53522 Federal Register / Vol. 75, No. 168 / Tuesday, August 31, 2010 / Rules and Regulations 

DEPARTMENT OF LABOR 

Occupational Safety and Health 

Administration 

29 CFR Part 1982 

[Docket Number OSHA–2008–0027] 

RIN 1218–AC36 

Procedures for the Handling of 

Retaliation Complaints Under the 

National Transit Systems Security Act 

and the Federal Railroad Safety Act 

AGENCY: Occupational Safety and Health 

Administration, Labor. 

ACTION: Interim Final Rule; request for 

comments. 

SUMMARY: This document provides the 

interim final text of regulations 

governing the employee protection 

(‘‘whistleblower’’) provisions of the 

National Transit Systems Security Act 

(‘‘NTSSA’’), enacted as Section 1413 of 

the Implementing Recommendations of 

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

Commission Act’’), and the Federal 

Railroad Safety Act (‘‘FRSA’’), as 

amended by Section 1521 of the 9/11 

Commission Act. The 9/11 Commission 

Act was enacted into law on August 3, 

2007. FRSA was amended further by 

Public Law 110–432, 122 Stat. 4892, 

Div. A, Title IV, section 419 (Oct. 16, 

2008). This rule establishes procedures 

and time frames for the handling of 

retaliation complaints under NTSSA 

and FRSA, 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 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–2008–0027, 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–2008–0027). 

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 

NTSSA, enacted as Section 1413 of 

the 9/11 Commission Act, created 

employee protection provisions for 

public transportation agency employees 

who engage in whistleblowing activities 

pertaining to public transportation 

safety or security (or, in circumstances 

covered by the statutes, employees 

perceived to have engaged or to be about 

to engage in protected activity). Section 

1521 of the 9/11 Commission Act, 

which amended FRSA, establishes 

employee protection provisions for 

railroad carrier employees who engage 

in whistleblowing activities pertaining 

to railroad safety or security (or, in 

circumstances covered by the statutes, 

employees perceived to have engaged or 

to be about to engage in protected 

activity). The amendments to FRSA also 

establish whistleblower provisions for 

railroad carrier employees who are 

retaliated against for requesting medical 

or first aid treatment, or for following 

orders or a treatment plan of a treating 

physician, 49 U.S.C. 20109(c)(2). In 

addition, the FRSA amendments 

prohibit railroad carriers and other 

covered persons from denying, delaying, 

or interfering with the medical or first 

aid treatment of an employee, and 

require that an injured employee be 

promptly transported to the nearest 

hospital upon request, 49 U.S.C. 

20109(c)(1). Section (c)(1) is not a 

whistleblower provision because it 

prohibits certain conduct by railroad 

carriers and other covered persons 

irrespective of any protected activity by 

an employee. The procedures 

established in this interim final rule 

apply only to the remaining provisions 

of 49 U.S.C. 20109. 

The whistleblower provisions of 

NTSSA and FRSA each provide that an 

employee may not seek protection 

under those provisions and another 

provision of law for the same allegedly 

unlawful act of the public transportation 

agency (under NTSSA) or railroad 

carrier (under FRSA). 6 U.S.C. 1142(e); 

49 U.S.C. 20109(f). The whistleblower 

provisions of NTSSA and FRSA also 

provide that nothing in those provisions 

preempts or diminishes any other 

safeguards against discrimination, 

demotion, discharge, suspension, 

threats, harassment, reprimand, 

retaliation, or any other manner of 

discrimination provided by Federal or 

State law. 6 U.S.C. 1142(f); 49 U.S.C. 

20109(g). The whistleblower provisions 

of NTSSA and FRSA further provide 

that nothing in those provisions shall be 

construed to diminish the rights, 

privileges, or remedies of any employee 

under any Federal or State law or under 

any collective bargaining agreement and 

that the rights and remedies in the 

whistleblower provisions of NTSSA or 

FRSA may not be waived by any 

agreement, policy, form, or condition of 

employment. 6 U.S.C. 1142(g); 49 U.S.C. 

20109(h). 

II. Summary of Statutory Procedures 

Prior to the amendment of FRSA, 

whistleblower retaliation complaints by 

railroad carrier employees were subject 

to mandatory dispute resolution 

pursuant to the Railway Labor Act (45 

U.S.C. 151 et seq.), which included 


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whistleblower proceedings before the 

National Railroad Adjustment Board, as 

well as other dispute resolution 

procedures. The amendment changes 

the procedures for resolution of such 

complaints and transfers the authority 

to implement the whistleblower 

provisions for railroad carrier 

employees to the Secretary of Labor 

(‘‘the Secretary’’). 

