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DEPARTMENT OF LABOR
Occupational Safety and Health
Administration
29 CFR Part 1982
[Docket Number OSHA–2008–0027]
RIN 1218–AC36

Procedures for the Handling of
Retaliation Complaints Under the
National Transit Systems Security Act
and the Federal Railroad Safety Act
Occupational Safety and Health
Administration, Labor.
ACTION: Interim Final Rule; request for
comments.
AGENCY:

This document provides the
interim final text of regulations
governing the employee protection
(‘‘whistleblower’’) provisions of the
National Transit Systems Security Act
(‘‘NTSSA’’), enacted as Section 1413 of
the Implementing Recommendations of
the 9/11 Commission Act of 2007 (‘‘9/11
Commission Act’’), and the Federal
Railroad Safety Act (‘‘FRSA’’), as
amended by Section 1521 of the 9/11
Commission Act. The 9/11 Commission
Act was enacted into law on August 3,
2007. FRSA was amended further by
Public Law 110–432, 122 Stat. 4892,
Div. A, Title IV, section 419 (Oct. 16,
2008). This rule establishes procedures
and time frames for the handling of
retaliation complaints under NTSSA
and FRSA, including procedures and
time frames for employee complaints to
the Occupational Safety and Health
Administration (‘‘OSHA’’),
investigations by OSHA, appeals of
OSHA determinations to an
administrative law judge (‘‘ALJ’’) for a
hearing de novo, hearings by ALJs,
review of ALJ decisions by the
Administrative Review Board (‘‘ARB’’)
(acting on behalf of the Secretary) and
judicial review of the Secretary’s final
decision.
DATES: This interim final rule is
effective on August 31, 2010. Comments
and additional materials must be
submitted (post-marked, sent or
received) by November 1, 2010.
ADDRESSES: You may submit comments
and additional materials by any of the
following methods:
Electronically: You may submit
comments and attachments
electronically at http://
www.regulations.gov, which is the
Federal eRulemaking Portal. Follow the
instructions online for making
electronic submissions.
Fax: If your submissions, including
attachments, do not exceed 10 pages,

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SUMMARY:

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you may fax them to the OSHA Docket
Office at (202) 693–1648.
Mail, hand delivery, express mail,
messenger or courier service: You must
submit your comments and attachments
to the OSHA Docket Office, Docket No.
OSHA–2008–0027, U.S. Department of
Labor, Room N–2625, 200 Constitution
Avenue, NW., Washington, DC 20210.
Deliveries (hand, express mail,
messenger and courier service) are
accepted during the Department of
Labor’s and Docket Office’s normal
business hours, 8:15 a.m.–4:45 p.m., e.t.
Instructions: All submissions must
include the Agency name and the OSHA
docket number for this rulemaking
(Docket No. OSHA–2008–0027).
Submissions, including any personal
information you provide, are placed in
the public docket without change and
may be made available online at http://
www.regulations.gov. Therefore, OSHA
cautions you about submitting personal
information such as social security
numbers and birth dates.
Docket: To read or download
submissions or other material in the
docket, go to http://www.regulations.gov
or the OSHA Docket Office at the
address above. All documents in the
docket are listed in the http://
www.regulations.gov index, however,
some information (e.g. copyrighted
material) is not publicly available to
read or download through the Web site.
All submissions, including copyrighted
material, are available for inspection
and copying at the OSHA Docket Office.
FOR FURTHER INFORMATION CONTACT:
Nilgun Tolek, Director, Office of the
Whistleblower Protection Program,
Occupational Safety and Health
Administration, U.S. Department of
Labor, Room N–3610, 200 Constitution
Avenue, NW., Washington, DC 20210;
telephone (202) 693–2199. This is not a
toll-free number. The alternative formats
available are large print, electronic file
on computer disk (Word Perfect, ASCII,
Mates with Duxbury Braille System) and
audiotape.
SUPPLEMENTARY INFORMATION:
I. Background
NTSSA, enacted as Section 1413 of
the 9/11 Commission Act, created
employee protection provisions for
public transportation agency employees
who engage in whistleblowing activities
pertaining to public transportation
safety or security (or, in circumstances
covered by the statutes, employees
perceived to have engaged or to be about
to engage in protected activity). Section
1521 of the 9/11 Commission Act,
which amended FRSA, establishes
employee protection provisions for

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railroad carrier employees who engage
in whistleblowing activities pertaining
to railroad safety or security (or, in
circumstances covered by the statutes,
employees perceived to have engaged or
to be about to engage in protected
activity). The amendments to FRSA also
establish whistleblower provisions for
railroad carrier employees who are
retaliated against for requesting medical
or first aid treatment, or for following
orders or a treatment plan of a treating
physician, 49 U.S.C. 20109(c)(2). In
addition, the FRSA amendments
prohibit railroad carriers and other
covered persons from denying, delaying,
or interfering with the medical or first
aid treatment of an employee, and
require that an injured employee be
promptly transported to the nearest
hospital upon request, 49 U.S.C.
20109(c)(1). Section (c)(1) is not a
whistleblower provision because it
prohibits certain conduct by railroad
carriers and other covered persons
irrespective of any protected activity by
an employee. The procedures
established in this interim final rule
apply only to the remaining provisions
of 49 U.S.C. 20109.
The whistleblower provisions of
NTSSA and FRSA each provide that an
employee may not seek protection
under those provisions and another
provision of law for the same allegedly
unlawful act of the public transportation
agency (under NTSSA) or railroad
carrier (under FRSA). 6 U.S.C. 1142(e);
49 U.S.C. 20109(f). The whistleblower
provisions of NTSSA and FRSA also
provide that nothing in those provisions
preempts or diminishes any other
safeguards against discrimination,
demotion, discharge, suspension,
threats, harassment, reprimand,
retaliation, or any other manner of
discrimination provided by Federal or
State law. 6 U.S.C. 1142(f); 49 U.S.C.
20109(g). The whistleblower provisions
of NTSSA and FRSA further provide
that nothing in those provisions shall be
construed to diminish the rights,
privileges, or remedies of any employee
under any Federal or State law or under
any collective bargaining agreement and
that the rights and remedies in the
whistleblower provisions of NTSSA or
FRSA may not be waived by any
agreement, policy, form, or condition of
employment. 6 U.S.C. 1142(g); 49 U.S.C.
20109(h).
II. Summary of Statutory Procedures
Prior to the amendment of FRSA,
whistleblower retaliation complaints by
railroad carrier employees were subject
to mandatory dispute resolution
pursuant to the Railway Labor Act (45
U.S.C. 151 et seq.), which included

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Federal Register / Vol. 75, No. 168 / Tuesday, August 31, 2010 / Rules and Regulations
whistleblower proceedings before the
National Railroad Adjustment Board, as
well as other dispute resolution
procedures. The amendment changes
the procedures for resolution of such
complaints and transfers the authority
to implement the whistleblower
provisions for railroad carrier
employees to the Secretary of Labor
(‘‘the Secretary’’).
The procedures for filing and
adjudicating whistleblower complaints
under NTSSA and FRSA, as amended,
are generally the same. NTSSA and
FRSA whistleblower provisions include
procedures that allow a covered
employee to file, within 180 days of the
alleged retaliation, a complaint with the
Secretary. Upon receipt of the
complaint, the Secretary must provide
written notice to the person or persons
named in the complaint alleged to have
violated NTSSA or FRSA (‘‘respondent’’)
of the filing of the complaint, the
allegations contained in the complaint,
the substance of the evidence
supporting the complaint, and the rights
afforded the respondent throughout the
investigation. The Secretary must then,
within 60 days of receipt of the
complaint, afford the respondent an
opportunity to submit a response and
meet with the investigator to present
statements from witnesses, and conduct
an investigation.
The Secretary may conduct an
investigation only if the complainant
has made a prima facie showing that the
protected activity was a contributing
factor in the adverse action alleged in
the complaint and the respondent has
not demonstrated, through clear and
convincing evidence, that the employer
would have taken the same adverse
action in the absence of that activity.
After investigating a complaint, the
Secretary will issue written findings. If,
as a result of the investigation, the
Secretary finds there is reasonable cause
to believe that retaliation has occurred,
the Secretary must notify the
respondent of those findings, along with
a preliminary order which includes all
relief necessary to make the employee
whole, including, where appropriate: A
requirement that the respondent abate
the violation; reinstatement with the
same seniority status that the employee
would have had but for the retaliation;
back pay with interest; and
compensation for any special damages
sustained as a result of the retaliation,
including litigation costs, expert witness
fees, and reasonable attorney’s fees. The
preliminary order may also require
payment of punitive damages up to
$250,000.
The complainant and the respondent
then have 30 days after receipt of the

