2808 Federal Register / Vol. 76, No. 11 / Tuesday, January 18, 2011 / Rules and Regulations 

In addition, Therio, Inc., is not 

currently listed in the animal drug 

regulations as a sponsor of an approved 

application. Accordingly, § 510.600 is 

being amended to add entries for this 

sponsor. 

This rule does not meet the definition 

of ‘‘rule’’ in 5 U.S.C. 804(3)(A) because 

it is a rule of ‘‘particular applicability.’’ 

Therefore, it is not subject to the 

congressional review requirements in 5 

U.S.C. 801–808. 

List of Subjects 

21 CFR Part 510 

Administrative practice and 

procedure, Animal drugs, Labeling, 

Reporting and recordkeeping 

requirements. 

21 CFR Part 522 

Animal drugs. 

Therefore, under the Federal Food, 

Drug, and Cosmetic Act and under 

authority delegated to the Commissioner 

of Food and Drugs and redelegated to 

the Center for Veterinary Medicine, 21 

CFR parts 510 and 522 are amended as 

follows: 

PART 510—NEW ANIMAL DRUGS 

■ 1. The authority citation for 21 CFR 

part 510 continues to read as follows: 

Authority: 21 U.S.C. 321, 331, 351, 352, 

353, 360b, 371, 379e. 

■ 2. In § 510.600, in the table in 

paragraph (c)(1), remove the entry for 

‘‘Ausa International, Inc.’’; and 

alphabetically add a new entry for 

‘‘Therio, Inc.’’; and in the table in 

paragraph (c)(2), remove the entry for 

‘‘059521’’; and in numerical sequence 

add a new entry for ‘‘052923’’ to read as 

follows: 

§ 510.600 Names, addresses, and drug 

labeler codes of sponsors of approved 

applications. 

* * * * * 

(c) * * * 

(1) * * * 

Firm name and address 

Drug 

labeler 

code 

* * * * * 

Therio, Inc., 8801 Anderson Ave., 

Manhattan, KS 66503 ............... 052923 

* * * * * 

(2) * * * 

Drug labeler 

code 

Firm name and address 

* * * * * 

052923 Therio, Inc., 8801 Anderson Ave., 

Manhattan, KS 66503 

* * * * * 

PART 522—IMPLANTATION OR 

INJECTABLE DOSAGE FORM NEW 

ANIMAL DRUGS 

■ 3. The authority citation for 21 CFR 

part 522 continues to read as follows: 

Authority: 21 U.S.C. 360b. 

§ 522.1002 [Amended] 

■ 4. In paragraph (a)(2) of § 522.1002, 

remove ‘‘059521’’ and add in its place 

‘‘No. 052923’’. 

Dated: January 12, 2011. 

Steven D. Vaughn, 

Director, Office of New Animal Drug 

Evaluation, Center for Veterinary Medicine. 

[FR Doc. 2011–909 Filed 1–14–11; 8:45 am] 

BILLING CODE 4160–01–P 

DEPARTMENT OF LABOR 

Occupational Safety and Health 

Administration 

29 CFR Part 24 

[Docket Number: OSHA–2007–0028] 

RIN 1218–AC25 

Procedures for the Handling of 

Retaliation Complaints Under the 

Employee Protection Provisions of Six 

Environmental Statutes and Section 

211 of the Energy Reorganization Act 

of 1974, as Amended 

AGENCY: Occupational Safety and Health 

Administration, Labor. 

ACTION: Final rule. 

SUMMARY: This document provides the 

final text of regulations governing the 

employee protection (or 

‘‘whistleblower’’) provisions of Section 

211 of the Energy Reorganization Act of 

1974, as amended, (‘‘ERA’’), 

implementing the statutory changes 

enacted into law on August 8, 2005, as 

part of the Energy Policy Act of 2005. 

The regulations also finalize changes to 

the procedures for handling retaliation 

complaints under Section 211 of the 

ERA and the six environmental 

whistleblower statutes that were 

designed to make them as consistent as 

possible with the more recently 

promulgated procedures for handling 

retaliation complaints under other 

whistleblower provisions administered 

by the Occupational Safety and Health 

Administration (OSHA). 

DATES: This final rule is effective on 

January 18, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Nilgun Tolek, Director, Office of the 

Whistleblower Protection Program, 

Occupational Safety and Health 

Administration, U.S. Department of 

Labor, Room N–3610, 200 Constitution 

Avenue, NW., Washington, DC 20210; 

telephone (202) 693–2199. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Energy Policy Act of 2005, Public 

Law 109–58, was enacted on August 8, 

2005. Among other provisions, this new 

law amended the employee protection 

provisions for nuclear whistleblowers 

under Section 211 of the ERA, 42 U.S.C. 

5851; the statutory amendments affect 

only ERA whistleblower complaints. 

The changes to the regulations also 

affect the six environmental 

whistleblower statutes because the same 

procedures generally apply to each of 

the statutes covered in 29 CFR part 24. 

Because OSHA recognizes the 

importance of consistency in the 

procedures governing the whistleblower 

statutes that it administers, it has tried 

to standardize these regulations with 

other whistleblower regulations 

promulgated by OSHA to the extent 

possible within the bounds of the 

statutory language. We have removed 

from this background section as 

unnecessary and confusing the 

statement in the interim final rule that 

the 2005 ERA amendments apply to 

claims filed on or after August 8, 2005; 

OSHA takes no position in these 

regulations on the applicability of the 

2005 ERA amendments to complaints 

filed with the Department before August 

8, 2005. 

II. Summary of Statutory Changes to 

ERA Whistleblower Provisions 

Section 629 of Public Law 109–58 

(119 Stat. 785) amended Section 211 of 

the ERA, 42 U.S.C. 5851, by making the 

changes described below. 

Revised Definition of ‘‘Employer’’ 

Section 211 of the ERA defined a 

covered ‘‘employer’’ to include: 

Licensees of the Nuclear Regulatory 

Commission (‘‘Commission’’); applicants 

for such licenses, and their contractors 

and subcontractors; contractors and 

subcontractors of the Department of 

Energy, except those involved in naval 

nuclear propulsion work under 

Executive Order 12344; licensees of an 

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agreement State under Section 274 of 

the Atomic Energy Act of 1954; 

applicants for such licenses, and their 

contractors and subcontractors. The 

August 2005 amendments revised the 

definition of ‘‘employer’’ to extend 

coverage to employees of contractors 

and subcontractors of the Commission; 

the Commission; and the Department of 

Energy. 

De Novo Review 

The August 2005 amendments added 

a provision for de novo review by a 

United States District Court in the event 

that the Secretary has not issued a final 

decision within one year after the filing 

of a complaint, and there is no showing 

that the delay is due to the bad faith of 

the complainant. 

III. Summary of Regulations and 

Rulemaking Proceedings 

On August 10, 2007, the Occupational 

Safety and Health Administration 

published in the Federal Register an 

interim final rule revising the rules that 

implemented Section 211 of the ERA, 

and the whistleblower provisions of the 

environmental statutes listed in part 24, 

72 FR 44956–44969. In addition to 

promulgating the interim final rule, 

OSHA’s notice included a request for 

public comment on the interim rules by 

October 9, 2007. 

In response, two organizations—the 

Government Accountability Project 

(‘‘GAP’’) and the National Whistleblower 

Center (‘‘NWC’’)—and four individuals— 

William H. Ewing, Esq.; Richard R. 

Renner, Esq., Jason M. Zuckerman, Esq., 

and James F. Newport—filed comments 

with the agency within the public 

comment period. OSHA has reviewed 

and considered these comments and 

now adopts this final rule which has 

been revised in part to address problems 

perceived by the agency and the 

commenters. 

General Comments 

Richard R. Renner, Jason M. 

Zuckerman, and William H. Ewing 

commented generally that they believe 

the interim final regulations frustrate 

the purposes of the statutes to protect 

the public from environmental and 

nuclear safety dangers. They further 

commented that the interim final rule 

will deter complainants who have filed 

complaints under Section 211 of the 

ERA from seeking de novo relief in 

district courts. Renner and Zuckerman 

stated that previously the National 

Employment Lawyers Association 

helped initiate a liaison process with 

the Office of Administrative Law Judges 

(OALJ) and with OSHA ‘‘to establish 

avenues of communication among 

policy makers, whistleblower groups 

and employer groups’’ and expressed 

disappointment that the Department did 

not use that process to collect 

information and make decisions prior to 

issuing an interim final rule. Although 

no formal liaison process has been 

established, OSHA has met with 

representatives of the National 

Employment Lawyers Association and 

looks forward to further dialogue with 

its stakeholders. 

The provisions in the interim final 

rule governing the filing of actions for 

de novo review in district court were 

modeled on the regulations 

implementing the whistleblower 

provisions of Section 806 of the 

Corporate and Criminal Fraud 

Accountability Act of 2002, Title VIII of 

the Sarbanes-Oxley Act of 2002 (‘‘SOX’’), 

18 U.S.C. 1514A, codified at 29 CFR 

part 1980. OSHA does not believe that 

those regulations have deterred 

complainants from taking actions to 

district court under the de novo review 

provision. Nevertheless, based on a 

review of the comments and the 

agency’s further consideration, OSHA 

has made some changes to the preamble 

and regulatory provisions that address 

an employee’s option of proceeding in 

district court. 

IV. Summary and Discussion of 

Regulatory Provisions 

The regulatory provisions in this part 

have been revised to be consistent with 

other whistleblower regulations 

promulgated by OSHA to the extent 

possible within the bounds of the 

statutory language of the ERA and the 

six environmental statutes listed in 

section 24.100(a). The section numbers 

of these regulations also have been 

changed to correspond with the 

numbering under the regulations 

implementing other whistleblower 

statutes administered by OSHA. 

Although these regulations are intended 

to be consistent with the majority of 

OSHA’s other whistleblower 

regulations, they refer to actions brought 

under the whistleblower provisions of 

the ERA and the six environmental 

statutes as actions alleging ‘‘retaliation’’ 

rather than ‘‘discrimination.’’ This 

change in terminology, which is not 

intended to have substantive effect, 

reflects that claims brought under these 

whistleblower provisions are 

prototypical retaliation claims. A 

retaliation claim is a specific type of 

discrimination claim that focuses on 

actions taken as a result of an 

employee’s protected activity rather 

than as a result of an employee’s 

characteristics (e.g., race, gender, or 

religion). 

Richard R. Renner and Jason 

Zuckerman commented that it would be 

helpful if the Department clarified in 

this Summary and Discussion of 

Regulatory Provisions that adverse 

actions in Title VII retaliation cases are 

not limited to tangible employment 

actions and that the burdens of proof in 

ERA cases, which were altered by 

statute in 1992, differ from the burdens 

of proof generally applicable to 

traditional discrimination cases. Renner 

and Zuckerman suggested that these 

principles can be clarified by including 

within the regulations definitions of 

‘‘unfavorable personnel action,’’ ‘‘clear 

and convincing evidence,’’ and 

‘‘contributing factor.’’ OSHA does not 

believe that these clarifications are 

necessary in the regulations. However, 

OSHA has included a discussion of 

these phrases in the preamble. Also, as 

explained in more detail below, for 

clarity and consistency, the final 

regulations use the phrase ‘‘adverse 

action’’ throughout, rather than the 

phrase ‘‘unfavorable personnel action.’’ 

In addition, both the preamble and the 

regulations clearly distinguish between 

the burdens of proof that apply under 

Section 211 of the ERA and the burdens 

of proof that apply under the six 

environmental whistleblower statutes. 

Subpart A—Complaints, Investigations, 

Issuance of Findings 

Section 24.100 Purpose and Scope 

This section (formerly section 24.1) 

describes the purpose of the regulations 

implementing the whistleblower 

provisions of seven statutes enforced by 

the Secretary of Labor and provides an 

overview of the procedures covered by 

the regulations. The section has been 

revised to refer to the Federal Water 

Pollution Control Act, instead of the 

Clean Water Act. They are synonymous, 

but the Office of Administrative Law 

Judges and the Administrative Review 

Board (ARB) generally use Federal 

Water Pollution Control Act, and we do 

so here for the sake of consistency. In 

addition, the section has been 

renumbered to conform to the 

numbering system for other 

whistleblower regulations promulgated 

by OSHA. Thus, for example, former 

section 24.1 becomes current section 

24.100. No comments were received on 

this section. 

Section 24.101 Definitions 

This new section includes general 

definitions applicable to the 

whistleblower provisions of the seven 

statutes listed in section 24.100(a). This 

section does not include programspecific definitions, which may be 

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2810 Federal Register / Vol. 76, No. 11 / Tuesday, January 18, 2011 / Rules and Regulations 

found in the statutes. For purposes of 

clarity, OSHA has added a definition of 

‘‘business days’’ to this definitional 

section. The term means days other than 

Saturday, Sunday, and Federal holidays. 

One comment was received regarding 

the definitions contained in section 

24.101. GAP commented that the 

definition of ‘‘Respondent’’ should 

include individuals other than 

employers, because the Solid Waste 

Disposal Act (SWDA), 42 U.S.C. 6971(a), 

provides that ‘‘[n]o person shall fire, or 

in any other way discriminate against 

* * * any employee’’ who has engaged 

in protected activity, and the Federal 

Water Pollution Control Act (FWPCA), 

33 U.S.C. 1367, and the Comprehensive 

Environmental Response, 

Compensation, and Liability Act 

(CERCLA), 42 U.S.C. 9610, have similar 

provisions. As GAP acknowledges in its 

comments, however, the ARB has held 

that notwithstanding the use of ‘‘person’’ 

in the FWPCA, SWDA, and CERCLA in 

place of ‘‘employer,’’ the statutes 

nevertheless require that the respondent 

have an employment relationship with 

the complainant or act in the capacity 

of an employer, that is, exercise control 

over the terms, conditions, or privileges 

of the complainant’s employment. See, 

e.g., Culligan v. American Heavy Lifting 

Shipping Co., No. 03–046 (ARB June 30, 

2004). Accordingly, OSHA does not 

believe that changes to the definition of 

Respondent are necessary. 

Section 24.102 Obligations and 

Prohibited Acts 

This section (formerly section 24.2) 

describes the activities that are 

protected under the statutes covered by 

this part, and the conduct that is 

prohibited in response to any protected 

activities. The language generally has 

been revised to conform to the language 

in the majority of the other 

whistleblower regulations promulgated 

by OSHA, to the extent possible within 

the bounds of the statutory language of 

the ERA and the six environmental 

statutes. The changes are not intended 

to be substantive. References to the 

statutes listed in section 24.100(a) have 

deleted the adjective ‘‘Federal’’ as 

unnecessary. Paragraph (e) has been 

moved from former section 24.9. We 

note that the ARB interprets the phrase 

‘‘deliberate violations’’ for the purpose of 

denying protection to an employee as 

including an element of willfulness. See 

Fields v. U.S. Dep’t of Labor Admin. 

Review Bd., 173 F.3d 811, 814 (11th Cir. 

1999) (petitioners knowingly conducted 

unauthorized and potentially dangerous 

experiments). 