The procedures for filing and 

adjudicating whistleblower complaints 

under NTSSA and FRSA, as amended, 

are generally the same. NTSSA and 

FRSA whistleblower provisions include 

procedures that allow a covered 

employee to file, within 180 days of the 

alleged retaliation, a complaint with 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 NTSSA or FRSA (‘‘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 which includes all 

relief necessary to make the employee 

whole, including, where appropriate: A 

requirement that the respondent abate 

the violation; reinstatement with the 

same seniority status that the employee 

would have had but for the retaliation; 

back pay with interest; and 

compensation for any special damages 

sustained as a result of the retaliation, 

including litigation costs, expert witness 

fees, and reasonable attorney’s fees. The 

preliminary order may also require 

payment of punitive damages up to 

$250,000. 

The complainant and the respondent 

then have 30 days after receipt of the 

Secretary’s notification in which to file 

objections to the findings and/or 

preliminary order and request a hearing 

on the record. The filing of objections 

under NTSSA or FRSA 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, NTSSA and FRSA 

require the hearing to be conducted 

‘‘expeditiously.’’ The Secretary then has 

120 days after the conclusion of a 

hearing in which to issue a final order, 

which may provide appropriate relief or 

deny the complaint. Until the 

Secretary’s final order is issued, the 

Secretary, the complainant, and the 

respondent may enter into a settlement 

agreement which terminates the 

proceeding. Where the Secretary has 

determined that a violation has 

occurred, the Secretary, where 

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. 

Under NTSSA, the Secretary also may 

award a prevailing employer a 

reasonable attorney’s fee, not exceeding 

$1,000, if she 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. 

NTSSA and FRSA permit 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, 

and there is no showing that the delay 

is due to the bad faith of the 

complainant. 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 NTSSA and 

FRSA. Responsibility for receiving and 

investigating complaints under NTSSA 

and FRSA 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 ALJs 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 1982.100 Purpose and Scope 

This section describes the purpose of 

the regulations implementing NTSSA 

and FRSA and provides an overview of 

the procedures covered by these 

regulations. 

Section 1982.101 Definitions 

This section includes general 

definitions applicable to the employee 

protection provisions of NTSSA and 

FRSA. 

The definition section of NTSSA, 6 

U.S.C. 1131(5), defines ‘‘public 

transportation agency’’ as ‘‘a publicly 

owned operator of public transportation 

eligible to receive Federal assistance 

under chapter 53 of title 49.’’ Chapter 53 

of title 49, 49 U.S.C. 5302(a)(10), defines 

‘‘public transportation’’ as 

‘‘transportation by a conveyance that 

provides regular and continuous general 

or special transportation to the public, 

but does not include school buses, 

charter, or intercity bus transportation 

or intercity passenger rail transportation 

provided by the entity described in 

chapter 243 (or a successor to such 

entity).’’ Chapter 243, 49 U.S.C. 24301, 

governs Amtrak. 

The definition section of FRSA, 49 

U.S.C. 20102(2), defines ‘‘railroad 

carrier’’ as ‘‘a person providing railroad 

transportation.’’ The definition section 

of FRSA, 49 U.S.C. 20102(1), defines 

‘‘railroad’’ as ‘‘any form of nonhighway 

ground transportation that runs on rails 

or electromagnetic guideways, including 

commuter or other short-haul railroad 

passenger service in a metropolitan or 

suburban area and commuter railroad 

service that was operated by the 

Consolidated Rail Corporation on 

January 1, 1979; and high speed ground 

transportation systems that connect 

metropolitan areas, without regard to 

whether those systems use new 

technologies not associated with 

traditional railroads; but does not 

include rapid transit operations in an 

urban area that are not connected to the 


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general railroad system of 

transportation.’’ 

Section 1982.102 Obligations and 

Prohibited Acts 

This section describes the activities 

that are protected under NTSSA and 

FRSA, and the conduct that is 

prohibited in response to any protected 

activities. 

Section 1982.103 Filing of Retaliation 

Complaints 

This section explains the 

requirements for filing a retaliation 

complaint under NTSSA and FRSA. 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 

NTSSA or FRSA 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 1982.104 Investigation. 

This section describes the procedures 

that apply to the investigation of NTSSA 

and FRSA complaints. Paragraph (a) of 

this section outlines the procedures for 

notifying the parties and appropriate 

Federal agencies 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 NTSSA’s and 

FRSA’s statutory burdens of proof. 

FRSA adopts the burdens of proof 

provided under the Wendell H. Ford 

Aviation Investment and Reform Act for 

the 21st Century (‘‘AIR21’’), 49 U.S.C. 