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Secretary’s notification in which to file
objections to the findings and/or
preliminary order and request a hearing
on the record. The filing of objections
under NTSSA or FRSA will stay any
remedy in the preliminary order except
for preliminary reinstatement. If a
hearing before an ALJ is not requested
within 30 days, the preliminary order
becomes final and is not subject to
judicial review.
If a hearing is held, NTSSA and FRSA
require the hearing to be conducted
‘‘expeditiously.’’ The Secretary then has
120 days after the conclusion of a
hearing in which to issue a final order,
which may provide appropriate relief or
deny the complaint. Until the
Secretary’s final order is issued, the
Secretary, the complainant, and the
respondent may enter into a settlement
agreement which terminates the
proceeding. Where the Secretary has
determined that a violation has
occurred, the Secretary, where
appropriate, will assess against the
respondent a sum equal to the total
amount of all costs and expenses,
including attorney’s and expert witness
fees, reasonably incurred by the
complainant for, or in connection with,
the bringing of the complaint upon
which the Secretary issued the order.
Under NTSSA, the Secretary also may
award a prevailing employer a
reasonable attorney’s fee, not exceeding
$1,000, if she finds that the complaint
is frivolous or has been brought in bad
faith.
Within 60 days of the issuance of the
final order, any person adversely
affected or aggrieved by the Secretary’s
final order may file an appeal with the
United States Court of Appeals for the
circuit in which the violation occurred
or the circuit where the complainant
resided on the date of the violation.
NTSSA and FRSA permit the
employee to seek de novo review of the
complaint by a United States district
court in the event that the Secretary has
not issued a final decision within 210
days after the filing of the complaint,
and there is no showing that the delay
is due to the bad faith of the
complainant. The provision provides
that the court will have jurisdiction over
the action without regard to the amount
in controversy and that the case will be
tried before a jury at the request of
either party.
III. Summary and Discussion of
Regulatory Provisions
The regulatory provisions in this part
have been written and organized to be
consistent with other whistleblower
regulations promulgated by OSHA to
the extent possible within the bounds of

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the statutory language of NTSSA and
FRSA. Responsibility for receiving and
investigating complaints under NTSSA
and FRSA has been delegated to the
Assistant Secretary (Secretary’s Order
5–2007, 72 FR 31160 (June 5, 2007)).
Hearings on determinations by the
Assistant Secretary are conducted by the
Office of Administrative Law Judges,
and appeals from decisions by ALJs are
decided by the ARB (Secretary’s Order
1–2010 (Jan. 15, 2010), 75 FR 3924–01
(Jan. 25, 2010)).
Subpart A—Complaints, Investigations,
Findings and Preliminary Orders
Section 1982.100

Purpose and Scope

This section describes the purpose of
the regulations implementing NTSSA
and FRSA and provides an overview of
the procedures covered by these
regulations.
Section 1982.101

Definitions

This section includes general
definitions applicable to the employee
protection provisions of NTSSA and
FRSA.
The definition section of NTSSA, 6
U.S.C. 1131(5), defines ‘‘public
transportation agency’’ as ‘‘a publicly
owned operator of public transportation
eligible to receive Federal assistance
under chapter 53 of title 49.’’ Chapter 53
of title 49, 49 U.S.C. 5302(a)(10), defines
‘‘public transportation’’ as
‘‘transportation by a conveyance that
provides regular and continuous general
or special transportation to the public,
but does not include school buses,
charter, or intercity bus transportation
or intercity passenger rail transportation
provided by the entity described in
chapter 243 (or a successor to such
entity).’’ Chapter 243, 49 U.S.C. 24301,
governs Amtrak.
The definition section of FRSA, 49
U.S.C. 20102(2), defines ‘‘railroad
carrier’’ as ‘‘a person providing railroad
transportation.’’ The definition section
of FRSA, 49 U.S.C. 20102(1), defines
‘‘railroad’’ as ‘‘any form of nonhighway
ground transportation that runs on rails
or electromagnetic guideways, including
commuter or other short-haul railroad
passenger service in a metropolitan or
suburban area and commuter railroad
service that was operated by the
Consolidated Rail Corporation on
January 1, 1979; and high speed ground
transportation systems that connect
metropolitan areas, without regard to
whether those systems use new
technologies not associated with
traditional railroads; but does not
include rapid transit operations in an
urban area that are not connected to the

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general railroad system of
transportation.’’
Section 1982.102 Obligations and
Prohibited Acts
This section describes the activities
that are protected under NTSSA and
FRSA, and the conduct that is
prohibited in response to any protected
activities.

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Section 1982.103 Filing of Retaliation
Complaints
This section explains the
requirements for filing a retaliation
complaint under NTSSA and FRSA. To
be timely, a complaint must be filed
within 180 days of when the alleged
violation occurs. Under Delaware State
College v. Ricks, 449 U.S. 250, 258
(1980), this is considered to be when the
retaliatory decision has been both made
and communicated to the complainant.
In other words, the limitations period
commences once the employee is aware
or reasonably should be aware of the
employer’s decision. Equal Employment
Opportunity Commission v. United
Parcel Service, 249 F.3d 557, 561–62
(6th Cir. 2001). Complaints filed under
NTSSA or FRSA need not be in any
particular form. They may be either oral
or in writing. If the complainant is
unable to file the complaint in English,
OSHA will accept the complaint in any
language. With the consent of the
employee, complaints may be filed by
any person on the employee’s behalf.
Section 1982.104 Investigation.
This section describes the procedures
that apply to the investigation of NTSSA
and FRSA complaints. Paragraph (a) of
this section outlines the procedures for
notifying the parties and appropriate
Federal agencies of the complaint and
notifying the respondent of its rights
under these regulations. Paragraph (b)
describes the procedures for the
respondent to submit its response to the
complaint. Paragraph (c) addresses
disclosure to the complainant of
respondent’s submissions to the agency
that are responsive to the complaint.
Paragraph (d) of this section discusses
confidentiality of information provided
during investigations. Paragraph (e) of
this section sets forth NTSSA’s and
FRSA’s statutory burdens of proof.
FRSA adopts the burdens of proof
provided under the Wendell H. Ford
Aviation Investment and Reform Act for
the 21st Century (‘‘AIR21’’), 49 U.S.C.
42121, which are the same as those
provided under NTSSA. Therefore, this
paragraph generally conforms to the
similar provision in the regulations
implementing AIR21. Paragraph (f)
describes the procedures the Assistant

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Secretary will follow prior to the
issuance of findings and a preliminary
order when the Assistant Secretary has
reasonable cause to believe that a
violation has occurred.
All these statutes require that a
complainant make an initial prima facie
showing that the complainant engaged
in protected activity that was ‘‘a
contributing factor’’ in the adverse
action alleged in the complaint, i.e., that
the protected activity, alone or in
combination with other factors, affected
in some way the outcome of the
employer’s decision. The complainant
will be considered to have met the
required burden if the complaint on its
face, supplemented as appropriate
through interviews of the complainant,
alleges the existence of facts and either
direct or circumstantial evidence to
meet the required showing, i.e., to give
rise to an inference that the respondent
knew or suspected that the employee
engaged in protected activity (or, in
circumstances covered by the statutes,
that the respondent perceived the
employee to have engaged or to be about
to engage in protected activity), and that
the protected activity (or the perception
thereof) was a contributing factor in the
adverse action. The burden may be
satisfied, for example, if the complaint
shows that the adverse action took place
shortly after the protected activity,
giving rise to the inference that it was
a contributing factor in the adverse
action.
If the complainant does not make the
prima facie showing, the investigation
must be discontinued and the complaint
dismissed. See Trimmer v. U.S. Dep’t of
Labor, 174 F.3d 1098, 1101 (10th Cir.
1999) (noting that the burden-shifting
framework of the whistleblower
provisions of Section 211 of the Energy
Reorganization Act of 1974, as
amended, (‘‘ERA’’), 42 U.S.C. 5851,
which is the same as that under AIR21
and the Surface Transportation
Assistance Act of 1982 (‘‘STAA’’), 49
U.S.C. 31105, served a ‘‘gatekeeping
function’’ that ‘‘stemm[ed] frivolous
complaints’’). Even in cases where the
complainant successfully makes a prima
facie showing, the investigation must be
discontinued if the employer
‘‘demonstrates, by clear and convincing
evidence,’’ that it would have taken the
same adverse action in the absence of
the protected activity. Thus, the
Secretary must dismiss a complaint
under NTSSA or FRSA and not
investigate (or cease investigating) if
either: (1) The complainant fails to meet
the prima facie showing that protected
activity was a contributing factor in the
adverse action; or (2) the employer
rebuts that showing by clear and

