14100 Federal Register / Vol. 68, No. 55 / Friday, March 21, 2003 / Rules and Regulations 

1Responsibility for receiving and investigating 

these complaints has been delegated to the 

Assistant Secretary for OSHA. Secretary’s Order 5–

2002 (67 FR 65008, October 22, 2002); Secretary’s 

Order 1–2002 (67 FR 64272, October 17, 2002). 

Hearings on determinations by the Assistant 

Secretary are conducted by the Office of 

Administrative Law Judges, and appeals from 

decisions by administrative law judges are decided 

by the Administrative Review Board. See 

Secretary’s Order 1–2002.

DEPARTMENT OF LABOR

Occupational Safety and Health 

Administration 

29 CFR Part 1979 

RIN 1218–AB99 

Procedures for the Handling of 

Discrimination Complaints under 

Section 519 of the Wendell H. Ford 

Aviation Investment and Reform Act 

for the 21st Century

AGENCY: Occupational Safety and Health 

Administration, Labor.

ACTION: Final rule.

SUMMARY: This document provides the 

final text of regulations governing the 

employee protection (‘‘whistleblower’’) 

provisions of Section 519 of the 

Wendell H. Ford Aviation Investment 

and Reform Act for the 21st Century 

(‘‘AIR21’’), a Federal Aviation 

Administration reauthorization bill, 

enacted into law April 5, 2000. This rule 

establishes procedures and time frames 

for the handling of complaints under 

AIR21, including procedures and time 

frames for employee complaints to the 

Occupational Safety and Health 

Administration (‘‘OSHA’’), 

investigations by OSHA, appeals of 

OSHA determinations to an 

administrative law judge (‘‘ALJ’’) for a 

hearing de novo, hearings by ALJs, 

appeal of ALJ decisions to the 

Administrative Review Board (acting on 

behalf of the Secretary) and judicial 

review of the Secretary’s final decision. 

On April 1, 2002, OSHA published an 

interim final rule (67 FR 15454) which 

provided for rules of procedure and 

time frames to implement Section 519 of 

AIR21. At that time the agency 

requested comments concerning the 

interim final rules, and in response 

several comments were received from 

interested parties. OSHA has reviewed 

the comments and now adopts this final 

rule which has been revised in part to 

address problems perceived by the 

agency and the commenters.

DATES: This final rule is effective on 

March 21, 2003.

FOR FURTHER INFORMATION CONTACT: John 

Spear, Director, Office of Investigative 

Assistance, Occupational Safety and 

Health Administration, U.S. Department 

of Labor, Room N–3603, 200 

Constitution Avenue, NW., Washington, 

DC 20210; telephone (202) 693–2199.

SUPPLEMENTARY INFORMATION: 

I. Background 

The Wendell H. Ford Aviation 

Investment and Reform Act for the 21st 

Century (‘‘AIR21’’), Public Law 106–

181, was enacted on April 5, 2000. 

Section 519 of the Act, codified at 49 

U.S.C. 42121, provides protection to 

employees against retaliation by air 

carriers, their contractors and their 

subcontractors, because they provided 

information to the employer or the 

Federal Government relating to air 

carrier safety violations, or filed, 

testified, or assisted in a proceeding 

against the employer relating to any 

violation or alleged violation of any 

order, regulation, or standard of the 

Federal Aviation Administration 

(‘‘FAA’’) or any other law relating to the 

safety of air carriers, or because they are 

about to take any of these actions. These 

rules establish procedures for the 

handling of complaints under AIR21. 

II. Summary of Statutory Provisions 

The AIR21 whistleblower provisions 

include procedures which allow a 

covered employee to file, within 90 days 

of the alleged discrimination, a 

complaint with the Secretary of Labor 

(‘‘the Secretary’’).1 Upon receipt of the 

complaint, the Secretary must provide 

written notice to both the person named 

in the complaint who is alleged to have 

violated the Act (‘‘the named person’’) 

and the FAA of: The allegations 

contained in the complaint, the 

substance of the evidence submitted 

with the complaint, and the rights of the 

named person throughout the 

investigation. The Secretary must then, 

within 60 days of receipt of the 

complaint, afford the named person an 

opportunity to submit a response and 

meet with the investigator to present 

statements from witnesses, and conduct 

an investigation. However, the Secretary 

may conduct an investigation only if the 

complainant has made a prima facie 

showing that the alleged discriminatory 

behavior was a contributing factor in the 

unfavorable personnel action alleged in 

the complaint and the named person 

has not demonstrated, through clear and 

convincing evidence, that the employer 

would have taken the same unfavorable 

personnel action in the absence of that 

behavior. This provision is similar to 

the 1992 amendments to the ERA, 

codified at 42 U.S.C. 5851.

After investigating a complaint, the 

Secretary shall issue a determination 

letter. If, as a result of the investigation, 

the Secretary finds there is reasonable 

cause to believe that discriminatory 

behavior has occurred, the Secretary 

must notify the named person of those 

findings along with a preliminary order 

which requires the named person to: 

Abate the violation, reinstate the 

complainant to his or her former 

position and provide make-whole relief 

and compensatory damages to the 

complainant, as well as costs and 

attorney’s and expert fees reasonably 

incurred. The complainant and the 

named person then have 30 days after 

the date of the Secretary’s notification in 

which to file objections to the findings 

and/or preliminary order and request a 

hearing on the record. The filing of 

objections under AIR21 shall stay any 

remedy in the preliminary order except 

for preliminary reinstatement. This 

provision for preliminary reinstatement 

after the investigation is similar to the 

employee protection provision of STAA, 

49 U.S.C. 31105. If a hearing before an 

administrative law judge is not 

requested within 30 days, the 

preliminary order becomes final and is 

not subject to judicial review. 

If a hearing is held, AIR21 requires 

the hearing to be conducted 

‘‘expeditiously.’’ The Secretary then has 

120 days after the ‘‘conclusion of a 

hearing’’ in which to issue a final order, 

which may provide appropriate relief or 

deny the complaint. Until the 

Secretary’s final order is issued, the 

Secretary, complainant and the named 

person may enter into a settlement 

agreement which terminates the 

proceeding. The Secretary shall assess 

against the named person, on the 

complainant’s request, a sum equal to 

the total amount of all costs and 

expenses, including attorney’s and 

expert witness fees, reasonably incurred 

by the complainant in bringing the 

complaint to the Secretary or in 

connection with participating in the 

proceeding which resulted in the order 

on behalf of the complainant. The 

Secretary also may award a prevailing 

employer an attorney’s fee, not 

exceeding $1,000, if he or she finds that 

the complaint is or has been brought in 

bad faith. Within 60 days of the 

issuance of the final order, any person 

adversely affected or aggrieved by the 

Secretary’s final order may file an 

appeal with the United States Court of 

Appeals for the circuit in which the 

violation occurred or the circuit where 

the complainant resided on the date of 

the violation. Finally, AIR21 makes 

persons who violate these newly created 

whistleblower provisions subject to a 

Federal Register / Vol. 68, No. 55 / Friday, March 21, 2003 / Rules and Regulations 14101

civil penalty of up to $1,000. This 

provision is administered by the FAA.

III. Summary of Regulations and 

Rulemaking Proceedings 

On April 1, 2002, the Occupational 

Safety and Health Administration 

published in the Federal Register an 

interim final rule promulgating rules 

which implemented Section 519 of the 

Wendell H. Ford Aviation Investment 

and Reform Act for the 21st Century, 

Public Law 106–181, 67 FR 15454—

15461. In addition to promulgating the 

interim final rule, OSHA’s notice 

included a request for public comment 

on the interim rules by May 31, 2002. 

On May 29, 2002, OSHA received a 

request from the Association of Flight 

Attendants requesting a 30-day 

extension of the comment period, and 

on June 13, 2002, OSHA published a 

notice in the Federal Register extending 

the comment period to June 30, 2002, 67 

FR 40597. 

In response, six organizations filed 

comments with the agency. Comments 

were received from the Association of 

Flight Attendants (AFA); the Air Line 

Pilots Association (ALPA); the 

Transportation Trades Department, 

AFL–CIO (TTD); the Air Transport 

Association (ATA); the American 

Federation of Labor and Congress of 

Industrial Organizations (AFL–CIO); 

and the National Whistleblower Legal 

Defense and Education Fund on behalf 

of the National Whistleblower Center 

(NWC). Senator Charles Grassley of 

Iowa also submitted comments. 

OSHA has reviewed the comments 

and, in response, has developed a final 

rule which makes some changes in the 

interim final rule. Other changes urged 

by commenters were considered but 

rejected. OSHA addresses the comments 

in the discussion that follows. The 

comments and OSHA’s response are 

discussed in the order of the provisions 

of the rule. 