42121, which are the same as those 

provided under NTSSA. Therefore, this 

paragraph generally conforms to the 

similar provision in the regulations 

implementing AIR21. 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. 

All these statutes require that a 

complainant make an initial prima facie 

showing that the complainant engaged 

in protected activity that 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, 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 statutes, 

that the respondent perceived the 

employee to have engaged or to be about 

to engage 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 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 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 whistleblower 

provisions of Section 211 of the Energy 

Reorganization Act of 1974, as 

amended, (‘‘ERA’’), 42 U.S.C. 5851, 

which is the same as that under AIR21 

and the Surface Transportation 

Assistance Act of 1982 (‘‘STAA’’), 49 

U.S.C. 31105, 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 

Secretary must dismiss a complaint 

under NTSSA or FRSA 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. 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, at *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)). 

The NTSSA burdens of proof, and the 

AIR21 burdens of proof which the FRSA 

now incorporates, do not address the 

evidentiary standard that applies to a 

complainant’s proof that protected 

activity was a contributing factor in an 

adverse action. NTSSA and AIR21 

simply provide 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 6 U.S.C. 

1142(c)(2)(B)(iii) and 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 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 


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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 the 

‘‘preponderance of the evidence’’ 

standard. 

Section 1982.105 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 under 

NTSSA to request attorney’s fees 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 findings and 

order of the Secretary. If objections are 

timely filed, any order of preliminary 

reinstatement will take effect, but the 

remaining provisions of the order will 

not take effect until administrative 

proceedings are completed. 

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 NTSSA or FRSA. 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 1982.106 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 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, at *7 (ARB Oct. 

31, 2005). 

Section 1982.107 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 1982.108 Role of Federal 

Agencies 

Under NTSSA and FRSA, it is not 

expected that the Secretary ordinarily 

will appear as a party in the proceeding. 

The Secretary has found that in most 

whistleblower cases, parties have been 

ably represented and the public interest 

has not required the Department’s 

participation. Nevertheless, the 

Assistant Secretary, at his or her 

discretion, may participate as a party or 

amicus curiae at any time in the 

administrative proceedings. For 

example, the Assistant Secretary may 

exercise his or her discretion to 

prosecute the case in the administrative 

proceeding before an ALJ; petition for 

review of a decision of an ALJ, 

including a decision based on a 

settlement agreement between the 

complainant and the respondent, 

regardless of whether the Assistant 

Secretary participated before the ALJ; or 

participate as amicus curiae before the 

ALJ or in the ARB proceeding. Although 

we anticipate that ordinarily the 

Assistant Secretary will not participate, 

the Assistant Secretary may choose to 

do so in appropriate cases, such as cases 

involving important or novel legal 

issues, large numbers of employees, 

alleged violations which appear 

egregious, or where the interests of 

justice might require participation by 

the Assistant Secretary. The Department 

of Transportation and the Department of 

Homeland Security, at those agencies’ 

discretion, also may participate as 

amicus curiae at any time in the 

proceedings. 

Section 1982.109 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 NTSSA or FRSA. 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 

1982.104 is not subject to review. Thus, 

paragraph (c) of section 1982.109 

clarifies that the Assistant Secretary’s 

determinations on whether to proceed 

with an investigation under NTSSA or 

FRSA and whether to make particular 

investigative findings under either of 

the statutes subject to this part are 

discretionary decisions not subject to 

review by the ALJ. The ALJ hears cases 

de novo and, therefore, as a general 

matter, may not remand cases to the 


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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 1982.104. 

Section 1982.110 Decision and Orders 

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 

will be considered to be 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 NTSSA or 

FRSA, 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 NTSSA or FRSA 

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 1982.111 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, the withdrawal of objections 

to findings and/or orders, and the 

withdrawal of petitions for review. It 

also provides for approval of settlements 

at the investigative and adjudicative 

stages of the case. 

Section 1982.112 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 1982.113 Judicial Enforcement 

This section describes the Secretary’s 

power under NTSSA and FRSA to 

obtain judicial enforcement of orders 

and the terms of a settlement agreement. 

FRSA expressly authorizes district 

courts to enforce orders, including 

preliminary orders of reinstatement, 

issued by the Secretary under 49 U.S.C. 

20109(d)(2)(A) (adopting the rules and 

procedures set forth in AIR21, 49 U.S.C. 

42121(b)). See 49 U.S.C. 