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convincing evidence that it would have
taken the same adverse action absent the
protected activity.
Assuming that an investigation
proceeds beyond the gatekeeping phase,
the statutory burdens of proof require an
employee to prove that the alleged
protected activity was a ‘‘contributing
factor’’ to the alleged adverse action. A
contributing factor is ‘‘any factor which,
alone or in connection with other
factors, tends to affect in any way the
outcome of the decision.’’ Marano v.
Dep’t of Justice, 2 F.3d 1137, 1140 (Fed.
Cir. 1993) (Whistleblower Protection
Act, 5 U.S.C. 1221(e)(1)). In proving that
protected activity was a contributing
factor in the adverse action, ‘‘a
complainant need not necessarily prove
that the respondent’s articulated reason
was a pretext in order to prevail,’’
because a complainant alternatively can
prevail by showing that the
respondent’s ‘‘ ‘reason, while true, is
only one of the reasons for its conduct,’ ’’
and that another reason was the
complainant’s protected activity. See
Klopfenstein v. PCC Flow Techs.
Holdings, Inc., No. 04–149, 2006 WL
3246904, at *13 (ARB May 31, 2006)
(discussing contributing factor test
under the whistleblower provisions of
Section 806 of the Corporate and
Criminal Fraud Accountability Act of
2002, Title VIII of the Sarbanes-Oxley
Act of 2002 (‘‘SOX’’), 18 U.S.C. 1514A)
(citing Rachid v. Jack in the Box, Inc.,
376 F.3d 305, 312 (5th Cir. 2004)).
The NTSSA burdens of proof, and the
AIR21 burdens of proof which the FRSA
now incorporates, do not address the
evidentiary standard that applies to a
complainant’s proof that protected
activity was a contributing factor in an
adverse action. NTSSA and AIR21
simply provide that the Secretary may
find a violation only ‘‘if the complainant
demonstrates’’ that protected activity
was a contributing factor in the alleged
adverse action. See 6 U.S.C.
1142(c)(2)(B)(iii) and 49 U.S.C.
42121(b)(2)(B)(iii). It is the Secretary’s
position that the complainant must
prove by a ‘‘preponderance of the
evidence’’ that his or her protected
activity contributed to the adverse
action; otherwise, the burden never
shifts to the employer to establish its
defense by ‘‘clear and convincing
evidence.’’ See, e.g., Allen v. Admin.
Review Bd., 514 F.3d 468, 475 n. 1 (5th
Cir. 2008) (‘‘The term ‘demonstrate’
[under 42121(b)(2)(B)(iii)] means to
prove by a preponderance of the
evidence.’’). Once the complainant
establishes that the protected activity
was a contributing factor in the adverse
action, the employer can escape liability
only by proving by clear and convincing

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evidence that it would have reached the
same decision even in the absence of the
prohibited rationale. The ‘‘clear and
convincing evidence’’ standard is a
higher burden of proof than the
‘‘preponderance of the evidence’’
standard.
Section 1982.105 Issuance of Findings
and Preliminary Orders
This section provides that, on the
basis of information obtained in the
investigation, the Assistant Secretary
will issue, within 60 days of the filing
of a complaint, written findings
regarding whether or not there is
reasonable cause to believe that the
complaint has merit. If the findings are
that there is reasonable cause to believe
that the complaint has merit, the
Assistant Secretary will order
appropriate relief, including
preliminary reinstatement. The findings
and, where appropriate, preliminary
order, advise the parties of their right to
file objections to the findings of the
Assistant Secretary and to request a
hearing. The findings and, where
appropriate, preliminary order, also
advise the respondent of the right under
NTSSA to request attorney’s fees from
the ALJ, regardless of whether the
respondent has filed objections, if the
respondent alleges that the complaint
was frivolous or brought in bad faith. If
no objections are filed within 30 days of
receipt of the findings, the findings and
any preliminary order of the Assistant
Secretary become the final findings and
order of the Secretary. If objections are
timely filed, any order of preliminary
reinstatement will take effect, but the
remaining provisions of the order will
not take effect until administrative
proceedings are completed.
In appropriate circumstances, in lieu
of preliminary reinstatement, OSHA
may order that the complainant receive
the same pay and benefits that he
received prior to his termination, but
not actually return to work. Such
‘‘economic reinstatement’’ frequently is
employed in cases arising under Section
105(c) of the Federal Mine Safety and
Health Act of 1977. See, e.g., Secretary
of Labor on behalf of York v. BR&D
Enters., Inc., 23 FMSHRC 697, 2001 WL
1806020, at *1 (June 26, 2001). Congress
intended that employees be
preliminarily reinstated to their
positions if OSHA finds reasonable
cause that they were discharged in
violation of NTSSA or FRSA. When a
violation is found, the norm is for
OSHA to order immediate preliminary
reinstatement. An employer does not
have a statutory right to choose
economic reinstatement. Rather,
economic reinstatement is designed to

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accommodate situations in which
evidence establishes to OSHA’s
satisfaction that reinstatement is
inadvisable for some reason,
notwithstanding the employer’s
retaliatory discharge of the employee. In
such situations, actual reinstatement
might be delayed until after the
administrative adjudication is
completed as long as the employee
continues to receive his or her pay and
benefits and is not otherwise
disadvantaged by a delay in
reinstatement. There is no statutory
basis for allowing the employer to
recover the costs of economically
reinstating an employee should the
employer ultimately prevail in the
whistleblower adjudication.
Subpart B—Litigation
Section 1982.106 Objections to the
Findings and the Preliminary Order and
Request for a Hearing
To be effective, objections to the
findings of the Assistant Secretary must
be in writing and must be filed with the
Chief Administrative Law Judge, U.S.
Department of Labor, Washington, DC
20001 within 30 days of receipt of the
findings. The date of the postmark,
facsimile transmittal, or e-mail
communication is considered the date
of the filing; if the objection is filed in
person, by hand-delivery or other
means, the objection is filed upon
receipt. The filing of objections is
considered a request for a hearing before
an ALJ. Although the parties are
directed to serve a copy of their
objections on the other parties of record,
as well as the OSHA official who issued
the findings and order, the Assistant
Secretary, and the Associate Solicitor,
Division of Fair Labor Standards, U.S.
Department of Labor, the failure to serve
copies of the objections on the other
parties of record does not affect the
ALJ’s jurisdiction to hear and decide the
merits of the case. See Shirani v. Calvert
Cliffs Nuclear Power Plant, Inc., No. 04–
101, 2005 WL 2865915, at *7 (ARB Oct.
31, 2005).
Section 1982.107 Hearings
This section adopts the rules of
practice and evidence of the Office of
Administrative Law Judges at 29 CFR
part 18. The section specifically
provides for consolidation of hearings if
both the complainant and respondent
object to the findings and/or order of the
Assistant Secretary. Otherwise, this
section does not address procedural
issues, e.g., place of hearing, right to
counsel, procedures, evidence and
record of hearing, oral arguments and
briefs, and dismissal for cause, because

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the Office of Administrative Law Judges
has adopted its own rules of practice
that cover these matters.
Section 1982.108 Role of Federal
Agencies
Under NTSSA and FRSA, it is not
expected that the Secretary ordinarily
will appear as a party in the proceeding.
The Secretary has found that in most
whistleblower cases, parties have been
ably represented and the public interest
has not required the Department’s
participation. Nevertheless, the
Assistant Secretary, at his or her
discretion, may participate as a party or
amicus curiae at any time in the
administrative proceedings. For
example, the Assistant Secretary may
exercise his or her discretion to
prosecute the case in the administrative
proceeding before an ALJ; petition for
review of a decision of an ALJ,
including a decision based on a
settlement agreement between the
complainant and the respondent,
regardless of whether the Assistant
Secretary participated before the ALJ; or
participate as amicus curiae before the
ALJ or in the ARB proceeding. Although
we anticipate that ordinarily the
Assistant Secretary will not participate,
the Assistant Secretary may choose to
do so in appropriate cases, such as cases
involving important or novel legal
issues, large numbers of employees,
alleged violations which appear
egregious, or where the interests of
justice might require participation by
the Assistant Secretary. The Department
of Transportation and the Department of
Homeland Security, at those agencies’
discretion, also may participate as
amicus curiae at any time in the
proceedings.
Section 1982.109 Decision and Orders
of the Administrative Law Judge
This section sets forth the content of
the decision and order of the ALJ, and
includes the standard for finding a
violation under NTSSA or FRSA. The
section further provides that the
Assistant Secretary’s determination to
dismiss the complaint without an
investigation or without a complete
investigation pursuant to section
1982.104 is not subject to review. Thus,
paragraph (c) of section 1982.109
clarifies that the Assistant Secretary’s
determinations on whether to proceed
with an investigation under NTSSA or
FRSA and whether to make particular
investigative findings under either of
the statutes subject to this part are
discretionary decisions not subject to
review by the ALJ. The ALJ hears cases
de novo and, therefore, as a general
matter, may not remand cases to the

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Assistant Secretary to conduct an
investigation or make further factual
findings. A full discussion of the
burdens of proof used by the
Department of Labor to resolve
whistleblower cases under this part is
set forth above in the discussion of
section 1982.104.

Subpart C—Miscellaneous Provisions

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Section 1982.110 Decision and Orders
of the Administrative Review Board
Upon the issuance of the ALJ’s
decision, the parties have 10 business
days within which to petition the ARB
for review of that decision. If no timely
petition for review is filed with the
ARB, the decision of the ALJ becomes
the final decision of the Secretary and
is not subject to judicial review. The
date of the postmark, facsimile
transmittal, or e-mail communication
will be considered to be the date of
filing of the petition; if the petition is
filed in person, by hand-delivery or
other means, the petition is considered
filed upon receipt.
The appeal provisions in this part
provide that an appeal to the ARB is not
a matter of right but is accepted at the
discretion of the ARB. The parties
should identify in their petitions for
review the legal conclusions or orders to
which they object, or the objections will
ordinarily be deemed waived. The ARB
has 30 days to decide whether to grant
the petition for review. If the ARB does
not grant the petition, the decision of
the ALJ becomes the final decision of
the Secretary. If a timely petition for
review is filed with the ARB, any relief
ordered by the ALJ, except for that
portion ordering reinstatement, is
inoperative while the matter is pending
before the ARB. When the ARB accepts
a petition for review, the ALJ’s factual
determinations will be reviewed under
the substantial evidence standard.
This section also provides that in the
exceptional case, the ARB may grant a
motion to stay an ALJ’s preliminary
order of reinstatement under NTSSA or
FRSA, which otherwise would be
effective, while review is conducted by
the ARB. The Secretary believes that a
stay of an ALJ’s preliminary order of
reinstatement under NTSSA or FRSA
would be appropriate only where the
respondent can establish the necessary
criteria for equitable injunctive relief,
i.e., irreparable injury, likelihood of
success on the merits, and a balancing
of possible harms to the parties and the
public favors a stay.

