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In addition, Therio, Inc., is not
currently listed in the animal drug
regulations as a sponsor of an approved
application. Accordingly, § 510.600 is
being amended to add entries for this
sponsor.
This rule does not meet the definition
of ‘‘rule’’ in 5 U.S.C. 804(3)(A) because
it is a rule of ‘‘particular applicability.’’
Therefore, it is not subject to the
congressional review requirements in 5
U.S.C. 801–808.
List of Subjects

Firm name and address

*
052923

*
*
*
*
Therio, Inc., 8801 Anderson Ave.,
Manhattan, KS 66503

*

*

*

PART 522—IMPLANTATION OR
INJECTABLE DOSAGE FORM NEW
ANIMAL DRUGS

§ 522.1002

[Amended]

4. In paragraph (a)(2) of § 522.1002,
remove ‘‘059521’’ and add in its place
‘‘No. 052923’’.
■

Animal drugs.
Therefore, under the Federal Food,
Drug, and Cosmetic Act and under
authority delegated to the Commissioner
of Food and Drugs and redelegated to
the Center for Veterinary Medicine, 21
CFR parts 510 and 522 are amended as
follows:

Dated: January 12, 2011.
Steven D. Vaughn,
Director, Office of New Animal Drug
Evaluation, Center for Veterinary Medicine.
[FR Doc. 2011–909 Filed 1–14–11; 8:45 am]
BILLING CODE 4160–01–P

DEPARTMENT OF LABOR

PART 510—NEW ANIMAL DRUGS

Occupational Safety and Health
Administration

1. The authority citation for 21 CFR
part 510 continues to read as follows:

■

Authority: 21 U.S.C. 321, 331, 351, 352,
353, 360b, 371, 379e.

29 CFR Part 24

2. In § 510.600, in the table in
paragraph (c)(1), remove the entry for
‘‘Ausa International, Inc.’’; and
alphabetically add a new entry for
‘‘Therio, Inc.’’; and in the table in
paragraph (c)(2), remove the entry for
‘‘059521’’; and in numerical sequence
add a new entry for ‘‘052923’’ to read as
follows:

RIN 1218–AC25

■

§ 510.600 Names, addresses, and drug
labeler codes of sponsors of approved
applications.

*

*

Firm name and address

*
*
*
*
Therio, Inc., 8801 Anderson Ave.,
Manhattan, KS 66503 ...............
*

*

*

(2) * * *

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*

[Docket Number: OSHA–2007–0028]

Procedures for the Handling of
Retaliation Complaints Under the
Employee Protection Provisions of Six
Environmental Statutes and Section
211 of the Energy Reorganization Act
of 1974, as Amended
Occupational Safety and Health
Administration, Labor.
ACTION: Final rule.
AGENCY:

This document provides the
final text of regulations governing the
employee protection (or
‘‘whistleblower’’) provisions of Section
211 of the Energy Reorganization Act of
1974, as amended, (‘‘ERA’’),
Drug
implementing the statutory changes
labeler
enacted into law on August 8, 2005, as
code
part of the Energy Policy Act of 2005.
The regulations also finalize changes to
*
the procedures for handling retaliation
complaints under Section 211 of the
052923 ERA and the six environmental
whistleblower statutes that were
*
designed to make them as consistent as
possible with the more recently
promulgated procedures for handling

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SUMMARY:

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retaliation complaints under other
whistleblower provisions administered
by the Occupational Safety and Health
Administration (OSHA).
DATES: This final rule is effective on
January 18, 2011.
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.
SUPPLEMENTARY INFORMATION:
I. Background

Authority: 21 U.S.C. 360b.

21 CFR Part 522

*
*
(c) * * *
(1) * * *

*

3. The authority citation for 21 CFR
part 522 continues to read as follows:

Administrative practice and
procedure, Animal drugs, Labeling,
Reporting and recordkeeping
requirements.

*

*

■

21 CFR Part 510

WReier-Aviles on DSKDVH8Z91PROD with RULES

Drug labeler
code

The Energy Policy Act of 2005, Public
Law 109–58, was enacted on August 8,
2005. Among other provisions, this new
law amended the employee protection
provisions for nuclear whistleblowers
under Section 211 of the ERA, 42 U.S.C.
5851; the statutory amendments affect
only ERA whistleblower complaints.
The changes to the regulations also
affect the six environmental
whistleblower statutes because the same
procedures generally apply to each of
the statutes covered in 29 CFR part 24.
Because OSHA recognizes the
importance of consistency in the
procedures governing the whistleblower
statutes that it administers, it has tried
to standardize these regulations with
other whistleblower regulations
promulgated by OSHA to the extent
possible within the bounds of the
statutory language. We have removed
from this background section as
unnecessary and confusing the
statement in the interim final rule that
the 2005 ERA amendments apply to
claims filed on or after August 8, 2005;
OSHA takes no position in these
regulations on the applicability of the
2005 ERA amendments to complaints
filed with the Department before August
8, 2005.
II. Summary of Statutory Changes to
ERA Whistleblower Provisions
Section 629 of Public Law 109–58
(119 Stat. 785) amended Section 211 of
the ERA, 42 U.S.C. 5851, by making the
changes described below.
Revised Definition of ‘‘Employer’’
Section 211 of the ERA defined a
covered ‘‘employer’’ to include:
Licensees of the Nuclear Regulatory
Commission (‘‘Commission’’); applicants
for such licenses, and their contractors
and subcontractors; contractors and
subcontractors of the Department of
Energy, except those involved in naval
nuclear propulsion work under
Executive Order 12344; licensees of an

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Federal Register / Vol. 76, No. 11 / Tuesday, January 18, 2011 / Rules and Regulations
agreement State under Section 274 of
the Atomic Energy Act of 1954;
applicants for such licenses, and their
contractors and subcontractors. The
August 2005 amendments revised the
definition of ‘‘employer’’ to extend
coverage to employees of contractors
and subcontractors of the Commission;
the Commission; and the Department of
Energy.
De Novo Review
The August 2005 amendments added
a provision for de novo review by a
United States District Court in the event
that the Secretary has not issued a final
decision within one year after the filing
of a complaint, and there is no showing
that the delay is due to the bad faith of
the complainant.

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III. Summary of Regulations and
Rulemaking Proceedings
On August 10, 2007, the Occupational
Safety and Health Administration
published in the Federal Register an
interim final rule revising the rules that
implemented Section 211 of the ERA,
and the whistleblower provisions of the
environmental statutes listed in part 24,
72 FR 44956–44969. In addition to
promulgating the interim final rule,
OSHA’s notice included a request for
public comment on the interim rules by
October 9, 2007.
In response, two organizations—the
Government Accountability Project
(‘‘GAP’’) and the National Whistleblower
Center (‘‘NWC’’)—and four individuals—
William H. Ewing, Esq.; Richard R.
Renner, Esq., Jason M. Zuckerman, Esq.,
and James F. Newport—filed comments
with the agency within the public
comment period. OSHA has reviewed
and considered these comments and
now adopts this final rule which has
been revised in part to address problems
perceived by the agency and the
commenters.
General Comments
Richard R. Renner, Jason M.
Zuckerman, and William H. Ewing
commented generally that they believe
the interim final regulations frustrate
the purposes of the statutes to protect
the public from environmental and
nuclear safety dangers. They further
commented that the interim final rule
will deter complainants who have filed
complaints under Section 211 of the
ERA from seeking de novo relief in
district courts. Renner and Zuckerman
stated that previously the National
Employment Lawyers Association
helped initiate a liaison process with
the Office of Administrative Law Judges
(OALJ) and with OSHA ‘‘to establish
avenues of communication among

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2809

policy makers, whistleblower groups
and employer groups’’ and expressed
disappointment that the Department did
not use that process to collect
information and make decisions prior to
issuing an interim final rule. Although
no formal liaison process has been
established, OSHA has met with
representatives of the National
Employment Lawyers Association and
looks forward to further dialogue with
its stakeholders.
The provisions in the interim final
rule governing the filing of actions for
de novo review in district court were
modeled on the regulations
implementing 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, codified at 29 CFR
part 1980. OSHA does not believe that
those regulations have deterred
complainants from taking actions to
district court under the de novo review
provision. Nevertheless, based on a
review of the comments and the
agency’s further consideration, OSHA
has made some changes to the preamble
and regulatory provisions that address
an employee’s option of proceeding in
district court.

Richard R. Renner and Jason
Zuckerman commented that it would be
helpful if the Department clarified in
this Summary and Discussion of
Regulatory Provisions that adverse
actions in Title VII retaliation cases are
not limited to tangible employment
actions and that the burdens of proof in
ERA cases, which were altered by
statute in 1992, differ from the burdens
of proof generally applicable to
traditional discrimination cases. Renner
and Zuckerman suggested that these
principles can be clarified by including
within the regulations definitions of
‘‘unfavorable personnel action,’’ ‘‘clear
and convincing evidence,’’ and
‘‘contributing factor.’’ OSHA does not
believe that these clarifications are
necessary in the regulations. However,
OSHA has included a discussion of
these phrases in the preamble. Also, as
explained in more detail below, for
clarity and consistency, the final
regulations use the phrase ‘‘adverse
action’’ throughout, rather than the
phrase ‘‘unfavorable personnel action.’’
In addition, both the preamble and the
regulations clearly distinguish between
the burdens of proof that apply under
Section 211 of the ERA and the burdens
of proof that apply under the six
environmental whistleblower statutes.

IV. Summary and Discussion of
Regulatory Provisions
The regulatory provisions in this part
have been revised to be consistent with
other whistleblower regulations
promulgated by OSHA to the extent
possible within the bounds of the
statutory language of the ERA and the
six environmental statutes listed in
section 24.100(a). The section numbers
of these regulations also have been
changed to correspond with the
numbering under the regulations
implementing other whistleblower
statutes administered by OSHA.
Although these regulations are intended
to be consistent with the majority of
OSHA’s other whistleblower
regulations, they refer to actions brought
under the whistleblower provisions of
the ERA and the six environmental
statutes as actions alleging ‘‘retaliation’’
rather than ‘‘discrimination.’’ This
change in terminology, which is not
intended to have substantive effect,
reflects 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).