20109(d)(2)(A)(iii) (‘‘If a person fails to 

comply with an order issued by the 

Secretary of Labor pursuant to the 

procedures in section 42121(b), the 

Secretary of Labor may bring a civil 

action to enforce the order in the district 

court of the United States for the 

judicial district in which the violation 

occurred, as set forth in 42121.’’). FRSA 

permits the Secretary to bring an action 

to obtain such enforcement. See 49 

U.S.C. 20109(d)(2)(A)(iii). However, 

there is no provision in FRSA 

permitting the person on whose behalf 

the order was issued to bring such an 

action. 

NTSSA gives district courts authority 

to enforce orders, including preliminary 

reinstatement orders, issued by the 

Secretary. Specifically, reinstatement 

orders issued under subsection (c)(3) are 

immediately enforceable in district 

court under 6 U.S.C. 1142(c)(5) and (6). 

Subsections 1142(c)(3)(B)(ii) and 

(d)(2)(A) provide that the Secretary shall 

order the person who has committed a 

violation to reinstate the complainant to 

his or her former position. Subsection 

1142(c)(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 (c)(3)(B), 

which includes reinstatement. See 

6 U.S.C. 1142(c)(3)(B)(ii) and (d)(2)(A). 

Subsection (c)(2)(A) also declares that 

the subsection (c)(3)(B)’s relief of 

reinstatement contained in a 

preliminary order is not stayed upon the 

filing of objections. 6 U.S.C. 

1142(c)(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 (c)(3)(B) include preliminary 

orders that contain the relief of 

reinstatement prescribed by subsection 

(c)(3)(B) and (d)(2)(A). 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)). NTSSA also 

permits the person on whose behalf the 

order was issued under NTSSA to 

obtain judicial enforcement of orders 

and the terms of a settlement agreement. 

Section 1982.114 District Court 

Jurisdiction of Retaliation Complaints 

This section sets forth NTSSA’s and 

FRSA’s respective 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 and there is no delay due to 

the complainant’s bad faith. It 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. 


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Section 1982.115 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 NTSSA 

or FRSA 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 is 

not required for these regulations, 

which provide 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 Department 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. 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 

NTSSA and FRSA whistleblower 

provisions are new or substantially new 

programs. 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 or practice, it is not a 

‘‘rule’’ within the meaning of the Small 

Business Regulatory Enforcement 

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

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

Congressional review. Finally, this rule 

does not have ‘‘federalism implications.’’ 

The rule does not have ‘‘substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government’’ and therefore is 

not subject to Executive Order 13132 

(Federalism). 

VII. Regulatory Flexibility Analysis 

The Department has determined that 

the regulation will not have a significant 

economic impact on a substantial 

number of small entities. The regulation 

simply implements procedures 

necessitated by enactment of NTSSA 

and amendments of FRSA. 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 1982 

Administrative practice and 

procedure, Employment, Homeland 

security, Investigations, Mass 

transportation, Reporting and 

recordkeeping requirements, Public 

transportation, Railroads, Safety, 

Transportation, Whistleblowing. 

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 1982 is added 

to read as follows: 

PART 1982—PROCEDURES FOR THE 

HANDLING OF RETALIATION 

COMPLAINTS UNDER THE NATIONAL 

TRANSIT SYSTEMS SECURITY ACT 

OF 2007, ENACTED AS SECTION 1413 

OF THE IMPLEMENTING 

RECOMMENDATIONS OF THE 9/11 

COMMISSION ACT OF 2007, AND THE 

FEDERAL RAILROAD SAFETY ACT, 

AS AMENDED BY SECTION 1521 OF 

THE IMPLEMENTING 

RECOMMENDATIONS OF THE 9/11 

COMMISSION ACT OF 2007 

Subpart A—Complaints, Investigations, 

Findings and Preliminary Orders 

Sec. 

1982.100 Purpose and scope. 

1982.101 Definitions. 

1982.102 Obligations and prohibited acts. 

1982.103 Filing of retaliation complaints. 

1982.104 Investigation. 

1982.105 Issuance of findings and 

preliminary orders. 

Subpart B—Litigation 

1982.106 Objections to the findings and the 

preliminary order and request for a 

hearing. 

1982.107 Hearings. 

1982.108 Role of Federal agencies. 

1982.109 Decision and orders of the 

administrative law judge. 

1982.110 Decision and orders of the 

Administrative Review Board. 

Subpart C—Miscellaneous Provisions 

1982.111 Withdrawal of complaints, 

objections, and petitions for review; 

settlement. 

1982.112 Judicial review. 

1982.113 Judicial enforcement. 

1982.114 District court jurisdiction of 

retaliation complaints. 

1982.115 Special circumstances; waiver of 

rules. 