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Section 1982.111 Withdrawal of
Complaints, Objections, and Petitions
for Review; Settlement
This section provides for the
procedures and time periods for
withdrawal of complaints, the
withdrawal of findings and/or
preliminary orders by the Assistant
Secretary, the withdrawal of objections
to findings and/or orders, and the
withdrawal of petitions for review. It
also provides for approval of settlements
at the investigative and adjudicative
stages of the case.
Section 1982.112 Judicial Review
This section describes the statutory
provisions for judicial review of
decisions of the Secretary and requires,
in cases where judicial review is sought,
the ARB to submit the record of
proceedings to the appropriate court
pursuant to the rules of such court.
Section 1982.113 Judicial Enforcement
This section describes the Secretary’s
power under NTSSA and FRSA to
obtain judicial enforcement of orders
and the terms of a settlement agreement.
FRSA expressly authorizes district
courts to enforce orders, including
preliminary orders of reinstatement,
issued by the Secretary under 49 U.S.C.
20109(d)(2)(A) (adopting the rules and
procedures set forth in AIR21, 49 U.S.C.
42121(b)). See 49 U.S.C.
20109(d)(2)(A)(iii) (‘‘If a person fails to
comply with an order issued by the
Secretary of Labor pursuant to the
procedures in section 42121(b), the
Secretary of Labor may bring a civil
action to enforce the order in the district
court of the United States for the
judicial district in which the violation
occurred, as set forth in 42121.’’). FRSA
permits the Secretary to bring an action
to obtain such enforcement. See 49
U.S.C. 20109(d)(2)(A)(iii). However,
there is no provision in FRSA
permitting the person on whose behalf
the order was issued to bring such an
action.
NTSSA gives district courts authority
to enforce orders, including preliminary
reinstatement orders, issued by the
Secretary. Specifically, reinstatement
orders issued under subsection (c)(3) are
immediately enforceable in district
court under 6 U.S.C. 1142(c)(5) and (6).
Subsections 1142(c)(3)(B)(ii) and
(d)(2)(A) provide that the Secretary shall
order the person who has committed a
violation to reinstate the complainant to
his or her former position. Subsection
1142(c)(2)(A) instructs the Secretary to
accompany any reasonable cause
finding that a violation occurred with a

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preliminary order containing the relief
prescribed by subsection (c)(3)(B),
which includes reinstatement. See
6 U.S.C. 1142(c)(3)(B)(ii) and (d)(2)(A).
Subsection (c)(2)(A) also declares that
the subsection (c)(3)(B)’s relief of
reinstatement contained in a
preliminary order is not stayed upon the
filing of objections. 6 U.S.C.
1142(c)(2)(A) (‘‘The filing of such
objections shall not operate to stay any
reinstatement remedy contained in the
preliminary order.’’) Thus, under the
statute, enforceable orders issued under
subsection (c)(3)(B) include preliminary
orders that contain the relief of
reinstatement prescribed by subsection
(c)(3)(B) and (d)(2)(A). This statutory
interpretation is consistent with the
Secretary’s interpretation of similar
language in AIR21 and SOX. But see
Bechtel v. Competitive Technologies,
Inc., 448 F.3d 469 (2d Cir. 2006); Welch
v. Cardinal Bankshares Corp., 454 F.
Supp. 2d 552 (W.D. Va. 2006) (decision
vacated, appeal dismissed, No. 06–2995
(4th Cir. Feb. 20, 2008)). NTSSA also
permits the person on whose behalf the
order was issued under NTSSA to
obtain judicial enforcement of orders
and the terms of a settlement agreement.
Section 1982.114 District Court
Jurisdiction of Retaliation Complaints
This section sets forth NTSSA’s and
FRSA’s respective provisions allowing a
complainant to bring an original de
novo action in district court, alleging the
same allegations contained in the
complaint filed with OSHA, if there has
been no final decision of the Secretary
within 210 days of the filing of the
complaint and there is no delay due to
the complainant’s bad faith. It requires
complainants to provide notice 15 days
in advance of their intent to file a
complaint in district court.
It is the Secretary’s position that
complainants may not initiate an action
in Federal court after the Secretary
issues a final decision, even if the date
of the final decision is more than 210
days after the filing of the complaint.
The purpose of the ‘‘kick-out’’ provisions
is to aid the complainant in receiving a
prompt decision. That goal is not
implicated in a situation where the
complainant already has received a final
decision from the Secretary. In addition,
permitting the complainant to file a new
case in district court in such
circumstances could conflict with the
parties’ rights to seek judicial review of
the Secretary’s final decision in the
court of appeals.

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Section 1982.115 Special
Circumstances; Waiver of Rules
This section provides that in
circumstances not contemplated by
these rules or for good cause the ALJ or
the ARB may, upon application and
notice to the parties, waive any rule as
justice or the administration of NTSSA
or FRSA requires.
IV. Paperwork Reduction Act
This rule does not contain a reporting
provision that is subject to review by the
Office of Management and Budget
(OMB) under the provisions of the
Paperwork Reduction Act of 1995 (Pub.
L. 104–13).

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V. Administrative Procedure Act
The notice and comment rulemaking
procedures of Section 553 of the
Administrative Procedure Act (‘‘APA’’)
do not apply ‘‘to interpretative rules,
general statements of policy, or rules of
agency organization, procedure, or
practice.’’ 5 U.S.C. 553(b)(A). This is a
rule of agency procedure and practice
within the meaning of that section.
Therefore, publication in the Federal
Register of a notice of proposed
rulemaking and request for comments is
not required for these regulations,
which provide procedures for the
handling of retaliation complaints.
Although this is a procedural rule not
subject to the notice and comment
procedures of the APA, we are
providing persons interested in this
interim final rule 60 days to submit
comments. A final rule will be
published after the Department receives
and carefully reviews the public’s
comments.
Furthermore, because this rule is
procedural rather than substantive, the
normal requirement of 5 U.S.C. 553(d)
that a rule be effective 30 days after
publication in the Federal Register is
inapplicable. The Assistant Secretary
also finds good cause to provide an
immediate effective date for this interim
final rule. It is in the public interest that
the rule be effective immediately so that
parties may know what procedures are
applicable to pending cases.
VI. Executive Order 12866; Unfunded
Mandates Reform Act of 1995; Small
Business Regulatory Enforcement
Fairness Act of 1996; Executive Order
13132
The Department has concluded that
this rule should be treated as a
‘‘significant regulatory action’’ within
the meaning of Section 3(f)(4) of
Executive Order 12866 because the
NTSSA and FRSA whistleblower
provisions are new or substantially new
programs. Executive Order 12866

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requires a full economic impact analysis
only for ‘‘economically significant’’
rules, which are defined in Section
3(f)(1) as rules that may ‘‘have an annual
effect on the economy of $100 million
or more, or adversely affect in a material
way the economy, productivity,
competition, jobs, the environment,
public health or safety, or State, local,
or tribal governments or communities.’’
Because the rule is procedural in nature,
it is not expected to have a significant
economic impact; therefore no
economic impact analysis has been
prepared. For the same reason, the rule
does not require a Section 202 statement
under the Unfunded Mandates Reform
Act of 1995 (2 U.S.C. 1531 et seq.).
Furthermore, because this is a rule of
agency procedure or practice, it is not a
‘‘rule’’ within the meaning of the Small
Business Regulatory Enforcement
Fairness Act of 1996 (5 U.S.C.
804(3)(C)), and does not require
Congressional review. Finally, this rule
does not have ‘‘federalism implications.’’
The rule does not have ‘‘substantial
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government’’ and therefore is
not subject to Executive Order 13132
(Federalism).
VII. Regulatory Flexibility Analysis
The Department has determined that
the regulation will not have a significant
economic impact on a substantial
number of small entities. The regulation
simply implements procedures
necessitated by enactment of NTSSA
and amendments of FRSA. Furthermore,
no certification to this effect is required
and no regulatory flexibility analysis is
required because no proposed rule has
been issued.
Document Preparation: This
document was prepared under the
direction and control of the Assistant
Secretary, Occupational Safety and
Health Administration, U.S. Department
of Labor.
List of Subjects in 29 CFR Part 1982
Administrative practice and
procedure, Employment, Homeland
security, Investigations, Mass
transportation, Reporting and
recordkeeping requirements, Public
transportation, Railroads, Safety,
Transportation, Whistleblowing.

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53527

Signed at Washington, DC, August 19,
2010.
David Michaels,
Assistant Secretary of Labor for Occupational
Safety and Health.