One comment was received regarding 

the obligations and prohibited acts 

contained in section 24.102. GAP 

commented that in section 24.102(a), 

the term ‘‘employer’’ is too restrictive 

with respect to the FWPCA, CERCLA, 

and SWDA. As discussed above, the 

ARB has held that the use of ‘‘person’’ 

in the FWPCA, SWDA, and CERCLA in 

place of ‘‘employer’’ still requires that 

the respondent have an employment 

relationship with the complainant or act 

in the capacity of an employer. 

Accordingly, OSHA does not believe 

that use of the term ‘‘employer’’ is too 

restrictive in section 24.102(a). We note 

that former section 24.2 also used the 

term ‘‘employer’’ in describing 

obligations and prohibited acts. GAP 

also commented that the phrase ‘‘or 

otherwise retaliate against’’ should be 

changed to the statutory language ‘‘or 

otherwise discriminate against’’ to be 

consistent with the statutes, and that the 

language in section 24.102(c) describing 

the prohibitions under the ERA also 

should be changed from ‘‘retaliate’’ to 

‘‘discriminate,’’ because 

‘‘ ‘[d]iscrimination’ and ‘retaliation’ are 

not synonyms.’’ According to GAP, the 

latter term ‘‘requires a showing of 

animus; the former only disparate 

treatment.’’ As noted in this preamble, 

the use of the term ‘‘retaliation’’ in lieu 

of ‘‘discrimination’’ in these regulations 

is not meant to have a substantive 

distinction. Rather, the change in 

nomenclature reflects that claims 

brought under these whistleblower 

provisions are prototypical retaliation 

claims. Use of the term ‘‘retaliation’’ 

does not preclude a complaint based on 

an allegation of ‘‘disparate treatment,’’ as 

suggested by GAP. A discrimination 

claim based on ‘‘disparate treatment’’ 

requires a showing of intent to 

discriminate. See, e.g., EEOC v. Joe’s 

Stone Crab, Inc., 220 F.3d 1263, 1283– 

84 (11th Cir. 2000). Similarly, a 

retaliation claim requires a showing of 

intent to retaliate. See Wallace v. DTG 

Operations, Inc., 442 F.3d 1112, 1119 

(8th Cir. 2006) (‘‘The ultimate question 

in any retaliation case is whether the 

employer’s adverse action against the 

employee was motivated by retaliatory 

intent.’’). Accordingly, OSHA does not 

believe that it is necessary to change its 

use of the word ‘‘retaliation,’’ which is 

an accurate description of the type of 

discrimination claim that is at issue 

under the whistleblower provisions of 

the ERA and the six environmental 

statutes. 

Section 24.103 Filing of Retaliation 

Complaint 

This section (formerly section 24.3) 

has been revised to be consistent with 

the regulatory procedures implementing 

other whistleblower provisions 

administered by OSHA. Thus, the 

section heading has been changed from 

‘‘Complaint’’ to ‘‘Filing of retaliation 

complaint.’’ Also, paragraph (c) has been 

changed to paragraph (b) and the 

heading has been changed from ‘‘Form 

of Complaint’’ to ‘‘Nature of filing.’’ 

Paragraph (d) has been changed to 

paragraph (c); and paragraph (b) has 

been changed to paragraph (d) and the 

language has been changed to conform 

with that appearing in most of OSHA’s 

other whistleblower regulations. 

Finally, paragraph (e) ‘‘Relationship to 

section 11(c) complaints’’ has been 

added to explain the policy of the 

Secretary regarding the relationship 

between complaints filed under the 

statutes listed in section 24.100(a) and 

a complaint under Section 11(c) of the 

Occupational Safety and Health Act. No 

comments were received on this section. 

The final regulation in paragraph (b) 

has been revised to provide that no 

particular form of complaint is required. 

Paragraph (b) specifies that a complaint 

may be made orally or in writing. It also 

states that when a complaint is made 

orally, OSHA will reduce the complaint 

to writing and that if a complainant is 

not able to file the complaint in English, 

the complaint may be filed in any 

language. These changes are consistent 

with decisions of the ARB, which have 

permitted oral complaints. See, e.g., 

Roberts v. Rivas Environmental 

Consultants, Inc., 96–CER–1, 1997 WL 

578330, at *3 n.6 (Admin. Review Bd. 

Sept. 17, 1997) (complainant’s oral 

statement to an OSHA investigator, and 

the subsequent preparation of an 

internal memorandum by that 

investigator summarizing the oral 

complaint, satisfies the ‘‘in writing’’ 

requirement of CERCLA, 42 U.S.C. 

§ 9610(b), and the Department’s 

accompanying regulations in 29 CFR 

part 24); Dartey v. Zack Co. of Chicago, 

No. 82–ERA–2, 1983 WL 189787, at *3 

n.1 (Sec’y of Labor Apr. 25, 1983) 

(adopting administrative law judge’s 

findings that complainant’s filing of a 

complaint to the wrong DOL office did 

not render the filing invalid and that the 

agency’s memorandum of the complaint 

satisfied the ‘‘in writing’’ requirement of 

the ERA and the Department’s 

accompanying regulations in 29 CFR 

part 24). Moreover, this is consistent 

with OSHA’s longstanding practice of 

accepting oral complaints filed under 

Section 11(c) of the Occupational Safety 

and Health Act of 1970, 29 U.S.C. 

660(c); Section 211 of the Asbestos 

Hazard Emergency Response Act of 

1986, 15 U.S.C. 2651; Section 7 of the 

International Safe Container Act of 

1977, 46 U.S.C. 80507; and the Surface 

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Federal Register / Vol. 76, No. 11 / Tuesday, January 18, 2011 / Rules and Regulations 2811 

Transportation Assistance Act of 1982, 

49 U.S.C. 31105. 

Section 24.104 Investigation 

This section (formerly section 24.4) 

has been revised so that its language 

will conform more closely to the 

language of the majority of OSHA’s 

other whistleblower regulations. 

Additionally, former paragraph (b) of 

section 24.5 has been revised and 

moved to this section, and former 

paragraph (d) of section 24.4 has been 

revised and moved to section 24.105, 

where it more appropriately appears 

under ‘‘Issuance of findings and orders.’’ 

Paragraphs (e) and (f) of section 

24.104 set forth the standards of 

causation that OSHA applies to cases 

under the six environmental 

whistleblower statutes and the ERA. 

When adjudicating whistleblower 

complaints under the six environmental 

whistleblower statutes, the Department 

has relied on standards derived from 

discrimination case law as set forth 

under Mt. Healthy City School District 

Board of Education v. Doyle, 429 U.S. 

274 (1977); Price Waterhouse v. 

Hopkins, 490 U.S. 228 (1989); Texas 

Department of Community Affairs v. 

Burdine, 450 U.S. 248 (1981); and 

McDonnell Douglas Corp. v. Green, 411 

U.S. 792 (1973). See Abdur-Rahman v. 

Dekalb County, ARB Case Nos. 08–003, 

10–074, 2010 WL 2158226, at *6 

(Admin. Review Bd. May 18, 2010) 

(motion for reconsideration pending); 

Dartey v. Zack Co., No. 82–ERA–2, 1983 

WL 189787, at *3–*4 (Sec’y of Labor 

Apr. 25, 1983). Under these standards, 

a complainant may prove retaliation 

either by showing that the respondent 

took the adverse action because of the 

complainant’s protected activity or by 

showing that retaliation was a 

motivating factor in the adverse action 

(i.e. a ‘‘mixed-motive analysis’’). See, 

e.g., Abdur-Rahman, 2010 WL 2158226, 

at *6 (FWPCA case applying a mixed 

motive analysis); Higgins v. Alyeska 

Pipeline Serv. Corp., ARB Case No. 01– 

022, 2003 WL 21488356, at *4 (Admin. 

Review Bd. June 27, 2003) (explaining 

burdens of proof applicable to claims 

under TSCA, SWDA, and CAA); Masek 

v. The Cadle Co., ARB Case No. 97–069, 

2000 WL 562699, at *9–*10 (Admin. 

Review Bd. Apr. 28, 2000) (explaining 

burdens of proof applicable to claims 

under FWCPA, TSCA, CAA and 

CERCLA); Combs v. Lambda Link, ARB 

Case No. 96–066, 1997 WL 665483, at 

*1–*2 (Admin. Review Bd. Oct. 17, 

1997) (applying mixed-motive analysis 

under CAA, TSCA, FWCPA). 

If the complainant demonstrates that 

the respondent acted at least in part for 

prohibited reasons, the burden shifts to 

the respondent to prove by a 

preponderance of the evidence, that it 

would have reached the same decision 

even in the absence of protected 

activity. See, e.g., Dixon v. U.S. Dep’t of 

Interior, Bureau of Land Mgmt., ARB 

Case No. 06–14706–160, 2008 WL 

4124113, at *9–*10 (Admin. Review Bd. 

Aug. 28, 2008) (applying ‘‘mixed 

motive’’ analysis to claims under 

CERCLA and SDWA); Dartey, 1983 WL 

189787, at *4 (discussing Mt. Healthy, 

429 U.S. at 287). In such cases, the 

employer ‘‘bears the risk that ‘the 

influence of legal and illegal motives 

cannot be separated.’ ’’ Mackowiak v. 

Univ. Nuclear Sys. Inc., 735 F.2d 1159, 

1164 (9th Cir. 1984) (ERA case) (which 

quoted NLRB v. Transp. Mgmt. Corp., 

462 U.S. 393, 403 (1983)). 

At the investigation stage, OSHA will 

dismiss the complaint unless the 

complainant makes a prima facie 

showing that protected activity was at 

least a motivating factor in the alleged 

adverse action. The complaint, 

supplemented as appropriate by 

interviews of the complainant, must 

allege the existence of facts and 

evidence to make a prima facie showing 

as follows: 

(i) The employee engaged in a 

protected activity; 

(ii) The respondent knew or suspected 

that the employee engaged in the 

protected activity; 

(iii) The employee suffered an adverse 

action; and 

(iv) The circumstances were sufficient 

to raise the inference that the protected 

activity was a motivating factor in the 

adverse action. 

The complainant will be considered 

to have met the required showing if the 

complaint on its face, supplemented as 

appropriate through interviews of the 

complainant, alleges the existence of 

facts and either direct or circumstantial 

evidence sufficient to give rise to an 

inference that the respondent knew or 

suspected that the employee engaged in 

protected activity and that the protected 

activity was a motivating factor in the 

adverse action. The required showing 

may be satisfied, for example, if the 

complainant shows that the adverse 

action took place shortly after the 

protected activity, giving rise to the 

inference that it was a motivating factor 

in the adverse action. OSHA will 

dismiss the complaint if a 

preponderance of the evidence shows 

that the respondent would have taken 

the same adverse action in the absence 

of the complainant’s protected activity. 

The Department recognizes that after 

promulgation of the interim final rule, 

the Supreme Court issued Gross v. FBL 

Financial Services, Inc., 129 S. Ct. 2343 

(2009). The Court held in Gross that the 

prohibition against discrimination 

‘‘because of’’ age in the Age 

Discrimination in Employment Act 

(ADEA), 29 U.S.C. 623(a)(1), requires a 

plaintiff to ‘‘prove that age was the ‘butfor’ cause of the employer’s adverse 

decision.’’ 129 S. Ct. at 2350 (citation 

omitted). The Court rejected arguments 

that a plaintiff could prevail in an action 

under the ADEA by showing that 

discrimination was a motivating factor 

for the adverse decision, after which the 

employer had the burden of proving that 

it would have reached the same 

decision for non-discriminatory reasons. 

Id. at 2351–52. 

The Department does not believe that 

the Supreme Court’s decision in Gross 

affects the long-standing burden-shifting 

framework applied in mixed-motive 

cases under the six environmental 

whistleblower statutes as reflected in 

the Department’s regulations and case 

law. The Supreme Court’s Gross 

decision involved an age discrimination 

case under the ADEA, not retaliation 

cases filed by individuals under the 

environmental statutes. The Supreme 

Court cautioned in Gross itself that 

‘‘[w]hen conducting statutory 

interpretation, we ‘must be careful not 

to apply rules applicable under one 

statute to a different statute without 

careful and critical examination.’ ’’ Id. at 

2349 (quoting Fed. Express Corp. v. 

Holowecki, 552 U.S. 389, 393 (2008)); 

see Smith v. Xerox Corp., 602 F.3d 320 

(5th Cir. 2010) (ADEA analysis in Gross 

is inapplicable to Title VII antiretaliation cases); But see, e.g., Serwatka 

v. Rockwell Automation, Inc., 591 F.3d 

957 (7th Cir. 2010) (applying Gross 

reasoning to Americans with Disabilities 

Act). 

In addition, as the Court noted in 

Gross, its decision did not conflict with, 

or undermine, prior Supreme Court 

decisions applying the mixed motive 

burden-shifting framework to 

Constitutional cases and cases under the 

National Labor Relations Act (NLRA). 

Gross, 129 S. Ct. at 2352 n.6 (citing 

Transp. Mgmt. Corp., 462 U.S. at 401– 

403; and Mt. Healthy City Bd. of Educ., 

429 U.S. at 287); but see Fairley v. 

Andrews, 578 F.3d 518 (7th Cir. 2009) 

(applying Gross reasoning to First 

Amendment case), cert. denied, 130 S. 

Ct. 3320 (2010). The Court recognized 

the appropriateness of deferring to the 

National Labor Relations Board’s 

(NLRB’s) interpretation of the NLRA to 

allow a mixed motive burden-shifting 

analysis. Gross, 129 S. Ct. at 2352 n.6 

(‘‘The case involving the NLRA did not 

require the Court to decide in the first 

instance whether burden shifting should 

apply as the Court instead deferred to 

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the National Labor Relations Board’s 

determination that such a framework 

was appropriate’’) (citation omitted); see 

Hunter v. Valley View Local Schs., 579 

F.3d 688, 691–92 (6th Cir. 2009) 

(deferring to Department of Labor’s 

Family and Medical Leave Act (FMLA) 

regulations in holding that prohibition 

in FMLA against interference with the 

exercise of rights permits mixed-motive 

analysis after Gross). With regard to the 

environmental whistleblower 

provisions, as with the NLRB’s 

interpretation of the NLRA, the 

Secretary’s longstanding administrative 

case law permits a mixed-motive 

analysis. This case law is due deference 

as the Secretary’s reasonable 

interpretation of the environmental 

whistleblower statutes. Knox v. U.S. 

Dep’t of Labor, 434 F.3d 721, 724 (4th 

Cir. 2006) (‘‘We review the ARB’s 

interpretation of the CAA under the 

deferential standard set forth in Chevron 

U.S.A., Inc. v. Natural Resources 

Defense Council, Inc.’’); Anderson v. 

U.S. Dep’t of Labor, 422 F.3d 1155, 

1173, 1181 (10th Cir. 2005) (providing 

Chevron deference to the ARB’s 

construction of the environmental 

whistleblower statutes); Reid v. Sec’y of 

Labor, No. 95–3648, 1996 WL 742221, at 

*1 (6th Cir. 1996) (unpubl’d) (106 F.3d 

401 (Table)) (deferring to Secretary’s 

reasonable construction of the term 

employee under CAA); Mackowiak, 735 

F.2d at 1164 (deferring to Secretary’s 

application of mixed-motive analysis 

under pre-amendment version of the 

ERA). 

