53544 Federal Register / Vol. 75, No. 168 / Tuesday, August 31, 2010 / Rules and Regulations 

rules, 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 such 

orders that justice or the administration 

of CPSIA requires. 

[FR Doc. 2010–21122 Filed 8–30–10; 8:45 am] 

BILLING CODE 4510–26–P 

DEPARTMENT OF LABOR 

Occupational Safety and Health 

Administration 

29 CFR Part 1978 

[Docket Number OSHA–2008–0026] 

RIN 1218–AC36 

Procedures for the Handling of 

Retaliation Complaints Under the 

Employee Protection Provision of the 

Surface Transportation Assistance Act 

of 1982 

AGENCY: Occupational Safety and Health 

Administration, Labor. 

ACTION: Interim final rule; request for 

comments. 

SUMMARY: The Occupational Safety and 

Health Administration (OSHA) is 

amending the regulations governing 

employee protection (or 

‘‘whistleblower’’) claims under the 

Surface Transportation Assistance Act 

of 1982 (STAA), 49 U.S.C. 31105. The 

amendments clarify and improve 

procedures for handling STAA 

whistleblower complaints and 

implement statutory changes enacted 

into law on August 3, 2007, as part of 

the Implementing Recommendations of 

the 9/11 Commission Act of 2007 (9/11 

Commission Act), Public Law 110–53, 

121 Stat. 266. These changes to the 

STAA whistleblower regulations also 

make the procedures for handling 

retaliation complaints under STAA 

more consistent with OSHA’s 

procedures for handling retaliation 

complaints under Section 211 of the 

Energy Reorganization Act of 1974 

(ERA), 42 U.S.C. 5851 and other 

whistleblower provisions. 

DATES: This interim final rule is 

effective on August 31, 2010. Comments 

on the interim final rule must be 

submitted (postmarked, sent or 

received) on or before November 1, 

2010. 

ADDRESSES: You may submit comments 

and additional materials by any of the 

following methods: 

Electronically: You may submit 

comments and attachments 

electronically at http://www.regulations.

gov, which is the Federal eRulemaking 

Portal. Follow the instructions online 

for making electronic submissions. 

Fax: If your submissions, including 

attachments, do not exceed 10 pages, 

you may fax them to the OSHA Docket 

Office at (202) 693–1648. 

Mail, hand delivery, express mail, 

messenger or courier service: You must 

submit your comments and attachments 

to the OSHA Docket Office, Docket No. 

OSHA–2008–0026, U.S. Department of 

Labor, Room N–2625, 200 Constitution 

Avenue, NW., Washington, DC 20210. 

Deliveries (hand, express mail, 

messenger and courier service) are 

accepted during the Department of 

Labor’s and Docket Office’s normal 

business hours, 8:15 a.m.–4:45 p.m., e.t. 

Instructions: All submissions must 

include the agency name and the OSHA 

docket number for this rulemaking 

(Docket No. OSHA–2008–0026). 

Submissions, including any personal 

information you provide, are placed in 

the public docket without change and 

may be made available online at http:// 

www.regulations.gov. Therefore, OSHA 

cautions you about submitting personal 

information such as Social Security 

numbers and birth dates. 

Docket: To read or download 

submissions or other material in the 

docket, go to http://www.regulations.gov 

or the OSHA Docket Office at the 

address above. All documents in the 

docket are listed in the http:// 

www.regulations.gov index, however, 

some information (e.g., copyrighted 

material) is not publicly available to 

read or download through the Web site. 

All submissions, including copyrighted 

material, are available for inspection 

and copying at the OSHA Docket Office. 

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. This is not a 

toll-free number. The alternative formats 

available are large print, electronic file 

on computer disk (Word Perfect, ASCII, 

Mates with Duxbury Braille System) and 

audiotape. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Among other provisions of the 9/11 

Commission Act, section 1536 reenacted 

the whistleblower provision in STAA, 

49 U.S.C. 31105 (previously referred to 

as ‘‘Section 405’’), with certain 

amendments. The regulatory revisions 

described herein reflect these statutory 

changes and also seek to clarify and 

improve OSHA’s procedures for 

handling STAA whistleblower claims. 

To the extent possible within the 

bounds of applicable statutory language, 

these revised regulations are designed to 

be consistent with the procedures 

applied to claims under other 

whistleblower statutes administered by 

OSHA, including the ERA, the Wendell 

H. Ford Aviation Investment and 

Reform Act for the 21st Century 

(AIR21), 49 U.S.C. 42121, and Title VIII 

of the Sarbanes-Oxley Act of 2002 

(SOX), 18 U.S.C. 1514A. Responsibility 

for receiving and investigating 

complaints under 49 U.S.C. 31105 has 

been delegated to the Assistant 

Secretary of Labor for Occupational 

Safety and Health (Assistant Secretary) 

(Secretary’s Order 5–2007, 72 FR 31160, 

June 5, 2007). Hearings on 

determinations by the Assistant 

Secretary are conducted by the Office of 

Administrative Law Judges, and appeals 

from decisions by administrative law 

judges (ALJs) are decided by the 

Administrative Review Board (ARB) 

(Secretary’s Order 1–2010 (Jan. 15, 

2010), 75 FR 3924–01 (Jan. 25, 2010)). 

II. Summary of Statutory Changes to 

STAA Whistleblower Provisions 

The 9/11 Commission Act amended 

49 U.S.C. 31105, and the related 

definitions provision at 49 U.S.C. 31101, 

by making the changes described below. 

Expansion of Protected Activity 

Before passage of the 9/11 

Commission Act, STAA protected 

certain activities related to commercial 

motor vehicle safety. The 9/11 

Commission Act expanded STAA’s 

coverage to commercial motor vehicle 

security. In particular, 49 U.S.C. 

31105(a)(1)(A) previously made it 

unlawful for a person to discharge, 

discipline, or discriminate against an 

employee regarding pay, terms, or 

privileges of employment because the 

employee, or another person at the 

employee’s request, filed a complaint or 

began a proceeding related to a violation 

of a commercial motor vehicle safety 

regulation, standard or order, or testified 

or planned to testify in such a 

proceeding. The 9/11 Commission Act 

expanded this provision to include 

complaints and proceedings related to 

violations of commercial motor vehicle 

security regulations, standards, and 

orders. 

Prior to the 2007 amendments, 

paragraph (a)(1)(B) of STAA’s 

whistleblower provision prohibited a 

person from discharging, disciplining, 

or discriminating against an employee 

regarding pay, terms or privileges of 

employment for refusing to operate a 


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vehicle in violation of a regulation, 

standard, or order related to commercial 

motor vehicle safety or health. The 

statute also protected any employee 

who refused to operate a vehicle 

because he or she had a reasonable 

apprehension of serious injury to 

himself or herself or the public because 

of the vehicle’s unsafe condition. The 

recent STAA amendments expanded 

these protections to cover: (1) Any 

employee who refuses to operate a 

vehicle in violation of regulations, 

standards, or orders related to 

commercial motor vehicle security; and 

(2) any employee who refuses to operate 

a vehicle because he or she has a 

reasonable apprehension of serious 

injury to himself or herself or the public 

due to the vehicle’s hazardous security 

condition. 

Before the statutory amendments, 

paragraph (a)(2) of STAA’s 

whistleblower provision provided that 

an employee’s apprehension of serious 

injury was reasonable only if a 

reasonable person in the circumstances 

then confronting the employee would 

have concluded that the ‘‘unsafe 

condition’’ of the vehicle established a 

real danger of accident, injury, or 

serious impairment to health. Moreover, 

to qualify for protection under this 

provision the employee had to have 

sought from the employer, and been 

unable to obtain, correction of the 

‘‘unsafe condition.’’ The August 2007 

amendments replaced the term ‘‘unsafe 

conditions’’ with the phrase ‘‘hazardous 

safety or security conditions’’ 

throughout this paragraph. 

The 9/11 Commission Act added a 

new paragraph to 49 U.S.C. 31105, 

(a)(1)(A)(ii), making it unlawful for a 

person to discharge, discipline or 

discriminate against an employee 

regarding pay, terms or privileges of 

employment because of a perception 

that the employee has filed or is about 

to file a complaint or has begun or is 

about to bring a proceeding concerning 

a violation of a commercial motor 

vehicle safety or security regulation, 

standard, or order. Paragraph (a)(1)(C) of 

49 U.S.C. 31105 is also new and makes 

it unlawful to discharge, discipline, or 

discriminate against an employee 

regarding pay, terms, or privileges of 

employment because the employee 

accurately reports hours on duty 

pursuant to 49 U.S.C. chapter 315. The 

recent statutory amendments also added 

paragraph (a)(1)(D) to 49 U.S.C. 31105. 

This paragraph prohibits discharging, 

disciplining or discriminating against an 

employee regarding pay, terms or 

privileges of employment because the 

employee cooperates, or is perceived as 

being about to cooperate, with a safety 

or security investigation by the 

Secretary of Transportation, the 

Secretary of Homeland Security, or the 

National Transportation Safety Board. 

Finally, the 9/11 Commission Act 

inserted paragraph (a)(1)(E) into 49 

U.S.C. 31105. This provision prohibits a 

person from discharging, disciplining, 

or discriminating against an employee 

regarding pay, terms or privileges of 

employment because the employee 

furnishes, or is perceived as having 

furnished or being about to furnish, 

information to the Secretary of 

Transportation, the Secretary of 

Homeland Security, the National 

Transportation Safety Board, or any 

Federal, State, or local regulatory or law 

enforcement agency about the facts 

concerning any accident or incident 

resulting in injury or death to an 

individual or damage to property 

occurring in connection with 

commercial motor vehicle 

transportation. 

Legal Burdens of Proof for STAA 

Complaints 

Prior to the 9/11 Commission Act, the 

parties’ burdens of proof in STAA 

actions were understood to be analogous 

to those developed for retaliation claims 

under Title VII of the Civil Rights Act 

of 1964, 42 U.S.C. 2000e et seq. See, e.g., 

Clean Harbors Envtl. Servs., Inc. v. 

