Federal Register / Vol. 75, No. 168 / Tuesday, August 31, 2010 / Rules and Regulations 53533 

approval in accordance with paragraph 

(d) of this section. A complainant may 

not withdraw his or her complaint after 

the filing of objections to the Assistant 

Secretary’s findings and preliminary 

order. 

(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 § 1982.106, 

provided that no objection yet has been 

filed, and substitute new findings and/ 

or a preliminary order. The date of the 

receipt of the substituted findings or 

order will begin a new 30-day objection 

period. 

(c) At any time before the Assistant 

Secretary’s findings and/or order 

become final, a party may withdraw its 

objections to the Assistant Secretary’s 

findings and/or order by filing a written 

withdrawal with the ALJ. If a case is on 

review with the ARB, a party may 

withdraw its petition for review of an 

ALJ’s decision at any time before that 

decision becomes final by filing a 

written withdrawal with the ARB. The 

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

determine whether to approve the 

withdrawal of the objections or the 

petition for review. If the ALJ approves 

a request to withdraw objections to the 

Assistant Secretary’s findings and/or 

order, and there are no other pending 

objections, the Assistant Secretary’s 

findings and/or 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for review are withdrawn because of 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 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. 

(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 § 1982.113. 

§ 1982.112 Judicial review. 

(a) Within 60 days after the issuance 

of a final order under §§ 1982.109 and 

1982.110, any person adversely affected 

or aggrieved by the order may file a 

petition for review of the order in the 

United States Court of Appeals for the 

circuit in which the violation allegedly 

occurred or the circuit in which the 

complainant resided on the date of the 

violation. 

(b) A final order of the ARB is not 

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 the court. 

§ 1982.113 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, 

issued under NTSSA, the Secretary or a 

person on whose behalf the order was 

issued may file a civil action seeking 

enforcement of the order in the United 

States district court for the district in 

which the violation was found to have 

occurred. Whenever a person has failed 

to comply with a preliminary order of 

reinstatement, or a final order, including 

one approving a settlement agreement, 

issued under FRSA, 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. In 

such civil actions under NTSSA and 

FRSA, the district court will have 

jurisdiction to grant all appropriate 

relief, including, but not limited to, 

injunctive relief and compensatory 

damages, including: 

(1) Reinstatement with the same 

seniority status that the employee 

would have had, but for the retaliation; 

(2) The amount of back pay, with 

interest; and 

(3) Compensation for any special 

damages sustained as a result of the 

retaliation, including litigation costs, 

expert witness fees, and reasonable 

attorney’s fees. 

§ 1982.114 District Court jurisdiction of 

retaliation complaints. 

(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 the Regional 

Administrator, the Assistant Secretary, 

Occupational Safety and Health 

Administration, and on the Associate 

Solicitor, Division of Fair Labor 

Standards, U.S. Department of Labor. 

The complainant shall file and serve a 

copy of the district court complaint on 

the above as soon as possible after the 

district court complaint has been filed 

with the court. 

§ 1982.115 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 that justice or the administration 

of NTSSA or FRSA requires. 

[FR Doc. 2010–21128 Filed 8–30–10; 8:45 am] 

BILLING CODE 4510–26–P 

DEPARTMENT OF LABOR 

Occupational Safety and Health 

Administration 

29 CFR Part 1983 

[Docket Number OSHA–2010–0006] 

RIN 1218–AC47 

Procedures for the Handling of 

Retaliation Complaints Under Section 

219 of the Consumer Product Safety 

Improvement Act of 2008 

AGENCY: Occupational Safety and Health 

Administration, Labor. 

ACTION: Interim Final rule; request for 

comments. 

SUMMARY: This document provides the 

interim final text of regulations 


emcdonald on DSK2BSOYB1PROD with RULES_2
53534 Federal Register / Vol. 75, No. 168 / Tuesday, August 31, 2010 / Rules and Regulations 

governing the employee protection (or 

‘‘whistleblower’’) provisions of the 

Consumer Product Safety Improvement 

Act of 2008 (‘‘CPSIA’’). This rule 

establishes procedures and time frames 

for the handling of retaliation 

complaints under CPSIA, including 

procedures and time frames for 

employee complaints to the 

Occupational Safety and Health 

Administration (‘‘OSHA’’), 

investigations by OSHA, appeals of 

OSHA determinations to an 

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

hearing de novo, hearings by ALJs, 

review of ALJ decisions by the 

Administrative Review Board (‘‘ARB’’) 

(acting on behalf of the Secretary) and 

judicial review of the Secretary’s final 

decision. 

DATES: This interim final rule is 

effective on August 31, 2010. Comments 

and additional materials must be 

submitted (post-marked, sent or 

received) by November 1, 2010. 

ADDRESSES: 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–2010–0006, 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–2010–0006). 

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 

The Consumer Product Safety 

Improvement Act of 2008 (‘‘CPSIA’’ or 

‘‘the Act’’), Public Law 110–314, was 

enacted on August 14, 2008. Section 219 

of the Act, codified at 15 U.S.C. 2087, 

provides protection to employees 

against retaliation by a manufacturer, 

private labeler, distributor, or retailer, 

because they provided to their 

employer, the Federal Government or 

the attorney general of a State, 

information relating to any violation of, 

or any act or omission the employees 

reasonably believe to be a violation of, 

any provision of an Act enforced by the 

Consumer Product Safety Commission 

(‘‘Commission’’), or any order, rule, 

regulation, standard, or ban under any 

such Act. The statutes enforced by the 

Commission include the Consumer 

Product Safety Act (‘‘CPSA’’), as 

amended by the CPSIA (15 U.S.C. 2051 

et seq.), the Children’s Gasoline Burn 

Prevention Act (Pub. L. 110–278, 122 

Stat. 2602 (2008)), the Federal 

Hazardous Substances Act (15 U.S.C. 

1261 et seq.), the Flammable Fabrics Act 

(15 U.S.C. 1191 et seq.), the Poison 

Prevention Packaging Act (15 U.S.C. 

1471 et seq.), the Refrigerator Safety Act 

(15 U.S.C. 1211 et seq.), and the Virginia 

Graeme Baker Pool and Spa Safety Act 

(15 U.S.C. 8001 et seq.). These rules 

establish procedures for the handling of 

whistleblower complaints under CPSIA. 

II. Summary of Statutory Procedures 

CPSIA’s whistleblower provisions 

include procedures that allow a covered 

employee to file, within 180 days of the 

alleged retaliation, a complaint with the 

Secretary of Labor (‘‘the Secretary’’). 

Upon receipt of the complaint, the 

Secretary must provide written notice to 

the person or persons named in the 

complaint alleged to have violated the 

Act (‘‘respondent’’) of the filing of the 

complaint, the allegations contained in 

the complaint, the substance of the 

evidence supporting the complaint, and 

the rights afforded the respondent 

throughout the investigation. The 

Secretary must then, within 60 days of 

receipt of the complaint, afford the 

respondent an opportunity to submit a 

response and meet with the investigator 

to present statements from witnesses, 

and conduct an investigation. 