General Comments 

OSHA received four comments of a 

general nature relating to the 

regulations. The AFL–CIO questioned 

whether the interim procedures related 

to filing of complaints, processing of 

investigations and conduct of 

administrative reviews satisfy the 

following four requirements which, in 

its opinion, are needed to meet the 

intent of Congress: 

(1) Whistleblowers must have control 

of their legal cases through an 

Individual Right of Action; 

(2) The investigating and prosecuting 

authority must not have discretionary 

authority that may be abused to 

undermine the legal interests of 

complainants; 

(3) Loopholes that allow illegal 

employer conduct or circumscribe the 

protected acts of complainants must be 

eliminated; and 

(4) Legal burdens of proof for 

whistleblowers must be realistic.

OSHA believes that, as a general matter, 

the interim rules provide for 

administrative and judicial review 

procedures and burdens of proof 

required by AIR21 and fully satisfy the 

spirit and intent of Congress to provide 

whistleblower protection to aviation 

workers, thus helping to increase the 

safety of the aviation industry and the 

traveling public. 

The NWC suggested that OSHA 

posters be amended to inform 

employees of all the whistleblower laws 

administered by OSHA; or, in the 

alternative, OSHA should make posters 

regarding employee rights under all the 

whistleblower laws widely available 

free of charge to the regulated 

community and encourage employers to 

comply with the law and voluntarily 

post notice of the law. OSHA believes 

that posters and other means or 

informing employers and employees of 

their rights and responsibilities under 

the various whistleblower statutes are 

vital to achieving the goals of the 

statutes, although AIR21 does not 

authorize OSHA to require employers to 

post notice of the law. However, the 

FAA has developed and distributed 

posters and other informational 

materials to airport authorities, 

employers and employee groups around 

the country. 

The ATA submitted three general 

comments regarding the nature of the 

relationship between OSHA and the 

FAA. The ATA suggested that the rules 

be modified to provide that (1) the FAA 

has complete and exclusive jurisdiction 

over air carrier safety issues, (2) when 

OSHA receives an AIR21 discrimination 

complaint, the FAA must first make a 

threshold determination as to whether 

the underlying safety issues raised by 

the complaint relate to a violation, and 

(3) throughout any investigation by 

OSHA, the FAA retains exclusive 

authority to determine any air carrier 

safety issues underlying or related to the 

discrimination complaint. With respect 

to the first and third comments, OSHA 

agrees that the FAA has authority over 

air carrier safety issues as defined by 

statute. OSHA does not agree, however, 

that AIR21 provides that it is the FAA’s 

responsibility to first make a threshold 

determination as to whether the 

underlying safety issues raised by the 

complainant relates to an air carrier 

safety violation. That initial, threshold 

determination of whether the 

complainant engaged in activities 

protected by the law is common to all 

the various whistleblower statutes and 

is made by OSHA in the regular course 

of determining a prima facie showing 

that protected conduct was a 

contributing factor in the alleged 

unfavorable personnel action. 

Section 1979.100 Purpose and Scope 

This section describes the purpose of 

the regulations implementing AIR21 

and provides an overview of the 

procedures covered by these new 

regulations. No comments were received 

relating to this section. 

Section 1979.101 Definitions 

In addition to the general definitions, 

the regulations include program-specific 

definitions of ‘‘air carrier’’ and 

‘‘contractor.’’ The statutory definition of 

‘‘air carrier’’ applicable to AIR21 is 

found at 49 U.S.C. 40102(a)(2), a general 

definitional provision applicable to air 

commerce and safety. The statutory 

definition of ‘‘contractor’’ is found in 

AIR21 at 49 U.S.C. 42121(e). 

Four comments were received 

regarding the definitions contained in 

§ 1979.101. The NWC proposed that the 

term ‘‘air carrier’’ include those carriers 

owned by foreign persons, stating that it 

would be inconsistent with safety and 

national security to exclude from 

protection whistleblowers who 

uncovered and disclosed problems 

related to air carriers which may happen 

to be owned or controlled by foreign 

corporations or persons. AIR21 is 

contained in Title 49, Subtitle VII, Part 

A, of the United States Code. While 

AIR21 contains a definition of 

‘‘contractor,’’ it does not contain a 

definition of ‘‘air carrier’’ and so the 

general definitions applicable to Part A 

contained in Subpart 1 apply. The terms 

‘‘air carrier’’ and ‘‘foreign air carrier’’ are 

separately defined by statute at 49 

U.S.C. 40102(a)(2) (‘‘air carrier’’) and 49 

U.S.C. 40102(a)(21) (‘‘foreign air 

carrier’’), and the general definition of 

air carrier is set forth in the AIR21 rule. 

OSHA has no authority to define the 

terms otherwise. 

The NWC also stated that the 

definition of the term ‘‘contractor’’

should be further explained to ensure 

that the definition include all 

contractors which perform, directly or 

indirectly, any function whatsoever 

which may have safety implications, 

and that safety-sensitive functions 

specifically include security related 

activities. The NWC suggested that the 

definition of ‘‘safety-sensitive’’ should 

include persons who work for 

14102 Federal Register / Vol. 68, No. 55 / Friday, March 21, 2003 / Rules and Regulations 

contractors who are in a position to 

witness and or identify the misconduct 

of other employees or contractors as 

opposed to reporting only on the 

employee’s own employer. OSHA agrees 

that ‘‘safety-sensitive functions’’ include 

security-related activities, but believes 

that the definition as written is 

adequate.

The AFA commented that the terms 

‘‘contractors, subcontractors, or agents 

or air carriers’’ be added to the 

definition of ‘‘person.’’ The term 

‘‘person’’ is included in the definitions 

because it is used variously in the 

statute to mean both organizations and 

individuals. The definition describes 

what type of legal entities may be 

included in the term ‘‘person.’’

Section 1979.102 Obligations and 

Prohibited Acts 

This section describes the 

whistleblower activity which is 

protected under the Act and the type of 

conduct which is prohibited in response 

to any protected activity. 

The NWC commented that 

§ 1979.102(b) should explicitly include 

reports of security violations or reports 

of security weaknesses made to the 

employer or a law enforcement agency 

in the definition of protected activity. 

OSHA believes that the regulation 

appropriately sets forth the statutory 

definition of protected activity, which 

includes providing ‘‘information 

relating to any violation or alleged 

violation of any order, regulation, or 

standard of the Federal Aviation 

Administration or any other provision 

of Federal law relating to air carrier 

safety under this subtitle or any other 

law of the United States.’’ Therefore, 

OSHA does not believe that the 

additional language requested is 

necessary. 

The AFA suggested that the words 

‘‘actively or passively’’ be added to 

§ 1979.102(b) to clarify that all forms of 

discrimination, whether active or 

passive, are violations of the Act. The 

AFA also recommended that the words 

‘‘actual or constructive’’ be added before 

the word ‘‘knowledge’’ in 

§ 1979.102(b)(1) and (2) to prevent an 

employer from making a ‘‘don’t want to 

know’’ plausible deniability argument to 

escape accountability for violating the 

Act. OSHA considers that extensive case 

law exists involving analogous language 

in other employee protection statutes. 

Therefore, OSHA anticipates that 

similar interpretations would be applied 

under AIR21. 

The NWC recommended that 

§ 1979.102(c) be further defined, in 

order to prevent a chilling effect on 

employee disclosures, by stating that the 

term ‘‘deliberate’’ does not apply to 

unintentional conduct. There is case 

law involving analogous provisions of 

other employee protection statutes 

defining the phrase ‘‘deliberate 

violations’’ for purposes of denying 

protection to an employee who causes a 

violation of applicable safety laws. See, 

e.g., Fields v. United States Department 

of Labor Administrative Review Board,

173 F.3d 811, 814 (11th Cir. 1999) 

(‘‘petitioners moved knowingly and 

dangerously beyond their authority 

when, on their own, and fully aware 

that their employer would not approve, 

they conducted experiments inherently 

fraught with danger’’). We anticipate 

that a similar construction of that term 

would be applied under AIR21. 

Section 1979.103 Filing of 

Discrimination Complaint 

This section explains the 

requirements for filing a discrimination 

complaint. Under AIR21, to be timely a 

complaint must be filed within 90 days 

of the alleged violation. Under Delaware 

State College v. Ricks, 449 U.S. 250, 258 

(1980), this date is considered to be 

when the discriminatory decision has 

been both made and communicated to 

the complainant. In other words, the 

limitations period commences once the 

employee is aware or reasonably should 

be aware of the employer’s decision. 