Herman, 146 F.3d 12, 21–22 (1st Cir. 

1998); Yellow Freight Sys., Inc. v. Reich, 

27 F.3d 1133, 1138 (6th Cir. 1994). The 

plaintiff’s prima facie case could be 

carried by a sufficient showing that (1) 

he or she engaged in protected activity; 

(2) he or she suffered an adverse action; 

and (3) a causal connection existed 

between the two events. Id. The ARB 

also required proof that the employer 

was aware that the employee had 

engaged in the protected activity. See, 

e.g., Baughman v. J.P. Donmoyer, Inc., 

ARB No. 05–1505, ALJ No. 2005–STA– 

005, 2007 WL 3286335, at *3 (Admin. 

Review Bd. Oct. 31, 2007). 

Once the complainant made this 

showing, an inference of retaliation 

arose and the burden shifted to the 

employer to produce evidence of a 

legitimate, non-retaliatory reason for the 

adverse action. Clean Harbors, 146 F.3d 

at 21; Yellow Freight, 27 F.3d at 1138. 

If the employer met this burden of 

production, the inference of retaliation 

was rebutted and the burden shifted 

back to the complainant to show by a 

preponderance of the evidence that the 

legitimate reason was a pretext for 

unlawful retaliation. Id. Where there 

was evidence that the employer acted 

out of mixed motives, i.e., it acted for 

both permissible and impermissible 

reasons, the employer bore ‘‘the burden 

of establishing by a preponderance of 

the evidence that it would have taken 

the adverse employment action in the 

absence of the employee’s protected 

activity.’’ Clean Harbors, 146 F.3d at 21– 

22. 

The 9/11 Commission Act amended 

paragraph (b)(1) of 49 U.S.C. 31105 to 

state that STAA whistleblower 

complaints will be governed by the legal 

burdens of proof set forth in AIR21, 49 

U.S.C. 42121(b), which contains 

whistleblower protections for 

employees in the aviation industry. 

AIR21 provides that a complaint must 

be dismissed (and no investigation will 

be conducted) unless the complainant 

makes a prima facie showing that a 

protected activity was a contributing 

factor in the adverse action described in 

the complaint. Notwithstanding a 

finding that the complainant has made 

the required prima facie showing, AIR21 

states that no investigation will be 

conducted if the employer demonstrates 

by clear and convincing evidence that it 

would have taken the same adverse 

action in the absence of the protected 

conduct. Under AIR21, a violation may 

be found only if the complainant 

demonstrates that protected activity was 

a contributing factor in the adverse 

action described in the complaint. And 

relief is unavailable 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. See Vieques Air 

Link, Inc. v. Dep’t of Labor, 437 F.3d 

102, 108–09 (1st Cir. 2006) (per curiam) 

(burdens of proof under AIR21). 

Written Notification of Complaints and 

Findings 

Prior to the 9/11 Commission Act, 

STAA’s whistleblower provision 

required the Secretary of Labor 

(Secretary) to notify persons when 

complaints were filed against them. The 

statute has now been amended at 

paragraph (b)(1) to clarify that this 

notice must be in writing. Similarly, the 

9/11 Commission Act amended 

paragraph (b)(2)(A) of 49 U.S.C. 31105 

to clarify that the Secretary’s findings 

must be in writing. 

Expansion of Remedies 

Paragraph (b)(3)(A) of 49 U.S.C. 31105 

previously compelled the Secretary, 

upon finding a violation of STAA’s 

whistleblower provision, to order the 

employer to take affirmative abatement 

action, reinstate the complainant to his 

or her former position with the same 

pay and terms and privileges of 

employment, and pay compensatory 

damages, including backpay. The 9/11 

Commission Act amended paragraph 


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(b)(3)(A)(iii) to reflect existing law on 

damages in STAA whistleblower cases 

and expressly provide for the award of 

interest on backpay as well as 

compensation for any special damages 

sustained as a result of the unlawful 

discrimination, including litigation 

costs, expert witness fees, and 

reasonable attorney fees. The 2007 

amendments also added a new 

provision to 49 U.S.C. 31105, paragraph 

(b)(3)(C), authorizing punitive damage 

awards of up to $250,000. 

De Novo Review 

The August 2007 amendments added 

paragraph (c) to 49 U.S.C. 31105. That 

paragraph provides for de novo review 

of a STAA whistleblower claim by a 

United States district court in the event 

that the Secretary has not issued a final 

decision within 210 days after the filing 

of a complaint and the delay is not due 

to the complainant’s bad faith. The 

provision provides that the court will 

have jurisdiction over the action 

without regard to the amount in 

controversy and that the case will be 

tried before a jury at the request of 

either party. 

Preemption and Employee Rights 

The 9/11 Commission Act added a 

new provision to 49 U.S.C. 31105 at 

paragraph (f) clarifying that nothing in 

the statute preempts or diminishes any 

other safeguards against discrimination 

provided by Federal or State law. The 

2007 amendments to STAA also added 

a provision at paragraph (g) in 49 U.S.C. 

31105 stating that nothing in STAA 

shall be deemed to diminish the rights, 

privileges, or remedies of any employee 

under any Federal or State law or under 

any collective bargaining agreement. 

New paragraph (g) further states that 

rights and remedies under 49 U.S.C. 

31105 ‘‘may not be waived by any 

agreement, policy, form, or condition of 

employment.’’ 

Miscellaneous Provisions 

The 9/11 Commission Act added a 

new provision to 49 U.S.C. 31105 at 

paragraph (h) regarding the 

circumstances in which the Secretary of 

Transportation and the Secretary of 

Homeland Security may disclose the 

names of employees who have provided 

information about certain alleged 

violations. In addition, the amendments 

added a new paragraph (i) to 49 U.S.C. 

31105, which provides that the 

Secretary of Homeland Security will 

establish a process by which any person 

may report motor carrier vehicle 

security problems, deficiencies or 

vulnerabilities. Neither of these 

amendments significantly impacts 

OSHA’s handling of whistleblower 

complaints under STAA. 

Definition of ‘‘Employee’’ 

Definitions applicable to STAA are 

found at 49 U.S.C 31101. That section 

defines ‘‘employee’’ as a driver of a 

commercial motor vehicle (including an 

independent contractor when 

personally operating a commercial 

motor vehicle), a mechanic, a freight 

handler, or an individual not an 

employer, who (i) directly affects 

commercial motor vehicle safety in the 

course of employment by a commercial 

motor carrier; and (ii) is not an 

employee of the Federal, State or local 

government acting in the course of 

employment. The 9/11 Commission Act 

incorporated this definition into the 

whistleblower section of STAA, 49 

U.S.C. 31105, at paragraph (j), and 

expanded it to include employees who 

directly affect commercial motor vehicle 

security in the course of employment by 

a commercial motor carrier. 

III. Summary and Discussion of 

Regulatory Provisions 

The regulatory provisions in this part 

are being revised to reflect the 9/11 

Commission Act’s amendments to 

STAA, to clarify and improve the 

procedures for handling STAA 

whistleblower cases, and, to the extent 

possible within the bounds of 

applicable statutory language, to be 

consistent with regulations 

implementing the whistleblower 

provisions of the following statutes, 

among others, that are also administered 

and enforced by OSHA: the Safe 

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

the Federal Water Pollution Control Act, 

33 U.S.C. 1367; the Toxic Substances 

Control Act, 15 U.S.C. 2622; the Solid 

Waste Disposal Act, 42 U.S.C. 6971; the 

Clean Air Act, 42 U.S.C. 7622; the ERA; 

and the Comprehensive Environmental 

Response, Compensation and Liability 

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

regulations for these statutory 

provisions jointly codified at 29 CFR 

part 24; AIR21, codified at 29 CFR part 

1979; SOX, codified at 29 CFR part 

1980; and the Pipeline Safety 

Improvement Act of 2002, 49 U.S.C. 

60129, codified at 29 CFR part 1981. 

The section numbers of these STAA 

regulations have been changed to 

correspond as closely as possible with 

the numbering in the regulations 

implementing other whistleblower 

statutes administered by OSHA. 

These regulatory amendments 

incorporate two nonsubstantive changes 

in terminology. First, cases brought 

under the whistleblower provisions of 

STAA will now be referred to as actions 

alleging ‘‘retaliation’’ rather than 

‘‘discrimination.’’ This change in 

terminology, which has already been 

made in the regulations implementing 

the ERA and the other whistleblower 

statutes covered by 29 CFR part 24, is 

not intended to have substantive effect. 

It simply reflects the fact 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). 

Second, these regulations previously 

referred to persons named in STAA 

whistleblower complaints as ‘‘named 

persons,’’ but in the revised regulations 

they will be referred to as 

‘‘respondents.’’ Again, this change is not 

intended to have any substantive impact 

on the handling of STAA whistleblower 

cases. This revision simply reflects a 

preference for more conventional 

terminology. 

Section 1978.100 Purpose and Scope 

This section describes the purpose of 

the regulations implementing STAA’s 

whistleblower provision and provides 

an overview of the procedures 

contained in the regulations. Paragraph 

(a) of this section is being revised to 

include an updated citation reference to 

the correct section of the United States 

Code where STAA’s whistleblower 

provision is located and to reflect the 

recent statutory amendments extending 

coverage to activities pertaining to 

commercial motor vehicle security 

matters. Minor editorial edits are being 

made to paragraph (b) of this section. 

Section 1978.101 Definitions 

This section includes general 

definitions applicable to STAA’s 

whistleblower provision. The 

definitions are being reorganized in 

alphabetical order and minor edits are 

being made to cleanup or clarify 

existing regulatory text. 

