Ifr, 29 Cfr 1978.103

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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
Occupational Safety and Health
Administration, Labor.
ACTION: Interim final rule; request for
comments.
AGENCY:

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

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SUMMARY:

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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

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improve OSHA’s procedures for
handling STAA whistleblower claims.
To the extent possible within the
bounds of applicable statutory language,
these revised regulations are designed to
be consistent with the procedures
applied to claims under other
whistleblower statutes administered by
OSHA, including the ERA, the Wendell
H. Ford Aviation Investment and
Reform Act for the 21st Century
(AIR21), 49 U.S.C. 42121, and Title VIII
of the Sarbanes-Oxley Act of 2002
(SOX), 18 U.S.C. 1514A. Responsibility
for receiving and investigating
complaints under 49 U.S.C. 31105 has
been delegated to the Assistant
Secretary of Labor for Occupational
Safety and Health (Assistant Secretary)
(Secretary’s Order 5–2007, 72 FR 31160,
June 5, 2007). Hearings on
determinations by the Assistant
Secretary are conducted by the Office of
Administrative Law Judges, and appeals
from decisions by administrative law
judges (ALJs) are decided by the
Administrative Review Board (ARB)
(Secretary’s Order 1–2010 (Jan. 15,
2010), 75 FR 3924–01 (Jan. 25, 2010)).
II. Summary of Statutory Changes to
STAA Whistleblower Provisions
The 9/11 Commission Act amended
49 U.S.C. 31105, and the related
definitions provision at 49 U.S.C. 31101,
by making the changes described below.
Expansion of Protected Activity
Before passage of the 9/11
Commission Act, STAA protected
certain activities related to commercial
motor vehicle safety. The 9/11
Commission Act expanded STAA’s
coverage to commercial motor vehicle
security. In particular, 49 U.S.C.
31105(a)(1)(A) previously made it
unlawful for a person to discharge,
discipline, or discriminate against an
employee regarding pay, terms, or
privileges of employment because the
employee, or another person at the
employee’s request, filed a complaint or
began a proceeding related to a violation
of a commercial motor vehicle safety
regulation, standard or order, or testified
or planned to testify in such a
proceeding. The 9/11 Commission Act
expanded this provision to include
complaints and proceedings related to
violations of commercial motor vehicle
security regulations, standards, and
orders.
Prior to the 2007 amendments,
paragraph (a)(1)(B) of STAA’s
whistleblower provision prohibited a
person from discharging, disciplining,
or discriminating against an employee
regarding pay, terms or privileges of
employment for refusing to operate a

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Federal Register / Vol. 75, No. 168 / Tuesday, August 31, 2010 / Rules and Regulations
vehicle in violation of a regulation,
standard, or order related to commercial
motor vehicle safety or health. The
statute also protected any employee
who refused to operate a vehicle
because he or she had a reasonable
apprehension of serious injury to
himself or herself or the public because
of the vehicle’s unsafe condition. The
recent STAA amendments expanded
these protections to cover: (1) Any
employee who refuses to operate a
vehicle in violation of regulations,
standards, or orders related to
commercial motor vehicle security; and
(2) any employee who refuses to operate
a vehicle because he or she has a
reasonable apprehension of serious
injury to himself or herself or the public
due to the vehicle’s hazardous security
condition.
Before the statutory amendments,
paragraph (a)(2) of STAA’s
whistleblower provision provided that
an employee’s apprehension of serious
injury was reasonable only if a
reasonable person in the circumstances
then confronting the employee would
have concluded that the ‘‘unsafe
condition’’ of the vehicle established a
real danger of accident, injury, or
serious impairment to health. Moreover,
to qualify for protection under this
provision the employee had to have
sought from the employer, and been
unable to obtain, correction of the
‘‘unsafe condition.’’ The August 2007
amendments replaced the term ‘‘unsafe
conditions’’ with the phrase ‘‘hazardous
safety or security conditions’’
throughout this paragraph.
The 9/11 Commission Act added a
new paragraph to 49 U.S.C. 31105,
(a)(1)(A)(ii), making it unlawful for a
person to discharge, discipline or
discriminate against an employee
regarding pay, terms or privileges of
employment because of a perception
that the employee has filed or is about
to file a complaint or has begun or is
about to bring a proceeding concerning
a violation of a commercial motor
vehicle safety or security regulation,
standard, or order. Paragraph (a)(1)(C) of
49 U.S.C. 31105 is also new and makes
it unlawful to discharge, discipline, or
discriminate against an employee
regarding pay, terms, or privileges of
employment because the employee
accurately reports hours on duty
pursuant to 49 U.S.C. chapter 315. The
recent statutory amendments also added
paragraph (a)(1)(D) to 49 U.S.C. 31105.
This paragraph prohibits discharging,
disciplining or discriminating against an
employee regarding pay, terms or
privileges of employment because the
employee cooperates, or is perceived as
being about to cooperate, with a safety

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or security investigation by the
Secretary of Transportation, the
Secretary of Homeland Security, or the
National Transportation Safety Board.
Finally, the 9/11 Commission Act
inserted paragraph (a)(1)(E) into 49
U.S.C. 31105. This provision prohibits a
person from discharging, disciplining,
or discriminating against an employee
regarding pay, terms or privileges of
employment because the employee
furnishes, or is perceived as having
furnished or being about to furnish,
information to the Secretary of
Transportation, the Secretary of
Homeland Security, the National
Transportation Safety Board, or any
Federal, State, or local regulatory or law
enforcement agency about the facts
concerning any accident or incident
resulting in injury or death to an
individual or damage to property
occurring in connection with
commercial motor vehicle
transportation.
Legal Burdens of Proof for STAA
Complaints
Prior to the 9/11 Commission Act, the
parties’ burdens of proof in STAA
actions were understood to be analogous
to those developed for retaliation claims
under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. 2000e et seq. See, e.g.,
Clean Harbors Envtl. Servs., Inc. v.
Herman, 146 F.3d 12, 21–22 (1st Cir.
1998); Yellow Freight Sys., Inc. v. Reich,
27 F.3d 1133, 1138 (6th Cir. 1994). The
plaintiff’s prima facie case could be
carried by a sufficient showing that (1)
he or she engaged in protected activity;
(2) he or she suffered an adverse action;
and (3) a causal connection existed
between the two events. Id. The ARB
also required proof that the employer
was aware that the employee had
engaged in the protected activity. See,
e.g., Baughman v. J.P. Donmoyer, Inc.,
ARB No. 05–1505, ALJ No. 2005–STA–
005, 2007 WL 3286335, at *3 (Admin.
Review Bd. Oct. 31, 2007).
Once the complainant made this
showing, an inference of retaliation
arose and the burden shifted to the
employer to produce evidence of a
legitimate, non-retaliatory reason for the
adverse action. Clean Harbors, 146 F.3d
at 21; Yellow Freight, 27 F.3d at 1138.
If the employer met this burden of
production, the inference of retaliation
was rebutted and the burden shifted
back to the complainant to show by a
preponderance of the evidence that the
legitimate reason was a pretext for
unlawful retaliation. Id. Where there
was evidence that the employer acted
out of mixed motives, i.e., it acted for
both permissible and impermissible
reasons, the employer bore ‘‘the burden

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53545

of establishing by a preponderance of
the evidence that it would have taken
the adverse employment action in the
absence of the employee’s protected
activity.’’ Clean Harbors, 146 F.3d at 21–
22.
The 9/11 Commission Act amended
paragraph (b)(1) of 49 U.S.C. 31105 to
state that STAA whistleblower
complaints will be governed by the legal
burdens of proof set forth in AIR21, 49
U.S.C. 42121(b), which contains
whistleblower protections for
employees in the aviation industry.
AIR21 provides that a complaint must
be dismissed (and no investigation will
be conducted) unless the complainant
makes a prima facie showing that a
protected activity was a contributing
factor in the adverse action described in
the complaint. Notwithstanding a
finding that the complainant has made
the required prima facie showing, AIR21
states that no investigation will be
conducted if the employer demonstrates
by clear and convincing evidence that it
would have taken the same adverse
action in the absence of the protected
conduct. Under AIR21, a violation may
be found only if the complainant
demonstrates that protected activity was
a contributing factor in the adverse
action described in the complaint. And
relief is unavailable if the employer
demonstrates by clear and convincing
evidence that it would have taken the
same adverse action in the absence of
the protected activity. See Vieques Air
Link, Inc. v. Dep’t of Labor, 437 F.3d
102, 108–09 (1st Cir. 2006) (per curiam)
(burdens of proof under AIR21).
Written Notification of Complaints and
Findings
Prior to the 9/11 Commission Act,
STAA’s whistleblower provision
required the Secretary of Labor
(Secretary) to notify persons when
complaints were filed against them. The
statute has now been amended at
paragraph (b)(1) to clarify that this
notice must be in writing. Similarly, the
9/11 Commission Act amended
paragraph (b)(2)(A) of 49 U.S.C. 31105
to clarify that the Secretary’s findings
must be in writing.
Expansion of Remedies
Paragraph (b)(3)(A) of 49 U.S.C. 31105
previously compelled the Secretary,
upon finding a violation of STAA’s
whistleblower provision, to order the
employer to take affirmative abatement
action, reinstate the complainant to his
or her former position with the same
pay and terms and privileges of
employment, and pay compensatory
damages, including backpay. The 9/11
Commission Act amended paragraph

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(b)(3)(A)(iii) to reflect existing law on
damages in STAA whistleblower cases
and expressly provide for the award of
interest on backpay as well as
compensation for any special damages
sustained as a result of the unlawful
discrimination, including litigation
costs, expert witness fees, and
reasonable attorney fees. The 2007
amendments also added a new
provision to 49 U.S.C. 31105, paragraph
(b)(3)(C), authorizing punitive damage
awards of up to $250,000.
De Novo Review
The August 2007 amendments added
paragraph (c) to 49 U.S.C. 31105. That
paragraph provides for de novo review
of a STAA whistleblower claim by a
United States district court in the event
that the Secretary has not issued a final
decision within 210 days after the filing
of a complaint and the delay is not due
to the complainant’s bad faith. The
provision provides that the court will
have jurisdiction over the action
without regard to the amount in
controversy and that the case will be
tried before a jury at the request of
either party.