Subpart A—Complaints, Investigations,
Issuance of Findings

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Section 24.100

Purpose and Scope

This section (formerly section 24.1)
describes the purpose of the regulations
implementing the whistleblower
provisions of seven statutes enforced by
the Secretary of Labor and provides an
overview of the procedures covered by
the regulations. The section has been
revised to refer to the Federal Water
Pollution Control Act, instead of the
Clean Water Act. They are synonymous,
but the Office of Administrative Law
Judges and the Administrative Review
Board (ARB) generally use Federal
Water Pollution Control Act, and we do
so here for the sake of consistency. In
addition, the section has been
renumbered to conform to the
numbering system for other
whistleblower regulations promulgated
by OSHA. Thus, for example, former
section 24.1 becomes current section
24.100. No comments were received on
this section.
Section 24.101 Definitions
This new section includes general
definitions applicable to the
whistleblower provisions of the seven
statutes listed in section 24.100(a). This
section does not include programspecific definitions, which may be

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found in the statutes. For purposes of
clarity, OSHA has added a definition of
‘‘business days’’ to this definitional
section. The term means days other than
Saturday, Sunday, and Federal holidays.
One comment was received regarding
the definitions contained in section
24.101. GAP commented that the
definition of ‘‘Respondent’’ should
include individuals other than
employers, because the Solid Waste
Disposal Act (SWDA), 42 U.S.C. 6971(a),
provides that ‘‘[n]o person shall fire, or
in any other way discriminate against
* * * any employee’’ who has engaged
in protected activity, and the Federal
Water Pollution Control Act (FWPCA),
33 U.S.C. 1367, and the Comprehensive
Environmental Response,
Compensation, and Liability Act
(CERCLA), 42 U.S.C. 9610, have similar
provisions. As GAP acknowledges in its
comments, however, the ARB has held
that notwithstanding the use of ‘‘person’’
in the FWPCA, SWDA, and CERCLA in
place of ‘‘employer,’’ the statutes
nevertheless require that the respondent
have an employment relationship with
the complainant or act in the capacity
of an employer, that is, exercise control
over the terms, conditions, or privileges
of the complainant’s employment. See,
e.g., Culligan v. American Heavy Lifting
Shipping Co., No. 03–046 (ARB June 30,
2004). Accordingly, OSHA does not
believe that changes to the definition of
Respondent are necessary.
Section 24.102 Obligations and
Prohibited Acts
This section (formerly section 24.2)
describes the activities that are
protected under the statutes covered by
this part, and the conduct that is
prohibited in response to any protected
activities. The language generally has
been revised to conform to the language
in the majority of the other
whistleblower regulations promulgated
by OSHA, to the extent possible within
the bounds of the statutory language of
the ERA and the six environmental
statutes. The changes are not intended
to be substantive. References to the
statutes listed in section 24.100(a) have
deleted the adjective ‘‘Federal’’ as
unnecessary. Paragraph (e) has been
moved from former section 24.9. We
note that the ARB interprets the phrase
‘‘deliberate violations’’ for the purpose of
denying protection to an employee as
including an element of willfulness. See
Fields v. U.S. Dep’t of Labor Admin.
Review Bd., 173 F.3d 811, 814 (11th Cir.
1999) (petitioners knowingly conducted
unauthorized and potentially dangerous
experiments).
One comment was received regarding
the obligations and prohibited acts

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contained in section 24.102. GAP
commented that in section 24.102(a),
the term ‘‘employer’’ is too restrictive
with respect to the FWPCA, CERCLA,
and SWDA. As discussed above, the
ARB has held that the use of ‘‘person’’
in the FWPCA, SWDA, and CERCLA in
place of ‘‘employer’’ still requires that
the respondent have an employment
relationship with the complainant or act
in the capacity of an employer.
Accordingly, OSHA does not believe
that use of the term ‘‘employer’’ is too
restrictive in section 24.102(a). We note
that former section 24.2 also used the
term ‘‘employer’’ in describing
obligations and prohibited acts. GAP
also commented that the phrase ‘‘or
otherwise retaliate against’’ should be
changed to the statutory language ‘‘or
otherwise discriminate against’’ to be
consistent with the statutes, and that the
language in section 24.102(c) describing
the prohibitions under the ERA also
should be changed from ‘‘retaliate’’ to
‘‘discriminate,’’ because
‘‘ ‘[d]iscrimination’ and ‘retaliation’ are
not synonyms.’’ According to GAP, the
latter term ‘‘requires a showing of
animus; the former only disparate
treatment.’’ As noted in this preamble,
the use of the term ‘‘retaliation’’ in lieu
of ‘‘discrimination’’ in these regulations
is not meant to have a substantive
distinction. Rather, the change in
nomenclature reflects that claims
brought under these whistleblower
provisions are prototypical retaliation
claims. Use of the term ‘‘retaliation’’
does not preclude a complaint based on
an allegation of ‘‘disparate treatment,’’ as
suggested by GAP. A discrimination
claim based on ‘‘disparate treatment’’
requires a showing of intent to
discriminate. See, e.g., EEOC v. Joe’s
Stone Crab, Inc., 220 F.3d 1263, 1283–
84 (11th Cir. 2000). Similarly, a
retaliation claim requires a showing of
intent to retaliate. See Wallace v. DTG
Operations, Inc., 442 F.3d 1112, 1119
(8th Cir. 2006) (‘‘The ultimate question
in any retaliation case is whether the
employer’s adverse action against the
employee was motivated by retaliatory
intent.’’). Accordingly, OSHA does not
believe that it is necessary to change its
use of the word ‘‘retaliation,’’ which is
an accurate description of the type of
discrimination claim that is at issue
under the whistleblower provisions of
the ERA and the six environmental
statutes.
Section 24.103 Filing of Retaliation
Complaint
This section (formerly section 24.3)
has been revised to be consistent with
the regulatory procedures implementing
other whistleblower provisions

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administered by OSHA. Thus, the
section heading has been changed from
‘‘Complaint’’ to ‘‘Filing of retaliation
complaint.’’ Also, paragraph (c) has been
changed to paragraph (b) and the
heading has been changed from ‘‘Form
of Complaint’’ to ‘‘Nature of filing.’’
Paragraph (d) has been changed to
paragraph (c); and paragraph (b) has
been changed to paragraph (d) and the
language has been changed to conform
with that appearing in most of OSHA’s
other whistleblower regulations.
Finally, paragraph (e) ‘‘Relationship to
section 11(c) complaints’’ has been
added to explain the policy of the
Secretary regarding the relationship
between complaints filed under the
statutes listed in section 24.100(a) and
a complaint under Section 11(c) of the
Occupational Safety and Health Act. No
comments were received on this section.
The final regulation in paragraph (b)
has been revised to provide that no
particular form of complaint is required.
Paragraph (b) specifies that a complaint
may be made orally or in writing. It also
states that when a complaint is made
orally, OSHA will reduce the complaint
to writing and that if a complainant is
not able to file the complaint in English,
the complaint may be filed in any
language. These changes are consistent
with decisions of the ARB, which have
permitted oral complaints. See, e.g.,
Roberts v. Rivas Environmental
Consultants, Inc., 96–CER–1, 1997 WL
578330, at *3 n.6 (Admin. Review Bd.
Sept. 17, 1997) (complainant’s oral
statement to an OSHA investigator, and
the subsequent preparation of an
internal memorandum by that
investigator summarizing the oral
complaint, satisfies the ‘‘in writing’’
requirement of CERCLA, 42 U.S.C.
§ 9610(b), and the Department’s
accompanying regulations in 29 CFR
part 24); Dartey v. Zack Co. of Chicago,
No. 82–ERA–2, 1983 WL 189787, at *3
n.1 (Sec’y of Labor Apr. 25, 1983)
(adopting administrative law judge’s
findings that complainant’s filing of a
complaint to the wrong DOL office did
not render the filing invalid and that the
agency’s memorandum of the complaint
satisfied the ‘‘in writing’’ requirement of
the ERA and the Department’s
accompanying regulations in 29 CFR
part 24). Moreover, this is consistent
with OSHA’s longstanding practice of
accepting oral complaints filed under
Section 11(c) of the Occupational Safety
and Health Act of 1970, 29 U.S.C.
660(c); Section 211 of the Asbestos
Hazard Emergency Response Act of
1986, 15 U.S.C. 2651; Section 7 of the
International Safe Container Act of
1977, 46 U.S.C. 80507; and the Surface

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Transportation Assistance Act of 1982,
49 U.S.C. 31105.
Section 24.104 Investigation
This section (formerly section 24.4)
has been revised so that its language
will conform more closely to the
language of the majority of OSHA’s
other whistleblower regulations.
Additionally, former paragraph (b) of
section 24.5 has been revised and
moved to this section, and former
paragraph (d) of section 24.4 has been
revised and moved to section 24.105,
where it more appropriately appears
under ‘‘Issuance of findings and orders.’’
Paragraphs (e) and (f) of section
24.104 set forth the standards of
causation that OSHA applies to cases
under the six environmental
whistleblower statutes and the ERA.
When adjudicating whistleblower
complaints under the six environmental
whistleblower statutes, the Department
has relied on standards derived from
discrimination case law as set forth
under Mt. Healthy City School District
Board of Education v. Doyle, 429 U.S.
274 (1977); Price Waterhouse v.
Hopkins, 490 U.S. 228 (1989); Texas
Department of Community Affairs v.
Burdine, 450 U.S. 248 (1981); and
McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). See Abdur-Rahman v.
Dekalb County, ARB Case Nos. 08–003,
10–074, 2010 WL 2158226, at *6
(Admin. Review Bd. May 18, 2010)
(motion for reconsideration pending);
Dartey v. Zack Co., No. 82–ERA–2, 1983
WL 189787, at *3–*4 (Sec’y of Labor
Apr. 25, 1983). Under these standards,
a complainant may prove retaliation
either by showing that the respondent
took the adverse action because of the
complainant’s protected activity or by
showing that retaliation was a
motivating factor in the adverse action
(i.e. a ‘‘mixed-motive analysis’’). See,
e.g., Abdur-Rahman, 2010 WL 2158226,
at *6 (FWPCA case applying a mixed
motive analysis); Higgins v. Alyeska
Pipeline Serv. Corp., ARB Case No. 01–
022, 2003 WL 21488356, at *4 (Admin.
Review Bd. June 27, 2003) (explaining
burdens of proof applicable to claims
under TSCA, SWDA, and CAA); Masek
v. The Cadle Co., ARB Case No. 97–069,
2000 WL 562699, at *9–*10 (Admin.
Review Bd. Apr. 28, 2000) (explaining
burdens of proof applicable to claims
under FWCPA, TSCA, CAA and
CERCLA); Combs v. Lambda Link, ARB
Case No. 96–066, 1997 WL 665483, at
*1–*2 (Admin. Review Bd. Oct. 17,
1997) (applying mixed-motive analysis
under CAA, TSCA, FWCPA).
If the complainant demonstrates that
the respondent acted at least in part for
prohibited reasons, the burden shifts to

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the respondent to prove by a
preponderance of the evidence, that it
would have reached the same decision
even in the absence of protected
activity. See, e.g., Dixon v. U.S. Dep’t of
Interior, Bureau of Land Mgmt., ARB
Case No. 06–14706–160, 2008 WL
4124113, at *9–*10 (Admin. Review Bd.
Aug. 28, 2008) (applying ‘‘mixed
motive’’ analysis to claims under
CERCLA and SDWA); Dartey, 1983 WL
189787, at *4 (discussing Mt. Healthy,
429 U.S. at 287). In such cases, the
employer ‘‘bears the risk that ‘the
influence of legal and illegal motives
cannot be separated.’ ’’ Mackowiak v.
Univ. Nuclear Sys. Inc., 735 F.2d 1159,
1164 (9th Cir. 1984) (ERA case) (which
quoted NLRB v. Transp. Mgmt. Corp.,
462 U.S. 393, 403 (1983)).
At the investigation stage, OSHA will
dismiss the complaint unless the
complainant makes a prima facie
showing that protected activity was at
least a motivating factor in the alleged
adverse action. The complaint,
supplemented as appropriate by
interviews of the complainant, must
allege the existence of facts and
evidence to make a prima facie showing
as follows:
(i) The employee engaged in a
protected activity;
(ii) The respondent knew or suspected
that the employee engaged in the
protected activity;
(iii) The employee suffered an adverse
action; and
(iv) The circumstances were sufficient
to raise the inference that the protected
activity was a motivating factor in the
adverse action.
The complainant will be considered
to have met the required showing 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 sufficient to give rise to an
inference that the respondent knew or
suspected that the employee engaged in
protected activity and that the protected
activity was a motivating factor in the
adverse action. The required showing
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 motivating factor
in the adverse action. OSHA will
dismiss the complaint if a
preponderance of the evidence shows
that the respondent would have taken
the same adverse action in the absence
of the complainant’s protected activity.
The Department recognizes that after
promulgation of the interim final rule,
the Supreme Court issued Gross v. FBL
Financial Services, Inc., 129 S. Ct. 2343