A new definition of ‘‘business days’’ is 

being added at paragraph (c) to clarify 

that that term means days other than 

Saturdays, Sundays, and Federal 

holidays. This definition is consistent 

with 29 CFR 1903.22(c), an OSHA 

regulation interpreting the analogous 

term ‘‘working days’’ in section 10 of the 

Occupational Safety and Health Act 

(OSH Act), 29 U.S.C. 659, in the same 

way. 

The regulations previously defined 

‘‘commercial motor carrier’’ as a person 

who satisfied the definitions of ‘‘motor 

carrier’’ and ‘‘motor private carrier’’ in 49 


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Federal Register / Vol. 75, No. 168 / Tuesday, August 31, 2010 / Rules and Regulations 53547 

U.S.C. 10102(13) and 10102(16). Those 

statutory references are out of date and 

are being replaced with: ‘‘Commercial 

motor carrier means any person engaged 

in a business affecting commerce 

between States or between a State and 

a place outside thereof who owns or 

leases a commercial motor vehicle in 

connection with that business, or 

assigns employees to operate such a 

vehicle.’’ The new definition of 

‘‘commercial motor carrier’’ reflects the 

Secretary’s longstanding practice of 

giving that phrase expansive meaning, 

i.e., including within its reach all motor 

carriers in or affecting commerce. See, 

e.g., Arnold v. Associated Sand and 

Gravel Co., Case No. 92–STA–19, 1992 

WL 752791, at *3 (Office Admin. 

Appeals, Aug. 31, 1992) (appropriate to 

give the term ‘‘commercial’’ its legal 

meaning; ‘‘legislative history of the 

STAA * * * additionally militates in 

favor of construing the term expansively 

to describe motor carriers ‘in’ or 

‘affecting’ commerce’’). In addition, the 

revised definition of ‘‘commercial motor 

carrier’’ is more consistent with the 

statutory definition of ‘‘employer.’’ See 

49 U.S.C. 31101(3). 

The statutory definition of 

‘‘commercial motor vehicle’’ is being 

added to this section at paragraph (e), 

and the definition of ‘‘employee’’, now at 

paragraph (h), is being revised to reflect 

the statutory amendment expanding 

coverage to individuals whose work 

directly affects commercial motor 

vehicle security. In addition, the 

statutory definitions of ‘‘employer’’ and 

‘‘State’’ are being added to this section at 

paragraphs (i) and (n) respectively, and 

a new paragraph is being added at the 

end of this section to clarify that any 

future statutory amendments will 

govern in lieu of the definitions 

contained in section 1978.101. A new 

definition of ‘‘complaint’’ is being added 

to this section at paragraph (g) to clarify 

the scope of activities protected by 

STAA’s whistleblower provisions. See 

discussion of 1978.102 (Obligations and 

prohibited acts) below. 

Section 1978.102 Obligations and 

Prohibited Acts 

This new section describes the 

activities that are protected under STAA 

and the conduct that is prohibited in 

response to any protected activities. 

Insertion of this new section resulted in 

the renumbering of many subsequent 

sections. 

Among other prohibited acts, it is 

unlawful under STAA for an employer 

to retaliate against an employee because 

the employee, or someone acting 

pursuant to the employee’s request, has 

filed a complaint related to a violation 

of a commercial motor vehicle safety or 

security regulation, standard or order. 

49 U.S.C. 31105(a)(1)(A)(i). STAA’s 

whistleblower provision also protects 

employees who the employer perceives 

as having filed or being about to file 

such a complaint. 49 U.S.C. 

31105(a)(1)(A)(ii). The Secretary has 

long taken the position that these 

provisions of STAA, as well as similarly 

worded provisions in other 

whistleblower statutes enforced by 

OSHA, cover both written and oral 

complaints to the employer or a 

government agency. See, e.g., Harrison 

v. Roadway Express, Inc., No. 00–048, 

2002 WL 31932546, at *4 (Admin. 

Review Bd. Dec. 31, 2002) 

(‘‘[C]omplaints about violations of 

commercial motor vehicle regulations 

may be oral, informal or unofficial.’’), 

aff’d on other grounds, 390 F.3d 752 (2d 

Cir. 2004); see also, e.g., Calhoun v. 

Dep’t of Labor, 576 F.3d 201, 212 (4th 

Cir. 2009) (citing Yellow Freight Sys., 

Inc. v. Reich, 8 F.3d 980, 986 (4th Cir. 

1993) for the proposition that ‘‘written 

or oral’’ complaints can be protected 

under STAA); Power City Elec., Inc., No. 

C–77–197, 1979 WL 23049, at *2 (E. D. 

Wash. Oct. 23, 1979) (noting that the 

term ‘‘filed’’, as used in Section 11(c) of 

the OSH Act, ‘‘is not limited to a written 

form of complaint.’’). It is particularly 

important for STAA to cover oral as 

well as written complaints because in 

many cases truck drivers are out on the 

road and the only way they can 

communicate immediate concerns about 

violations of safety and security 

regulations is via CB radio or phone. For 

these reasons, sections 1978.102(b)(1) 

and 1978.102(e)(1) are intended to cover 

the filing of written and oral complaints 

with employers or government agencies, 

and a definition of the term ‘‘complaint,’’ 

reflecting this intent, has been added to 

section 1978.101. 

Section 1978.103 Filing of Retaliation 

Complaints 

This section (formerly section 

1978.102) is being revised to make it 

more consistent with the regulatory 

procedures for other OSHAadministered whistleblower laws. 

Complaints filed under STAA’s 

whistleblower provision need not be in 

any particular form. Complainants have 

always been permitted to file STAA 

whistleblower complaints either orally 

or in writing. In light of this 

longstanding practice, OSHA will 

continue to accept STAA whistleblower 

complaints in either oral or written 

form. Allowing STAA whistleblower 

complaints to be filed orally is also 

consistent with OSHA’s practice in 

whistleblower cases under Section 11(c) 

of the OSH Act, 29 U.S.C. 660(c); 

Section 211 of the Asbestos Hazard 

Emergency Response Act (AHERA), 15 

U.S.C. 2651; and Section 7 of the 

International Safe Container Act (ISCA), 

46 U.S.C. 80507. And the final 

regulations implementing the ERA and 

the other whistleblower statutes covered 

by 29 CFR part 24 permit the filing of 

oral as well as written complaints. 

Language has been added to paragraph 

(b) to clarify that when a complaint is 

made orally, OSHA will reduce the 

complaint to writing. In addition, 

paragraph (b) is being updated to 

provide that if an employee is not able 

to file a complaint in English, OSHA 

will accept the complaint in any 

language. 

Language has been added to 

paragraph (d) to clarify the date on 

which a complaint will be considered 

‘‘filed,’’ i.e., the date of postmark, 

facsimile transmittal, e-mail 

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

commercial carrier, or in-person filing at 

an OSHA office. 

Provisions in former paragraph (d) 

dealing with tolling of the 180-day 

period for the filing of STAA 

whistleblower complaints have been 

deleted for consistency with other 

OSHA whistleblower regulations, which 

do not contain this language. This 

revision is not intended to change the 

way OSHA handles untimely 

complaints under any whistleblower 

laws. A new sentence in the regulatory 

text clarifies that filing deadlines may 

still be tolled based on principles 

developed in applicable case law. See, 

e.g., Donovan v. Hahner, Foreman & 

Harness, Inc., 736 F.2d 1421, 1423–29 

(10th Cir. 1984). 

Finally, paragraph (e), ‘‘Relationship 

to Section 11(c) complaints,’’ has been 

revised to conform to similar provisions 

implementing other OSHA 

whistleblower programs and to more 

clearly describe the relationship 

between Section 11(c) complaints and 

STAA whistleblower complaints. 

Section 11(c) of the OSH Act generally 

prohibits employers from retaliating 

against employees for filing safety or 

health complaints or otherwise 

initiating or participating in proceedings 

under the OSH Act. In some 

circumstances an employee covered by 

STAA may engage in activities that are 

protected under both STAA and Section 

11(c) of the OSH Act. For example, a 

freight handler loading cargo onto a 

commercial motor vehicle may 

complain about both the overloading of 

that vehicle (a safety complaint 

protected by STAA) and also about an 

unsafe forklift (a safety complaint 


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covered by the OSH Act). In practice, 

OSHA would investigate whether either 

or both of these protected activities 

caused the firing. Paragraph (e) now 

clarifies that STAA whistleblower 

complaints that also allege facts 

constituting an 11(c) violation will be 

deemed to have been filed under both 

statutes. Similarly, Section 11(c) 

complaints that allege facts constituting 

a violation of STAA’s whistleblower 

provision will also be deemed to have 

been filed under both laws. In these 

cases, normal procedures and timeliness 

requirements under the respective 

statutes and regulations will be 

followed. 

Section 1978.104 Investigation 

This section (formerly section 

1978.103) has been revised to more 

closely conform to the regulations 

implementing other whistleblower 

provisions administered by OSHA. 

Former paragraph (f) in section 

1978.102, which deals with the notice 

sent to employers when complaints are 

filed against them, is being moved to 

paragraph (a) in section 1978.104, where 

it more appropriately appears under the 

‘‘Investigation’’ heading. In addition, 

minor revisions are being made to that 

paragraph to be more consistent with 

similar provisions in other OSHA 

whistleblower regulations. Of particular 

note, new language is being added 

requiring OSHA to send the Federal 

Motor Carrier Safety Administration 

(FMCSA) a copy of the notice that goes 

to the employer. This has been standard 

practice in any event. 

Former section 1978.103(a), which 

simply stated that OSHA would 

investigate and gather data as it deemed 

appropriate, is being deleted as 

unnecessary. Paragraph (b) is being 

revised to conform to other OSHA 

whistleblower regulations. Language 

describing the persons who can be 

present and the issues that can be 

addressed at OSHA’s meetings with 

respondents is being deleted, but this is 

not intended to change the manner in 

which OSHA conducts these meetings. 