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Preemption and Employee Rights
The 9/11 Commission Act added a
new provision to 49 U.S.C. 31105 at
paragraph (f) clarifying that nothing in
the statute preempts or diminishes any
other safeguards against discrimination
provided by Federal or State law. The
2007 amendments to STAA also added
a provision at paragraph (g) in 49 U.S.C.
31105 stating that nothing in STAA
shall be deemed to diminish the rights,
privileges, or remedies of any employee
under any Federal or State law or under
any collective bargaining agreement.
New paragraph (g) further states that
rights and remedies under 49 U.S.C.
31105 ‘‘may not be waived by any
agreement, policy, form, or condition of
employment.’’
Miscellaneous Provisions
The 9/11 Commission Act added a
new provision to 49 U.S.C. 31105 at
paragraph (h) regarding the
circumstances in which the Secretary of
Transportation and the Secretary of
Homeland Security may disclose the
names of employees who have provided
information about certain alleged
violations. In addition, the amendments
added a new paragraph (i) to 49 U.S.C.
31105, which provides that the
Secretary of Homeland Security will
establish a process by which any person
may report motor carrier vehicle
security problems, deficiencies or
vulnerabilities. Neither of these
amendments significantly impacts

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OSHA’s handling of whistleblower
complaints under STAA.
Definition of ‘‘Employee’’
Definitions applicable to STAA are
found at 49 U.S.C 31101. That section
defines ‘‘employee’’ as a driver of a
commercial motor vehicle (including an
independent contractor when
personally operating a commercial
motor vehicle), a mechanic, a freight
handler, or an individual not an
employer, who (i) directly affects
commercial motor vehicle safety in the
course of employment by a commercial
motor carrier; and (ii) is not an
employee of the Federal, State or local
government acting in the course of
employment. The 9/11 Commission Act
incorporated this definition into the
whistleblower section of STAA, 49
U.S.C. 31105, at paragraph (j), and
expanded it to include employees who
directly affect commercial motor vehicle
security in the course of employment by
a commercial motor carrier.
III. Summary and Discussion of
Regulatory Provisions
The regulatory provisions in this part
are being revised to reflect the 9/11
Commission Act’s amendments to
STAA, to clarify and improve the
procedures for handling STAA
whistleblower cases, and, to the extent
possible within the bounds of
applicable statutory language, to be
consistent with regulations
implementing the whistleblower
provisions of the following statutes,
among others, that are also administered
and enforced by OSHA: the Safe
Drinking Water Act, 42 U.S.C. 300j–9(i);
the Federal Water Pollution Control Act,
33 U.S.C. 1367; the Toxic Substances
Control Act, 15 U.S.C. 2622; the Solid
Waste Disposal Act, 42 U.S.C. 6971; the
Clean Air Act, 42 U.S.C. 7622; the ERA;
and the Comprehensive Environmental
Response, Compensation and Liability
Act of 1980, 42 U.S.C. 9610, all
regulations for these statutory
provisions jointly codified at 29 CFR
part 24; AIR21, codified at 29 CFR part
1979; SOX, codified at 29 CFR part
1980; and the Pipeline Safety
Improvement Act of 2002, 49 U.S.C.
60129, codified at 29 CFR part 1981.
The section numbers of these STAA
regulations have been changed to
correspond as closely as possible with
the numbering in the regulations
implementing other whistleblower
statutes administered by OSHA.
These regulatory amendments
incorporate two nonsubstantive changes
in terminology. First, cases brought
under the whistleblower provisions of
STAA will now be referred to as actions

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alleging ‘‘retaliation’’ rather than
‘‘discrimination.’’ This change in
terminology, which has already been
made in the regulations implementing
the ERA and the other whistleblower
statutes covered by 29 CFR part 24, is
not intended to have substantive effect.
It simply reflects the fact that claims
brought under these whistleblower
provisions are prototypical retaliation
claims. A retaliation claim is a specific
type of discrimination claim that
focuses on actions taken as a result of
an employee’s protected activity rather
than as a result of an employee’s
characteristics (e.g., race, gender, or
religion).
Second, these regulations previously
referred to persons named in STAA
whistleblower complaints as ‘‘named
persons,’’ but in the revised regulations
they will be referred to as
‘‘respondents.’’ Again, this change is not
intended to have any substantive impact
on the handling of STAA whistleblower
cases. This revision simply reflects a
preference for more conventional
terminology.
Section 1978.100 Purpose and Scope
This section describes the purpose of
the regulations implementing STAA’s
whistleblower provision and provides
an overview of the procedures
contained in the regulations. Paragraph
(a) of this section is being revised to
include an updated citation reference to
the correct section of the United States
Code where STAA’s whistleblower
provision is located and to reflect the
recent statutory amendments extending
coverage to activities pertaining to
commercial motor vehicle security
matters. Minor editorial edits are being
made to paragraph (b) of this section.
Section 1978.101 Definitions
This section includes general
definitions applicable to STAA’s
whistleblower provision. The
definitions are being reorganized in
alphabetical order and minor edits are
being made to cleanup or clarify
existing regulatory text.
A new definition of ‘‘business days’’ is
being added at paragraph (c) to clarify
that that term means days other than
Saturdays, Sundays, and Federal
holidays. This definition is consistent
with 29 CFR 1903.22(c), an OSHA
regulation interpreting the analogous
term ‘‘working days’’ in section 10 of the
Occupational Safety and Health Act
(OSH Act), 29 U.S.C. 659, in the same
way.
The regulations previously defined
‘‘commercial motor carrier’’ as a person
who satisfied the definitions of ‘‘motor
carrier’’ and ‘‘motor private carrier’’ in 49

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U.S.C. 10102(13) and 10102(16). Those
statutory references are out of date and
are being replaced with: ‘‘Commercial
motor carrier means any person engaged
in a business affecting commerce
between States or between a State and
a place outside thereof who owns or
leases a commercial motor vehicle in
connection with that business, or
assigns employees to operate such a
vehicle.’’ The new definition of
‘‘commercial motor carrier’’ reflects the
Secretary’s longstanding practice of
giving that phrase expansive meaning,
i.e., including within its reach all motor
carriers in or affecting commerce. See,
e.g., Arnold v. Associated Sand and
Gravel Co., Case No. 92–STA–19, 1992
WL 752791, at *3 (Office Admin.
Appeals, Aug. 31, 1992) (appropriate to
give the term ‘‘commercial’’ its legal
meaning; ‘‘legislative history of the
STAA * * * additionally militates in
favor of construing the term expansively
to describe motor carriers ‘in’ or
‘affecting’ commerce’’). In addition, the
revised definition of ‘‘commercial motor
carrier’’ is more consistent with the
statutory definition of ‘‘employer.’’ See
49 U.S.C. 31101(3).
The statutory definition of
‘‘commercial motor vehicle’’ is being
added to this section at paragraph (e),
and the definition of ‘‘employee’’, now at
paragraph (h), is being revised to reflect
the statutory amendment expanding
coverage to individuals whose work
directly affects commercial motor
vehicle security. In addition, the
statutory definitions of ‘‘employer’’ and
‘‘State’’ are being added to this section at
paragraphs (i) and (n) respectively, and
a new paragraph is being added at the
end of this section to clarify that any
future statutory amendments will
govern in lieu of the definitions
contained in section 1978.101. A new
definition of ‘‘complaint’’ is being added
to this section at paragraph (g) to clarify
the scope of activities protected by
STAA’s whistleblower provisions. See
discussion of 1978.102 (Obligations and
prohibited acts) below.
Section 1978.102 Obligations and
Prohibited Acts
This new section describes the
activities that are protected under STAA
and the conduct that is prohibited in
response to any protected activities.
Insertion of this new section resulted in
the renumbering of many subsequent
sections.
Among other prohibited acts, it is
unlawful under STAA for an employer
to retaliate against an employee because
the employee, or someone acting
pursuant to the employee’s request, has
filed a complaint related to a violation

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of a commercial motor vehicle safety or
security regulation, standard or order.
49 U.S.C. 31105(a)(1)(A)(i). STAA’s
whistleblower provision also protects
employees who the employer perceives
as having filed or being about to file
such a complaint. 49 U.S.C.
31105(a)(1)(A)(ii). The Secretary has
long taken the position that these
provisions of STAA, as well as similarly
worded provisions in other
whistleblower statutes enforced by
OSHA, cover both written and oral
complaints to the employer or a
government agency. See, e.g., Harrison
v. Roadway Express, Inc., No. 00–048,
2002 WL 31932546, at *4 (Admin.
Review Bd. Dec. 31, 2002)
(‘‘[C]omplaints about violations of
commercial motor vehicle regulations
may be oral, informal or unofficial.’’),
aff’d on other grounds, 390 F.3d 752 (2d
Cir. 2004); see also, e.g., Calhoun v.
Dep’t of Labor, 576 F.3d 201, 212 (4th
Cir. 2009) (citing Yellow Freight Sys.,
Inc. v. Reich, 8 F.3d 980, 986 (4th Cir.
1993) for the proposition that ‘‘written
or oral’’ complaints can be protected
under STAA); Power City Elec., Inc., No.
C–77–197, 1979 WL 23049, at *2 (E. D.
Wash. Oct. 23, 1979) (noting that the
term ‘‘filed’’, as used in Section 11(c) of
the OSH Act, ‘‘is not limited to a written
form of complaint.’’). It is particularly
important for STAA to cover oral as
well as written complaints because in
many cases truck drivers are out on the
road and the only way they can
communicate immediate concerns about
violations of safety and security
regulations is via CB radio or phone. For
these reasons, sections 1978.102(b)(1)
and 1978.102(e)(1) are intended to cover
the filing of written and oral complaints
with employers or government agencies,
and a definition of the term ‘‘complaint,’’
reflecting this intent, has been added to
section 1978.101.
Section 1978.103 Filing of Retaliation
Complaints
This section (formerly section
1978.102) is being revised to make it
more consistent with the regulatory
procedures for other OSHAadministered whistleblower laws.
Complaints filed under STAA’s
whistleblower provision need not be in
any particular form. Complainants have
always been permitted to file STAA
whistleblower complaints either orally
or in writing. In light of this
longstanding practice, OSHA will
continue to accept STAA whistleblower
complaints in either oral or written
form. Allowing STAA whistleblower
complaints to be filed orally is also
consistent with OSHA’s practice in
whistleblower cases under Section 11(c)

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of the OSH Act, 29 U.S.C. 660(c);
Section 211 of the Asbestos Hazard
Emergency Response Act (AHERA), 15
U.S.C. 2651; and Section 7 of the
International Safe Container Act (ISCA),
46 U.S.C. 80507. And the final
regulations implementing the ERA and
the other whistleblower statutes covered
by 29 CFR part 24 permit the filing of
oral as well as written complaints.
Language has been added to paragraph
(b) to clarify that when a complaint is
made orally, OSHA will reduce the
complaint to writing. In addition,
paragraph (b) is being updated to
provide that if an employee is not able
to file a complaint in English, OSHA
will accept the complaint in any
language.
Language has been added to
paragraph (d) to clarify the date on
which a complaint will be considered
‘‘filed,’’ i.e., the date of postmark,
facsimile transmittal, e-mail
communication, telephone call, handdelivery, delivery to a third-party
commercial carrier, or in-person filing at
an OSHA office.
Provisions in former paragraph (d)
dealing with tolling of the 180-day
period for the filing of STAA
whistleblower complaints have been
deleted for consistency with other
OSHA whistleblower regulations, which
do not contain this language. This
revision is not intended to change the
way OSHA handles untimely
complaints under any whistleblower
laws. A new sentence in the regulatory
text clarifies that filing deadlines may
still be tolled based on principles
developed in applicable case law. See,
e.g., Donovan v. Hahner, Foreman &
Harness, Inc., 736 F.2d 1421, 1423–29
(10th Cir. 1984).
Finally, paragraph (e), ‘‘Relationship
to Section 11(c) complaints,’’ has been
revised to conform to similar provisions
implementing other OSHA
whistleblower programs and to more
clearly describe the relationship
between Section 11(c) complaints and
STAA whistleblower complaints.
Section 11(c) of the OSH Act generally
prohibits employers from retaliating
against employees for filing safety or
health complaints or otherwise
initiating or participating in proceedings
under the OSH Act. In some
circumstances an employee covered by
STAA may engage in activities that are
protected under both STAA and Section
11(c) of the OSH Act. For example, a
freight handler loading cargo onto a
commercial motor vehicle may
complain about both the overloading of
that vehicle (a safety complaint
protected by STAA) and also about an
unsafe forklift (a safety complaint