Accordingly, for the reasons set out in
the preamble, 29 CFR part 1982 is added
to read as follows:

■

PART 1982—PROCEDURES FOR THE
HANDLING OF RETALIATION
COMPLAINTS UNDER THE NATIONAL
TRANSIT SYSTEMS SECURITY ACT
OF 2007, ENACTED AS SECTION 1413
OF THE IMPLEMENTING
RECOMMENDATIONS OF THE 9/11
COMMISSION ACT OF 2007, AND THE
FEDERAL RAILROAD SAFETY ACT,
AS AMENDED BY SECTION 1521 OF
THE IMPLEMENTING
RECOMMENDATIONS OF THE 9/11
COMMISSION ACT OF 2007
Subpart A—Complaints, Investigations,
Findings and Preliminary Orders
Sec.
1982.100 Purpose and scope.
1982.101 Definitions.
1982.102 Obligations and prohibited acts.
1982.103 Filing of retaliation complaints.
1982.104 Investigation.
1982.105 Issuance of findings and
preliminary orders.
Subpart B—Litigation
1982.106 Objections to the findings and the
preliminary order and request for a
hearing.
1982.107 Hearings.
1982.108 Role of Federal agencies.
1982.109 Decision and orders of the
administrative law judge.
1982.110 Decision and orders of the
Administrative Review Board.
Subpart C—Miscellaneous Provisions
1982.111 Withdrawal of complaints,
objections, and petitions for review;
settlement.
1982.112 Judicial review.
1982.113 Judicial enforcement.
1982.114 District court jurisdiction of
retaliation complaints.
1982.115 Special circumstances; waiver of
rules.
Authority: 6 U.S.C. 1142 and 49 U.S.C.
20109; Secretary of Labor’s Order No.
5–2007, 72 FR 31160 (June 5, 2007);
Secretary of Labor’s Order No. 1–2010 (Jan.
15, 2010), 75 FR 3924–01 (Jan. 25, 2010).

Subpart A—Complaints,
Investigations, Findings and
Preliminary Orders
§ 1982.100

Purpose and scope.

(a) This part implements procedures
of NTSSA, 6 U.S.C. 1142, and FRSA, 49
U.S.C. 20109, as amended. NTSSA
provides for employee protection from
retaliation because the employee has
engaged in protected activity pertaining
to public transportation safety or

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security (or, in circumstances covered
by the statutes, the employee is
perceived to have engaged or to be about
to engage in protected activity). FRSA
provides for employee protection from
retaliation because the employee has
engaged in protected activity pertaining
to railroad safety or security (or, in
circumstances covered by the statutes,
the employee is perceived to have
engaged or to be about to engage in
protected activity), has requested
medical or first aid treatment, or has
followed orders or a treatment plan of
a treating physician.
(b) This part establishes procedures
pursuant to NTSSA and FRSA for the
expeditious handling of retaliation
complaints filed by employees, or by
persons acting on their behalf. These
rules, together with those codified at 29
CFR part 18, set forth the procedures for
submission of complaints under NTSSA
or FRSA, investigations, issuance of
findings and preliminary orders,
objections to findings and orders,
litigation before administrative law
judges, post-hearing administrative
review, and withdrawals and
settlements.

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§ 1982.101

Definitions.

(a) Assistant Secretary means the
Assistant Secretary of Labor for
Occupational Safety and Health or the
person or persons to whom he or she
delegates authority under NTSSA or
FRSA.
(b) Business days means days other
than Saturdays, Sundays, and Federal
holidays.
(c) Complainant means the employee
who filed a NTSSA or FRSA complaint
or on whose behalf a complaint was
filed.
(d) Employee means an individual
presently or formerly working for, an
individual applying to work for, or an
individual whose employment could be
affected by a public transportation
agency or a railroad carrier, or a
contractor or subcontractor of a public
transportation agency or a railroad
carrier.
(e) FRSA means Section 1521 of the
Implementing Recommendations of the
9/11 Commission Act of 2007, Public
Law 110–053, August 3, 2007, as further
amended by Public Law 110–432,
October, 16, 2008, codified at 49 U.S.C.
20109.
(f) NTSSA means Section 1413 of the
Implementing Recommendations of the
9/11 Commission Act of 2007, Public
Law 110–053, August 3, 2007, codified
at 6 U.S.C. 1142.
(g) OSHA means the Occupational
Safety and Health Administration of the
United States Department of Labor.

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(h) Public transportation means
transportation by a conveyance that
provides regular and continuous general
or special transportation to the public,
but does not include school buses,
charter, or intercity bus transportation
or intercity passenger rail transportation
provided by Amtrak.
(i) Public transportation agency
means a publicly owned operator of
public transportation eligible to receive
Federal assistance under 49 U.S.C.
chapter 53.
(j) Railroad means any form of
nonhighway ground transportation that
runs on rails or electromagnetic
guideways, including commuter or
other short-haul railroad passenger
service in a metropolitan or suburban
area and commuter railroad service that
was operated by the Consolidated Rail
Corporation on January 1, 1979 and high
speed ground transportation systems
that connect metropolitan areas, without
regard to whether those systems use
new technologies not associated with
traditional railroads, but does not
include rapid transit operations in an
urban area that are not connected to the
general railroad system of
transportation.
(k) Railroad carrier means a person
providing railroad transportation.
(l) Respondent means the person
alleged to have violated NTSSA or
FRSA.
(m) Secretary means the Secretary of
Labor or person to whom authority
under NTSSA or FRSA has been
delegated.
(n) Any future statutory amendments
that affect the definition of a term or
terms listed in this section will apply in
lieu of the definition stated herein.
§ 1982.102
acts.

Obligations and prohibited

(a) National Transit Systems Security
Act. (1) A public transportation agency,
contractor, or subcontractor of such
agency, or officer or employee of such
agency shall not discharge, demote,
suspend, reprimand, or in any other
way discriminate against, including but
not limited to intimidating, threatening,
restraining, coercing, blacklisting, or
disciplining an employee if such
discrimination is due, in whole or in
part, to the employee’s lawful, good
faith act done, or perceived by the
employer to have been done or about to
be done—
(i) To provide information, directly
cause information to be provided, or
otherwise directly assist in any
investigation regarding any conduct
which the employee reasonably believes
constitutes a violation of any Federal
law, rule, or regulation relating to public

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transportation safety or security, or
fraud, waste, or abuse of Federal grants
or other public funds intended to be
used for public transportation safety or
security, if the information or assistance
is provided to, or an investigation
stemming from the provided
information is conducted by—
(A) A Federal, State or local
regulatory or law enforcement agency
(including an office of the Inspector
General under the Inspector General Act
of 1978 (5 U.S.C. App.; Pub. L. 95–452));
(B) Any Member of Congress, any
Committee of Congress, or the
Government Accountability Office; or
(C) A person with supervisory
authority over the employee or such
other person who has the authority to
investigate, discover, or terminate the
misconduct;
(ii) To refuse to violate or assist in the
violation of any Federal law, rule, or
regulation relating to public
transportation safety or security;
(iii) To file a complaint or directly
cause to be brought a proceeding related
to the enforcement of this section or to
testify in that proceeding;
(iv) To cooperate with a safety or
security investigation by the Secretary
of Transportation, the Secretary of
Homeland Security, or the National
Transportation Safety Board; or
(v) To furnish information to the
Secretary of Transportation, the
Secretary of Homeland Security, the
National Transportation Safety Board, or
any Federal, State, or local regulatory or
law enforcement agency as to the facts
relating to any accident or incident
resulting in injury or death to an
individual or damage to property
occurring in connection with public
transportation.
(2)(i) A public transportation agency,
contractor, or subcontractor of such
agency, or officer or employee of such
agency shall not discharge, demote,
suspend, reprimand, or in any other
way discriminate against, including but
not limited to intimidating, threatening,
restraining, coercing, blacklisting, or
disciplining an employee for—
(A) Reporting a hazardous safety or
security condition;
(B) Refusing to work when confronted
by a hazardous safety or security
condition related to the performance of
the employee’s duties, if the conditions
described in paragraph (a)(2)(ii) of this
section exist; or
(C) Refusing to authorize the use of
any safety- or security-related
equipment, track, or structures, if the
employee is responsible for the
inspection or repair of the equipment,
track, or structures, when the employee
believes that the equipment, track, or

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structures are in a hazardous safety or
security condition, if the conditions
described in paragraph (a)(2)(ii) of this
section exist.
(ii) A refusal is protected under
paragraph (a)(2)(i)(B) and (C) of this
section if—
(A) The refusal is made in good faith
and no reasonable alternative to the
refusal is available to the employee;
(B) A reasonable individual in the
circumstances then confronting the
employee would conclude that—
(1) The hazardous condition presents
an imminent danger of death or serious
injury; and
(2) The urgency of the situation does
not allow sufficient time to eliminate
the danger without such refusal; and
(C) The employee, where possible, has
notified the public transportation
agency of the existence of the hazardous
condition and the intention not to
perform further work, or not to
authorize the use of the hazardous
equipment, track, or structures, unless
the condition is corrected immediately
or the equipment, track, or structures
are repaired properly or replaced.
(iii) In paragraph (a)(2)(ii) of this
section, only paragraph (a)(2)(ii)(A)
shall apply to security personnel,
including transit police, employed or
utilized by a public transportation
agency to protect riders, equipment,
assets, or facilities.
(b) Federal Railroad Safety Act. (1) A
railroad carrier engaged in interstate or
foreign commerce, a contractor or a
subcontractor of such a railroad carrier,
or an officer or employee of such a
railroad carrier, may not discharge,
demote, suspend, reprimand, or in any
other way discriminate against,
including but not limited to
intimidating, threatening, restraining,
coercing, blacklisting, or disciplining an
employee if such discrimination is due,
in whole or in part, to the employee’s
lawful, good faith act done, or perceived
by the employer to have been done or
about to be done—
(i) To provide information, directly
cause information to be provided, or
otherwise directly assist in any
investigation regarding any conduct
which the employee reasonably believes
constitutes a violation of any Federal
law, rule, or regulation relating to
railroad safety or security, or gross
fraud, waste, or abuse of Federal grants
or other public funds intended to be
used for railroad safety or security, if the
information or assistance is provided to
or an investigation stemming from the
provided information is conducted by—
(A) A Federal, State, or local
regulatory or law enforcement agency
(including an office of the Inspector