A new paragraph (c) specifies that 

throughout the investigation the agency 

will provide to the complainant (or the 

complainant’s legal counsel if the 

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 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. 

A new paragraph (d) addresses 

confidentiality in investigations. In 

addition, a new paragraph is being 

added to this section at paragraph (e), 

which incorporates the AIR21 burdens 

of proof that were carried over to 

STAA’s whistleblower provision by the 

9/11 Commission Act. This paragraph 

generally conforms to similar provisions 

in the regulations implementing the 

AIR21 and ERA whistleblower laws. All 

of these statutes now require that a 

complainant make an initial prima facie 

showing that 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. 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. 

Complainant’s burden may be satisfied, 

for example, if he or she shows that the 

adverse action took place shortly after 

protected activity, giving rise to the 

inference that it was a contributing 

factor in the adverse action. Language 

from some of OSHA’s other 

whistleblower regulations, including 

those implementing AIR21 and ERA, 

setting forth specific elements of the 

complainant’s prima facie case has been 

carried over into these regulations, 

although it has been modified slightly to 

reflect the new provisions in STAA 

specifically protecting employees who 

are ‘‘perceived’’ as having engaged in 

certain conduct. See Reich v. Hoy Shoe 

Co., 32 F.3d 361, 368 (8th Cir. 1994) 

(‘‘Construing § 11(c), the OSH Act’s antiretaliation provision, to protect 

employees from adverse employment 

actions because they are suspected of 

having engaged in protected activity is 

consistent with * * * the specific 

purposes of the anti-retaliation 

provisions.’’). 

If the complainant does not make the 

required 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 

burden-shifting framework of the ERA, 

which is the same framework now 

found in the AIR21 law and STAA, 

served a ‘‘gatekeeping function’’ that 

‘‘stemm[ed] 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, OSHA 

must dismiss a complaint under STAA 

and not investigate (or cease 

investigating) if either: (1) The 

complainant fails to meet the prima 

facie showing that protected activity or, 

where covered by STAA, the perception 

of 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 or the 

perception thereof. 

Former section 1978.103(c) is being 

moved to paragraph (f) of this section. 

Minor revisions are being made to this 

paragraph to conform to similar 

paragraphs in the regulations 

implementing the AIR21 and SOX 

whistleblower provisions. This includes 

allowing ten business days (rather than 

five days) for the respondent to present 

evidence in support of its position 

against an order of preliminary 

reinstatement. 

Section 1978.105 Issuance of Findings 

and Preliminary Orders 

Former paragraph (a) in section 

1978.104, now at paragraph (a) in this 

section, is being updated to reflect the 

recent amendments to STAA expanding 

available remedies. If the Assistant 

Secretary concludes that there is 

reasonable cause to believe that a 

violation has occurred, he or she will 

order appropriate relief, including 

preliminary reinstatement. In 

appropriate circumstances, in lieu of 

preliminary reinstatement, OSHA may 

order that the complainant receive the 

same pay and benefits that he or she 

received prior to his or her termination, 

but not actually return to work. Such 

‘‘economic reinstatement’’ 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, at *1 

(June 26, 2001). Congress intended that 

complainants be preliminarily 

reinstated to their positions if OSHA 

finds reasonable cause that they were 

discharged in violation of STAA’s 

whistleblower provision. When a 

violation is found, the norm is for 

OSHA to order immediate, preliminary 

reinstatement. An employer does not 

have a statutory right to choose 


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economic reinstatement. Rather, 

economic reinstatement is designed to 

accommodate situations in which 

evidence establishes to OSHA’s 

satisfaction that reinstatement is 

inadvisable for some reason, 

notwithstanding the employer’s 

retaliatory discharge of the complainant. 

In such situations, actual reinstatement 

might be delayed until after the 

administrative adjudication is 

completed as long as the complainant 

continues to receive his or her pay and 

benefits and is not otherwise 

disadvantaged by a delay in 

reinstatement. There is no statutory 

basis for allowing the employer to 

recover the costs of economically 

reinstating a complainant should the 

employer ultimately prevail in the 

whistleblower litigation. 

A new provision is being added at 

paragraph (a)(2) of this section requiring 

the Assistant Secretary to notify the 

parties if it finds that a violation has not 

occurred. Former section 1978.104(c), 

which provided for the suspension of 

11(c) complaints pending the outcome 

of STAA proceedings, is being deleted. 

As described above, section 1978.103(e) 

now adequately describes the 

relationship between STAA and 11(c) 

complaints. 

Paragraph (b) is being revised to 

clarify that OSHA need not send the 

original complaint to the Chief 

Administrative Law Judge when it 

issues its findings and preliminary 

order; a copy of the complaint will 

suffice. Former section 1978.105(b)(1) is 

being moved to section 1978.105(c). 

This paragraph states that the Assistant 

Secretary’s preliminary order will be 

effective 30 days after receipt, or on the 

compliance date set forth in the 

preliminary order, whichever is later, 

unless an objection is filed. It also 

clarifies that any preliminary order 

requiring reinstatement will be effective 

immediately. This paragraph mirrors 

existing provisions in other OSHA 

whistleblower regulations. 

Subpart B—Litigation 

Section 1978.106 Objections to the 

Findings and the Preliminary Order and 

Request for a Hearing 

Minor revisions are being made to 

paragraph (a), formerly section 

1978.105(a), to conform to other OSHA 

whistleblower regulations. The new 

paragraph now clarifies that with 

respect to objections to the findings and 

preliminary order, the date of the 

postmark, fax, or e-mail communication 

is considered the date of the filing; if the 

objection is filed in person, by handdelivery or other means, the objection is 

filed upon receipt. The filing of 

objections is also considered a request 

for a hearing before an ALJ. The 

amended language also clarifies that in 

addition to filing objections with the 

Chief Administrative Law Judge, the 

parties must serve a copy of their 

objections on the other parties of record, 

the OSHA official who issued the 

findings and order, the Assistant 

Secretary, and the Associate Solicitor 

for Occupational Safety and Health. A 

failure to serve copies of the objections 

on the appropriate parties 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., ARB No. 04–101, ALJ No. 

2004–ERA–9, 2005 WL 2865915, at *7 

(Admin. Review Bd. Oct. 31, 2005). 

The title to former section 1978.105(b) 

is being deleted because it is 

unnecessary. In addition, as previously 

mentioned, former paragraph (b)(1) in 

section 1978.105 is being moved to new 

paragraph (c) in section 1978.105. 

Finally, some minor, nonsubstantive 

revisions are being made to former 

1978.105(b)(2), now at 1978.106(b), and 

additional language is being added to 

that paragraph to clarify that all 

provisions of the ALJ’s order, with the 

exception of any order for preliminary 

reinstatement, will be stayed upon the 

filing of a timely objection. The 

respondent may file a motion for a stay 

of a preliminary reinstatement order. 

Section 1978.107 Hearings 

Former section 1978.106, which has 

become section 1978.107, was titled 

‘‘Scope of rules; applicability of other 

rules; notice of hearing.’’ The title is 

being changed to ‘‘Hearings,’’ the title 

assigned to similar sections in other 

OSHA whistleblower regulations. 

Minor revisions are being made to 

paragraph (a), which adopts the rules of 

practice and procedure and the rules of 

evidence for administrative hearings 

before the Office of Administrative Law 

Judges, codified at 29 CFR part 18. 

Changes are also being made to 

paragraph (b) to conform to other OSHA 

whistleblower regulations. The 

requirements for the ALJ to set a hearing 

date within seven days, and to 

commence a hearing within 30 days, 

have been deleted, and new language is 

being added to clarify that hearings will 

commence expeditiously and be 

conducted de novo and on the record. 

The new language is not intended to 

change current case-handling practices. 

Paragraph (c), which deals with 

situations in which both the 

complainant and the respondent object 

to the findings and/or preliminary 

order, is being revised, consistent with 

the changes made to paragraph (b), to 

remove language stating that hearings 

shall commence within 30 days of the 

last objection received. 

Former paragraph (d), dealing with 

the ALJ’s discretion to order the filing 

of prehearing statements, is being 

deleted as unnecessary. 

Section 1978.108 Role of Federal 

Agencies 

Former section 1978.107, titled 

‘‘Parties,’’ is now at section 1978.108 

with the new title ‘‘Role of Federal 

agencies.’’ This conforms to the 

terminology used in OSHA’s other 

whistleblower regulations. 

Former paragraphs (a), (b), and (c) in 

section 1978.107 are now combined in 

section 1978.108(a)(1). The changes 

made to these paragraphs are not 

intended to be substantive, i.e., there is 

no intent to change the rights to party 

status currently afforded the Assistant 

Secretary, complainants, or 

respondents. The Assistant Secretary, 

represented by an attorney from the 

appropriate Regional Solicitor’s Office, 

will still generally assume the role of 

prosecuting party in STAA 

whistleblower cases in which the 

respondent objects to the findings or 

preliminary order. This continues 

longstanding practice in STAA cases 

and the Secretary believes that the 

public interest generally requires the 

Assistant Secretary’s continued 

participation in such matters. It has 

been the Secretary’s experience that 

relatively few private attorneys have 

developed adequate expertise in 

representing STAA whistleblower 

complainants and that complainants in 

the motor carrier industry have been 

more likely to proceed pro se than 

employees covered by OSHA’s other 

whistleblower programs. Where the 

complainant, but not the respondent, 

objects to the findings or order, the 

regulations retain the Assistant 

Secretary’s discretion to participate as a 

party or amicus curiae at any stage of 

the proceedings, including the right to 

petition for review of an ALJ decision. 

A new paragraph (a)(2) clarifies that if 

the Assistant Secretary assumes the role 

of prosecuting party in accordance with 

paragraph (a)(1), he or she may, upon 

written notice to the other parties, 

withdraw as the prosecuting party in the 

exercise of prosecutorial discretion. If 

the Assistant Secretary withdraws, the 

complainant will become the 

prosecuting party and the ALJ will issue 

appropriate orders to regulate the course 

of future proceedings. Section 

1978.111(d)(3) (discussed below) retains 

language clarifying that the Assistant 

Secretary may decline the role of 


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prosecuting party if the complainant 

rejects a reasonable settlement offer. 