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covered by the OSH Act). In practice,
OSHA would investigate whether either
or both of these protected activities
caused the firing. Paragraph (e) now
clarifies that STAA whistleblower
complaints that also allege facts
constituting an 11(c) violation will be
deemed to have been filed under both
statutes. Similarly, Section 11(c)
complaints that allege facts constituting
a violation of STAA’s whistleblower
provision will also be deemed to have
been filed under both laws. In these
cases, normal procedures and timeliness
requirements under the respective
statutes and regulations will be
followed.
Section 1978.104 Investigation
This section (formerly section
1978.103) has been revised to more
closely conform to the regulations
implementing other whistleblower
provisions administered by OSHA.
Former paragraph (f) in section
1978.102, which deals with the notice
sent to employers when complaints are
filed against them, is being moved to
paragraph (a) in section 1978.104, where
it more appropriately appears under the
‘‘Investigation’’ heading. In addition,
minor revisions are being made to that
paragraph to be more consistent with
similar provisions in other OSHA
whistleblower regulations. Of particular
note, new language is being added
requiring OSHA to send the Federal
Motor Carrier Safety Administration
(FMCSA) a copy of the notice that goes
to the employer. This has been standard
practice in any event.
Former section 1978.103(a), which
simply stated that OSHA would
investigate and gather data as it deemed
appropriate, is being deleted as
unnecessary. Paragraph (b) is being
revised to conform to other OSHA
whistleblower regulations. Language
describing the persons who can be
present and the issues that can be
addressed at OSHA’s meetings with
respondents is being deleted, but this is
not intended to change the manner in
which OSHA conducts these meetings.
A new paragraph (c) specifies that
throughout the investigation the agency
will provide to the complainant (or the
complainant’s legal counsel if the
complainant is represented by counsel)
a copy of all of respondent’s
submissions to the agency that are
responsive to the complainant’s
whistleblower complaint. Before
providing such materials to the
complainant, the agency will redact
them in accordance with the Privacy
Act of 1974, 5 U.S.C. 552a, et seq., and
other applicable confidentiality laws.
The agency expects that sharing

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information with complainants in
accordance with this new provision will
enhance OSHA’s ability to conduct full
and fair investigations and permit the
Assistant Secretary to more thoroughly
assess defenses raised by respondents.
A new paragraph (d) addresses
confidentiality in investigations. In
addition, a new paragraph is being
added to this section at paragraph (e),
which incorporates the AIR21 burdens
of proof that were carried over to
STAA’s whistleblower provision by the
9/11 Commission Act. This paragraph
generally conforms to similar provisions
in the regulations implementing the
AIR21 and ERA whistleblower laws. All
of these statutes now require that a
complainant make an initial prima facie
showing that protected activity was ‘‘a
contributing factor’’ in the adverse
action alleged in the complaint, i.e., that
the protected activity, alone or in
combination with other factors, affected
in some way the outcome of the
employer’s decision. The complainant
will be considered to have met the
required burden if the complaint on its
face, supplemented as appropriate
through interviews of the complainant,
alleges the existence of facts and either
direct or circumstantial evidence to
meet the required showing.
Complainant’s burden may be satisfied,
for example, if he or she shows that the
adverse action took place shortly after
protected activity, giving rise to the
inference that it was a contributing
factor in the adverse action. Language
from some of OSHA’s other
whistleblower regulations, including
those implementing AIR21 and ERA,
setting forth specific elements of the
complainant’s prima facie case has been
carried over into these regulations,
although it has been modified slightly to
reflect the new provisions in STAA
specifically protecting employees who
are ‘‘perceived’’ as having engaged in
certain conduct. See Reich v. Hoy Shoe
Co., 32 F.3d 361, 368 (8th Cir. 1994)
(‘‘Construing § 11(c), the OSH Act’s antiretaliation provision, to protect
employees from adverse employment
actions because they are suspected of
having engaged in protected activity is
consistent with * * * the specific
purposes of the anti-retaliation
provisions.’’).
If the complainant does not make the
required prima facie showing, the
investigation must be discontinued and
the complaint dismissed. See Trimmer
v. U.S. Dep’t of Labor, 174 F.3d 1098,
1101 (10th Cir. 1999) (noting that the
burden-shifting framework of the ERA,
which is the same framework now
found in the AIR21 law and STAA,
served a ‘‘gatekeeping function’’ that

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‘‘stemm[ed] frivolous complaints’’). Even
in cases where the complainant
successfully makes a prima facie
showing, the investigation must be
discontinued if the employer
demonstrates, by clear and convincing
evidence, that it would have taken the
same adverse action in the absence of
the protected activity. Thus, OSHA
must dismiss a complaint under STAA
and not investigate (or cease
investigating) if either: (1) The
complainant fails to meet the prima
facie showing that protected activity or,
where covered by STAA, the perception
of protected activity, was a contributing
factor in the adverse action; or (2) the
employer rebuts that showing by clear
and convincing evidence that it would
have taken the same adverse action
absent the protected activity or the
perception thereof.
Former section 1978.103(c) is being
moved to paragraph (f) of this section.
Minor revisions are being made to this
paragraph to conform to similar
paragraphs in the regulations
implementing the AIR21 and SOX
whistleblower provisions. This includes
allowing ten business days (rather than
five days) for the respondent to present
evidence in support of its position
against an order of preliminary
reinstatement.
Section 1978.105 Issuance of Findings
and Preliminary Orders
Former paragraph (a) in section
1978.104, now at paragraph (a) in this
section, is being updated to reflect the
recent amendments to STAA expanding
available remedies. If the Assistant
Secretary concludes that there is
reasonable cause to believe that a
violation has occurred, he or she will
order appropriate relief, including
preliminary reinstatement. In
appropriate circumstances, in lieu of
preliminary reinstatement, OSHA may
order that the complainant receive the
same pay and benefits that he or she
received prior to his or her termination,
but not actually return to work. Such
‘‘economic reinstatement’’ is employed
in cases arising under Section 105(c) of
the Federal Mine Safety and Health Act
of 1977. See, e.g., Secretary of Labor on
behalf of York v. BR&D Enters., Inc., 23
FMSHRC 697, 2001 WL 1806020, at *1
(June 26, 2001). Congress intended that
complainants be preliminarily
reinstated to their positions if OSHA
finds reasonable cause that they were
discharged in violation of STAA’s
whistleblower provision. When a
violation is found, the norm is for
OSHA to order immediate, preliminary
reinstatement. An employer does not
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economic reinstatement. Rather,
economic reinstatement is designed to
accommodate situations in which
evidence establishes to OSHA’s
satisfaction that reinstatement is
inadvisable for some reason,
notwithstanding the employer’s
retaliatory discharge of the complainant.
In such situations, actual reinstatement
might be delayed until after the
administrative adjudication is
completed as long as the complainant
continues to receive his or her pay and
benefits and is not otherwise
disadvantaged by a delay in
reinstatement. There is no statutory
basis for allowing the employer to
recover the costs of economically
reinstating a complainant should the
employer ultimately prevail in the
whistleblower litigation.
A new provision is being added at
paragraph (a)(2) of this section requiring
the Assistant Secretary to notify the
parties if it finds that a violation has not
occurred. Former section 1978.104(c),
which provided for the suspension of
11(c) complaints pending the outcome
of STAA proceedings, is being deleted.
As described above, section 1978.103(e)
now adequately describes the
relationship between STAA and 11(c)
complaints.
Paragraph (b) is being revised to
clarify that OSHA need not send the
original complaint to the Chief
Administrative Law Judge when it
issues its findings and preliminary
order; a copy of the complaint will
suffice. Former section 1978.105(b)(1) is
being moved to section 1978.105(c).
This paragraph states that the Assistant
Secretary’s preliminary order will be
effective 30 days after receipt, or on the
compliance date set forth in the
preliminary order, whichever is later,
unless an objection is filed. It also
clarifies that any preliminary order
requiring reinstatement will be effective
immediately. This paragraph mirrors
existing provisions in other OSHA
whistleblower regulations.
Subpart B—Litigation

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Section 1978.106 Objections to the
Findings and the Preliminary Order and
Request for a Hearing
Minor revisions are being made to
paragraph (a), formerly section
1978.105(a), to conform to other OSHA
whistleblower regulations. The new
paragraph now clarifies that with
respect to objections to the findings and
preliminary order, the date of the
postmark, fax, or e-mail communication
is considered the date of the filing; if the
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filed upon receipt. The filing of
objections is also considered a request
for a hearing before an ALJ. The
amended language also clarifies that in
addition to filing objections with the
Chief Administrative Law Judge, the
parties must serve a copy of their
objections on the other parties of record,
the OSHA official who issued the
findings and order, the Assistant
Secretary, and the Associate Solicitor
for Occupational Safety and Health. A
failure to serve copies of the objections
on the appropriate parties does not
affect the ALJ’s jurisdiction to hear and
decide the merits of the case. See
Shirani v. Calvert Cliffs Nuclear Power
Plant, Inc., ARB No. 04–101, ALJ No.
2004–ERA–9, 2005 WL 2865915, at *7
(Admin. Review Bd. Oct. 31, 2005).
The title to former section 1978.105(b)
is being deleted because it is
unnecessary. In addition, as previously
mentioned, former paragraph (b)(1) in
section 1978.105 is being moved to new
paragraph (c) in section 1978.105.
Finally, some minor, nonsubstantive
revisions are being made to former
1978.105(b)(2), now at 1978.106(b), and
additional language is being added to
that paragraph to clarify that all
provisions of the ALJ’s order, with the
exception of any order for preliminary
reinstatement, will be stayed upon the
filing of a timely objection. The
respondent may file a motion for a stay
of a preliminary reinstatement order.
Section 1978.107 Hearings
Former section 1978.106, which has
become section 1978.107, was titled
‘‘Scope of rules; applicability of other
rules; notice of hearing.’’ The title is
being changed to ‘‘Hearings,’’ the title
assigned to similar sections in other
OSHA whistleblower regulations.
Minor revisions are being made to
paragraph (a), which adopts the rules of
practice and procedure and the rules of
evidence for administrative hearings
before the Office of Administrative Law
Judges, codified at 29 CFR part 18.
Changes are also being made to
paragraph (b) to conform to other OSHA
whistleblower regulations. The
requirements for the ALJ to set a hearing
date within seven days, and to
commence a hearing within 30 days,
have been deleted, and new language is
being added to clarify that hearings will
commence expeditiously and be
conducted de novo and on the record.
The new language is not intended to
change current case-handling practices.
Paragraph (c), which deals with
situations in which both the
complainant and the respondent object
to the findings and/or preliminary
order, is being revised, consistent with