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General under the Inspector General Act
of 1978 (5 U.S.C. App.; Pub. L. 95–452));
(B) Any Member of Congress, any
committee of Congress, or the
Government Accountability Office; or
(C) A person with supervisory
authority over the employee or such
other person who has the authority to
investigate, discover, or terminate the
misconduct;
(ii) To refuse to violate or assist in the
violation of any Federal law, rule, or
regulation relating to railroad safety or
security;
(iii) To file a complaint, or directly
cause to be brought a proceeding related
to the enforcement of 49 U.S.C. part A
of subtitle V or, as applicable to railroad
safety or security, 49 U.S.C. chapter 51
or 57, or to testify in that proceeding;
(iv) To notify, or attempt to notify, the
railroad carrier or the Secretary of
Transportation of a work-related
personal injury or work-related illness
of an employee;
(v) To cooperate with a safety or
security investigation by the Secretary
of Transportation, the Secretary of
Homeland Security, or the National
Transportation Safety Board;
(vi) To furnish information to the
Secretary of Transportation, the
Secretary of Homeland Security, the
National Transportation Safety Board, or
any Federal, State, or local regulatory or
law enforcement agency as to the facts
relating to any accident or incident
resulting in injury or death to an
individual or damage to property
occurring in connection with railroad
transportation; or
(vii) To accurately report hours on
duty pursuant to 49 U.S.C. chapter 211.
(2)(i) A railroad carrier engaged in
interstate or foreign commerce, or an
officer or employee of such a railroad
carrier, shall not discharge, demote,
suspend, reprimand, or in any other
way discriminate against, including but
not limited to intimidating, threatening,
restraining, coercing, blacklisting, or
disciplining an employee for—
(A) Reporting, in good faith, a
hazardous safety or security condition;
(B) Refusing to work when confronted
by a hazardous safety or security
condition related to the performance of
the employee’s duties, if the conditions
described in paragraph (b)(2)(ii) of this
section exist; or
(C) Refusing to authorize the use of
any safety-related equipment, track, or
structures, if the employee is
responsible for the inspection or repair
of the equipment, track, or structures,
when the employee believes that the
equipment, track, or structures are in a
hazardous safety or security condition,

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53529

if the conditions described in paragraph
(b)(2)(ii) of this section exist.
(ii) A refusal is protected under
paragraphs (b)(2)(i)(B) and (C) of this
section if—
(A) The refusal is made in good faith
and no reasonable alternative to the
refusal is available to the employee;
(B) A reasonable individual in the
circumstances then confronting the
employee would conclude that—
(1) The hazardous condition presents
an imminent danger of death or serious
injury; and
(2) The urgency of the situation does
not allow sufficient time to eliminate
the danger without such refusal; and
(C) The employee, where possible, has
notified the railroad carrier of the
existence of the hazardous condition
and the intention not to perform further
work, or not to authorize the use of the
hazardous equipment, track, or
structures, unless the condition is
corrected immediately or the
equipment, track, or structures are
repaired properly or replaced.
(iii) In paragraph (b)(2)(ii) of this
section, only paragraph (b)(2)(ii)(A)
shall apply to security personnel
employed by a railroad carrier to protect
individuals and property transported by
railroad.
(3) A railroad carrier engaged in
interstate or foreign commerce, a
contractor or a subcontractor of such a
railroad carrier, or an officer or
employee of such a railroad carrier may
not discipline, or threaten discipline to,
an employee for requesting medical or
first aid treatment, or for following
orders or a treatment plan of a treating
physician, except that—
(i) A railroad carrier’s refusal to
permit an employee to return to work
following medical treatment shall not be
considered a violation of FRSA if the
refusal is pursuant to Federal Railroad
Administration medical standards for
fitness of duty or, if there are no
pertinent Federal Railroad
Administration standards, a carrier’s
medical standards for fitness for duty.
(ii) For purposes of this paragraph, the
term ‘‘discipline’’ means to bring charges
against a person in a disciplinary
proceeding, suspend, terminate, place
on probation, or make note of reprimand
on an employee’s record.
§ 1982.103

Filing of retaliation complaints.

(a) Who may file. An employee who
believes that he or she has been
retaliated against by an employer in
violation of NTSSA or FRSA may file,
or have filed by any person on the
employee’s behalf, a complaint alleging
such retaliation.

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

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§ 1982.104

Investigation.

(a) Upon receipt of a complaint in the
investigating office, the Assistant
Secretary will notify the respondent of
the filing of the complaint by providing
a copy of the complaint, redacted, if
necessary, in accordance with the
Privacy Act of 1974, 5 U.S.C. 552a, et
seq., and other applicable
confidentiality laws, and will also notify
the respondent of its rights under
paragraphs (b) and (f) of this section and
paragraph (e) of § 1982.110. The
Assistant Secretary will provide a copy
of the unredacted complaint to the
complainant (or to the complainant’s
legal counsel, if complainant is
represented by counsel), and to the
Federal Railroad Administration, the
Federal Transit Administration, or the
Transportation Security Administration
as appropriate.
(b) Within 20 days of receipt of the
notice of the filing of the complaint
provided under paragraph (a) of this
section, the respondent may submit to
the Assistant Secretary a written
statement and any affidavits or
documents substantiating its position.
Within the same 20 days, the
respondent may request a meeting with
the Assistant Secretary to present its
position.

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(c) Throughout the investigation, the
agency will provide to the complainant
(or the complainant’s legal counsel if
complainant is represented by counsel)
a copy of all of respondent’s
submissions to the agency that are
responsive to the complainant’s
whistleblower complaint. Before
providing such materials to the
complainant, the agency will redact
them, if necessary, in accordance with
the Privacy Act of 1974, 5 U.S.C. 552a,
et seq., and other applicable
confidentiality laws.
(d) Investigations will be conducted
in a manner that protects the
confidentiality of any person who
provides information on a confidential
basis, other than the complainant, in
accordance with part 70 of title 29 of the
Code of Federal Regulations.
(e)(1) A complaint of alleged violation
will be dismissed unless the
complainant has made a prima facie
showing that protected activity was a
contributing factor in the adverse action
alleged in the complaint.
(2) The complaint, supplemented as
appropriate by interviews of the
complainant, must allege the existence
of facts and evidence to make a prima
facie showing as follows:
(i) The employee engaged in a
protected activity (or, in circumstances
covered by the statutes, was perceived
to have engaged or to be about to engage
in protected activity);
(ii) The respondent knew or
suspected, actually or constructively,
that the employee engaged in the
protected activity (or, in circumstances
covered by the statutes, perceived the
employee to have engaged or to be about
to engage in protected activity);
(iii) The employee suffered an adverse
action; and
(iv) The circumstances were sufficient
to raise the inference that the protected
activity (or perception thereof) was a
contributing factor in the adverse action.
(3) For purposes of determining
whether to investigate, the complainant
will be considered to have met the
required burden if the complaint on its
face, supplemented as appropriate
through interviews of the complainant,
alleges the existence of facts and either
direct or circumstantial evidence to
meet the required showing, i.e., to give
rise to an inference that the respondent
knew or suspected that the employee
engaged in protected activity (or, in
circumstances covered by the statutes,
perceived the employee to have engaged
or to be about to engage in protected
activity), and that the protected activity
(or perception thereof) was a
contributing factor in the adverse action.
The burden may be satisfied, for

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example, if the complaint shows that
the adverse action took place shortly
after the protected activity, giving rise to
the inference that it was a contributing
factor in the adverse action. If the
required showing has not been made,
the complainant (or the complainant’s
legal counsel if complainant is
represented by counsel) will be so
notified and the investigation will not
commence.
(4) Notwithstanding a finding that a
complainant has made a prima facie
showing, as required by this section, an
investigation of the complaint will not
be conducted or will be discontinued if
the respondent, pursuant to the
procedures provided in this paragraph,
demonstrates by clear and convincing
evidence that it would have taken the
same adverse action in the absence of
the complainant’s protected activity.
(5) If the respondent fails to make a
timely response or fails to satisfy the
burden set for in the prior paragraph,
the Assistant Secretary will proceed
with the investigation. The investigation
will proceed whenever it is necessary or
appropriate to confirm or verify the
information provided by the
respondent.
(f) Prior to the issuance of findings
and a preliminary order as provided for
in § 1982.105, if the Assistant Secretary
has reasonable cause, on the basis of
information gathered under the
procedures of this part, to believe that
the respondent has violated NTSSA or
FRSA and that preliminary
reinstatement is warranted, the
Assistant Secretary will again contact
the respondent (or the respondent’s
legal counsel if respondent is
represented by counsel) to give notice of
the substance of the relevant evidence
supporting the complainant’s
allegations as developed during the
course of the investigation. This
evidence includes any witness
statements, which will be redacted to
protect the identity of confidential
informants where statements were given
in confidence; if the statements cannot
be redacted without revealing the
identity of confidential informants,
summaries of their contents will be
provided. The respondent will be given
the opportunity to submit a written
response, to meet with the investigators,
to present statements from witnesses in
support of its position, and to present
legal and factual arguments. The
respondent will present this evidence
within 10 business days of the Assistant
Secretary’s notification pursuant to this
paragraph, or as soon thereafter as the
Assistant Secretary and the respondent
can agree, if the interests of justice so
require.