New paragraphs (a)(3) and (b) are 

being added to this section. Paragraph 

(a)(3) simply provides that in all cases 

in which the Assistant Secretary is 

participating in the proceeding, copies 

of documents must be sent to the 

Assistant Secretary and the Associate 

Solicitor for Occupational Safety and 

Health, as well as to all other parties. In 

cases in which the Assistant Secretary is 

not a party, copies of documents must 

be sent to the Assistant Secretary and all 

parties, but not to the Associate 

Solicitor. 

Paragraph (b) states that the FMCSA 

may participate in the proceedings as 

amicus curiae at its own discretion. This 

paragraph also permits the FMCSA to 

request copies of all documents, 

regardless of whether it is participating 

in the case. This provision mirrors 

similar language in the regulations 

implementing other OSHAadministered whistleblower laws. 

The provisions formerly at section 

1978.108, which described the manner 

in which STAA whistleblower cases 

would be captioned or titled, are being 

deleted. It is unnecessary to continue to 

include that material in these 

regulations. 

Section 1978.109 Decision and Orders 

of the Administrative Law Judge 

This section sets forth the content of 

the decision and order of the ALJ, and 

includes the standards for finding a 

violation under STAA’s whistleblower 

provision. The title of this section is 

being revised to conform to the title 

assigned to similar provisions in other 

OSHA whistleblower regulations. 

Previously, section 1978.109 addressed 

decisions of both the ALJs and the ARB. 

In conformance with other OSHA 

whistleblower regulations, these two 

topics are now being separated into 

individual sections. Section 1978.109 

now covers only ALJ decisions and 

section 1978.110 addresses ARB 

decisions. 

Former paragraph (a) is being divided 

among multiple paragraphs in this 

section and otherwise revised to reflect 

the parties’ new burdens of proof and to 

conform more closely to the regulations 

implementing other OSHAadministered whistleblower laws. In 

litigation, the statutory burdens of proof 

require a complainant to prove that the 

alleged protected activity or, when 

covered by STAA, the perception of 

protected activity, was a ‘‘contributing 

factor’’ in the alleged adverse action. If 

the complainant satisfies his or her 

burden, 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 or the perception 

thereof. 

A contributing factor is ‘‘any factor 

which, alone or in connection 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)). 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 a prohibited 

one. See Klopfenstein v. PCC Flow 

Techs. Holdings, Inc., ARB No. 04–149, 

ALJ No. 04–SOX–11, 2006 WL 3246904, 

at *13 (Admin. Review Bd. 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 AIR21 burdens of proof, now 

incorporated in STAA, do not address 

the evidentiary standard that applies to 

a complainant’s proof that protected 

activity was a contributing factor in an 

adverse action. AIR 21 simply provides 

that the Secretary may find a violation 

only ‘‘if the complainant demonstrates’’ 

that protected activity was a 

contributing factor in the alleged 

adverse action. 49 U.S.C. 

42121(b)(2)(B)(iii). It is the Secretary’s 

position that the complainant must 

prove by a ‘‘preponderance of the 

evidence’’ that his or her protected 

activity or, when covered by STAA, the 

perception of protected activity, 

contributed to the adverse action at 

issue; otherwise, the burden never shifts 

to the employer to establish its defense 

by clear and convincing evidence. See, 

e.g., Allen v. Admin. Review Bd., 514 

F.3d 468, 475 n.1 (5th Cir. 2008) (‘‘The 

term ‘demonstrates’ means to prove by 

a preponderance of the evidence.’’). 

Once the complainant establishes that 

protected activity was a contributing 

factor in an adverse action, 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. The clear and 

convincing evidence standard is a 

higher burden of proof than a 

preponderance of the evidence 

standard. 

The requirement that the ALJ issue a 

decision within 30 days after the close 

of the record, and the related provision 

requiring the ALJ to close the record 

within 30 days after the filing of the 

objection, have 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. 

New section 1978.109(c), which is 

similar to provisions in other OSHA 

whistleblower regulations, provides that 

the Assistant Secretary’s determinations 

about when to proceed with an 

investigation and when to dismiss a 

complaint without completing an 

investigation 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. If there 

otherwise is jurisdiction, the ALJ will 

hear the case on the merits or dispose 

of the matter without a hearing if 

warranted by the facts and 

circumstances. 

1978.109(d)(1) now describes the 

relief the ALJ can award upon finding 

a violation and reflects the recent 

statutory amendments. (See earlier 

discussion of section 1978.105(a).) In 

addition, new paragraph (d)(2) in this 

section requires the ALJ to issue an 

order denying the complaint if he or she 

determines that the respondent has not 

violated STAA. 

Previously under these regulations, 

ALJs’ decisions and orders were subject 

to automatic review by the ARB. These 

procedures were unique to STAA 

whistleblower cases and resulted in a 

heavy STAA caseload for the ARB. This 

has made it more difficult for the ARB 

to promptly resolve the cases on its 

docket and has delayed the resolution of 

STAA cases in which the parties are 

mutually satisfied with the ALJ’s 

decision and order. Overall, requiring 

mandatory ARB review of every STAA 

whistleblower case is an inefficient use 

of limited resources. In conformance 

with the procedures used under the 

other whistleblower provisions 

administered by OSHA and adjudicated 

by ALJs, these regulations are being 

revised to provide for ARB review of an 

ALJ’s decision only if one or more of the 

parties to the case files a petition 

requesting such review. These new 

procedures for review of ALJ decisions 

will apply to all ALJ decisions issued on 

or after the effective date of these 

regulations. 

Former section 1978.109(b) is being 

deleted, although much of its content is 

being moved to paragraph (e). New 

section 1978.109(e), which borrows 


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language from similar provisions in 

other OSHA whistleblower regulations, 

gives parties ten business days after the 

date of the ALJ’s decision to file a 

petition for review with the ARB. If no 

petition for review is filed within that 

timeframe, the ALJ’s decision is final 

and all portions of the order become 

effective. New paragraph (e), in addition 

to giving parties ten business days to 

seek review before the ARB, clarifies 

that any orders relating to reinstatement 

will be effective immediately upon 

receipt of the decision by the 

respondent. 

All of the provisions in former section 

1978.109, which codified the automatic 

review process, primarily former 

paragraphs (c)(1) and (c)(2), are being 

deleted. The content of former 

paragraph (c)(3), regarding the standard 

for ARB review of ALJ decisions, is 

being moved to new section 

1978.110(b). The content of former 

paragraph (c)(4), which required the 

ARB to issue an order denying the 

complaint if it determined that the 

respondent had not violated the law, is 

now at section 1978.110(e). Former 

paragraph (c)(5), which required service 

of the ARB decision on all parties, has 

become a part of new section 

1978.110(c). 

Section 1978.110 Decision and Orders 

of the Administrative Review Board 

This is a new section, borrowed 

largely from existing regulations 

implementing other OSHA 

whistleblower laws. In accordance with 

the decision to discontinue automatic 

ARB review of ALJ decisions, paragraph 

(a) of this section gives the parties ten 

business days from the date of the ALJ’s 

decision to file a petition for review 

with the ARB. The decision of the ALJ 

becomes the final decision of the 

Secretary, and is not subject to judicial 

review, if no timely petition for review 

is filed. Paragraph (a) also clarifies that 

the date of the postmark, fax, e-mail 

communication, or hand-delivery will 

be deemed the date of filing; if the 

petition is filed in person, by handdelivery or other means, the petition is 

considered filed upon receipt. 

Consistent with the procedures for 

ARB appeals under other OSHAadministered whistleblower laws, 

paragraph (b) provides that the ARB has 

discretion to accept or reject review in 

STAA whistleblower cases. Congress 

intended these whistleblower actions to 

be expedited, as reflected by the recent 

amendment to STAA providing for a 

hearing de novo in district court if the 

Secretary has not issued a final decision 

within 210 days of the filing of the 

complaint. Making review of STAA 

whistleblower cases discretionary may 

assist in furthering that goal. The parties 

should identify in their petitions for 

review the conclusions and orders to 

which they object, or the objections will 

ordinarily be deemed waived. The ARB 

has 30 days to decide whether to grant 

a petition for review. If the ARB does 

not grant the petition, the decision of 

the ALJ becomes the final decision of 

the Secretary. This section further 

provides that when the ARB accepts a 

petition for review, it will review the 

ALJ’s factual determinations under the 

substantial evidence standard, a 

standard previously set forth in section 

1978.109(c)(3). If a timely petition for 

review is filed with the ARB, relief 

ordered by the ALJ is inoperative while 

the matter is pending before the ARB, 

except that orders of reinstatement will 

be effective pending review. Paragraph 

(b) does provide that in exceptional 

circumstances the ARB may grant a 

motion to stay an ALJ’s order of 

reinstatement. The Secretary believes 

that a stay of a reinstatement order is 

only appropriate when 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 favoring a stay. 

Paragraph (c) of section 1978.110 

incorporates the statutory requirement 

that the Secretary’s final decision be 

issued within 120 days of the 

conclusion of the hearing. The hearing 

is deemed concluded ten business days 

after the date of the ALJ’s decision 

unless a motion for reconsideration has 

been filed with the ALJ, in which case 

the hearing is concluded on the date the 

motion for reconsideration is denied or 

ten business days after a new ALJ 

decision is issued. (Previously, section 

1978.109(a) provided that the issuance 

of the ALJ’s decision would be deemed 

the conclusion of the hearing. The new 

provision is more consistent with 

procedures used under other OSHAadministered whistleblower provisions 

and the new procedures for seeking 

ARB review of ALJ decisions in STAA 

whistleblower cases.) This paragraph 

further provides for the ARB’s decision 

in all cases to be served on all parties, 

the Chief Administrative Law Judge, the 

Assistant Secretary, and the Associate 

Solicitor for Occupational Safety and 

Health. 