Authority: 6 U.S.C. 1142 and 49 U.S.C. 

20109; 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 

§ 1982.100 Purpose and scope. 

(a) This part implements procedures 

of NTSSA, 6 U.S.C. 1142, and FRSA, 49 

U.S.C. 20109, as amended. NTSSA 

provides for employee protection from 

retaliation because the employee has 

engaged in protected activity pertaining 

to public transportation safety or 


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security (or, in circumstances covered 

by the statutes, the employee is 

perceived to have engaged or to be about 

to engage in protected activity). FRSA 

provides for employee protection from 

retaliation because the employee has 

engaged in protected activity pertaining 

to railroad safety or security (or, in 

circumstances covered by the statutes, 

the employee is perceived to have 

engaged or to be about to engage in 

protected activity), has requested 

medical or first aid treatment, or has 

followed orders or a treatment plan of 

a treating physician. 

(b) This part establishes procedures 

pursuant to NTSSA and FRSA 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 NTSSA 

or FRSA, 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. 

§ 1982.101 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 NTSSA or 

FRSA. 

(b) Business days means days other 

than Saturdays, Sundays, and Federal 

holidays. 

(c) Complainant means the employee 

who filed a NTSSA or FRSA complaint 

or on whose behalf a complaint was 

filed. 

(d) 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 public transportation 

agency or a railroad carrier, or a 

contractor or subcontractor of a public 

transportation agency or a railroad 

carrier. 

(e) FRSA means Section 1521 of the 

Implementing Recommendations of the 

9/11 Commission Act of 2007, Public 

Law 110–053, August 3, 2007, as further 

amended by Public Law 110–432, 

October, 16, 2008, codified at 49 U.S.C. 

20109. 

(f) NTSSA means Section 1413 of the 

Implementing Recommendations of the 

9/11 Commission Act of 2007, Public 

Law 110–053, August 3, 2007, codified 

at 6 U.S.C. 1142. 

(g) OSHA means the Occupational 

Safety and Health Administration of the 

United States Department of Labor. 

(h) Public transportation means 

transportation by a conveyance that 

provides regular and continuous general 

or special transportation to the public, 

but does not include school buses, 

charter, or intercity bus transportation 

or intercity passenger rail transportation 

provided by Amtrak. 

(i) Public transportation agency 

means a publicly owned operator of 

public transportation eligible to receive 

Federal assistance under 49 U.S.C. 

chapter 53. 

(j) Railroad means any form of 

nonhighway ground transportation that 

runs on rails or electromagnetic 

guideways, including commuter or 

other short-haul railroad passenger 

service in a metropolitan or suburban 

area and commuter railroad service that 

was operated by the Consolidated Rail 

Corporation on January 1, 1979 and high 

speed ground transportation systems 

that connect metropolitan areas, without 

regard to whether those systems use 

new technologies not associated with 

traditional railroads, but does not 

include rapid transit operations in an 

urban area that are not connected to the 

general railroad system of 

transportation. 

(k) Railroad carrier means a person 

providing railroad transportation. 

(l) Respondent means the person 

alleged to have violated NTSSA or 

FRSA. 

(m) Secretary means the Secretary of 

Labor or person to whom authority 

under NTSSA or FRSA has been 

delegated. 

(n) 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. 

§ 1982.102 Obligations and prohibited 

acts. 

(a) National Transit Systems Security 

Act. (1) A public transportation agency, 

contractor, or subcontractor of such 

agency, or officer or employee of such 

agency shall not discharge, demote, 

suspend, reprimand, or in any other 

way discriminate against, including but 

not limited to intimidating, threatening, 

restraining, coercing, blacklisting, or 

disciplining an employee if such 

discrimination is due, in whole or in 

part, to the employee’s lawful, good 

faith act done, or perceived by the 

employer to have been done or about to 

be done— 

(i) To provide information, directly 

cause information to be provided, or 

otherwise directly assist in any 

investigation regarding any conduct 

which the employee reasonably believes 

constitutes a violation of any Federal 

law, rule, or regulation relating to public 

transportation safety or security, or 

fraud, waste, or abuse of Federal grants 

or other public funds intended to be 

used for public transportation safety or 

security, if the information or assistance 

is provided to, or an investigation 

stemming from the provided 

information is conducted by— 

(A) A Federal, State or local 

regulatory or law enforcement agency 

(including an office of the Inspector 

General under the Inspector General Act 

of 1978 (5 U.S.C. App.; Pub. L. 95–452)); 

(B) Any Member of Congress, any 

Committee of Congress, or the 

Government Accountability Office; or 

(C) A person with supervisory 

authority over the employee or such 

other person who has the authority to 

investigate, discover, or terminate the 

misconduct; 

(ii) To refuse to violate or assist in the 

violation of any Federal law, rule, or 

regulation relating to public 

transportation safety or security; 

(iii) To file a complaint or directly 

cause to be brought a proceeding related 

to the enforcement of this section or to 

testify in that proceeding; 

(iv) 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 

(v) 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 public 

transportation. 