The Secretary may conduct an 

investigation only if the complainant 

has made a prima facie showing that the 

protected activity was a contributing 

factor in the adverse action alleged in 

the complaint and the respondent has 

not demonstrated, through clear and 

convincing evidence, that the employer 

would have taken the same adverse 

action in the absence of that activity. 

After investigating a complaint, the 

Secretary will issue written findings. If, 

as a result of the investigation, the 

Secretary finds there is reasonable cause 

to believe that retaliation has occurred, 

the Secretary must notify the 

respondent of those findings, along with 

a preliminary order that requires the 

respondent to: take affirmative action to 

abate the violation; reinstate the 

complainant to his or her former 

position together with the compensation 

of that position (including back pay) 

and restore the terms, conditions, and 

privileges associated with his or her 

employment; and provide compensatory 

damages to the complainant, as well as 

costs and attorney’s and expert witness 

fees reasonably incurred by the 

complainant for, or in connection with, 

the bringing of the complaint upon 

which the order was issued. 

The complainant and the respondent 

then have 30 days after the date of the 

Secretary’s notification in which to file 

objections to the findings and/or 

preliminary order and request a hearing 

before an ALJ. The filing of objections 

under CPSIA will stay any remedy in 

the preliminary order except for 

preliminary reinstatement. If a hearing 

before an ALJ is not requested within 30 

days, the preliminary order becomes 

final and is not subject to judicial 

review. 

If a hearing is held, CPSIA requires 

the hearing to be conducted 

‘‘expeditiously.’’ The Secretary then has 

120 days after the conclusion of any 

hearing in which to issue a final order, 

which may provide appropriate relief or 

deny the complaint. Until the 

Secretary’s final order is issued, the 

Secretary, the complainant, and the 

respondent may enter into a settlement 

agreement that terminates the 

proceeding. Where the Secretary has 

determined that a violation has 

occurred, the Secretary, where 


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Federal Register / Vol. 75, No. 168 / Tuesday, August 31, 2010 / Rules and Regulations 53535 

appropriate, will assess against the 

respondent a sum equal to the total 

amount of all costs and expenses, 

including attorney’s and expert witness 

fees, reasonably incurred by the 

complainant for, or in connection with, 

the bringing of the complaint upon 

which the Secretary issued the order. 

The Secretary also may award a 

prevailing employer a reasonable 

attorney’s fee, not exceeding $1,000, if 

the Secretary finds that the complaint is 

frivolous or has been brought in bad 

faith. Within 60 days of the issuance of 

the final order, any person adversely 

affected or aggrieved by the Secretary’s 

final order may file an appeal with the 

United States Court of Appeals for the 

circuit in which the violation occurred 

or the circuit where the complainant 

resided on the date of the violation. 

CPSIA permits the employee to seek 

de novo review of the complaint 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 the complaint, or within 90 days after 

receiving a written determination. 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. 

III. Summary and Discussion of 

Regulatory Provisions 

The regulatory provisions in this part 

have been written and organized to be 

consistent with other whistleblower 

regulations promulgated by OSHA to 

the extent possible within the bounds of 

the statutory language of CPSIA. 

Responsibility for receiving and 

investigating complaints under CPSIA 

also has been delegated to the 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 are decided by the ARB 

(Secretary’s Order 1–2010 (Jan. 15, 

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

Subpart A—Complaints, Investigations, 

Findings and Preliminary Orders 

Section 1983.100 Purpose and Scope 

This section describes the purpose of 

the regulations implementing CPSIA 

and provides an overview of the 

procedures covered by these 

regulations. 

Section 1983.101 Definitions 

This section includes general 

definitions from the CPSA, which are 

applicable to the whistleblower 

provisions of the CPSIA, including a 

definition of the term ‘‘consumer 

product.’’ See 15 U.S.C. 2052(a)(5). The 

CPSA defines ‘‘distributor’’ as ‘‘a person 

to whom a consumer product is 

delivered or sold for purposes of 

distribution in commerce, except that 

such term does not include a 

manufacturer or retailer of such 

product.’’ 15 U.S.C. 2052(a)(8). The 

CPSA defines ‘‘manufactured’’ as ‘‘to 

manufacture, produce, or assemble,’’ 

and defines ‘‘manufacturer’’ as ‘‘any 

person who manufactures or imports a 

consumer product.’’ 15 U.S.C. 

2052(a)(10) and (11), respectively. 

‘‘Private labeler’’ is defined by the CPSA 

as ‘‘an owner of a brand or trademark on 

the label of a consumer product which 

bears a private label.’’ 15 U.S.C. 

2052(a)(12). Section 2052(a)(12)(B) 

further provides that a ‘‘consumer 

product bears a private label if (i) the 

product (or its container) is labeled with 

the brand or trademark of a person other 

than a manufacturer of the product, (ii) 

the person with whose brand or 

trademark the product (or container) is 

labeled has authorized or caused the 

product to be so labeled, and (iii) the 

brand or trademark of a manufacturer of 

such product does not appear on such 

label.’’ 15 U.S.C. 2052(a)(12)(B). The 

CPSA defines ‘‘retailer’’ as ‘‘a person to 

whom a consumer product is delivered 

or sold for purposes of sale or 

distribution by such person to a 

consumer.’’ 15 U.S.C. 2052(a)(13). 

Section 1983.102 Obligations and 

Prohibited Acts 

This section describes the activities 

that are protected under CPSIA, and the 

conduct that is prohibited in response to 

any protected activities. For purposes of 

§ 1983.102(c), the ARB has interpreted 

the phrase ‘‘deliberate violations’’ for the 

purpose of denying protection to an 

employee under the Energy 

Reorganization Act’s similar provision 

as including an element of willfulness. 

See Fields v. U.S. Dep’t of Labor, 

Admin. Review Bd., 173 F.3d 811, 814 

(11th Cir. 1999) (petitioners knowingly 

conducted unauthorized and potentially 

dangerous experiments). 

Section 1983.103 Filing of Retaliation 

Complaint 

This section explains the requirement 

for filing a retaliation complaint under 

CPSIA. To be timely, a complaint must 

be filed within 180 days of when the 

alleged violation occurs. Under 

Delaware State College v. Ricks, 449 

U.S. 250, 258 (1980), this is considered 

to be when the retaliatory decision has 

been both made and communicated to 

the complainant. In other words, the 

limitations period commences once the 

employee is aware or reasonably should 

be aware of the employer’s decision. 

Equal Employment Opportunity 

Commission v. United Parcel Service, 

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

Complaints filed under CPSIA need not 

be in any particular form. They may be 

either oral or in writing. If the 

complainant is unable to file the 

complaint in English, OSHA will accept 

the complaint in any language. With the 

consent of the employee, complaints 

may be filed by any person on the 

employee’s behalf. 