Paragraph (d) describes the remedies 

the ARB can award if it concludes that 

the respondent has violated STAA’s 

whistleblower provision. In addition, 

under paragraph (e), if the ARB 

determines that the respondent has not 

violated STAA, it will issue an order 

denying the complaint. Paragraph (f) 

clarifies that the new procedures for 

seeking review before the ARB apply to 

all cases in which ALJ decisions are 

issued on or after the effective date of 

these regulations. 

Subpart C—Miscellaneous Provisions 

Section 1978.111 Withdrawal of STAA 

Complaints, Objections, and Petitions 

for Review; Settlement 

This section provides procedures and 

time periods for the withdrawal of 

complaints, the withdrawal of findings 

and/or preliminary orders by the 

Assistant Secretary, the withdrawal of 

objections to findings and/or 

preliminary orders, and the withdrawal 

of petitions for review of ALJ decisions. 

It also provides for the approval of 

settlements at the investigative and 

adjudicative stages of the case. 

A new sentence is being added to 

paragraph (a) to clarify that complaints 

that are withdrawn pursuant to 

settlement agreements prior to the filing 

of objections must be approved in 

accordance with the settlement approval 

procedures in paragraph (d). In 

addition, paragraph (a) now clarifies 

that the complainant may not withdraw 

his or her complaint after the filing of 

objections to the Assistant Secretary’s 

findings and/or preliminary order. 

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 


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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). 

Paragraph (d)(1) states that a case may 

be settled at the investigative stage if the 

Assistant Secretary, the complainant, 

and the respondent agree. 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. Minor, nonsubstantive 

changes are being made to paragraphs 

(d)(2) and (d)(3). Paragraph (d)(3), which 

addresses the Assistant Secretary’s 

authority to withdraw as the 

prosecuting party if the complainant 

refuses to accept a fair and equitable 

settlement, is being retained in these 

revised regulations. See supra 

(discussion of section 1978.108). 

A new paragraph (e) is being added to 

this section. Borrowing language from 

similar provisions in other OSHA 

whistleblower regulations, this 

paragraph simply clarifies that 

settlements approved by the Assistant 

Secretary, the ALJ, or the ARB will 

constitute the final order of the 

Secretary and may be enforced pursuant 

to 49 U.S.C. 31105(e) and section 

1978.113 (judicial enforcement). 

Section 1978.112 Judicial Review 

This section, formerly section 

1978.110, describes the statutory 

provisions for judicial review of 

decisions of the Secretary and, in cases 

where judicial review is sought, requires 

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. Nonsubstantive revisions 

are being made to paragraphs (a), (b), 

and (c). 

Former section 1978.112, which 

addressed deference to other forums, 

including grievance arbitration 

proceedings under collective bargaining 

agreements, has been deleted to conform 

to other OSHA whistleblower 

regulations, which do not contain 

similar provisions. 

Section 1978.113 Judicial Enforcement 

Nonsubstantive revisions are being 

made to this section, which describes 

the Secretary’s power under STAA’s 

whistleblower provision to obtain 

judicial enforcement of orders, 

including orders approving settlement 

agreements. 

Section 1978.114 District Court 

Jurisdiction of Retaliation Complaints 

Under STAA 

This new section incorporates into the 

regulations the recent amendment to 

STAA allowing a complainant in a 

whistleblower case to bring an action in 

district court for de novo review if there 

has been no final decision of the 

Secretary within 210 days of the filing 

of the complaint and the delay was not 

due to the complainant’s bad faith. 

Section 1978.114 has been drafted to 

reflect the Secretary’s position that it 

would not be 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 210 days after the filing of the 

administrative 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 

court of appeals. The regulations have 

been drafted in accordance with this 

position. 

Paragraph (b) provides that 

complainants must give notice fifteen 

days in advance of their intent to file a 

complaint in district court. This is 

borrowed from some of OSHA’s other 

regulations implementing similar ‘‘kick 

out’’ provisions. In addition, under 

paragraph (b), the complainant must file 

and serve the district court complaint 

on all parties to the proceeding as well 

as OSHA’s Regional Administrator, the 

Assistant Secretary, and the Associate 

Solicitor for Occupational Safety and 

Health. 

Section 1978.115 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 

three days notice to the parties, waive 

any rule or issue such orders as justice 

or the administration of STAA’s 

whistleblower provision requires. 

OSHA has deleted former section 

1978.114, which provided that the time 

requirements imposed on the Secretary 

by these regulations are directory in 

nature and that a failure to meet those 

requirements did not invalidate any 

action by the Assistant Secretary or 

Secretary under STAA. These principles 

are well-established in the case law, see, 

e.g., Roadway Express v. Dole, 929 F.2d 

1060, 1066 (5th Cir. 1991), and this 

provision, which was unique to OSHA’s 

STAA regulations, is unnecessary. The 

Secretary views the deletion of this 

provision as a nonsubstantive 

amendment. No significant change in 

STAA practices or procedures is 

intended. 

IV. Paperwork Reduction Act 

This rule does not contain a reporting 

provision that is subject to review by the 

Office of Management and Budget 

(OMB) 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 interpretative 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 is 

not required. Although this is a 

procedural rule not subject to the notice 

and comment procedures of the APA, 

we are providing persons interested in 

this interim final rule 60 days to submit 

comments. A final rule will be 

published after the agency receives and 

carefully reviews the public’s 

comments. 

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. In addition to this 

authority, 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 agency 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 


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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 agency 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 other whistleblower 

statutes administered by OSHA. 

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 1978 

Administrative practice and 

procedure, Employment, Highway 

safety, Investigations, Motor carriers, 

Motor vehicle safety, Reporting and 

recordkeeping requirements, Safety, 

Transportation, Whistleblowing. 

Signed in Washington, DC August 19, 

2010. 

David Michaels, 

Assistant Secretary of Labor for Occupational 

Safety and Health. 

■ Accordingly, for the reasons set out in 

the preamble part 1978 of title 29 of the 

Code of Federal Regulations is revised 

to read as follows: 

PART 1978—PROCEDURES FOR THE 

HANDLING OF RETALIATION 

COMPLAINTS UNDER THE EMPLOYEE 

PROTECTION PROVISION OF THE 

SURFACE TRANSPORTATION 

ASSISTANCE ACT OF 1982 

Subpart A—Complaints, Investigations, 

Findings and Preliminary Orders 

Sec. 

1978.100 Purpose and scope. 

1978.101 Definitions. 

1978.102 Obligations and prohibited acts. 

1978.103 Filing of retaliation complaints. 

1978.104 Investigation. 

1978.105 Issuance of findings and 

preliminary orders. 

Subpart B—Litigation 

1978.106 Objections to the findings and the 

preliminary order and request for a 

hearing. 

1978.107 Hearings. 

1978.108 Role of Federal agencies. 

1978.109 Decision and orders of the 

administrative law judge. 

1978.110 Decision and orders of the 

Administrative Review Board. 

Subpart C—Miscellaneous Provisions 

1978.111 Withdrawal of STAA complaints, 

objections, and petitions for review; 

settlement. 

1978.112 Judicial review. 

1978.113 Judicial enforcement. 

1978.114 District court jurisdiction of 

retaliation complaints under STAA. 

1978.115 Special circumstances; waiver of 

rules. 

Authority: 49 U.S.C. 31101 and 31105; 

Secretary of Labor’s Order No. 5–2007, 72 FR 

31160 (June 5, 2007); Secretary of Labor’s 

Order 1–2010 (Jan. 15, 2010), 75 FR 3924–01 

(Jan. 25, 2010). 

Subpart A—Complaints, 

Investigations, Findings, and 

Preliminary Orders 

§ 1978.100 Purpose and scope. 

(a) This part implements the 

procedures of the employee protection 

(whistleblower) provision of the Surface 

Transportation Assistance Act of 1982 

(STAA), 49 U.S.C. 31105, as amended, 

which protects employees from 

retaliation because the employee has 

engaged in, or, in some circumstances is 

perceived to have engaged in, protected 

activity pertaining to commercial motor 

vehicle safety, health, or security 

matters. 

(b) This part establishes procedures 

pursuant to the statutory provision set 

forth above for the expeditious handling 

of retaliation complaints filed 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, investigations, issuance of 

findings and preliminary orders, 

objections to findings, litigation before 

administrative law judges (ALJs), posthearing administrative review, 

withdrawals and settlements, and 

judicial review and enforcement. 

§ 1978.101 Definitions. 

(a) Act means the Surface 

Transportation Assistance Act of 1982 

(STAA), as amended. 

(b) 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. 

(c) Business days means days other 

than Saturdays, Sundays, and Federal 

holidays. 

(d) Commercial motor carrier means 

any person engaged in a business 

affecting commerce between States or 

between a State and a place outside 

thereof who owns or leases a 

commercial motor vehicle in connection 

with that business, or assigns employees 

to operate such a vehicle. 

(e) Commercial motor vehicle means a 

self-propelled or towed vehicle used on 

the highways in commerce principally 

to transport passengers or cargo, if the 

vehicle: 

(1) Has a gross vehicle weight rating 

or gross vehicle weight of at least 10,001 

pounds, whichever is greater; 

(2) Is designed to transport more than 

ten passengers including the driver; or 

(3) Is used in transporting material 

found by the Secretary of Transportation 

to be hazardous under 49 U.S.C. 5103 

and transported in a quantity requiring 

placarding under regulations prescribed 

under 49 U.S.C. 5103. 

(f) Complainant means the employee 

who filed a STAA whistleblower 

complaint or on whose behalf a 

complaint was filed. 

(g) Complaint, for purposes of 

§ 1978.102(b)(1) and § 1978.102(e)(1), 

includes both written and oral 

complaints to employers and/or 

government agencies. 