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2811

(2009). The Court held in Gross that the
prohibition against discrimination
‘‘because of’’ age in the Age
Discrimination in Employment Act
(ADEA), 29 U.S.C. 623(a)(1), requires a
plaintiff to ‘‘prove that age was the ‘butfor’ cause of the employer’s adverse
decision.’’ 129 S. Ct. at 2350 (citation
omitted). The Court rejected arguments
that a plaintiff could prevail in an action
under the ADEA by showing that
discrimination was a motivating factor
for the adverse decision, after which the
employer had the burden of proving that
it would have reached the same
decision for non-discriminatory reasons.
Id. at 2351–52.
The Department does not believe that
the Supreme Court’s decision in Gross
affects the long-standing burden-shifting
framework applied in mixed-motive
cases under the six environmental
whistleblower statutes as reflected in
the Department’s regulations and case
law. The Supreme Court’s Gross
decision involved an age discrimination
case under the ADEA, not retaliation
cases filed by individuals under the
environmental statutes. The Supreme
Court cautioned in Gross itself that
‘‘[w]hen conducting statutory
interpretation, we ‘must be careful not
to apply rules applicable under one
statute to a different statute without
careful and critical examination.’ ’’ Id. at
2349 (quoting Fed. Express Corp. v.
Holowecki, 552 U.S. 389, 393 (2008));
see Smith v. Xerox Corp., 602 F.3d 320
(5th Cir. 2010) (ADEA analysis in Gross
is inapplicable to Title VII antiretaliation cases); But see, e.g., Serwatka
v. Rockwell Automation, Inc., 591 F.3d
957 (7th Cir. 2010) (applying Gross
reasoning to Americans with Disabilities
Act).
In addition, as the Court noted in
Gross, its decision did not conflict with,
or undermine, prior Supreme Court
decisions applying the mixed motive
burden-shifting framework to
Constitutional cases and cases under the
National Labor Relations Act (NLRA).
Gross, 129 S. Ct. at 2352 n.6 (citing
Transp. Mgmt. Corp., 462 U.S. at 401–
403; and Mt. Healthy City Bd. of Educ.,
429 U.S. at 287); but see Fairley v.
Andrews, 578 F.3d 518 (7th Cir. 2009)
(applying Gross reasoning to First
Amendment case), cert. denied, 130 S.
Ct. 3320 (2010). The Court recognized
the appropriateness of deferring to the
National Labor Relations Board’s
(NLRB’s) interpretation of the NLRA to
allow a mixed motive burden-shifting
analysis. Gross, 129 S. Ct. at 2352 n.6
(‘‘The case involving the NLRA did not
require the Court to decide in the first
instance whether burden shifting should
apply as the Court instead deferred to

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the National Labor Relations Board’s
determination that such a framework
was appropriate’’) (citation omitted); see
Hunter v. Valley View Local Schs., 579
F.3d 688, 691–92 (6th Cir. 2009)
(deferring to Department of Labor’s
Family and Medical Leave Act (FMLA)
regulations in holding that prohibition
in FMLA against interference with the
exercise of rights permits mixed-motive
analysis after Gross). With regard to the
environmental whistleblower
provisions, as with the NLRB’s
interpretation of the NLRA, the
Secretary’s longstanding administrative
case law permits a mixed-motive
analysis. This case law is due deference
as the Secretary’s reasonable
interpretation of the environmental
whistleblower statutes. Knox v. U.S.
Dep’t of Labor, 434 F.3d 721, 724 (4th
Cir. 2006) (‘‘We review the ARB’s
interpretation of the CAA under the
deferential standard set forth in Chevron
U.S.A., Inc. v. Natural Resources
Defense Council, Inc.’’); Anderson v.
U.S. Dep’t of Labor, 422 F.3d 1155,
1173, 1181 (10th Cir. 2005) (providing
Chevron deference to the ARB’s
construction of the environmental
whistleblower statutes); Reid v. Sec’y of
Labor, No. 95–3648, 1996 WL 742221, at
*1 (6th Cir. 1996) (unpubl’d) (106 F.3d
401 (Table)) (deferring to Secretary’s
reasonable construction of the term
employee under CAA); Mackowiak, 735
F.2d at 1164 (deferring to Secretary’s
application of mixed-motive analysis
under pre-amendment version of the
ERA).
Finally, the Court in Gross based its
decision that a mixed-motive analysis
was inapplicable to the ADEA in part on
its determination that Congress decided
not to amend the ADEA to clarify that
a mixed-motive analysis applied when
it amended both the ADEA and Title VII
in the Civil Rights Act of 1991 (Title
VII). Gross, 129 S. Ct. at 2349 (‘‘Unlike
Title VII, the ADEA’s text does not
provide that a plaintiff may establish
discrimination by showing that age was
simply a motivating factor. Moreover,
Congress neglected to add such a
provision to the ADEA when it
amended Title VII to add §§ 2000e–2(m)
and 2000e–5(g)(2)(B), even though it
contemporaneously amended the ADEA
in several ways’’) (citations omitted). In
so finding, the Court noted that
‘‘ ‘negative implications raised by
disparate provisions are strongest’ when
the provisions were ‘considered
simultaneously when the language
raising the implication was inserted.’ ’’
Id. (quoting Lindh v. Murphy, 521 U.S.
320, 330 (1997)). Congress did not
consider amendments to the

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environmental whistleblower provisions
when it amended Title VII and the
ADEA in the Civil Rights Act of 1991.
Thus, the environmental whistleblower
statutes do not raise the strong negative
implications that the Supreme Court
noted in Gross.
The Department therefore believes
that the application of a mixed-motive
analysis to the environmental
whistleblower statutes continues to be
appropriate based on the ARB’s
longstanding decisions interpreting
these statutes, is consistent with
Congress’ intent and is reasonable in the
context of the remedial purposes of
these laws to safeguard workers from
retaliation for protected activity
involving the public health and the
environment.
Paragraph (f) of this section, which
sets forth procedures that apply only in
ERA cases, applies the ERA’s statutory
burdens of proof. Since the 1992
amendments to the ERA, its
whistleblower provisions, in contrast to
the other whistleblower provisions
listed under section 24.100(a), have
contained specific statutory standards
for the dismissal and adjudication of
complaints. See 42 U.S.C. 5851(b)(3)(A)
through (b)(3)(D); Public Law 102–486,
§ 2902, 106 Stat. at 3123–3124. Because
the ERA expressly sets forth the burdens
of proof that apply to retaliation claims
under that statute, the holding in Gross
does not apply to the ERA. The ERA
requires that a complainant make an
initial prima facie showing that his or
her 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. 42 U.S.C.
5851(b)(3)(A). 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
distinct burden-shifting framework of
the 1992 ERA amendments served a
‘‘gatekeeping function’’ that ‘‘stemmed
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,
under the ERA, the Secretary must
dismiss the complaint 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

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adverse action; or (2) the employer
rebuts that showing by clear and
convincing evidence that it would have
taken the same adverse action absent the
protected activity. Assuming that an
investigation proceeds beyond the
gatekeeping phase, the ERA specifies
statutory burdens of proof that require
an employee to prove that the alleged
protected activity was a ‘‘contributing
factor’’ to the alleged adverse action. 42
U.S.C. 5851(b)(3)(C). If the employee
proves that the alleged protected
activity was a contributing factor to the
adverse action, the employer, to escape
liability, must prove by ‘‘clear and
convincing evidence’’ that it would have
taken the same action in the absence of
the protected activity. A contributing
factor is ‘‘any factor, which alone or in
combination 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)); cf. Trimmer, 174 F.3d at
1101 (the 1992 amendments aimed, in
part, ‘‘to make it easier for [ERA]
whistleblowers to prevail in their
discrimination suits’’)). 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
complainant’s protected activity. See
Klopfenstein v. PCC Flow Techs.
Holdings, Inc., No. 04–149, 2006 WL
1516650, *13 (ARB 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 ERA statutory burdens of proof
do not address the evidentiary standard
that applies to a complainant’s proof
that protected activity was a
contributing factor in an adverse action.
Adhering to traditional Title VII
discrimination law, 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
‘‘clear and convincing evidence’’
defense. See, e.g., Dysert v. U.S. Sec’y of
Labor, 105 F.3d 607, 609 (11th Cir.
1997) (upholding Department’s
interpretation of 42 U.S.C. 5851(b)(3)(C),
as requiring an employee to prove by a
preponderance of the evidence that

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protected activity was a contributing
factor in an adverse action); see also
Trimmer, 174 F.3d at 1102 (‘‘[o]nly if the
complainant meets his burden [of
proving by a preponderance of the
evidence that he engaged in protected
activity that was a contributing factor in
an adverse action] does the burden then
shift to the employer to demonstrate by
clear and convincing evidence that it
would have taken the same unfavorable
personnel action in the absence of such
behavior.’’); Stone & Webster
Engineering Corp. v. Herman, 115 F.3d
1568, 1572 (11th Cir. 1997) (under
section 5851, an employee must first
persuade the Secretary that protected
activity was a contributing factor in an
adverse action and then, if the employee
succeeds, the employer must prove by
clear and convincing evidence that it
would have taken the same action in the
absence of protected activity).
The 1992 ERA amendments altered
the employer’s burden in traditional
‘‘mixed motive’’ cases; under the ERA,
once the Secretary concludes that the
employer acted for both prohibited and
legitimate reasons, 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. 42
U.S.C. 5851(b)(3)(D). The ‘‘clear and
convincing evidence’’ standard is a
higher burden of proof for employers
than the former ‘‘preponderance of the
evidence’’ standard. See 138 Cong. Rec.
32,081, 32,082 (1992). Comments were
received on section 24.104 from GAP,
NWC, William H. Ewing, Richard R.
Renner, and Jason M. Zuckerman. GAP,
Ewing, Renner, and Zuckerman
commented that section 24.104(b)
should require that the respondent’s
responses to the complaint be served on
the complainant. According to GAP,
while the procedures currently require
the complainant to provide information
that can be reviewed by the respondent,
they do not require the respondent to
share information with the complainant.
Ewing, Renner, and Zuckerman
commented that investigations would be
improved if complainants were given
copies of the respondents’ responses.
OSHA believes that these concerns are
valid and has specified in the regulation
that 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 or the complainant’s legal
counsel, the agency will redact them, if

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necessary, in accordance with the
Privacy Act of 1974, 5 U.S.C. 552a, et
seq., and other applicable
confidentiality laws. The agency expects
that sharing information with
complainants in accordance with this
new provision will enhance OSHA’s
ability to conduct full and fair
investigations and permit the Assistant
Secretary to more thoroughly assess
defenses raised by respondents.
Commenting on section 24.104(c),
Renner and Zuckerman commented that
it is important for employee witnesses
of respondents to have the option of
meeting privately with the OSHA
investigator because they may be
reluctant to speak to investigators for
fear of retaliation. While OSHA does not
believe that any changes to its
regulations are necessary, it is OSHA’s
policy to meet privately with nonmanagement employees. The facts and
circumstances of each case will be
considered in determining whether an
employee is a non-management
employee. In addition, the
whistleblower provisions of the six
environmental statutes and the ERA
protect management employees to the
same extent that they protect nonmanagement employees. Thus, where
the complainant is a management
employee, it is OSHA’s policy to meet
privately with the complainant.
GAP objected to OSHA’s use in
sections 24.104(d) and (e) of the terms
‘‘unfavorable personnel action’’ and
‘‘adverse personnel action,’’ because
those terms suggest that only actions
taken by an employer’s personnel or
human resources departments are
actionable. OSHA does not believe that
the reference to ‘‘personnel action’’ in
sections 24.104(d) and (e) of the interim
final rule suggested that only adverse
actions taken by personnel or human
resources departments are actionable.
However, for clarity and consistency,
the final regulatory text has been
changed to use ‘‘adverse action’’
throughout.
GAP also commented with respect to
section 24.104(e)(4) that to refuse to
investigate or discontinue an
investigation before all of the evidence
is reviewed by OSHA is ‘‘inconsistent
with the letter and spirit of the
employee protection provision of the
ERA,’’ and that only where there is no
evidence of protected activity should an
investigation be either not conducted or
discontinued. Moreover, GAP
commented that ‘‘[t]he regulations must
specify that investigators pay particular
attention to pretext in the form of
misuse of policies or unequal
enforcement of policies against those
who engage in protected activity.’’