Finally, the Court in Gross based its 

decision that a mixed-motive analysis 

was inapplicable to the ADEA in part on 

its determination that Congress decided 

not to amend the ADEA to clarify that 

a mixed-motive analysis applied when 

it amended both the ADEA and Title VII 

in the Civil Rights Act of 1991 (Title 

VII). Gross, 129 S. Ct. at 2349 (‘‘Unlike 

Title VII, the ADEA’s text does not 

provide that a plaintiff may establish 

discrimination by showing that age was 

simply a motivating factor. Moreover, 

Congress neglected to add such a 

provision to the ADEA when it 

amended Title VII to add §§ 2000e–2(m) 

and 2000e–5(g)(2)(B), even though it 

contemporaneously amended the ADEA 

in several ways’’) (citations omitted). In 

so finding, the Court noted that 

‘‘ ‘negative implications raised by 

disparate provisions are strongest’ when 

the provisions were ‘considered 

simultaneously when the language 

raising the implication was inserted.’ ’’ 

Id. (quoting Lindh v. Murphy, 521 U.S. 

320, 330 (1997)). Congress did not 

consider amendments to the 

environmental whistleblower provisions 

when it amended Title VII and the 

ADEA in the Civil Rights Act of 1991. 

Thus, the environmental whistleblower 

statutes do not raise the strong negative 

implications that the Supreme Court 

noted in Gross. 

The Department therefore believes 

that the application of a mixed-motive 

analysis to the environmental 

whistleblower statutes continues to be 

appropriate based on the ARB’s 

longstanding decisions interpreting 

these statutes, is consistent with 

Congress’ intent and is reasonable in the 

context of the remedial purposes of 

these laws to safeguard workers from 

retaliation for protected activity 

involving the public health and the 

environment. 

Paragraph (f) of this section, which 

sets forth procedures that apply only in 

ERA cases, applies the ERA’s statutory 

burdens of proof. Since the 1992 

amendments to the ERA, its 

whistleblower provisions, in contrast to 

the other whistleblower provisions 

listed under section 24.100(a), have 

contained specific statutory standards 

for the dismissal and adjudication of 

complaints. See 42 U.S.C. 5851(b)(3)(A) 

through (b)(3)(D); Public Law 102–486, 

§ 2902, 106 Stat. at 3123–3124. Because 

the ERA expressly sets forth the burdens 

of proof that apply to retaliation claims 

under that statute, the holding in Gross 

does not apply to the ERA. The ERA 

requires that a complainant make an 

initial prima facie showing that his or 

her protected activity was ‘‘a 

contributing factor’’ in the adverse 

action alleged in the complaint, i.e., that 

the protected activity, alone or in 

combination with other factors, affected 

in some way the outcome of the 

employer’s decision. 42 U.S.C. 

5851(b)(3)(A). If the complainant does 

not make the prima facie showing, the 

investigation must be discontinued and 

the complaint dismissed. See Trimmer 

v. U.S. Dep’t of Labor, 174 F.3d 1098, 

1101 (10th Cir. 1999) (noting that the 

distinct burden-shifting framework of 

the 1992 ERA amendments served a 

‘‘gatekeeping function’’ that ‘‘stemmed 

frivolous complaints’’). Even in cases 

where the complainant successfully 

makes a prima facie showing, the 

investigation must be discontinued if 

the employer demonstrates, by clear and 

convincing evidence, that it would have 

taken the same adverse action in the 

absence of the protected activity. Thus, 

under the ERA, the Secretary must 

dismiss the complaint and not 

investigate (or cease investigating) if 

either: (1) The complainant fails to meet 

the prima facie showing that protected 

activity was a contributing factor in the 

adverse action; or (2) the employer 

rebuts that showing by clear and 

convincing evidence that it would have 

taken the same adverse action absent the 

protected activity. Assuming that an 

investigation proceeds beyond the 

gatekeeping phase, the ERA specifies 

statutory burdens of proof that require 

an employee to prove that the alleged 

protected activity was a ‘‘contributing 

factor’’ to the alleged adverse action. 42 

U.S.C. 5851(b)(3)(C). If the employee 

proves that the alleged protected 

activity was a contributing factor to the 

adverse action, the employer, to escape 

liability, must prove by ‘‘clear and 

convincing evidence’’ that it would have 

taken the same action in the absence of 

the protected activity. A contributing 

factor is ‘‘any factor, which alone or in 

combination with other factors, tends to 

affect in any way the outcome of the 

decision.’’ Marano v. Dep’t of Justice, 2 

F.3d 1137, 1140 (Fed. Cir. 1993) 

(Whistleblower Protection Act, 5 U.S.C. 

1221(e)(1)); cf. Trimmer, 174 F.3d at 

1101 (the 1992 amendments aimed, in 

part, ‘‘to make it easier for [ERA] 

whistleblowers to prevail in their 

discrimination suits’’)). In proving that 

protected activity was a contributing 

factor in the adverse action, ‘‘a 

complainant need not necessarily prove 

that the respondent’s articulated reason 

was a pretext in order to prevail,’’ 

because a complainant alternatively can 

prevail by showing that the 

respondent’s ‘‘ ‘reason, while true, is 

only one of the reasons for its conduct,’ ’’ 

and that another reason was 

complainant’s protected activity. See 

Klopfenstein v. PCC Flow Techs. 

Holdings, Inc., No. 04–149, 2006 WL 

1516650, *13 (ARB May 31, 2006) 

(discussing contributing factor test 

under SOX) (citing Rachid v. Jack in the 

Box, Inc., 376 F.3d 305, 312 (5th Cir. 

2004)). 

The ERA statutory burdens of proof 

do not address the evidentiary standard 

that applies to a complainant’s proof 

that protected activity was a 

contributing factor in an adverse action. 

Adhering to traditional Title VII 

discrimination law, it is the Secretary’s 

position that the complainant must 

prove by a ‘‘preponderance of the 

evidence’’ that his or her protected 

activity contributed to the adverse 

action; otherwise, the burden never 

shifts to the employer to establish its 

‘‘clear and convincing evidence’’ 

defense. See, e.g., Dysert v. U.S. Sec’y of 

Labor, 105 F.3d 607, 609 (11th Cir. 

1997) (upholding Department’s 

interpretation of 42 U.S.C. 5851(b)(3)(C), 

as requiring an employee to prove by a 

preponderance of the evidence that 

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protected activity was a contributing 

factor in an adverse action); see also 

Trimmer, 174 F.3d at 1102 (‘‘[o]nly if the 

complainant meets his burden [of 

proving by a preponderance of the 

evidence that he engaged in protected 

activity that was a contributing factor in 

an adverse action] does the burden then 

shift to the employer to demonstrate by 

clear and convincing evidence that it 

would have taken the same unfavorable 

personnel action in the absence of such 

behavior.’’); Stone & Webster 

Engineering Corp. v. Herman, 115 F.3d 

1568, 1572 (11th Cir. 1997) (under 

section 5851, an employee must first 

persuade the Secretary that protected 

activity was a contributing factor in an 

adverse action and then, if the employee 

succeeds, the employer must prove by 

clear and convincing evidence that it 

would have taken the same action in the 

absence of protected activity). 

The 1992 ERA amendments altered 

the employer’s burden in traditional 

‘‘mixed motive’’ cases; under the ERA, 

once the Secretary concludes that the 

employer acted for both prohibited and 

legitimate reasons, the employer can 

escape liability only by proving by clear 

and convincing evidence that it would 

have reached the same decision even in 

the absence of the protected activity. 42 

U.S.C. 5851(b)(3)(D). The ‘‘clear and 

convincing evidence’’ standard is a 

higher burden of proof for employers 

than the former ‘‘preponderance of the 

evidence’’ standard. See 138 Cong. Rec. 

32,081, 32,082 (1992). Comments were 

received on section 24.104 from GAP, 

NWC, William H. Ewing, Richard R. 

Renner, and Jason M. Zuckerman. GAP, 

Ewing, Renner, and Zuckerman 

commented that section 24.104(b) 

should require that the respondent’s 

responses to the complaint be served on 

the complainant. According to GAP, 

while the procedures currently require 

the complainant to provide information 

that can be reviewed by the respondent, 

they do not require the respondent to 

share information with the complainant. 

Ewing, Renner, and Zuckerman 

commented that investigations would be 

improved if complainants were given 

copies of the respondents’ responses. 

OSHA believes that these concerns are 

valid and has specified in the regulation 

that the agency will provide to the 

complainant (or the complainant’s legal 

counsel if complainant is represented by 

counsel) a copy of all of respondent’s 

submissions to the agency that are 

responsive to the complainant’s 

whistleblower complaint. Before 

providing such materials to the 

complainant or the complainant’s legal 

counsel, the agency will redact them, if 

necessary, in accordance with the 

Privacy Act of 1974, 5 U.S.C. 552a, et 

seq., and other applicable 

confidentiality laws. The agency expects 

that sharing information with 

complainants in accordance with this 

new provision will enhance OSHA’s 

ability to conduct full and fair 

investigations and permit the Assistant 

Secretary to more thoroughly assess 

defenses raised by respondents. 

Commenting on section 24.104(c), 

Renner and Zuckerman commented that 

it is important for employee witnesses 

of respondents to have the option of 

meeting privately with the OSHA 

investigator because they may be 

reluctant to speak to investigators for 

fear of retaliation. While OSHA does not 

believe that any changes to its 

regulations are necessary, it is OSHA’s 

policy to meet privately with nonmanagement employees. The facts and 

circumstances of each case will be 

considered in determining whether an 

employee is a non-management 

employee. In addition, the 

whistleblower provisions of the six 

environmental statutes and the ERA 

protect management employees to the 

same extent that they protect nonmanagement employees. Thus, where 

the complainant is a management 

employee, it is OSHA’s policy to meet 

privately with the complainant. 

GAP objected to OSHA’s use in 

sections 24.104(d) and (e) of the terms 

‘‘unfavorable personnel action’’ and 

‘‘adverse personnel action,’’ because 

those terms suggest that only actions 

taken by an employer’s personnel or 

human resources departments are 

actionable. OSHA does not believe that 

the reference to ‘‘personnel action’’ in 

sections 24.104(d) and (e) of the interim 

final rule suggested that only adverse 

actions taken by personnel or human 

resources departments are actionable. 

However, for clarity and consistency, 

the final regulatory text has been 

changed to use ‘‘adverse action’’ 

throughout. 

GAP also commented with respect to 

section 24.104(e)(4) that to refuse to 

investigate or discontinue an 

investigation before all of the evidence 

is reviewed by OSHA is ‘‘inconsistent 

with the letter and spirit of the 

employee protection provision of the 

ERA,’’ and that only where there is no 

evidence of protected activity should an 

investigation be either not conducted or 

discontinued. Moreover, GAP 

commented that ‘‘[t]he regulations must 

specify that investigators pay particular 

attention to pretext in the form of 

misuse of policies or unequal 

enforcement of policies against those 

who engage in protected activity.’’ 

OSHA does not believe that these 

comments require revisions to the 

regulations. The language contained in 

section 24.104(e)(4) reflects the statutory 

language of the ERA. See 42 U.S.C. 

5851(b)(3)(A) and (3)(B). OSHA 

conducts fair and impartial 

investigations of whistleblower 

complaints. In evaluating the merits of 

a complaint, investigators credit only 

explanations for adverse action taken by 

an employer that are supported by the 

evidence. 

NWC commented that these 

regulations should adopt the statutory 

ERA burdens of proof for complaints 

filed under the six environmental 

statutes, because since the 1992 ERA 

amendments, Congress has applied the 

ERA burdens of proof to other 

whistleblower statutes that it has 

enacted or amended, including the 

Pipeline Safety Improvement Act of 

2002 (‘‘PSIA’’), 49 U.S.C. 60129; SOX; 

the Wendell H. Ford Aviation 

Investment and Reform Act for the 21st 

Century (‘‘AIR21’’), 49 U.S.C. 42121; and 

the Surface Transportation Assistance 

Act of 1982 (‘‘STAA’’), 49 U.S.C. 31105. 

NWC commented in this regard that the 

burdens of proof currently applied to 

the six environmental whistleblower 

acts are not statutory, but are based on 

employment discrimination law (Title 

VII), and that using the ERA burdens of 

proof for the six environmental statutes 

would serve the interests of justice. 

However, absent specific statutory 

direction, OSHA does not believe it is 

appropriate to apply the ERA’s burdens 

of proof to the six environmental 

statutes. 

Section 24.105 Issuance of Findings 

and Orders 

The procedures set forth in this 

section formerly appeared under a 

paragraph of section 24.4, the 

Investigations section. This new section 

was created for purposes of clarification 

and consistency with a majority of the 

other whistleblower regulations 

promulgated by OSHA. The former 

regulations provided that the Assistant 

Secretary would issue a ‘‘Notice of 

Determination’’ at the conclusion of the 

investigation, or upon dismissal of a 

complaint. These regulations no longer 

use the term ‘‘Notice of Determination.’’ 

Instead, the regulations refer to the 

issuance of findings and orders, the 

nomenclature used in most of OSHA’s 

other whistleblower regulations. This 

change in nomenclature is not intended 

to be substantive. 

The 30-day timeframe for completion 

of the investigation has been retained 

because it is a statutory requirement 

under the majority of the whistleblower 

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statutes covered by this part (the Solid 

Waste Disposal Act, the Federal Water 

Pollution Control Act, and the 

Comprehensive Environmental 

Response, Compensation and Liability 

Act have no timeframe). The current 

regulations provide a 5-business-day 

timeframe for filing objections to the 

findings. These new regulations have 

been changed to provide that if no 

objections to the Assistant Secretary’s 

findings and order are filed within 30 

days of their receipt, the findings and 

order of the Assistant Secretary will 

become the final order of the Secretary. 

Thus, the timeframe for objecting to the 

findings and/or order and for requesting 

a hearing has been extended from 5 

business days to 30 days. The Secretary 

is aware that, since the ERA, the Clean 

Air Act (‘‘CAA’’), the Safe Drinking 

Water Act (‘‘SDWA’’), and the Toxic 

Substances Control Act (‘‘TSCA’’) 

provide that the Secretary should issue 

a final decision within 90 days of the 

filing of the complaint, allowing the 

parties 30 days in which to object to the 

Assistant Secretary’s findings and any 

order issued may have an impact on the 

Department’s meeting the 90-day 

timeframe. Although the ERA 

amendments in 2005 did not change the 

90-day timeframe, the Secretary believes 

that in amending the ERA in 2005, 

Congress recognized that it 

appropriately could take up to one year 

to complete the investigatory and 

adjudicative processing of a 

whistleblower complaint (i.e., issue a 

final decision of the Secretary) under 

these environmental statutes. 