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§ 1982.105 Issuance of findings and
preliminary orders.

(a) After considering all the relevant
information collected during the
investigation, the Assistant Secretary
will issue, within 60 days of filing of the
complaint, written findings as to
whether or not there is reasonable cause
to believe that the respondent has
retaliated against the complainant in
violation of NTSSA or FRSA.
(1) If the Assistant Secretary
concludes that there is reasonable cause
to believe that a violation has occurred,
he or she will accompany the findings
with a preliminary order providing
relief to the complainant. The
preliminary order will include, where
appropriate: a requirement that the
respondent abate the violation;
reinstatement of the complainant to his
or her former position, together with the
compensation (including back pay),
terms, conditions and privileges of the
complainant’s employment; payment of
compensatory damages, including, at
the request of the complainant, the
aggregate amount of all costs and
expenses (including attorney’s and
expert witness fees) reasonably
incurred. It may also include payment
of punitive damages up to $250,000.
(2) If the Assistant Secretary
concludes that a violation has not
occurred, the Assistant Secretary will
notify the parties of that finding.
(b) The findings and the preliminary
order will be sent by certified mail,
return receipt requested, to all parties of
record (and each party’s legal counsel if
the party is represented by counsel).
The findings and, where appropriate,
the preliminary order will inform the
parties of the right to object to the
findings and/or order and to request a
hearing, and of the right of the
respondent under NTSSA to request
attorney’s fees not exceeding $1,000
from the administrative law judge
(‘‘ALJ’’) regardless of whether the
respondent has filed objections, if the
respondent alleges that the complaint
was frivolous or brought in bad faith,
and will also give the address of the
Chief Administrative Law Judge. At the
same time, the Assistant Secretary will
file with the Chief Administrative Law
Judge, U.S. Department of Labor, a copy
of the original complaint and a copy of
the findings and/or order.
(c) The findings and the preliminary
order will be effective 30 days after
receipt by the respondent (or the
respondent’s legal counsel if the
respondent is represented by counsel) or
on the compliance date set forth in the
preliminary order, whichever is later,
unless an objection and/or a request for
a hearing has been timely filed as

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provided at § 1982.106. However, the
portion of any preliminary order
requiring reinstatement will be effective
immediately upon the respondent’s
receipt of the findings and preliminary
order, regardless of any objections to the
findings and/or order.
Subpart B—Litigation
§ 1982.106 Objections to the findings and
the preliminary order and request for a
hearing.

(a) Any party who desires review,
including judicial review, of the
findings and preliminary order, or a
respondent alleging that the complaint
was frivolous or brought in bad faith
who seeks an award of attorney’s fees
up to $1,000 under NTSSA, must file
any objections and/or a request for a
hearing on the record within 30 days of
receipt of the findings and preliminary
order pursuant to paragraph (b) of
§ 1982.105. The objections, request for a
hearing, and/or request for attorney’s
fees must in writing and state whether
the objections are to the findings, the
preliminary order, and/or whether there
should be an award of attorney’s fees.
The date of the postmark, facsimile
transmittal, or e-mail communication
will be considered to be the date of
filing; if the objection is filed in person,
by hand-delivery or other means, the
objection is filed upon receipt.
Objections must be filed with the Chief
Administrative Law Judge, U.S.
Department of Labor, Washington, DC
20001 and copies of the objections must
be mailed at the same time to the other
parties of record, the OSHA official who
issued the findings and order, the
Assistant Secretary, and the Associate
Solicitor, Division of Fair Labor
Standards, U.S. Department of Labor.
(b) If a timely objection is filed, all
provisions of the preliminary order will
be stayed, except for the portion
requiring preliminary reinstatement,
which will not be automatically stayed.
The portion of the preliminary order
requiring reinstatement will be effective
immediately upon the respondent’s
receipt of the findings and preliminary
order, regardless of any objections to the
order. The respondent may file a motion
with the Office of Administrative Judges
for a stay of the Assistant Secretary’s
preliminary order of reinstatement. If no
timely objection is filed with respect to
either the findings or the preliminary
order, the findings or preliminary order
will become the final decision of the
Secretary, not subject to judicial review.
§ 1982.107

Hearings.

(a) Except as provided in this part,
proceedings will be conducted in

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accordance with the rules of practice
and procedure, and the rules of
evidence, for administrative hearings
before the Office of Administrative Law
Judges, codified at part 18 of title 29 of
the Code of Federal Regulations.
(b) Upon receipt of an objection and
request for hearing, the Chief
Administrative Law Judge will promptly
assign the case to a judge who will
notify the parties, by certified mail, of
the day, time, and place of hearing. The
hearing is to commence expeditiously,
except upon a showing of good cause or
unless otherwise agreed to by the
parties. Hearings will be conducted de
novo and on the record.
(c) If both the complainant and the
respondent object to the findings and/or
order, the objections will be
consolidated and a single hearing will
be conducted.
§ 1982.108

Role of Federal agencies.

(a)(1) The complainant and the
respondent will be parties in every
proceeding. At the Assistant Secretary’s
discretion, the Assistant Secretary may
participate as a party or as amicus
curiae at any time at any stage of the
proceeding. This right to participate
includes, but is not limited to, the right
to petition for review of a decision of an
ALJ, including a decision approving or
rejecting a settlement agreement
between the complainant and the
respondent.
(2) Copies of documents in all cases,
whether or not the Assistant Secretary is
participating in the proceeding, must be
sent to the Assistant Secretary,
Occupational Safety and Health
Administration, and to the Associate
Solicitor, Division of Fair Labor
Standards, U.S. Department of Labor, as
well as all other parties.
(b) The Department of Homeland
Security or the Department of
Transportation, if interested in a
proceeding, may participate as amicus
curiae at any time in the proceeding, at
the agency’s discretion. At the request of
the interested Federal agency, copies of
all pleadings in a case must be sent to
the Federal agency, whether or not the
agency is participating in the
proceeding.
§ 1982.109 Decision and orders of the
administrative law judge.

(a) The decision of the ALJ will
contain appropriate findings,
conclusions, and an order pertaining to
the remedies provided in paragraph (d)
of this section, as appropriate. A
determination that a violation has
occurred may be made only if the
complainant has demonstrated by a
preponderance of the evidence that

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protected activity was a contributing
factor in the adverse action alleged in
the complaint.
(b) If the complainant has satisfied the
burden set forth in the prior paragraph,
relief may not be ordered if the
respondent demonstrates by clear and
convincing evidence that it would have
taken the same adverse action in the
absence of any protected behavior.
(c) Neither the Assistant Secretary’s
determination to dismiss a complaint
without completing an investigation
pursuant to § 1982.104(e) nor the
Assistant Secretary’s determination to
proceed with an investigation is subject
to review by the ALJ, and a complaint
may not be remanded for the
completion of an investigation or for
additional findings on the basis that a
determination to dismiss was made in
error. Rather, if there otherwise is
jurisdiction, the ALJ will hear the case
on the merits or dispose of the matter
without a hearing if the facts and
circumstances warrant.
(d)(1) If the ALJ concludes that the
respondent has violated the law, the
order will direct the respondent to take
appropriate affirmative action to make
the employee whole, including, where
appropriate: a requirement that the
respondent abate the violation;
reinstatement with the same seniority
status that the employee would have
had but for the retaliation; back pay
with interest; and compensation for any
special damages sustained as a result of
the retaliation, including litigation
costs, expert witness fees, and
reasonable attorney’s fees. The order
may also include payment of punitive
damages up to $250,000.
(2) If the ALJ determines that the
respondent has not violated the law, an
order will be issued denying the
complaint. If, upon the request of the
respondent, the ALJ determines that a
complaint filed under NTSSA was
frivolous or was brought in bad faith,
the ALJ may award to the respondent a
reasonable attorney’s fee, not exceeding
$1,000.
(e) The decision will be served upon
all parties to the proceeding, the
Assistant Secretary, and the Associate
Solicitor, Division of Fair Labor
Standards. Any ALJ’s decision requiring
reinstatement or lifting an order of
reinstatement by the Assistant Secretary
will be effective immediately upon
receipt of the decision by the
respondent. All other portions of the
ALJ’s order will be effective 10 business
days after the date of the decision unless
a timely petition for review has been
filed with the Administrative Review
Board (‘‘ARB’’).

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§ 1982.110 Decision and orders of the
Administrative Review Board.

