29 CFR Part 1982 (FRSA and NTSSA Final rule)

Federal Register / Vol. 80, No. 216 / Monday, November 9, 2015 / Rules and Regulations
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[FR Doc. 2015–28339 Filed 11–6–15; 8:45 am]
BILLING CODE 4910–13–P

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

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

This document provides the
final text of regulations governing the
employee protection provisions of the
National Transit Systems Security Act
(NTSSA), enacted as Section 1413 of the
Implementing Recommendations of the
9/11 Commission Act of 2007 (9/11
Commission Act), and the Federal
Railroad Safety Act (FRSA), as amended
by Section 1521 of the 9/11 Commission
Act. The 9/11 Commission Act was
enacted into law on August 3, 2007.
FRSA was amended further in 2008. An
interim final rule establishing
procedures for these provisions and a
request for public comment was
published in the Federal Register on
August 31, 2010. Ten comments were
received. This rule responds to those
comments and establishes the final
procedures and time frames for the

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SUMMARY:

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handling of retaliation complaints under
NTSSA and FRSA, including
procedures and time frames for
employee complaints to the
Occupational Safety and Health
Administration (OSHA), investigations
by OSHA, appeals of OSHA
determinations to an administrative law
judge (ALJ) for a hearing de novo,
hearings by ALJs, review of ALJ
decisions by the Administrative Review
Board (ARB) (acting on behalf of the
Secretary of Labor), and judicial review
of the Secretary of Labor’s final
decision.
DATES: This final rule is effective on
November 9, 2015.
FOR FURTHER INFORMATION CONTACT: Rob
Swick, Directorate of Whistleblower
Protection Programs, Occupational
Safety and Health Administration, U.S.
Department of Labor, Room N–4618,
200 Constitution Avenue NW.,
Washington, DC 20210; telephone (202)
693–2199 (this is not a toll-free
number); email [email protected].
This Federal Register document is
available in alternative formats. The
alternative formats available are large
print, electronic file on computer disk
(Word Perfect, ASCII, Mates with
Duxbury Braille System) and audiotape.
SUPPLEMENTARY INFORMATION:
I. Background
NTSSA, which was enacted by the
9/11 Commission Act, establishes
employee protection provisions for
public transportation agency employees
who engage in whistleblowing activities
pertaining to public transportation
safety or security (or, in circumstances
covered by the statute, employees
perceived to have engaged or to be about
to engage in protected activity). See
Public Law 110–53, Title XIV, § 1413,
121 Stat. 414 (2007) (NTSSA, codified at
6 U.S.C. 1142).
FRSA, which was amended by the
9/11 Commission Act, establishes
employee protection provisions for
railroad carrier employees who engage
in whistleblowing activities pertaining
to railroad safety or security (or, in
circumstances covered by the statute,
employees perceived to have engaged or
to be about to engage in protected
activity). Public Law 110–53, Title XV,
§ 1521, 121 Stat. 444 (2007) (FRSA,
codified at 49 U.S.C. 20109). FRSA, as
further amended in 2008, establishes
whistleblower provisions for railroad
carrier employees who are retaliated
against for requesting medical or first
aid treatment, or for following orders or
a treatment plan of a treating physician.
See Public Law 110–432, Div. A, Title
IV, § 419, 122 Stat. 4892 (Oct. 16, 2008)

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(FRSA, codified at 49 U.S.C.
20109(c)(2)). The 2008 FRSA
amendments also prohibit railroad
carriers and other covered persons from
denying, delaying, or interfering with
the medical or first aid treatment of an
employee, and require that an injured
employee be promptly transported to
the nearest hospital upon request. 49
U.S.C. 20109(c)(1). These rules establish
final procedures for the handling of
whistleblower complaints under NTSSA
and FRSA.
II. Summary of Statutory Procedures
Prior to the 9/11 Commission Act
amendment of FRSA, whistleblower
retaliation complaints by railroad carrier
employees were subject to mandatory
dispute resolution pursuant to the
Railway Labor Act (45 U.S.C. 151 et
seq.), which included whistleblower
proceedings before the National
Railroad Adjustment Board, as well as
other dispute resolution procedures.
The amendment changed the
procedures for resolution of such
complaints and transferred the authority
to implement the whistleblower
provisions for railroad carrier
employees to the Secretary of Labor
(Secretary).
The procedures for filing and
adjudicating whistleblower complaints
under NTSSA and FRSA, as amended,
are generally the same.1 FRSA provides
that the rules and procedures set forth
in the Wendell H. Ford Aviation
Investment and Reform Act for the 21st
Century (AIR 21), 49 U.S.C. 42121(b),
govern in FRSA actions, 49 U.S.C.
20109(d)(2). AIR 21’s rules and
procedures are very similar to the
procedures provided in NTSSA, 6
U.S.C. 1142(c). The NTSSA and FRSA
whistleblower provisions include
procedures that allow a covered
employee to file, within 180 days of the
alleged retaliation, a complaint with the
Secretary. Upon receipt of the
complaint, the Secretary must provide
written notice to the person or persons
named in the complaint alleged to have
violated NTSSA or FRSA (respondent)
of the filing of the complaint, the
1 The regulatory provisions in this part have been
written and organized to be consistent with other
whistleblower regulations promulgated by OSHA to
the extent possible within the bounds of the
statutory language of NTSSA and FRSA.
Responsibility for receiving and investigating
complaints under NTSSA and FRSA has been
delegated to the Assistant Secretary for
Occupational Safety and Health. Secretary’s Order
01–2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012).
Hearings on determinations by the Assistant
Secretary are conducted by the Office of
Administrative Law Judges, and appeals from
decisions by ALJs are decided by the ARB.
Secretary of Labor’s Order No. 2–2012 (Oct. 19,
2012), 77 FR 69378 (Nov. 16, 2012).

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allegations contained in the complaint,
the substance of the evidence
supporting the complaint, and the rights
afforded the respondent during the
investigation. The Secretary must then,
within 60 days of receipt of the
complaint, afford the respondent an
opportunity to submit a response and
meet with the investigator to present
statements from witnesses, and conduct
an investigation.
The Secretary may conduct an
investigation only if the complainant
has made a prima facie showing that the
protected activity was a contributing
factor in the adverse action alleged in
the complaint and the respondent has
not demonstrated, through clear and
convincing evidence, that the employer
would have taken the same adverse
action in the absence of that activity.
Under OSHA’s procedures, a
complainant may meet this burden
through the complaint supplemented by
interviews of the complainant.
After investigating a complaint, the
Secretary will issue written findings. If,
as a result of the investigation, the
Secretary finds there is reasonable cause
to believe that retaliation has occurred,
the Secretary must notify the
respondent of those findings, along with
a preliminary order which includes the
relief available under FRSA or NTSSA
as applicable, including: An order that
the respondent abate the violation;
reinstatement with the same seniority
status that the employee would have
had but for the retaliation; back pay
with interest; and compensatory
damages, including compensation for
any special damages sustained as a
result of the discrimination, including
litigation costs, expert witness fees, and
reasonable attorney fees. The
preliminary order may also require
payment of punitive damages up to
$250,000.
The complainant and the respondent
then have 30 days after receipt of the
Secretary’s notification in which to file
objections to the findings and/or
preliminary order and request a hearing
before an ALJ. The filing of objections
under NTSSA or FRSA will stay any
remedy in the preliminary order except
for preliminary reinstatement. If a
hearing before an ALJ is not requested
within 30 days, the preliminary order
becomes final and is not subject to
judicial review.
If a hearing is held, NTSSA and FRSA
require the hearing to be conducted
‘‘expeditiously.’’ The Secretary then has
120 days after the conclusion of a
hearing in which to issue a final order,
which may provide the relief authorized
by the statute or deny the complaint.
Until the Secretary’s final order is

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issued, the Secretary, the complainant,
and the respondent may enter into a
settlement agreement that terminates the
proceeding. Under NTSSA, the
Secretary also may award a prevailing
employer reasonable attorney fees, not
exceeding $1,000, if the Secretary finds
that the complaint is frivolous or has
been brought in bad faith.
Within 60 days of the issuance of the
final order, any person adversely
affected or aggrieved by the Secretary’s
final order may file an appeal with the
United States Court of Appeals for the
circuit in which the violation occurred
or the circuit where the complainant
resided on the date of the violation.
NTSSA and FRSA permit the
employee to seek de novo review of the
complaint by a United States district
court in the event that the Secretary has
not issued a final decision within 210
days after the filing of the complaint,
and there is no showing that the delay
is due to the bad faith of the
complainant. The court will have
jurisdiction over the action without
regard to the amount in controversy and
the case will be tried before a jury at the
request of either party. The
whistleblower provisions of NTSSA and
FRSA each provide that an employee
may not seek protection under those
respective provisions and another
provision of law for the same allegedly
unlawful act of the public transportation
agency (under NTSSA) or railroad
carrier (under FRSA). 6 U.S.C. 1142(e);
49 U.S.C. 20109(f). The whistleblower
provisions of NTSSA and FRSA also
provide that nothing in their respective
provisions preempts or diminishes any
other safeguards against discrimination,
demotion, discharge, suspension,
threats, harassment, reprimand,
retaliation, or any other manner of
discrimination provided by Federal or
State law. 6 U.S.C. 1142(f); 49 U.S.C.
20109(g). The whistleblower provisions
of NTSSA and FRSA further provide
that nothing in their respective
provisions shall be construed to
diminish the rights, privileges, or
remedies of any employee under any
Federal or State law or under any
collective bargaining agreement and that
the rights and remedies in the
whistleblower provisions of NTSSA or
FRSA may not be waived by any
agreement, policy, form, or condition of
employment. 6 U.S.C. 1142(g); 49 U.S.C.
20109(h).
III. Summary and Discussion of
Rulemaking Proceedings and
Regulatory Provisions
On August 31, 2010, OSHA published
in the Federal Register an interim final
rule, promulgating rules governing the

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employee protection provisions of
NTSSA and FRSA. 75 FR 53522. In
addition to promulgating the interim
final rule, OSHA’s notice included a
request for public comment on the
interim rules by November 1, 2010.
In response, several organizations and
individuals filed comments with the
agency within the public comment
period. Comments were received from
the National Whistleblower Center
(NWC); the Government Accountability
Project (GAP); nine railroad labor
organizations (collectively Rail Labor)
that submitted one collective set of
comments; the AFL–CIO Transportation
Trades Department, which represents 32
unions; the Utah Transit Authority
FrontRunner Commuter Rail; the
American Public Transportation
Association; the American Shortline
and Regional Railroad Association
(ASLRRA); the Association of American
Railroads (AAR); Charles Goetsch; and
Todd Miller.
OSHA has reviewed and considered
the comments and now adopts this final
rule, which has been revised in part in
response to the comments. The
following discussion addresses the
comments and OSHA’s responses in the
order of the provisions of the rule.
General Comments
Comments Regarding the Treatment of
Complaints Under Section 20109(c)(1)
In the preamble to the interim final
rule, OSHA stated that the procedural
rules provided in this part would not
apply to complaints under paragraph
20109(c)(1) of FRSA. That paragraph
provides:
A railroad carrier or person covered under
this section may not deny, delay, or interfere
with the medical or first aid treatment of an
employee who is injured during the course
of employment. If transportation to a hospital
is requested by an employee who is injured
during the course of employment, the
railroad shall promptly arrange to have the
injured employee transported to the nearest
hospital where the employee can receive safe
and appropriate medical care.