(2)(i) A public transportation agency, 

contractor, or subcontractor of such 

agency, or officer or employee of such 

agency shall not discharge, demote, 

suspend, reprimand, or in any other 

way discriminate against, including but 

not limited to intimidating, threatening, 

restraining, coercing, blacklisting, or 

disciplining an employee for— 

(A) Reporting a hazardous safety or 

security condition; 

(B) Refusing to work when confronted 

by a hazardous safety or security 

condition related to the performance of 

the employee’s duties, if the conditions 

described in paragraph (a)(2)(ii) of this 

section exist; or 

(C) Refusing to authorize the use of 

any safety- or security-related 

equipment, track, or structures, if the 

employee is responsible for the 

inspection or repair of the equipment, 

track, or structures, when the employee 

believes that the equipment, track, or 


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structures are in a hazardous safety or 

security condition, if the conditions 

described in paragraph (a)(2)(ii) of this 

section exist. 

(ii) A refusal is protected under 

paragraph (a)(2)(i)(B) and (C) of this 

section if— 

(A) The refusal is made in good faith 

and no reasonable alternative to the 

refusal is available to the employee; 

(B) A reasonable individual in the 

circumstances then confronting the 

employee would conclude that— 

(1) The hazardous condition presents 

an imminent danger of death or serious 

injury; and 

(2) The urgency of the situation does 

not allow sufficient time to eliminate 

the danger without such refusal; and 

(C) The employee, where possible, has 

notified the public transportation 

agency of the existence of the hazardous 

condition and the intention not to 

perform further work, or not to 

authorize the use of the hazardous 

equipment, track, or structures, unless 

the condition is corrected immediately 

or the equipment, track, or structures 

are repaired properly or replaced. 

(iii) In paragraph (a)(2)(ii) of this 

section, only paragraph (a)(2)(ii)(A) 

shall apply to security personnel, 

including transit police, employed or 

utilized by a public transportation 

agency to protect riders, equipment, 

assets, or facilities. 

(b) Federal Railroad Safety Act. (1) A 

railroad carrier engaged in interstate or 

foreign commerce, a contractor or a 

subcontractor of such a railroad carrier, 

or an officer or employee of such a 

railroad carrier, may not discharge, 

demote, suspend, reprimand, or in any 

other way discriminate against, 

including but not limited to 

intimidating, threatening, restraining, 

coercing, blacklisting, or disciplining an 

employee if such discrimination is due, 

in whole or in part, to the employee’s 

lawful, good faith act done, or perceived 

by the employer to have been done or 

about to be done— 

(i) To provide information, directly 

cause information to be provided, or 

otherwise directly assist in any 

investigation regarding any conduct 

which the employee reasonably believes 

constitutes a violation of any Federal 

law, rule, or regulation relating to 

railroad safety or security, or gross 

fraud, waste, or abuse of Federal grants 

or other public funds intended to be 

used for railroad safety or security, if the 

information or assistance is provided to 

or an investigation stemming from the 

provided information is conducted by— 

(A) A Federal, State, or local 

regulatory or law enforcement agency 

(including an office of the Inspector 

General under the Inspector General Act 

of 1978 (5 U.S.C. App.; Pub. L. 95–452)); 

(B) Any Member of Congress, any 

committee of Congress, or the 

Government Accountability Office; or 

(C) A person with supervisory 

authority over the employee or such 

other person who has the authority to 

investigate, discover, or terminate the 

misconduct; 

(ii) To refuse to violate or assist in the 

violation of any Federal law, rule, or 

regulation relating to railroad safety or 

security; 

(iii) To file a complaint, or directly 

cause to be brought a proceeding related 

to the enforcement of 49 U.S.C. part A 

of subtitle V or, as applicable to railroad 

safety or security, 49 U.S.C. chapter 51 

or 57, or to testify in that proceeding; 

(iv) To notify, or attempt to notify, the 

railroad carrier or the Secretary of 

Transportation of a work-related 

personal injury or work-related illness 

of an employee; 

(v) To cooperate with a safety or 

security investigation by the Secretary 

of Transportation, the Secretary of 

Homeland Security, or the National 

Transportation Safety Board; 

(vi) 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 railroad 

transportation; or 

(vii) To accurately report hours on 

duty pursuant to 49 U.S.C. chapter 211. 