Accordingly, the Secretary believes that 

allowing 30 days for a party to object to 

the Assistant Secretary’s findings and 

request a hearing is warranted. Not only 

does the extension make the regulations 

more consistent with those 

implementing the majority of the other 

whistleblower statutes administered by 

OSHA, it also offers the parties a more 

reasonable timeframe in which to 

consider whether to appeal the 

Assistant Secretary’s findings. 

With regard to this section, GAP, 

William H. Ewing, Richard R. Renner 

and Jason M. Zuckerman expressed 

approval for OSHA’s decision to 

increase the time period for seeking a 

hearing from five business days to 30 

days. In addition, GAP, Ewing, Renner, 

and Zuckerman commented that in 

section 24.105(b), the rule should 

specifically require service on the 

attorney of record for each party (if the 

party has counsel). Ewing, Renner, and 

Zuckerman commented that 

alternatively, the rule should allow 

objections within 30 days of the last 

date of service, when the party and his 

or her attorney are served at different 

times. Although it is already OSHA’s 

policy to send its findings to the 

complainant and the respondent by 

certified mail with copies to their 

respective attorneys, OSHA has revised 

the regulations to require service on the 

attorney of record. 

Subpart B—Litigation 

Section 24.106 Objections to the 

Findings and Order and Request for a 

Hearing 

Formerly, the procedures for 

requesting a hearing before an 

administrative law judge (‘‘ALJ’’) were 

set forth under section 24.6. As 

indicated above, to be effective, 

objections to the findings of the 

Assistant Secretary must be in writing 

and must be filed with the Chief 

Administrative Law Judge, U.S. 

Department of Labor, 800 K Street, NW., 

Washington, DC 20001 within 30 days 

of receipt of the findings. The date of 

the postmark, facsimile transmittal, or email communication is considered the 

date of the filing; if the objection is filed 

in person, by hand-delivery or other 

means, the objection is filed upon 

receipt. The filing of objections is also 

considered a request for a hearing before 

an ALJ. Although the parties are 

directed to serve a copy of their 

objections to the other parties of record, 

as well as the OSHA official who issued 

the findings and order, the Assistant 

Secretary, and the Associate Solicitor, 

Division of Fair Labor Standards, U.S. 

Department of Labor, 200 Constitution 

Ave., NW., Room N–2716, Washington, 

DC 20210, the failure to serve copies of 

the objections to the other parties of 

record does not affect the ALJ’s 

jurisdiction to hear and decide the 

merits of the case. See Shirani v. Calvert 

Cliffs Nuclear Power Plant, Inc., No. 04– 

101, 2005 WL 2865915, *7 (ARB Oct. 

31, 2005). 

GAP commented that the language in 

section 24.106(a) needs to be clarified 

because it is unclear whether detailed 

objections, which are unnecessary since 

an administrative hearing is de novo, 

must accompany a hearing request. GAP 

suggested that the regulation be changed 

to state that ‘‘it is sufficient for an 

objecting party to request a hearing.’’ 

OSHA has considered this concern and 

does not believe that changes to the rule 

are necessary or that the suggested 

change would add helpful clarification; 

the rule contains no requirement that a 

party file detailed objections to request 

a hearing. 

Section 24.107 Hearings 

This section has been revised to 

conform to the majority of the other 

whistleblower regulations promulgated 

by OSHA. The interim final rule 

adopted the rules of practice of the 

Office of Administrative Law Judges at 

29 CFR part 18, subpart A. In order to 

assist in obtaining full development of 

the facts in whistleblower proceedings, 

however, the interim final rule provided 

that formal rules of evidence do not 

apply. The section specifically provides 

for consolidation of hearings if both the 

complainant and respondent object to 

the findings and/or order of the 

Assistant Secretary. Otherwise, this 

section no longer addresses procedural 

issues, e.g., place of hearing, right to 

counsel, procedures, evidence and 

record of hearing, oral arguments and 

briefs, and dismissal for cause, because 

the Office of Administrative Law Judges 

has adopted its own rules of practice 

that cover these matters. In order for 

hearings to be conducted as 

expeditiously as possible, and 

particularly in light of the provision in 

the ERA allowing complainants to seek 

a de novo hearing in Federal court if the 

Secretary has not issued a final decision 

within one year of the filing of the 

complaint, this section in the interim 

final rule provided that the ALJ has 

broad authority to limit discovery. The 

preamble noted, for example, that an 

ALJ may limit the number of 

interrogatories, requests for production 

of documents, or depositions allowed. 

The preamble also noted that an ALJ 

may exercise discretion to limit 

discovery unless the complainant agrees 

to delay filing a complaint in Federal 

court for some definite period of time 

beyond the one-year point; and that if a 

complainant seeks excessive or 

burdensome discovery under the ALJ’s 

rules and procedures at part 18 of Title 

29, or fails to adhere to an agreement to 

delay filing a complaint in Federal 

court, a district court considering a 

request for de novo review might 

conclude that such conduct resulted in 

a delay due to the claimant’s bad faith. 

Former paragraphs (f) and (g) of this 

section have been moved to section 

24.108. 

Comments on section 24.107 were 

received from GAP, NWC, William H. 

Ewing, James F. Newport, Richard R. 

Renner, and Jason M. Zuckerman. GAP 

commented that this section should be 

rewritten to de-emphasize the 

importance of an expeditious hearing. 

According to GAP, limiting discovery 

injures complainants to a greater extent 

than respondents because the 

documents needed to prove their cases 

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are in the possession of the respondents. 

Similarly, NWC, Ewing, Newport, 

Renner, and Zuckerman opposed the 

last sentence of section 24.107(b), which 

provides ALJs with broad discretion to 

limit discovery to expedite hearings. 

NWC commented that there is no legal 

basis for treating discovery in 

whistleblower cases differently from 

how it is treated in Title VII cases and 

that it is inconsistent with the interests 

of justice and Congressional intent to 

limit the ability of whistleblowers to 

obtain evidence in discovery while 

holding them to the same evidentiary 

burden applicable in Title VII cases. 

Ewing, Renner, and Zuckerman 

suggested that instead of limiting 

discovery, hearings could be expedited 

by requiring parties to comply with the 

initial disclosure requirements under 

Federal Rules of Civil Procedure 

26(a)(1), by shortening the time 

permitted for discovery, and by 

providing that ALJs can make adverse 

inferences of unlawful retaliation based 

on a respondent’s failure to respond 

fully and completely to discovery 

requests. They also commented that 

hearings could be expedited by 

requiring parties to provide discovery 

responses in searchable electronic forms 

when a party has the responsive 

information in such forms. GAP also 

commented that the Department should 

clarify that it will not be considered bad 

faith ‘‘to seek discovery; seek reasonable 

delays to allow discovery; or to 

accommodate the schedules of the 

parties, their counsel or the ALJ.’’ 

Suggesting that most delays in 

administrative cases occur either at the 

investigative stage or during ARB 

review, GAP added that complainants 

should not be penalized for necessary 

delays at the hearing stage. 

The provisions and statements to 

which GAP, NWC, Ewing, Newport, 

Renner, and Zuckerman object were 

intended by OSHA to implement 

Congress’s intent that administrative 

whistleblower hearings under the ERA 

proceed expeditiously. See 42 U.S.C. 

5851(b)(2)(A) and (b)(4). OSHA believes 

that the short time frames provided 

under the whistleblower statutes 

generally, as well as the provision in 

Section 211 of the ERA providing for de 

novo review in district court, illustrate 

a congressional intent that the 

Department expedite its administrative 

hearings and procedures. Nevertheless, 

after carefully considering the 

comments, OSHA has decided to 

remove the regulatory provision in the 

rule stating that ALJs have broad 

discretion to limit discovery. The 

provision essentially reiterates authority 

that ALJs currently possess under their 

procedural rules at 29 CFR 18.14— 

18.21, which permit judges to limit 

discovery in appropriate circumstances 

as well as to make adverse inferences 

where parties fail to comply with their 

discovery orders. Accordingly, the 

provision is not necessary. In response 

to GAP’s comments, OSHA also has 

eliminated from the preamble the 

suggestion that a complainant’s attempts 

to engage in extensive discovery when 

prosecuting or defending a claim before 

an ALJ might constitute a presumption 

of bad faith delay. And while OSHA 

agrees that it would be beneficial for 

parties to provide discovery responses 

in searchable electronic formats, it does 

not believe that it is appropriate for 

these regulations to specify how 

discovery in a particular case should 

proceed. The final rule now adopts the 

rules of evidence of the Office of 

Administrative Law Judges at 29 CFR 

part 18, subpart B, as well as the rules 

of practice at subpart A. Because it is no 

longer necessary for this rule to address 

evidentiary matters, paragraph (d) of 

this section has been deleted. 

NWC commented regarding the 

preamble’s discussion of this section 

that OSHA should not permit an 

employee to enter into an agreement to 

delay filing a complaint in district court 

because the jurisdictional time period 

for filing such an action cannot be 

altered by regulation. Rather, NWC 

commented that OSHA should add to 

section 24.107 a procedure in cases 

where third-party witnesses refuse to 

testify that permits employees to seek 

stays of their administrative proceedings 

so that they may file district court 

complaints once the one-year ‘‘kick-out’’ 

period has passed. NWC believes that 

such a procedure would encourage 

third-party witnesses who cannot be 

compelled by subpoena to testify in a 

whistleblower case to voluntarily 

appear before an ALJ proceeding. While 

third-party witnesses may be more 

inclined to voluntarily testify at ALJ 

hearings as an alternative to being 

compelled to testify in district court 

pursuant to a subpoena, OSHA does not 

believe that a special regulatory 

procedure to enable complainants to 

seek stays prior to filing in district court 

is necessary; the regulations do not 

prohibit an employee from seeking a 

stay from an ALJ based on his or her 

intention to file a de novo action in 

district court. 

Finally, James F. Newport commented 

that the new rule shifts the cost of 

attending hearings to the complainant 

by removing the requirement that the 

hearing be held within 75 miles of the 

complainant’s residence (see former 

section 24.6(c)). Newport commented 

that this change could discourage 

complainants from pursuing a case 

because of the financial burden. OSHA 

does not believe that the removal of the 

requirement that the hearing be held 

within 75 miles of the complainant’s 

residence will discourage complainants 

from pursuing a case due to financial 

burden. This rule provides that the rules 

of practice and procedures for 

administrative hearings before the OALJ 

should apply to ALJ hearings. The 

OALJ’s rules of practice and procedure 

provide, at 29 CFR 18.27(c): ‘‘Unless 

otherwise required by statute or 

regulations, due regard shall be given to 

the convenience of the parties and the 

witnesses in selecting a place for the 

hearing.’’ This same provision has 

governed the scheduling of hearings 

under regulations implementing the 

whistleblower protection provisions of 

AIR21, 29 CFR part 1979; SOX, 29 CFR 

part 1980; and PSIA, 29 CFR part 1981. 

No evidence has been submitted to 

suggest that complainants have been 

discouraged from pursuing cases under 

those statutes out of concern for the 

potential location of the hearing. 

Section 24.108 Role of Federal 

Agencies 

This new section was added to 

conform these regulations to the 

majority of OSHA’s other whistleblower 

regulations. As noted above, the 

substance of this section formerly was 

set forth under paragraphs (f) and (g) of 

section 24.6, the section covering 

hearings. No substantive changes are 

intended. Under the ERA and the 

environmental whistleblower statutes, 

OSHA does not ordinarily appear as a 

party in the proceeding. The Secretary 

has found that in most whistleblower 

cases, parties have been ably 

represented and the public interest has 

not required the Department’s 

participation. Nevertheless, the 

Assistant Secretary, at his or her 

discretion, may participate as a party or 

amicus curiae at any time in the 

administrative proceedings. For 

example, the Assistant Secretary may 

exercise his or her discretion to 

prosecute the case in the administrative 

proceeding before an ALJ; petition for 

review of a decision of an ALJ, 

including a decision based on a 

settlement agreement between the 

complainant and the respondent, 

regardless of whether the Assistant 

Secretary participated before the ALJ; or 

participate as amicus curiae before the 

ALJ or in the ARB proceeding. Although 

we anticipate that ordinarily the 

Assistant Secretary will not participate, 

the Assistant Secretary may choose to 

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do so in appropriate cases, such as cases 

involving important or novel legal 

issues, large numbers of employees, 

alleged violations which appear 

egregious, or where the interests of 

justice might require participation by 

the Assistant Secretary. The 

Environmental Protection Agency, the 

Nuclear Regulatory Commission, and 

the Department of Energy, at those 

agencies’ discretion, also may 

participate as amicus curiae at any time 

in the proceedings. 

NWC commented that when a State 

agency is named as a party, OSHA 

should be required to intervene or 

participate as a party in the proceeding. 

In support of this comment, NWC stated 

that the public interest would be served 

if OSHA intervened in every case in 

which a State agency is a named 

respondent because Congress intended 

that the whistleblower provisions of the 

six environmental acts cover State 

agencies. Richard R. Renner and Jason 

M. Zuckerman commented that OSHA 

should consider intervening on behalf of 

complainants, especially where a 

complainant is pro se, disputing 

OSHA’s statement in the preamble that 

‘‘in most whistleblower cases, parties 

have been ably represented and the 

public interest has not required the 

Department’s participation.’’ 

OSHA continues to believe that its 

participation as a routine matter in all 

whistleblower cases is neither necessary 

nor an effective use of its resources. 

Nevertheless, as noted above, it is 

OSHA’s policy to consider participating 

in cases in which the Assistant 

Secretary considers the agency’s 

participation to be in the interests of 

justice. The inability of complainants to 

pursue their own actions against State 

employers and their lack of 

representation by counsel are among the 

factors that OSHA considers when 

exercising its discretion to intervene as 

a party or as an amicus. 

Section 24.109 Decision and Order of 

the Administrative Law Judge 

This section sets forth the content of 

the decision and order of the ALJ, and 

includes the standard for finding a 

violation under the environmental 

statutes and the ERA. The section 

further provides that the Assistant 

Secretary’s determination to dismiss the 

complaint without an investigation or 

without a complete investigation 

pursuant to section 24.104 is not subject 

to review. Thus, paragraph (c) of section 

24.109 clarifies that the Assistant 

Secretary’s determinations on whether 

to proceed with an investigation under 

the ERA and whether to make particular 

investigative findings under any of the 

statutes subject to this part are 

discretionary decisions not subject to 

review by the ALJ. The ALJ hears cases 

de novo and, therefore, as a general 

matter, may not remand cases to the 

Assistant Secretary to conduct an 

investigation or make further factual 

findings. Paragraph (c) further clarifies 

that the ALJ will either hear a case on 

the merits or dispose of the matter 

without a hearing if appropriate. A full 

discussion of the burdens of proof used 

by the Department of Labor to resolve 

whistleblower cases under this part is 

set forth above in the discussion of 

section 24.104. 

This section also has been revised to 

eliminate the requirement under the 

ERA for the ALJ to issue a preliminary 

order of reinstatement separate from the 

findings. The section clarifies that when 

an ALJ’s decision finds that the 

complaint has merit and orders relief, 

the order will be effective immediately 

upon its receipt by the respondent, 

except for that part of the order 

awarding compensatory damages. 