OSHA stated that section 20109(c)(1)
is not a whistleblower provision
because it appears to prohibit certain
conduct by railroad carriers irrespective
of any protected activity by an
employee. 75 FR at 53522. Rail Labor,
the AFL–CIO Transportation Trades
Department, and Charles Goetsch all
disagreed and urged the Secretary to
apply the procedures in this part to
complaints under section 20109(c)(1).
These commenters noted that section
20109(d) of FRSA gives the Secretary
the authority and duty to enforce the
statute when an employee alleges
‘‘discharge, discipline, or other

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discrimination in violation of
subsection (a), (b), or (c)[.]’’ 49 U.S.C.
20109(d). They noted that the legislative
history shows that the prompt medical
attention provision was originally
drafted as a stand-alone provision, but
was transferred to section 20109, which
is the only section in FRSA not assigned
to the Federal Railroad Administration
(FRA). Therefore, they concluded,
enforcement of section 20109, including
paragraph (c)(1), is assigned to the
Secretary. They further asserted that
‘‘other discrimination’’ in section
20109(d)(1) encompasses the denial,
delay, or interference with medical
treatment prohibited in paragraph (c)(1),
and that ‘‘other discrimination’’ is not
limited to situations involving protected
activity. Consequently, according to
these commenters, any denial or
infringement of the right under
paragraph (c)(1) to prompt medical
attention constitutes per se
discrimination. They also argued that it
is wrong to assume that paragraph (c)(1)
involves no protected activity. The
prohibited conduct in paragraph (c)(1)
(i.e., the denial, delay, or interference)
only occurs if an employee has
requested medical treatment. In other
words, the commenters suggest that an
employee has to have requested medical
treatment for that treatment to be
denied, delayed, or interfered with.
Thus, they maintained, the protected
activity under paragraph (c)(1) is
requesting medical treatment. Lastly,
they argued that it would be illogical to
prohibit a railroad carrier from
disciplining an employee for requesting
medical treatment as paragraph (c)(2)
does, but not to prohibit the railroad
carrier from denying, delaying, or
interfering with that medical treatment.
Treating paragraph (c)(1) as if it were
not a whistleblower provision would,
they claimed, permit a railroad carrier to
use the denial, delay, or interference
with an employee’s medical treatment
as the means of retaliating against the
employee rather than having to
discipline the employee, which would
violate paragraph (c)(2). They urged
OSHA to reconsider its position and to
process paragraph (c)(1) complaints
under the procedures applicable to all
other complaints arising under 49
U.S.C. 20109.
Apart from these comments on
paragraph (c)(1), the ARB set out its
interpretation of paragraph (c)(1) in
Santiago v. Metro-North Commuter R.R.
Co., Inc., ARB No. 10–147, 2012 WL
3164360 (ARB June 12, 2015), pet. for
review filed, Santiago v. U.S. Dep't of
Labor, Case No. 15–2551 (2d Cir. Aug.
13, 2015). The ARB treated a complaint

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under paragraph (c)(1) as a
whistleblower claim subject to the same
procedures and burdens of proof as a
claim under paragraphs (a) or (b). See id.
at *5. The ARB reasoned that paragraph
(c) implicitly identifies protected
activity as requesting or receiving
medical treatment or complying with
treatment plans for work injuries, and
identifies the prohibited discrimination
as delaying, denying, or interfering, or
imposing or threatening to impose
discipline. See id. The ARB further
reasoned that AIR 21’s procedural
burdens of proof govern claims under
paragraph (c), but must be tailored to
apply to the processing of such claims.
See id. at *6. The ARB also outlined
how the burdens of proof would apply
to complaints under paragraph (c)(1).
See id. at *10–12. Because FRSA grants
to the Secretary the authority to enforce
and adjudicate FRSA claims, 49 U.S.C.
20109(c), and because the Secretary has
delegated his adjudicative authority
under FRSA to the ARB, Secretary of
Labor’s Order No. 2–2012 (Oct. 19,
2012), 77 FR 69378 (Nov. 16, 2012), the
ARB’s decision in Santiago constitutes
the Secretary’s interpretation of
paragraph (c).
Based on the statutory text, the
legislative history of paragraph (c)(1),
and the ARB’s decision in Santiago
outlined above, the procedures provided
in 49 U.S.C. 20109(d) apply to
complaints alleging violations of
paragraph (c)(1). The language and
structure of the statute, together with
the legislative history, show that FRSA
provides employees the ability to file
complaints regarding violations of
paragraph (c)(1) with the Secretary and
recover the remedies listed in section
20109(e) in the event of a violation.
Paragraph (d)(1) states that ‘‘[a]n
employee who alleges discharge,
discipline or other discrimination in
violation of subsection (a), (b), or (c) of
this section, may seek relief in
accordance with the provisions of this
section, with any petition or other
request for relief under this section to be
initiated by filing a complaint with the
[Secretary].’’ 49 U.S.C. 20109(d)(1). The
plain language of paragraph (d)(1) does
not distinguish between complaints
alleging violations of paragraph (c)(1) or
(c)(2) in prescribing the treatment of
complaints, but rather broadly applies
to ‘‘any petition or request for relief
under this section.’’ (Emphasis added.)
Further, no other provision in 49 U.S.C.
20109 contains an alternative
mechanism for adjudication of
complaints under paragraph (c)(1).
Therefore, the ‘‘other discrimination’’
for which an employee may seek relief
under paragraph (d)(1) necessarily

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includes a denial, delay, or interference
with medical or first aid treatment, or
failing to promptly transport an injured
employee to the nearest hospital upon
the employee’s request. See Delgado v.
Union Pacific R.R. Co., 12 C 2596, 2012
WL 4854588, at *3 (N.D. Ill.) (‘‘[T]he
obstruction of an injured employee
seeking medical attention is itself
discrimination against an employee and
therefore provides a basis for private
enforcement under subsection (d)(1).’’).
The legislative history also supports
the conclusion that the Secretary has the
authority to enforce paragraph (c)(1) and
that the procedures outlined elsewhere
in section 20109 also apply to
complaints alleging violations of
paragraph (c)(1). As the commenters and
the ARB in Santiago noted, Congress
originally proposed to prohibit the
denial, delay, or interference with
medical or first aid treatment in a
freestanding section of FRSA, over
which the Secretary of Labor would not
have enforcement authority, but made a
conscious decision to move that
prohibition to paragraph (c)(1) of section
20109. See Federal Railroad Safety
Improvement Act of 2007, H.R. 2095,
110th Cong. Title VI, § 606 (2007)
(proposed bill, which would have
included the provision at 49 U.S.C.
20162); Rail Safety Improvement Act of
2008, H.R. Res. 1492 110th Cong. § 419
(2008) (reconciling H.R. 2095 with
Senate amendments and moving the
prohibition on the denial, delay, or
interference with medical or first aid
treatment from section 20162 to section
20109). Moving the provision to section
20109 indicates that Congress intended
employees to have the same right to file
a complaint with the Secretary of Labor
seeking damages and other remedies
following an unlawful denial, delay or
interference with medical or first aid
treatment that employees have for other
violations of section 20109. Santiago,
2012 WL 3255136, at *9 (describing this
history as ‘‘a progressive expansion of
anti-retaliation measures in an effort to
address continuing concerns about
railroad safety and injury reporting’’).
For all of these reasons, and in light of
the ARB’s decision in Santiago, the
procedures established in 29 CFR part
1982 apply to complaints alleging
violations of 49 U.S.C. 20109(c)(1), and
OSHA has accordingly revised sections
1982.100 and 1982.102 to reflect this
protection.
Comments Regarding the Proper
Interpretation of the Election of
Remedies, No Preemption, and Rights
Retained by Employees Provisions
The whistleblower provisions of
NTSSA and FRSA each provide that an

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employee may not seek protection
under those respective provisions and
another provision of law for the same
allegedly unlawful act of the public
transportation agency (under NTSSA) or
railroad carrier (under FRSA). 6 U.S.C.
1142(e); 49 U.S.C. 20109(f). The
whistleblower provisions of NTSSA and
FRSA also provide that nothing in those
respective provisions preempts or
diminishes any other safeguards against
discrimination, demotion, discharge,
suspension, threats, harassment,
reprimand, retaliation, or any other
manner of discrimination provided by
Federal or State law. 6 U.S.C. 1142(f); 49
U.S.C. 20109(g). The whistleblower
provisions of NTSSA and FRSA further
provide that nothing in those respective
provisions shall be construed to
diminish the rights, privileges, or
remedies of any employee under any
Federal or State law or under any
collective bargaining agreement and that
the rights and remedies in the
whistleblower provisions of NTSSA or
FRSA may not be waived by any
agreement, policy, form, or condition of
employment. 6 U.S.C. 1142(g); 49 U.S.C.
20109(h).
Several commenters addressed the
provisions in FRSA regarding election
of remedies, no preemption, and rights
retained by employees, 49 U.S.C.
20109(f), (g), and (h). (NTSSA contains
these same provisions, 6 U.S.C. 1142(e),
(f), and (g), but the comments
specifically referenced FRSA.) The
AFL–CIO Transportation Trades
Department asserted that railroad
employees have the right to seek relief
under both collective bargaining
agreements and the whistleblower
provision in 49 U.S.C. 20109, and that
a claim or grievance filed by a railroad
employee for an alleged violation of the
collective bargaining agreement should
not bar the employee from seeking
remedies available under FRSA. This
commenter stated that the rights to
organize, to bargain collectively, and to
file grievances for collective bargaining
agreement violations provided for in the
Railway Labor Act (RLA), 45 U.S.C. 151
et seq., which governs labormanagement relations in the railroad
industry, ‘‘are essential to maintaining
decent wages, and health and retirement
benefits, as well as providing a legal
remedy for workers who have been
wronged by their employers.’’
According to this commenter, it would
make no sense for Congress to have
intended ‘‘to strip rail employees of
contractual rights’’ when it provided
whistleblower railroad employees a
statutory remedy against retaliation. Rail
Labor urged OSHA to interpret

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paragraph (f) of FRSA, the election of
remedies provision, as not barring
claims made by an employee under the
Federal Employers’ Liability Act
(FELA), 45 U.S.C. 51 et seq., or a
collective bargaining agreement, when a
FRSA claim has been filed, or vice
versa. Rather, Rail Labor suggested, the
election of remedies provision could
apply to state public policy doctrines or
state whistleblower statutes or
regulations. Rail Labor urged OSHA to
interpret section 20109(g) of FRSA, the
no-preemption provision, to mean that
FRSA has no bearing on FRA’s
jurisdiction under 49 CFR part 225 to
investigate, make findings, and levy and
enforce penalties against railroad
carriers for prohibited conduct. Also
referencing the FRA regulation at 49
CFR part 225, the Utah Transit
Authority FrontRunner Commuter Rail
commented that all railroad carriers are
already governed by 49 CFR 225.33(a)(1)
and (2), and suggested that OSHA
should cross-reference these regulations
to avoid regulatory duplication. Rail
Labor also urged OSHA to interpret
paragraph (h) of FRSA, the rights
retained by an employee provision, to
mean that section 20109 has no bearing
on matters under the RLA or collective
bargaining agreements, and that the
rights provided for in FRSA are not a
proper subject of collective bargaining
and not subject to waiver. Lastly, Rail
Labor urged OSHA to state that the RLA
and railroad collective bargaining
agreements do not provide
whistleblower protection, that a railroad
carrier’s pre-disciplinary investigations
and disciplinary decisions do not
address an employee’s whistleblower
claims, and that the National Railroad
Adjustment Board has no jurisdiction to
adjudicate whistleblower claims under
FRSA.
OSHA does not believe that the
changes to the text of these procedural
rules suggested by these commenters are
necessary. However, OSHA notes that
the specific issue of the applicability of
FRSA’s election of remedies provision
to an arbitration brought pursuant to the
employee’s collective bargaining
agreement under the RLA was decided
by the ARB in the consolidated cases of
Koger v. Norfolk Southern Railway Co.
and Mercier v. Union Pacific Railroad,
ARB Nos. 09–101 and 09–121, 2011 WL
4889278 (ARB Sept. 29, 2011). The ARB
concluded that FRSA’s election of
remedies provision permits a
whistleblower claim to proceed
notwithstanding the employee’s pursuit
of a grievance or arbitration under a
collective bargaining agreement. Id. at
*8. The ARB’s decision constitutes the

