnel action took placeshortly after the protected activity,giving rise to the inference that it wasa contributing factor in the adverseaction. If the required showing has not

been made, the complainant will be soadvised and the investigation will notcommence.

(4) Notwithstanding a finding that acomplainant has made a prima facieshowing, as required by this section, aninvestigation of the complaint will not

be conducted or will be discontinued if

the respondent, pursuant to theprocedures provided in this paragraph,demonstrates by clear and convincingevidence that it would have taken thesame unfavorable personnel action inthe absence of the complainantsprotected behavior or conduct.

(5) If the respondent fails to make atimely response or fails to demonstrate

by clear and convincing evidence that itwould have taken the same unfavorablepersonnel action in the absence of the

behavior protected by the Act, theAssistant Secretary will proceed with

the investigation. The investigation willproceed whenever it is necessary orappropriate to confirm or verify theinformation provided by therespondent.

24.105 Issuance of findings and orders.

(a) After considering all the relevantinformation collected during the

investigation, the Assistant Secretarywill issue, within 30 days of filing of thecomplaint, written findings as towhether or not there is reasonable causeto believe that the respondent hasdiscriminated against the complainantin violation of any of the statutes listedin 24.100(a).

(1) If the Assistant Secretaryconcludes that there is reasonable causeto believe that a violation has occurred,he or she shall accompany the findingswith an order providing relief to thecomplainant. The order shall include,where appropriate, a requirement thatthe respondent abate the violation;reinstate the complainant to his or herformer position, together with thecompensation (including back pay),terms, conditions and privileges of thecomplainants employment; paycompensatory damages; and, under theToxic Substances Control Act and theSafe Drinking Water Act, pay exemplarydamages, where appropriate. Where therespondent establishes that thecomplainant is a security risk (whetheror not the information is obtained afterthe complainants discharge), an orderof reinstatement would not beappropriate. At the complainants

request the order shall also assessagainst the respondent thecomplainants costs and expenses(including attorneys fees) reasonablyincurred in connection with the filing ofthe complaint.

(2) If the Assistant Secretaryconcludes that a violation has notoccurred, the Assistant Secretary willnotify the parties of that finding.

(b) The findings and order will be sentby certified mail, return receiptrequested, to all parties of record. Theletter accompanying the findings andorder will inform the parties of their

right to file objections and to request ahearing and provide the address of theChief Administrative Law Judge. TheAssistant Secretary will file a copy ofthe original complaint and a copy of thefindings and order with the ChiefAdministrative Law Judge, U.S.Department of Labor.

(c) The findings and order will beeffective 30 days after receipt by therespondent pursuant to paragraph (b) ofthis section, unless an objection and arequest for a hearing has been filed asprovided at 24.106.

Subpart BLitigation

24.106 Objections to the findings andorder and request for a hearing.

(a) Any party who desires review,including judicial review, of thefindings and order must file anyobjections and/or a request for a hearingon the record within 30 days of receipt

of the findings and order pursuant toparagraph (b) of24.105. The objectionand/or request for a hearing must be inwriting and state whether the objectionis to the findings and/or the order. Thedate of the postmark, facsimiletransmittal, or e-mail communicationwill be considered to be the date offiling; if the objection is filed in person,

by hand-delivery or other means, theobjection is filed upon receipt.Objections must be filed with the ChiefAdministrative Law Judge, U.S.Department of Labor, 800 K Street, NW.,Washington, DC 20001, and copies of

the objections must be mailed at thesame time to the other parties of record,the OSHA official who issued thefindings and order, the AssistantSecretary, and the Associate Solicitor,Division of Fair Labor Standards, 200Constitution Ave., NW., N 2716, U.S.Department of Labor, Washington, DC20210.

(b) If a timely objection is filed, allprovisions of the order will be stayed.If no timely objection is filed withrespect to either the findings or theorder, the findings and order will

become the final decision of theSecretary, not subject to judicial review.

24.107 Hearings.

(a) Except as provided in this part,proceedings will be conducted inaccordance with the rules of practiceand procedure for administrativehearings before the Office ofAdministrative Law Judges, codified atsubpart A, 29 CFR part 18.