Section 1983.104 Investigation 

This section describes the procedures 

that apply to the investigation of CPSIA 

complaints. Paragraph (a) of this section 

outlines the procedures for notifying the 

parties and the Consumer Product 

Safety Commission of the complaint and 

notifying the respondent of its rights 

under these regulations. Paragraph (b) 

describes the procedures for the 

respondent to submit its response to the 

complaint. Paragraph (c) addresses 

disclosure to the complainant of 

respondent’s submissions to the agency 

that are responsive to the complaint. 

Paragraph (d) of this section discusses 

confidentiality of information provided 

during investigations. Paragraph (e) of 

this section sets forth CPSIA’s statutory 

burdens of proof. Paragraph (f) describes 

the procedures the Assistant Secretary 

will follow prior to the issuance of 

findings and a preliminary order when 

the Assistant Secretary has reasonable 

cause to believe that a violation has 

occurred. 

The statute requires 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. If the complainant 

does not make the prima facie showing, 

the investigation must be discontinued 

and the complaint dismissed. See 

Trimmer v. U.S. Dep’t of Labor, 174 

F.3d 1098, 1101 (10th Cir. 1999) (noting 

that the burden-shifting framework of 

the ERA, which is the same as that 

under CPSIA, 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, the 


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Secretary must dismiss a complaint 

under CPSIA and not investigate (or 

cease investigating) if either: (1) The 

complainant fails to meet the prima 

facie showing that protected activity 

was a contributing factor in the adverse 

action; or (2) the employer rebuts that 

showing by clear and convincing 

evidence that it would have taken the 

same adverse action absent the 

protected activity. 

Assuming that an investigation 

proceeds beyond the gatekeeping phase, 

the statutory burdens of proof require an 

employee to prove that the alleged 

protected activity was a ‘‘contributing 

factor’’ to the alleged adverse action. If 

the employee proves that the alleged 

protected activity was a contributing 

factor to the adverse action, the 

employer, to escape liability, must 

prove by ‘‘clear and convincing 

evidence’’ that it would have taken the 

same action in the absence of the 

protected activity. A contributing factor 

is ‘‘any factor which, alone or in 

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 

the complainant’s protected activity. 

See Klopfenstein v. PCC Flow Techs. 

Holdings, Inc., No. 04–149, 2006 WL 

3246904, *13 (ARB May 31, 2006) 

(discussing contributing factor test 

under the whistleblower provisions of 

Section 806 of the Corporate and 

Criminal Fraud Accountability Act of 

2002, Title VIII of the Sarbanes-Oxley 

Act of 2002 (‘‘SOX’’), 18 U.S.C. 1514A) 

(citing Rachid v. Jack in the Box, Inc., 

376 F.3d 305, 312 (5th Cir. 2004)). 

CPSIA’s burdens of proof do not 

address the evidentiary standard that 

applies to a complainant’s proof that 

protected activity was a contributing 

factor in an adverse action. CPSIA 

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. See 15 U.S.C. 

2087(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 contributed to the adverse 

action; 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 ‘demonstrate’ 

[under 42121(b)(2)(B)(iii)] means to 

prove by a preponderance of the 

evidence.’’). Once the complainant 

establishes that the protected activity 

was a contributing factor in the 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 

prohibited rationale. The ‘‘clear and 

convincing evidence’’ standard is a 

higher burden of proof than a 

‘‘preponderance of the evidence’’ 

standard. 

Section 1983.105 Issuance of Findings 

and Preliminary Orders 

This section provides that, on the 

basis of information obtained in the 

investigation, the Assistant Secretary 

will issue, within 60 days of the filing 

of a complaint, written findings 

regarding whether or not there is 

reasonable cause to believe that the 

complaint has merit. If the findings are 

that there is reasonable cause to believe 

that the complaint has merit, the 

Assistant Secretary will order 

appropriate relief, including 

preliminary reinstatement. The findings 

and, where appropriate, preliminary 

order, advise the parties of their right to 

file objections to the findings of the 

Assistant Secretary and to request a 

hearing. The findings and, where 

appropriate, preliminary order, also 

advise the respondent of the right to 

request attorney’s fees not exceeding 

$1,000 from the ALJ, regardless of 

whether the respondent has filed 

objections, if the respondent alleges that 

the complaint was frivolous or brought 

in bad faith. If no objections are filed 

within 30 days of receipt of the findings, 

the findings and any preliminary order 

of the Assistant Secretary become the 

final decision and order of the 

Secretary. If objections are timely filed, 

any order of preliminary reinstatement 

will take effect, but the remaining 

provisions of the order will not take 

effect until administrative proceedings 

are completed. 

In appropriate circumstances, in lieu 

of preliminary reinstatement, OSHA 

may order that the complainant receive 

the same pay and benefits that he 

received prior to his termination, but 

not actually return to work. Such 

‘‘economic reinstatement’’ frequently is 

employed in cases arising under Section 

105(c) of the Federal Mine Safety and 

Health Act of 1977. See, e.g., Secretary 

of Labor on behalf of York v. BR&D 

Enters., Inc., 23 FMSHRC 697, 2001 WL 

1806020, at *1 (June 26, 2001). Congress 

intended that employees be 

preliminarily reinstated to their 

positions if OSHA finds reasonable 

cause that they were discharged in 

violation of CPSIA. 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 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 employee. In 

such situations, actual reinstatement 

might be delayed until after the 

administrative adjudication is 

completed as long as the employee 

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 an employee should the 

employer ultimately prevail in the 

whistleblower adjudication. 

Subpart B—Litigation 

Section 1983.106 Objections to the 

Findings and the Preliminary Order and 

Request for a Hearing 

To be effective, objections to the 

findings of the Assistant Secretary must 

be in writing and must be filed with the 

Chief Administrative Law Judge, U.S. 

Department of Labor, Washington, DC 

20001, within 30 days of receipt of the 

findings. The date of the postmark, 

facsimile transmittal, or e-mail 

communication is considered the date 

of the filing; if the objection is filed in 

person, by hand-delivery or other 

means, the objection is filed upon 

receipt. The filing of objections also is 

considered a request for a hearing before 

an ALJ. Although the parties are 

directed to serve a copy of their 

objections on the other parties of record, 

as well as the OSHA official who issued 

the findings and order, the Assistant 

Secretary, and the Associate Solicitor, 

Division of Fair Labor Standards, U.S. 

Department of Labor, the failure to serve 

copies of the objections on the other 

parties of record does not affect the 

ALJ’s jurisdiction to hear and decide the 

merits of the case. See Shirani v. Calvert 

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

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

31, 2005). 


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Section 1983.107 Hearings 

This section adopts the rules of 

practice and evidence of the Office of 

Administrative Law Judges at 29 CFR 

part 18. The section specifically 

provides for consolidation of hearings if 

both the complainant and respondent 

object to the findings and/or order of the 

Assistant Secretary. Otherwise, this 

section does not address procedural 

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

counsel, procedures, evidence and 

record of hearing, oral arguments and 

briefs, and dismissal for cause, because 

the Office of Administrative Law Judges 

has adopted its own rules of practice 

that cover these matters. 