(2)(i) A railroad carrier engaged in 

interstate or foreign commerce, or an 

officer or employee of such a railroad 

carrier, shall not discharge, demote, 

suspend, reprimand, or in any other 

way discriminate against, including but 

not limited to intimidating, threatening, 

restraining, coercing, blacklisting, or 

disciplining an employee for— 

(A) Reporting, in good faith, a 

hazardous safety or security condition; 

(B) Refusing to work when confronted 

by a hazardous safety or security 

condition related to the performance of 

the employee’s duties, if the conditions 

described in paragraph (b)(2)(ii) of this 

section exist; or 

(C) Refusing to authorize the use of 

any safety-related equipment, track, or 

structures, if the employee is 

responsible for the inspection or repair 

of the equipment, track, or structures, 

when the employee believes that the 

equipment, track, or structures are in a 

hazardous safety or security condition, 

if the conditions described in paragraph 

(b)(2)(ii) of this section exist. 

(ii) A refusal is protected under 

paragraphs (b)(2)(i)(B) and (C) of this 

section if— 

(A) The refusal is made in good faith 

and no reasonable alternative to the 

refusal is available to the employee; 

(B) A reasonable individual in the 

circumstances then confronting the 

employee would conclude that— 

(1) The hazardous condition presents 

an imminent danger of death or serious 

injury; and 

(2) The urgency of the situation does 

not allow sufficient time to eliminate 

the danger without such refusal; and 

(C) The employee, where possible, has 

notified the railroad carrier of the 

existence of the hazardous condition 

and the intention not to perform further 

work, or not to authorize the use of the 

hazardous equipment, track, or 

structures, unless the condition is 

corrected immediately or the 

equipment, track, or structures are 

repaired properly or replaced. 

(iii) In paragraph (b)(2)(ii) of this 

section, only paragraph (b)(2)(ii)(A) 

shall apply to security personnel 

employed by a railroad carrier to protect 

individuals and property transported by 

railroad. 

(3) A railroad carrier engaged in 

interstate or foreign commerce, a 

contractor or a subcontractor of such a 

railroad carrier, or an officer or 

employee of such a railroad carrier may 

not discipline, or threaten discipline to, 

an employee for requesting medical or 

first aid treatment, or for following 

orders or a treatment plan of a treating 

physician, except that— 

(i) A railroad carrier’s refusal to 

permit an employee to return to work 

following medical treatment shall not be 

considered a violation of FRSA if the 

refusal is pursuant to Federal Railroad 

Administration medical standards for 

fitness of duty or, if there are no 

pertinent Federal Railroad 

Administration standards, a carrier’s 

medical standards for fitness for duty. 

(ii) For purposes of this paragraph, the 

term ‘‘discipline’’ means to bring charges 

against a person in a disciplinary 

proceeding, suspend, terminate, place 

on probation, or make note of reprimand 

on an employee’s record. 

§ 1982.103 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 NTSSA or FRSA may file, 

or have filed by any person on the 

employee’s behalf, a complaint alleging 

such retaliation. 


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(b) Nature of filing. No particular form 

of complaint is required. A complaint 

may be filed orally or in writing. Oral 

complaints will be reduced to writing 

by OSHA. If a complainant is 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 NTSSA or 

FRSA occurs, an employee who believes 

that he or she has been retaliated against 

in violation of NTSSA or FRSA may file, 

or have filed by any person on the 

employee’s behalf, a complaint alleging 

such retaliation. The date of the 

postmark, facsimile transmittal, e-mail 

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

commercial carrier, or in-person filing at 

an OSHA office will be considered the 

date of filing. The time for filing a 

complaint may be tolled for reasons 

warranted by applicable case law. 

§ 1982.104 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 and 

paragraph (e) of § 1982.110. The 

Assistant Secretary will provide a copy 

of the unredacted complaint to the 

complainant (or to the complainant’s 

legal counsel, if complainant is 

represented by counsel), and to the 

Federal Railroad Administration, the 

Federal Transit Administration, or the 

Transportation Security Administration 

as appropriate. 

(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 (or, in circumstances 

covered by the statutes, was perceived 

to have engaged or to be about to engage 

in 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 statutes, perceived the 

employee to have engaged or to be about 

to engage in protected activity); 

(iii) The employee suffered an adverse 

action; and 

(iv) The circumstances were sufficient 

to raise the inference that the protected 

activity (or perception thereof) 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 statutes, 

perceived the employee to have engaged 

or to be about to engage in protected 

activity), and that the protected activity 

(or perception thereof) 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 

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 for 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 § 1982.105, 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 NTSSA or 

FRSA 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. 