Congress intended that whistleblowers 

under the ERA be reinstated and 

provided additional interim relief based 

upon the ALJ’s order even while the 

decision is on review with the ARB. The 

previous regulations have caused 

confusing delays to the complainant’s 

right to immediate reinstatement. See, 

e.g., McNeill v. Crane Nuclear, Inc., 

ARB Case No. 02–002, 2002 WL 

31932543, at *1–*2 (Admin. Review Bd. 

Dec. 20, 2002). The Secretary intends 

that, by eliminating any requirement 

that the ALJ ‘‘shall also issue a 

preliminary order providing [all of the] 

relief’’ specified in the recommended 

order before an interim order becomes 

effective, confusion will be avoided and 

congressional intent to have 

complainants promptly reinstated based 

upon a meritorious ALJ decision will be 

better effectuated. Id. Furthermore, the 

ALJ’s order will be effective 

immediately whether or not the ALJ 

designates the decision and/or order as 

recommended. 

The substance of the rest of this 

section was formerly found in section 

24.7. The requirement that the ALJ issue 

a decision within 20 days after the 

conclusion of the hearing has been 

eliminated because procedures for 

issuing decisions, including their 

timeliness, are addressed by the Rules of 

Practice and Procedure for 

Administrative Hearings Before the 

Office of Administrative Law Judges at 

29 CFR 18.57. 

GAP commented that the language in 

section 24.109(b) discussing the burdens 

of proof should be clarified. GAP 

commented that the regulation should 

be changed to state affirmatively with 

respect to the respondent’s burden that 

‘‘relief must be ordered unless’’ the 

respondent carries its burden of proof, 

rather than to state that ‘‘relief may not 

be ordered’’ if the respondent 

demonstrates by clear and convincing 

evidence under the ERA, or by 

preponderance of the evidence under 

the environmental statutes, that it 

would have taken the same action in the 

absence of protected activity. The 

language used in the regulation, 

however, accurately reflects the 

statutory language in section 211 of the 

ERA and, consistent with that language, 

the regulation retains language 

indicating that relief may not be ordered 

if the respondent proves by a 

preponderance of the evidence under 

the environmental statutes that it would 

have taken the same action in the 

absence of protected activity. 

Section 24.110 Decision and Orders of 

the Administrative Review Board 

The decision of the ALJ is the final 

decision of the Secretary if no timely 

petition for review is filed with the 

ARB. Upon the issuance of the ALJ’s 

decision, the parties have 10 business 

days within which to petition the ARB 

for review of that decision, or it 

becomes the final decision of the 

Secretary and is not subject to judicial 

review. The date of the postmark, 

facsimile transmittal, or e-mail 

communication will be considered to be 

the date of filing; if the petition is filed 

in person, by hand-delivery or other 

means, the petition is considered filed 

upon receipt. The appeal provisions in 

this part have been revised, consistent 

with the majority of OSHA’s other 

whistleblower regulations, to provide 

that an appeal to the ARB is no longer 

a matter of right but is accepted at the 

discretion of the ARB. Congress 

intended these whistleblower actions to 

be expedited and this change may assist 

in furthering that goal. The parties 

should identify in their petitions for 

review the legal conclusions and orders 

to which exception is taken, or the 

exceptions will ordinarily be deemed 

waived. The ARB has 30 days to decide 

whether to grant the petition for review. 

If the ARB does not grant the petition, 

the decision of the ALJ becomes the 

final decision of the Secretary. The ERA, 

CAA, SDWA, and TSCA contain a 90- 

day timeframe for issuing final agency 

decisions. Notwithstanding this short 

timeframe, the Secretary believes that it 

is appropriate to give the ARB 30 days 

in which to decide whether to grant 

review; as stated above, the Secretary 

believes that in amending the ERA in 

August 2005, Congress recognized that 

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the Department appropriately could take 

up to one year to complete the 

investigatory and adjudicative 

processing of a whistleblower complaint 

under these statutes. If a timely petition 

for review is filed with the ARB, any 

relief ordered by the ALJ, except for that 

ordered under the ERA, is inoperative 

while the matter is pending before the 

ARB. The relief ordered by the ALJ 

under the ERA is effective immediately 

except for that portion awarding 

compensatory damages. This section 

further provides that, when the ARB 

accepts a petition for review, the ALJ’s 

factual determinations will be reviewed 

under the substantial evidence standard. 

This section also provides that in the 

exceptional case, the ARB may grant a 

motion to stay an ALJ’s order of relief 

under the ERA, which otherwise will be 

effective while review is conducted by 

the ARB. The Secretary believes that a 

stay of an ALJ’s order of relief under the 

ERA only would be appropriate where 

the respondent can establish the 

necessary criteria for equitable 

injunctive relief, i.e., irreparable injury, 

likelihood of success on the merits, and 

a balancing of possible harms to the 

parties and the public favors a stay. 

Comments on section 24.110 were 

received by NWC, William H. Ewing, 

Richard R. Renner, and Jason M. 

Zuckerman. NWC commented that the 

10-day period for filing objections is too 

short and that parties should be given 

between 30 and 60 days to petition for 

review, depending on the level of 

specificity required in the petition. 

Ewing, Renner, and Zuckerman also 

commented that the time period for 

petitioning for review by the ARB was 

too short and suggested a 30-day period 

to petition for review. In addition, 

Ewing, Renner, and Zuckerman 

suggested that rather than provide that 

exceptions not raised in the petition for 

review ordinarily will be waived, the 

regulations should permit parties to 

supplement the reasons for seeking 

review when filing their opening briefs. 

They commented that to the extent that 

the ARB needs to determine whether 

there are issues meriting review, the 

regulations can require that a party file 

a petition that identifies good grounds 

for review, and permit the party to raise 

additional assignments of error in the 

brief. 

OSHA believes that 10 business days, 

which also is the time frame under 

AIR21 (see 29 CFR 1979.110(a)) and 

under SOX (see 29 CFR 1980.110(a)), is 

sufficient time to petition for review of 

an ALJ decision, particularly in light of 

the fact that the rule uses the date of 

filing to determine timeliness rather 

than the date of the ARB’s receipt of the 

petition. Furthermore, OSHA believes 

that to enable the ARB to determine 

whether to accept review, it is necessary 

that the petition for review identify the 

rulings to which the party seeking 

review takes exception. Nevertheless, it 

is not necessary that the petition 

identify each factual finding to which 

the party objects. Rather, it is sufficient 

that the petition generally identify the 

legal conclusions that are alleged to be 

erroneous. OSHA has amended these 

regulations accordingly. 

NWC commented that these 

regulations should revert to the previous 

practice that required the ARB to review 

the entire record on appeal de novo. As 

indicated above, in providing that the 

ARB will review factual determinations 

under the substantial evidence standard, 

these regulations apply the standard of 

review that the ARB applies in 

reviewing ALJ decisions under the 

whistleblower provisions of AIR21, 

SOX, and PSIA. OSHA believes that, 

because the ARB is an appellate body, 

it is appropriate for the ARB to give 

special deference to the findings of the 

trier of fact. See Henrich v. Ecolab, Inc., 

No 05–030, 2007 WL 1578490, at *4 

(Admin. Review Bd. May 30, 2007) (‘‘As 

we and our predecessors often have 

noted, the Board is an appellate body. 

We review ALJ decisions for error; we 

do not simply sit as a second-tier factfinder.’’). Accordingly, no change to the 

standard of review is necessary. 

Finally, OSHA is changing the 

regulation at section 24.110(b) to correct 

the inadvertently erroneous statement 

that when the ARB denies a petition for 

review of an ALJ’s decision, judicial 

review is not available. Although no 

comments were received regarding this 

error, OSHA is amending the rule to 

clarify that judicial review is available 

in cases where the ARB denies review 

of an ALJ decision for which 

appropriate review was sought. 

Subpart C—Miscellaneous Provisions 

Section 24.111 Withdrawal of 

Complaints, Objections, and Petitions 

for Review; Settlement 

This section provides for procedures 

and time periods for withdrawal of 

complaints, the withdrawal of findings 

by the Assistant Secretary, and the 

withdrawal of objections to findings. It 

also provides for approval of settlements 

at the investigative and adjudicative 

stages of the case. The regulations 

reflect that settlement agreements under 

the statutory provisions of the ERA, 

CAA, SDWA, and TSCA must be 

reviewed and approved by the Secretary 

to ensure that they are just and 

reasonable and in the public interest. 

See Beliveau v. United States Dep’t of 

Labor, 170 F.3d 83, 86 (1st Cir. 1999); 

Macktal v. Secretary of Labor, 923 F.2d 

1150, 1154 (5th Cir. 1991). Although it 

has been OSHA’s practice to review 

settlements for approval under all the 

environmental whistleblower statutes, it 

is required by statute only under the 

ones noted above. See Bertacchi v. City 

of Columbus—Division of Sewerage & 

Drainage, ARB Case No. 05–155 (April 

13, 2006). Notwithstanding this 

statutory distinction, the Department 

encourages the parties to submit all 

settlements for review and approval, 

even those arising under the CERCLA, 

SWDA, and FWPCA. We note that a 

settlement that has not been reviewed 

and approved by the Secretary will not 

be considered a final order enforceable 

under section 24.113. 

One comment was received regarding 

section 24.111. NWC commented that 

the section should be dropped and that 

the former practice of liberally 

permitting employees to withdraw 

claims, without prejudice, should be 

continued, especially under the six 

environmental acts, in which employees 

are required to file claims within 30 

days. NWC commented that any 

restriction on the right to freely 

withdraw claims without prejudice will 

chill an employee’s willingness to file a 

claim and punish employees who 

simply needed to protect their 

procedural rights. OSHA does not 

believe that section 24.111 hinders a 

complainant’s ability to withdraw his or 

her complaint prior to the filing of 

objections to the Assistant Secretary’s 

findings and/or order. However, when 

OSHA is aware that a withdrawal is 

requested after a settlement has been 

reached between the complainant and 

the respondent, the Assistant Secretary’s 

approval is necessary to ensure that the 

settlement is just, reasonable, and in the 

public interest. This policy, which is 

required by statute in most instances, 

recognizes that: 

The Department of Labor does not simply 

provide a forum for private parties to litigate 

their private employment discrimination 

suits. Protected whistleblowing under the 

ERA may expose not just private harms but 

health and safety hazards to the public. The 

Secretary represents the public interest by 

assuring that settlements adequately protect 

whistleblowers. 

Beliveau, 170 F.3d at 88 (quoting 

Hoffman v. Fuel Econ. Contracting, 97– 

ERA–33 (Sec’y Order Denying Request 

to Reconsider, Aug. 4, 1989); see also 

Thompson v. U. S. Dep’t of Labor, 885 

F.2d 551, 556 (9th Cir. 1989) (Secretary 

must approve all settlement agreements 

under the ERA). 

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Significant revisions are being made 

to paragraph (c), which addresses 

situations in which parties seek to 

withdraw either objections to the 

Assistant Secretary’s findings and/or 

preliminary order or petitions for review 

of ALJ decisions. Paragraph (c) provides 

that a party may withdraw its objections 

to the Assistant Secretary’s findings 

and/or preliminary order at any time 

before the findings and preliminary 

order become final by filing a written 

withdrawal with the ALJ. Similarly, if a 

case is on review with the ARB, a party 

may withdraw its petition for review of 

an ALJ’s decision at any time before that 

decision becomes final by filing a 

written withdrawal with the ARB. The 

ALJ or the ARB, depending on where 

the case is pending, will determine 

whether to approve the withdrawal of 

the objections or the petition for review. 

Paragraph (c) clarifies that if the ALJ 

approves a request to withdraw 

objections to the Assistant Secretary’s 

findings and/or preliminary order, and 

there are no other pending objections, 

the Assistant Secretary’s findings and 

preliminary order will become the final 

order of the Secretary. Likewise, if the 

ARB approves a request to withdraw a 

petition for review of an ALJ decision, 

and there are no other pending petitions 

for review of that decision, the ALJ’s 

decision will become the final order of 

the Secretary. Finally, paragraph (c) 

provides that if objections or a petition 

for review are withdrawn because of 

settlement, the settlement must be 

submitted for approval in accordance 

with paragraph (d). 

Section 24.112 Judicial Review 

This section describes the statutory 

provisions for judicial review of 

decisions of the Secretary and requires, 

in cases where judicial review is sought, 

the ARB to submit the record of 

proceedings to the appropriate court 

pursuant to the Federal Rules of 

Appellate Procedure and the local rules 

of such court. Paragraph (d) reflects that 

original jurisdiction for judicial review 

of a decision issued under the 

Comprehensive Environmental 

Response, Compensation and Liability 

Act is with the district courts rather 

than the appellate courts. See 42 U.S.C. 

9610(b) and 9613(b). The paragraph also 

reflects, however, that when an agency 

decision is based on other statutes that 

provide for direct review in the court of 

appeals, principles of judicial economy 

and consistency justify review of the 

entire proceeding in the court of 

appeals. See Ruud v. U. S. Dep’t of 

Labor, 347 F.3d 1086, 1090 (9th Cir. 

2003) (‘‘[T]he court of appeals should 

entertain a petition to review an agency 

decision made pursuant to the agency’s 

authority under two or more statutes, at 

least one of which provides for direct 

review in the court of appeals, where 

the petition involves a common factual 

background and raises a common legal 

question. Consolidated review of such a 

petition avoids inconsistency and 

conflicts between the district and 

appellate courts while ensuring the 

timely and efficient resolution of 

administrative cases.’’); see also Shell 

Oil Co. v. F.E.R.C., 47 F.3d 1186, 1195 

(DC Cir. 1995) (‘‘[W]hen an agency 

decision has two distinct bases, one of 

which provides for exclusive 

jurisdiction in the court of appeals, the 

entire decision is reviewable exclusively 

in the appellate court.’’) (citations and 

internal question marks omitted). No 

comments were received on this section. 

Section 24.113 Judicial Enforcement 

This section describes the Secretary’s 

power under several of the statutes 

listed in section 24.100(a) to obtain 

judicial enforcement of orders and the 

terms of a settlement agreement. It also 

provides for enforcement of orders of 

the Secretary by the person on whose 

behalf the order was issued under the 

ERA and the CAA. No comments were 

received on this section. 

Section 24.114 District Court 

Jurisdiction of Retaliation Complaints 

Under the Energy Reorganization Act 

This section sets forth the ERA 

provision allowing complainants to 

bring an action in district court for de 

novo review if there has been no final 

decision of the Secretary within one 

year of the filing of the complaint and 

there is no delay due to the 

complainant’s bad faith. It provides that 

complainants will give notice 15 days in 

advance of their intent to file a 

complaint in district court. This 

provision authorizing a Federal court 

complaint is similar to those under the 

whistleblower provisions of SOX, 

STAA, the National Transit Systems 

Security Act of 2007, and the Federal 

Railroad Safety Act. In the interim final 

rule, the Secretary noted that this 

statutory scheme created the possibility 

that a complainant would file a 

complaint in district court after having 

litigated a claim before the agency and 

having received a decision from an ALJ 

or the ARB. The Secretary believed that 

it would be a waste of the resources of 

the parties, the Department, and the 

courts for complainants to pursue 

duplicative litigation. Accordingly, the 

Secretary suggested that the Federal 

courts might apply principles of issue or 

claim preclusion if a complainant 

brought a new action in Federal court 

following extensive litigation before the 

Department that resulted in a decision 

by an ALJ or the ARB. The Secretary 

also stated that where an administrative 

hearing had been completed and a 

matter was pending before an ALJ or the 

ARB for a decision, a Federal court also 

might treat a complaint as a petition for 

mandamus and order the Department to 

issue a decision under appropriate time 

frames. 