Section 1983.108 Role of Federal 

Agencies 

Under CPSIA it is not expected that 

the Secretary will ordinarily appear as 

a party in the proceeding. Nevertheless, 

the Assistant Secretary, at his or her 

discretion, may participate as a party or 

amicus curiae at any time in the 

administrative proceedings. For 

example, the Assistant Secretary may 

exercise his or her discretion to 

prosecute the case in the administrative 

proceeding before an ALJ; petition for 

review of a decision of an ALJ, 

including a decision based on a 

settlement agreement between the 

complainant and the respondent, 

regardless of whether the Assistant 

Secretary participated before the ALJ; or 

participate as amicus curiae before the 

ALJ or in the ARB proceeding. Although 

we anticipate that ordinarily the 

Assistant Secretary will not participate, 

the Assistant Secretary may choose to 

do so in appropriate cases, such as cases 

involving important or novel legal 

issues, large numbers of employees, 

alleged violations that appear egregious, 

or where the interests of justice might 

require participation by the Assistant 

Secretary. The Consumer Product Safety 

Commission, at its own discretion, also 

may participate as amicus curiae at any 

time in the proceedings. 

Section 1983.109 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 standard for finding a 

violation under CPSIA. The section 

further provides that the Assistant 

Secretary’s determination to dismiss the 

complaint without an investigation or 

without a complete investigation 

pursuant to section 1983.104 is not 

subject to review. Thus, paragraph (c) of 

section 1983.109 clarifies that the 

Assistant Secretary’s determinations on 

whether to proceed with an 

investigation under CPSIA and whether 

to make particular investigative findings 

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. A full discussion of the 

burdens of proof used by the 

Department of Labor to resolve 

whistleblower cases under this part is 

set forth above in the discussion of 

section 1983.104. 

Section 1983.110 Decision of the 

Administrative Review Board 

Upon the issuance of the ALJ’s 

decision, the parties have 10 business 

days within which to petition the ARB 

for review of that decision. If no timely 

petition for review is filed with the 

ARB, the decision of the ALJ becomes 

the final decision of the Secretary and 

is not subject to judicial review. The 

date of the postmark, facsimile 

transmittal, or e-mail communication is 

considered the date of filing of the 

petition; if the petition is filed in 

person, by hand delivery or other 

means, the petition is considered filed 

upon receipt. 

The appeal provisions in this part 

provide that an appeal to the ARB is not 

a matter of right but is accepted at the 

discretion of the ARB. 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. The ARB 

has 30 days to decide whether to grant 

the petition for review. If the ARB does 

not grant the petition, the decision of 

the ALJ becomes the final decision of 

the Secretary. If a timely petition for 

review is filed with the ARB, any relief 

ordered by the ALJ, except for that 

portion ordering reinstatement, is 

inoperative while the matter is pending 

before the ARB. When the ARB accepts 

a petition for review, the ALJ’s factual 

determinations will be reviewed under 

the substantial evidence standard. 

This section also provides that in the 

exceptional case, the ARB may grant a 

motion to stay an ALJ’s preliminary 

order of reinstatement under CPSIA, 

which otherwise would be effective, 

while review is conducted by the ARB. 

The Secretary believes that a stay of an 

ALJ’s preliminary order of reinstatement 

under CPSIA would be appropriate only 

where the respondent can establish the 

necessary criteria for equitable 

injunctive relief, i.e., irreparable injury, 

likelihood of success on the merits, and 

a balancing of possible harms to the 

parties and the public favors a stay. 

Subpart C—Miscellaneous Provisions 

Section 1983.111 Withdrawal of 

Complaints, Objections, and Petitions 

for Review; Settlement 

This section provides for the 

procedures and time periods for 

withdrawal of complaints, the 

withdrawal of findings and/or 

preliminary orders by the Assistant 

Secretary, and the withdrawal of 

objections to findings and/or orders. It 

also provides for approval of settlements 

at the investigative and adjudicative 

stages of the case. 

Section 1983.112 Judicial Review 

This section describes the statutory 

provisions for judicial review of 

decisions of the Secretary and requires, 

in cases where judicial review is sought, 

the ARB to submit the record of 

proceedings to the appropriate court 

pursuant to the rules of such court. 

Section 1983.113 Judicial Enforcement 

This section describes the Secretary’s 

power under CPSIA to obtain judicial 

enforcement of orders and the terms of 

a settlement agreement. 

CPSIA expressly authorizes district 

courts to enforce orders, including 

preliminary orders of reinstatement, 

issued by the Secretary under 15 U.S.C. 

2087(b)(6) (‘‘Whenever any person has 

failed to comply with an order issued 

under paragraph (3), the Secretary may 

file a civil action in the United States 

district court for the district in which 

the violation was found to occur, or in 

the United States district court for the 

District of Columbia, to enforce such 

order.’’). Specifically, reinstatement 

orders issued under 15 U.S.C. 

2087(b)(2)(A) are immediately 

enforceable in district court under 15 

U.S.C. 2087(b)(6) and (7). Subsection 

2087(b)(3)(B)(ii) provides that the 

Secretary shall order the person who 

has committed a violation to reinstate 

the complainant to his or her former 

position. Subsection 2087(b)(2)(A) 

instructs the Secretary to accompany 

any reasonable cause finding that a 

violation occurred with a preliminary 

order containing the relief prescribed by 

subsection (b)(3)(B), which includes 

reinstatement. See 15 U.S.C. 

2087(b)(3)(B)(ii). Subsection (b)(2)(A) 

also declares that the subsection 

(b)(3)(B)’s relief of reinstatement 

contained in a preliminary order is not 

stayed upon the filing of objections. 15 

U.S.C. 2087(b)(2)(A) (‘‘The filing of such 

objections shall not operate to stay any 

reinstatement remedy contained in the 

preliminary order.’’). Thus, under the 

statute, enforceable orders issued under 

subsection (b)(3) include preliminary 


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orders that contain the relief of 

reinstatement prescribed by subsection 

(b)(3)(B). This statutory interpretation is 

consistent with the Secretary’s 

interpretation of similar language in 

AIR21 and SOX. But see Bechtel v. 

Competitive Technologies, Inc., 448 

F.3d 469 (2d Cir. 2006); Welch v. 

Cardinal Bankshares Corp., 454 F. 

Supp. 2d 552 (W.D. Va. 2006) (decision 

vacated, appeal dismissed, No. 06–2995 

(4th Cir. Feb. 20, 2008)). CPSIA also 

permits the person on whose behalf the 

order was issued under CPSIA to obtain 

judicial enforcement or orders and the 

terms of a settlement agreement. 

Section 1983.114 District Court 

Jurisdiction of Retaliation Complaints 

This section sets forth CPSIA’s 

provisions allowing a complainant to 

bring an original de novo action in 

district court, alleging the same 

allegations contained in the complaint 

filed with OSHA, if there has been no 

final decision of the Secretary within 

210 days of the filing of the complaint, 

or within 90 days after receiving a 

written determination. It also requires 

complainants to provide notice 15 days 

in advance of their intent to file a 

complaint in district court. 