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§ 1982.105 Issuance of findings and 

preliminary orders. 

(a) After considering all the relevant 

information collected during the 

investigation, the Assistant Secretary 

will issue, within 60 days of filing of the 

complaint, written findings as to 

whether or not there is reasonable cause 

to believe that the respondent has 

retaliated against the complainant in 

violation of NTSSA or FRSA. 

(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. It may also include 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, 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 under NTSSA to request 

attorney’s fees not exceeding $1,000 

from the administrative law judge 

(‘‘ALJ’’) regardless of whether the 

respondent has filed objections, if the 

respondent alleges that the complaint 

was frivolous or brought in bad faith, 

and will also 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 

a hearing has been timely filed as 

provided at § 1982.106. 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 

§ 1982.106 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 

up to $1,000 under NTSSA, must file 

any objections and/or a request for a 

hearing on the record within 30 days of 

receipt of the findings and preliminary 

order pursuant to paragraph (b) of 

§ 1982.105. The objections, request for a 

hearing, and/or request for attorney’s 

fees must 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 

will be considered to be the date of 

filing; if the objection is filed in person, 

by hand-delivery or other means, the 

objection is filed upon receipt. 

Objections must be filed with the Chief 

Administrative Law Judge, U.S. 

Department of Labor, Washington, DC 

20001 and copies of the objections must 

be mailed at the same time to the other 

parties of record, the OSHA official who 

issued the findings and order, 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 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 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 or preliminary order 

will become the final decision of the 

Secretary, not subject to judicial review. 

§ 1982.107 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 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. 

§ 1982.108 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 

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) 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 all other parties. 

(b) The Department of Homeland 

Security or the Department of 

Transportation, 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 interested Federal agency, copies of 

all pleadings in a case must be sent to 

the Federal agency, whether or not the 

agency is participating in the 

proceeding. 

§ 1982.109 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 be made only if the 

complainant has demonstrated by a 

preponderance of the evidence that 


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53532 Federal Register / Vol. 75, No. 168 / Tuesday, August 31, 2010 / Rules and Regulations 

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 § 1982.104(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 make 

the employee whole, including, where 

appropriate: a requirement that the 

respondent abate the violation; 

reinstatement with the same seniority 

status that the employee would have 

had but for the retaliation; back pay 

with interest; and compensation for any 

special damages sustained as a result of 

the retaliation, including litigation 

costs, expert witness fees, and 

reasonable attorney’s fees. The order 

may also include 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. If, upon the request of the 

respondent, the ALJ determines that a 

complaint filed under NTSSA was 

frivolous or was brought in bad faith, 

the ALJ 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 

ALJ’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 Administrative Review 

Board (‘‘ARB’’). 

§ 1982.110 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 under NTSSA was 

frivolous or brought in bad faith who 

seeks an award of attorney’s fees up to 

$1,000, must file a written petition for 

review with the ARB, U.S. Department 

of Labor (200 Constitution Avenue, 

NW., Washington, DC 20210), which 

has been delegated the authority to act 

for the Secretary and issue final 

decisions under this part. The decision 

of the ALJ will become the final order 

of the Secretary unless, pursuant to this 

section, a petition for review is timely 

filed with the ARB and the ARB accepts 

the petition for review. The parties 

should identify in their petitions for 

review the legal conclusions or orders to 

which they object, or the objections will 

ordinarily be deemed waived. A petition 

must be filed within 10 business days of 

the date of the decision of the ALJ. The 

date of the postmark, facsimile 

transmittal, or e-mail communication 

will be considered to be the date of 

filing; if the petition is filed in person, 

by hand-delivery or other means, the 

petition is considered filed upon 

receipt. The petition must be served on 

all parties and on the Chief 

Administrative Law Judge at the time it 

is filed with the ARB. Copies of the 

petition for review and all briefs must 

be served on the Assistant Secretary, 

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, 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, 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 

make the employee whole, including, 

where appropriate: a requirement that 

the respondent abate the violation; 

reinstatement with the same seniority 

status that the employee would have 

had but for the retaliation; back pay 

with interest; and compensation for any 

special damages sustained as a result of 

the retaliation, including litigation 

costs, expert witness fees, and 

reasonable attorney’s fees. The order 

also may include 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. If, upon the request of the 

respondent, the ARB determines that a 

complaint under NTSSA 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 

§ 1982.111 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 under NTSSA or FRSA 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 


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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