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the changes made to paragraph (b), to
remove language stating that hearings
shall commence within 30 days of the
last objection received.
Former paragraph (d), dealing with
the ALJ’s discretion to order the filing
of prehearing statements, is being
deleted as unnecessary.
Section 1978.108 Role of Federal
Agencies
Former section 1978.107, titled
‘‘Parties,’’ is now at section 1978.108
with the new title ‘‘Role of Federal
agencies.’’ This conforms to the
terminology used in OSHA’s other
whistleblower regulations.
Former paragraphs (a), (b), and (c) in
section 1978.107 are now combined in
section 1978.108(a)(1). The changes
made to these paragraphs are not
intended to be substantive, i.e., there is
no intent to change the rights to party
status currently afforded the Assistant
Secretary, complainants, or
respondents. The Assistant Secretary,
represented by an attorney from the
appropriate Regional Solicitor’s Office,
will still generally assume the role of
prosecuting party in STAA
whistleblower cases in which the
respondent objects to the findings or
preliminary order. This continues
longstanding practice in STAA cases
and the Secretary believes that the
public interest generally requires the
Assistant Secretary’s continued
participation in such matters. It has
been the Secretary’s experience that
relatively few private attorneys have
developed adequate expertise in
representing STAA whistleblower
complainants and that complainants in
the motor carrier industry have been
more likely to proceed pro se than
employees covered by OSHA’s other
whistleblower programs. Where the
complainant, but not the respondent,
objects to the findings or order, the
regulations retain the Assistant
Secretary’s discretion to participate as a
party or amicus curiae at any stage of
the proceedings, including the right to
petition for review of an ALJ decision.
A new paragraph (a)(2) clarifies that if
the Assistant Secretary assumes the role
of prosecuting party in accordance with
paragraph (a)(1), he or she may, upon
written notice to the other parties,
withdraw as the prosecuting party in the
exercise of prosecutorial discretion. If
the Assistant Secretary withdraws, the
complainant will become the
prosecuting party and the ALJ will issue
appropriate orders to regulate the course
of future proceedings. Section
1978.111(d)(3) (discussed below) retains
language clarifying that the Assistant
Secretary may decline the role of

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prosecuting party if the complainant
rejects a reasonable settlement offer.
New paragraphs (a)(3) and (b) are
being added to this section. Paragraph
(a)(3) simply provides that in all cases
in which the Assistant Secretary is
participating in the proceeding, copies
of documents must be sent to the
Assistant Secretary and the Associate
Solicitor for Occupational Safety and
Health, as well as to all other parties. In
cases in which the Assistant Secretary is
not a party, copies of documents must
be sent to the Assistant Secretary and all
parties, but not to the Associate
Solicitor.
Paragraph (b) states that the FMCSA
may participate in the proceedings as
amicus curiae at its own discretion. This
paragraph also permits the FMCSA to
request copies of all documents,
regardless of whether it is participating
in the case. This provision mirrors
similar language in the regulations
implementing other OSHAadministered whistleblower laws.
The provisions formerly at section
1978.108, which described the manner
in which STAA whistleblower cases
would be captioned or titled, are being
deleted. It is unnecessary to continue to
include that material in these
regulations.
Section 1978.109 Decision and Orders
of the Administrative Law Judge
This section sets forth the content of
the decision and order of the ALJ, and
includes the standards for finding a
violation under STAA’s whistleblower
provision. The title of this section is
being revised to conform to the title
assigned to similar provisions in other
OSHA whistleblower regulations.
Previously, section 1978.109 addressed
decisions of both the ALJs and the ARB.
In conformance with other OSHA
whistleblower regulations, these two
topics are now being separated into
individual sections. Section 1978.109
now covers only ALJ decisions and
section 1978.110 addresses ARB
decisions.
Former paragraph (a) is being divided
among multiple paragraphs in this
section and otherwise revised to reflect
the parties’ new burdens of proof and to
conform more closely to the regulations
implementing other OSHAadministered whistleblower laws. In
litigation, the statutory burdens of proof
require a complainant to prove that the
alleged protected activity or, when
covered by STAA, the perception of
protected activity, was a ‘‘contributing
factor’’ in the alleged adverse action. If
the complainant satisfies his or her
burden, the employer, to escape
liability, must prove by ‘‘clear and

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convincing evidence’’ that it would have
taken the same action in the absence of
the protected activity or the perception
thereof.
A contributing factor is ‘‘any factor
which, alone or in connection with
other factors, tends to affect in any way
the outcome of the decision.’’ Marano v.
Dep’t of Justice, 2 F.3d 1137, 1140 (Fed.
Cir. 1993) (Whistleblower Protection
Act, 5 U.S.C. 1221(e)(1)). In proving that
protected activity was a contributing
factor in the adverse action, ‘‘a
complainant need not necessarily prove
that the respondent’s articulated reason
was a pretext in order to prevail,’’
because a complainant alternatively can
prevail by showing that the
respondent’s ‘‘reason, while true, is only
one of the reasons for its conduct,’’ and
that another reason was a prohibited
one. See Klopfenstein v. PCC Flow
Techs. Holdings, Inc., ARB No. 04–149,
ALJ No. 04–SOX–11, 2006 WL 3246904,
at *13 (Admin. Review Bd. May 31,
2006) (discussing contributing factor
test under SOX) (citing Rachid v. Jack
in the Box, Inc., 376 F.3d 305, 312 (5th
Cir. 2004)).
The AIR21 burdens of proof, now
incorporated in STAA, do not address
the evidentiary standard that applies to
a complainant’s proof that protected
activity was a contributing factor in an
adverse action. AIR 21 simply provides
that the Secretary may find a violation
only ‘‘if the complainant demonstrates’’
that protected activity was a
contributing factor in the alleged
adverse action. 49 U.S.C.
42121(b)(2)(B)(iii). It is the Secretary’s
position that the complainant must
prove by a ‘‘preponderance of the
evidence’’ that his or her protected
activity or, when covered by STAA, the
perception of protected activity,
contributed to the adverse action at
issue; otherwise, the burden never shifts
to the employer to establish its defense
by clear and convincing evidence. See,
e.g., Allen v. Admin. Review Bd., 514
F.3d 468, 475 n.1 (5th Cir. 2008) (‘‘The
term ‘demonstrates’ means to prove by
a preponderance of the evidence.’’).
Once the complainant establishes that
protected activity was a contributing
factor in an adverse action, the
employer can escape liability only by
proving by clear and convincing
evidence that it would have reached the
same decision even in the absence of the
protected activity. The clear and
convincing evidence standard is a
higher burden of proof than a
preponderance of the evidence
standard.
The requirement that the ALJ issue a
decision within 30 days after the close
of the record, and the related provision

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requiring the ALJ to close the record
within 30 days after the filing of the
objection, have been eliminated because
procedures for issuing decisions,
including their timeliness, are
addressed by the Rules of Practice and
Procedure for Administrative Hearings
Before the Office of Administrative Law
Judges at 29 CFR 18.57.
New section 1978.109(c), which is
similar to provisions in other OSHA
whistleblower regulations, provides that
the Assistant Secretary’s determinations
about when to proceed with an
investigation and when to dismiss a
complaint without completing an
investigation are discretionary decisions
not subject to review by the ALJ. The
ALJ hears cases de novo and, therefore,
as a general matter, may not remand
cases to the Assistant Secretary to
conduct an investigation or make
further factual findings. If there
otherwise is jurisdiction, the ALJ will
hear the case on the merits or dispose
of the matter without a hearing if
warranted by the facts and
circumstances.
1978.109(d)(1) now describes the
relief the ALJ can award upon finding
a violation and reflects the recent
statutory amendments. (See earlier
discussion of section 1978.105(a).) In
addition, new paragraph (d)(2) in this
section requires the ALJ to issue an
order denying the complaint if he or she
determines that the respondent has not
violated STAA.
Previously under these regulations,
ALJs’ decisions and orders were subject
to automatic review by the ARB. These
procedures were unique to STAA
whistleblower cases and resulted in a
heavy STAA caseload for the ARB. This
has made it more difficult for the ARB
to promptly resolve the cases on its
docket and has delayed the resolution of
STAA cases in which the parties are
mutually satisfied with the ALJ’s
decision and order. Overall, requiring
mandatory ARB review of every STAA
whistleblower case is an inefficient use
of limited resources. In conformance
with the procedures used under the
other whistleblower provisions
administered by OSHA and adjudicated
by ALJs, these regulations are being
revised to provide for ARB review of an
ALJ’s decision only if one or more of the
parties to the case files a petition
requesting such review. These new
procedures for review of ALJ decisions
will apply to all ALJ decisions issued on
or after the effective date of these
regulations.
Former section 1978.109(b) is being
deleted, although much of its content is
being moved to paragraph (e). New
section 1978.109(e), which borrows

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language from similar provisions in
other OSHA whistleblower regulations,
gives parties ten business days after the
date of the ALJ’s decision to file a
petition for review with the ARB. If no
petition for review is filed within that
timeframe, the ALJ’s decision is final
and all portions of the order become
effective. New paragraph (e), in addition
to giving parties ten business days to
seek review before the ARB, clarifies
that any orders relating to reinstatement
will be effective immediately upon
receipt of the decision by the
respondent.
All of the provisions in former section
1978.109, which codified the automatic
review process, primarily former
paragraphs (c)(1) and (c)(2), are being
deleted. The content of former
paragraph (c)(3), regarding the standard
for ARB review of ALJ decisions, is
being moved to new section
1978.110(b). The content of former
paragraph (c)(4), which required the
ARB to issue an order denying the
complaint if it determined that the
respondent had not violated the law, is
now at section 1978.110(e). Former
paragraph (c)(5), which required service
of the ARB decision on all parties, has
become a part of new section
1978.110(c).
Section 1978.110 Decision and Orders
of the Administrative Review Board
This is a new section, borrowed
largely from existing regulations
implementing other OSHA
whistleblower laws. In accordance with
the decision to discontinue automatic
ARB review of ALJ decisions, paragraph
(a) of this section gives the parties ten
business days from the date of the ALJ’s
decision to file a petition for review
with the ARB. The decision of the ALJ
becomes the final decision of the
Secretary, and is not subject to judicial
review, if no timely petition for review
is filed. Paragraph (a) also clarifies that
the date of the postmark, fax, e-mail
communication, or hand-delivery will
be deemed the date of filing; if the
petition is filed in person, by handdelivery or other means, the petition is
considered filed upon receipt.
Consistent with the procedures for
ARB appeals under other OSHAadministered whistleblower laws,
paragraph (b) provides that the ARB has
discretion to accept or reject review in
STAA whistleblower cases. Congress
intended these whistleblower actions to
be expedited, as reflected by the recent
amendment to STAA providing for a
hearing de novo in district court if the
Secretary has not issued a final decision
within 210 days of the filing of the
complaint. Making review of STAA