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Secretary’s interpretation of the election
of remedies provision on this issue and
nothing in these final rules alters the
ARB’s conclusion. Three circuit courts
of appeals and numerous district courts
have agreed with the Secretary’s
conclusion. See Norfolk S. Ry. Co. v.
Perez, 778 F.3d 507 (6th Cir. 2015);
Grimes v. BNSF Ry. Co., 746 F.3d 184
(5th Cir. 2014); Reed v. Norfolk S. Ry.
Co., 740 F.3d 420 (7th Cir. 2014); Koger
v. Norfolk S. Ry. Co., No. 1:13–12030,
2014 WL 2778793 (S.D.W. Va. June 19,
2014); Pfeiffer v. Union Pacific R.R. Co.,
No. 12–cv–2485, 2014 WL 2573326 (D.
Kan. June 9, 2014); Ray v. Union Pac.
R.R., 971 F. Supp. 2d 869 (S.D. Iowa
2013); Ratledge v. Norfolk S. Ry. Co.,
No. 1:12–cv–402, 2013 WL 3872793
(E.D. Tenn. July 25, 2013); cf.
Battenfield v. BNSF Ry. Co., No. 12–cv–
213, 2013 WL 1309439 (N.D. Okla. Mar.
26, 2013) (examining section 20109(f)
and permitting plaintiff to add FRSA
retaliation claim despite having
challenged his termination under his
CBA); Norfolk S. Ry. Co. v. Solis, 915 F.
Supp. 2d 32, 43–45 (D.D.C. 2013)
(concluding that court did not have
jurisdiction to review ARB’s Mercier
decision because the ARB’s statutory
interpretation was, at a minimum, a
colorable interpretation of FRSA’s
election of remedies provision).
Furthermore, FRSA’s election of
remedies provision generally does not
bar complainants from bringing both a
FRSA retaliation claim and a complaint
for compensation for a workplace injury
under FELA. A worker who files a claim
under FRSA and separately under FELA
generally is not seeking ‘‘protection
under both [FRSA] and another
provision of law for the same allegedly
unlawful act of the railroad carrier.’’
Under FRSA, a worker may seek
reinstatement, back pay, and damages
resulting from an act of retaliation by
the railroad because of the worker’s
protected activity. Under FELA, a
worker may seek damages for a
workplace injury that was due in whole
or part to the railroad’s negligence. The
conduct that gives rise to a retaliation
claim under FRSA generally differs from
the conduct that causes a worker’s
injury, which is the subject of a FELA
claim. The latter involves a general
standard of care that a railroad owes a
worker while the former is akin to an
intentional tort. OSHA notes that
employees routinely pursue a FRSA
claim and a FELA claim concurrently in
district court. See, e.g., Davis v. Union
Pacific R.R. Co., l F. Supp. 2d l, 2014
WL 3499228 (W.D. La. Jul. 14, 2014);
Barati v. Metro-North R.R., 939 F. Supp.
2d 153 (D. Conn. 2013); Cook v. Union

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Pacific R.R. Co., No. 10–6339–TC, 2011
WL 5842795 (D. Or. Nov. 18, 2011).
Additionally, in response to Rail
Labor’s and Utah Transit Authority
FrontRunner Commuter Rail’s
comments concerning FRA’s regulation
at 49 CFR part 225, OSHA notes that an
employee’s ability to pursue a
retaliation claim under FRSA seeking
reinstatement and a monetary remedy is
separate from and is not limited by
FRA’s authority to investigate, make
findings, levy and enforce penalties, or
take other enforcement action against
railroads for conduct prohibited by 49
CFR part 225, including violations of 49
CFR 225.33. Likewise, an employee’s
ability to pursue a retaliation claim
under FRSA does not limit FRA’s
authority to enforce 49 CFR part 225. As
previously explained, 49 CFR
225.33(a)(1) requires that each railroad
carrier adopt and comply with an
internal control plan that includes a
policy statement declaring the railroad
carrier’s commitment to complete and
accurate reporting of all accidents,
incidents, injuries, and occupational
illnesses arising from the operation of
the railroad carrier. The policy
statement must also declare the railroad
carrier’s commitment to prohibiting
harassment or intimidation of any
person that is intended to discourage or
prevent such person from receiving
proper medical treatment for or from
reporting such accident, incident,
injury, and illness. In addition, 49 CFR
225.33(a)(2) requires that each railroad
carrier disseminate such policy
statement to all employees, have
procedures to process complaints that
the policy statement has been violated,
and impose discipline on the
individual(s) violating the policy
statement. While an act of intimidation
and harassment, such as a threat of
discipline, may run afoul of both 49
CFR 225.33 and 49 U.S.C. 20109, this
overlap does not lead to regulatory
duplication. FRA’s ability to utilize its
enforcement tools to cite a railroad for
a violation of its policy statement
against harassment and intimidation
calculated to prevent an employee from
reporting a casualty or accident or
receiving proper medical treatment, and
FRA’s ability to discipline an individual
such as a manager for violation of such
policy, is not a remedy for the
individual railroad employee who may
have suffered retaliation as result of
reporting an injury or requesting
medical treatment. By contrast, FRSA
gives employees the right to obtain
reinstatement, back pay and appropriate
damages resulting from a railroad’s

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retaliation because the employee reports
an injury or requests medical treatment.
Comment Regarding the Secretary's
Compliance With Statutory Timelines
Mr. Todd Miller commented generally
that the regulations do not provide a
means for redress where OSHA does not
meet the timelines provided for in the
statute. Courts and the ARB have long
recognized that failure to complete the
investigation or issue a final decision
within the statutory time frame does not
deprive the Secretary of jurisdiction
over a whistleblower complaint. See,
e.g., Passaic Valley Sewerage Comm'rs
v. U.S. Dep't of Labor, 992 F.2d 474, 477
n.7 (3d Cir. 1993); Roadway Express,
Inc. v. Dole, 929 F.2d 1060, 1066 (5th
Cir. 1991); Lewis v. Metro. Transp.
Auth., ARB No. 11–070, 2011 WL
3882486, at *2 (ARB Aug. 8, 2011);
Welch v. Cardinal Bankshares, ARB No.
04–054, 2004 WL 5030301 (ARB May
13, 2004). The Secretary is cognizant of
NTSSA and FRSA’s statutory directives
regarding completion of the OSHA
investigation and administrative
proceedings and the need to resolve
whistleblower complaints
expeditiously. However, in those
instances where the agency cannot
complete the administrative
proceedings within the statutory
timeframes, NTSSA’s and FRSA’s ‘‘kickout’’ provisions, which allow a
complainant to file a complaint for de
novo review in federal district court if
the Secretary has not issued a final
decision within 210 days of the filing of
the complaint, allow the complainant an
alternative avenue for resolution of the
whistleblower complaint.
Subpart A—Complaints, Investigations,
Findings and Preliminary Orders
Section 1982.100

Purpose and Scope

This section describes the purpose of
the regulations implementing NTSSA
and FRSA and provides an overview of
the procedures covered by these
regulations. No comments were received
on this section. However, OSHA has
added a statement in subparagraph (a)
noting that FRSA protects employees
against delay, denial or interference
with first aid or medical treatment for
workplace injuries. OSHA has also
added a statement in subparagraph (b)
noting that these rules set forth the
Secretary’s interpretations of NTSSA
and FRSA on certain statutory issues.
Section 1982.101

Definitions

This section includes general
definitions applicable to the employee
protection provisions of NTSSA and
FRSA.

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The definition section of NTSSA, 6
U.S.C. 1131(5), defines ‘‘public
transportation agency’’ as ‘‘a publicly
owned operator of public transportation
eligible to receive federal assistance
under chapter 53 of title 49.’’ Chapter 53
of title 49, 49 U.S.C. 5302(14), defines
‘‘public transportation’’ as ‘‘regular,
continuing shared-ride surface
transportation services that are open to
the general public or open to a segment
of the general public defined by age,
disability, or low income; and does not
include: Intercity passenger rail
transportation provided by the entity
described in chapter 243 (or a successor
to such entity); intercity bus service;
charter bus service; school bus service;
sightseeing service; courtesy shuttle
service for patrons of one or more
specific establishments; or intraterminal or intra-facility shuttle
services.’’ Chapter 243, 49 U.S.C. 24301
et seq., governs Amtrak. The definition
of ‘‘public transportation’’ has been
updated as needed to be consistent with
2012 amendments to 49 U.S.C. 5302.
In the interim final rule, OSHA stated
that the definition section of FRSA, 49
U.S.C. 20102(2), defined ‘‘railroad
carrier’’ as ‘‘a person providing railroad
transportation,’’ and that section
20102(1) defined ‘‘railroad’’ as ‘‘any
form of nonhighway ground
transportation that runs on rails or
electromagnetic guideways, including
commuter or other short-haul railroad
passenger service in a metropolitan or
suburban area and commuter railroad
service that was operated by the
Consolidated Rail Corporation on
January 1, 1979; and high speed ground
transportation systems that connect
metropolitan areas, without regard to
whether those systems use new
technologies not associated with
traditional railroads; but does not
include rapid transit operations in an
urban area that are not connected to the
general railroad system of
transportation.’’ 75 FR at 53523–24. It
has come to OSHA’s attention that these
citations were incorrect. Section 20102
of FRSA was amended such that the
definition of ‘‘railroad carrier’’ is now in
paragraph (3), not (2), and that the
definition of ‘‘railroad’’ is now in
paragraph (2), not (1). Public Law 110–
432, 122 Stat. 4850, 4886 (Oct. 16,
2008). In addition, the definition of
‘‘railroad carrier’’ was modified: It is
defined as ‘‘a person providing railroad
transportation, except that, upon
petition by a group of commonly
controlled railroad carriers that the
Secretary [of Transportation] determines
is operating within the United States as
a single, integrated rail system, the

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Secretary [of Transportation] may by
order treat the group of railroad carriers
as a single railroad carrier for purposes
of one or more provisions of part A,
subtitle V of [ ] title [49] and
implementing regulations and order,
subject to any appropriate conditions
that the Secretary [of Transportation]
may impose.’’ 49 U.S.C. 20102(3). The
regulatory text in section 1982.101(k) is
modified accordingly in the final rule.
The definition of ‘‘railroad’’ remains the
same as in the interim final rule.
The AFL–CIO Transportation Trades
Department suggested that OSHA define
‘‘public transportation agency’’ and
‘‘railroad carrier’’ to include explicitly
as covered employers owners, as well as
contractors and subcontractors acting as
operators. Rail Labor suggested that
OSHA supplement these definitions by
clarifying coverage over joint employers
because, according to Rail Labor, the
current regulatory definition does not
address retaliation by railroad owners
who are not operators. Under NTSSA, a
covered employer is a ‘‘public
transportation agency,’’ which the
statute defines in relevant part as ‘‘a
publicly owned operator of public
transportation.’’ Similarly, under FRSA,
a covered employer is a ‘‘railroad
carrier,’’ which the statute defines in
relevant part as ‘‘a person providing
railroad transportation.’’ Thus, these
statutes contain specific definitions of a
covered employer. The determination of
whether an ‘‘operator’’ (in the case of
NTSSA) or ‘‘a person providing’’ (in the
case of FRSA) includes owners who are
not operators may turn on the facts of
a given case and is better addressed
through the adjudication of cases under
NTSSA and FRSA rather than in these
procedural rules. OSHA notes that
NTSSA prohibits a contractor or
subcontractor of a public transportation
agency from engaging in the retaliatory
conduct prohibited under the statute. 6
U.S.C. 1142(a) and (b). Similarly, FRSA
prohibits a contractor or subcontractor
of a railroad carrier from engaging in
certain retaliatory conduct prohibited
under the statue. 49 U.S.C. 20109(a).
Therefore, OSHA declines to make the
changes to this section suggested by
AFL–CIO Transportation Trades
Department and Rail Labor.
Section 1982.102 Obligations and
Prohibited Acts
This section describes the activities
that are protected under NTSSA and
FRSA, and the conduct that is
prohibited in response to any protected
activities. Minor corrections have been
made throughout this section to more
closely parallel NTSSA and FRSA and
OSHA’s procedural rules under other

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whistleblower statutes and the section
has been renumbered to better comply
with the drafting requirements of the
Federal Register.
In light of OSHA’s revised position
regarding 49 U.S.C. 20109(c)(1)
discussed above, the regulatory text for
this section of FRSA has been modified
to more closely mirror the statutory text
of section 20109(c) and to include the
(c)(1) provision as 29 CFR
1982.102(b)(3)(i).
Rail Labor and the AFL–CIO
Transportation Trades Department each
commented on the exception to FRSA’s
prompt medical attention provision in
49 U.S.C. 20109(c)(2) permitting a
railroad carrier to refuse to allow an
employee to return to work when that
refusal is pursuant to FRA’s medical
standards for fitness of duty, or, if no
such standards exist, then pursuant to
the railroad carrier’s own medical
standards for fitness of duty. They
argued that this exception gives railroad
carriers the ability to use groundless
medical refusals as a substitute for
retaliatory discipline or other forms of
retaliation. Therefore, they urged OSHA
to include a statement in the regulation
that a railroad carrier’s refusal must be
done in good faith and with a
reasonable basis of medical fact, and
that when the railroad carrier is relying
on its own standards, those standards
must be established in the carrier’s
official policies, be medically
reasonable, and uniformly applied. By
contrast, the American Public
Transportation Association commented
that the protection against discipline for
requesting medical treatment or
following a treatment plan ignores
management’s right to discipline
employees whose injuries are directly
caused by a violation of work rules or
procedures. This commenter suggested
that this rule should recognize
management’s right to discipline
employees in such situations, and that
this right is independent of
management’s obligation not to
discipline an employee for requesting
medical treatment.
OSHA declines to change the text of
these regulations in response to these
comments but notes that these
commenters raise legitimate concerns
regarding the adjudication of cases
under FRSA. For example, the question
of whether a railroad’s discipline of an
employee is in retaliation for requesting
medical treatment or results from the
legitimate application of a work rule or
procedure is often the central question
in a FRSA complaint. In each
complaint, that question should be
resolved based on the specific facts of
the case and the applicable case law.