It is the Secretary’s position that 

complainants may not 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 complaint. 

The purpose of the ‘‘kick-out’’ provisions 

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. 

Section 1983.115 Special 

Circumstances; Waiver of Rules 

This section provides that in 

circumstances not contemplated by 

these rules or for good cause the ALJ or 

the ARB may, upon application and 

notice to the parties, waive any rule as 

justice or the administration of CPSIA 

requires. 

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 

are not required for these regulations, 

which provide the procedures for the 

handling of retaliation complaints. 

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 

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. The Assistant Secretary 

also finds good cause to provide an 

immediate effective date for this interim 

final rule. It is in the public interest that 

the rule be effective immediately so that 

parties may know what procedures are 

applicable to pending cases. 

VI. Executive Order 12866; Unfunded 

Mandates Reform Act of 1995; Small 

Business Regulatory Enforcement 

Fairness Act of 1996; Executive Order 

13132 

The Department has concluded that 

this rule should be treated as a 

‘‘significant regulatory action’’ within 

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

Executive Order 12866 because the 

CPSIA whistleblower provisions are 

new. Executive Order 12866 requires a 

full economic impact analysis only for 

‘‘economically significant’’ rules, which 

are defined in Section 3(f)(1) as rules 

that may ‘‘have an annual effect on the 

economy of $100 million or more, or 

adversely affect in a material way the 

economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local, or tribal 

governments or communities.’’ Because 

the rule is procedural in nature, it is not 

expected to have a significant economic 

impact, therefore, no economic impact 

analysis has been prepared. For the 

same reason, the rule does not require 

a Section 202 statement under the 

Unfunded Mandates Reform Act of 1995 

(2 U.S.C. 1531 et seq.). Furthermore, 

because this is a rule of agency 

procedure and practice, it is not a ‘‘rule’’ 

within the meaning of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 (5 U.S.C. 

804(3)(C)), and does not require 

Congressional review. Finally, this rule 

does not have ‘‘federalism implications.’’ 

The rule does not have ‘‘substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government’’ and therefore is 

not subject to Executive Order 13132 

(Federalism). 

VII. Regulatory Flexibility Analysis 

The Department has determined that 

the regulation will not have a significant 

economic impact on a substantial 

number of small entities. The regulation 

simply implements procedures 

necessitated by enactment of CPSIA. 

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 1983 

Administrative practice and 

procedure, Employment, Consumer 

protection, Investigations, Reporting 

and recordkeeping requirements, 

Whistleblower. 

Signed at 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, 29 CFR part 1983 is added 

to read as follows: 

PART 1983—PROCEDURES FOR THE 

HANDLING OF RETALIATION 

COMPLAINTS UNDER SECTION 219 

OF THE CONSUMER PRODUCT 

SAFETY IMPROVEMENT ACT OF 2008. 

Subpart A—Complaints, Investigations, 

Findings and Preliminary Orders 

Sec. 

1983.100 Purpose and scope. 

1983.101 Definitions. 

1983.102 Obligations and prohibited acts. 

1983.103 Filing of retaliation complaint. 

1983.104 Investigation. 

1983.105 Issuance of findings and 

preliminary orders. 


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Subpart B—Litigation 

1983.106 Objections to the findings and the 

preliminary order and request for a 

hearing. 

1983.107 Hearings. 

1983.108 Role of Federal agencies. 

1983.109 Decision and orders of the 

administrative law judge. 

1983.110 Decision and orders of the 

Administrative Review Board. 

Subpart C—Miscellaneous Provisions 

1983.111 Withdrawal of complaints, 

objections, and findings; settlement. 

1983.112 Judicial review. 

1983.113 Judicial enforcement. 

1983.114 District court jurisdiction of 

retaliation complaints. 

1983.115 Special circumstances; waiver of 

rules. 

Authority: 15 U.S.C. 2087; Secretary of 

Labor’s Order No. 5–2007, 72 FR 31160 (June 

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

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

25, 2010). 

Subpart A—Complaints, 

Investigations, Findings and 

Preliminary Orders 

§ 1983.100 Purpose and scope. 

(a) This part implements procedures 

of the employee protection provision of 

the Consumer Product Safety 

Improvement Act (CPSIA), 15 U.S.C. 

2087. CPSIA provides for employee 

protection from retaliation because the 

employee has engaged in protected 

activity pertaining to consumer product 

safety. 

(b) This part establishes procedures 

under the CPSIA for the expeditious 

handling of retaliation complaints filed 

by employees, or by persons acting on 

their behalf. These rules, together with 

those codified at 29 CFR part 18, set 

forth the procedures for submission of 

complaints under CPSIA, investigations, 

issuance of findings and preliminary 

orders, objections to findings and 

orders, litigation before administrative 

law judges, post-hearing administrative 

review, and withdrawals and 

settlements. 

§ 1983.101 Definitions. 

(a) 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 CPSIA. 

(b) Business days means days other 

than Saturdays, Sundays, and Federal 

holidays. 

(c) Commission means the Consumer 

Product Safety Commission. 

(d) Complainant means the employee 

who filed a CPSIA complaint or on 

whose behalf a complaint was filed. 

(e) (1) Consumer product means any 

article, or component part thereof, 

produced or distributed for sale to a 

consumer for use in or around a 

permanent or temporary household or 

residence, a school, in recreation, or 

otherwise, or for the personal use, 

consumption or enjoyment of a 

consumer in or around a permanent or 

temporary household or residence, a 

school, in recreation, or otherwise (the 

term ‘‘consumer product’’ includes any 

mechanical device which carries or 

conveys passengers along, around, or 

over a fixed or restricted route or course 

or within a defined area for the purpose 

of giving its passengers amusement, 

which is customarily controlled or 

directed by an individual who is 

employed for that purpose and who is 

not a consumer with respect to such 

device, and which is not permanently 

fixed to a site, but does not include such 

a device that is permanently fixed to a 

site). 

(2) The term consumer product does 

not include: 

(i) Any article which is not 

customarily produced or distributed for 

sale to, or use or consumption by, or 

enjoyment of, a consumer; 

(ii) Tobacco and tobacco products; 

(iii) Motor vehicles or motor vehicle 

equipment (as defined by 49 U.S.C. 

30102(a)(6) and (7)); 

(iv) Pesticides (as defined by the 

Federal Insecticide, Fungicide, and 

Rodenticide Act (7 U.S.C. 136 et seq.)); 

(v) Any article or any component of 

any such article which, if sold by the 

manufacturer, producer, or importer, 

would be subject to the tax imposed by 

26 U.S.C. 4181; 

(vi) Aircraft, aircraft engines, 

propellers, or appliances (as defined in 

49 U.S.C. 40102(a)); 

(vii) Boats which could be subjected 

to safety regulation under 46 U.S.C. 

chapter 43; vessels, and appurtenances 

to vessels (other than such boats), which 

could be subjected to safety regulation 

under title 52 of the Revised Statutes or 

other marine safety statutes 

administered by the department in 

which the Coast Guard is operating; and 

equipment (including associated 

equipment, as defined in 46 U.S.C. 