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whistleblower cases discretionary may
assist in furthering that goal. The parties
should identify in their petitions for
review the conclusions and orders to
which they object, or the objections will
ordinarily be deemed waived. The ARB
has 30 days to decide whether to grant
a petition for review. If the ARB does
not grant the petition, the decision of
the ALJ becomes the final decision of
the Secretary. This section further
provides that when the ARB accepts a
petition for review, it will review the
ALJ’s factual determinations under the
substantial evidence standard, a
standard previously set forth in section
1978.109(c)(3). If a timely petition for
review is filed with the ARB, relief
ordered by the ALJ is inoperative while
the matter is pending before the ARB,
except that orders of reinstatement will
be effective pending review. Paragraph
(b) does provide that in exceptional
circumstances the ARB may grant a
motion to stay an ALJ’s order of
reinstatement. The Secretary believes
that a stay of a reinstatement order is
only appropriate when the respondent
can establish the necessary criteria for
equitable injunctive relief, i.e.,
irreparable injury, likelihood of success
on the merits, and a balancing of
possible harms to the parties and the
public favoring a stay.
Paragraph (c) of section 1978.110
incorporates the statutory requirement
that the Secretary’s final decision be
issued within 120 days of the
conclusion of the hearing. The hearing
is deemed concluded ten business days
after the date of the ALJ’s decision
unless a motion for reconsideration has
been filed with the ALJ, in which case
the hearing is concluded on the date the
motion for reconsideration is denied or
ten business days after a new ALJ
decision is issued. (Previously, section
1978.109(a) provided that the issuance
of the ALJ’s decision would be deemed
the conclusion of the hearing. The new
provision is more consistent with
procedures used under other OSHAadministered whistleblower provisions
and the new procedures for seeking
ARB review of ALJ decisions in STAA
whistleblower cases.) This paragraph
further provides for the ARB’s decision
in all cases to be served on all parties,
the Chief Administrative Law Judge, the
Assistant Secretary, and the Associate
Solicitor for Occupational Safety and
Health.
Paragraph (d) describes the remedies
the ARB can award if it concludes that
the respondent has violated STAA’s
whistleblower provision. In addition,
under paragraph (e), if the ARB
determines that the respondent has not
violated STAA, it will issue an order

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denying the complaint. Paragraph (f)
clarifies that the new procedures for
seeking review before the ARB apply to
all cases in which ALJ decisions are
issued on or after the effective date of
these regulations.
Subpart C—Miscellaneous Provisions
Section 1978.111 Withdrawal of STAA
Complaints, Objections, and Petitions
for Review; Settlement
This section provides procedures and
time periods for the withdrawal of
complaints, the withdrawal of findings
and/or preliminary orders by the
Assistant Secretary, the withdrawal of
objections to findings and/or
preliminary orders, and the withdrawal
of petitions for review of ALJ decisions.
It also provides for the approval of
settlements at the investigative and
adjudicative stages of the case.
A new sentence is being added to
paragraph (a) to clarify that complaints
that are withdrawn pursuant to
settlement agreements prior to the filing
of objections must be approved in
accordance with the settlement approval
procedures in paragraph (d). In
addition, paragraph (a) now clarifies
that the complainant may not withdraw
his or her complaint after the filing of
objections to the Assistant Secretary’s
findings and/or preliminary order.
Significant revisions are being made to
paragraph (c), which addresses
situations in which parties seek to
withdraw either objections to the
Assistant Secretary’s findings and/or
preliminary order or petitions for review
of ALJ decisions. Paragraph (c) provides
that a party may withdraw its objections
to the Assistant Secretary’s findings
and/or preliminary order at any time
before the findings and preliminary
order become final by filing a written
withdrawal with the ALJ. Similarly, if a
case is on review with the ARB, a party
may withdraw its petition for review of
an ALJ’s decision at any time before that
decision becomes final by filing a
written withdrawal with the ARB. The
ALJ or the ARB, depending on where
the case is pending, will determine
whether to approve the withdrawal of
the objections or the petition for review.
Paragraph (c) clarifies that if the ALJ
approves a request to withdraw
objections to the Assistant Secretary’s
findings and/or preliminary order, and
there are no other pending objections,
the Assistant Secretary’s findings and
preliminary order will become the final
order of the Secretary. Likewise, if the
ARB approves a request to withdraw a
petition for review of an ALJ decision,
and there are no other pending petitions
for review of that decision, the ALJ’s

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decision will become the final order of
the Secretary. Finally, paragraph (c)
provides that if objections or a petition
for review are withdrawn because of
settlement, the settlement must be
submitted for approval in accordance
with paragraph (d).
Paragraph (d)(1) states that a case may
be settled at the investigative stage if the
Assistant Secretary, the complainant,
and the respondent agree. The Assistant
Secretary’s approval of a settlement
reached by the respondent and the
complainant demonstrates his or her
consent and achieves the consent of all
three parties. Minor, nonsubstantive
changes are being made to paragraphs
(d)(2) and (d)(3). Paragraph (d)(3), which
addresses the Assistant Secretary’s
authority to withdraw as the
prosecuting party if the complainant
refuses to accept a fair and equitable
settlement, is being retained in these
revised regulations. See supra
(discussion of section 1978.108).
A new paragraph (e) is being added to
this section. Borrowing language from
similar provisions in other OSHA
whistleblower regulations, this
paragraph simply clarifies that
settlements approved by the Assistant
Secretary, the ALJ, or the ARB will
constitute the final order of the
Secretary and may be enforced pursuant
to 49 U.S.C. 31105(e) and section
1978.113 (judicial enforcement).
Section 1978.112

Judicial Review

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This section, formerly section
1978.110, describes the statutory
provisions for judicial review of
decisions of the Secretary and, in cases
where judicial review is sought, requires
the ARB to submit the record of
proceedings to the appropriate court
pursuant to the Federal Rules of
Appellate Procedure and the local rules
of such court. Nonsubstantive revisions
are being made to paragraphs (a), (b),
and (c).
Former section 1978.112, which
addressed deference to other forums,
including grievance arbitration
proceedings under collective bargaining
agreements, has been deleted to conform
to other OSHA whistleblower
regulations, which do not contain
similar provisions.
Section 1978.113

Judicial Enforcement

Nonsubstantive revisions are being
made to this section, which describes
the Secretary’s power under STAA’s
whistleblower provision to obtain
judicial enforcement of orders,
including orders approving settlement
agreements.

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Section 1978.114 District Court
Jurisdiction of Retaliation Complaints
Under STAA
This new section incorporates into the
regulations the recent amendment to
STAA allowing a complainant in a
whistleblower case to bring an action in
district court for de novo review if there
has been no final decision of the
Secretary within 210 days of the filing
of the complaint and the delay was not
due to the complainant’s bad faith.
Section 1978.114 has been drafted to
reflect the Secretary’s position that it
would not be reasonable to construe the
statute to permit a complainant to
initiate an action in Federal court after
the Secretary issues a final decision,
even if the date of the final decision is
more than 210 days after the filing of the
administrative complaint. In the
Secretary’s view, the purpose of the
‘‘kick out’’ provision is to aid the
complainant in receiving a prompt
decision. That goal is not implicated in
a situation where the complainant
already has received a final decision
from the Secretary. In addition,
permitting the complainant to file a new
case in district court in such
circumstances could conflict with the
parties’ rights to seek judicial review of
the Secretary’s final decision in the
court of appeals. The regulations have
been drafted in accordance with this
position.
Paragraph (b) provides that
complainants must give notice fifteen
days in advance of their intent to file a
complaint in district court. This is
borrowed from some of OSHA’s other
regulations implementing similar ‘‘kick
out’’ provisions. In addition, under
paragraph (b), the complainant must file
and serve the district court complaint
on all parties to the proceeding as well
as OSHA’s Regional Administrator, the
Assistant Secretary, and the Associate
Solicitor for Occupational Safety and
Health.
Section 1978.115 Special
Circumstances; Waiver of Rules
This section provides that in
circumstances not contemplated by
these rules or for good cause the ALJ or
the ARB may, upon application and
three days notice to the parties, waive
any rule or issue such orders as justice
or the administration of STAA’s
whistleblower provision requires.
OSHA has deleted former section
1978.114, which provided that the time
requirements imposed on the Secretary
by these regulations are directory in
nature and that a failure to meet those
requirements did not invalidate any
action by the Assistant Secretary or

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Secretary under STAA. These principles
are well-established in the case law, see,
e.g., Roadway Express v. Dole, 929 F.2d
1060, 1066 (5th Cir. 1991), and this
provision, which was unique to OSHA’s
STAA regulations, is unnecessary. The
Secretary views the deletion of this
provision as a nonsubstantive
amendment. No significant change in
STAA practices or procedures is
intended.
IV. Paperwork Reduction Act
This rule does not contain a reporting
provision that is subject to review by the
Office of Management and Budget
(OMB) under the provisions of the
Paperwork Reduction Act of 1995 (Pub.
L. 104–13).
V. Administrative Procedure Act
The notice and comment rulemaking
procedures of Section 553 of the
Administrative Procedure Act (APA) do
not apply ‘‘to interpretative rules,
general statements of policy, or rules of
agency organization, procedure, or
practice.’’ 5 U.S.C. 553(b)(A). This is a
rule of agency procedure and practice
within the meaning of that section.
Therefore publication in the Federal
Register of a notice of proposed
rulemaking and request for comments is
not required. Although this is a
procedural rule not subject to the notice
and comment procedures of the APA,
we are providing persons interested in
this interim final rule 60 days to submit
comments. A final rule will be
published after the agency receives and
carefully reviews the public’s
comments.
Furthermore, because this rule is
procedural rather than substantive, the
normal requirement of 5 U.S.C. 553(d)
that a rule be effective 30 days after
publication in the Federal Register is
inapplicable. In addition to this
authority, the Assistant Secretary also
finds good cause to provide an
immediate effective date for this rule. It
is in the public interest that the rule be
effective immediately so that parties
may know what procedures are
applicable to pending cases.
VI. Executive Order 12866; Unfunded
Mandates Reform Act of 1995; Small
Business Regulatory Enforcement
Fairness Act of 1996; Executive Order
13132
The agency has concluded that this
rule is not a ‘‘significant regulatory
action’’ within the meaning of Executive
Order 12866 because it is not likely to
result in a rule that may: (1) Have an
annual effect on the economy of $100
million or more or adversely affect in a
material way the economy, a sector of

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Federal Register / Vol. 75, No. 168 / Tuesday, August 31, 2010 / Rules and Regulations
the economy, productivity, competition,
jobs, the environment, public health or
safety, or State, local, or tribal
governments or communities; (2) create
a serious inconsistency or otherwise
interfere with an action taken or
planned by another agency; (3)
materially alter the budgetary impact of
entitlements, grants, user fees, or loan
programs or the rights and obligations of
recipients thereof; or (4) raise novel
legal or policy issues arising out of legal
mandates, the President’s priorities, or
the principles set forth in Executive
Order 12866. Therefore, no regulatory
impact analysis has been prepared.
Because this rulemaking is procedural
in nature it is not expected to have a
significant economic impact; therefore
no statement is required under Section
202 of the Unfunded Mandates Reform
Act of 1995. Furthermore, because this
is a rule of agency procedure or practice,
it is not a ‘‘rule’’ within the meaning of
the Small Business Regulatory
Enforcement Fairness Act of 1996 (5
U.S.C. 804(3)(C)) and does not require
congressional review. Finally, this rule
does not have ‘‘federalism implications.’’
The rule does not have ‘‘substantial
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government’’ and therefore is
not subject to Executive Order 13132
(Federalism).

emcdonald on DSK2BSOYB1PROD with RULES_2

VII. Regulatory Flexibility Analysis
The agency has determined that the
regulation will not have a significant
economic impact on a substantial
number of small entities. The regulation
primarily implements procedures
necessitated by statutory amendments
enacted by Congress. Additionally, the
regulatory revisions are necessary for
the sake of consistency with the
regulatory provisions governing
procedures under other whistleblower
statutes administered by OSHA.
Furthermore, no certification to this
effect is required and no regulatory
flexibility analysis is required because
no proposed rule has been issued.
Document Preparation: This
document was prepared under the
direction and control of the Assistant
Secretary, Occupational Safety and
Health Administration, U.S. Department
of Labor.
List of Subjects in 29 CFR Part 1978
Administrative practice and
procedure, Employment, Highway
safety, Investigations, Motor carriers,
Motor vehicle safety, Reporting and

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recordkeeping requirements, Safety,
Transportation, Whistleblowing.
Signed in Washington, DC August 19,
2010.
David Michaels,
Assistant Secretary of Labor for Occupational
Safety and Health.