Equal Employment Opportunity 

Commission v. United Parcel Service,

249 F.3d 557, 561–62 (6th Cir. 2001). 

Under § 1979.103(a), complaints may be 

made by any person on the employee’s 

behalf with the consent of the employee. 

Section 1979.103(b) of the interim 

rule permitted complaints to be made 

both in writing and orally. The rule has 

been changed to require that complaints 

be made in writing, which shall include 

a full statement of the acts and 

omissions alleged to constitute the 

violation, in accordance with the 

procedures for filing whistleblower 

complaints under several other 

employee protection provisions for 

which the Secretary of Labor has 

delegated the responsibility for 

enforcement to OSHA. Complaints still 

do not need to be made in accordance 

with any particular form. However, 

because of difficulty encountered in the 

processing of oral complaints, OSHA 

has determined that the process for 

filing full complaints in writing codified 

at 29 CFR 24.3(c) should apply to 

whistleblower complaints filed under 

AIR21. 

The AFA commented that 

§ 1979.103(c) should be changed to 

include the Federal Aviation 

Administration as a place where 

complaints may be sent because the 

FAA website advised that whistleblower 

complaints may be filed with the FAA. 

Similarly, the NWC proposed that 

§ 1979.103.(c), (d) and (e) should make 

clear that whistleblower complaints 

filed with other agencies should be 

deemed timely filed, particularly when 

the underlying safety concern was 

originally directed to the other agency. 

The NWC also commented that an 

internal whistleblower complaint to the 

employer should also act to toll the 

AIR21 statute of limitations. OSHA 

wants to make clear in the regulations 

that claims should preferably be filed 

with OSHA. However, as noted in 

OSHA’s Whistleblower Investigations 

Manual (OSHA Instruction DIS 0–0.8), it 

is OSHA’s policy, as supported by case 

law, that complaints timely filed by 

mistake with the FAA or other agency 

not having the authority to grant relief 

to the whistleblower may be considered 

timely filed with OSHA. The reference 

to filing with ‘‘any Department of Labor 

officer or employee’’ has been changed 

to ‘‘any OSHA officer or employee’’ to 

make the rule consistent with other 

whistleblower rules administered by 

OSHA.

The ATA commented that 

§ 1979.103(e) should be deleted in its 

entirety because OSHA states no legal 

authority for the provision, individuals 

may intentionally file under one statute 

and not the other, and the section is 

vague because it does not make clear 

which statutory process OSHA will 

follow. The purpose of § 1979.103(e) is 

to make clear to the regulated 

community that OSHA reserves the 

right to investigate any whistleblower 

claim that properly falls under OSHA’s 

purview. Section 11(c) of the 

Occupational Safety and Health Act 

(‘‘OSH Act’’) provides employment 

protection for employees who exercise 

certain rights under the OSH Act, 

principal among them being the right to 

file an occupational safety and health 

complaint with OSHA within 30 days of 

the alleged violation. Section 11(c), 

unlike STAA and ERA, does not provide 

for an administrative determination of 

the merits of a complaint by the 

Secretary; instead, the Secretary of 

Labor may seek to bring an action in 

Federal District Court to enforce the 

whistleblower protection provision of 

the OSH Act. Section 1979.103(e), 

which is comparable to a provision in 

the STAA regulations (see 

§ 1978.102(e)), puts the community on 

notice that OSHA considers all 

complaints filed with it as potential 

complaints under Section 11(c) if it 

should turn out in the course of the 

investigation that the underlying 

Federal Register / Vol. 68, No. 55 / Friday, March 21, 2003 / Rules and Regulations 14103

protected safety or health activity falls 

under OSHA’s authority rather than that 

of the FAA. The final rule also clarifies 

that the requirements of Section 11(c) 

necessarily apply to complaints that 

OSHA treats as having been filed under 

the OSH Act, and that the requirements 

of AIR21 apply to complaints that 

OSHA treats as having been filed under 

AIR21. 

Section 1979.104 Investigation 

AIR21 contains a requirement similar 

to the requirement in the ERA that a 

complaint shall be dismissed if it fails 

to make a prima facie showing that 

protected behavior or conduct was a 

contributing factor in the unfavorable 

personnel action alleged in the 

complaint. Also included in this section 

is the AIR21 requirement that an 

investigation of the complaint will not 

be conducted if the named person 

demonstrates by clear and convincing 

evidence that it would have taken the 

same unfavorable personnel action in 

the absence of the complainant’s 

protected behavior or conduct, 

notwithstanding the prima facie 

showing of the complainant. Under this 

section, the named person has the 

opportunity within 20 days of receipt of 

the complaint to meet with 

representatives of OSHA and present 

evidence in support of his or her 

position. 

If, upon investigation, OSHA has 

reasonable cause to believe that the 

named person has violated the Act and 

therefore that preliminary relief for the 

complainant is warranted, OSHA again 

contacts the named person with notice 

of this determination and provides the 

substance of the relevant evidence upon 

which that determination is based, 

consistent with the requirements of 

confidentiality of informants. The 

named person is afforded the 

opportunity, within ten business days, 

to provide written evidence in response 

to the allegation of the violation, meet 

with the investigators, and present legal 

and factual arguments why preliminary 

relief is not warranted. This provision 

provides due process procedures in 

accordance with the Supreme Court 

decision under STAA in Brock v. 

Roadway Express, Inc., 481 U.S. 252 

(1987). In addition, we clarified that the 

ten-day time period refers to ten 

business days. This is consistent with 

the Federal Rules of Civil Procedure 

6(a), which excludes from the 

computation of the period of time 

intermediate Saturdays, Sundays, and 

legal holidays, when the period of time 

prescribed or allowed is less than 11 

days. 

In a comment submitted by the AFA, 

it was suggested that § 1979.104(a) be 

revised to require the Assistant 

Secretary to notify both the named 

person and the complainant of the filing 

of the complaint and their rights under 

the Act. However, the statutory language 

only requires that the named person be 

notified in writing. As a matter of 

policy, OSHA does acknowledge receipt 

of the complaint in writing back to the 

complainant. 

The ATA commented that 

§ 1979.104.(b) should be modified to 

make clear that if OSHA initiates an 

investigation, but later concludes that 

the complainant has failed to establish 

a prima facie case or that the respondent 

has rebutted the prima facie case, the 

agency should terminate the 

investigation. This comment 

misapprehends OSHA’s practice and the 

intent of the rule. If, at any point in the 

investigation, it becomes clear that a 

prima facie showing cannot be 

established or that the evidence 

otherwise reveals that the complaint 

lacks merit, OSHA will dismiss the 

complaint. 

The TTD, NWC, AFA, and Senator 

Grassley all commented that 

§ 1979.104(b)(1)(iv) and (b)(2) should be 

changed to more accurately reflect the 

language of the statute in describing the 

complainant’s burden of proof. The 

commenters felt that the use of the word 

‘‘likely’’ effectively changed the intent 

of the statutory language placing on the 

complainant the burden to demonstrate 

that the protected activity ‘‘was a 

contributing factor in the unfavorable 

personnel action alleged in the 

complaint.’’ OSHA agrees that the 

language of the interim rule could be 

construed to alter or otherwise 

inaccurately reflect the language of the 

statute, and has changed it by deleting 

the word ‘‘likely.’’

The AFA suggested that § 1979.104(c) 

be changed to require the Assistant 

Secretary to share documents submitted 

by the named person with the 

complainant and to allow the 

complainant to be present during the 

initial meeting with the named person, 

if requested. OSHA believes that, 

consistent with other whistleblower 

laws, the language of the statute is clear 

that the initial investigation by OSHA is 

to be conducted independently for the 

purpose of establishing the factual 

circumstances and facilitating an early 

resolution of the claim.

The ATA recommended that 

§ 1979.104(c) be changed to lengthen the 

named person’s response time from ten 

days to 30 days. ATA felt that ten days 

is not enough time to research and 

provide an appropriate response that is 

substantial enough to make the required 

demonstration by ‘‘clear and convincing 

evidence.’’ OSHA agrees that ten days 

may frequently be a very short time to 

effectively research and prepare a 

response. However, because the statute 

provides only 60 days for OSHA to 

complete the entire investigation and 

issue findings, OSHA believes that 

allowing half that time for submitting an 

initial response will impede its ability 

to complete the investigation in a timely 

manner. The final rule is changed to 

permit 20 days for submitting an initial 

response and a request for a meeting, 

which is also consistent with other 

whistleblower statutes having a 60-day 

investigation time frame. 

The AFA suggested that § 1979.104(d) 

be modified to delete the words, ‘‘other 

than the complainant’’ from the last 

sentence to ensure confidentiality for all 

persons, including the complainant. 