Two comments were received 

regarding section 24.114. NWC 

commented that because the rules 

concerning issue and claim preclusion 

only apply to an agency’s final order 

and an ALJ’s decision is not a final 

order, the Department should not advise 

Federal courts or parties that res 

judicata and/or collateral estoppel 

principles may apply. NWC further 

commented that because once an 

employee exhausts his or her 

administrative remedies, the 

Department cannot legally implement a 

rule restricting an employee’s right to 

file in Federal court, it should not urge 

a Federal court to remand a case back 

to the Department. NWC suggested that 

a potential waste of resources is not at 

issue because the discovery and hearing 

testimony obtained during an 

administrative proceeding may be used 

in the Federal court proceeding. 

In response to these comments, OSHA 

has reconsidered the statements made in 

the interim final rule. OSHA recognizes 

that there is no statutory basis for 

including preclusion principles in these 

regulations, and that the ERA does not 

delegate authority to the Secretary to 

regulate litigation in the Federal district 

courts. See Adams Fruit Co., Inc. v. 

Barrett, 494 U.S. 638, 649–50 (1990). 

Accordingly, the language in the 

preamble addressing issue preclusion 

principles and mandamus has been 

removed. 

Also on further consideration, the 

Secretary does not believe that it is 

reasonable to construe the statute to 

permit a complainant to initiate an 

action in Federal court after the 

Secretary issues a final decision, even if 

the date of the final decision is more 

than one year after the filing of the 

complaint. In the Secretary’s view, the 

purpose of the ‘‘kick out’’ provision is to 

aid the complainant in receiving a 

prompt decision. That goal is not 

implicated in a situation where the 

complainant already has received a final 

decision from the Secretary. In addition, 

permitting the complainant to file a new 

case in district court in such 

circumstances could conflict with the 

parties’ rights to seek judicial review of 

the Secretary’s final decision in the 

courts of appeals. The regulation has 

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been reworded in accordance with this 

position. 

Finally, GAP commented that OSHA’s 

requirement under section 24.114(b) 

that a complainant file a notice with the 

agency of his or her intention to seek 

relief in district court within 15 days of 

filing his or her de novo action in 

district court goes beyond the ERA’s 

requirements. 

Although the 15-day notice provision 

is not required by statute, OSHA 

believes that this notice provision falls 

within the scope of these procedural 

rules. 

Section 24.115 Special Circumstances; 

Waiver of Rules 

This section provides that in 

circumstances not contemplated by 

these rules or for good cause the ALJ or 

the ARB may, upon application and 

notice to the parties, waive any rule as 

justice or the administration of the 

statutes listed in section 24.100(a) 

requires. No comments were received 

on this section. 

Appendix A—Your Rights Under the 

ERA 

The notice that employers are 

required to post under Section 211(i) of 

the ERA has been revised to reflect the 

2005 amendments. Specifically, the 

notice now reflects that the definition of 

‘‘employer’’ has been expanded and that 

the employee has a right to file a 

complaint in district court if the 

Secretary has not issued a final decision 

within one year of the filing of the 

complaint and the delay is not due to 

the bad faith of the employee. As noted 

above, we also have substituted the term 

‘‘retaliation’’ for ‘‘discrimination.’’ The 

notice has also been revised to clarify 

that a complaint may be filed orally or 

in writing and that if a complainant is 

not able to file the complaint in English, 

the complaint may be filed in any 

language. 

One comment was received regarding 

Appendix A. GAP commented that the 

notice should be clarified to state that 

an employee is protected for raising 

concerns about a suspected violation of 

regulations or orders issued by the NRC 

or DOE. OSHA does not believe that 

changes to this notice are required 

because the protected activity listed on 

the notice applies the language used in 

the statute. Nevertheless, OSHA notes 

that the Secretary has held that the 

reporting of possible violations of NRC 

regulations is protected activity under 

the ERA. See McDonald v. University of 

Missouri, No. 90–ERA–59, 1995 WL 

848132, *5 (DOL Off. of Adm. App. Mar. 

21, 1995). A similar analysis suggests 

that the reporting of possible violations 

of relevant DOE regulations also is 

protected activity under the ERA. GAP 

further commented that in the section 

describing prohibited activity, the use of 

the word ‘‘retaliate’’ should be replaced 

with ‘‘discriminate’’ to make the 

language of the notice consistent with 

the statutory language. For the reasons 

discussed above in response to 

comments to section 24.102, OSHA does 

not believe that it is necessary or 

advisable to replace the word ‘‘retaliate’’ 

in the required notice with the word 

‘‘discriminate.’’ 

IV. Paperwork Reduction Act 

This rule contains a reporting 

provision (filing a retaliation complaint, 

section 24.103) which was previously 

reviewed and approved for use by the 

Office of Management and Budget 

(‘‘OMB’’) and assigned OMB control 

number 1218–0236 under the provisions 

of the Paperwork Reduction Act of 1995 

(Pub. L. 104–13). 

V. Administrative Procedure Act 

The notice and comment rulemaking 

procedures of Section 553 of the 

Administrative Procedure Act (‘‘APA’’) 

do not apply to ‘‘interpretive rules, 

general statements of policy, or rules of 

agency organization, procedure, or 

practice.’’ 5 U.S.C. 553(b)(A). This is a 

rule of agency procedure and practice 

within the meaning of that section. 

Therefore, publication in the Federal 

Register of a notice of proposed 

rulemaking and request for comments 

was not required. Although this rule 

was not subject to the notice and 

comment procedures of the APA, the 

Assistant Secretary sought and 

considered comments to enable the 

agency to improve the rules by taking 

into account the concerns of interested 

persons. 

Furthermore, because this rule is 

procedural rather than substantive, the 

normal requirement of 5 U.S.C. 553(d) 

that a rule be effective 30 days after 

publication in the Federal Register is 

inapplicable. The Assistant Secretary 

also finds good cause to provide an 

immediate effective date for this rule. It 

is in the public interest that the rule be 

effective immediately so that parties 

may know what procedures are 

applicable to pending cases. 

VI. Executive Order 12866; Unfunded 

Mandates Reform Act of 1995; Small 

Business Regulatory Enforcement 

Fairness Act of 1996; Executive Order 

13132 

The Department has concluded that 

this rule is not a ‘‘significant regulatory 

action’’ within the meaning of Executive 

Order 12866 because it is not likely to 

result in a rule that may: (1) Have an 

annual effect on the economy of $100 

million or more or adversely affect in a 

material way the economy, a sector of 

the economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local, or Tribal 

governments or communities; (2) create 

a serious inconsistency or otherwise 

interfere with an action taken or 

planned by another agency; (3) 

materially alter the budgetary impact of 

entitlements, grants, user fees, or loan 

programs or the rights and obligations of 

recipients thereof; or (4) raise novel 

legal or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in Executive 

Order 12866. Therefore, no regulatory 

impact analysis has been prepared. 

Because this rulemaking is procedural 

in nature it is not expected to have a 

significant economic impact; therefore 

no statement is required under Section 

202 of the Unfunded Mandates Reform 

Act of 1995. Furthermore, because this 

is a rule of agency procedure or practice, 

it is not a ‘‘rule’’ within the meaning of 

the Small Business Regulatory 

Enforcement Fairness Act of 1996 (5 

U.S.C. 804(3)(C)) and does not require 

congressional review. Finally, this rule 

does not have ‘‘federalism implications.’’ 

The rule does not 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’’ and therefore is 

not subject to Executive Order 13132 

(Federalism). 

VII. Regulatory Flexibility Analysis 

The Department has determined that 

the regulation will not have a significant 

economic impact on a substantial 

number of small entities. The regulation 

primarily implements procedures 

necessitated by statutory amendments 

enacted by Congress. Additionally, the 

regulatory revisions are necessary for 

the sake of consistency with the 

regulatory provisions governing 

procedures under the other 

whistleblower statutes administered by 

the Secretary. Furthermore, no 

certification to this effect is required 

and no regulatory flexibility analysis is 

required because no proposed rule has 

been issued. 

Document Preparation. This 

document was prepared under the 

direction of the Assistant Secretary, 

Occupational Safety and Health 

Administration, U.S. Department of 

Labor. 

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2820 Federal Register / Vol. 76, No. 11 / Tuesday, January 18, 2011 / Rules and Regulations 

List of Subjects in 29 CFR Part 24 

Administrative practice and 

procedure, Employment, Environmental 

protection, Investigations, Reporting 

and recordkeeping requirements, 

Whistleblowing. 

Signed in Washington, DC on January 7, 

2011. 

David Michaels, 

Assistant Secretary of Labor for Occupational 

Safety and Health. 

Accordingly, for the reasons set out in 

the preamble, part 24 of title 29 of the 

Code of Federal Regulations is revised 

to read as follows: 

PART 24—PROCEDURES FOR THE 

HANDLING OF RETALIATION 

COMPLAINTS UNDER THE EMPLOYEE 

PROTECTION PROVISIONS OF SIX 

ENVIRONMENTAL STATUTES AND 

SECTION 211 OF THE ENERGY 

REORGANIZATION ACT OF 1974, AS 

AMENDED 

Subpart A—Complaints, 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 B—Litigation 

24.106 Objections to the findings and order 

and 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. 

Subpart C—Miscellaneous Provisions 

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 Energy 

Reorganization Act. 

24.115 Special circumstances; waiver of 

rules. 

Appendix A to Part 24—Your Rights Under 

the Energy Reorganization Act 

Authority: 15 U.S.C. 2622; 33 U.S.C. 1367; 

42 U.S.C. 300j–9(i)BVG, 5851, 6971, 7622, 

9610; Secretary of Labor’s Order No. 5–2007, 

72 FR 31160 (June 5, 2007); Secretary of 

Labor’s Order No. 1–2010 (Jan. 15, 2010), 75 

FR 3924–01 (Jan. 25, 2010). 

Subpart A—Complaints, 

Investigations, Issuance of Findings 

§ 24.100 Purpose and scope. 

(a) This part implements procedures 

under the employee protection (or 

‘‘whistleblower’’) provisions for which 

the Secretary of Labor has been given 

responsibility pursuant to the following 

Federal statutes: Safe Drinking Water 

Act, 42 U.S.C. 300j–9(i); Federal Water 

Pollution Control Act, 33 U.S.C. 1367; 

Toxic Substances Control Act, 15 U.S.C. 

2622; Solid Waste Disposal Act, 42 

U.S.C. 6971; Clean Air Act, 42 U.S.C. 

7622; Energy Reorganization Act of 

1974, 42 U.S.C. 5851; and 

Comprehensive Environmental 

Response, Compensation and Liability 

Act of 1980, 42 U.S.C. 9610. 

(b) This part establishes procedures 

pursuant to the Federal statutory 

provisions listed in paragraph (a) of this 

section for the expeditious handling of 

retaliation complaints made by 

employees, or by persons acting on their 

behalf. These rules, together with those 

rules codified at 29 CFR part 18, set 

forth the procedures for submission of 

complaints under the Federal statutory 

provisions listed in paragraph (a) of this 

section, investigations, issuance of 

findings, objections to findings, 

litigation before administrative law 

judges (‘‘ALJ’’), issuance of decisions 

and orders, post-hearing administrative 

review, and withdrawals and 

settlements. 

§ 24.101 Definitions. 

Assistant Secretary means the 

Assistant Secretary of Labor for 

Occupational Safety and Health or the 

person or persons to whom he or she 

delegates authority under any of the 

statutes listed in § 24.100(a). 

Business days means days other than 

Saturdays, Sundays, and Federal 

holidays. 

Complainant means the employee 

who filed a complaint under any of the 

statutes listed in § 24.100(a) or on whose 

behalf a complaint was filed. 

OSHA means the Occupational Safety 

and Health Administration of the 

United States Department of Labor. 

Respondent means the employer 

named in the complaint, who is alleged 

to have violated any of the statutes 

listed in § 24.100(a). 

Secretary means the Secretary of 

Labor or persons to whom authority 

under any of the statutes listed in 

§ 24.100(a) has been delegated. 

§ 24.102 Obligations and prohibited acts. 

(a) No employer subject to the 

provisions of any of the statutes listed 

in § 24.100(a), or to the Atomic Energy 

Act of 1954 (AEA), 42 U.S.C. 2011 et 

seq., may discharge or otherwise 

retaliate against any employee with 

respect to the employee’s compensation, 

terms, conditions, or privileges of 

employment because the employee, or 

any person acting pursuant to the 

employee’s request, engaged in any of 

the activities specified in this section. 

(b) It is a violation for any employer 

to intimidate, threaten, restrain, coerce, 

blacklist, discharge, discipline, or in any 

other manner retaliate against any 

employee because the employee has: 

(1) Commenced or caused to be 

commenced, or is about to commence or 

cause to be commenced, a proceeding 

under one of the statutes listed in 

§ 24.100(a) or a proceeding for the 

administration or enforcement of any 

requirement imposed under such 

statute; 

(2) Testified or is about to testify in 

any such proceeding; or 

(3) Assisted or participated, or is 

about to assist or participate, in any 

manner in such a proceeding or in any 

other action to carry out the purposes of 

such statute. 

(c) Under the Energy Reorganization 

Act, and by interpretation of the 

Secretary under any of the other statutes 

listed in § 24.100(a), it is a violation for 

any employer to intimidate, threaten, 

restrain, coerce, blacklist, discharge, or 

in any other manner retaliate against 

any employee because the employee 

has: 

(1) Notified the employer of an 

alleged violation of such statute or the 

AEA of 1954; 

(2) Refused to engage in any practice 

made unlawful by such statute or the 

AEA of 1954, if the employee has 

identified the alleged illegality to the 

employer; or 

(3) Testified or is about to testify 

before Congress or at any Federal or 

State proceeding regarding any 

provision (or proposed provision) of 

such statute or the AEA of 1954. 

(d)(1) Every employer subject to the 

Energy Reorganization Act of 1974, as 

amended, shall prominently post and 

keep posted in any place of employment 

to which the whistleblower provisions 

of the Act apply, a fully legible copy of 

the notice prepared by OSHA, printed 

as appendix A to this part, or a notice 

approved by the Assistant Secretary that 

contains substantially the same 

provisions and explains the 

whistleblower provisions of the Act and 

the regulations in this part. Copies of 

the notice prepared by OSHA may be 

obtained from the Assistant Secretary 

for Occupational Safety and Health, U.S. 

Department of Labor, Washington, DC 

20210, from local OSHA offices, or from 

OSHA’s Web site at http:// 

www.osha.gov. 