2101(1)) to the extent that a risk of 

injury associated with the use of such 

equipment on boats or vessels could be 

eliminated or reduced by actions taken 

under any statute referred to in this 

definitional section; 

(viii) Drugs, devices, or cosmetics (as 

such terms are defined in 21 U.S.C. 

321(g), (h), and (i)); or 

(ix) Food (the term ‘‘food’’ means all 

‘‘food,’’ as defined in 21 U.S.C. 321(f), 

including poultry and poultry products 

(as defined in 21 U.S.C. 453(e) and (f)), 

meat, meat food products (as defined in 

21 U.S.C. 601(j)), and eggs and egg 

products (as defined in 21 U.S.C. 1033)). 

(f) CPSIA means Section 219 of the 

Consumer Product Safety Improvement 

Act of 2008, Public Law 110–314, 

August 14, 2008, codified at 15 U.S.C. 

2087. 

(g) Distributor means a person to 

whom a consumer product is delivered 

or sold for purposes of distribution in 

commerce, except that such term does 

not include a manufacturer or retailer of 

such product. 

(h) Employee means an individual 

presently or formerly working for, an 

individual applying to work for, or an 

individual whose employment could be 

affected by a manufacturer, private 

labeler, distributor, or retailer. 

(i) Manufacturer means any person 

who manufactures or imports a 

consumer product. A product is 

manufactured if it is manufactured, 

produced, or assembled. 

(j) OSHA means the Occupational 

Safety and Health Administration of the 

United States Department of Labor. 

(k) Private labeler means an owner of 

a brand or trademark on the label of a 

consumer product which bears a private 

label. A consumer product bears a 

private label if: 

(i) The product (or its container) is 

labeled with the brand or trademark of 

a person other than a manufacturer of 

the product, 

(ii) The person with whose brand or 

trademark the product (or container) is 

labeled has authorized or caused the 

product to be so labeled, and 

(iii) The brand or trademark of a 

manufacturer of such product does not 

appear on such label. 

(l) Retailer means a person to whom 

a consumer product is delivered or sold 

for purposes of sale or distribution by 

such person to a consumer. 

(m) Respondent means the employer 

named in the complaint who is alleged 

to have violated the Act. 

(n) Secretary means the Secretary of 

Labor or person to whom authority 

under CPSIA has been delegated. 

(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. 

§ 1983.102 Obligations and prohibited 

acts. 

(a) No manufacturer, private labeler, 

distributor, or retailer may discharge or 

otherwise retaliate against, including, 

but not limited to, intimidating, 

threatening, restraining, coercing, 

blacklisting or disciplining, any 

employee with respect to the 

employee’s compensation, terms, 

conditions, or privileges of employment 


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because the employee, whether at the 

employee’s initiative or in the ordinary 

course of the employee’s duties (or any 

person acting pursuant to a request of 

the employee), engaged in any of the 

activities specified in paragraphs (b)(1) 

through (4) of this section. 

(b) An employee is protected against 

retaliation (as described in paragraph (a) 

of this section) by a manufacturer, 

private labeler, distributor, or retailer 

because he or she: 

(1) Provided, caused to be provided, 

or is about to provide or cause to be 

provided to the employer, the Federal 

Government or the attorney general of a 

State, information relating to any 

violation of, or any act or omission the 

employee reasonably believes to be a 

violation of any provision of the 

Consumer Product Safety Act, as 

amended by CPSIA, or any other Act 

enforced by the Commission, or any 

order, rule, regulation, standard, or ban 

under any such Acts; 

(2) Testified, or is about to testify, in 

a proceeding concerning such violation; 

(3) Assisted or participated, or is 

about to assist or participate, in such a 

proceeding; or 

(4) Objected to, or refused to 

participate in, any activity, policy, 

practice, or assigned task that the 

employee (or other such person) 

reasonably believed to be in violation of 

any provision of the Consumer Product 

Safety Act, as amended by CPSIA, or 

any other Act enforced by the 

Commission, or any order, rule, 

regulation, standard, or ban under any 

such Acts. 

(c) This part shall have no application 

with respect to an employee of a 

manufacturer, private labeler, 

distributor, or retailer who, acting 

without direction from such 

manufacturer, private labeler, 

distributor, or retailer (or such person’s 

agent), deliberately causes a violation of 

any requirement relating to any 

violation or alleged violation of any 

order, regulation, or consumer product 

safety standard under the Consumer 

Product Safety Act, as amended by 

CPSIA, or any other law enforced by the 

Commission. 

§ 1983.103 Filing of retaliation complaints. 

(a) Who may file. An employee who 

believes that he or she has been 

retaliated against by a manufacturer, 

private labeler, distributor, or retailer in 

violation of CPSIA 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 the complainant is unable 

to file the 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 of CPSIA 

occurs, any employee who believes that 

he or she has been retaliated against in 

violation of the Act may file, or have 

filed by any person on the employee’s 

behalf, a complaint alleging such 

retaliation. The date of the postmark, 

facsimile transmittal, e-mail 

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

commercial carrier, or in-person filing at 

an OSHA office will be considered the 

date of filing. 

§ 1983.104 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 

a copy of the complaint, redacted, if 

necessary, in accordance with the 

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

seq., and other applicable 

confidentiality laws, and will also notify 

the respondent of its 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 Consumer 

Product Safety Commission. 

(b) Within 20 days of receipt of the 

notice of the filing of the complaint 

provided under paragraph (a) of this 

section, the respondent may submit to 

the Assistant Secretary a written 

statement and any affidavits or 

documents substantiating its position. 

Within the same 20 days, the 

respondent may request a meeting with 

the Assistant Secretary to present its 

position. 

(c) Throughout the investigation, the 

agency will provide to the complainant 

(or the complainant’s legal counsel if 

complainant is represented by counsel) 

a copy of all of respondent’s 

submissions to the agency that are 

responsive to the complainant’s 

whistleblower complaint. Before 

providing such materials to the 

complainant, the agency will redact 

them, if necessary, in accordance with 

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

et seq., and other applicable 

confidentiality laws. 

(d) Investigations will be conducted 

in a manner that protects the 

confidentiality of any person who 

provides information on a confidential 

basis, other than the complainant, in 

accordance with part 70 of title 29 of the 

Code of Federal Regulations. 

(e)(1) A complaint of alleged violation 

will be dismissed unless the 

complainant has made a prima facie 

showing that protected activity was a 

contributing factor in the adverse action 

alleged in the complaint. 

(2) The complaint, supplemented as 

appropriate by interviews of the 

complainant, must allege the existence 

of facts and evidence to make a prima 

facie showing as follows: 

(i) The employee engaged in a 

protected activity; 

(ii) The respondent knew or 

suspected, actually or constructively, 

that the employee engaged in the 

protected activity; 

(iii) The employee suffered an adverse 

action; and 

(iv) The circumstances were sufficient 

to raise the inference that the protected 

activity was a contributing factor in the 

adverse action. 