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2813

OSHA does not believe that these
comments require revisions to the
regulations. The language contained in
section 24.104(e)(4) reflects the statutory
language of the ERA. See 42 U.S.C.
5851(b)(3)(A) and (3)(B). OSHA
conducts fair and impartial
investigations of whistleblower
complaints. In evaluating the merits of
a complaint, investigators credit only
explanations for adverse action taken by
an employer that are supported by the
evidence.
NWC commented that these
regulations should adopt the statutory
ERA burdens of proof for complaints
filed under the six environmental
statutes, because since the 1992 ERA
amendments, Congress has applied the
ERA burdens of proof to other
whistleblower statutes that it has
enacted or amended, including the
Pipeline Safety Improvement Act of
2002 (‘‘PSIA’’), 49 U.S.C. 60129; SOX;
the Wendell H. Ford Aviation
Investment and Reform Act for the 21st
Century (‘‘AIR21’’), 49 U.S.C. 42121; and
the Surface Transportation Assistance
Act of 1982 (‘‘STAA’’), 49 U.S.C. 31105.
NWC commented in this regard that the
burdens of proof currently applied to
the six environmental whistleblower
acts are not statutory, but are based on
employment discrimination law (Title
VII), and that using the ERA burdens of
proof for the six environmental statutes
would serve the interests of justice.
However, absent specific statutory
direction, OSHA does not believe it is
appropriate to apply the ERA’s burdens
of proof to the six environmental
statutes.
Section 24.105 Issuance of Findings
and Orders
The procedures set forth in this
section formerly appeared under a
paragraph of section 24.4, the
Investigations section. This new section
was created for purposes of clarification
and consistency with a majority of the
other whistleblower regulations
promulgated by OSHA. The former
regulations provided that the Assistant
Secretary would issue a ‘‘Notice of
Determination’’ at the conclusion of the
investigation, or upon dismissal of a
complaint. These regulations no longer
use the term ‘‘Notice of Determination.’’
Instead, the regulations refer to the
issuance of findings and orders, the
nomenclature used in most of OSHA’s
other whistleblower regulations. This
change in nomenclature is not intended
to be substantive.
The 30-day timeframe for completion
of the investigation has been retained
because it is a statutory requirement
under the majority of the whistleblower

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statutes covered by this part (the Solid
Waste Disposal Act, the Federal Water
Pollution Control Act, and the
Comprehensive Environmental
Response, Compensation and Liability
Act have no timeframe). The current
regulations provide a 5-business-day
timeframe for filing objections to the
findings. These new regulations have
been changed to provide that if no
objections to the Assistant Secretary’s
findings and order are filed within 30
days of their receipt, the findings and
order of the Assistant Secretary will
become the final order of the Secretary.
Thus, the timeframe for objecting to the
findings and/or order and for requesting
a hearing has been extended from 5
business days to 30 days. The Secretary
is aware that, since the ERA, the Clean
Air Act (‘‘CAA’’), the Safe Drinking
Water Act (‘‘SDWA’’), and the Toxic
Substances Control Act (‘‘TSCA’’)
provide that the Secretary should issue
a final decision within 90 days of the
filing of the complaint, allowing the
parties 30 days in which to object to the
Assistant Secretary’s findings and any
order issued may have an impact on the
Department’s meeting the 90-day
timeframe. Although the ERA
amendments in 2005 did not change the
90-day timeframe, the Secretary believes
that in amending the ERA in 2005,
Congress recognized that it
appropriately could take up to one year
to complete the investigatory and
adjudicative processing of a
whistleblower complaint (i.e., issue a
final decision of the Secretary) under
these environmental statutes.
Accordingly, the Secretary believes that
allowing 30 days for a party to object to
the Assistant Secretary’s findings and
request a hearing is warranted. Not only
does the extension make the regulations
more consistent with those
implementing the majority of the other
whistleblower statutes administered by
OSHA, it also offers the parties a more
reasonable timeframe in which to
consider whether to appeal the
Assistant Secretary’s findings.
With regard to this section, GAP,
William H. Ewing, Richard R. Renner
and Jason M. Zuckerman expressed
approval for OSHA’s decision to
increase the time period for seeking a
hearing from five business days to 30
days. In addition, GAP, Ewing, Renner,
and Zuckerman commented that in
section 24.105(b), the rule should
specifically require service on the
attorney of record for each party (if the
party has counsel). Ewing, Renner, and
Zuckerman commented that
alternatively, the rule should allow
objections within 30 days of the last

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date of service, when the party and his
or her attorney are served at different
times. Although it is already OSHA’s
policy to send its findings to the
complainant and the respondent by
certified mail with copies to their
respective attorneys, OSHA has revised
the regulations to require service on the
attorney of record.
Subpart B—Litigation
Section 24.106 Objections to the
Findings and Order and Request for a
Hearing
Formerly, the procedures for
requesting a hearing before an
administrative law judge (‘‘ALJ’’) were
set forth under section 24.6. As
indicated above, 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, 800 K Street, NW.,
Washington, DC 20001 within 30 days
of receipt of the findings. The date of
the postmark, facsimile transmittal, or email 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 also
considered a request for a hearing before
an ALJ. Although the parties are
directed to serve a copy of their
objections to 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, 200 Constitution
Ave., NW., Room N–2716, Washington,
DC 20210, the failure to serve copies of
the objections to the other parties of
record does not affect the ALJ’s
jurisdiction to hear and decide the
merits of the case. See Shirani v. Calvert
Cliffs Nuclear Power Plant, Inc., No. 04–
101, 2005 WL 2865915, *7 (ARB Oct.
31, 2005).
GAP commented that the language in
section 24.106(a) needs to be clarified
because it is unclear whether detailed
objections, which are unnecessary since
an administrative hearing is de novo,
must accompany a hearing request. GAP
suggested that the regulation be changed
to state that ‘‘it is sufficient for an
objecting party to request a hearing.’’
OSHA has considered this concern and
does not believe that changes to the rule
are necessary or that the suggested
change would add helpful clarification;
the rule contains no requirement that a
party file detailed objections to request
a hearing.

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Section 24.107 Hearings
This section has been revised to
conform to the majority of the other
whistleblower regulations promulgated
by OSHA. The interim final rule
adopted the rules of practice of the
Office of Administrative Law Judges at
29 CFR part 18, subpart A. In order to
assist in obtaining full development of
the facts in whistleblower proceedings,
however, the interim final rule provided
that formal rules of evidence do not
apply. 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 no longer addresses procedural
issues, e.g., place of hearing, right to
counsel, procedures, evidence and
record of hearing, oral arguments and
briefs, and dismissal for cause, because
the Office of Administrative Law Judges
has adopted its own rules of practice
that cover these matters. In order for
hearings to be conducted as
expeditiously as possible, and
particularly in light of the provision in
the ERA allowing complainants to seek
a de novo hearing in Federal court if the
Secretary has not issued a final decision
within one year of the filing of the
complaint, this section in the interim
final rule provided that the ALJ has
broad authority to limit discovery. The
preamble noted, for example, that an
ALJ may limit the number of
interrogatories, requests for production
of documents, or depositions allowed.
The preamble also noted that an ALJ
may exercise discretion to limit
discovery unless the complainant agrees
to delay filing a complaint in Federal
court for some definite period of time
beyond the one-year point; and that if a
complainant seeks excessive or
burdensome discovery under the ALJ’s
rules and procedures at part 18 of Title
29, or fails to adhere to an agreement to
delay filing a complaint in Federal
court, a district court considering a
request for de novo review might
conclude that such conduct resulted in
a delay due to the claimant’s bad faith.
Former paragraphs (f) and (g) of this
section have been moved to section
24.108.
Comments on section 24.107 were
received from GAP, NWC, William H.
Ewing, James F. Newport, Richard R.
Renner, and Jason M. Zuckerman. GAP
commented that this section should be
rewritten to de-emphasize the
importance of an expeditious hearing.
According to GAP, limiting discovery
injures complainants to a greater extent
than respondents because the
documents needed to prove their cases

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are in the possession of the respondents.
Similarly, NWC, Ewing, Newport,
Renner, and Zuckerman opposed the
last sentence of section 24.107(b), which
provides ALJs with broad discretion to
limit discovery to expedite hearings.
NWC commented that there is no legal
basis for treating discovery in
whistleblower cases differently from
how it is treated in Title VII cases and
that it is inconsistent with the interests
of justice and Congressional intent to
limit the ability of whistleblowers to
obtain evidence in discovery while
holding them to the same evidentiary
burden applicable in Title VII cases.
Ewing, Renner, and Zuckerman
suggested that instead of limiting
discovery, hearings could be expedited
by requiring parties to comply with the
initial disclosure requirements under
Federal Rules of Civil Procedure
26(a)(1), by shortening the time
permitted for discovery, and by
providing that ALJs can make adverse
inferences of unlawful retaliation based
on a respondent’s failure to respond
fully and completely to discovery
requests. They also commented that
hearings could be expedited by
requiring parties to provide discovery
responses in searchable electronic forms
when a party has the responsive
information in such forms. GAP also
commented that the Department should
clarify that it will not be considered bad
faith ‘‘to seek discovery; seek reasonable
delays to allow discovery; or to
accommodate the schedules of the
parties, their counsel or the ALJ.’’
Suggesting that most delays in
administrative cases occur either at the
investigative stage or during ARB
review, GAP added that complainants
should not be penalized for necessary
delays at the hearing stage.
The provisions and statements to
which GAP, NWC, Ewing, Newport,
Renner, and Zuckerman object were
intended by OSHA to implement
Congress’s intent that administrative
whistleblower hearings under the ERA
proceed expeditiously. See 42 U.S.C.
5851(b)(2)(A) and (b)(4). OSHA believes
that the short time frames provided
under the whistleblower statutes
generally, as well as the provision in
Section 211 of the ERA providing for de
novo review in district court, illustrate
a congressional intent that the
Department expedite its administrative
hearings and procedures. Nevertheless,
after carefully considering the
comments, OSHA has decided to
remove the regulatory provision in the
rule stating that ALJs have broad
discretion to limit discovery. The
provision essentially reiterates authority