This rule is intended to affirmatively 

provide for the protection of the identity 

of persons who come forward to OSHA 

to provide information or testimony 

relevant to OSHA’s investigation of the 

whistleblower complaint. The phrase is 

not intended to limit or restrict in any 

way OSHA’s ability to appropriately 

withhold information or documentation 

provided by the complainant which 

would ordinarily be exempt from 

disclosure under the provisions of the 

Freedom of Information Act. 

The AFA also suggested that 

§ 1979.104(e) be changed to require that 

when the Assistant Secretary concludes 

that reinstatement is warranted, the 

complainant, as well as the named 

person, be contacted to give notice of 

the substance of the evidence 

supporting the complainant’s claim and 

an opportunity to be present in any 

subsequent meeting. The NWC 

recommended that § 1979.104(e) be 

deleted in its entirety because a second 

review of the respondent’s position 

unnecessarily delays the investigation. 

As noted above, it is OSHA’s position 

that OSHA’s investigation is conducted 

independently prior to the 

administrative hearing phase of the 

process, in which all parties participate 

fully. The purpose of § 1979.104(e) is to 

ensure compliance with the Supreme 

Court’s ruling in Brock v. Roadway 

Express, Inc., 107 S. Ct. 1740 (1987), in 

which the court, on a constitutional 

challenge to the temporary 

reinstatement provision in the employee 

protection provisions of the Surface 

Transportation Assistance Act (now 

codified at 49 U.S.C. 31105), upheld the 

facial constitutionality of the statute and 

the procedures adopted by OSHA under 

the Due Process Clause of the Fifth 

Amendment, but ruled that the record 

14104 Federal Register / Vol. 68, No. 55 / Friday, March 21, 2003 / Rules and Regulations 

failed to show that OSHA investigators 

had informed Roadway of the substance 

of the evidence to support reinstatement 

of the discharged employee. 

Section 1979.105 Issuance of Findings 

and Preliminary Orders 

This section provides that, on the 

basis of information obtained in the 

investigation, the Assistant Secretary 

will issue a finding regarding whether 

or not the complaint has merit. If the 

finding is that the complaint has merit, 

the Assistant Secretary will order 

appropriate preliminary relief. The 

letter accompanying the findings and 

order advises the parties of their right to 

file objections to the findings of the 

Assistant Secretary. If no objections are 

filed within 30 days of receipt of the 

findings, the findings and any 

preliminary order of the Assistant 

Secretary become the final findings and 

order of the Secretary. If objections are 

timely filed, any order of preliminary 

reinstatement will take effect, but the 

remaining provisions of the order will 

not take effect until administrative 

proceedings are completed. The 

language of § 1979.105(c) has been 

changed to explain this process without 

repeating the discussion in 

§ 1979.106(b). 

The AFA commented that 

§ 1979.105(a) should be modified to 

require the awarding of attorney’s fees 

to the complainant and to provide only 

to the complainant a written summary 

of the relevant facts obtained when a 

complaint is dismissed. OSHA believes 

that it is obligated under the law to 

provide written findings to both parties 

regardless of the outcome of the 

investigation. OSHA agrees that the 

statutory language requires the Secretary 

to award reasonable attorney’s fees, and 

the language of the regulation has been 

changed accordingly. 

The ATA commented that 

§ 1979.105(a) should be modified to 

make clear that OSHA should not order 

preliminary reinstatement of an 

employee involved in air carrier 

operations if the individual poses a 

safety risk to employees or passengers. 

The ATA felt that it was possible in 

certain situations that OSHA might 

reasonably conclude that a complainant 

should be reinstated, but that the 

complainant’s return to work could pose 

a safety hazard to other employees or 

the public. AIR21 only permits issuance 

of a preliminary order granting 

reinstatement if there is reasonable 

cause to believe that a violation has 

occurred. Section 1979.104(e) provides 

opportunities for the named person to 

present evidence to OSHA that the 

complainant would have been 

discharged even in the absence of his or 

her protected activity. Where the named 

party establishes that the complainant 

would have been discharged even 

absent the protected activity, there 

would be no reasonable cause to believe 

that a violation has occurred. Therefore, 

a preliminary restatement order would 

not be issued. 

Furthermore, a preliminary order of 

reinstatement would not be an 

appropriate remedy where, for example, 

the named party establishes that the 

complainant is, or has become, a 

security risk based upon information 

obtained after the complainant’s 

discharge in violation of AIR21’s 

employee protection provision. See 

McKennon v. Nashville Banner 

Publishing Co., 513 U.S. 352, 360–62 

(1995), in which the Supreme Court 

recognized that reinstatement would not 

be an appropriate remedy for 

discrimination under the Age 

Discrimination in Employment Act 

where, based upon after-acquired 

evidence, the employer would have 

terminated the employee upon lawful 

grounds. The final regulation explicitly 

so provides. Moreover, because section 

1979.105(a) provides that the Assistant 

Secretary’s preliminary order will 

require reinstatement, along with the 

other make-whole remedies, ‘‘where 

appropriate,’’ we believe that the 

regulations provide safeguards that 

address ATA’s legitimate security-risk 

concerns. Finally, in appropriate 

circumstances, in lieu of preliminary 

reinstatement, OSHA may order that the 

complainant receive the same pay and 

benefits that he received prior to his 

termination, but not actually return to 

work. Such ‘‘economic reinstatement’’

frequently is employed in cases arising 

under section 105(c) of the Federal Mine 

Safety and Health Act of 1977. See, e.g., 

Secretary of Labor on behalf of York v. 

BR&D Enters., Inc., 23 FMSHRC 697, 

2001 WL 1806020 **1 (June 26, 2001). 

The AFA suggested that § 1979.105(b) 

should be changed to require the named 

person to produce proof of attorney’s 

fees and to provide the evidence 

directly to the complainant in cases 

where OSHA finds that a complaint is 

frivolous or brought in bad faith. The 

NWC commented that such sanctions 

against the complainant should not be 

available during the investigation phase. 

In consideration of the comments 

presented and OSHA’s own reevaluation of the statutory language, 

OSHA has deleted the paragraph 

delegating to OSHA responsibility for 

assessing attorney’s fees up to $1,000 

during the investigation phase for 

complaints frivolously filed or filed in 

bad faith (§ 1979.105(b)). The remaining 

paragraphs of this section have been 

renumbered. The named person may 

seek attorney’s fees for complaints filed 

frivolously or in bad faith in the 

administrative law judge proceeding as 

provided in § 1979.106(a). Such 

attorney’s fees may be sought for fees 

incurred during the investigation of a 

frivolous complaint, even where the 

Assistant Secretary finds no merit to the 

complaint and the complainant does not 

file any objection to the determination. 

See § 1979.105(b) and § 1979.109(b). 

The named person also may seek 

attorney’s fees as provided in 

§ 1979.110(a), in a petition for review by 

the Board. See § 1979.110(e). 

Section 1979.106 Objections to the 

Findings and the Preliminary Order 

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, Washington, D.C. 

within 30 days of receipt of the findings. 

The date of the postmark, facsimile 

transmittal, or e-mail communication is 

considered the date of the filing. The 

filing of objections is also considered a 

request for a hearing before an ALJ. The 

language of § 1979.106(b) has been 

changed to explain the effect of the 

timely filing of objections on the 

preliminary order without repeating the 

discussion in § 1979.105(c). 

The NWC commented that in 

§ 1979.106(a) the requirement that a 

party needs to file ‘‘objections’’ at the 

time a request for hearing is filed should 

be deleted. The basis for the comment 

was that other whistleblower 

regulations do not require it and that 

unnecessary litigation may result over 

the adequacy of the objections rather 

than the merits of the case. OSHA has 

considered this concern and believes 

that the rules as drafted are correct and 

consistent with the language of the 

statute. It is not expected that a party’s 

list of objections needs to be exhaustive 

at the time of the initial request for 

hearing. A named person may seek 

attorney’s fees for the filing of a 

frivolous complaint or a complaint filed 

in bad faith when filing any objections 

and a request for a hearing.

The NWC also felt that 

§ 1979.106(b)(1) should require that all 

of the remedies of a preliminary order 

be immediately effective, rather than 

just the reinstatement portion, when the 

employee prevails at the investigative 

stage. OSHA believes that such an 

interpretation is clearly inconsistent 

with the statutory language which states 

that objections shall not operate to stay 

any reinstatement remedy contained in 

the preliminary order. 

Federal Register / Vol. 68, No. 55 / Friday, March 21, 2003 / Rules and Regulations 14105

Section 1979.107 Hearings 

This section adopts 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, formal rules 

of evidence do not apply. The section 

specifically provides for consolidation 

of hearings if both the complainant and 

the named person object to the findings 

and order of the Assistant Secretary. 