(3) For purposes of determining 

whether to investigate, the complainant 

will be considered to have met the 

required burden if the complaint on its 

face, supplemented as appropriate 

through interviews of the complainant, 

alleges the existence of facts and either 

direct or circumstantial evidence to 

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

rise to an inference that the respondent 

knew or suspected that the employee 

engaged in protected activity and that 

the protected activity was a contributing 

factor in the adverse action. The burden 

may be satisfied, for example, if the 

complaint 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 


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same adverse action in the absence of 

the complainant’s protected activity. 

(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 § 1983.105, 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 CPSIA 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 will present this evidence 

within 10 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. 

§ 1983.105 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 or not there is reasonable cause 

to believe that the respondent has 

retaliated against the complainant in 

violation of CPSIA. 

(1) If the Assistant Secretary 

concludes that there is reasonable cause 

to believe that a violation has occurred, 

he or she will accompany the findings 

with a preliminary order providing 

relief to the complainant. The 

preliminary order will include, where 

appropriate, a requirement that the 

respondent abate the violation; 

reinstatement of the complainant to his 

or her former position, together with the 

compensation (including back pay), 

terms, conditions and privileges of the 

complainant’s employment; payment of 

compensatory damages, including, at 

the request of the complainant, the 

aggregate amount of all costs and 

expenses (including attorney’s and 

expert witness fees) reasonably 

incurred. 

(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 the respondent’s legal 

counsel if the respondent is represented 

by counsel). The findings and, where 

appropriate, the preliminary order will 

inform the parties of the right to object 

to the findings and/or order and to 

request a hearing, and of the right of the 

respondent to request attorney’s fees not 

exceeding $1,000 from the ALJ, 

regardless of whether the respondent 

has filed objections, if the complaint 

was frivolous or brought in bad faith. 

The findings and, where appropriate, 

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 

original 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 a 

request for hearing has been timely filed 

as provided at § 1983.106. However, the 

portion of any preliminary order 

requiring reinstatement will be effective 

immediately upon the respondent’s 

receipt of the findings and the 

preliminary order, regardless of any 

objections to the findings and the order. 

Subpart B—Litigation 

§ 1983.106 Objections to the findings and 

the preliminary order and request for a 

hearing. 

(a) Any party who desires review, 

including judicial review, of the 

findings and preliminary order, or a 

respondent alleging that the complaint 

was frivolous or brought in bad faith 

who seeks an award of attorney’s fees 

under CPSIA, 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 § 1983.105(b). The objections, request 

for a hearing, and/or request for 

attorney’s fees must be in writing and 

state whether the objections are to the 

findings, the preliminary order, and/or 

whether there should be an award of 

attorney’s fees. The date of the 

postmark, facsimile transmittal, or 

e-mail communication is considered the 

date of filing; if the objection is filed in 

person, by hand delivery or other 

means, the objection is filed upon 

receipt. Objections must be filed with 

the Chief Administrative Law Judge, 

U.S. Department of Labor, Washington, 

DC 20001, and copies of the objections 

must be mailed at the same time to the 

other parties of record, the OSHA 

official who issued the findings and 

order, the Assistant Secretary, and the 

Associate Solicitor, Division of Fair 

Labor Standards, U.S. Department of 

Labor. 

(b) If a timely objection is filed, all 

provisions of the preliminary order will 

be stayed, except for the portion 

requiring preliminary reinstatement, 

which shall 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 Assistant 

Secretary’s preliminary order of 

reinstatement. If no timely objection is 

filed with respect to either the findings 

or the preliminary order, the findings 

and/or the preliminary order shall 

become the final decision of the 

Secretary, not subject to judicial review. 

§ 1983.107 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 a judge who will 

notify the parties, by certified mail, of 

the day, time, and place of hearing. The 

hearing is to commence expeditiously, 

except upon a showing of good cause or 

unless otherwise agreed to by the 

parties. Hearings will be conducted de 

novo, on the record. 

(c) If both the complainant and the 

respondent object to the findings and/or 

order, the objections will be 


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consolidated and a single hearing will 

be conducted. 

§ 1983.108 Role of Federal agencies. 

(a)(1) The complainant and the 

respondent will be parties in every 

proceeding. At the Assistant Secretary’s 

discretion, the Assistant Secretary may 

participate as a party or as amicus 

curiae at any time at any stage of the 

proceedings. This right to participate 

includes, but is not limited to, the right 

to petition for review of a decision of an 

administrative law judge, including a 

decision approving or rejecting a 

settlement agreement between the 

complainant and the respondent. 

(2) Copies of documents in all cases, 

whether or not the Assistant Secretary is 

participating in the proceeding, must be 

sent to the Assistant Secretary, 

Occupational Safety and Health 

Administration, and to the Associate 

Solicitor, Division of Fair Labor 

Standards, U.S. Department of Labor, as 

well as other parties. 

(b) The Consumer Product Safety 

Commission, if interested in a 

proceeding, may participate as amicus 

curiae at any time in the proceeding, at 

the agency’s discretion. At the request of 

the Commission, copies of all pleadings 

in a case must be sent to the 

Commission, whether or not it is 

participating in the proceeding. 

§ 1983.109 Decision and orders of the 

administrative law judge. 

(a) The decision of the administrative 

law judge will contain appropriate 

findings, conclusions, and an order 

pertaining to the remedies provided in 

paragraph (d) of this section, as 

appropriate. A determination that a 

violation has occurred may be made 

only if the complainant has 

demonstrated by a preponderance of the 

evidence that protected activity was a 

contributing factor in the adverse action 

alleged in the complaint. 

(b) If the complainant has satisfied the 

burden set forth in the prior paragraph, 

relief may not be ordered if the 

respondent demonstrates by clear and 

convincing evidence that it would have 

taken the same adverse action in the 

absence of any protected behavior. 

(c) Neither the Assistant Secretary’s 

determination to dismiss a complaint 

without completing an investigation 

pursuant to § 1983.104(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 will direct the respondent to take 

appropriate affirmative action to abate 

the violation, including, where 

appropriate, reinstatement of the 

complainant to that person’s former 

position, together with the 

compensation (including back pay), 

terms, conditions, and privileges of that 

employment, and compensatory 

damages. At the request of the 

complainant, the ALJ shall assess 

against the respondent all costs and 

expenses (including attorney’s and 

expert witness fees) reasonably 

incurred. 

(2) If the ALJ determines that the 

respondent has not violated the law, an 

order will be issued denying the 

complaint. If, upon the request of the 

respondent, the ALJ determines that a 

complaint was frivolous or was brought 

in bad faith, the judge may award to the 

respondent a reasonable attorney’s fee, 

not exceeding $1,000. 