(b) Upon receipt of an objection andrequest for hearing, the ChiefAdministrative Law Judge will promptlyassign the case to a judge who willnotify the parties, by certified mail, ofthe day, time, and place of hearing. The

hearing is to commence expeditiously,except upon a showing of good cause orotherwise agreed to by the parties.Hearings will be conducted de novo, onthe record. Administrative law judgeshave broad discretion to limit discoveryin order to expedite the hearing.

(c) If both the complainant and therespondent object to the findings and/ororder, the objections will beconsolidated, and a single hearing will

be conducted.(d) Formal rules of evidence will not

apply, but rules or principles designed



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to assure production of the mostprobative evidence available will beapplied. The administrative law judgemay exclude evidence that isimmaterial, irrelevant, or undulyrepetitious.

24.108 Role of Federal agencies.

(a)(1) The complainant and the

respondent will be parties in everyproceeding. At the Assistant Secretarysdiscretion, he or she may participate asa party or participate as amicus curiaeat any time at any stage of theproceedings. This right to participateincludes, but is not limited to, the rightto petition for review of a decision of anadministrative law judge, including adecision approving or rejecting asettlement agreement between thecomplainant and the respondent.

(2) Copies of pleadings in all cases,whether or not the Assistant Secretary isparticipating in the proceeding, must be

sent to the Assistant Secretary,Occupational Safety and HealthAdministration, and to the AssociateSolicitor, Division of Fair LaborStandards, U.S. Department of Labor,200 Constitution Ave., NW., N 2716,Washington, DC 20210.

(b) The Environmental ProtectionAgency, the Nuclear RegulatoryCommission, and the Department ofEnergy, if interested in a proceeding,may participate as amicus curiae at anytime in the proceedings, at the agencysdiscretion. At the request of theinterested federal agency, copies of all

pleadings in a case must be sent to thefederal agency, whether or not theagency is participating in theproceeding.

24.109 Decision and orders of theadministrative law judge.

(a) The decision of the administrativelaw judge will contain appropriatefindings, conclusions, and an orderpertaining to the remedies provided inparagraph (c) of this section, asappropriate. In cases arising under theERA, a determination that a violationhas occurred may only be made if the

complainant has demonstrated by apreponderance of the evidence that theprotected activity was a contributingfactor in the unfavorable personnelaction alleged in the complaint. In casesarising under the other six statuteslisted in 24.100(a), a determinationthat a violation has occurred may only

be made if the complainant hasdemonstrated by a preponderance of theevidence that the protected activity wasa motivating factor in the unfavorablepersonnel action alleged in thecomplaint.

(b) In cases under the EnergyReorganization Act, if the complainanthas demonstrated by a preponderance ofthe evidence that the protected activitywas a contributing factor in theunfavorable personnel action alleged inthe complaint, relief may not be orderedif the respondent demonstrates by clearand convincing evidence that it would

have taken the same unfavorablepersonnel action in the absence of anyprotected activity. In cases under theother six statutes listed in 24.100(a),even if the complainant hasdemonstrated by a preponderance of theevidence that the protected activity wasa motivating factor in the unfavorablepersonnel action alleged in thecomplaint, relief may not be ordered ifthe respondent demonstrates by apreponderance of the evidence that itwould have taken the same unfavorablepersonnel action in the absence of anyprotected activity.

(c) Neither the Assistant Secretarysdetermination to dismiss a complaint

without completing an investigationpursuant to 24.104(d) nor the AssistantSecretarys determination to proceedwith an investigation is subject toreview by the administrative law judge,and a complaint may not be remandedfor the completion of an investigation orfor additional findings on the basis thata determination to dismiss was made inerror. Rather, if there otherwise isjurisdiction, the administrative lawjudge will hear the case on the merits.

(d)(1) If the administrative law judgeconcludes that the respondent has

violated the law, the order shall directthe respondent to take appropriateaffirmative action to abate the violation,including reinstatement of thecomplainant to that persons formerposition, together with thecompensation (including back pay),terms, conditions, and privileges of thatemployment, and compensatorydamages. In cases arising under the SafeDrinking Water Act or the ToxicSubstances Control Act, exemplarydamages may also be awarded whenappropriate. At the request of thecomplainant, the administrative law

judge shall assess against therespondent, all costs and expenses(including attorney fees) reasonablyincurred.