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Similarly, OSHA believes that the
safe-harbor in 49 U.S.C. 20109(c)(2)
requires that the railroad’s refusal to
allow an employee to return to work be
in good faith. A retaliatory refusal to
permit an employee to return to work
cannot properly be regarded as made
‘‘pursuant to’’ FRA’s or the carrier’s own
medical standards for fitness for duty
under the statute. Any other
interpretation of the provision would
permit a railroad carrier to refuse to
allow an employee to return to work in
retaliation against the employee for
reporting the injury (which would
violate 20109(a)(4)) or as a means for
extending retaliatory discipline
prohibited by 20109(c)(2). However,
OSHA declines to incorporate the
language proposed by the commenters
into the rule, which mirrors the
statutory language. Evidence that a
railroad carrier’s refusal to allow an
employee to return to work is not
reasonable based on the employee’s
medical condition may be important to
show that the refusal is not in good faith
and constitutes retaliation. Evidence
that a refusal is based on carrier
standards that are not recorded in the
carrier’s official policies, not uniformly
applied or not medically reasonable
likewise may help to demonstrate that
the refusal is due not to a legitimate
safety concern of the railroad carrier but
rather is motivated by retaliatory intent.
However, the question of whether a
particular refusal to permit an employee
to return to work falls outside
20109(c)(2)’s safe harbor turns on the
facts of the case and should be
adjudicated in accordance with the
applicable case law.
Finally, in a change that is not
intended to have substantive effect, the
terms ‘‘retaliate’’ and ‘‘retaliation’’ have
been substituted for the terms
‘‘discriminate’’ and ‘‘discrimination,’’
which were used in the interim final
rule. This change makes the terminology
used in this rule consistent with the
terminology in OSHA’s more recently
promulgated whistleblower rules.
Subheadings have been added to more
clearly indicate which activities are
protected under NTSSA and which are
protected under FRSA and the
paragraphs have been renumbered as
needed to comply with Federal Register
drafting requirements and to reflect that
the protections in 49 U.S.C. 20109(c)(1)
have been added.
Section 1982.103 Filing of Retaliation
Complaints
This section explains the
requirements for filing a retaliation
complaint under NTSSA and FRSA. To
be timely, a complaint must be filed

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within 180 days of when the alleged
violation occurs. Under Delaware State
College v. Ricks, 449 U.S. 250, 258
(1980), this is considered to be when the
retaliatory decision has been both made
and communicated to the complainant.
In other words, the limitations period
commences once the employee is aware
or reasonably should be aware of the
employer’s decision to take an adverse
action, not when the employee learns of
the retaliatory nature of the action. See
Equal Emp't Opportunity Comm'n v.
United Parcel Serv., Inc., 249 F.3d 557,
561–62 (6th Cir. 2001). Complaints filed
under NTSSA or FRSA need not be in
any particular form. They may be either
oral or in writing. If the complainant is
unable to file the complaint in English,
OSHA will accept the complaint in any
language. With the consent of the
employee, complaints may be filed by
any person on the employee’s behalf.
GAP expressed support for Sections
1982.103(b) (nature of filing) and (d)
(time for filing), which outline the form
of filing and the time for filing,
respectively, and commented that they
improved protection for whistleblowers.
GAP also asked that the text of section
1982.103(d) clarify that the 180-day
statute of limitations for filing a
complaint under FRSA and NTSSA
does not begin to run until an employee
becomes aware of an alleged retaliatory
act. OSHA believes that the rule as
drafted properly states the statute of
limitations but has added a sentence to
further explain that because OSHA may
consider the statute of limitations tolled
for reasons warranted by applicable case
law. OSHA may, for example, consider
the time for filing a complaint equitably
tolled if a complainant mistakenly files
a complaint with another agency instead
of OSHA within 180 days after
becoming aware of the alleged violation.
AAR asserted that complaints should
be accepted only in writing, not orally
as well. AAR argued that permitting oral
complaints is not consistent with the
regulations in AIR 21, which section
20109(d)(2) of FRSA requires the
Secretary to follow in administering
FRSA actions. AAR further argues that
FRSA’s use of the word ‘‘filing’’ in
section 20109(d)(1) contemplates a
writing. According to AAR, requiring
written complaints is better from a
policy perspective because written
complaints are clearer and less
burdensome and inefficient for both
OSHA and employers. ASLRRA
similarly urged OSHA to require that all
complaints must be in writing, for much
the same reasons that AAR expressed. In
addition, ASLRRA suggested that
written complaints must include a
statement of the acts and omissions,

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with pertinent dates, that are believed to
have created the statutory violation.
OSHA declines to adopt AAR’s and
ASLRRA’s suggestion and will permit
complaints to be made orally or in
writing. Submission of a complaint in
writing is not a statutory requirement of
NTSSA, FRSA, or AIR 21. Cf. Kasten v.
Saint-Gobain Performance Plastics
Corp., 131 S. Ct. 1325, 2011 WL 977061,
at *2 (2011) (the statutory term ‘‘filed
any complaint’’ in the Fair Labor
Standards Act includes oral as well as
written complaints). OSHA is generally
updating its whistleblower procedures
to allow oral complaints. Permitting oral
complaints is consistent with decisions
of the ARB permitting oral complaints.
See, e.g., Roberts v. Rivas Env't
Consultants, Inc., ARB No. 97–026,
1997 WL 578330, at *3 n.6 (ARB 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
Comprehensive Environmental
Response, Compensation, and Liability
Act, 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 (Office of Admin.
App. Apr. 25, 1983) (adopting ALJ’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 Energy Reorganization Act of 1974,
as amended, (ERA), 42 U.S.C. 5851, 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
Transportation Assistance Act of 1982,
49 U.S.C. 31105.
OSHA notes that a complaint of
retaliation filed with OSHA under
NTSSA and FRSA is not a formal
document and need not conform to the
pleading standards for complaints filed
in federal district court articulated in
Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007) and Ashcroft v. Iqbal, 556
U.S. 662 (2009). See Sylvester v. Parexel
Int'l, Inc., ARB No. 07–123, 2011 WL
2165854, at *9–10 (ARB May 26, 2011)
(holding whistleblower complaints filed
with OSHA under analogous provisions

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69121

in the Sarbanes-Oxley Act need not
conform to federal court pleading
standards). Rather, the complaint filed
with OSHA under this section simply
alerts the agency to the existence of the
alleged retaliation and the
complainant’s desire that the agency
investigate the complaint. Upon the
filing of a complaint with OSHA, OSHA
is to determine whether ‘‘the complaint,
supplemented as appropriate by
interviews of the complainant’’ alleges
‘‘the existence of facts and evidence to
make a prima facie showing,’’ 29 CFR
1982.104(e). As explained in section
1982.104(e), if the complaint,
supplemented as appropriate, contains a
prima facie allegation, and the
respondent does not show clear and
convincing evidence that it would have
taken the same action in the absence of
the alleged protected activity, OSHA
conducts an investigation to determine
whether there is reasonable cause to
believe that retaliation has occurred. See
6 U.S.C. 1142(c)(2)(B) (providing
burdens of proof applicable to
complaints under NTSSA); 49 U.S.C.
42121(b)(2)(B) (providing the burdens of
proof applicable to complaints under
FRSA).
In the final rule, OSHA has deleted
the phrase ‘‘by an employer’’ from
paragraph (a) of this section in order to
better reflect NTSSA’s and FRSA’s
statutory provisions prohibiting
retaliation by officers and employees as
well as railroad carriers, public
transportation agencies and those
entities’ contractors and subcontractors,
and has made other minor changes as
needed to clarify the provision without
changing its meaning.
Section 1982.104 Investigation
This section describes the procedures
that apply to the investigation of
complaints under NTSSA and FRSA.
Paragraph (a) of this section outlines the
procedures for notifying the parties and
appropriate federal agencies of the
complaint and notifying the respondent
of its rights under these regulations.
Paragraph (b) describes the procedures
for the respondent to submit its
response to the complaint. As explained
below, paragraph (c) has been revised in
response to the comments to state that
OSHA will request that the parties
provide each other with copies of their
submissions to OSHA during the
investigation and that, if a party does
not provide such copies, OSHA will do
so at a time permitting the other party
an opportunity to respond to those
submissions. Before providing such
materials, OSHA will redact them in
accordance with the Privacy Act of
1974, 5 U.S.C. 552a, et seq., and other

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applicable confidentiality laws.
Paragraph (d) of this section discusses
confidentiality of information provided
during investigations.
Paragraph (e) of this section sets forth
NTSSA’s and FRSA’s statutory burdens
of proof. FRSA adopts the burdens of
proof provided under AIR 21, 49 U.S.C.
42121(b)(2), which are the same as those
provided under NTSSA. Therefore, this
paragraph generally conforms to the
similar provision in the regulations
implementing AIR 21.
The statutes require that a
complainant make an initial prima facie
showing that a protected activity was ‘‘a
contributing factor’’ in the adverse
action alleged in the complaint, i.e., that
the protected activity, alone or in
combination with other factors, affected
in some way the outcome of the
employer’s decision. The complainant
will be considered to have met the
required burden if the complaint on its
face, supplemented as appropriate
through interviews of the complainant,
alleges the existence of facts and either
direct or circumstantial evidence to
meet the required showing. The
complainant’s burden may be satisfied,
for example, if he or she shows that the
adverse action took place within a
temporal proximity of the protected
activity, or at the first opportunity
available to the respondent, giving rise
to the inference that it was a
contributing factor in the adverse action.
See, e.g., Porter v. Cal. Dep't of Corrs.,
419 F.3d 885, 895 (9th Cir. 2005) (years
between the protected activity and the
retaliatory actions did not defeat a
finding of a causal connection where the
defendant did not have the opportunity
to retaliate until he was given
responsibility for making personnel
decisions).
If the complainant does not make the
required prima facie showing, the
investigation must be discontinued and
the complaint dismissed. See Trimmer
v. U.S. Dep't of Labor, 174 F.3d 1098,
1101 (10th Cir. 1999) (noting that the
burden-shifting framework of the Energy
Reorganization Act of 1974 (ERA),
which is the same as those under
NTSSA and FRSA, serves a
‘‘gatekeeping function’’ that ‘‘stem[s]
frivolous complaints’’). Even in cases
where the complainant successfully
makes a prima facie showing, the
investigation must be discontinued if
the employer demonstrates, by clear and
convincing evidence, that it would have
taken the same adverse action in the
absence of the protected activity. Thus,
OSHA must dismiss a complaint under
NTSSA or FRSA and not investigate
further if either: (1) The complainant
fails to meet the prima facie showing