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that ALJs currently possess under their
procedural rules at 29 CFR 18.14—
18.21, which permit judges to limit
discovery in appropriate circumstances
as well as to make adverse inferences
where parties fail to comply with their
discovery orders. Accordingly, the
provision is not necessary. In response
to GAP’s comments, OSHA also has
eliminated from the preamble the
suggestion that a complainant’s attempts
to engage in extensive discovery when
prosecuting or defending a claim before
an ALJ might constitute a presumption
of bad faith delay. And while OSHA
agrees that it would be beneficial for
parties to provide discovery responses
in searchable electronic formats, it does
not believe that it is appropriate for
these regulations to specify how
discovery in a particular case should
proceed. The final rule now adopts the
rules of evidence of the Office of
Administrative Law Judges at 29 CFR
part 18, subpart B, as well as the rules
of practice at subpart A. Because it is no
longer necessary for this rule to address
evidentiary matters, paragraph (d) of
this section has been deleted.
NWC commented regarding the
preamble’s discussion of this section
that OSHA should not permit an
employee to enter into an agreement to
delay filing a complaint in district court
because the jurisdictional time period
for filing such an action cannot be
altered by regulation. Rather, NWC
commented that OSHA should add to
section 24.107 a procedure in cases
where third-party witnesses refuse to
testify that permits employees to seek
stays of their administrative proceedings
so that they may file district court
complaints once the one-year ‘‘kick-out’’
period has passed. NWC believes that
such a procedure would encourage
third-party witnesses who cannot be
compelled by subpoena to testify in a
whistleblower case to voluntarily
appear before an ALJ proceeding. While
third-party witnesses may be more
inclined to voluntarily testify at ALJ
hearings as an alternative to being
compelled to testify in district court
pursuant to a subpoena, OSHA does not
believe that a special regulatory
procedure to enable complainants to
seek stays prior to filing in district court
is necessary; the regulations do not
prohibit an employee from seeking a
stay from an ALJ based on his or her
intention to file a de novo action in
district court.
Finally, James F. Newport commented
that the new rule shifts the cost of
attending hearings to the complainant
by removing the requirement that the
hearing be held within 75 miles of the
complainant’s residence (see former

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section 24.6(c)). Newport commented
that this change could discourage
complainants from pursuing a case
because of the financial burden. OSHA
does not believe that the removal of the
requirement that the hearing be held
within 75 miles of the complainant’s
residence will discourage complainants
from pursuing a case due to financial
burden. This rule provides that the rules
of practice and procedures for
administrative hearings before the OALJ
should apply to ALJ hearings. The
OALJ’s rules of practice and procedure
provide, at 29 CFR 18.27(c): ‘‘Unless
otherwise required by statute or
regulations, due regard shall be given to
the convenience of the parties and the
witnesses in selecting a place for the
hearing.’’ This same provision has
governed the scheduling of hearings
under regulations implementing the
whistleblower protection provisions of
AIR21, 29 CFR part 1979; SOX, 29 CFR
part 1980; and PSIA, 29 CFR part 1981.
No evidence has been submitted to
suggest that complainants have been
discouraged from pursuing cases under
those statutes out of concern for the
potential location of the hearing.
Section 24.108 Role of Federal
Agencies
This new section was added to
conform these regulations to the
majority of OSHA’s other whistleblower
regulations. As noted above, the
substance of this section formerly was
set forth under paragraphs (f) and (g) of
section 24.6, the section covering
hearings. No substantive changes are
intended. Under the ERA and the
environmental whistleblower statutes,
OSHA does not ordinarily 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

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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
Environmental Protection Agency, the
Nuclear Regulatory Commission, and
the Department of Energy, at those
agencies’ discretion, also may
participate as amicus curiae at any time
in the proceedings.
NWC commented that when a State
agency is named as a party, OSHA
should be required to intervene or
participate as a party in the proceeding.
In support of this comment, NWC stated
that the public interest would be served
if OSHA intervened in every case in
which a State agency is a named
respondent because Congress intended
that the whistleblower provisions of the
six environmental acts cover State
agencies. Richard R. Renner and Jason
M. Zuckerman commented that OSHA
should consider intervening on behalf of
complainants, especially where a
complainant is pro se, disputing
OSHA’s statement in the preamble that
‘‘in most whistleblower cases, parties
have been ably represented and the
public interest has not required the
Department’s participation.’’
OSHA continues to believe that its
participation as a routine matter in all
whistleblower cases is neither necessary
nor an effective use of its resources.
Nevertheless, as noted above, it is
OSHA’s policy to consider participating
in cases in which the Assistant
Secretary considers the agency’s
participation to be in the interests of
justice. The inability of complainants to
pursue their own actions against State
employers and their lack of
representation by counsel are among the
factors that OSHA considers when
exercising its discretion to intervene as
a party or as an amicus.
Section 24.109 Decision and Order 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 the environmental
statutes and the ERA. 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 24.104 is not subject
to review. Thus, paragraph (c) of section
24.109 clarifies that the Assistant
Secretary’s determinations on whether
to proceed with an investigation under
the ERA and whether to make particular
investigative findings under any of the

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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
Assistant Secretary to conduct an
investigation or make further factual
findings. Paragraph (c) further clarifies
that the ALJ will either hear a case on
the merits or dispose of the matter
without a hearing if appropriate. 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 24.104.
This section also has been revised to
eliminate the requirement under the
ERA for the ALJ to issue a preliminary
order of reinstatement separate from the
findings. The section clarifies that when
an ALJ’s decision finds that the
complaint has merit and orders relief,
the order will be effective immediately
upon its receipt by the respondent,
except for that part of the order
awarding compensatory damages.
Congress intended that whistleblowers
under the ERA be reinstated and
provided additional interim relief based
upon the ALJ’s order even while the
decision is on review with the ARB. The
previous regulations have caused
confusing delays to the complainant’s
right to immediate reinstatement. See,
e.g., McNeill v. Crane Nuclear, Inc.,
ARB Case No. 02–002, 2002 WL
31932543, at *1–*2 (Admin. Review Bd.
Dec. 20, 2002). The Secretary intends
that, by eliminating any requirement
that the ALJ ‘‘shall also issue a
preliminary order providing [all of the]
relief’’ specified in the recommended
order before an interim order becomes
effective, confusion will be avoided and
congressional intent to have
complainants promptly reinstated based
upon a meritorious ALJ decision will be
better effectuated. Id. Furthermore, the
ALJ’s order will be effective
immediately whether or not the ALJ
designates the decision and/or order as
recommended.
The substance of the rest of this
section was formerly found in section
24.7. The requirement that the ALJ issue
a decision within 20 days after the
conclusion of the hearing has 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.
GAP commented that the language in
section 24.109(b) discussing the burdens
of proof should be clarified. GAP
commented that the regulation should

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be changed to state affirmatively with
respect to the respondent’s burden that
‘‘relief must be ordered unless’’ the
respondent carries its burden of proof,
rather than to state that ‘‘relief may not
be ordered’’ if the respondent
demonstrates by clear and convincing
evidence under the ERA, or by
preponderance of the evidence under
the environmental statutes, that it
would have taken the same action in the
absence of protected activity. The
language used in the regulation,
however, accurately reflects the
statutory language in section 211 of the
ERA and, consistent with that language,
the regulation retains language
indicating that relief may not be ordered
if the respondent proves by a
preponderance of the evidence under
the environmental statutes that it would
have taken the same action in the
absence of protected activity.
Section 24.110 Decision and Orders of
the Administrative Review Board
The decision of the ALJ is the final
decision of the Secretary if no timely
petition for review is filed with the
ARB. 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, or it
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; 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 have been revised, consistent
with the majority of OSHA’s other
whistleblower regulations, to provide
that an appeal to the ARB is no longer
a matter of right but is accepted at the
discretion of the ARB. Congress
intended these whistleblower actions to
be expedited and this change may assist
in furthering that goal. The parties
should identify in their petitions for
review the legal conclusions and orders
to which exception is taken, or the
exceptions 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. The ERA,
CAA, SDWA, and TSCA contain a 90day timeframe for issuing final agency
decisions. Notwithstanding this short
timeframe, the Secretary believes that it
is appropriate to give the ARB 30 days
in which to decide whether to grant
review; as stated above, the Secretary
believes that in amending the ERA in
August 2005, Congress recognized that

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Federal Register / Vol. 76, No. 11 / Tuesday, January 18, 2011 / Rules and Regulations
the Department appropriately could take
up to one year to complete the
investigatory and adjudicative
processing of a whistleblower complaint
under these statutes. If a timely petition
for review is filed with the ARB, any
relief ordered by the ALJ, except for that
ordered under the ERA, is inoperative
while the matter is pending before the
ARB. The relief ordered by the ALJ
under the ERA is effective immediately
except for that portion awarding
compensatory damages. This section
further provides that, 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 order of relief
under the ERA, which otherwise will be
effective while review is conducted by
the ARB. The Secretary believes that a
stay of an ALJ’s order of relief under the
ERA only would be appropriate 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.
Comments on section 24.110 were
received by NWC, William H. Ewing,
Richard R. Renner, and Jason M.
Zuckerman. NWC commented that the
10-day period for filing objections is too
short and that parties should be given
between 30 and 60 days to petition for
review, depending on the level of
specificity required in the petition.
Ewing, Renner, and Zuckerman also
commented that the time period for
petitioning for review by the ARB was
too short and suggested a 30-day period
to petition for review. In addition,
Ewing, Renner, and Zuckerman
suggested that rather than provide that
exceptions not raised in the petition for
review ordinarily will be waived, the
regulations should permit parties to
supplement the reasons for seeking
review when filing their opening briefs.
They commented that to the extent that
the ARB needs to determine whether
there are issues meriting review, the
regulations can require that a party file
a petition that identifies good grounds
for review, and permit the party to raise
additional assignments of error in the
brief.
OSHA believes that 10 business days,
which also is the time frame under
AIR21 (see 29 CFR 1979.110(a)) and
under SOX (see 29 CFR 1980.110(a)), is
sufficient time to petition for review of
an ALJ decision, particularly in light of
the fact that the rule uses the date of
filing to determine timeliness rather
than the date of the ARB’s receipt of the

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petition. Furthermore, OSHA believes
that to enable the ARB to determine
whether to accept review, it is necessary
that the petition for review identify the
rulings to which the party seeking
review takes exception. Nevertheless, it
is not necessary that the petition
identify each factual finding to which
the party objects. Rather, it is sufficient
that the petition generally identify the
legal conclusions that are alleged to be
erroneous. OSHA has amended these
regulations accordingly.
NWC commented that these
regulations should revert to the previous
practice that required the ARB to review
the entire record on appeal de novo. As
indicated above, in providing that the
ARB will review factual determinations
under the substantial evidence standard,
these regulations apply the standard of
review that the ARB applies in
reviewing ALJ decisions under the
whistleblower provisions of AIR21,
SOX, and PSIA. OSHA believes that,
because the ARB is an appellate body,
it is appropriate for the ARB to give
special deference to the findings of the
trier of fact. See Henrich v. Ecolab, Inc.,
No 05–030, 2007 WL 1578490, at *4
(Admin. Review Bd. May 30, 2007) (‘‘As
we and our predecessors often have
noted, the Board is an appellate body.
We review ALJ decisions for error; we
do not simply sit as a second-tier factfinder.’’). Accordingly, no change to the
standard of review is necessary.
Finally, OSHA is changing the
regulation at section 24.110(b) to correct
the inadvertently erroneous statement
that when the ARB denies a petition for
review of an ALJ’s decision, judicial
review is not available. Although no
comments were received regarding this
error, OSHA is amending the rule to
clarify that judicial review is available
in cases where the ARB denies review
of an ALJ decision for which
appropriate review was sought.
Subpart C—Miscellaneous Provisions
Section 24.111 Withdrawal of
Complaints, Objections, and Petitions
for Review; Settlement
This section provides for procedures
and time periods for withdrawal of
complaints, the withdrawal of findings
by the Assistant Secretary, and the
withdrawal of objections to findings. It
also provides for approval of settlements
at the investigative and adjudicative
stages of the case. The regulations
reflect that settlement agreements under
the statutory provisions of the ERA,
CAA, SDWA, and TSCA must be
reviewed and approved by the Secretary
to ensure that they are just and
reasonable and in the public interest.