(a) Any party desiring to seek review,
including judicial review, of a decision
of the ALJ, or a respondent alleging that
the complaint under NTSSA was
frivolous or brought in bad faith who
seeks an award of attorney’s fees up to
$1,000, must file a written petition for
review with the ARB, U.S. Department
of Labor (200 Constitution Avenue,
NW., Washington, DC 20210), which
has been delegated the authority to act
for the Secretary and issue final
decisions under this part. The decision
of the ALJ will become the final order
of the Secretary unless, pursuant to this
section, a petition for review is timely
filed with the ARB and the ARB accepts
the petition for review. The parties
should identify in their petitions for
review the legal conclusions or orders to
which they object, or the objections will
ordinarily be deemed waived. A petition
must be filed within 10 business days of
the date of the decision of the ALJ. The
date of the postmark, facsimile
transmittal, or e-mail communication
will be considered to be the date of
filing; if the petition is filed in person,
by hand-delivery or other means, the
petition is considered filed upon
receipt. The petition must be served on
all parties and on the Chief
Administrative Law Judge at the time it
is filed with the ARB. Copies of the
petition for review and all briefs must
be served on the Assistant Secretary,
and on the Associate Solicitor, Division
of Fair Labor Standards, U.S.
Department of Labor.
(b) If a timely petition for review is
filed pursuant to paragraph (a) of this
section, the decision of the ALJ will
become the final order of the Secretary
unless the ARB, within 30 days of the
filing of the petition, issues an order
notifying the parties that the case has
been accepted for review. If a case is
accepted for review, the decision of the
ALJ will be inoperative unless and until
the ARB issues an order adopting the
decision, except that a preliminary
order of reinstatement will be effective
while review is conducted by the ARB,
unless the ARB grants a motion by the
respondent to stay that order based on
exceptional circumstances. The ARB
will specify the terms under which any
briefs are to be filed. The ARB will
review the factual determinations of the
ALJ under the substantial evidence
standard. If no timely petition for
review is filed, or the ARB denies
review, the decision of the ALJ will
become the final order of the Secretary.
If no timely petition for review is filed,
the resulting final order is not subject to
judicial review.

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(c) The final decision of the ARB will
be issued within 120 days of the
conclusion of the hearing, which will be
deemed to be 10 business days after the
date of the decision of the ALJ unless a
motion for reconsideration has been
filed with the ALJ in the interim, in
which case the conclusion of the
hearing is the date the motion for
reconsideration is denied or ten
business days after a new decision is
issued. The ARB’s final decision will be
served upon all parties and the Chief
Administrative Law Judge by mail. The
final decision also will be served on the
Assistant Secretary, and on the
Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of
Labor, even if the Assistant Secretary is
not a party.
(d) If the ARB concludes that the
respondent has violated the law, the
final order will order the respondent to
take appropriate affirmative action to
make the employee whole, including,
where appropriate: a requirement that
the respondent abate the violation;
reinstatement with the same seniority
status that the employee would have
had but for the retaliation; back pay
with interest; and compensation for any
special damages sustained as a result of
the retaliation, including litigation
costs, expert witness fees, and
reasonable attorney’s fees. The order
also may include payment of punitive
damages up to $250,000.
(e) If the ARB determines that the
respondent has not violated the law, an
order will be issued denying the
complaint. If, upon the request of the
respondent, the ARB determines that a
complaint under NTSSA was frivolous
or was brought in bad faith, the ARB
may award to the respondent a
reasonable attorney’s fee, not exceeding
$1,000.
Subpart C—Miscellaneous Provisions
§ 1982.111 Withdrawal of complaints,
objections, and petitions for review;
settlement.

(a) At any time prior to the filing of
objections to the Assistant Secretary’s
findings and/or preliminary order, a
complainant may withdraw his or her
complaint under NTSSA or FRSA by
filing a written withdrawal with the
Assistant Secretary. The Assistant
Secretary then will determine whether
to approve the withdrawal. The
Assistant Secretary will notify the
respondent (or the respondent’s legal
counsel if respondent is represented by
counsel) of the approval of any
withdrawal. If the complaint is
withdrawn because of settlement, the
settlement must be submitted for

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approval in accordance with paragraph
(d) of this section. A complainant may
not withdraw his or her complaint after
the filing of objections to the Assistant
Secretary’s findings and preliminary
order.
(b) The Assistant Secretary may
withdraw his or her findings and/or a
preliminary order at any time before the
expiration of the 30-day objection
period described in § 1982.106,
provided that no objection yet has been
filed, and substitute new findings and/
or a preliminary order. The date of the
receipt of the substituted findings or
order will begin a new 30-day objection
period.
(c) At any time before the Assistant
Secretary’s findings and/or order
become final, a party may withdraw its
objections to the Assistant Secretary’s
findings and/or order by filing a written
withdrawal with the ALJ. If a case is on
review with the ARB, a party may
withdraw its petition for review of an
ALJ’s decision at any time before that
decision becomes final by filing a
written withdrawal with the ARB. The
ALJ or the ARB, as the case may be, will
determine whether to approve the
withdrawal of the objections or the
petition for review. If the ALJ approves
a request to withdraw objections to the
Assistant Secretary’s findings and/or
order, and there are no other pending
objections, the Assistant Secretary’s
findings and/or order will become the
final order of the Secretary. If the ARB
approves a request to withdraw a
petition for review of an ALJ decision,
and there are no other pending petitions
for review of that decision, the ALJ’s
decision will become the final order of
the Secretary. If objections or a petition
for review are withdrawn because of
settlement, the settlement must be
submitted for approval in accordance
with paragraph (d) of this section.
(d)(1) Investigative settlements. At any
time after the filing of a complaint, and
before the findings and/or order are
objected to or become a final order by
operation of law, the case may be settled
if the Assistant Secretary, the
complainant, and the respondent agree
to a settlement. The Assistant
Secretary’s approval of a settlement
reached by the respondent and the
complainant demonstrates his or her
consent and achieves the consent of all
three parties.
(2) Adjudicatory settlements. At any
time after the filing of objections to the
Assistant Secretary’s findings and/or
order, the case may be settled if the
participating parties agree to a
settlement and the settlement is
approved by the ALJ if the case is before
the ALJ, or by the ARB if the ARB has

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accepted the case for review. A copy of
the settlement will be filed with the ALJ
or the ARB, as the case may be.
(e) Any settlement approved by the
Assistant Secretary, the ALJ, or the ARB
will constitute the final order of the
Secretary and may be enforced pursuant
to § 1982.113.
§ 1982.112

Judicial review.

(a) Within 60 days after the issuance
of a final order under §§ 1982.109 and
1982.110, any person adversely affected
or aggrieved by the order may file a
petition for review of the order in the
United States Court of Appeals for the
circuit in which the violation allegedly
occurred or the circuit in which the
complainant resided on the date of the
violation.
(b) A final order of the ARB is not
subject to judicial review in any
criminal or other civil proceeding.
(c) If a timely petition for review is
filed, the record of a case, including the
record of proceedings before the ALJ,
will be transmitted by the ARB to the
appropriate court pursuant to the
Federal Rules of Appellate Procedure
and the local rules of the court.
§ 1982.113

Judicial enforcement.

Whenever any person has failed to
comply with a preliminary order of
reinstatement, or a final order, including
one approving a settlement agreement,
issued under NTSSA, the Secretary or a
person on whose behalf the order was
issued may file a civil action seeking
enforcement of the order in the United
States district court for the district in
which the violation was found to have
occurred. Whenever a person has failed
to comply with a preliminary order of
reinstatement, or a final order, including
one approving a settlement agreement,
issued under FRSA, the Secretary may
file a civil action seeking enforcement of
the order in the United States district
court for the district in which the
violation was found to have occurred. In
such civil actions under NTSSA and
FRSA, the district court will have
jurisdiction to grant all appropriate
relief, including, but not limited to,
injunctive relief and compensatory
damages, including:
(1) Reinstatement with the same
seniority status that the employee
would have had, but for the retaliation;
(2) The amount of back pay, with
interest; and
(3) Compensation for any special
damages sustained as a result of the
retaliation, including litigation costs,
expert witness fees, and reasonable
attorney’s fees.

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§ 1982.114 District Court jurisdiction of
retaliation complaints.

(a) If there is no final order of the
Secretary, 210 days have passed since
the filing of the complaint, and there is
no showing that there has been delay
due to the bad faith of the complainant,
the complainant may bring an action at
law or equity for de novo review in the
appropriate district court of the United
States, which will have jurisdiction over
such an action without regard to the
amount in controversy.
(b) Fifteen days in advance of filing a
complaint in Federal court, a
complainant must file with the
Assistant Secretary, the ALJ, or the ARB,
depending upon where the proceeding
is pending, a notice of his or her
intention to file such complaint. The
notice must be served on all parties to
the proceeding. A copy of the notice
must be served on the Regional
Administrator, the Assistant Secretary,
Occupational Safety and Health
Administration, and on the Associate
Solicitor, Division of Fair Labor
Standards, U.S. Department of Labor.
The complainant shall file and serve a
copy of the district court complaint on
the above as soon as possible after the
district court complaint has been filed
with the court.
§ 1982.115
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 that justice or the administration
of NTSSA or FRSA requires.
[FR Doc. 2010–21128 Filed 8–30–10; 8:45 am]
BILLING CODE 4510–26–P

DEPARTMENT OF LABOR
Occupational Safety and Health
Administration
29 CFR Part 1983
[Docket Number OSHA–2010–0006]
RIN 1218–AC47

Procedures for the Handling of
Retaliation Complaints Under Section
219 of the Consumer Product Safety
Improvement Act of 2008
Occupational Safety and Health
Administration, Labor.
ACTION: Interim Final rule; request for
comments.
AGENCY:

This document provides the
interim final text of regulations

SUMMARY:

E:\FR\FM\31AUR2.SGM

31AUR2