Accordingly, for the reasons set out in
the preamble part 1978 of title 29 of the
Code of Federal Regulations is revised
to read as follows:

■

PART 1978—PROCEDURES FOR THE
HANDLING OF RETALIATION
COMPLAINTS UNDER THE EMPLOYEE
PROTECTION PROVISION OF THE
SURFACE TRANSPORTATION
ASSISTANCE ACT OF 1982
Subpart A—Complaints, Investigations,
Findings and Preliminary Orders
Sec.
1978.100 Purpose and scope.
1978.101 Definitions.
1978.102 Obligations and prohibited acts.
1978.103 Filing of retaliation complaints.
1978.104 Investigation.
1978.105 Issuance of findings and
preliminary orders.
Subpart B—Litigation
1978.106 Objections to the findings and the
preliminary order and request for a
hearing.
1978.107 Hearings.
1978.108 Role of Federal agencies.
1978.109 Decision and orders of the
administrative law judge.
1978.110 Decision and orders of the
Administrative Review Board.
Subpart C—Miscellaneous Provisions
1978.111 Withdrawal of STAA complaints,
objections, and petitions for review;
settlement.
1978.112 Judicial review.
1978.113 Judicial enforcement.
1978.114 District court jurisdiction of
retaliation complaints under STAA.
1978.115 Special circumstances; waiver of
rules.
Authority: 49 U.S.C. 31101 and 31105;
Secretary of Labor’s Order No. 5–2007, 72 FR
31160 (June 5, 2007); Secretary of Labor’s
Order 1–2010 (Jan. 15, 2010), 75 FR 3924–01
(Jan. 25, 2010).

Subpart A—Complaints,
Investigations, Findings, and
Preliminary Orders
§ 1978.100

Purpose and scope.

(a) This part implements the
procedures of the employee protection
(whistleblower) provision of the Surface
Transportation Assistance Act of 1982
(STAA), 49 U.S.C. 31105, as amended,
which protects employees from
retaliation because the employee has
engaged in, or, in some circumstances is
perceived to have engaged in, protected
activity pertaining to commercial motor

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53553

vehicle safety, health, or security
matters.
(b) This part establishes procedures
pursuant to the statutory provision set
forth above for the expeditious handling
of retaliation complaints filed by
employees, or by persons acting on their
behalf. These rules, together with those
rules codified at 29 CFR part 18, set
forth the procedures for submission of
complaints, investigations, issuance of
findings and preliminary orders,
objections to findings, litigation before
administrative law judges (ALJs), posthearing administrative review,
withdrawals and settlements, and
judicial review and enforcement.
§ 1978.101

Definitions.

(a) Act means the Surface
Transportation Assistance Act of 1982
(STAA), as amended.
(b) Assistant Secretary means the
Assistant Secretary of Labor for
Occupational Safety and Health or the
person or persons to whom he or she
delegates authority under the Act.
(c) Business days means days other
than Saturdays, Sundays, and Federal
holidays.
(d) Commercial motor carrier means
any person engaged in a business
affecting commerce between States or
between a State and a place outside
thereof who owns or leases a
commercial motor vehicle in connection
with that business, or assigns employees
to operate such a vehicle.
(e) Commercial motor vehicle means a
self-propelled or towed vehicle used on
the highways in commerce principally
to transport passengers or cargo, if the
vehicle:
(1) Has a gross vehicle weight rating
or gross vehicle weight of at least 10,001
pounds, whichever is greater;
(2) Is designed to transport more than
ten passengers including the driver; or
(3) Is used in transporting material
found by the Secretary of Transportation
to be hazardous under 49 U.S.C. 5103
and transported in a quantity requiring
placarding under regulations prescribed
under 49 U.S.C. 5103.
(f) Complainant means the employee
who filed a STAA whistleblower
complaint or on whose behalf a
complaint was filed.
(g) Complaint, for purposes of
§ 1978.102(b)(1) and § 1978.102(e)(1),
includes both written and oral
complaints to employers and/or
government agencies.
(h) Employee means a driver of a
commercial motor vehicle (including an
independent contractor when
personally operating a commercial
motor vehicle), a mechanic, a freight

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handler, or an individual not an
employer, who:
(1) Directly affects commercial motor
vehicle safety or security in the course
of employment by a commercial motor
carrier; and
(2) Is not an employee of the United
States Government, a State, or a political
subdivision of a State acting in the
course of employment.
(i) Employer means a person engaged
in a business affecting commerce that
owns or leases a commercial motor
vehicle in connection with that
business, or assigns an employee to
operate the vehicle in commerce, but
does not include the Government, a
State, or a political subdivision of a
State.
(j) OSHA means the Occupational
Safety and Health Administration of the
United States Department of Labor.
(k) Person means one or more
individuals, partnerships, associations,
corporations, business trusts, legal
representatives or any other group of
individuals.
(l) Respondent means the person
alleged to have violated 49 U.S.C.
31105.
(m) Secretary means the Secretary of
Labor or persons to whom authority
under the Act has been delegated.
(n) State means a State of the United
States, the District of Columbia, Puerto
Rico, the Virgin Islands, American
Samoa, Guam, and the Northern
Mariana Islands.
(o) Any future statutory amendments
that affect the definition of a term or
terms listed in this section will apply in
lieu of the definition stated herein.

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§ 1978.102
acts.

Obligations and prohibited

(a) No person may discharge or
otherwise retaliate against any employee
with respect to the employee’s
compensation, terms, conditions, or
privileges of employment because the
employee engaged in any of the
activities specified in paragraphs (b) or
(c) of this section. In addition, no person
may discharge or otherwise retaliate
against any employee with respect to
the employee’s compensation, terms,
conditions, or privileges of employment
because a person acting pursuant to the
employee’s request engaged in any of
the activities specified in paragraph (b)
of this section.
(b) It is a violation for any employer
to intimidate, threaten, restrain, coerce,
blacklist, discharge, discipline, or in any
other manner retaliate against any
employee because the employee or a
person acting pursuant to the
employee’s request has:
(1) Filed a complaint or begun a
proceeding related to a violation of a

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commercial motor vehicle safety or
security regulation, standard, or order;
or
(2) Testified or will testify at any
proceeding related to a violation of a
commercial motor vehicle safety or
security regulation, standard, or order.
(c) It is a violation for any employer
to intimidate, threaten, restrain, coerce,
blacklist, discharge, discipline, or in any
other manner retaliate against any
employee because the employee:
(1) Refuses to operate a vehicle
because:
(i) The operation violates a regulation,
standard, or order of the United States
related to commercial motor vehicle
safety, health, or security; or
(ii) He or she has a reasonable
apprehension of serious injury to
himself or herself or the public because
of the vehicle’s hazardous safety or
security condition;
(2) Accurately reports hours on duty
pursuant to Chapter 315 of Title 49 of
the United States Code; or
(3) Cooperates with a safety or
security investigation by the Secretary
of Transportation, the Secretary of
Homeland Security, or the National
Transportation Safety Board; or
(4) Furnishes information to the
Secretary of Transportation, the
Secretary of Homeland Security, the
National Transportation Safety Board, or
any Federal, State, or local regulatory or
law enforcement agency as to the facts
relating to any accident or incident
resulting in injury or death to an
individual or damage to property
occurring in connection with
commercial motor vehicle
transportation.
(d) No person may discharge or
otherwise retaliate against any employee
with respect to the employee’s
compensation, terms, conditions, or
privileges of employment because the
person perceives that the employee has
engaged in any of the activities specified
in paragraph (e) of this section.
(e) It is a violation for any employer
to intimidate, threaten, restrain, coerce,
blacklist, discharge, discipline, or in any
other manner retaliate against any
employee because the employer
perceives that:
(1) The employee has filed or is about
to file a complaint or has begun or is
about to begin a proceeding related to a
violation of a commercial motor vehicle
safety or security regulation, standard or
order;
(2) The employee is about to
cooperate with a safety or security
investigation by the Secretary of
Transportation, the Secretary of
Homeland Security, or the National
Transportation Safety Board; or

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(3) The employee has furnished or is
about to furnish information to the
Secretary of Transportation, the
Secretary of Homeland Security, the
National Transportation Safety Board, or
any Federal, State, or local regulatory or
law enforcement agency as to the facts
relating to any accident or incident
resulting in injury or death to an
individual or damage to property
occurring in connection with
commercial motor vehicle
transportation.
(f) For purposes of this section, an
employee’s apprehension of serious
injury is reasonable only if a reasonable
individual in the circumstances then
confronting the employee would
conclude that the hazardous safety or
security condition establishes a real
danger of accident, injury or serious
impairment to health. To qualify for
protection, the employee must have
sought from the employer, and been
unable to obtain, correction of the
hazardous safety or security conditions.
§ 1978.103

Filing of retaliation complaints.

(a) Who may file. An employee who
believes that he or she has been
retaliated against by an employer in
violation of STAA may file, or have
filed by any person on the employee’s
behalf, a complaint alleging such
retaliation.
(b) Nature of Filing. No particular
form of complaint is required. A
complaint may be filed orally or in
writing. Oral complaints will be
reduced to writing by OSHA. If an
employee is unable to file a complaint
in English, OSHA will accept the
complaint in any language.
(c) Place of Filing. The complaint
should be filed with the OSHA Area
Director responsible for enforcement
activities in the geographical area where
the employee resides or was employed,
but may be filed with any OSHA officer
or employee. Addresses and telephone
numbers for these officials are set forth
in local directories and at the following
Internet address: http://www.osha.gov.
(d) Time for Filing. Within 180 days
after an alleged violation occurs, an
employee who believes that he or she
has been retaliated against in violation
of STAA may file, or have filed by any
person on his or her behalf, a complaint
alleging such retaliation. The date of the
postmark, facsimile transmittal, e-mail
communication, telephone call, handdelivery, delivery to a third-party
commercial carrier, or in-person filing at
an OSHA office will be considered the
date of filing. The time for filing a
complaint may be tolled for reasons
warranted by applicable case law.

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(e) Relationship to Section 11(c)
complaints. A complaint filed under
STAA alleging facts that would also
constitute a violation of Section 11(c) of
the Occupational Safety and Health Act,
29 U.S.C. 660(c), will be deemed to be
a complaint under both STAA and
Section 11(c). Similarly, a complaint
filed under Section 11(c) that alleges
facts that would also constitute a
violation of STAA will be deemed to be
a complaint filed under both STAA and
Section 11(c). Normal procedures and
timeliness requirements under the
respective statutes and regulations will
be followed.

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§ 1978.104

Investigation.