(h) Employee means a driver of a 

commercial motor vehicle (including an 

independent contractor when 

personally operating a commercial 

motor vehicle), a mechanic, a freight 


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handler, or an individual not an 

employer, who: 

(1) Directly affects commercial motor 

vehicle safety or security in the course 

of employment by a commercial motor 

carrier; and 

(2) Is not an employee of the United 

States Government, a State, or a political 

subdivision of a State acting in the 

course of employment. 

(i) Employer means a person engaged 

in a business affecting commerce that 

owns or leases a commercial motor 

vehicle in connection with that 

business, or assigns an employee to 

operate the vehicle in commerce, but 

does not include the Government, a 

State, or a political subdivision of a 

State. 

(j) OSHA means the Occupational 

Safety and Health Administration of the 

United States Department of Labor. 

(k) Person means one or more 

individuals, partnerships, associations, 

corporations, business trusts, legal 

representatives or any other group of 

individuals. 

(l) Respondent means the person 

alleged to have violated 49 U.S.C. 

31105. 

(m) Secretary means the Secretary of 

Labor or persons to whom authority 

under the Act has been delegated. 

(n) State means a State of the United 

States, the District of Columbia, Puerto 

Rico, the Virgin Islands, American 

Samoa, Guam, and the Northern 

Mariana Islands. 

(o) Any future statutory amendments 

that affect the definition of a term or 

terms listed in this section will apply in 

lieu of the definition stated herein. 

§ 1978.102 Obligations and prohibited 

acts. 

(a) No person may discharge or 

otherwise retaliate against any employee 

with respect to the employee’s 

compensation, terms, conditions, or 

privileges of employment because the 

employee engaged in any of the 

activities specified in paragraphs (b) or 

(c) of this section. In addition, no person 

may discharge or otherwise retaliate 

against any employee with respect to 

the employee’s compensation, terms, 

conditions, or privileges of employment 

because a person acting pursuant to the 

employee’s request engaged in any of 

the activities specified in paragraph (b) 

of 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 or a 

person acting pursuant to the 

employee’s request has: 

(1) Filed a complaint or begun a 

proceeding related to a violation of a 

commercial motor vehicle safety or 

security regulation, standard, or order; 

or 

(2) Testified or will testify at any 

proceeding related to a violation of a 

commercial motor vehicle safety or 

security regulation, standard, or order. 

(c) 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: 

(1) Refuses to operate a vehicle 

because: 

(i) The operation violates a regulation, 

standard, or order of the United States 

related to commercial motor vehicle 

safety, health, or security; or 

(ii) He or she has a reasonable 

apprehension of serious injury to 

himself or herself or the public because 

of the vehicle’s hazardous safety or 

security condition; 

(2) Accurately reports hours on duty 

pursuant to Chapter 315 of Title 49 of 

the United States Code; or 

(3) Cooperates with a safety or 

security investigation by the Secretary 

of Transportation, the Secretary of 

Homeland Security, or the National 

Transportation Safety Board; or 

(4) Furnishes information to the 

Secretary of Transportation, the 

Secretary of Homeland Security, the 

National Transportation Safety Board, or 

any Federal, State, or local regulatory or 

law enforcement agency as to the facts 

relating to any accident or incident 

resulting in injury or death to an 

individual or damage to property 

occurring in connection with 

commercial motor vehicle 

transportation. 

(d) No person may discharge or 

otherwise retaliate against any employee 

with respect to the employee’s 

compensation, terms, conditions, or 

privileges of employment because the 

person perceives that the employee has 

engaged in any of the activities specified 

in paragraph (e) of this section. 

(e) 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 employer 

perceives that: 

(1) The employee has filed or is about 

to file a complaint or has begun or is 

about to begin a proceeding related to a 

violation of a commercial motor vehicle 

safety or security regulation, standard or 

order; 

(2) The employee is about to 

cooperate with a safety or security 

investigation by the Secretary of 

Transportation, the Secretary of 

Homeland Security, or the National 

Transportation Safety Board; or 

(3) The employee has furnished or is 

about to furnish information to the 

Secretary of Transportation, the 

Secretary of Homeland Security, the 

National Transportation Safety Board, or 

any Federal, State, or local regulatory or 

law enforcement agency as to the facts 

relating to any accident or incident 

resulting in injury or death to an 

individual or damage to property 

occurring in connection with 

commercial motor vehicle 

transportation. 

(f) For purposes of this section, an 

employee’s apprehension of serious 

injury is reasonable only if a reasonable 

individual in the circumstances then 

confronting the employee would 

conclude that the hazardous safety or 

security condition establishes a real 

danger of accident, injury or serious 

impairment to health. To qualify for 

protection, the employee must have 

sought from the employer, and been 

unable to obtain, correction of the 

hazardous safety or security conditions. 

§ 1978.103 Filing of retaliation complaints. 

(a) Who may file. An employee who 

believes that he or she has been 

retaliated against by an employer in 

violation of STAA 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 an 

employee is unable to file a complaint 

in English, OSHA will accept the 

complaint 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. Within 180 days 

after an alleged violation occurs, an 

employee who believes that he or she 

has been retaliated against in violation 

of STAA may file, or have filed by any 

person on his or her 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. 


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(e) Relationship to Section 11(c) 

complaints. A complaint filed under 

STAA 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 STAA and 

Section 11(c). Similarly, a complaint 

filed under Section 11(c) that alleges 

facts that would also constitute a 

violation of STAA will be deemed to be 

a complaint filed under both STAA and 

Section 11(c). Normal procedures and 

timeliness requirements under the 

respective statutes and regulations will 

be followed. 

§ 1978.104 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 in accordance 

with the Privacy Act of 1974, 5 U.S.C. 

552a, et seq., and other applicable 

confidentiality laws. The Assistant 

Secretary will also notify the respondent 

(or the respondent’s legal counsel if 

respondent is represented by counsel) of 

the respondent’s rights under 

paragraphs (b) and (f) of this section. 

The Assistant Secretary will provide a 

copy of the unredacted complaint to the 

complainant (or complainant’s legal 

counsel, if complainant is represented 

by counsel) and to the Federal Motor 

Carrier Safety Administration. 

(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 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)(1) A complaint of alleged violation 

will be dismissed unless the 

complainant has made a prima facie 

showing that protected activity or, in 

circumstances covered by the Act, a 

perception of 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 or, in circumstances 

covered by the Act, was perceived to 

have engaged in a protected activity; 

(ii) The respondent knew or 

suspected, actually or constructively, 

that the employee engaged in the 

protected activity, or, in circumstances 

covered by the Act, perceived the 

employee to have 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 or, in circumstances covered by 

the Act, the perception of 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 (or, in 

circumstances covered by the Act, 

perceived the employee to have engaged 

in protected activity) and that the 

protected activity (or the perception 

thereof) 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 activity or, 

when applicable, the perception thereof. 

(5) If the respondent fails to make a 

timely response or fails to satisfy the 

burden set forth in the prior paragraph, 

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. 

(f) Prior to the issuance of findings 

and a preliminary order as provided for 

in § 1978.105, if the Assistant Secretary 

has reasonable cause, on the basis of 

information gathered under the 

procedures of this part, to believe that 

the respondent has violated the Act and 

that preliminary reinstatement is 

warranted, the Assistant Secretary will 

again contact the respondent (or the 

respondent’s legal counsel if respondent 

is represented by counsel) 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 respondent will be given 

the opportunity to submit a written 

response, to meet with the investigators, 

to present statements from witnesses in 

support of its position, and to present 

legal and factual arguments. The 

respondent must present this evidence 

within ten business days of the 

Assistant Secretary’s notification 

pursuant to this paragraph, or as soon 

thereafter as the Assistant Secretary and 

the respondent can agree, if the interests 

of justice so require. 

§ 1978.105 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 the filing 

of the complaint, written findings as to 

whether there is reasonable cause to 

believe that the respondent retaliated 

against the complainant in violation of 

STAA. 

(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 


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with a preliminary order providing the 

relief prescribed in 49 U.S.C. 

31105(b)(3). Such order will include, 

where appropriate, a requirement that 

the respondent abate the violation; 

reinstatement of the complainant to his 

or her former position, together with the 

compensation, terms, conditions and 

privileges of the complainant’s 

employment; payment of compensatory 

damages (backpay with interest and 

compensation for any special damages 

sustained as a result of the retaliation, 

including any litigation costs, expert 

witness fees, and reasonable attorney 

fees which the complainant has 

incurred); and payment of punitive 

damages up to $250,000. 

(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 (and each party’s legal counsel if 

the party is represented by counsel). 

The findings and preliminary order will 

inform the parties of the right to object 

to the findings and/or the preliminary 

order and to request a hearing. The 

findings and preliminary order 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 complaint and a copy of the 

findings and/or order. 

(c) The findings and the preliminary 

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 preliminary order, whichever is 

later, unless an objection and/or request 

for a hearing has been timely filed as 

provided at § 1978.106. However, the 

portion of any preliminary order 

requiring reinstatement will be effective 

immediately upon the respondent’s 

receipt of the findings and preliminary 

order, regardless of any objections to the 

findings and/or order. 

Subpart B—Litigation 

§ 1978.106 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 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 § 1978.105. The 

objections and request for a hearing 

must be in writing and state whether the 

objections are to the findings and/or the 

preliminary order. 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 will 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 

for Occupational Safety and Health. 

(b) If a timely objection is filed, all 

provisions of the preliminary order will 

be stayed, except for the portion 

requiring preliminary reinstatement, 

which will not be automatically stayed. 

The portion of the preliminary order 

requiring reinstatement will be effective 

immediately upon the respondent’s 

receipt of the findings and preliminary 

order, regardless of any objections to the 

order. The respondent may file a motion 

with the Office of Administrative Law 

Judges for a stay of the preliminary 

order of reinstatement. If no timely 

objection is filed with respect to either 

the findings or the preliminary order, 

the findings and preliminary order will 

become the final decision of the 

Secretary, not subject to judicial review. 