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that protected activity was a
contributing factor in the alleged
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 statute requires OSHA to determine
whether there is reasonable cause to
believe that protected activity was a
contributing factor in the alleged
adverse action. A contributing factor is
‘‘any factor which, alone or in
connection with other factors, tends to
affect in any way the outcome of the
decision.’’ Araujo v. New Jersey Transit
Rail Ops., Inc., 708 F.3d 152, 158 (3d
Cir. 2013), quoting Marano v. Dep't of
Justice, 2 F.3d 1137, 1140 (Fed. Cir.
1993) (internal quotation marks,
emphasis and citation omitted)
(discussing the Whistleblower
Protection Act, 5 U.S.C. 1221(e)(1)). For
protected activity to be a contributing
factor in the adverse action, ‘‘a
complainant need not necessarily prove
that the respondent’s articulated reason
was a pretext in order to prevail,’’
because a complainant alternatively can
prevail by showing that the
respondent’s ‘‘reason, while true, is only
one of the reasons for its conduct,’’ and
that another reason was the
complainant’s protected activity. See
Klopfenstein v. PCC Flow Techs.
Holdings, Inc., ARB No. 04–149, 2006
WL 3246904, at *13 (ARB May 31, 2006)
(quoting Rachid v. Jack in the Box, Inc.,
376 F.3d 305, 312 (5th Cir. 2004))
(discussing contributing factor test
under the Sarbanes-Oxley Act
whistleblower provision), aff'd sub
nom. Klopfenstein v. Admin. Review
Bd., U.S. Dep't of Labor, 402 F. App’x
936, 2010 WL 4746668 (5th Cir. 2010).
If OSHA finds reasonable cause to
believe that the alleged protected
activity was a contributing factor in the
adverse action, OSHA may not order
relief if the employer demonstrates by
‘‘clear and convincing evidence’’ that it
would have taken the same action in the
absence of the protected activity. See 6
U.S.C. 1142(c)(2)(B)(iv); 49 U.S.C.
42121(b)(2)(B)(iv). The ‘‘clear and
convincing evidence’’ standard is a
higher burden of proof than a
‘‘preponderance of the evidence’’
standard. Clear and convincing
evidence is evidence indicating that the
thing to be proved is highly probable or
reasonably certain. Clarke v. Navajo
Express, ARB No. 09–114, 2011 WL
2614326, at *3 (ARB June 29, 2011); see
also Araujo, 708 F.3d at 159.
Paragraph (f) describes the procedures
OSHA will follow prior to the issuance

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of findings and a preliminary order
when OSHA has reasonable cause to
believe that a violation has occurred and
that preliminary reinstatement is
warranted.
NWC, GAP, AAR, and ASLRRA
commented on the provisions in section
1982.104. NWC suggested that the
phrase ‘‘other applicable confidentiality
laws’’ in 1982.104(c) be replaced with
more specific language describing the
confidentiality laws that might apply to
a respondent’s answer. NWC also
suggested that OSHA provide a copy of
the response to the complainant, and
give the complainant an opportunity to
respond. NWC noted that to conduct a
full and fair investigation, OSHA needs
to obtain the available, responsive
information from both parties. If one
party does not have the information
submitted by the other, NWC explained,
that party cannot help the investigation
by providing available information to
shed light on the matter.
GAP commented that while it was
pleased with the provisions in section
1982.104 providing copies of
respondent’s submissions to
complainants and protecting witness
confidentiality, it was concerned that
the procedures under section
1982.104(f) ‘‘disenfranchise[d] the
victim, giving only one side of the
dispute the chance to participate in the
most significant step of the process’’ and
that ‘‘[a]t a minimum, this procedural
favoritism means there will not be an
even playing field in the administrative
hearing.’’ GAP advocated removing
section 1982.104(f).
AAR commented that a complainant
should not have access to a railroad
carrier’s confidential and/or privileged
information, including internal business
records, and investigative materials.
According to AAR, it would be unfair
for OSHA to provide such information
to the complainant when a railroad
carrier would be able to protect itself
from the disclosure of such information
in the context of litigation. AAR
proposed that OSHA amend the
language in 1982.104(c) to state that
OSHA will not provide the complainant
with any information the railroad carrier
marks ‘‘confidential,’’ and that if OSHA
disagrees with the railroad carrier’s
determination, OSHA will afford the
railroad carrier an opportunity to justify
its position before disclosure.
AAR also proposed that OSHA should
allow railroad carriers access to all of
OSHA’s interview notes, submissions,
testimony, and other evidence (redacted
if necessary). It also suggested that
OSHA broaden the language in
paragraph (f) to require OSHA to
provide the employer with the

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allegations and evidence relied upon by
the complainant as OSHA processes a
complaint, and that the employer
should receive this information
regardless of whether reinstatement is
an issue. AAR argued that, overall,
section 1982.104 puts the railroad
carrier and the complainant on unequal
footing, with the complainant having
more timely access to information than
the railroad carrier. AAR further noted
that the comparable regulation under
AIR 21, 29 CFR 1979.104(a), requires
OSHA to provide the respondent ‘‘the
substance of the evidence supporting
the complaint’’ upon receipt of the
complaint, rather than waiting until the
Secretary believes preliminary
reinstatement is warranted as in section
1982.104(f). According to AAR,
providing the respondent with the
evidence supporting the complaint at
that late stage in the proceeding, as is
contemplated by section 1982.104, is
inconsistent with the statutory directive
that AIR 21 procedures apply. AAR
suggested that the respondent be
provided with all of the evidence at the
outset of a case, as well as throughout
the course of a case.
Lastly, ASLRRA expressed concern
with the statement in section
1982.104(e)(3) that a complainant may
satisfy his prima facie showing
requirement by showing that the
adverse action took place shortly after
the protected activity. According to
ASLRRA, timing alone is insufficient to
establish a prima face case of retaliation
as timing is only one of many factors to
consider. Further, according to
ASLRRA, relying on timing is
particularly problematic in a unionized
workplace, where employers are
contractually obligated to follow certain
disciplinary procedures with short time
limits.
Regarding NWC’s suggestion that
OSHA provide more specific
information about the confidentiality
laws that may protect portions of the
information submitted by a respondent
and AAR’s concern regarding protection
of information that would not otherwise
be discoverable, OSHA believes that the
vast majority of respondent submissions
will not be subject to any confidentiality
laws. However, OSHA recognizes that,
in addition to the Privacy Act, a variety
of confidentiality provisions may
protect information submitted during
the course of an investigation. For
example, a respondent may submit
information that the respondent
identifies as confidential commercial or
financial information exempt from
disclosure under the Freedom of
Information Act (FOIA). OSHA’s
procedures for handling information

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identified as confidential during an
investigation are explained in OSHA’s
Whistleblower Investigations Manual,
available at: http://
www.whistleblowers.gov/regulations_
page.html. As the investigation manual
illustrates, OSHA is cognizant of the
protections available to employers and
therefore believes there is no need to
modify the regulatory text to ensure that
employers’ confidential information is
protected.
With regard to NWC and GAP’s
comments seeking more opportunities
for the complainant to be involved in
the investigation of the complainant’s
whistleblower complaint, OSHA agrees
with NWC and GAP that the input of
both parties in the investigation is
important to ensuring that OSHA
reaches the proper outcome during its
investigation and has made two changes
in response to these comments. Section
1982.104(c) of the IFR provided that,
throughout the investigation, the agency
would provide the complainant (or the
complainant’s legal counsel if the
complainant is represented by counsel)
a copy of all of respondent’s
submissions to the agency that are
responsive to the complainant’s
whistleblower complaint, redacted of
confidential information as necessary.
In response to the commenters, the final
rule has been revised to state that OSHA
will request that the parties provide
each other with copies of their
submissions to OSHA during the
investigation and that, if a party does
not provide such copies, OSHA will do
so at a time permitting the other party
an opportunity to respond to those
submissions. Also, section 1982.104(f)
provides that the complainant will
receive a copy of the materials that must
be provided to the respondent under
that paragraph.
With regard to GAP’s comment that
section 1982.104(f) should be removed
and AAR’s comment that this provision
should be expanded to all cases
regardless of whether reinstatement is at
issue, OSHA notes that the purpose of
1982.104(f) is to ensure compliance
with the Supreme Court’s ruling in
Brock v. Roadway Express, 481 U.S.
252, 264 (1987). In that decision, the
Court upheld the facial constitutionality
of the analogous provisions providing
for preliminary reinstatement under
STAA, 49 U.S.C. 31105, and the
procedures adopted by OSHA to protect
the respondent’s rights under the Due
Process Clause of the Fifth Amendment,
but ruled that the record failed to show
that OSHA investigators had informed
the respondent of the substance of the
evidence to support reinstatement of the
discharged employee. In so finding, the

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Court noted that although a formal
hearing was not required before OSHA
ordered preliminary reinstatement
‘‘minimum due process for the
employer in this context requires notice
of the employee’s allegations, notice of
the substance of the relevant supporting
evidence, an opportunity to submit a
written response, and an opportunity to
meet with the investigator and present
statements from rebuttal witnesses.’’
Roadway Express, 481 U.S. at 264; see
Bechtel v. Competitive Techs., Inc., 448
F.3d 469, 480–81 (Leval, J., concurring)
(finding OSHA’s preliminary
reinstatement order under SarbanesOxley unenforceable because the
information provided to the respondent
did not meet the requirements of
Roadway Express). Thus, OSHA
declines to remove the language
providing the respondent notice and
opportunity to respond under section
1982.104(f). Also, because in cases not
involving preliminary reinstatement all
of the remedies in the Secretary’s
preliminary order are stayed if the
respondent files objections and requests
a hearing, OSHA believes that the
hearing procedures provided by these
rules adequately protect respondents’
due process rights in those cases.
Expanding the application of section
1982.104(f) to cases not involving
preliminary reinstatement would
significantly delay investigations of
FRSA and NTSSA cases but would not
ensure any additional due process rights
for respondents.
Also in response to AAR’s comments
regarding the information to be
provided to respondents during the
investigation, OSHA agrees, in part,
with AAR’s comments. NTSAA and
FRSA, through its incorporation of AIR
21’s rules and procedures, both indicate
that the Secretary, upon receipt of a
complaint, shall notify the respondent
not only of the filing of the complaint,
but also of the allegations contained in
the complaint and of the substance of
the evidence supporting the complaint.
See 6 U.S.C. 1142(c)(1); 49 U.S.C.
20109(d)(2)(A); 49 U.S.C. 42121(b)(1).
Accordingly, the Department has
revised section 1982.104(a) to reflect
this statutory language and to be
consistent with AIR 21’s regulation at
section 1979.104(a).
Lastly, OSHA rejects ASLRRA’s
comment that 1982.104(e) should be
revised to state that the timing of an
adverse action alone is insufficient to
establish a causal connection between
the complainant’s protected activity and
the adverse action. At the gatekeeping
phase, where OSHA is simply
determining whether to conduct an
investigation, the timing of the adverse