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See Beliveau v. United States Dep’t of
Labor, 170 F.3d 83, 86 (1st Cir. 1999);
Macktal v. Secretary of Labor, 923 F.2d
1150, 1154 (5th Cir. 1991). Although it
has been OSHA’s practice to review
settlements for approval under all the
environmental whistleblower statutes, it
is required by statute only under the
ones noted above. See Bertacchi v. City
of Columbus—Division of Sewerage &
Drainage, ARB Case No. 05–155 (April
13, 2006). Notwithstanding this
statutory distinction, the Department
encourages the parties to submit all
settlements for review and approval,
even those arising under the CERCLA,
SWDA, and FWPCA. We note that a
settlement that has not been reviewed
and approved by the Secretary will not
be considered a final order enforceable
under section 24.113.
One comment was received regarding
section 24.111. NWC commented that
the section should be dropped and that
the former practice of liberally
permitting employees to withdraw
claims, without prejudice, should be
continued, especially under the six
environmental acts, in which employees
are required to file claims within 30
days. NWC commented that any
restriction on the right to freely
withdraw claims without prejudice will
chill an employee’s willingness to file a
claim and punish employees who
simply needed to protect their
procedural rights. OSHA does not
believe that section 24.111 hinders a
complainant’s ability to withdraw his or
her complaint prior to the filing of
objections to the Assistant Secretary’s
findings and/or order. However, when
OSHA is aware that a withdrawal is
requested after a settlement has been
reached between the complainant and
the respondent, the Assistant Secretary’s
approval is necessary to ensure that the
settlement is just, reasonable, and in the
public interest. This policy, which is
required by statute in most instances,
recognizes that:
The Department of Labor does not simply
provide a forum for private parties to litigate
their private employment discrimination
suits. Protected whistleblowing under the
ERA may expose not just private harms but
health and safety hazards to the public. The
Secretary represents the public interest by
assuring that settlements adequately protect
whistleblowers.

Beliveau, 170 F.3d at 88 (quoting
Hoffman v. Fuel Econ. Contracting, 97–
ERA–33 (Sec’y Order Denying Request
to Reconsider, Aug. 4, 1989); see also
Thompson v. U. S. Dep’t of Labor, 885
F.2d 551, 556 (9th Cir. 1989) (Secretary
must approve all settlement agreements
under the ERA).

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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
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).
Section 24.112 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 Federal Rules of
Appellate Procedure and the local rules
of such court. Paragraph (d) reflects that
original jurisdiction for judicial review
of a decision issued under the
Comprehensive Environmental
Response, Compensation and Liability
Act is with the district courts rather
than the appellate courts. See 42 U.S.C.
9610(b) and 9613(b). The paragraph also
reflects, however, that when an agency
decision is based on other statutes that
provide for direct review in the court of
appeals, principles of judicial economy
and consistency justify review of the
entire proceeding in the court of
appeals. See Ruud v. U. S. Dep’t of
Labor, 347 F.3d 1086, 1090 (9th Cir.
2003) (‘‘[T]he court of appeals should
entertain a petition to review an agency

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decision made pursuant to the agency’s
authority under two or more statutes, at
least one of which provides for direct
review in the court of appeals, where
the petition involves a common factual
background and raises a common legal
question. Consolidated review of such a
petition avoids inconsistency and
conflicts between the district and
appellate courts while ensuring the
timely and efficient resolution of
administrative cases.’’); see also Shell
Oil Co. v. F.E.R.C., 47 F.3d 1186, 1195
(DC Cir. 1995) (‘‘[W]hen an agency
decision has two distinct bases, one of
which provides for exclusive
jurisdiction in the court of appeals, the
entire decision is reviewable exclusively
in the appellate court.’’) (citations and
internal question marks omitted). No
comments were received on this section.
Section 24.113 Judicial Enforcement
This section describes the Secretary’s
power under several of the statutes
listed in section 24.100(a) to obtain
judicial enforcement of orders and the
terms of a settlement agreement. It also
provides for enforcement of orders of
the Secretary by the person on whose
behalf the order was issued under the
ERA and the CAA. No comments were
received on this section.
Section 24.114 District Court
Jurisdiction of Retaliation Complaints
Under the Energy Reorganization Act
This section sets forth the ERA
provision allowing complainants to
bring an action in district court for de
novo review if there has been no final
decision of the Secretary within one
year of the filing of the complaint and
there is no delay due to the
complainant’s bad faith. It provides that
complainants will give notice 15 days in
advance of their intent to file a
complaint in district court. This
provision authorizing a Federal court
complaint is similar to those under the
whistleblower provisions of SOX,
STAA, the National Transit Systems
Security Act of 2007, and the Federal
Railroad Safety Act. In the interim final
rule, the Secretary noted that this
statutory scheme created the possibility
that a complainant would file a
complaint in district court after having
litigated a claim before the agency and
having received a decision from an ALJ
or the ARB. The Secretary believed that
it would be a waste of the resources of
the parties, the Department, and the
courts for complainants to pursue
duplicative litigation. Accordingly, the
Secretary suggested that the Federal
courts might apply principles of issue or
claim preclusion if a complainant
brought a new action in Federal court

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following extensive litigation before the
Department that resulted in a decision
by an ALJ or the ARB. The Secretary
also stated that where an administrative
hearing had been completed and a
matter was pending before an ALJ or the
ARB for a decision, a Federal court also
might treat a complaint as a petition for
mandamus and order the Department to
issue a decision under appropriate time
frames.
Two comments were received
regarding section 24.114. NWC
commented that because the rules
concerning issue and claim preclusion
only apply to an agency’s final order
and an ALJ’s decision is not a final
order, the Department should not advise
Federal courts or parties that res
judicata and/or collateral estoppel
principles may apply. NWC further
commented that because once an
employee exhausts his or her
administrative remedies, the
Department cannot legally implement a
rule restricting an employee’s right to
file in Federal court, it should not urge
a Federal court to remand a case back
to the Department. NWC suggested that
a potential waste of resources is not at
issue because the discovery and hearing
testimony obtained during an
administrative proceeding may be used
in the Federal court proceeding.
In response to these comments, OSHA
has reconsidered the statements made in
the interim final rule. OSHA recognizes
that there is no statutory basis for
including preclusion principles in these
regulations, and that the ERA does not
delegate authority to the Secretary to
regulate litigation in the Federal district
courts. See Adams Fruit Co., Inc. v.
Barrett, 494 U.S. 638, 649–50 (1990).
Accordingly, the language in the
preamble addressing issue preclusion
principles and mandamus has been
removed.
Also on further consideration, the
Secretary does not believe that it is
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 one year after the filing of the
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
courts of appeals. The regulation has

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been reworded in accordance with this
position.
Finally, GAP commented that OSHA’s
requirement under section 24.114(b)
that a complainant file a notice with the
agency of his or her intention to seek
relief in district court within 15 days of
filing his or her de novo action in
district court goes beyond the ERA’s
requirements.
Although the 15-day notice provision
is not required by statute, OSHA
believes that this notice provision falls
within the scope of these procedural
rules.

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Section 24.115 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 the
statutes listed in section 24.100(a)
requires. No comments were received
on this section.
Appendix A—Your Rights Under the
ERA
The notice that employers are
required to post under Section 211(i) of
the ERA has been revised to reflect the
2005 amendments. Specifically, the
notice now reflects that the definition of
‘‘employer’’ has been expanded and that
the employee has a right to file a
complaint in district court if the
Secretary has not issued a final decision
within one year of the filing of the
complaint and the delay is not due to
the bad faith of the employee. As noted
above, we also have substituted the term
‘‘retaliation’’ for ‘‘discrimination.’’ The
notice has also been revised to clarify
that a complaint may be filed orally or
in writing and that if a complainant is
not able to file the complaint in English,
the complaint may be filed in any
language.
One comment was received regarding
Appendix A. GAP commented that the
notice should be clarified to state that
an employee is protected for raising
concerns about a suspected violation of
regulations or orders issued by the NRC
or DOE. OSHA does not believe that
changes to this notice are required
because the protected activity listed on
the notice applies the language used in
the statute. Nevertheless, OSHA notes
that the Secretary has held that the
reporting of possible violations of NRC
regulations is protected activity under
the ERA. See McDonald v. University of
Missouri, No. 90–ERA–59, 1995 WL
848132, *5 (DOL Off. of Adm. App. Mar.
21, 1995). A similar analysis suggests
that the reporting of possible violations

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of relevant DOE regulations also is
protected activity under the ERA. GAP
further commented that in the section
describing prohibited activity, the use of
the word ‘‘retaliate’’ should be replaced
with ‘‘discriminate’’ to make the
language of the notice consistent with
the statutory language. For the reasons
discussed above in response to
comments to section 24.102, OSHA does
not believe that it is necessary or
advisable to replace the word ‘‘retaliate’’
in the required notice with the word
‘‘discriminate.’’
IV. Paperwork Reduction Act
This rule contains a reporting
provision (filing a retaliation complaint,
section 24.103) which was previously
reviewed and approved for use by the
Office of Management and Budget
(‘‘OMB’’) and assigned OMB control
number 1218–0236 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 ‘‘interpretive 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
was not required. Although this rule
was not subject to the notice and
comment procedures of the APA, the
Assistant Secretary sought and
considered comments to enable the
agency to improve the rules by taking
into account the concerns of interested
persons.
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 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 is not a ‘‘significant regulatory
action’’ within the meaning of Executive
Order 12866 because it is not likely to

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2819

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

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Federal Register / Vol. 76, No. 11 / Tuesday, January 18, 2011 / Rules and Regulations

List of Subjects in 29 CFR Part 24
Administrative practice and
procedure, Employment, Environmental
protection, Investigations, Reporting
and recordkeeping requirements,
Whistleblowing.
Signed in Washington, DC on January 7,
2011.
David Michaels,
Assistant Secretary of Labor for Occupational
Safety and Health.

Accordingly, for the reasons set out in
the preamble, part 24 of title 29 of the
Code of Federal Regulations is revised
to read as follows:
PART 24—PROCEDURES FOR THE
HANDLING OF RETALIATION
COMPLAINTS UNDER THE EMPLOYEE
PROTECTION PROVISIONS OF SIX
ENVIRONMENTAL STATUTES AND
SECTION 211 OF THE ENERGY
REORGANIZATION ACT OF 1974, AS
AMENDED
Subpart A—Complaints, Investigations,
Issuance of Findings
Sec.
24.100 Purpose and scope.
24.101 Definitions.
24.102 Obligations and prohibited acts.
24.103 Filing of retaliation complaint.
24.104 Investigation.
24.105 Issuance of findings and orders.

§ 24.101

Subpart B—Litigation
24.106 Objections to the findings and order
and request for a hearing.
24.107 Hearings.
24.108 Role of Federal agencies.
24.109 Decision and orders of the
administrative law judge.
24.110 Decision and orders of the
Administrative Review Board.
Subpart C—Miscellaneous Provisions
24.111 Withdrawal of complaints,
objections, and findings; settlement.
24.112 Judicial review.
24.113 Judicial enforcement.
24.114 District court jurisdiction of
retaliation complaints under the Energy
Reorganization Act.
24.115 Special circumstances; waiver of
rules.
Appendix A to Part 24—Your Rights Under
the Energy Reorganization Act

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Authority: 15 U.S.C. 2622; 33 U.S.C. 1367;
42 U.S.C. 300j–9(i)BVG, 5851, 6971, 7622,
9610; 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, Issuance of Findings
§ 24.100

Purpose and scope.