(e) The decision will be served upon 

all parties to the proceeding, the 

Assistant Secretary, and the Associate 

Solicitor, Division of Fair Labor 

Standards. 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. All other portions of the 

judge’s order will be effective 10 

business days after the date of the 

decision unless a timely petition for 

review has been filed with the ARB. 

§ 1983.110 Decision and orders of the 

Administrative Review Board. 

(a) Any party desiring to seek review, 

including judicial review, of a decision 

of the ALJ, or a respondent alleging that 

the complaint was frivolous or brought 

in bad faith who seeks an award of 

attorney’s fees, must file a written 

petition for review with the 

Administrative Review Board, U.S. 

Department of Labor, which has been 

delegated the authority to act for the 

Secretary and issue final decisions 

under this part. The decision of the ALJ 

will become the final order of the 

Secretary unless, pursuant to this 

section, a petition for review is timely 

filed with the ARB and the ARB accepts 

the petition for review. The petition for 

review must specifically identify the 

legal conclusions or orders to which 

exception is taken. Any exception not 

specifically urged ordinarily will be 

deemed to have been waived by the 

parties. A petition must be filed within 

10 business days of the date of the 

decision of the ALJ. The date of the 

postmark, facsimile transmittal, or 

e-mail communication will be 

considered to be the date of filing; if the 

petition is filed in person, by hand 

delivery or other means, the petition is 

considered filed upon receipt. The 

petition must be served on all parties 

and on the Chief Administrative Law 

Judge at the time it is filed with the 

ARB. Copies of the petition for review 

and all briefs must be served on the 

Assistant Secretary, Occupational Safety 

and Health Administration, and on the 

Associate Solicitor, Division of Fair 

Labor Standards, U.S. Department of 

Labor. 

(b) If a timely petition for review is 

filed pursuant to paragraph (a) of this 

section, the decision of the ALJ will 

become the final order of the Secretary 

unless the ARB, within 30 days of the 

filing of the petition, issues an order 

notifying the parties that the case has 

been accepted for review. 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 a preliminary 

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 10 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. The 

ARB’s final decision will be served 

upon all parties and the Chief 

Administrative Law Judge by mail. The 

final decision will also be served on the 

Assistant Secretary, Occupational Safety 

and Health Administration, and on the 

Associate Solicitor, Division of Fair 

Labor Standards, U.S. Department of 

Labor, even if the Assistant Secretary is 

not a party. 

(d) If the ARB concludes that the 

respondent has violated the law, the 

final order will order the respondent to 

take appropriate affirmative action to 

abate the violation, including 


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Federal Register / Vol. 75, No. 168 / Tuesday, August 31, 2010 / Rules and Regulations 53543 

reinstatement of the complainant to that 

person’s former position, together with 

the compensation (including back pay 

and interest), terms, conditions, and 

privileges of employment, and 

compensatory damages. At the request 

of the complainant, the ARB will assess 

against the respondent all costs and 

expenses (including attorney’s and 

expert witness fees) reasonably 

incurred. 

(e) If the ARB determines that the 

respondent has not violated the law, an 

order will be issued denying the 

complaint. If, upon the request of the 

respondent, the ARB determines that a 

complaint was frivolous or was brought 

in bad faith, the ARB may award to the 

respondent a reasonable attorney’s fee, 

not exceeding $1,000. 

Subpart C—Miscellaneous Provisions 

§ 1983.111 Withdrawal of 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 

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. A 

complainant may not withdraw his or 

her complaint after the filing of 

objections to the Assistant Secretary’s 

findings and/or preliminary order. 

(b) The Assistant Secretary may 

withdraw his or her findings and/or 

preliminary order at any time before the 

expiration of the 30-day objection 

period described in § 1983.106, 

provided that no objection yet has been 

filed, and substitute new findings and/ 

or a preliminary order. The date of the 

receipt of the substituted findings or 

order will begin a new 30-day objection 

period. 

(c) At any time before the Assistant 

Secretary’s findings and/or order 

become final, a party may withdraw its 

objections to the Assistant Secretary’s 

findings and/or order by filing a written 

withdrawal with the ALJ. If the case is 

on review with the ARB, a party may 

withdraw its petition for review of an 

ALJ’s decision at any time before that 

decision becomes final by filing a 

written withdrawal with the ARB. The 

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

determine whether to approve the 

withdrawal of the objections or the 

petition for review. If the ALJ approves 

a request to withdraw objections to the 

Assistant Secretary’s findings or order, 

and there are no other pending 

objections, the Assistant Secretary’s 

findings and order will become the final 

order of the Secretary. If the ARB 

approves a request to withdraw a 

petition for review of an ALJ decision, 

and there are no other pending petitions 

for review of that decision, the ALJ’s 

decision will become the final order of 

the Secretary. If objections or a petition 

to 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 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 judge, 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. 

(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 § 1983.113. 

§ 1983.112 Judicial review. 

(a) Within 60 days after the issuance 

of a final order under §§ 1983.109 and 

1983.110, any person adversely affected 

or aggrieved by the order may file a 

petition for review of the order in the 

United States Court of Appeals for the 

circuit in which the violation allegedly 

occurred or the circuit in which the 

complainant resided on the date of the 

violation. 

(b) A final order of the ARB is not 

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 local rules of the court. 

§ 1983.113 Judicial enforcement. 

Whenever any person has failed to 

comply with a preliminary order, 

including one ordering reinstatement, or 

a final order, including one approving a 

settlement agreement, issued under the 

CPSIA, the Secretary or a person on 

whose behalf the order was issued may 

file a civil action seeking enforcement of 

the order in the United States district 

court for the district in which the 

violation was found to have occurred. In 

such civil actions, the district court will 

have jurisdiction to grant all appropriate 

relief, including, but not limited to, 

injunctive relief and compensatory 

damages, including: 

(a) Reinstatement with the same 

seniority status that the employee 

would have had, but for the discharge 

or retaliation; 

(b) The amount of back pay, with 

interest; and 

(c) Compensation for any special 

damages sustained as a result of the 

discharge or retaliation, including 

litigation costs, expert witness fees, and 

reasonable attorney’s fees. 

§ 1983.114 District court jurisdiction of 

retaliation complaints. 

(a) If there has been no final decision 

of the Secretary within 210 days of the 

filing of the complaint, or within 90 

days after receiving a written 

determination, 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 on where the proceeding is 

pending, a notice of his or her intention 

to file such a complaint. The notice 

must be served upon all parties to the 

proceeding. A copy of the notice must 

be served on the Regional 

Administrator, the Assistant Secretary, 

Occupational Safety and Health 

Administration, and on the Associate 

Solicitor, Division of Fair Labor 

Standards, U.S. Department of Labor. 

The complainant shall file and serve a 

copy of the district court complaint on 

the above as soon as possible after the 

district court complaint has been filed 

with the court. 

§ 1983.115 Special circumstances; waiver 

of rules. 

In special circumstances not 

contemplated by the provisions of these 


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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 


emcdonald on DSK2BSOYB1PROD with RULES_2