(2) In cases brought under the EnergyReorganization Act, when anadministrative law judge issues adecision that the complaint has meritand orders the relief prescribed inparagraph (d)(1) of this section, therelief ordered, with the exception ofcompensatory damages, shall beeffective immediately upon receipt,whether or not a petition for review is

filed with the Administrative ReviewBoard.

(3) If the administrative law judgedetermines that the respondent has notviolated the law, an order will be issueddenying the complaint.

(e) The decision will be served uponall parties to the proceeding. Anyadministrative law judges decision

issued under any of the statutes listedin 24.100(a) will be effective 10

business days after the date of thedecision unless a timely petition forreview has been filed with theAdministrative Review Board. Anadministrative law judges order issuedunder the Energy Reorganization Actwill be effective immediately uponreceipt, except for that portion of theorder awarding any compensatorydamages.

24.110 Decision and orders of theAdministrative Review Board.

(a) Any party desiring to seek review,

including judicial review, of a decisionof the administrative law judge must filea written petition for review with theAdministrative Review Board (theBoard), U.S. Department of Labor, 200Constitution Ave., NW., Washington,DC 20210, which has been delegated theauthority to act for the Secretary andissue final decisions under this part.The decision of the administrative lawjudge will become the final order of theSecretary unless, pursuant to thissection, a timely petition for review isfiled with the Board. The petition forreview must specifically identify the

findings, conclusions or orders to whichexception is taken. Any exception notspecifically urged ordinarily will bedeemed to have been waived by theparties. A petition must be filed within10 business days of the date of thedecision of the administrative lawjudge. The date of the postmark,facsimile transmittal, or e-mailcommunication will be considered to bethe date of filing; if the petition is filedin person, by hand-delivery or othermeans, the petition is considered filedupon receipt. The petition must beserved on all parties and on the Chief

Administrative Law Judge at the time itis filed with the Board. Copies of thepetition for review and all briefs must

be served on the Assistant Secretary,Occupational Safety and HealthAdministration, and on the AssociateSolicitor, Division of Fair LaborStandards, U.S. Department of Labor,200 Constitution Ave., NW., N 2716,Washington, DC 20210.

(b) If a timely petition for review isfiled pursuant to paragraph (a) of thissection, and the Board, within 30 daysof the filing of the petition, issues an



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order notifying the parties that the casehas been accepted for review, thedecision of the administrative law judgewill be inoperative unless and until theBoard issues an order adopting thedecision, except that an order by anadministrative law judge issued underthe Energy Reorganization Act, otherthan that portion of the order awarding

compensatory damages, will be effectivewhile review is conducted by the Board,unless the Board grants a motion by therespondent to stay the order based onexceptional circumstances. The Boardwill specify the terms under which any

briefs are to be filed. The Board willreview the factual determinations of theadministrative law judge under thesubstantial evidence standard. If atimely petition for review is notfiled, orthe Board denies review, the decision ofthe administrative law judge will

become the final order of the Secretaryand is not subject to judicial review.

(c) The final decision of the Boardwill be issued within 90 days of thefiling of the complaint. The decisionwill be served upon all parties and theChief Administrative Law Judge by mailto the last known address. The finaldecision will also be served on theAssistant Secretary, Occupational Safetyand Health Administration, and on theAssociate Solicitor, Division of FairLabor Standards, U.S. Department ofLabor, 200 Constitution Ave., NW., N2716, Washington, DC 20210, even if theAssistant Secretary is not a party.

(d) If the Board concludes that therespondent has violated the law, thefinal order will order the respondent totake appropriate affirmative action toabate the violation, includingreinstatement of the complainant to thatpersons former position, together withthe compensation (including back pay),terms, conditions, and privileges ofemployment, and compensatorydamages. In cases arising under the SafeDrinking Water Act or the ToxicSubstances Control Act, exemplarydamages may also be awarded whenappropriate. At the request of thecomplainant, the Board will assessagainst the respondent all costs and

expenses (including attorneys fees)reasonably incurred.