(2) Where the notice required by 

paragraph (d)(1) of this section has not 

been posted, the requirement in 

§ 24.103(d)(2) that a complaint be filed 

with the Assistant Secretary within 180 

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days of an alleged violation will be 

inoperative, unless the respondent 

establishes that the complainant had 

knowledge of the material provisions of 

the notice. If it is established that the 

notice was posted at the employee’s 

place of employment after the alleged 

retaliatory action occurred or that the 

complainant later obtained knowledge 

of the provisions of the notice, the 180 

days will ordinarily run from whichever 

of those dates is relevant. 

(e) This part shall have no application 

to any employee who, acting without 

direction from his or her employer (or 

the employer’s agent), deliberately 

causes a violation of any requirement of 

any 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 who 

believes that he or she has been 

retaliated against by an employer in 

violation of any of the statutes listed in 

§ 24.100(a) may file, or have filed by any 

person on the employee’s behalf, a 

complaint alleging such retaliation. 

(b) Nature of Filing. No particular 

form of complaint is required. A 

complaint may be filed orally or in 

writing. Oral complaints will be 

reduced to writing by OSHA. If a 

complainant is not able to file the 

complaint in English, the complaint 

may be filed in any language. 

(c) Place of Filing. The complaint 

should be filed with the OSHA Area 

Director responsible for enforcement 

activities in the geographical area where 

the employee resides or was employed, 

but may be filed with any OSHA officer 

or employee. Addresses and telephone 

numbers for these officials are set forth 

in local directories and at the following 

Internet address: http://www.osha.gov. 

(d) Time for Filing. (1) Except as 

provided in paragraph (d)(2) of this 

section, within 30 days after an alleged 

violation of any of the statutes listed in 

§ 24.100(a) occurs (i.e., when the 

retaliatory decision has been both made 

and communicated to the complainant), 

an employee who believes that he or she 

has been retaliated against in violation 

of any of the statutes listed in 

§ 24.100(a) may file, or have filed by any 

person on the employee’s behalf, a 

complaint alleging such retaliation. The 

date of the postmark, facsimile 

transmittal, e-mail communication, 

telephone call, hand-delivery, delivery 

to a third-party commercial carrier, or 

in-person filing at an OSHA office will 

be considered the date of filing. The 

time for filing a complaint may be tolled 

for reasons warranted by applicable case 

law. 

(2) Under the Energy Reorganization 

Act, within 180 days after an alleged 

violation of the Act occurs (i.e., when 

the retaliatory decision has been both 

made and communicated to the 

complainant), an employee who 

believes that he or she has been 

retaliated against in violation of the Act 

may file, or have filed by any person on 

the employee’s behalf, a complaint 

alleging such retaliation. The date of the 

postmark, facsimile transmittal, e-mail 

communication, telephone call, handdelivery, delivery to a third-party 

commercial carrier, or in-person filing at 

an OSHA office will be considered the 

date of filing. The time for filing a 

complaint may be tolled for reasons 

warranted by applicable case law. 

(e) Relationship to Section 11(c) 

complaints. A complaint filed under 

any of the statutes listed in § 24.100(a) 

alleging facts that would also constitute 

a violation of Section 11(c) of the 

Occupational Safety and Health Act, 29 

U.S.C. 660(c), will be deemed to be a 

complaint under both Section 11(c) and 

the applicable statutes listed in 

§ 24.100(a). Similarly, a complaint filed 

under Section 11(c) that alleges facts 

that would also constitute a violation of 

any of the statutes listed in § 24.100(a) 

will be deemed to be a complaint under 

both section 11(c) and the applicable 

statutes listed in § 24.100(a). Normal 

procedures and timeliness requirements 

under the respective statutes and 

regulations will be followed. 

§ 24.104 Investigation. 

(a) Upon receipt of a complaint in the 

investigating office, the Assistant 

Secretary will notify the respondent of 

the filing of the complaint by providing 

the respondent (or the respondent’s 

legal counsel if respondent is 

represented by counsel) with a copy of 

the complaint, redacted, if necessary, in 

accordance with the Privacy Act of 

1974, 5 U.S.C. 552a, et seq., and other 

applicable confidentiality laws. The 

Assistant Secretary will provide a copy 

of the unredacted complaint to the 

complainant (or complainant’s legal 

counsel, if complainant is represented) 

and to the appropriate office of the 

Federal agency charged with the 

administration of the general provisions 

of the statute(s) under which the 

complaint is filed. 

(b) Within 20 days of receipt of the 

notice of the filing of the complaint 

provided under paragraph (a) of this 

section, the respondent may submit to 

the Assistant Secretary a written 

statement and any affidavits or 

documents substantiating its position. 

Within the same 20 days, the 

respondent may request a meeting with 

the Assistant Secretary to present its 

position. 

(c) Throughout the investigation, the 

agency will provide to the complainant 

(or the complainant’s legal counsel if 

complainant is represented by counsel) 

a copy of all of respondent’s 

submissions to the agency that are 

responsive to the complainant’s 

whistleblower complaint. Before 

providing such materials to the 

complainant, the agency will redact 

them, if necessary, in accordance with 

the Privacy Act of 1974, 5 U.S.C. 552a, 

et seq., and other applicable 

confidentiality laws. 

(d) Investigations will be conducted 

in a manner that protects the 

confidentiality of any person who 

provides information on a confidential 

basis, other than the complainant, in 

accordance with part 70 of title 29 of the 

Code of Federal Regulations. 

(e) Investigation under the six 

environmental statutes. In addition to 

the investigative procedures set forth in 

§§ 24.104(a), (b), (c), and (d), this 

paragraph sets forth the procedures 

applicable to investigations under the 

Safe Drinking Water Act; Federal Water 

Pollution Control Act; Toxic Substances 

Control Act; Solid Waste Disposal Act; 

Clean Air Act; and Comprehensive 

Environmental Response, Compensation 

and Liability Act. 

(1) A complaint of alleged violation 

will be dismissed unless the 

complainant has made a prima facie 

showing that protected activity was a 

motivating factor in the adverse action 

alleged in the complaint. 

(2) The complaint, supplemented as 

appropriate by interviews of the 

complainant, must allege the existence 

of facts and evidence to make a prima 

facie showing as follows: 

(i) The employee engaged in a 

protected activity; 

(ii) The respondent knew or suspected 

that the employee engaged in the 

protected activity; 

(iii) The employee suffered an adverse 

action; and 

(iv) The circumstances were sufficient 

to raise the inference that the protected 

activity was a motivating factor in the 

adverse action. 

(3) The complainant will be 

considered to have met the required 

showing if the complaint on its face, 

supplemented as appropriate through 

interviews of the complainant, alleges 

the existence of facts and either direct 

or circumstantial evidence sufficient to 

give rise to an inference that the 

respondent knew or suspected that the 

employee engaged in protected activity 

and that the protected activity was a 

motivating factor in the adverse action. 

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The required showing may be satisfied, 

for example, if the complainant shows 

that the adverse action took place 

shortly after the protected activity, 

giving rise to the inference that it was 

a motivating factor in the adverse 

action. 

(4) The complaint will be dismissed if 

a preponderance of the evidence shows 

that the respondent would have taken 

the same adverse action in the absence 

of the complainant’s protected activity. 

(f) Investigation under the Energy 

Reorganization Act. In addition to the 

investigative procedures set forth in 

§§ 24.104(a), (b), (c), and (d), this 

paragraph sets forth special procedures 

applicable only to investigations under 

the Energy Reorganization Act. 

(1) A complaint of alleged violation 

will be dismissed unless the 

complainant has made a prima facie 

showing that protected activity was a 

contributing factor in the adverse action 

alleged in the complaint. 

(2) The complaint, supplemented as 

appropriate by interviews of the 

complainant, must allege the existence 

of facts and evidence to make a prima 

facie showing as follows: 

(i) The employee engaged in a 

protected activity; 

(ii) The respondent knew or 

suspected, actually or constructively, 

that the employee engaged in the 

protected activity; 

(iii) The employee suffered an adverse 

action; and 

(iv) The circumstances were sufficient 

to raise the inference that the protected 

activity was a contributing factor in the 

adverse action. 

(3) For purposes of determining 

whether to investigate, the complainant 

will be considered to have met the 

required burden if the complaint on its 

face, supplemented as appropriate 

through interviews of the complainant, 

alleges the existence of facts and either 

direct or circumstantial evidence to 

meet the required showing, i.e., to give 

rise to an inference that the respondent 

knew or suspected that the employee 

engaged in protected activity and that 

the protected activity was a contributing 

factor in the adverse action. The burden 

may be satisfied, for example, if the 

complainant shows that the adverse 

action took place shortly after the 

protected activity, giving rise to the 

inference that it was a contributing 

factor in the adverse action. If the 

required showing has not been made, 

the complainant (or the complainant’s 

legal counsel if complainant is 

represented by counsel) will be so 

notified and the investigation will not 

commence. 

(4) Notwithstanding a finding that a 

complainant has made a prima facie 

showing, as required by this section, an 

investigation of the complaint will not 

be conducted or will be discontinued if 

the respondent, pursuant to the 

procedures provided in this paragraph, 

demonstrates by clear and convincing 

evidence that it would have taken the 

same adverse action in the absence of 

the complainant’s protected behavior or 

conduct. 

(5) If the respondent fails to make a 

timely response or fails to demonstrate 

by clear and convincing evidence that it 

would have taken the same adverse 

action in the absence of the behavior 

protected by the Act, the Assistant 

Secretary will proceed with the 

investigation. The investigation will 

proceed whenever it is necessary or 

appropriate to confirm or verify the 

information provided by the 

respondent. 

§ 24.105 Issuance of findings and orders. 

(a) After considering all the relevant 

information collected during the 

investigation, the Assistant Secretary 

will issue, within 30 days of filing of the 

complaint, written findings as to 

whether or not there is reasonable cause 

to believe that the respondent has 

retaliated against the complainant in 

violation of any of the statutes listed in 

§ 24.100(a). 

(1) If the Assistant Secretary 

concludes that there is reasonable cause 

to believe that a violation has occurred, 

he or she shall accompany the findings 

with an order providing relief to the 

complainant. The order shall include, 

where appropriate, a requirement that 

the respondent abate the violation; 

reinstate the complainant to his or her 

former position, together with the 

compensation (including back pay), 

terms, conditions and privileges of the 

complainant’s employment; pay 

compensatory damages; and, under the 

Toxic Substances Control Act and the 

Safe Drinking Water Act, pay exemplary 

damages, where appropriate. At the 

complainant’s request the order shall 

also assess against the respondent the 

complainant’s costs and expenses 

(including attorney’s fees) reasonably 

incurred in connection with the filing of 

the complaint. 

(2) If the Assistant Secretary 

concludes that a violation has not 

occurred, the Assistant Secretary will 

notify the parties of that finding. 

(b) The findings and order will be sent 

by certified mail, return receipt 

requested, to all parties of record (and 

each party’s legal counsel if the party is 

represented by counsel). The findings 

and order will inform the parties of their 

right to file objections and to request a 

hearing and provide the address of the 

Chief Administrative Law Judge. The 

Assistant Secretary will file a copy of 

the original complaint and a copy of the 

findings and order with the Chief 

Administrative Law Judge, U.S. 

Department of Labor. 

(c) The findings and order will be 

effective 30 days after receipt by the 

respondent (or the respondent’s legal 

counsel if the respondent is represented 

by counsel) or on the compliance date 

set forth in the order, whichever is later, 

unless an objection and/or a request for 

a hearing has been filed as provided at 

§ 24.106. 

Subpart B–Litigation 

§ 24.106 Objections to the findings and 

order and request for a hearing. 

(a) Any party who desires review, 

including judicial review, of the 

findings and order must file any 

objections and/or a request for a hearing 

on the record within 30 days of receipt 

of the findings and order pursuant to 

paragraph (b) of § 24.105. The objection 

and/or request for a hearing must be in 

writing and state whether the objection 

is to the findings and/or the order. The 

date of the postmark, facsimile 

transmittal, or e-mail communication 

will be considered to be the date of 

filing; if the objection is filed in person, 

by hand-delivery or other means, the 

objection is filed upon receipt. 

Objections must be filed with the Chief 

Administrative Law Judge, U.S. 

Department of Labor, 800 K Street, NW., 

Washington, DC 20001, and copies of 

the objections must be mailed at the 

same time to the other parties of record, 

the OSHA official who issued the 

findings and order, the Assistant 

Secretary, and the Associate Solicitor, 

Division of Fair Labor Standards, U.S. 

Department of Labor. 

(b) If a timely objection is filed, all 

provisions of the order will be stayed. 

If no timely objection is filed with 

respect to either the findings or the 

order, the findings and order will 

become the final decision of the 

Secretary, not subject to judicial review. 

§ 24.107 Hearings. 

(a) Except as provided in this part, 

proceedings will be conducted in 

accordance with the rules of practice 

and procedure and the rules of evidence 

for administrative hearings before the 

Office of Administrative Law Judges, 

codified at part 18 of title 29 of the Code 

of Federal Regulations. 

(b) Upon receipt of an objection and 

request for hearing, the Chief 

Administrative Law Judge will promptly 

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assign the case to a judge who will 

notify the parties, by certified mail, of 

the day, time, and place of hearing. The 

hearing is to commence expeditiously, 

except upon a showing of good cause or 

otherwise agreed to by the parties. 

Hearings will be conducted de novo, on 

the record. 

(c) If both the complainant and the 

respondent object to the findings and/or 

order, the objections will be 

consolidated, and a single hearing will 

be conducted. 

§ 24.108 Role of Federal agencies. 

(a)(1) The complainant and the 

respondent will be parties in every 

proceeding. At the Assistant Secretary’s 

discretion, he or she may participate as 

a party or participate as amicus curiae 

at any time at any stage of the 

proceeding. This right to participate 

includes, but is not limited to, the right 

to petition for review of a decision of an 

administrative law judge, including a 

decision approving or rejecting a 

settlement agreement between the 

complainant and the respondent. 

(2) Copies of documents in all cases, 

whether or not the Assistant Secretary is 

participating in the proceeding, must be 

sent to the Assistant Secretary, 

Occupational Safety and Health 

Administration, and to the Associate 

Solicitor, Division of Fair Labor 

Standards, U.S. Department of Labor. 

(b) The Environmental Protection 

Agency, the Nuclear Regulatory 

Commission, and the Department of 

Energy, if interested in a proceeding, 

may participate as amicus curiae at any 

time in the proceedings, at the 

respective agency’s discretion. At the 

request of the interested Federal agency, 

copies of all pleadings in a case must be 

sent to the Federal agency, whether or 

not the agency is participating in the 

proceeding. 

§ 24.109 Decision and orders of the 

administrative law judge. 

(a) The decision of the ALJ will 

contain appropriate findings, 

conclusions, and an order pertaining to 

the remedies provided in paragraph (c) 

of this section, as appropriate. 