The ALPA commented that a new 

subsection should be added to 

§ 1979.107 setting forth the standard of 

proof to be used by the administrative 

law judges at hearing. OSHA believes 

that the statute clearly sets forth the 

criteria for determination by the 

Secretary, and additional clarification is 

not necessary. 

Section 1979.108 Role of Federal 

Agencies 

The ERA and STAA regulations 

provide two different models for agency 

participation in administrative 

proceedings. Under STAA, OSHA 

ordinarily prosecutes cases where a 

complaint has been found to be 

meritorious. Under ERA and the other 

environmental whistleblower statutes, 

on the other hand, OSHA does not 

ordinarily appear as a party in the 

proceeding. The Department has found 

that in most environmental 

whistleblower cases, parties have been 

ably represented and the public interest 

has not required the Department’s 

participation. Therefore this provision 

utilizes the approach of the ERA 

regulation at 29 CFR 24.6(f)(1). 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 administrative law 

judge; petition for review of a decision 

of an administrative law judge, 

including a decision based on a 

settlement agreement between 

complainant and the named person, 

regardless of whether the Assistant 

Secretary participated before the ALJ; or 

participate as amicus curiae before the 

ALJ or in the Administrative Review 

Board proceeding. Although we 

anticipate that ordinarily the Assistant 

Secretary will not participate in AIR21 

proceedings, the Assistant Secretary 

may choose to 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 FAA, at 

that agency’s discretion, also may 

participate as amicus curiae at any time 

in the proceedings. The Department 

believes it is unlikely that its 

preliminary decision not to ordinarily 

prosecute meritorious AIR21 cases will 

discourage employees from making 

complaints about air carrier safety. 

Four comments were received 

regarding § 1979.108(a)(1). The TTD and 

the AFA commented that the regulation 

should explicitly provide that the 

Assistant Secretary shall act only in the 

interests of the complainant at any 

hearings. The ALPA commented that 

the Assistant Secretary should always 

act as prosecutor at any hearing before 

the ALJ or review by the Board. The 

AFA commented that the Assistant 

Secretary should act as prosecutor only 

at the request of the complainant. And 

the ATA supported the section as 

written and commented that the 

Assistant Secretary should limit 

participation to those few cases that 

present issues of such particular legal 

significance to the agency as to warrant 

participation. In consideration of all the 

comments received it is OSHA’s 

determination to leave the language of 

this rule as written. The Assistant 

Secretary may participate as a party or 

may participate as amicus curiae as he 

or she may deem necessary or 

appropriate. 

Section 1979.109 Decision of the 

Administrative Law Judge 

This section sets forth the content of 

the decision and order of the 

administrative law judge, and includes 

the statutory standard for finding a 

violation. The section further provides 

that the Assistant Secretary’s 

determination to dismiss the complaint 

without an investigation or complete an 

investigation pursuant to § 1979.104 is 

not subject to review. Paragraph (a) of 

this section has been clarified to state 

expressly that the Assistant Secretary’s 

determinations on whether to proceed 

with an investigation and to make 

particular investigative findings are 

discretionary decisions not subject to 

review by the ALJ. The ALJ hears the 

case on the merits, and may not remand 

the matter to the Assistant Secretary to 

conduct an investigation or make 

further factual findings. Paragraph (c) of 

this section has been changed to make 

the ALJ decision effective ten business 

days after the date on which it was 

issued, unless a timely petition for 

review has been filed with the 

Administrative Review Board, to 

conform with the change in 

§ 1979.110(a), which provides ten 

business days instead of ‘‘15 days’’ from 

the date of the ALJ decision for the 

filing of a petition for review. 

The AFA commented that 

§ 1979.109(b) should be changed to 

require the administrative law judge to 

provide the complainant with any 

evidence of the named person’s 

attorney’s fees and to formally advise 

the complainant that the decision to 

award fees may be appealed. OSHA 

does not believe this language is 

necessary because the right of either 

party to appeal the administrative law 

judges’ decisions is explained in the 

subsequent section, to wit, § 1979.110.

The NWC commented that 

§ 1979.109(c) should be modified to 

reflect that the administrative law 

judges do not have statutory authority to 

lift the Assistant Secretary’s preliminary 

order of reinstatement. OSHA does not 

believe that the proposed change can be 

supported by the language of the statute. 

Section 1979.110 Decision 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 

Administrative Review Board. Upon the 

issuance of the ALJ’s decision, the 

parties may petition the Board for 

review of that decision. The date of the 

postmark, facsimile transmittal, or email 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. Paragraph (a) of this 

section has been modified to facilitate 

the review process by stating expressly 

that the parties must specifically 

identify the findings and conclusions to 

which they take exception in the 

petition, or the exceptions are deemed 

waived by the parties. 

Paragraphs (a) and (b) also have been 

modified to provide that appeals to the 

Board are not a matter of right, but 

rather petitions for review are accepted 

at the discretion of the Board. The Board 

has 30 days to decide whether to grant 

the petition for review. If the Board does 

not grant the petition, the decision of 

the ALJ becomes the final decision of 

the Secretary. If the Board grants the 

petition, the Act requires the Board to 

issue a decision not later than 120 days 

after the date of the conclusion of the 

hearing before the ALJ. The conclusion 

of the hearing is deemed to be the 

conclusion of all proceedings before the 

administrative law judge—i.e., ten 

business days after the date of the 

decision of the administrative law judge 

unless a motion for reconsideration has 

been filed in the interim. If a timely 

petition for review is filed with the 

14106 Federal Register / Vol. 68, No. 55 / Friday, March 21, 2003 / Rules and Regulations 

Board, any relief ordered by the ALJ, 

except for a preliminary order of 

reinstatement, is inoperative while the 

matter is pending before the Board. This 

section now further provides that, when 

the Board accepts a petition for review, 

its review of factual determinations will 

be conducted under the substantial 

evidence standard. This standard also is 

applied to Board review of ALJ 

decisions under the whistleblower 

provision of STAA. 29 CFR 

1978.109(b)(3). 

The AFA recommended that 

§ 1979.110(a) be changed to state that a 

petition for review must be filed with 

the ARB within ten days, rather than 

received by the Board within 15 days to 

allow either party sufficient time to file 

without being penalized by inconsistent 

postal delivery. OSHA agrees that, due 

to the vagaries of postal delivery, the 

date of filing as described in this section 

rather than the date of the Board’s 

receipt of the petition should be used to 

determine whether a petition is timely, 

and that ten days is sufficient time to 

petition for review of an ALJ decision. 

Only business days shall be counted in 

the ten days allowed for filing a 

petition, consistent with the Federal 

Rules of Civil Procedure 6(a), and 

paragraph (a) of this section has been 

changed to clarify the change from ‘‘15’’

to ‘‘ten’’ days. 

The AFA also recommended that 

§ 1979.110(c) be changed to avoid 

undue delay by providing that the 

administrative law judge’s decision 

becomes the final order of the Secretary 

after 120 days if the Administrative 

Review Board fails to act within the 120 

days. OSHA agrees that the procedure 

for Board review of an ALJ decision 

should be modified to avoid delay and 

prejudice to the parties, and to facilitate 

the issuance of a final order of the 

Secretary as required by the Act. The 

modifications to the Board review 

procedure in paragraphs (a) and (b) of 

this section, i.e., discretionary review by 

the Board, which shall accept as 

conclusive ALJ findings of fact that are 

supported by substantial evidence, 

address the concerns expressed by the 

AFA, and the recommended change to 

paragraph (c) of this section is not 

necessary. 

Section 1979.111 Withdrawal of 

Complaints, Objections, and Findings; 

Settlement 

This section provides for the 

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 

investigatory and judicial stages of the 

case. 

The NWC commented that § 1979.111 

should be modified to permit a 

complainant to freely withdraw his or 

her complaint without prejudice. OSHA 

believes that § 1979.111 does permit a 

complainant to freely withdraw his or 

her complaint without prejudice. The 

purpose of the Assistant Secretary’s 

approval is to help ensure that the 

complainant’s withdrawal is, indeed, 

made freely without threat of coercion 

or unlawful promise. 

Section 1979.112 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 Administrative Review Board to 

submit the record of proceedings to the 

appropriate court pursuant to the rules 

of such court. 

Section 1979.113 Judicial Enforcement 

This section describes the Secretary’s 

power under the statute 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. 

Section 1979.114 Special 

Circumstances; Waiver of Rules

This section provides that in 

circumstances not contemplated by 

these rules or for good cause the 

Secretary may, upon application and 

notice to the parties, waive any rule as 

justice or the administration of the Act 

requires. 

The NWC commented that § 1979.114 

should be deleted in its entirety because 

it has no basis in the statutory language. 