(a) Upon receipt of a complaint in the
investigating office, the Assistant
Secretary will notify the respondent of
the filing of the complaint by providing
the respondent (or the respondent’s
legal counsel if respondent is
represented by counsel) with a copy of
the complaint, redacted in accordance
with the Privacy Act of 1974, 5 U.S.C.
552a, et seq., and other applicable
confidentiality laws. The Assistant
Secretary will also notify the respondent
(or the respondent’s legal counsel if
respondent is represented by counsel) of
the respondent’s rights under
paragraphs (b) and (f) of this section.
The Assistant Secretary will provide a
copy of the unredacted complaint to the
complainant (or complainant’s legal
counsel, if complainant is represented
by counsel) and to the Federal Motor
Carrier Safety Administration.
(b) Within 20 days of receipt of the
notice of the filing of the complaint
provided under paragraph (a) of this
section, the respondent may submit to
the Assistant Secretary a written
statement and any affidavits or
documents substantiating its position.
Within the same 20 days, the
respondent may request a meeting with
the Assistant Secretary to present its
position.
(c) Throughout the investigation, the
agency will provide to the complainant
(or the complainant’s legal counsel if
complainant is represented by counsel)
a copy of all of respondent’s
submissions to the agency that are
responsive to the complainant’s
whistleblower complaint. Before
providing such materials to the
complainant, the agency will redact
them in accordance with the Privacy
Act of 1974, 5 U.S.C. 552a, et seq., and
other applicable confidentiality laws.
(d) Investigations will be conducted
in a manner that protects the
confidentiality of any person who
provides information on a confidential
basis, other than the complainant, in

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accordance with part 70 of title 29 of the
Code of Federal Regulations.
(e)(1) A complaint of alleged violation
will be dismissed unless the
complainant has made a prima facie
showing that protected activity or, in
circumstances covered by the Act, a
perception of protected activity was a
contributing factor in the adverse action
alleged in the complaint.
(2) The complaint, supplemented as
appropriate by interviews of the
complainant, must allege the existence
of facts and evidence to make a prima
facie showing as follows:
(i) The employee engaged in a
protected activity or, in circumstances
covered by the Act, was perceived to
have engaged in a protected activity;
(ii) The respondent knew or
suspected, actually or constructively,
that the employee engaged in the
protected activity, or, in circumstances
covered by the Act, perceived the
employee to have engaged in the
protected activity;
(iii) The employee suffered an adverse
action; and
(iv) The circumstances were sufficient
to raise the inference that the protected
activity or, in circumstances covered by
the Act, the perception of protected
activity, was a contributing factor in the
adverse action.
(3) For purposes of determining
whether to investigate, the complainant
will be considered to have met the
required burden if the complaint on its
face, supplemented as appropriate
through interviews of the complainant,
alleges the existence of facts and either
direct or circumstantial evidence to
meet the required showing, i.e., to give
rise to an inference that the respondent
knew or suspected that the employee
engaged in protected activity (or, in
circumstances covered by the Act,
perceived the employee to have engaged
in protected activity) and that the
protected activity (or the perception
thereof) was a contributing factor in the
adverse action. The burden may be
satisfied, for example, if the
complainant shows that the adverse
action took place shortly after the
protected activity, giving rise to the
inference that it was a contributing
factor in the adverse action. If the
required showing has not been made,
the complainant (or the complainant’s
legal counsel if complainant is
represented by counsel) will be so
notified and the investigation will not
commence.
(4) Notwithstanding a finding that a
complainant has made a prima facie
showing, as required by this section, an
investigation of the complaint will not
be conducted or will be discontinued if

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53555

the respondent, pursuant to the
procedures provided in this paragraph,
demonstrates by clear and convincing
evidence that it would have taken the
same adverse action in the absence of
the complainant’s protected activity or,
when applicable, the perception thereof.
(5) If the respondent fails to make a
timely response or fails to satisfy the
burden set forth in the prior paragraph,
the Assistant Secretary will proceed
with the investigation. The investigation
will proceed whenever it is necessary or
appropriate to confirm or verify the
information provided by the
respondent.
(f) Prior to the issuance of findings
and a preliminary order as provided for
in § 1978.105, if the Assistant Secretary
has reasonable cause, on the basis of
information gathered under the
procedures of this part, to believe that
the respondent has violated the Act and
that preliminary reinstatement is
warranted, the Assistant Secretary will
again contact the respondent (or the
respondent’s legal counsel if respondent
is represented by counsel) to give notice
of the substance of the relevant evidence
supporting the complainant’s
allegations as developed during the
course of the investigation. This
evidence includes any witness
statements, which will be redacted to
protect the identity of confidential
informants where statements were given
in confidence; if the statements cannot
be redacted without revealing the
identity of confidential informants,
summaries of their contents will be
provided. The respondent will be given
the opportunity to submit a written
response, to meet with the investigators,
to present statements from witnesses in
support of its position, and to present
legal and factual arguments. The
respondent must present this evidence
within ten business days of the
Assistant Secretary’s notification
pursuant to this paragraph, or as soon
thereafter as the Assistant Secretary and
the respondent can agree, if the interests
of justice so require.
§ 1978.105 Issuance of findings and
preliminary orders.

(a) After considering all the relevant
information collected during the
investigation, the Assistant Secretary
will issue, within 60 days of the filing
of the complaint, written findings as to
whether there is reasonable cause to
believe that the respondent retaliated
against the complainant in violation of
STAA.
(1) If the Assistant Secretary
concludes that there is reasonable cause
to believe that a violation has occurred,
he or she will accompany the findings

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with a preliminary order providing the
relief prescribed in 49 U.S.C.
31105(b)(3). Such order will include,
where appropriate, a requirement that
the respondent abate the violation;
reinstatement of the complainant to his
or her former position, together with the
compensation, terms, conditions and
privileges of the complainant’s
employment; payment of compensatory
damages (backpay with interest and
compensation for any special damages
sustained as a result of the retaliation,
including any litigation costs, expert
witness fees, and reasonable attorney
fees which the complainant has
incurred); and payment of punitive
damages up to $250,000.
(2) If the Assistant Secretary
concludes that a violation has not
occurred, the Assistant Secretary will
notify the parties of that finding.
(b) The findings and the preliminary
order will be sent by certified mail,
return receipt requested, to all parties of
record (and each party’s legal counsel if
the party is represented by counsel).
The findings and preliminary order will
inform the parties of the right to object
to the findings and/or the preliminary
order and to request a hearing. The
findings and preliminary order also will
give the address of the Chief
Administrative Law Judge. At the same
time, the Assistant Secretary will file
with the Chief Administrative Law
Judge, U.S. Department of Labor, a copy
of the complaint and a copy of the
findings and/or order.
(c) The findings and the preliminary
order will be effective 30 days after
receipt by the respondent (or the
respondent’s legal counsel if the
respondent is represented by counsel),
or on the compliance date set forth in
the preliminary order, whichever is
later, unless an objection and/or request
for a hearing has been timely filed as
provided at § 1978.106. However, the
portion of any preliminary order
requiring reinstatement will be effective
immediately upon the respondent’s
receipt of the findings and preliminary
order, regardless of any objections to the
findings and/or order.
Subpart B—Litigation

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§ 1978.106 Objections to the findings and
the preliminary order and request for a
hearing.

(a) Any party who desires review,
including judicial review, of the
findings and preliminary order must file
any objections and/or a request for a
hearing on the record within 30 days of
receipt of the findings and preliminary
order pursuant to § 1978.105. The
objections and request for a hearing

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must be in writing and state whether the
objections are to the findings and/or the
preliminary order. The date of the
postmark, facsimile transmittal, or email communication will be considered
to be the date of filing; if the objection
is filed in person, by hand-delivery or
other means, the objection is filed upon
receipt. Objections will be filed with the
Chief Administrative Law Judge, U.S.
Department of Labor (800 K Street, NW.,
Washington, DC 20001), and copies of
the objections must be mailed at the
same time to the other parties of record,
the OSHA official who issued the
findings and order, the Assistant
Secretary, and the Associate Solicitor
for Occupational Safety and Health.
(b) If a timely objection is filed, all
provisions of the preliminary order will
be stayed, except for the portion
requiring preliminary reinstatement,
which will not be automatically stayed.
The portion of the preliminary order
requiring reinstatement will be effective
immediately upon the respondent’s
receipt of the findings and preliminary
order, regardless of any objections to the
order. The respondent may file a motion
with the Office of Administrative Law
Judges for a stay of the preliminary
order of reinstatement. If no timely
objection is filed with respect to either
the findings or the preliminary order,
the findings and preliminary order will
become the final decision of the
Secretary, not subject to judicial review.
§ 1978.107

Hearings.

(a) Except as provided in this part,
proceedings will be conducted in
accordance with the rules of practice
and procedure and the rules of evidence
for administrative hearings before the
Office of Administrative Law Judges,
codified at part 18 of title 29 of the Code
of Federal Regulations.
(b) Upon receipt of an objection and
request for hearing, the Chief
Administrative Law Judge will promptly
assign the case to an ALJ who will
notify the parties, by certified mail, of
the day, time, and place of hearing. The
hearing is to commence expeditiously,
except upon a showing of good cause or
unless otherwise agreed to by the
parties. Hearings will be conducted de
novo and on the record.
(c) If both the complainant and the
respondent object to the findings and/or
order, the objections will be
consolidated, and a single hearing will
be conducted.
§ 1978.108

Role of Federal agencies.

(a) (1) The complainant and the
respondent will be parties in every
proceeding. In any case in which the
respondent objects to the findings or the

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preliminary order the Assistant
Secretary ordinarily will be the
prosecuting party. In any other cases, at
the Assistant Secretary’s discretion, the
Assistant Secretary may participate as a
party or participate as amicus curiae at
any stage of the proceeding. This right
to participate includes, but is not
limited to, the right to petition for
review of a decision of an ALJ,
including a decision approving or
rejecting a settlement agreement
between the complainant and the
respondent.
(2) If the Assistant Secretary assumes
the role of prosecuting party in
accordance with paragraph (a)(1) of this
section, he or she may, upon written
notice to the appropriate adjudicatory
body and the other parties, withdraw as
the prosecuting party in the exercise of
prosecutorial discretion. If the Assistant
Secretary withdraws, the complainant
will become the prosecuting party and
the ALJ will issue appropriate orders to
regulate the course of future
proceedings.
(3) Copies of documents in all cases,
whether or not the Assistant Secretary is
participating in the proceeding, must be
sent to the Assistant Secretary, as well
as all other parties. In all cases in which
the Assistant Secretary is participating
in the proceeding, copies of documents
must also be sent to the Associate
Solicitor for Occupational Safety and
Health.
(b) The Federal Motor Carrier Safety
Administration, if interested in a
proceeding, may participate as amicus
curiae at any time in the proceeding, at
its discretion. At the request of the
Federal Motor Carrier Safety
Administration, copies of all pleadings
in a case must be sent to that agency,
whether or not that agency is
participating in the proceeding.
§ 1978.109 Decision and orders of the
administrative law judge.