(b)(1) In cases arising under the ERA, 

a determination that a violation has 

occurred may only be made if the 

complainant has demonstrated by a 

preponderance of the evidence that the 

protected activity was a contributing 

factor in the adverse action alleged in 

the complaint. If the complainant has 

demonstrated by a preponderance of the 

evidence that the protected activity was 

a contributing factor in the adverse 

action alleged in the complaint, relief 

may not be ordered if the respondent 

demonstrates by clear and convincing 

evidence that it would have taken the 

same adverse action in the absence of 

any protected activity. 

(2) In cases arising under the six 

environmental statutes listed in 

§ 24.100(a), a determination that a 

violation has occurred may only be 

made if the complainant has 

demonstrated by a preponderance of the 

evidence that the protected activity 

caused or was a motivating factor in the 

adverse action alleged in the complaint. 

If the complainant has demonstrated by 

a preponderance of the evidence that 

the protected activity caused or was a 

motivating factor in the adverse action 

alleged in the complaint, relief may not 

be ordered if the respondent 

demonstrates by a preponderance of the 

evidence that it would have taken the 

same adverse action in the absence of 

the protected activity. 

(c) Neither the Assistant Secretary’s 

determination to dismiss a complaint 

without completing an investigation 

pursuant to § 24.104(e) nor the Assistant 

Secretary’s determination to proceed 

with an investigation is subject to 

review by the ALJ, and a complaint may 

not be remanded for the completion of 

an investigation or for additional 

findings on the basis that a 

determination to dismiss was made in 

error. Rather, if there otherwise is 

jurisdiction, the ALJ will hear the case 

on the merits or dispose of the matter 

without a hearing if the facts and 

circumstances warrant. 

(d)(1) If the ALJ concludes that the 

respondent has violated the law, the 

order shall direct the respondent to take 

appropriate affirmative action to abate 

the violation, including reinstatement of 

the complainant to that person’s former 

position, together with the 

compensation (including back pay), 

terms, conditions, and privileges of that 

employment, and compensatory 

damages. In cases arising under the Safe 

Drinking Water Act or the Toxic 

Substances Control Act, exemplary 

damages may also be awarded when 

appropriate. At the request of the 

complainant, the ALJ shall assess 

against the respondent, all costs and 

expenses (including attorney fees) 

reasonably incurred. 

(2) In cases brought under the Energy 

Reorganization Act, when an ALJ issues 

a decision that the complaint has merit 

and orders the relief prescribed in 

paragraph (d)(1) of this section, the 

relief ordered, with the exception of 

compensatory damages, shall be 

effective immediately upon receipt, 

whether or not a petition for review is 

filed with the ARB. 

(3) If the ALJ determines that the 

respondent has not violated the law, an 

order will be issued denying the 

complaint. 

(e) The decision will be served upon 

all parties to the proceeding, the 

Assistant Secretary, and the Associate 

Solicitor for Fair Labor Standards. Any 

ALJ’s decision issued under any of the 

statutes listed in § 24.100(a) will be 

effective 10 business days after the date 

of the decision unless a timely petition 

for review has been filed with the ARB. 

An ALJ’s order issued under the Energy 

Reorganization Act will be effective 

immediately upon receipt, except for 

that portion of the order awarding any 

compensatory damages. 

§ 24.110 Decision and orders of the 

Administrative Review Board. 

(a) Any party desiring to seek review, 

including judicial review, of a decision 

of the ALJ must file a written petition 

for review with the ARB, U.S. 

Department of Labor, 200 Constitution 

Ave., NW., Washington, DC 20210, 

which has been delegated the authority 

to act for the Secretary and issue final 

decisions under this part. The decision 

of the ALJ will become the final order 

of the Secretary unless, pursuant to this 

section, a timely petition for review is 

filed with the ARB and the ARB accepts 

the case for review. The parties should 

identify in their petitions for review the 

legal conclusions or orders to which 

they object, or the objections will 

ordinarily be deemed waived. A petition 

must be filed within 10 business days of 

the date of the decision of the ALJ. The 

date of the postmark, facsimile 

transmittal, or e-mail communication 

will be considered to be the date of 

filing; if the petition is filed in person, 

by hand-delivery or other means, the 

petition is considered filed upon 

receipt. The petition must be served on 

all parties and on the Chief 

Administrative Law Judge at the time it 

is filed with the ARB. Copies of the 

petition for review and all briefs must 

be served on the Assistant Secretary, 

Occupational Safety and Health 

Administration, and on the Associate 

Solicitor, Division of Fair Labor 

Standards, U.S. Department of Labor. 

(b) If a timely petition for review is 

filed pursuant to paragraph (a) of this 

section, and the ARB, within 30 days of 

the filing of the petition, issues an order 

notifying the parties that the case has 

been accepted for review, the decision 

of the ALJ will be inoperative unless 

and until the ARB issues an order 

adopting the decision, except that an 

order by an ALJ issued under the Energy 

Reorganization Act, other than that 

portion of the order awarding 

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compensatory damages, will be effective 

while review is conducted by the ARB, 

unless the ARB grants a motion by the 

respondent to stay the order based on 

exceptional circumstances. The ARB 

will specify the terms under which any 

briefs are to be filed. The ARB will 

review the factual findings of the ALJ 

under the substantial evidence standard. 

If no timely petition for review is filed, 

or the ARB denies review, the decision 

of the ALJ will become the final order 

of the Secretary. If no timely petition for 

review is filed, the resulting final order 

is not subject to judicial review. 

(c) The final decision of the ARB will 

be issued within 90 days of the filing of 

the complaint. The decision will be 

served upon all parties and the Chief 

Administrative Law Judge by mail. The 

final decision will also be served on the 

Assistant Secretary, Occupational Safety 

and Health Administration, and on the 

Associate Solicitor, Division of Fair 

Labor Standards, U.S. Department of 

Labor, even if the Assistant Secretary is 

not a party. 

(d) If the ARB concludes that the 

respondent has violated the law, the 

final order will order the respondent to 

take appropriate affirmative action to 

abate the violation, including 

reinstatement of the complainant to that 

person’s former position, together with 

the compensation (including back pay), 

terms, conditions, and privileges of 

employment, and compensatory 

damages. In cases arising under the Safe 

Drinking Water Act or the Toxic 

Substances Control Act, exemplary 

damages may also be awarded when 

appropriate. At the request of the 

complainant, the ARB will assess 

against the respondent all costs and 

expenses (including attorney’s fees) 

reasonably incurred. 

(e) If the ARB determines that the 

respondent has not violated the law, an 

order will be issued denying the 

complaint. 

Subpart C—Miscellaneous Provisions 

§ 24.111 Withdrawal of complaints, 

objections, and petitions for review; 

settlement. 

(a) At any time prior to the filing of 

objections to the findings and/or order, 

a complainant may withdraw his or her 

complaint under any of the statutes 

listed in § 24.100(a) by filing a written 

withdrawal with the Assistant 

Secretary. The Assistant Secretary will 

then determine whether to approve the 

withdrawal. The Assistant Secretary 

will notify the respondent of the 

approval of any withdrawal. If the 

complaint is withdrawn because of 

settlement under the Energy 

Reorganization Act, the Clean Air Act, 

the Safe Drinking Water Act, or the 

Toxic Substances Control Act, the 

settlement must be submitted for 

approval in accordance with paragraph 

(d) of this section. Parties to settlements 

under the Federal Water Pollution 

Control Act, the Solid Waste Disposal 

Act, and the Comprehensive 

Environmental Response, Compensation 

and Liability Act are encouraged to 

submit their settlements for approval. 

After the filing of objections to the 

Assistant Secretary’s findings and/or 

order, a complainant may not withdraw 

his or her complaint. 

(b) The Assistant Secretary may 

withdraw his or her findings and/or 

order, at any time before the expiration 

of the 30-day objection period described 

in § 24.106, provided that no objection 

has yet been filed, and substitute new 

findings and/or a new order. The date 

of the receipt of the substituted findings 

and/or order will begin a new 30-day 

objection period. 

(c) At any time before the Assistant 

Secretary’s findings or order become 

final, a party may withdraw its 

objections to the Assistant Secretary’s 

findings or order by filing a written 

withdrawal with the ALJ. If a case is on 

review with the ARB, a party may 

withdraw its petition for review of an 

ALJ’s decision at any time before that 

decision becomes final by filing a 

written withdrawal with the ARB. The 

ALJ or the ARB, as the case may be, will 

determine whether to approve the 

withdrawal of the objections or the 

petition for review. If the ALJ approves 

a request to withdraw objections to the 

Assistant Secretary’s findings or order, 

and there are no other pending 

objections, the Assistant Secretary’s 

findings and order will become the final 

order of the Secretary. If the ARB 

approves a request to withdraw a 

petition for review of an ALJ decision, 

and there are no other pending petitions 

for review of that decision, the ALJ’s 

decision will become the final order of 

the Secretary. If the objections are 

withdrawn because of settlement under 

the Energy Reorganization Act, the 

Clean Air Act, the Safe Drinking Water 

Act, or the Toxic Substances Control 

Act, the settlement must be submitted 

for approval in accordance with 

paragraph (d) of this section. 

(d)(1) Investigative settlements under 

the Energy Reorganization Act, the 

Clean Air Act, the Safe Drinking Water 

Act, and the Toxic Substances Control 

Act. At any time after the filing of a 

complaint, and before the findings and/ 

or order are objected to or become a 

final order by operation of law, the case 

may be settled if the Assistant Secretary, 

the complainant and the respondent 

agree to a settlement. The Assistant 

Secretary’s approval of a settlement 

reached by the respondent and the 

complainant demonstrates his or her 

consent and achieves the consent of all 

three parties. 

(2) Adjudicatory settlements under 

the Energy Reorganization Act, the 

Clean Air Act, the Safe Drinking Water 

Act, and the Toxic Substances Control 

Act. At any time after the filing of 

objections to the Assistant Secretary’s 

findings and/or order, the case may be 

settled if the participating parties agree 

to a settlement and the settlement is 

approved by the ALJ if the case is before 

the judge, or by the ARB if the ARB has 

accepted the case for review. A copy of 

the settlement must be filed with the 

administrative law judge or the ARB, as 

the case may be. 

(e) Any settlement approved by the 

Assistant Secretary, the administrative 

law judge, or the ARB will constitute 

the final order of the Secretary and may 

be enforced pursuant to § 24.113. 

§ 24.112 Judicial review. 

(a) Except as provided under 

subsections (b), (c), and (d) of this 

section, within 60 days after the 

issuance by the ARB of a final order of 

the Secretary under § 24.110, any person 

adversely affected or aggrieved by the 

order may file a petition for review of 

the order in the United States Court of 

Appeals for the circuit in which the 

violation allegedly occurred or the 

circuit in which the complainant 

resided on the date of the violation. A 

final order of the ARB is not subject to 

judicial review in any criminal or other 

civil proceeding. 

(b) Under the Federal Water Pollution 

Control Act, within 120 days after the 

issuance by the ARB of a final order of 

the Secretary under § 24.110, any person 

adversely affected or aggrieved by the 

order may file a petition for review of 

the order in the United States Court of 

Appeals for the circuit in which the 

violation allegedly occurred or the 

circuit in which the complainant 

resided on the date of the violation. 

(c) Under the Solid Waste Disposal 

Act, within 90 days after the issuance by 

the ARB of a final order of the Secretary 

under § 24.110, any person adversely 

affected or aggrieved by the order may 

file a petition for review of the order in 

the United States Court of Appeals for 

the circuit in which the violation 

allegedly occurred or the circuit in 

which the complainant resided on the 

date of the violation. 

(d) Under the Comprehensive 

Environmental Response, Compensation 

and Liability Act, after the issuance by 

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the ARB of a final order of the Secretary 

under § 24.110, any person adversely 

affected or aggrieved by the order may 

file a petition for review of the order in 

the United States district court in which 

the violation allegedly occurred. For 

purposes of judicial economy and 

consistency, when a final order of the 

Secretary issued by the ARB under the 

Comprehensive Environmental 

Response, Compensation and Liability 

Act also is issued under any other 

statute listed in § 24.100(a), the 

adversely affected or aggrieved person 

may file a petition for review of the 

entire order in the United States Court 

of Appeals for the circuit in which the 

violation allegedly occurred or the 

circuit in which the complainant 

resided on the date of the violation. The 

time for filing a petition for review of an 

order issued under the Comprehensive 

Environmental Response, Compensation 

and Liability Act and any other statute 

listed in § 24.100(a) is determined by 

the time period applicable under the 

other statute(s). 

(e) If a timely petition for review is 

filed, the record of a case, including the 

record of proceedings before the 

administrative law judge, will be 

transmitted by the ARB to the 

appropriate court pursuant to the 

Federal Rules of Appellate Procedure 

and the local rules of the court. 

§ 24.113 Judicial enforcement. 

Whenever any person has failed to 

comply with an order by an ALJ issued 

under the Energy Reorganization Act, 

with the exception of any award of 

compensatory damages, or with a final 

order of the Secretary, including final 

orders approving settlement agreements 

as provided under § 24.111(d), the 

Secretary may file a civil action seeking 

enforcement of the order in the United 

States district court for the district in 

which the violation was found to have 

occurred. Whenever any person has 

failed to comply with an order by an 

ALJ issued under the Energy 

Reorganization Act, with the exception 

of any award of compensatory damages, 

or with a final order of the Secretary 

under either the Energy Reorganization 

Act or the Clean Air Act, the person on 

whose behalf the order was issued also 

may file a civil action seeking 

enforcement of the order in the United 

States district court for the district in 

which the violation was found to have 

occurred. 

§ 24.114 District court jurisdiction of 

retaliation complaints under the Energy 

Reorganization Act. 

(a) If there is no final order of the 

Secretary, one year has passed since the 

filing of a complaint under the Energy 

Reorganization Act, and there is no 

showing that there has been delay due 

to the bad faith of the complainant, the 

complainant may bring an action at law 

or equity for de novo review in the 

appropriate district court of the United 

States, which will have jurisdiction over 

such an action without regard to the 

amount in controversy. 

(b) Fifteen days in advance of filing a 

complaint in Federal court, a 

complainant must file with the 

Assistant Secretary, the ALJ, or the ARB, 

depending upon where the proceeding 

is pending, a notice of his or her 

intention to file such complaint. The 

notice must be served on all parties to 

the proceeding. A copy of the notice 

must be served on the Regional 

Administrator, the Assistant Secretary, 

Occupational Safety and Health 

Administration, and on the Associate 

Solicitor, Division of Fair Labor 

Standards, U.S. Department of Labor. 

The complainant shall file and serve a 

copy of the district court complaint on 

the above as soon as possible after the 

district court complaint has been filed 

with the court. 

§ 24.115 Special circumstances; waiver of 

rules. 

In special circumstances not 

contemplated by the provisions of this 

part, or for good cause shown, the ALJ 

or the ARB on review may, upon 

application, after three days notice to all 

parties, waive any rule or issue any 

orders that justice or the administration 

of any of the statutes listed in 

§ 24.100(a) requires. 

Appendix A to Part 24—Your Rights 

Under the Energy Reorganization Act 

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[FR Doc. 2011–828 Filed 1–14–11; 8:45 am] 

BILLING CODE 4510–26–C 


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