OSHA believes that the regulation 

should remain to give the administrative 

law judges and the Administrative 

Review Board the flexibility to take 

actions in unusual situations that are 

not contemplated by the regulations. 

IV. Paperwork Reduction Act 

This rule contains a reporting 

requirement (§ 1979.103) which was 

previously reviewed and approved for 

use by the Office of Management and 

Budget (‘‘OMB’’) under 29 CFR 24.3 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 

This rule is a rule of agency procedure 

and practice within the meaning of 

Section 553 of the Administrative 

Procedure Act (‘‘APA’’), 5 U.S.C. 

553(b)(A). Therefore, publication in the 

Federal Register of a notice of proposed 

rulemaking and request for comments 

was not required for these regulations, 

which provide procedures for the 

handling of discrimination complaints. 

However, 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 should be treated as a 

‘‘significant regulatory action’’ within 

the meaning of Section 3(f)(4) of 

Executive Order 12866 because AIR21 is 

a new program and because of the 

importance to FAA’s airline safety 

program that ‘‘whistleblowers’’ be 

protected from retaliation. E.O. 12866 

requires a full economic impact analysis 

only for ‘‘economically significant’’

rules, which are defined in Section 

3(f)(1) as rules that may ‘‘have an annual 

effect on the economy of $100 million 

or more, or adversely affect in a material 

way the economy, productivity, 

competition, jobs, the environment, 

public health or safety, or State, local, 

or tribal governments or communities.’’

Because the rule is procedural in nature, 

it is not expected to have a significant 

economic impact; therefore no 

economic impact analysis has been 

prepared. For the same reason, the rule 

does not require a Section 202 statement 

under the Unfunded Mandates Reform 

Act of 1995 (2 U.S.C. 1531 et seq.). 

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. 801 et 

seq.), 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 

Federal Register / Vol. 68, No. 55 / Friday, March 21, 2003 / Rules and Regulations 14107

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 

simply implements procedures 

necessitated by enactment of AIR21, in 

order to allow resolution of 

whistleblower complaints. 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 and control of the Assistant 

Secretary, Occupational Safety and 

Health Administration, U.S. Department 

of Labor.

List of Subjects in 29 CFR Part 1979

Administrative practice and 

procedure, Air carrier safety, 

Employment, Investigations, Reporting 

and recordkeeping requirements, 

Whistleblowing.

Signed at Washington, DC this 17th day of 

March, 2003. 

John L. Henshaw, 

Assistant Secretary for Occupational Safety 

and Health.

Accordingly, for the reasons set out in 

the preamble part 1979 of title 29 of the 

Code of Federal Regulations is revised 

to read as follows:

PART 1979—PROCEDURES FOR THE 

HANDLING OF DISCRIMINATION 

COMPLAINTS UNDER SECTION 519 

OF THE WENDELL H. FORD AVIATION 

INVESTMENT AND REFORM ACT FOR 

THE 21ST CENTURY

Subpart A—Complaints, Investigations, 

Findings and Preliminary Orders 

Sec. 

1979.100 Purpose and scope. 

1979.101 Definitions. 

1979.102 Obligations and prohibited acts. 

1979.103 Filing of discrimination 

complaint. 

1979.104 Investigation. 

1979.105 Issuance of findings and 

preliminary orders.

Subpart B—Litigation 

1979.106 Objections to the findings and the 

preliminary order and request for a 

hearing. 

1979.107 Hearings. 

1979.108 Role of Federal agencies. 

1979.109 Decision and orders of the 

administrative law judge. 

1979.110 Decision and orders of the 

Administrative Review Board.

Subpart C—Miscellaneous Provisions 

1979.111 Withdrawal of complaints, 

objections, and findings; settlement. 

1979.112 Judicial review. 

1979.113 Judicial enforcement. 

1979.114 Special circumstances; waiver of 

rules.

Authority: 49 U.S.C. 42121; Secretary of 

Labor’s Order 5–2002, 67 FR 65008 (October 

22, 2002).

Subpart A—Complaints, 

Investigations, Findings and 

Preliminary Orders

§ 1979.100 Purpose and scope. 

(a) This part implements procedures 

under section 519 of the Wendell H. 

Ford Aviation Investment and Reform 

Act for the 21st Century, 49 U.S.C. 

42121 (‘‘AIR21’’), which provides for 

employee protection from 

discrimination by air carriers or 

contractors or subcontractors of air 

carriers because the employee has 

engaged in protected activity pertaining 

to a violation or alleged violation of any 

order, regulation, or standard of the 

Federal Aviation Administration or any 

other provision of Federal law relating 

to air carrier safety. 

(b) This part establishes procedures 

pursuant to AIR21 for the expeditious 

handling of discrimination 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 AIR21, 

investigations, issuance of findings and 

preliminary orders, objections to 

findings and orders, litigation before 

administrative law judges, post-hearing 

administrative review, and withdrawals 

and settlements.

§ 1979.101 Definitions. 

Act or AIR21 means section 519 of the 

Wendell H. Ford Aviation Investment 

and Reform Act for the 21st Century, 

Public Law 106–181, April 5, 2000, 49 

U.S.C. 42121. 

Air carrier means a citizen of the 

United States undertaking by any 

means, directly or indirectly, to provide 

air transportation. 

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 the Act. 

Complainant means the employee 

who filed a complaint under the Act or 

on whose behalf a complaint was filed. 

Contractor means a company that 

performs safety-sensitive functions by 

contract for an air carrier. 

Employee means an individual 

presently or formerly working for an air 

carrier or contractor or subcontractor of 

an air carrier, an individual applying to 

work for an air carrier or contractor or 

subcontractor of an air carrier, or an 

individual whose employment could be 

affected by an air carrier or contractor or 

subcontractor of an air carrier. 

Named person means the person 

alleged to have violated the Act. 

OSHA means the Occupational Safety 

and Health Administration of the 

United States Department of Labor. 

Person means one or more 

individuals, partnerships, associations, 

corporations, business trusts, legal 

representatives, or any group of persons. 

Secretary means the Secretary of 

Labor or persons to whom authority 

under the Act has been delegated.

§ 1979.102 Obligations and prohibited 

acts. 

(a) No air carrier or contractor or 

subcontractor of an air carrier may 

discharge any employee or otherwise 

discriminate 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 paragraphs 

(b)(1) through (4) of this section. 

(b) It is a violation of the Act for any 

air carrier or contractor or subcontractor 

of an air carrier to intimidate, threaten, 

restrain, coerce, blacklist, discharge or 

in any other manner discriminate 

against any employee because the 

employee has: 

(1) Provided, caused to be provided, 

or is about to provide (with any 

knowledge of the employer) or cause to 

be provided to the air carrier or 

contractor or subcontractor of an air 

carrier or the Federal Government, 

information relating to any violation or 

alleged violation of any order, 

regulation, or standard of the Federal 

Aviation Administration or any other 

provision of Federal law relating to air 

carrier safety under subtitle VII of title 

49 of the United States Code or under 

any other law of the United States; 

(2) Filed, caused to be filed, or is 

about to file (with any knowledge of the 

employer) or cause to be filed a 

proceeding relating to any violation or 

alleged violation of any order, 

regulation, or standard of the Federal 

Aviation Administration or any other 

provision of Federal law relating to air 

carrier safety under subtitle VII of title 

49 of the United States Code, or under 

any other law of the United States; 

(3) Testified or is about to testify in 

such a proceeding; or 

(4) Assisted or participated or is about 

to assist or participate in such a 

proceeding. 

14108 Federal Register / Vol. 68, No. 55 / Friday, March 21, 2003 / Rules and Regulations 

(c) This part shall have no application 

to any employee of an air carrier, 

contractor, or subcontractor who, acting 

without direction from an air carrier, 

contractor, or subcontractor (or such 

person’s agent) deliberately causes a 

violation of any requirement relating to 

air carrier safety under Subtitle VII 

Aviation Programs of Title 49 of the 

United States Code or any other law of 

the United States.

§ 1979.103 Filing of discrimination 

complaint. 

(a) Who may file. An employee who 

believes that he or she has been 

discriminated against by an air carrier or 

contractor or subcontractor of an air 

carrier in violation of the Act may file, 

or have filed by any person on the 

employee’s behalf, a complaint alleging 

such discrimination. 

(b) Nature of filing. No particular form 

of complaint is required, except that a 

complaint must be in writing and 

should include a full statement of the 

acts and omissions, with pertinent 

dates, which are believed to constitute 

the violations. 