(a) The decision of the ALJ will
contain appropriate findings,
conclusions, and an order pertaining to
the remedies provided in paragraph (d)
of this section, as appropriate. A
determination that a violation has
occurred may only be made if the
complainant has demonstrated by a
preponderance of the evidence that the
protected activity, or, in circumstances
covered by the Act, the perception of
protected activity, was a contributing
factor in the adverse action alleged in
the complaint.
(b) If the complainant or the Assistant
Secretary has satisfied the burden set
forth in the prior paragraph, relief may
not be ordered if the respondent
demonstrates by clear and convincing

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evidence that it would have taken the
same adverse action in the absence of
any protected activity or the perception
thereof.
(c) Neither the Assistant Secretary’s
determination to dismiss a complaint
without completing an investigation
pursuant to § 1978.104(e) nor the
Assistant Secretary’s determination to
proceed with an investigation is subject
to review by the ALJ, and a complaint
may not be remanded for the
completion of an investigation or for
additional findings on the basis that a
determination to dismiss was made in
error. Rather, if there otherwise is
jurisdiction, the ALJ will hear the case
on the merits or dispose of the matter
without a hearing if the facts and
circumstances warrant.
(d)(1) If the ALJ concludes that the
respondent has violated the law, the
order must order the respondent to take
appropriate affirmative action to abate
the violation, including, where
appropriate, reinstatement of the
complainant to his or her former
position, together with the
compensation, terms, conditions, and
privileges of the complainant’s
employment; payment of compensatory
damages (backpay with interest and
compensation for any special damages
sustained as a result of the retaliation,
including any litigation costs, expert
witness fees, and reasonable attorney
fees which the complainant may have
incurred); and payment of punitive
damages up to $250,000.
(2) If the ALJ determines that the
respondent has not violated the law, an
order will be issued denying the
complaint.
(e) The decision will be served upon
all parties to the proceeding, the
Assistant Secretary, and the Associate
Solicitor for Occupational Safety and
Health. Any ALJ’s decision requiring
reinstatement or lifting an order of
reinstatement by the Assistant Secretary
will be effective immediately upon
receipt of the decision by the
respondent. For ALJ decisions issued on
or after the effective date of these rules,
all other portions of the ALJ’s order will
be effective ten business days after the
date of the decision unless a timely
petition for review has been filed with
the Administrative Review Board (ARB).
§ 1978.110 Decision and orders of the
Administrative Review Board.

(a) The Assistant Secretary or any
other party desiring to seek review,
including judicial review, of a decision
of the ALJ must file a written petition
for review with the ARB, U.S.
Department of Labor (200 Constitution
Ave., NW., Washington, DC 20210), to

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which the Secretary has delegated the
authority to act and issue final decisions
under this part. Any ALJ decision
issued on or after the effective date of
these rules will become the final order
of the Secretary unless, pursuant to this
section, a timely petition for review is
filed with the ARB and the ARB accepts
the decision for review. The parties
should identify in their petitions for
review the legal conclusions or orders to
which they object, or the objections will
ordinarily be deemed waived. A petition
must be filed within ten business days
of the date of the decision of the ALJ.
The date of the postmark, facsimile
transmittal, or e-mail communication
will be considered to be the date of
filing; if the petition is filed in person,
by hand-delivery or other means, the
petition is considered filed upon
receipt. The petition must be served on
all parties and on the Chief
Administrative Law Judge at the time it
is filed with the ARB. Copies of the
petition for review and all briefs must
be served on the Assistant Secretary
and, in cases in which the Assistant
Secretary is a party, on the Associate
Solicitor for Occupational Safety and
Health.
(b) If a timely petition for review is
filed pursuant to paragraph (a) of this
section, the decision of the ALJ will
become the final order of the Secretary
30 days after the filing of the petition
unless the ARB, within that time, issues
an order notifying the parties that the
case has been accepted for review. If a
case is accepted for review, the decision
of the ALJ will be inoperative unless
and until the ARB issues an order
adopting the decision, except that an
order of reinstatement will be effective
while review is conducted by the ARB
unless the ARB grants a motion by the
respondent to stay that order based on
exceptional circumstances. The ARB
will specify the terms under which any
briefs are to be filed. The ARB will
review the factual determinations of the
ALJ under the substantial evidence
standard. If no timely petition for
review is filed, or the ARB denies
review, the decision of the ALJ will
become the final order of the Secretary.
If no timely petition for review is filed,
the resulting final order is not subject to
judicial review.
(c) The final decision of the ARB will
be issued within 120 days of the
conclusion of the hearing, which will be
deemed to be ten business days after the
date of the decision of the ALJ, unless
a motion for reconsideration has been
filed with the ALJ in the interim, in
which case the conclusion of the
hearing is the date the motion for
reconsideration is denied or ten

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53557

business days after a new decision is
issued. The ARB’s final decision will be
served upon all parties and the Chief
Administrative Law Judge by mail. The
final decision also will be served on the
Assistant Secretary and on the Associate
Solicitor for Occupational Safety and
Health, even if the Assistant Secretary is
not a party.
(d) If the ARB concludes that the
respondent has violated the law, the
final order will order the respondent to
take appropriate affirmative action to
abate the violation, including, where
appropriate, reinstatement of the
complainant to his or her former
position, together with the
compensation, terms, conditions, and
privileges of the complainant’s
employment; payment of compensatory
damages (backpay with interest and
compensation for any special damages
sustained as a result of the retaliation,
including any litigation costs, expert
witness fees, and reasonable attorney
fees the complainant may have
incurred); and payment of punitive
damages up to $250,000.
(e) If the ARB determines that the
respondent has not violated the law, an
order will be issued denying the
complaint.
(f) Paragraphs (a) and (b) of this
section apply to all cases in which the
decision of the ALJ is issued on or after
the effective date of these regulations.
Subpart C—Miscellaneous Provisions
§ 1978.111 Withdrawal of STAA
complaints, objections, and petitions for
review; settlement.

(a) At any time prior to the filing of
objections to the Assistant Secretary’s
findings and/or preliminary order, a
complainant may withdraw his or her
STAA complaint by filing a written
withdrawal with the Assistant
Secretary. The Assistant Secretary then
will determine whether to approve the
withdrawal. The Assistant Secretary
will notify the respondent (or the
respondent’s legal counsel if respondent
is represented by counsel) of the
approval of any withdrawal. If the
complaint is withdrawn because of
settlement, the settlement must be
submitted for approval in accordance
with paragraph (d) of this section. After
the filing of objections to the Assistant
Secretary’s findings and/or preliminary
order, the complainant may not
withdraw his or her complaint.
(b) The Assistant Secretary may
withdraw his or her findings and/or a
preliminary order at any time before the
expiration of the 30-day objection
period described in § 1978.106,
provided that no objection yet has been

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filed, and substitute new findings and/
or a preliminary order. The date of the
receipt of the substituted findings and/
or order will begin a new 30-day
objection period.
(c) At any time before the Assistant
Secretary’s findings and preliminary
order become final, a party may
withdraw its objections to the Assistant
Secretary’s findings and/or preliminary
order by filing a written withdrawal
with the ALJ. If a case is on review with
the ARB, a party may withdraw its
petition for review of an ALJ’s decision
at any time before that decision becomes
final by filing a written withdrawal with
the ARB. The ALJ or the ARB, as the
case may be, will determine whether to
approve the withdrawal of the
objections or the petition for review. If
the ALJ approves a request to withdraw
objections to the Assistant Secretary’s
findings and/or preliminary order, and
there are no other pending objections,
the Assistant Secretary’s findings and
preliminary order will become the final
order of the Secretary. If the ARB
approves a request to withdraw a
petition for review of an ALJ decision,
and there are no other pending petitions
for review of that decision, the ALJ’s
decision will become the final order of
the Secretary. If objections or a petition
for review are withdrawn because of
settlement, the settlement must be
submitted for approval in accordance
with paragraph (d) of this section.
(d)(1) Investigative settlements. At any
time after the filing of a STAA
complaint and before the findings and/
or order are objected to or become a
final order by operation of law, the case
may be settled if the Assistant Secretary,
the complainant, and the respondent
agree to a settlement. The Assistant
Secretary’s approval of a settlement
reached by the respondent and the
complainant demonstrates his or her
consent and achieves the consent of all
three parties.
(2) Adjudicatory settlements. At any
time after the filing of objections to the
Assistant Secretary’s findings and/or
order, the case may be settled if the
participating parties agree to a
settlement and the settlement is
approved by the ALJ if the case is before

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the ALJ or by the ARB, if the ARB has
accepted the case for review. A copy of
the settlement will be filed with the ALJ
or the ARB as the case may be.
(3) If, under paragraph (d)(1) or (d)(2)
of this section, the respondent makes an
offer to settle the case which the
Assistant Secretary, when acting as the
prosecuting party, deems to be a fair and
equitable settlement of all matters at
issue and the complainant refuses to
accept the offer, the Assistant Secretary
may decline to assume the role of
prosecuting party. In such
circumstances, the Assistant Secretary
will immediately notify the complainant
(or the complainant’s legal counsel if
complainant is represented by counsel)
that review of the settlement offer may
cause the Assistant Secretary to decline
the role of prosecuting party. After the
Assistant Secretary has reviewed the
offer and when he or she has decided to
decline the role of prosecuting party, the
Assistant Secretary will immediately
notify all parties of his or her decision
in writing and, if the case is before the
ALJ or the ARB, a copy of the notice
will be sent to the appropriate official in
accordance with § 1978.108(a)(2).
(e) Any settlement approved by the
Assistant Secretary, the ALJ, or the ARB
will constitute the final order of the
Secretary and may be enforced pursuant
to § 1978.113.
§ 1978.112

Judicial review.

(a) Within 60 days after the issuance
of a final order under §§ 1978.109 and
1978.110, any person adversely affected
or aggrieved by such order may file a
petition for review of the order in the
United States Court of Appeals for the
circuit in which the violation allegedly
occurred or the circuit in which the
person resided on the date of the
violation.
(b) A final order of the ARB will not
be subject to judicial review in any
criminal or other civil proceeding.
(c) If a timely petition for review is
filed, the record of a case, including the
record of proceedings before the ALJ,
will be transmitted by the ARB to the
appropriate court pursuant to the
Federal Rules of Appellate Procedure
and the local rules of such court.

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§ 1978.113

Judicial enforcement.

Whenever any person has failed to
comply with a preliminary order of
reinstatement or a final order, including
one approving a settlement agreement as
provided in § 1978.111, the Secretary
may file a civil action seeking
enforcement of the order in the United
States district court for the district in
which the violation was found to have
occurred.
§ 1978.114 District court jurisdiction of
retaliation complaints under STAA.

(a) If there is no final order of the
Secretary, 210 days have passed since
the filing of the complaint, and there is
no showing that there has been delay
due to the bad faith of the complainant,
the complainant may bring an action at
law or equity for de novo review in the
appropriate district court of the United
States, which will have jurisdiction over
such an action without regard to the
amount in controversy.
(b) Fifteen days in advance of filing a
complaint in federal court, a
complainant must file with the
Assistant Secretary, the ALJ, or the ARB,
depending upon where the proceeding
is pending, a notice of his or her
intention to file such complaint. The
notice must be served on all parties to
the proceeding. A copy of the notice
must be served on OSHA’s Regional
Administrator, the Assistant Secretary,
and the Associate Solicitor for
Occupational Safety and Health. The
complainant must file and serve a copy
of the district court complaint on the
above as soon as possible after the
district court complaint has been filed
with the court.
§ 1978.115
of rules.

Special circumstances; waiver

In special circumstances not
contemplated by the provisions of these
rules, or for good cause shown, the ALJ
or the ARB on review may, upon
application, after three days notice to all
parties, waive any rule or issue such
orders as justice or the administration of
STAA requires.
[FR Doc. 2010–21125 Filed 8–30–10; 8:45 am]
BILLING CODE 4510–26–P

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