(e) If the Board determines that therespondent has not violated the law, anorder will be issued denying thecomplaint.


24.111 Withdrawal of complaints,objections, and findings; settlement.

(a) At any time prior to the filing ofobjections to the findings and/or order,a complainant may withdraw his or her

complaint under any of the statuteslisted in 24.100(a) by filing a writtenwithdrawal with the AssistantSecretary. The Assistant Secretary willthen determine whether to approve thewithdrawal. The Assistant Secretarywill notify the respondent of theapproval of any withdrawal. If thecomplaint is withdrawn because of

settlement under the EnergyReorganization Act, the Clean Air Act,the Safe Drinking Water Act, or theToxic Substances Control Act, thesettlement must be submitted forapproval in accordance with paragraph(d) of this section. Parties to settlementsunder the Federal Water PollutionControl Act, the Solid Waste DisposalAct, and the ComprehensiveEnvironmental Response, Compensationand Liability Act are encouraged tosubmit their settlements for approval.

(b) The Assistant Secretary maywithdraw his or her findings and/or

order, at any time before the expirationof the 30-day objection period describedin 24.106, provided that no objectionhas yet been filed, and substitute newfindings and/or a new order. The dateof the receipt of the substituted findingsand/or order will begin a new 30-dayobjection period.

(c) At any time before the findings ororder become final, a party maywithdraw his or her objections to thefindings or order by filing a writtenwithdrawal with the administrative lawjudge, or, if the case is on review, withthe Board. The judge or the Board, asthe case may be, will determine whether

to approve the withdrawal. If theobjections are withdrawn because ofsettlement under the EnergyReorganization Act, the Clean Air Act,the Safe Drinking Water Act, or theToxic Substances Control Act, thesettlement must be submitted forapproval in accordance with paragraph(d) of this section.

(d)(1) Investigative settlements underthe Energy Reorganization Act, theClean Air Act, the Safe Drinking WaterAct, and the Toxic Substances ControlAct. At any time after the filing of acomplaint, and before the findings and/

or order are objected to or become afinal order by operation of law, the casemay be settled if the Assistant Secretary,the complainant and the respondentagree to a settlement. The AssistantSecretarys approval of a settlementreached by the respondent and thecomplainant demonstrates his or herconsent and achieves the consent of allthree parties.

(2) Adjudicatory settlements underthe Energy Reorganization Act, theClean Air Act, the Safe Drinking WaterAct, and the Toxic Substances Control

Act. At any time after the filing ofobjections to the Assistant Secretarysfindings and/or order, the case may besettled if the participating parties agreeto a settlement and the settlement isapproved by the administrative lawjudge if the case is before the judge, or

by the Board if a timely petition forreview has been filed with the Board. A

copy of the settlement must be filedwith the administrative law judge or theBoard, as the case may be.

(e) Any settlement approved by theAssistant Secretary, the administrativelaw judge, or the Board will constitutethe final order of the Secretary and may

be enforced pursuant to 24.113.

24.112 Judicial review.

(a) Except as provided underparagraphs (b), (c), and (d) of thissection, within 60 days after theissuance by the Board of a final order ofthe Secretary under 24.110, any personadversely affected or aggrieved by theorder may file a petition for review ofthe order in the United States Court ofAppeals for the circuit in which theviolation allegedly occurred or thecircuit in which the complainantresided on the date of the violation. Afinal order of the Board is not subject tojudicial review in any criminal or othercivil proceeding.

(b) Under the Federal Water PollutionControl Act, within 120 days after theissuance by the Board of a final order ofthe Secretary under 24.110, any personadversely affected or aggrieved by theorder may file a petition for review of

the order in the United States Court ofAppeals for the circuit in which theviolation allegedly occurred or thecircuit in which the complainantresided on the date of the violation.

(c) Under the Solid Waste DisposalAct, within 90 days after the issuance bythe Board of a final order of theSecretary under 24.110, any personadversely affected or aggrieved by theorder may file a petition for review ofthe order in the Unite

Documents

Department of Labor: 72 FED REG 44956