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action may be sufficient to give rise to
an inference that the protected activity
was a contributing factor in the adverse
action so that the investigation may
proceed. See Taylor v. Wells Fargo
Bank, ARB No. 05–062, 2007 WL
7143176, at *3 n.12 (ARB June 28, 2007)
(temporal proximity may establish the
causal connection component of the
prima facie case under Sarbanes-Oxley);
see also Bullington v. United Air Lines,
Inc., 186 F.3d 1301, 1320 (10th Cir.
1999) (the causal connection necessary
to show a prima facie case under Title
VII or the ADEA may be inferred by
protected conduct closely followed by
adverse action); Davis v. Union Pacific
R.R. Co., Civ. A. No. 5:12–CV–2738,
2014 WL 3499228, at *9 (W.D. La. July
14, 2014) (finding temporal proximity
between protected injury report and
adverse action sufficient to create a
genuine issue of material fact
precluding summary judgment for
railroad). This approach is consistent
with the approach that OSHA has taken
under other whistleblower statutes
employing the same burdens of proof as
FRSA and NTSSA. See, e.g., 29 CFR
1979.104(e) (AIR 21); 29 CFR
1980.104(e) (Sarbanes-Oxley);
Procedures for the Handling of
Discrimination Complaints under
Federal Employee Protection Statutes,
63 FR 6614–01, 6618 (Feb. 9, 1998)
(explaining that under ERA temporal
proximity is normally sufficient to
establish causation at the gatekeeping
phase). OSHA believes that it would be
overly restrictive to require a
complainant to provide evidence of
retaliation (as distinguished from a
showing) when the only purpose is to
trigger an investigation to determine
whether there is reasonable cause to
believe that retaliation has occurred.
Complainants in many cases do not
have the knowledge or the resources to
submit ‘‘evidence’’ of retaliation other
than temporal proximity at the outset of
OSHA’s investigation.
In addition to the revisions noted
above, minor changes were made as
needed in this section to clarify the
provision without changing its meaning.
Section 1982.105 Issuance of Findings
and Preliminary Orders
This section provides that, on the
basis of information obtained in the
investigation, the Assistant Secretary
will issue, within 60 days of the filing
of a complaint, written findings
regarding whether or not there is
reasonable cause to believe that the
complaint has merit. If the findings are
that there is reasonable cause to believe
that the complaint has merit, the
Assistant Secretary will order

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appropriate relief, including
preliminary reinstatement and back pay
with interest and compensatory
damages. To reflect the statutory
language of FRSA and NTSSA and the
agency’s current practice, OSHA
modified paragraph (a)(1) in the final
rule to mirror the remedies listed in the
statutes, including adding ‘‘interest’’ to
the description of compensation that
can be included in the preliminary
order.
In ordering interest on back pay under
FRSA and NTSSA, the Secretary has
determined that interest due will be
computed by compounding daily the
Internal Revenue Service (IRS) interest
rate for the underpayment of taxes
which, under 26 U.S.C. 6621, is
generally the Federal short-term rate
plus three percentage points.
In the Secretary’s view, 26 U.S.C.
6621 provides the appropriate rate of
interest to ensure that victims of
unlawful retaliation under FRSA and
NTSSA are made whole. The Secretary
has long applied the interest rate in 26
U.S.C. 6621 to calculate interest on back
pay in whistleblower cases. Doyle v.
Hydro Nuclear Servs., ARB Nos. 99–041,
99–042, 00–012, 2000 WL 694384, at
* 14–15, 17 (ARB May 17, 2000); see
also Cefalu v. Roadway Express, Inc.,
ARB No. 09–070, 2011 WL 1247212, at
* 2 (ARB Mar. 17, 2011); Pollock v.
Cont'l Express, ARB Nos. 07–073, 08–
051, 2010 WL 1776974, at * 8 (ARB Apr.
10, 2010); Murray v. Air Ride, Inc., ARB
No. 00–045, slip op. at 9 (ARB Dec. 29,
2000). Section 6621 provides the
appropriate measure of compensation
under NTSSA, FRSA and other DOLadministered whistleblower statutes
because it ensures the complainant will
be placed in the same position he or she
would have been in if no unlawful
retaliation occurred. See Ass't Sec'y v.
Double R. Trucking, Inc., ARB Case No.
99–061, slip op. at 5 (ARB July 16, 1999)
(interest awards pursuant to § 6621 are
mandatory elements of complainant’s
make-whole remedy). Section 6621
provides a reasonably accurate
prediction of market outcomes (which
represents the loss of investment
opportunity by the complainant and the
employer’s benefit from use of the
withheld money) and thus provides the
complainant with appropriate makewhole relief. See EEOC v. Erie Cnty.,
751 F.2d 79, 82 (2d Cir. 1984) (‘‘[s]ince
the goal of a suit under the [Fair Labor
Standards Act] and the Equal Pay Act is
to make whole the victims of the
unlawful underpayment of wages, and
since [§ 6621] has been adopted as a
good indicator of the value of the use of
money, it was well within’’ the district
court’s discretion to calculate

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prejudgment interest under § 6621);
New Horizons for the Retarded, 283
N.L.R.B. No. 181, 1987 WL 89652, at * 2
(May 28, 1987) (observing that ‘‘the
short-term Federal rate [used by § 6621]
is based on average market yields on
marketable Federal obligations and is
influenced by private economic market
forces’’).
The Secretary also believes that daily
compounding of interest achieves the
make-whole purpose of a back pay
award. Daily compounding of interest
has become the norm in private lending
and was found to be the most
appropriate method of calculating
interest on back pay by the National
Labor Relations Board. See Jackson
Hosp. Corp. v. United Steel, Paper &
Forestry, Rubber, Mfg., Energy, Allied
Indus. & Serv. Workers Int'l Union, 356
N.L.R.B. No. 8, 2010 WL 4318371, at
* 3–4 (Oct. 22, 2010). Additionally,
interest on tax underpayments under
the Internal Revenue Code, 26 U.S.C.
6621, is compounded daily pursuant to
26 U.S.C. 6622(a). Thus, paragraph (a)(1)
of this section now states that interest
on back pay will be calculated using the
interest rate applicable to underpayment
of taxes under 26 U.S.C. 6621 and will
be compounded daily.
In ordering back pay, OSHA also will
require the respondent to submit the
appropriate documentation to the
Railroad Retirement Board or the Social
Security Administration, as appropriate,
allocating the back pay to the
appropriate months (for employees who
may be entitled to benefits under the
Railroad Retirement Act) or calendar
quarters (for employees who may be
entitled to Social Security benefits).
Requiring the reporting of back pay
allocation to the Railroad Retirement
Board or Social Security Administration
serves the remedial purposes of FRSA
and NTSSA by ensuring that employees
subjected to retaliation are truly made
whole. See Don Chavas, LLC d/b/a
Tortillas Don Chavas, 361 NLRB No. 10,
2014 WL 3897178, at * 4–5 (NLRB Aug.
8, 2014). As the NLRB has explained,
when back pay is not properly allocated
to the years covered by the award, a
complainant may be disadvantaged in
several ways. First, improper allocation
may interfere with a complainant’s
ability to qualify for any old-age Social
Security benefit. Id. at * 4 (‘‘Unless a
[complainant’s] multiyear backpay
award is allocated to the appropriate
years, she will not receive appropriate
credit for the entire period covered by
the award, and could therefore fail to
qualify for any old-age social security
benefit.’’). Second, improper allocation
may reduce the complainant’s eventual
monthly benefit. Id. As the NLRB

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explained, ‘‘if a backpay award covering
a multi-year period is posted as income
for 1 year, it may result in SSA treating
the [complainant] as having received
wages in that year in excess of the
annual contribution and benefit base.’’
Id. Wages above this base are not subject
to Social Security taxes, which reduces
the amount paid on the employee’s
behalf. ‘‘As a result, the [complainant’s]
eventual monthly benefit will be
reduced because participants receive a
greater benefit when they have paid
more into the system.’’ Id. Finally,
‘‘social security benefits are calculated
using a progressive formula: Although a
participant receives more in benefits
when she pays more into the system, the
rate of return diminishes at higher
annual incomes.’’ Therefore, a
complainant may ‘‘receive a smaller
monthly benefit when a multiyear
award is posted to 1 year rather than
being allocated to the appropriate
periods, even if social security taxes
were paid on the entire amount.’’ Id.
The purpose of a make-whole remedy
such as back pay is to put the
complainant in the same position the
complainant would have been absent
the prohibited retaliation. That purpose
is not achieved when the complainant
suffers the disadvantages described
above. Therefore, OSHA has revised
section (a)(1) of this paragraph to state
that a preliminary order containing an
award of back pay will also require the
respondent to submit documentation to
the Railroad Retirement Board or Social
Security Administration to properly
allocate back pay to the appropriate
months or calendar quarters.
The findings and, where appropriate,
preliminary order, advise the parties of
their right to file objections to the
findings of the Assistant Secretary and
to request a hearing. The findings and,
where appropriate, preliminary order,
also advise the respondent of the right
under NTSSA to request an award of
attorney fees not exceeding $1,000 from
the ALJ, regardless of whether the
respondent has filed objections, if the
respondent alleges that the complaint
was frivolous or brought in bad faith. If
no objections are filed within 30 days of
receipt of the findings, the findings and
any preliminary order of the Assistant
Secretary become the final findings and
order of the Secretary. If objections are
timely filed, any order of preliminary
reinstatement will take effect, but the
remaining provisions of the order will
not take effect until administrative
proceedings are completed.
In appropriate circumstances, in lieu
of preliminary reinstatement, OSHA
may order that the complainant receive
the same pay and benefits that he

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received prior to his termination, but
not actually return to work. Such
‘‘economic reinstatement’’ frequently is
employed in cases arising under Section
105(c) of the Federal Mine Safety and
Health Act of 1977, which protects
miners from retaliation (30 U.S.C.
815(c)). See, e.g., Sec'y of Labor on
behalf of York v. BR&D Enters., Inc., 23
FMSHRC 697, 2001 WL 1806020, at * 1
(ALJ June 26, 2001).
AAR and ASLRRA commented on the
language in the preamble regarding
economic reinstatement and urged
OSHA to delete any reference to
economic reinstatement. ASLRRA
argued that OSHA does not have the
authority under FRSA to require this
remedy because it is not discussed in
the statute and reliance on the Federal
Mine Safety and Health Act is
insufficient. AAR similarly argued that
section 20109(d) of FRSA specifies the
exclusive remedies available, and
economic reinstatement is not listed as
one of those remedies. In addition, both
ASLRRA and AAR maintained that it is
unfair to order economic reinstatement
given the fact that it may take many
months before the preliminary order
requiring economic reinstatement is
fully adjudicated and reviewed and that
the employer cannot recover the costs of
economic reinstatement if the employer
ultimately prevails. AAR asserted that
the only instance in which economic
reinstatement is appropriate is when the
railroad carrier voluntarily agrees to
such a remedy.
OSHA declines to revise the rule in
response to these comments. OSHA
believes that it has the authority to order
economic reinstatement. Economic
reinstatement is akin to an order of front
pay. Front pay has been recognized as
a possible remedy under whistleblower
statutes in limited circumstances where
actual reinstatement would not be
possible. See, e.g., Moder v. Vill. of
Jackson, ARB Nos. 01–095, 02–039,
2003 WL 21499864, at * 10 (ARB June
30, 2003) (under environmental
whistleblower statutes, ‘‘front pay may
be an appropriate substitute when the
parties prove the impossibility of a
productive and amicable working
relationship, or the company no longer
has a position for which the
complainant is qualified’’); Hobby v.
Georgia Power Co., ARB No. 98–166,
2001 WL 168898, at * 6–10 (ARB Feb. 9,
2001), aff'd sub nom. Hobby v. U.S.
Dep't of Labor, No. 01–10916 (11th Cir.
Sept. 30, 2002) (unpublished) (noting
circumstances where front pay may be
available in lieu of reinstatement but
ordering reinstatement); Michaud v. BSP
Transp., Inc., ARB Nos. 97–113, 1997
WL 626849, at * 4 (ARB Oct. 9, 1997)