(a) This part implements procedures
under the employee protection (or
‘‘whistleblower’’) provisions for which
the Secretary of Labor has been given

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responsibility pursuant to the following
Federal statutes: Safe Drinking Water
Act, 42 U.S.C. 300j–9(i); Federal Water
Pollution Control Act, 33 U.S.C. 1367;
Toxic Substances Control Act, 15 U.S.C.
2622; Solid Waste Disposal Act, 42
U.S.C. 6971; Clean Air Act, 42 U.S.C.
7622; Energy Reorganization Act of
1974, 42 U.S.C. 5851; and
Comprehensive Environmental
Response, Compensation and Liability
Act of 1980, 42 U.S.C. 9610.
(b) This part establishes procedures
pursuant to the Federal statutory
provisions listed in paragraph (a) of this
section for the expeditious handling of
retaliation complaints made 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 under the Federal statutory
provisions listed in paragraph (a) of this
section, investigations, issuance of
findings, objections to findings,
litigation before administrative law
judges (‘‘ALJ’’), issuance of decisions
and orders, post-hearing administrative
review, and withdrawals and
settlements.
Definitions.

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 any of the
statutes listed in § 24.100(a).
Business days means days other than
Saturdays, Sundays, and Federal
holidays.
Complainant means the employee
who filed a complaint under any of the
statutes listed in § 24.100(a) or on whose
behalf a complaint was filed.
OSHA means the Occupational Safety
and Health Administration of the
United States Department of Labor.
Respondent means the employer
named in the complaint, who is alleged
to have violated any of the statutes
listed in § 24.100(a).
Secretary means the Secretary of
Labor or persons to whom authority
under any of the statutes listed in
§ 24.100(a) has been delegated.
§ 24.102

Obligations and prohibited acts.

(a) No employer subject to the
provisions of any of the statutes listed
in § 24.100(a), or to the Atomic Energy
Act of 1954 (AEA), 42 U.S.C. 2011 et
seq., may discharge or otherwise
retaliate against any employee with
respect to the employee’s compensation,
terms, conditions, or privileges of
employment because the employee, or
any person acting pursuant to the

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employee’s request, engaged in any of
the activities specified in 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 has:
(1) Commenced or caused to be
commenced, or is about to commence or
cause to be commenced, a proceeding
under one of the statutes listed in
§ 24.100(a) or a proceeding for the
administration or enforcement of any
requirement imposed under such
statute;
(2) Testified or is about to testify in
any such proceeding; or
(3) Assisted or participated, or is
about to assist or participate, in any
manner in such a proceeding or in any
other action to carry out the purposes of
such statute.
(c) Under the Energy Reorganization
Act, and by interpretation of the
Secretary under any of the other statutes
listed in § 24.100(a), it is a violation for
any employer to intimidate, threaten,
restrain, coerce, blacklist, discharge, or
in any other manner retaliate against
any employee because the employee
has:
(1) Notified the employer of an
alleged violation of such statute or the
AEA of 1954;
(2) Refused to engage in any practice
made unlawful by such statute or the
AEA of 1954, if the employee has
identified the alleged illegality to the
employer; or
(3) Testified or is about to testify
before Congress or at any Federal or
State proceeding regarding any
provision (or proposed provision) of
such statute or the AEA of 1954.
(d)(1) Every employer subject to the
Energy Reorganization Act of 1974, as
amended, shall prominently post and
keep posted in any place of employment
to which the whistleblower provisions
of the Act apply, a fully legible copy of
the notice prepared by OSHA, printed
as appendix A to this part, or a notice
approved by the Assistant Secretary that
contains substantially the same
provisions and explains the
whistleblower provisions of the Act and
the regulations in this part. Copies of
the notice prepared by OSHA may be
obtained from the Assistant Secretary
for Occupational Safety and Health, U.S.
Department of Labor, Washington, DC
20210, from local OSHA offices, or from
OSHA’s Web site at http://
www.osha.gov.
(2) Where the notice required by
paragraph (d)(1) of this section has not
been posted, the requirement in
§ 24.103(d)(2) that a complaint be filed
with the Assistant Secretary within 180

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Federal Register / Vol. 76, No. 11 / Tuesday, January 18, 2011 / Rules and Regulations
days of an alleged violation will be
inoperative, unless the respondent
establishes that the complainant had
knowledge of the material provisions of
the notice. If it is established that the
notice was posted at the employee’s
place of employment after the alleged
retaliatory action occurred or that the
complainant later obtained knowledge
of the provisions of the notice, the 180
days will ordinarily run from whichever
of those dates is relevant.
(e) This part shall have no application
to any employee who, acting without
direction from his or her employer (or
the employer’s agent), deliberately
causes a violation of any requirement of
any of the statutes listed in § 24.100(a)
or the AEA of 1954.

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§ 24.103

Filing of retaliation complaint.

(a) Who may file. An employee who
believes that he or she has been
retaliated against by an employer in
violation of any of the statutes listed in
§ 24.100(a) 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 a
complainant is not able to file the
complaint in English, the complaint
may be filed 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. (1) Except as
provided in paragraph (d)(2) of this
section, within 30 days after an alleged
violation of any of the statutes listed in
§ 24.100(a) occurs (i.e., when the
retaliatory decision has been both made
and communicated to the complainant),
an employee who believes that he or she
has been retaliated against in violation
of any of the statutes listed in
§ 24.100(a) 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, hand-delivery, 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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(2) Under the Energy Reorganization
Act, within 180 days after an alleged
violation of the Act occurs (i.e., when
the retaliatory decision has been both
made and communicated to the
complainant), an employee who
believes that he or she has been
retaliated against in violation of the Act
may file, or have filed by any person on
the employee’s behalf, a complaint
alleging such retaliation. The date of the
postmark, facsimile transmittal, e-mail
communication, telephone call, handdelivery, delivery to a third-party
commercial carrier, or in-person filing at
an OSHA office will be considered the
date of filing. The time for filing a
complaint may be tolled for reasons
warranted by applicable case law.
(e) Relationship to Section 11(c)
complaints. A complaint filed under
any of the statutes listed in § 24.100(a)
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 Section 11(c) and
the applicable statutes listed in
§ 24.100(a). Similarly, a complaint filed
under Section 11(c) that alleges facts
that would also constitute a violation of
any of the statutes listed in § 24.100(a)
will be deemed to be a complaint under
both section 11(c) and the applicable
statutes listed in § 24.100(a). Normal
procedures and timeliness requirements
under the respective statutes and
regulations will be followed.
§ 24.104

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, if necessary, in
accordance with the Privacy Act of
1974, 5 U.S.C. 552a, et seq., and other
applicable confidentiality laws. The
Assistant Secretary will provide a copy
of the unredacted complaint to the
complainant (or complainant’s legal
counsel, if complainant is represented)
and to the appropriate office of the
Federal agency charged with the
administration of the general provisions
of the statute(s) under which the
complaint is filed.
(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

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the Assistant Secretary to present its
position.
(c) Throughout the investigation, the
agency will provide to the complainant
(or the complainant’s legal counsel if
complainant is represented by counsel)
a copy of all of respondent’s
submissions to the agency that are
responsive to the complainant’s
whistleblower complaint. Before
providing such materials to the
complainant, the agency will redact
them, if necessary, in accordance with
the Privacy Act of 1974, 5 U.S.C. 552a,
et seq., and other applicable
confidentiality laws.
(d) Investigations will be conducted
in a manner that protects the
confidentiality of any person who
provides information on a confidential
basis, other than the complainant, in
accordance with part 70 of title 29 of the
Code of Federal Regulations.
(e) Investigation under the six
environmental statutes. In addition to
the investigative procedures set forth in
§§ 24.104(a), (b), (c), and (d), this
paragraph sets forth the procedures
applicable to investigations under the
Safe Drinking Water Act; Federal Water
Pollution Control Act; Toxic Substances
Control Act; Solid Waste Disposal Act;
Clean Air Act; and Comprehensive
Environmental Response, Compensation
and Liability Act.
(1) A complaint of alleged violation
will be dismissed unless the
complainant has made a prima facie
showing that protected activity was a
motivating factor in the adverse action
alleged in the complaint.
(2) The complaint, supplemented as
appropriate by interviews of the
complainant, must allege the existence
of facts and evidence to make a prima
facie showing as follows:
(i) The employee engaged in a
protected activity;
(ii) The respondent knew or suspected
that the employee engaged in the
protected activity;
(iii) The employee suffered an adverse
action; and
(iv) The circumstances were sufficient
to raise the inference that the protected
activity was a motivating factor in the
adverse action.
(3) The complainant will be
considered to have met the required
showing 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 sufficient to
give rise to an inference that the
respondent knew or suspected that the
employee engaged in protected activity
and that the protected activity was a
motivating factor in the adverse action.

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The required showing 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 motivating factor in the adverse
action.
(4) The complaint will be dismissed if
a preponderance of the evidence shows
that the respondent would have taken
the same adverse action in the absence
of the complainant’s protected activity.
(f) Investigation under the Energy
Reorganization Act. In addition to the
investigative procedures set forth in
§§ 24.104(a), (b), (c), and (d), this
paragraph sets forth special procedures
applicable only to investigations under
the Energy Reorganization Act.
(1) A complaint of alleged violation
will be dismissed unless the
complainant has made a prima facie
showing that protected activity was a
contributing factor in the adverse action
alleged in the complaint.
(2) The complaint, supplemented as
appropriate by interviews of the
complainant, must allege the existence
of facts and evidence to make a prima
facie showing as follows:
(i) The employee engaged in a
protected activity;
(ii) The respondent knew or
suspected, actually or constructively,
that the employee engaged in the
protected activity;
(iii) The employee suffered an adverse
action; and
(iv) The circumstances were sufficient
to raise the inference that the protected
activity was a contributing factor in the
adverse action.
(3) For purposes of determining
whether to investigate, the complainant
will be considered to have met the
required burden if the complaint on its
face, supplemented as appropriate
through interviews of the complainant,
alleges the existence of facts and either
direct or circumstantial evidence to
meet the required showing, i.e., to give
rise to an inference that the respondent
knew or suspected that the employee
engaged in protected activity and that
the protected activity was a contributing
factor in the adverse action. The burden
may be satisfied, for example, if the
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.

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(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 behavior or
conduct.
(5) If the respondent fails to make a
timely response or fails to demonstrate
by clear and convincing evidence that it
would have taken the same adverse
action in the absence of the behavior
protected by the Act, 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.
§ 24.105

Issuance of findings and orders.

(a) After considering all the relevant
information collected during the
investigation, the Assistant Secretary
will issue, within 30 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 any of the statutes listed in
§ 24.100(a).
(1) If the Assistant Secretary
concludes that there is reasonable cause
to believe that a violation has occurred,
he or she shall accompany the findings
with an order providing relief to the
complainant. The order shall include,
where appropriate, a requirement that
the respondent abate the violation;
reinstate the complainant to his or her
former position, together with the
compensation (including back pay),
terms, conditions and privileges of the
complainant’s employment; pay
compensatory damages; and, under the
Toxic Substances Control Act and the
Safe Drinking Water Act, pay exemplary
damages, where appropriate. At the
complainant’s request the order shall
also assess against the respondent the
complainant’s costs and expenses
(including attorney’s fees) reasonably
incurred in connection with the filing of
the complaint.
(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 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 order will inform the parties of their

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right to file objections and to request a
hearing and provide the address of the
Chief Administrative Law Judge. The
Assistant Secretary will file a copy of
the original complaint and a copy of the
findings and order with the Chief
Administrative Law Judge, U.S.
Department of Labor.
(c) The findings and 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 order, whichever is later,
unless an objection and/or a request for
a hearing has been filed as provided at
§ 24.106.
Subpart B–Litigation
§ 24.106 Objections to the findings and
order and request for a hearing.