§ 1978.107 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 

assign the case to an ALJ 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 de 

novo and 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. 

§ 1978.108 Role of Federal agencies. 

(a) (1) The complainant and the 

respondent will be parties in every 

proceeding. In any case in which the 

respondent objects to the findings or the 

preliminary order the Assistant 

Secretary ordinarily will be the 

prosecuting party. In any other cases, at 

the Assistant Secretary’s discretion, the 

Assistant Secretary may participate as a 

party or participate as amicus curiae 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 ALJ, 

including a decision approving or 

rejecting a settlement agreement 

between the complainant and the 

respondent. 

(2) If the Assistant Secretary assumes 

the role of prosecuting party in 

accordance with paragraph (a)(1) of this 

section, he or she may, upon written 

notice to the appropriate adjudicatory 

body and the other parties, withdraw as 

the prosecuting party in the exercise of 

prosecutorial discretion. If the Assistant 

Secretary withdraws, the complainant 

will become the prosecuting party and 

the ALJ will issue appropriate orders to 

regulate the course of future 

proceedings. 

(3) Copies of documents in all cases, 

whether or not the Assistant Secretary is 

participating in the proceeding, must be 

sent to the Assistant Secretary, as well 

as all other parties. In all cases in which 

the Assistant Secretary is participating 

in the proceeding, copies of documents 

must also be sent to the Associate 

Solicitor for Occupational Safety and 

Health. 

(b) The Federal Motor Carrier Safety 

Administration, if interested in a 

proceeding, may participate as amicus 

curiae at any time in the proceeding, at 

its discretion. At the request of the 

Federal Motor Carrier Safety 

Administration, copies of all pleadings 

in a case must be sent to that agency, 

whether or not that agency is 

participating in the proceeding. 

§ 1978.109 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 (d) 

of this section, as appropriate. 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, or, in circumstances 

covered by the Act, the perception of 

protected activity, was a contributing 

factor in the adverse action alleged in 

the complaint. 

(b) If the complainant or the Assistant 

Secretary has satisfied the burden set 

forth in the prior paragraph, relief may 

not be ordered if the respondent 

demonstrates by clear and convincing 


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Federal Register / Vol. 75, No. 168 / Tuesday, August 31, 2010 / Rules and Regulations 53557 

evidence that it would have taken the 

same adverse action in the absence of 

any protected activity or the perception 

thereof. 

(c) Neither the Assistant Secretary’s 

determination to dismiss a complaint 

without completing an investigation 

pursuant to § 1978.104(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 must order the respondent to take 

appropriate affirmative action to abate 

the violation, including, where 

appropriate, reinstatement of the 

complainant to his or her former 

position, together with the 

compensation, terms, conditions, and 

privileges of the complainant’s 

employment; payment of compensatory 

damages (backpay with interest and 

compensation for any special damages 

sustained as a result of the retaliation, 

including any litigation costs, expert 

witness fees, and reasonable attorney 

fees which the complainant may have 

incurred); and payment of punitive 

damages up to $250,000. 

(2) 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 Occupational Safety and 

Health. Any ALJ’s decision requiring 

reinstatement or lifting an order of 

reinstatement by the Assistant Secretary 

will be effective immediately upon 

receipt of the decision by the 

respondent. For ALJ decisions issued on 

or after the effective date of these rules, 

all other portions of the ALJ’s order will 

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 (ARB). 

§ 1978.110 Decision and orders of the 

Administrative Review Board. 

(a) The Assistant Secretary or any 

other 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), to 

which the Secretary has delegated the 

authority to act and issue final decisions 

under this part. Any ALJ decision 

issued on or after the effective date of 

these rules 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 decision 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 ten 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 

and, in cases in which the Assistant 

Secretary is a party, on the Associate 

Solicitor for Occupational Safety and 

Health. 

(b) If a timely petition for review is 

filed pursuant to paragraph (a) of this 

section, the decision of the ALJ will 

become the final order of the Secretary 

30 days after the filing of the petition 

unless the ARB, within that time, 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 ALJ will be inoperative unless 

and until the ARB issues an order 

adopting the decision, except that an 

order of reinstatement will be effective 

while review is conducted by the ARB 

unless the ARB grants a motion by the 

respondent to stay that 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 determinations 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 120 days of the 

conclusion of the hearing, which will be 

deemed to be ten business days after the 

date of the decision of the ALJ, unless 

a motion for reconsideration has been 

filed with the ALJ in the interim, in 

which case the conclusion of the 

hearing is the date the motion for 

reconsideration is denied or ten 

business days after a new decision is 

issued. The ARB’s final decision will be 

served upon all parties and the Chief 

Administrative Law Judge by mail. The 

final decision also will be served on the 

Assistant Secretary and on the Associate 

Solicitor for Occupational Safety and 

Health, 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, where 

appropriate, reinstatement of the 

complainant to his or her former 

position, together with the 

compensation, terms, conditions, and 

privileges of the complainant’s 

employment; payment of compensatory 

damages (backpay with interest and 

compensation for any special damages 

sustained as a result of the retaliation, 

including any litigation costs, expert 

witness fees, and reasonable attorney 

fees the complainant may have 

incurred); and payment of punitive 

damages up to $250,000. 

(e) If the ARB determines that the 

respondent has not violated the law, an 

order will be issued denying the 

complaint. 

(f) Paragraphs (a) and (b) of this 

section apply to all cases in which the 

decision of the ALJ is issued on or after 

the effective date of these regulations. 

Subpart C—Miscellaneous Provisions 

§ 1978.111 Withdrawal of STAA 

complaints, objections, and petitions for 

review; settlement. 

(a) At any time prior to the filing of 

objections to the Assistant Secretary’s 

findings and/or preliminary order, a 

complainant may withdraw his or her 

STAA complaint by filing a written 

withdrawal with the Assistant 

Secretary. The Assistant Secretary then 

will determine whether to approve the 

withdrawal. The Assistant Secretary 

will notify the respondent (or the 

respondent’s legal counsel if respondent 

is represented by counsel) of the 

approval of any withdrawal. If the 

complaint is withdrawn because of 

settlement, the settlement must be 

submitted for approval in accordance 

with paragraph (d) of this section. After 

the filing of objections to the Assistant 

Secretary’s findings and/or preliminary 

order, the complainant may not 

withdraw his or her complaint. 

(b) The Assistant Secretary may 

withdraw his or her findings and/or a 

preliminary order at any time before the 

expiration of the 30-day objection 

period described in § 1978.106, 

provided that no objection yet has been 


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53558 Federal Register / Vol. 75, No. 168 / Tuesday, August 31, 2010 / Rules and Regulations 

filed, and substitute new findings and/ 

or a preliminary 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 and preliminary 

order become final, a party may 

withdraw its objections to the Assistant 

Secretary’s findings and/or preliminary 

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 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. 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 objections or a petition 

for review are withdrawn because of 

settlement, the settlement must be 

submitted for approval in accordance 

with paragraph (d) of this section. 

(d)(1) Investigative settlements. At any 

time after the filing of a STAA 

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. 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 ALJ or by the ARB, if the ARB has 

accepted the case for review. A copy of 

the settlement will be filed with the ALJ 

or the ARB as the case may be. 

(3) If, under paragraph (d)(1) or (d)(2) 

of this section, the respondent makes an 

offer to settle the case which the 

Assistant Secretary, when acting as the 

prosecuting party, deems to be a fair and 

equitable settlement of all matters at 

issue and the complainant refuses to 

accept the offer, the Assistant Secretary 

may decline to assume the role of 

prosecuting party. In such 

circumstances, the Assistant Secretary 

will immediately notify the complainant 

(or the complainant’s legal counsel if 

complainant is represented by counsel) 

that review of the settlement offer may 

cause the Assistant Secretary to decline 

the role of prosecuting party. After the 

Assistant Secretary has reviewed the 

offer and when he or she has decided to 

decline the role of prosecuting party, the 

Assistant Secretary will immediately 

notify all parties of his or her decision 

in writing and, if the case is before the 

ALJ or the ARB, a copy of the notice 

will be sent to the appropriate official in 

accordance with § 1978.108(a)(2). 

(e) Any settlement approved by the 

Assistant Secretary, the ALJ, or the ARB 

will constitute the final order of the 

Secretary and may be enforced pursuant 

to § 1978.113. 

§ 1978.112 Judicial review. 

(a) Within 60 days after the issuance 

of a final order under §§ 1978.109 and 

1978.110, any person adversely affected 

or aggrieved by such 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 

person resided on the date of the 

violation. 

(b) A final order of the ARB will not 

be subject to judicial review in any 

criminal or other civil proceeding. 

(c) If a timely petition for review is 

filed, the record of a case, including the 

record of proceedings before the ALJ, 

will be transmitted by the ARB to the 

appropriate court pursuant to the 

Federal Rules of Appellate Procedure 

and the local rules of such court. 

§ 1978.113 Judicial enforcement. 

Whenever any person has failed to 

comply with a preliminary order of 

reinstatement or a final order, including 

one approving a settlement agreement as 

provided in § 1978.111, 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. 

§ 1978.114 District court jurisdiction of 

retaliation complaints under STAA. 

(a) If there is no final order of the 

Secretary, 210 days have passed since 

the filing of the complaint, 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 OSHA’s Regional 

Administrator, the Assistant Secretary, 

and the Associate Solicitor for 

Occupational Safety and Health. The 

complainant must 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. 

§ 1978.115 Special circumstances; waiver 

of rules. 

In special circumstances not 

contemplated by the provisions of these 

rules, 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 such 

orders as justice or the administration of 

STAA requires. 

[FR Doc. 2010–21125 Filed 8–30–10; 8:45 am] 

BILLING CODE 4510–26–P 


emcdonald on DSK2BSOYB1PROD with RULES_2