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(under STAA, front pay appropriate
where employee was unable to work
due to major depression resulting from
the retaliation); Doyle v. Hydro Nuclear
Servs., ARB Nos. 99–041, 99–042, 00–
012, 1996 WL 518592, at * 6 (ARB Sept.
6, 1996) (under ERA, front pay
appropriate where employer had
eliminated the employee’s position);
Brown v. Lockheed Martin Corp., ALJ
No. 2008–SOX–49, 2010 WL 2054426, at
* 55–56 (ALJ Jan. 15, 2010) (noting that
while reinstatement is the ‘‘presumptive
remedy’’ under Sarbanes-Oxley, front
pay may be awarded as a substitute
when reinstatement is inappropriate).
However, OSHA emphasizes that
Congress intended that employees be
preliminarily reinstated to their
positions if OSHA finds reasonable
cause to believe that they were
discharged in violation of NTSSA or
FRSA. When a violation is found, the
norm is for OSHA to order immediate
preliminary reinstatement. Neither an
employer nor an employee has a
statutory right to choose economic
reinstatement. Rather, economic
reinstatement is designed to
accommodate situations in which
evidence establishes to OSHA’s
satisfaction that reinstatement is
inadvisable for some reason,
notwithstanding the employer’s
retaliatory discharge of the employee. In
such situations, actual reinstatement
might be delayed until after the
administrative adjudication is
completed as long as the employee
continues to receive his or her pay and
benefits and is not otherwise
disadvantaged by a delay in
reinstatement. There is no statutory
basis for allowing the employer to
recover the costs of economically
reinstating an employee should the
employer ultimately prevail in the
whistleblower adjudication.
Two commenters addressed OSHA’s
authority to order reinstatement under
FRSA in situations in which the railroad
carrier asserts that such reinstatement
will endanger the public, its property,
and/or other employees. ASLRRA
suggested that OSHA include an
exception to the requirement that an
employee be preliminarily reinstated
immediately when a party has filed
objections to OSHA’s findings and/or
order for situations in which the
railroad carrier establishes that the
employee poses a direct threat to the
health or safety of himself or others. As
support for this suggestion, ASLRRA
pointed to a similar provision in the
regulations under AIR 21 in which a
preliminary reinstatement order is not
appropriate when the employer
establishes that the employee is a

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security risk, 29 CFR 1979.105(a)(1).
Rail Labor suggested that OSHA
respond to any arguments by railroad
carriers that preliminary reinstatement
is inappropriate when such
reinstatement will endanger the public,
the railroad carrier’s property, or other
employees by supplementing the
regulatory language to state that the
Assistant Secretary has sufficient
discretion pursuant to section 1982.105
to balance the competing interests of the
public, all employees, and the railroad
carrier, and that the full range of
remedies is available.
OSHA does not believe that it is
necessary to include such an exception
in the regulation as ASLRRA suggested
or to supplement the language in the
regulation as Rail Labor suggested
because such cases may be adequately
determined based on applicable case
law. Also, the ALJ and the ARB each
have sufficient discretion to stay a
reinstatement order for exceptional
circumstances, which may include the
types of situations discussed by
ASLRRA. See 1982.106(b); 1982.110(b).
AAR commented on the reference to
‘‘abatement’’ in section 1982.105(a)(1),
and suggested that abatement under
FRSA should be limited to relief for the
individual employee. AAR asserted that,
while section 20109 incorporates AIR
21’s rules and procedures and AIR 21
provides for abatement as a remedy, 49
U.S.C. 42121(b)(3)(B)(i), section 20109
of FRSA contains its own remedy
provision, 49 U.S.C. 20109(e), and
nothing in section 20109(e) provides for
abatement orders directed at an
employer’s practices and procedures. As
an initial matter, OSHA notes that this
comment addresses FRSA only. NTSSA,
like AIR 21, explicitly permits the
Secretary to order the respondent to
‘‘take affirmative action to abate the
violation.’’ 6 U.S.C. 1142(c)(3)(B)(i).
As AAR notes, FRSA contains its own
remedies provision, apart from AIR 21’s
remedies provision. FRSA prescribes
remedies to make the employee whole,
49 U.S.C. 20109(e), notwithstanding
FRSA’s incorporation of the ‘‘rules and
procedures’’ of AIR 21, 49 U.S.C.
20109(d)(2)(A). OSHA believes that
injunctive relief to abate a violation of
a specific employee’s rights can be an
important element of making the
employee whole. Such relief could
include, for example, an order requiring
a railroad carrier to expunge certain
records from an employee’s personnel
file or an order requiring that a
particular company policy not be
applied to an employee where
application of the policy would penalize
the employee for having engaged in
protected activity. The posting of a

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notice to employees regarding the
resolution of a whistleblower complaint
can be important to remedying the
reputational harm an employee has
suffered as a result of retaliation. In
some instances, an order to provide
training to managers or notice to
employees regarding the rights
protected by the statute at issue can
assist in making the employee whole by
ensuring that the circumstances that led
to retaliation do not persist, thus
remedying the employee’s fear of future
retaliation for having engaged in the
protected activity that gave rise to
employee’s whistleblower complaint.
Therefore, while OSHA is cognizant of
the textual differences between NTSSA
and FRSA, it has made no change in
response to this comment to the text of
1982.105, which permits an order of
abatement where appropriate.
In addition to the revisions noted
above, which clarify the provision of
interest on back pay awards and the
allocation of back pay to the appropriate
calendar quarters or months, minor
changes were made as needed to clarify
the provision without changing its
meaning.
Subpart B—Litigation
Section 1982.106 Objections to the
Findings and the Preliminary Order and
Requests for a Hearing
To be effective, objections to the
findings of the Assistant Secretary must
be in writing and must be filed with the
Chief Administrative Law Judge, U.S.
Department of Labor, Washington, DC
20001 within 30 days of receipt of the
findings. The date of the postmark,
facsimile transmittal, or electronic
communication transmittal is
considered the date of the filing; if the
objection is filed in person, by handdelivery or other means, the objection is
filed upon receipt. The filing of
objections is considered a request for a
hearing before an ALJ. Although the
parties are directed to serve a copy of
their objections on the other parties of
record, as well as the OSHA official who
issued the findings and order, the
Assistant Secretary, and the U.S.
Department of Labor’s Associate
Solicitor for Fair Labor Standards, the
failure to serve copies of the objections
on the other parties of record does not
affect the ALJ’s jurisdiction to hear and
decide the merits of the case. See
Shirani v. Calvert Cliffs Nuclear Power
Plant, Inc., ARB No. 04–101, 2005 WL
2865915, at * 7 (ARB Oct. 31, 2005).
The timely filing of objections stays
all provisions of the preliminary order,
except for the portion requiring
reinstatement. A respondent may file a

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motion to stay OSHA’s preliminary
order of reinstatement with the Office of
Administrative Law Judges. However,
such a motion will be granted only
based on exceptional circumstances.
Language was added to paragraph (b) of
this section to make this point clear. A
stay of the Assistant Secretary’s
preliminary order of reinstatement
under FRSA or NTSSA would be
appropriate only where the respondent
can establish the necessary criteria for
equitable injunctive relief, i.e.,
irreparable injury, likelihood of success
on the merits, a balancing of possible
harms to the parties, and the public
interest favors a stay. See Bailey v.
Consol. Rail Corp., ARB Nos. 13–030
13–033, 2013 WL 1385563, at * 2 (ARB
Mar. 27, 2013) (discussing the factors for
obtaining a stay of reinstatement under
FRSA). If no timely objection to OSHA’s
findings and/or preliminary order is
filed, then OSHA’s findings and/or
preliminary order become the final
decision of the Secretary not subject to
judicial review.
No comments were received on this
section. The term ‘‘electronic
communication transmittal’’ was
substituted for ‘‘email communication’’
and other minor changes were made as
needed to clarify the provision without
changing its meaning.
Section 1982.107 Hearings
This section adopts the rules of
practice and procedure for
administrative hearings before the
Office of Administrative Law Judges at
29 CFR part 18 subpart A. It specifically
provides for hearings to be consolidated
where both the complainant and
respondent object to the findings and/or
order of the Assistant Secretary. This
section further provides that the hearing
is to commence expeditiously, except
upon a showing of good cause or unless
otherwise agreed to by the parties.
Hearings will be conducted de novo, on
the record.
In a revision from the interim final
rule, paragraph (b) now notes the broad
authority of ALJs to limit discovery in
order to expedite the hearing. This
change was made for consistency with
OSHA’s rules under other
whistleblower statutes, which similarly
note that the ALJ has broad authority to
limit discovery. See, e.g., 29 CFR
1979.107 (AIR 21); 29 CFR 1980.107
(Sarbanes-Oxley). As with other
whistleblower statutes administered by
OSHA, FRSA, and NTSSA dictate that
hearings ‘‘shall be conducted
expeditiously’’ and allow complainants
to seek de novo review of the complaint
in federal court if the Secretary has not
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after the filing of the complaint. See 6
U.S.C. 1142(c)(7) and 49 U.S.C.
20109(d)(3). The ALJ’s broad discretion
to limit discovery, for example by
limiting the number of interrogatories,
requests for production of documents,
or depositions allowed, furthers
Congress’s intent to provide for
expeditious hearings under FRSA and
NTSSA.
Finally, this section has been revised
to add paragraph (d), which specifies
that the formal rules of evidence will
not apply to proceedings before an ALJ
under section 1982.107, but rules or
principles designed to assure the
production of the most probative
evidence will be applied. The
Department has taken the same
approach under the other whistleblower
statutes administered by OSHA. See,
e.g., 29 CFR 1979.107 (AIR 21); 29 CFR
1980.107 (Sarbanes-Oxley). This
approach is also consistent with the
Administrative Procedure Act, which
provides at 5 U.S.C. 556(d): ‘‘Any oral
or documentary evidence may be
received, but the agency as a matter of
policy shall provide for the exclusion of
irrelevant, immaterial, or unduly
repetitious evidence.’’ See also Federal
Trade Comm'n v. Cement Inst., 333 U.S.
683, 805–06 (1948) (administrative
agencies not restricted by rigid rules of
evidence). The Secretary believes that it
is inappropriate to apply the rules of
evidence at 29 CFR part 18 subpart B
because whistleblowers often appear
pro se and may be disadvantaged by
strict adherence to formal rules of
evidence. Furthermore, hearsay
evidence is often appropriate in
whistleblower cases, as there often are
no relevant documents or witnesses
other than hearsay to prove retaliation
ALJs have the responsibility to
determine the appropriate weight to be
given such evidence. For these reasons,
the interests of determining all of the
relevant facts are best served by not
requiring strict evidentiary rules.
No comments were received on this
section, but, as explained above, this
section was revised to specify that the
formal rules of evidence will not apply
to proceedings before an ALJ under this
section.
Section 1982.108 Role of Federal
Agencies
The Assistant Secretary, at his or her
discretion, may participate as a party or
amicus curiae at any time in the
administrative proceedings under
NTSSA or FRSA. 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

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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
OSHA anticipates that ordinarily the
Assistant Secretary will not participate,
the Assistant Secretary may choose to
do so in appropriate cases, such as cases
involving important or novel legal
issues, large numbers of employees,
alleged violations which appear
egregious, or where the interests of
justice might require participation by
the Assistant Secretary. The Department
of Transportation or the Department of
Homeland Security, at each agency’s
discretion, also may participate as
amicus curiae at any time in the
proceedings. No comments were
received on this section; however, it has
been revised to specify that parties need
only send documents to OSHA and the
Department of Labor’s Associate
Solicitor for Fair Labor Standards when
OSHA requests that documents be sent,
OSHA is participating in the
proceeding, or service on OSHA is
otherwise required by these rules. Other
minor changes were made as needed to
clarify this provision without changing
its meaning.
Section 1982.109 Decision and Orders
of the Administrative Law Judge
This section sets forth the
requirements for the content of the
decision and order of the ALJ, and
includes the standard for finding a
violation under NTSSA or FRSA.
Paragraphs (a) and (b) set forth the
burdens of proof that apply to claims
under NTSSA and FRSA. Specifically,
the complainant must demonstrate (i.e.
prove by a preponderance of the
evidence) that the protected activity was
a ‘‘contributing factor’’ in the adverse
action. See, e.g., Allen v. Admin. Review
Bd., 514 F.3d 468, 475 n.1 (5th Cir.
2008) (‘‘The term ‘demonstrates’ [under
identical burden-shifting scheme in the
Sarbanes-Oxley whistleblower
provision] means to prove by a
preponderance of the evidence.’’). If the
employee demonstrates that the alleged
protected activity was a contributing
factor in the adverse action, the
employer, to escape liability, must
demonstrate by ‘‘clear and convincing
evidence’’ that it would have taken the
same action in the absence of the
protected activity. See 6 U.S.C.
1142(c)(2)(B)(iv); 49 U.S.C.
42121(b)(2)(B)(iv). The section further
provides that the Assistant Secretary’s
determination to dismiss the complaint
without an investigation or without a