(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. Within 90 days 

after an alleged violation of the Act 

occurs (i.e., when the discriminatory 

decision has been both made and 

communicated to the complainant), an 

employee who believes that he or she 

has been discriminated against in 

violation of the Act may file, or have 

filed by any person on the employee’s 

behalf, a complaint alleging such 

discrimination. The date of the 

postmark, facsimile transmittal, or email communication will be considered 

to be the date of filing; if the complaint 

is filed in person, by hand-delivery, or 

other means, the complaint is filed upon 

receipt.

(e) Relationship to section 11(c) 

complaints. A complaint filed under 

AIR21 that alleges facts which would 

constitute a violation of section 11(c) of 

the Occupational Safety and Health Act, 

29 U.S.C. 660(c), shall be deemed to be 

a complaint filed under both AIR21 and 

section 11(c). Similarly, a complaint 

filed under section 11(c) that alleges 

facts that would constitute a violation of 

AIR21 shall be deemed to be a 

complaint filed under both AIR21 and 

section 11(c). Normal procedures and 

timeliness requirements for 

investigations under the respective laws 

and regulations will be followed.

§ 1979.104 Investigation. 

(a) Upon receipt of a complaint in the 

investigating office, the Assistant 

Secretary will notify the named person 

of the filing of the complaint, of the 

allegations contained in the complaint, 

and of the substance of the evidence 

supporting the complaint (redacted to 

protect the identity of any confidential 

informants). The Assistant Secretary 

will also notify the named person of his 

or her rights under paragraphs (b) and 

(c) of this section and paragraph (e) of 

§ 1979.110. A copy of the notice to the 

named person will also be provided to 

the Federal Aviation Administration. 

(b) A complaint of alleged violation 

will be dismissed unless the 

complainant has made a prima facie 

showing that protected behavior or 

conduct was a contributing factor in the 

unfavorable personnel action alleged in 

the complaint. 

(1) 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 or conduct; 

(ii) The named person knew or 

suspected, actually or constructively, 

that the employee engaged in the 

protected activity; 

(iii) The employee suffered an 

unfavorable personnel action; and 

(iv) The circumstances were sufficient 

to raise the inference that the protected 

activity was a contributing factor in the 

unfavorable action. 

(2) 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 named 

person knew or suspected that the 

employee engaged in protected activity 

and that the protected activity was a 

contributing factor in the unfavorable 

personnel action. Normally the burden 

is satisfied, for example, if the 

complaint shows that the adverse 

personnel action took place shortly after 

the protected activity, giving rise to the 

inference that it was a factor in the 

adverse action. If the required showing 

has not been made, the complainant 

will be so advised and the investigation 

will not commence. 

(c) 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 if the named person, 

pursuant to the procedures provided in 

this paragraph, demonstrates by clear 

and convincing evidence that it would 

have taken the same unfavorable 

personnel action in the absence of the 

complainant’s protected behavior or 

conduct. Within 20 days of receipt of 

the notice of the filing of the complaint, 

the named person may submit to the 

Assistant Secretary a written statement 

and any affidavits or documents 

substantiating his or her position. 

Within the same 20 days the named 

person may request a meeting with the 

Assistant Secretary to present his or her 

position. 

(d) If the named person fails to 

demonstrate by clear and convincing 

evidence that it would have taken the 

same unfavorable personnel action in 

the absence of the behavior protected by 

the Act, the Assistant Secretary will 

conduct an investigation. 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 29 

CFR part 70. 

(e) Prior to the issuance of findings 

and a preliminary order as provided for 

in § 1979.105, if the Assistant Secretary 

has reasonable cause, on the basis of 

information gathered under the 

procedures of this part, to believe that 

the named person has violated the Act 

and that preliminary reinstatement is 

warranted, the Assistant Secretary will 

again contact the named person to give 

notice of the substance of the relevant 

evidence supporting the complainant’s 

allegations as developed during the 

course of the investigation. This 

evidence includes any witness 

statements, which will be redacted to 

protect the identity of confidential 

informants where statements were given 

in confidence; if the statements cannot 

be redacted without revealing the 

identity of confidential informants, 

summaries of their contents will be 

provided. The named person shall be 

given the opportunity to submit a 

written response, to meet with the 

investigators to present statements from 

witnesses in support of his or her 

position, and to present legal and 

factual arguments. The named person 

shall present this evidence within ten 

business days of the Assistant 

Secretary’s notification pursuant to this 

paragraph, or as soon afterwards as the 

Assistant Secretary and the named 

Federal Register / Vol. 68, No. 55 / Friday, March 21, 2003 / Rules and Regulations 14109

person can agree, if the interests of 

justice so require.

§ 1979.105 Issuance of findings and 

preliminary orders. 

(a) After considering all the relevant 

information collected during the 

investigation, the Assistant Secretary 

will issue, within 60 days of filing of the 

complaint, written findings as to 

whether or not there is reasonable cause 

to believe that the named person has 

discriminated against the complainant 

in violation of the Act. 

(1) If the Assistant Secretary 

concludes that there is reasonable cause 

to believe that a violation has occurred, 

he or she will accompany the findings 

with a preliminary order providing 

relief to the complainant. The 

preliminary order will include, where 

appropriate, a requirement that the 

named person abate the violation; 

reinstatement of the complainant to his 

or her former position, together with the 

compensation (including back pay), 

terms, conditions and privileges of the 

complainant’s employment; and 

payment of compensatory damages. 

Where the named person establishes 

that the complainant is a security risk 

(whether or not the information is 

obtained after the complainant’s 

discharge), a preliminary order of 

reinstatement would not be appropriate. 

At the complainant’s request the order 

shall also assess against the named 

person the complainant’s costs and 

expenses (including attorney’s and 

expert witness 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 the preliminary 

order will be sent by certified mail, 

return receipt requested, to all parties of 

record. The letter accompanying the 

findings and order will inform the 

parties of their right to file objections 

and to request a hearing, and of the right 

of the named person to request 

attorney’s fees from the administrative 

law judge, regardless of whether the 

named person has filed objections, if the 

named person alleges that the complaint 

was frivolous or brought in bad faith. 

The letter also will give the address of 

the Chief Administrative Law Judge. At 

the same time, the Assistant Secretary 

will file with the Chief Administrative 

Law Judge, U.S. Department of Labor, a 

copy of the original complaint and a 

copy of the findings and order. 

(c) The findings and the preliminary 

order shall be effective 30 days after 

receipt by the named person pursuant to 

paragraph (b) of this section, unless an 

objection and a request for a hearing has 

been filed as provided at § 1979.106. 

However, the portion of any preliminary 

order requiring reinstatement shall be 

effective immediately upon receipt of 

the findings and preliminary order.

Subpart B—Litigation

§ 1979.106 Objections to the findings and 

the preliminary order and request for a 

hearing. 

(a) Any party who desires review, 

including judicial review, of the 

findings and preliminary order, or a 

named person alleging that the 

complaint was frivolous or brought in 

bad faith who seeks an award of 

attorney’s fees, must file any objections 

and/or a request for a hearing on the 

record within 30 days of receipt of the 

findings and preliminary order pursuant 

to paragraph (b) of § 1979.105. The 

objection or request for attorney’s fees 

and request for a hearing must be in 

writing and state whether the objection 

is to the findings, the preliminary order, 

and/or whether there should be an 

award of attorney’s fees. The date of the 

postmark, facsimile transmittal, or email 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, 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, and the Associate Solicitor, 

Division of Fair Labor Standards, U.S. 

Department of Labor, Washington, DC 

20210. 

(b)(1) If a timely objection is filed, all 

provisions of the preliminary order shall 

be stayed, except for the portion 

requiring preliminary reinstatement. 

The portion of the preliminary order 

requiring reinstatement shall be 

effective immediately upon the named 

person’s receipt of the findings and 

preliminary order, regardless of any 

objections to the order. 

(2) If no timely objection is filed with 

respect to either the findings or the 

preliminary order, the findings or 

preliminary order, as the case may be, 

shall become the final decision of the 

Secretary, not subject to judicial review.

§ 1979.107 Hearings. 

(a) Except as provided in this part, 

proceedings will be conducted in 

accordance with the rules of practice 

and procedure for administrative 

hearings before the Office of 

Administrative Law Judges, codified at 

subpart A, of 29 CFR part 18. 

(b) Upon receipt of an objection and 

request for hearing, the Chief 

Administrative Law Judge will promptly 

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 

unless otherwise agreed to by the 

parties. Hearings will be conducted as 

hearings de novo, on the record. 

Administrative law judges shall have 

broad discretion to limit discovery in 

order to expedite the hearing. 

(c) If both the complainant and the 

named person object to the findings 

and/or order, the objections will be 

consolidated and a single hearing will 

be conducted. 