(a) Any party who desires review,
including judicial review, of the
findings and order must file any
objections and/or a request for a hearing
on the record within 30 days of receipt
of the findings and order pursuant to
paragraph (b) of § 24.105. The objection
and/or request for a hearing must be in
writing and state whether the objection
is to the findings and/or the order. 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, 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,
Division of Fair Labor Standards, U.S.
Department of Labor.
(b) If a timely objection is filed, all
provisions of the order will be stayed.
If no timely objection is filed with
respect to either the findings or the
order, the findings and order will
become the final decision of the
Secretary, not subject to judicial review.
§ 24.107

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

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Federal Register / Vol. 76, No. 11 / Tuesday, January 18, 2011 / Rules and Regulations
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
otherwise agreed to by the parties.
Hearings will be conducted de novo, on
the record.
(c) If both the complainant and the
respondent object to the findings and/or
order, the objections will be
consolidated, and a single hearing will
be conducted.
§ 24.108

Role of Federal agencies.

(a)(1) The complainant and the
respondent will be parties in every
proceeding. At the Assistant Secretary’s
discretion, he or she may participate as
a party or participate 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
administrative law judge, including a
decision approving or rejecting a
settlement agreement between the
complainant and the respondent.
(2) Copies of documents in all cases,
whether or not the Assistant Secretary is
participating in the proceeding, must be
sent to the Assistant Secretary,
Occupational Safety and Health
Administration, and to the Associate
Solicitor, Division of Fair Labor
Standards, U.S. Department of Labor.
(b) The Environmental Protection
Agency, the Nuclear Regulatory
Commission, and the Department of
Energy, if interested in a proceeding,
may participate as amicus curiae at any
time in the proceedings, at the
respective 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.

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§ 24.109 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 (c)
of this section, as appropriate.
(b)(1) In cases arising under the ERA,
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 was a contributing
factor in the adverse action alleged in
the complaint. If the complainant has
demonstrated by a preponderance of the
evidence that the protected activity was
a contributing factor in the adverse
action alleged in the complaint, relief
may not be ordered if the respondent

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demonstrates by clear and convincing
evidence that it would have taken the
same adverse action in the absence of
any protected activity.
(2) In cases arising under the six
environmental statutes listed in
§ 24.100(a), 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
caused or was a motivating factor in the
adverse action alleged in the complaint.
If the complainant has demonstrated by
a preponderance of the evidence that
the protected activity caused or was a
motivating factor in the adverse action
alleged in the complaint, relief may not
be ordered if the respondent
demonstrates by a preponderance of the
evidence that it would have taken the
same adverse action in the absence of
the protected activity.
(c) Neither the Assistant Secretary’s
determination to dismiss a complaint
without completing an investigation
pursuant to § 24.104(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 shall direct the respondent to take
appropriate affirmative action to abate
the violation, including reinstatement of
the complainant to that person’s former
position, together with the
compensation (including back pay),
terms, conditions, and privileges of that
employment, and compensatory
damages. In cases arising under the Safe
Drinking Water Act or the Toxic
Substances Control Act, exemplary
damages may also be awarded when
appropriate. At the request of the
complainant, the ALJ shall assess
against the respondent, all costs and
expenses (including attorney fees)
reasonably incurred.
(2) In cases brought under the Energy
Reorganization Act, when an ALJ issues
a decision that the complaint has merit
and orders the relief prescribed in
paragraph (d)(1) of this section, the
relief ordered, with the exception of
compensatory damages, shall be
effective immediately upon receipt,
whether or not a petition for review is
filed with the ARB.

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(3) 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 Fair Labor Standards. Any
ALJ’s decision issued under any of the
statutes listed in § 24.100(a) will be
effective 10 business days after the date
of the decision unless a timely petition
for review has been filed with the ARB.
An ALJ’s order issued under the Energy
Reorganization Act will be effective
immediately upon receipt, except for
that portion of the order awarding any
compensatory damages.
§ 24.110 Decision and orders of the
Administrative Review Board.

(a) Any party desiring to seek review,
including judicial review, of a decision
of the ALJ must file a written petition
for review with the ARB, U.S.
Department of Labor, 200 Constitution
Ave., 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 timely petition for review is
filed with the ARB and the ARB accepts
the case 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,
Occupational Safety and Health
Administration, and on the Associate
Solicitor, Division of Fair Labor
Standards, U.S. Department of Labor.
(b) If a timely petition for review is
filed pursuant to paragraph (a) of this
section, and 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, the decision
of the ALJ will be inoperative unless
and until the ARB issues an order
adopting the decision, except that an
order by an ALJ issued under the Energy
Reorganization Act, other than that
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compensatory damages, will be effective
while review is conducted by the ARB,
unless the ARB grants a motion by the
respondent to stay the 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 findings 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 90 days of the filing of
the complaint. The decision will be
served upon all parties and the Chief
Administrative Law Judge by mail. The
final decision will also be served on the
Assistant Secretary, Occupational Safety
and Health Administration, and on the
Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of
Labor, even if the Assistant Secretary is
not a party.
(d) If the ARB concludes that the
respondent has violated the law, the
final order will order the respondent to
take appropriate affirmative action to
abate the violation, including
reinstatement of the complainant to that
person’s former position, together with
the compensation (including back pay),
terms, conditions, and privileges of
employment, and compensatory
damages. In cases arising under the Safe
Drinking Water Act or the Toxic
Substances Control Act, exemplary
damages may also be awarded when
appropriate. At the request of the
complainant, the ARB will assess
against the respondent all costs and
expenses (including attorney’s fees)
reasonably incurred.
(e) If the ARB determines that the
respondent has not violated the law, an
order will be issued denying the
complaint.
Subpart C—Miscellaneous Provisions

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§ 24.111 Withdrawal of complaints,
objections, and petitions for review;
settlement.

(a) At any time prior to the filing of
objections to the findings and/or order,
a complainant may withdraw his or her
complaint under any of the statutes
listed in § 24.100(a) by filing a written
withdrawal with the Assistant
Secretary. The Assistant Secretary will
then determine whether to approve the
withdrawal. The Assistant Secretary
will notify the respondent of the
approval of any withdrawal. If the
complaint is withdrawn because of
settlement under the Energy

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Reorganization Act, the Clean Air Act,
the Safe Drinking Water Act, or the
Toxic Substances Control Act, the
settlement must be submitted for
approval in accordance with paragraph
(d) of this section. Parties to settlements
under the Federal Water Pollution
Control Act, the Solid Waste Disposal
Act, and the Comprehensive
Environmental Response, Compensation
and Liability Act are encouraged to
submit their settlements for approval.
After the filing of objections to the
Assistant Secretary’s findings and/or
order, a complainant may not withdraw
his or her complaint.
(b) The Assistant Secretary may
withdraw his or her findings and/or
order, at any time before the expiration
of the 30-day objection period described
in § 24.106, provided that no objection
has yet been filed, and substitute new
findings and/or a new 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 or order become
final, a party may withdraw its
objections to the Assistant Secretary’s
findings 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 or order,
and there are no other pending
objections, the Assistant Secretary’s
findings and order will become the final
order of the Secretary. If the ARB
approves a request to withdraw a
petition for review of an ALJ decision,
and there are no other pending petitions
for review of that decision, the ALJ’s
decision will become the final order of
the Secretary. If the objections are
withdrawn because of settlement under
the Energy Reorganization Act, the
Clean Air Act, the Safe Drinking Water
Act, or the Toxic Substances Control
Act, the settlement must be submitted
for approval in accordance with
paragraph (d) of this section.
(d)(1) Investigative settlements under
the Energy Reorganization Act, the
Clean Air Act, the Safe Drinking Water
Act, and the Toxic Substances Control
Act. 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,

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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 under
the Energy Reorganization Act, the
Clean Air Act, the Safe Drinking Water
Act, and the Toxic Substances Control
Act. At any time after the filing of
objections to the Assistant Secretary’s
findings and/or order, the case may be
settled if the participating parties agree
to a settlement and the settlement is
approved by the ALJ if the case is before
the judge, or by the ARB if the ARB has
accepted the case for review. A copy of
the settlement must be filed with the
administrative law judge or the ARB, as
the case may be.
(e) Any settlement approved by the
Assistant Secretary, the administrative
law judge, or the ARB will constitute
the final order of the Secretary and may
be enforced pursuant to § 24.113.
§ 24.112

Judicial review.

(a) Except as provided under
subsections (b), (c), and (d) of this
section, within 60 days after the
issuance by the ARB of a final order of
the Secretary under § 24.110, 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. A
final order of the ARB is not subject to
judicial review in any criminal or other
civil proceeding.
(b) Under the Federal Water Pollution
Control Act, within 120 days after the
issuance by the ARB of a final order of
the Secretary under § 24.110, 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.
(c) Under the Solid Waste Disposal
Act, within 90 days after the issuance by
the ARB of a final order of the Secretary
under § 24.110, 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.
(d) Under the Comprehensive
Environmental Response, Compensation
and Liability Act, after the issuance by

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the ARB of a final order of the Secretary
under § 24.110, any person adversely
affected or aggrieved by the order may
file a petition for review of the order in
the United States district court in which
the violation allegedly occurred. For
purposes of judicial economy and
consistency, when a final order of the
Secretary issued by the ARB under the
Comprehensive Environmental
Response, Compensation and Liability
Act also is issued under any other
statute listed in § 24.100(a), the
adversely affected or aggrieved person
may file a petition for review of the
entire 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. The
time for filing a petition for review of an
order issued under the Comprehensive
Environmental Response, Compensation
and Liability Act and any other statute
listed in § 24.100(a) is determined by
the time period applicable under the
other statute(s).
(e) If a timely petition for review is
filed, the record of a case, including the
record of proceedings before the
administrative law judge, 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.
§ 24.113

Judicial enforcement.

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Whenever any person has failed to
comply with an order by an ALJ issued

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under the Energy Reorganization Act,
with the exception of any award of
compensatory damages, or with a final
order of the Secretary, including final
orders approving settlement agreements
as provided under § 24.111(d), 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. Whenever any person has
failed to comply with an order by an
ALJ issued under the Energy
Reorganization Act, with the exception
of any award of compensatory damages,
or with a final order of the Secretary
under either the Energy Reorganization
Act or the Clean Air Act, the person on
whose behalf the order was issued also
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.
§ 24.114 District court jurisdiction of
retaliation complaints under the Energy
Reorganization Act.

(a) If there is no final order of the
Secretary, one year has passed since the
filing of a complaint under the Energy
Reorganization Act, 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

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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.
§ 24.115
rules.

Special circumstances; waiver of

In special circumstances not
contemplated by the provisions of this
part, 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 any
orders that justice or the administration
of any of the statutes listed in
§ 24.100(a) requires.
Appendix A to Part 24—Your Rights
Under the Energy Reorganization Act
BILLING CODE 4510–26–P

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[FR Doc. 2011–828 Filed 1–14–11; 8:45 am]
BILLING CODE 4510–26–C

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