(d) Formal rules of evidence shall not 

apply, but rules or principles designed 

to assure production of the most 

probative evidence shall be applied. The 

administrative law judge may exclude 

evidence which is immaterial, 

irrelevant, or unduly repetitious.

§ 1979.108 Role of Federal agencies. 

(a)(1) The complainant and the named 

person shall be parties in every 

proceeding. At the Assistant Secretary’s 

discretion, the Assistant Secretary may 

participate as a party or may participate 

as amicus curiae at any time in the 

proceedings. This right to participate 

shall include, but is not limited to, the 

right to petition for review of a decision 

of an administrative law judge, 

including a decision based on a 

settlement agreement between 

complainant and the named person, to 

dismiss a complaint or to issue an order 

encompassing the terms of the 

settlement. 

(2) Copies of pleadings 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, 

Washington, DC 20210. 

(b) The FAA may participate as 

amicus curiae at any time in the 

proceedings, at the FAA’s discretion. At 

the request of the FAA, copies of all 

pleadings in a case must be sent to the 

FAA, whether or not the FAA is 

participating in the proceeding.

§ 1979.109 Decision and orders of the 

administrative law judge. 

(a) The decision of the administrative 

law judge will contain appropriate 

findings, conclusions, and an order 

pertaining to the remedies provided in 

14110 Federal Register / Vol. 68, No. 55 / Friday, March 21, 2003 / Rules and Regulations 

paragraph (b) of this section, as 

appropriate. A determination that a 

violation has occurred may only be 

made if the complainant has 

demonstrated that protected behavior or 

conduct was a contributing factor in the 

unfavorable personnel action alleged in 

the complaint. Relief may not be 

ordered if the named person 

demonstrates by clear and convincing 

evidence that it would have taken the 

same unfavorable personnel action in 

the absence of any protected behavior. 

Neither the Assistant Secretary’s 

determination to dismiss a complaint 

without completing an investigation 

pursuant to § 1979.104(b) nor the 

Assistant Secretary’s determination to 

proceed with an investigation is subject 

to review by the administrative law 

judge, 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 

administrative law judge shall hear the 

case on the merits. 

(b) If the administrative law judge 

concludes that the party charged has 

violated the law, the order shall direct 

the party charged to take appropriate 

affirmative action to abate the violation, 

including, where appropriate, 

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. At the request of the 

complainant, the administrative law 

judge shall assess against the named 

person all costs and expenses (including 

attorney’s and expert witness fees) 

reasonably incurred. If, upon the request 

of the named person, the administrative 

law judge determines that a complaint 

was frivolous or was brought in bad 

faith, the judge may award to the named 

person a reasonable attorney’s fee, not 

exceeding $1,000. 

(c) The decision will be served upon 

all parties to the proceeding. Any 

administrative law judge’s decision 

requiring reinstatement or lifting an 

order of reinstatement by the Assistant 

Secretary shall be effective immediately 

upon receipt of the decision by the 

named person, and may not be stayed. 

All other portions of the judge’s order 

shall be effective ten business days after 

the date of the decision unless a timely 

petition for review has been filed with 

the Administrative Review Board.

§ 1979.110 Decision and orders of the 

Administrative Review Board. 

(a) Any party desiring to seek review, 

including judicial review, of a decision 

of the administrative law judge, or a 

named person alleging that the 

complaint was frivolous or brought in 

bad faith who seeks an award of 

attorney’s fees, must file a written 

petition for review with the 

Administrative Review Board (‘‘the 

Board’’), which has been delegated the 

authority to act for the Secretary and 

issue final decisions under this part. 

The decision of the administrative law 

judge shall become the final order of the 

Secretary unless, pursuant to this 

section, a petition for review is timely 

filed with the Board. The petition for 

review must specifically identify the 

findings, conclusions or orders to which 

exception is taken. Any exception not 

specifically urged ordinarily shall be 

deemed to have been waived by the 

parties. To be effective, a petition must 

be filed within ten business days of the 

date of the decision of the 

administrative law judge. The date of 

the postmark, facsimile transmittal, or email 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 Board. 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, 

Washington, DC 20210. 

(b) If a timely petition for review is 

filed pursuant to paragraph (a) of this 

section, the decision of the 

administrative law judge shall become 

the final order of the Secretary unless 

the Board, within 30 days of the filing 

of the petition, issues an order notifying 

the parties that the case has been 

accepted for review. If a case is accepted 

for review, the decision of the 

administrative law judge shall be 

inoperative unless and until the Board 

issues an order adopting the decision, 

except that a preliminary order of 

reinstatement shall be effective while 

review is conducted by the Board. The 

Board will specify the terms under 

which any briefs are to be filed. The 

Board will review the factual 

determinations of the administrative 

law judge under the substantial 

evidence standard. 

(c) The final decision of the Board 

shall be issued within 120 days of the 

conclusion of the hearing, which shall 

be deemed to be the conclusion of all 

proceedings before the administrative 

law judge—i.e., ten business days after 

the date of the decision of the 

administrative law judge unless a 

motion for reconsideration has been 

filed with the administrative law judge 

in the interim. The decision will be 

served upon all parties and the Chief 

Administrative Law Judge by mail to the 

last known address. 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, Washington, DC 20210, even if 

the Assistant Secretary is not a party. 

(d) If the Board concludes that the 

party charged has violated the law, the 

final order shall order the party charged 

to take appropriate affirmative action to 

abate the violation, including, where 

appropriate, 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. At the request of the 

complainant, the Board shall assess 

against the named person all costs and 

expenses (including attorney’s and 

expert witness fees) reasonably 

incurred. 

(e) If the Board determines that the 

named person has not violated the law, 

an order shall be issued denying the 

complaint. If, upon the request of the 

named person, the Board determines 

that a complaint was frivolous or was 

brought in bad faith, the Board may 

award to the named person a reasonable 

attorney’s fee, not exceeding $1,000.

Subpart C—Miscellaneous Provisions

§ 1979.111 Withdrawal of complaints, 

objections, and findings; settlement. 

(a) At any time prior to the filing of 

objections to the findings or preliminary 

order, a complainant may withdraw his 

or her complaint under the Act by filing 

a written withdrawal with the Assistant 

Secretary. The Assistant Secretary will 

then determine whether the withdrawal 

will be approved. The Assistant 

Secretary will notify the named person 

of the approval of any withdrawal. If the 

complaint is withdrawn because of 

settlement, the settlement shall be 

approved in accordance with paragraph 

(d) of this section.

(b) The Assistant Secretary may 

withdraw his or her findings or a 

preliminary order at any time before the 

expiration of the 30-day objection 

period described in § 1979.106, 

provided that no objection has yet been 

filed, and substitute new findings or 

preliminary order. The date of the 

receipt of the substituted findings or 

Federal Register / Vol. 68, No. 55 / Friday, March 21, 2003 / Rules and Regulations 14111

order will begin a new 30-day objection 

period. 

(c) At any time before the findings or 

order become final, a party may 

withdraw his or her objections to the 

findings or order by filing a written 

withdrawal with the administrative law 

judge or, if the case is on review, with 

the Board. The judge or the Board, as 

the case may be, will determine whether 

the withdrawal will be approved. If the 

objections are withdrawn because of 

settlement, the settlement shall be 

approved in accordance with paragraph 

(d) of this section. 

(d)(1) Investigative settlements. 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 named person 

agree to a settlement. 

(2) Adjudicatory settlements. 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 administrative law 

judge if the case is before the judge, or 

by the Board if a timely petition for 

review has been filed with the Board. A 

copy of the settlement shall be filed 

with the administrative law judge or the 

Board, as the case may be. 

(e) Any settlement approved by the 

Assistant Secretary, the administrative 

law judge, or the Board, shall constitute 

the final order of the Secretary and may 

be enforced pursuant to § 1979.113.

§ 1979.112 Judicial review. 

(a) Within 60 days after the issuance 

of a final order by the Board under 

§ 1979.110, 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 

Board is not subject to judicial review 

in any criminal or other civil 

proceeding. 

(b) 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 Board to the 

appropriate court pursuant to the rules 

of the court.

§ 1979.113 Judicial enforcement. 

Whenever any person has failed to 

comply with a preliminary order of 

reinstatement or a final order or the 

terms of a settlement agreement, the 

Secretary or a person on whose behalf 

the order was issued 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.

§ 1979.114 Special circumstances; waiver 

of rules. 

In special circumstances not 

contemplated by the provisions of this 

part, or for good cause shown, the 

administrative law judge or the Board 

on review may, upon application, after 

three days notice to all parties and 

interveners, waive any rule or issue any 

orders that justice or the administration 

of the Act requires.

[FR Doc. 03–6792 Filed 3–20–03; 8:45 am] 

BILLING CODE 4510–26–U