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complete investigation pursuant to
section 1982.104 is not subject to
review. Thus, paragraph (c) of section
1982.109 clarifies that the Assistant
Secretary’s determinations on whether
to proceed with an investigation under
NTSSA or FRSA and whether to make
particular investigative findings under
either of the statutes subject to this part
are discretionary decisions not subject
to review by the ALJ. The ALJ hears
cases de novo and, therefore, as a
general matter, may not remand cases to
the Assistant Secretary to conduct an
investigation or make further factual
findings. A full discussion of the
burdens of proof used by the
Department to resolve whistleblower
cases under this part is set forth above
in the discussion of section 1982.104.
Paragraph (d) notes the remedies that
the ALJ may order under NTSSA or
FRSA and, as discussed under section
1982.105 above, provides that interest
on back pay will be calculated using the
interest rate applicable to underpayment
of taxes under 26 U.S.C. 6621 and will
be compounded daily. Paragraph (d) has
also been revised to provide that the
respondent will be required to submit
appropriate documentation to the Social
Security Administration or the Railroad
Retirement Board, as appropriate,
allocating any back pay award to the
appropriate calendar quarters or
months.
Paragraph (e) requires that the ALJ’s
decision be served on all parties to the
proceeding, the Assistant Secretary, and
the U.S. Department of Labor’s
Associate Solicitor for Fair Labor
Standards. Paragraph (e) also provides
that any ALJ decision requiring
reinstatement or lifting an order of
reinstatement by the Assistant Secretary
will be effective immediately upon
receipt of the decision by the
respondent. All other portions of the
ALJ’s order will be effective 14 days
after the date of the decision unless a
timely petition for review has been filed
with the Administrative Review Board.
OSHA has revised the period for filing
a timely petition for review with the
ARB to 14 days rather than 10 business
days. With this change, the final rule
expresses the time for a petition for
review in a way that is consistent with
the other deadlines for filings before the
ALJs and the ARB in the rule, which are
also expressed in days rather than
business days. This change also makes
the final rule congruent with the 2009
amendments to Rule 6(a) of the Federal
Rules of Civil Procedure and Rule 26(a)
of the Federal Rules of Appellate
Procedure, which govern computation
of time before those tribunals and
express filing deadlines as days rather

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than business days. Accordingly, the
ALJ’s order will become the final order
of the Secretary 14 days after the date
of the decision, rather than after 10
business days, unless a timely petition
for review is filed. As a practical matter,
this revision does not substantively alter
the window of time for filing a petition
for review before the ALJ’s order
becomes final.
AAR urged OSHA to include in this
section a provision permitting an ALJ in
a FRSA case to award the employer up
to $1,000 in reasonable attorney fees if
the ALJ determines that the complaint
was frivolous or brought in bad faith.
AAR pointed out that FRSA requires
that AIR 21 rules and procedures be
used in FRSA actions, and that the AIR
21 statute and regulations provide for
attorney fees in such circumstances. See
49 U.S.C. 20109(d)(2)(A); 49 U.S.C.
42121(b)(3)(C); 29 CFR 1979.109(b).
OSHA does not believe that such a
provision is warranted under FRSA.
FRSA incorporates only the rules and
procedures of AIR 21. It does not
incorporate the attorney-fee provision
from AIR 21. See Vason v. Port Auth.
Trans Hudson, ALJ No. 2010–FRS–
00038, at 3–4 (ALJ Dec. 20, 2010)
(concluding that AIR 21’s attorney fee
provision for cases that are frivolous or
brought in bad faith is not a ‘‘rule’’ or
‘‘procedure’’ and therefore FRSA’s
incorporation of AIR 21’s rules and
procedures does not incorporate AIR
21’s attorney fee provision).
Modifications were made to this
section to match the language regarding
remedies in 1982.105(a)(1). The
statement that the decision of the ALJ
will become the final order of the
Secretary unless a petition for review is
timely filed with the ARB and the ARB
accepts the petition for review was
deleted from section 1982.110(a) and
moved to paragraph (e) of this section.
Additional minor changes were made to
clarify this provision without changing
its meaning.

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Section 1982.110 Decision and Orders
of the Administrative Review Board
Upon the issuance of the ALJ’s
decision, the parties have 14 days
within which to petition the ARB for
review of that decision. If no timely
petition for review is filed with the
ARB, the decision of the ALJ becomes
the final decision of the Secretary and
is not subject to judicial review. The
date of the postmark, facsimile
transmittal, or electronic
communication transmittal is
considered to be the date of filing of the
petition; if the petition is filed in
person, by hand-delivery or other

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means, the petition is considered filed
upon receipt.
The appeal provisions in this part
provide that an appeal to the ARB is not
a matter of right but is accepted at the
discretion of the ARB. The parties
should identify in their petitions for
review the legal conclusions or orders to
which they object, or the objections may
be deemed waived. The ARB has 30
days to decide whether to grant the
petition for review. If the ARB does not
grant the petition, the decision of the
ALJ becomes the final decision of the
Secretary. If a timely petition for review
is filed with the ARB, any relief ordered
by the ALJ, except for that portion
ordering reinstatement, is inoperative
while the matter is pending before the
ARB. When the ARB accepts a petition
for review, the ALJ’s factual
determinations will be reviewed under
the substantial evidence standard. In
order to be consistent with the practices
and procedures followed in OSHA’s
other whistleblower programs, and to
provide further clarification of the
regulatory text, OSHA has modified the
language of section 1982.110(c) to
clarify when the ALJ proceedings
conclude and when the final decision of
the ARB will be issued.
This section also provides that, based
on exceptional circumstances, the ARB
may grant a motion to stay an ALJ’s
preliminary order of reinstatement
under NTSSA or FRSA, which
otherwise would be effective, while
review is conducted by the ARB. A stay
of an ALJ’s preliminary order of
reinstatement under NTSSA or FRSA
would be appropriate only where the
respondent can establish the necessary
criteria for equitable injunctive relief,
i.e., irreparable injury, likelihood of
success on the merits, a balancing of
possible harms to the parties, and the
public interest favors a stay. See Bailey,
2013 WL 1385563, at * 2 (discussing the
factors for obtaining a stay of
reinstatement under FRSA).
If the ARB concludes that the
respondent has violated the law, it will
order the remedies listed in paragraph
(d). Interest on back pay will be
calculated using the interest rate
applicable to underpayment of taxes
under 26 U.S.C. 6621 and will be
compounded daily. If the ARB
determines that the respondent has not
violated the law, an order will be issued
denying the complaint. In addition,
when back pay is ordered, the
respondent will be required to submit
appropriate documentation to the Social
Security Administration or the Railroad
Retirement Board, as appropriate,
allocating any back pay award to the
appropriate months or calendar

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quarters. If, upon the request of the
respondent, the ARB determines that a
complaint filed under NTSSA was
frivolous or was brought in bad faith,
the ARB may award to the respondent
reasonable attorney fees, not exceeding
$1,000.
With regard to section 1982.110(a),
NWC urged deletion of the provision in
the interim final rule that ‘‘[a]ny
exception not specifically urged will
ordinarily be deemed waived by the
parties.’’ NWC commented that parties
should be allowed to add additional
grounds for review in subsequent briefs
and that allowing parties to do so would
further the goal of deciding cases on the
merits. In response, OSHA notes that its
inclusion of this provision is not
intended to limit the circumstances in
which parties can add additional
grounds for review as a case progresses
before the ARB; rather, the rules include
this provision to put the public on
notice of the possible consequences of
failing to specify the basis of an appeal
to the ARB. OSHA recognizes that while
the ARB has held in some instances that
an exception not specifically urged may
be deemed waived, the ARB also has
found that the rules provide for
exceptions to this general rule. See, e.g.,
Furland v. American Airlines, Inc., ARB
Nos. 09–102, 10–130, 2011 WL 3413364,
at * 10, n.5 (ARB July 27, 2011) (where
complainant consistently made an
argument throughout the administrative
proceedings the argument was not
waived simply because it appeared in
complainant’s reply brief to the ARB
rather than in the petition for review);
Avlon v. American Express Co., ARB
No. 09–089, 2011 WL 4915756, at * 4,
* 5, n.1 (ARB Sept. 14, 2011)
(consideration of an argument not
specifically raised in complainant’s
petition for review is within the
authority of the ARB, and parallel
provisions in the Sarbanes-Oxley Act
whistleblower regulations do not
mandate the ARB limit its review to ALJ
conclusions assigned as error in the
petition for review). However,
recognizing that the interim final rule
may have suggested too stringent a
standard, OSHA has replaced the phrase
‘‘ordinarily will’’ with ‘‘may.’’ NWC also
suggested that the review period be
extended from ten to thirty days to make
this section parallel to the provision in
1982.105(c), which allows for thirty
days within which to file an objection.
OSHA declines to extend the review
period to 30 days because a shorter
review period is consistent with the
practices and procedures followed in
OSHA’s other whistleblower programs.
Furthermore, parties may file a motion

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for extension of time to appeal an ALJ’s
decision, and the ARB has discretion to
grant such extensions. However, as
explained above, OSHA has revised the
period to petition for review of an ALJ
decision to 14 days rather than 10
business days. As a practical matter, this
revision does not substantively alter the
window of time for filing a petition for
review before the ALJ’s order becomes
final.
Similarly, section 1982.110(c), which
provides that the ARB will issue a final
decision within 120 days of the
conclusion of the ALJ hearing, was
similarly revised to state that the
conclusion of the ALJ hearing will be
deemed to be 14 days after the date of
the decision of the ALJ, rather than after
10 business days, unless a motion for
reconsideration has been filed with the
ALJ in the interim. Like the revision to
section 1982.110(a), this revision does
not substantively alter the length of time
before the ALJ hearing will be deemed
to have been concluded.
In addition to the changes noted
above, OSHA moved the statement in
paragraph (a) that if no timely petition
for review is filed with the ARB, the
decision of the ALJ becomes the final
decision of the Secretary and is not
subject to judicial review to section
1982.109(e) for clarity. Modifications
were made paragraph (d) of this section
to match the language regarding
remedies in section 1982.105(a)(1).
Lastly, OSHA has revised this section
slightly to clarify that interest on back
pay awards will be compounded daily
and to make several minor changes to
clarify the provision and more closely
mirror the language used in the statutes.
Subpart C—Miscellaneous Provisions

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Section 1982.111 Withdrawal of
Complaints, Findings, Objections, and
Petitions for Review; Settlement
This section provides for the
procedures and time periods for
withdrawal of complaints, the
withdrawal of findings and/or
preliminary orders by the Assistant
Secretary, and the withdrawal of
objections to findings and/or orders. It
also provides for approval of settlements
at the investigative and adjudicative
stages of the case.
AAR and Rail Labor both submitted
comments relating to settlements. AAR
stated that OSHA should not be overly
involved in settlements as such
involvement could frustrate the parties’
ability to reach settlements. In addition,
AAR noted that an employee often files
a collective bargaining or statutory
claim, such as a FELA claim,
simultaneously with a FRSA claim.

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According to AAR, a settlement may
resolve all of the employee’s claims.
OSHA has jurisdiction only over the
FRSA claim and therefore cannot review
the aspects of the settlement that do not
involve the FRSA claim. Rail Labor
similarly commented that it is possible
that an employee may pursue multiple
claims simultaneously. Rail Labor
suggested modifying the language in
section 1982.111(d) to clarify how a
settlement will affect other pending
cases and other parties involved in a
particular case.
While OSHA recognizes that, in
whistleblower cases generally, an
employee may have more than one
cause of action against the employer,
OSHA does not believe that any change
in the procedures for handling
whistleblower complaints is necessary
to accommodate this possibility. NTSSA
and FRSA both provide that, at any time
before the issuance of a final order of
the Secretary, a proceeding before the
agency may be terminated on the basis
of a settlement ‘‘entered into’’ by the
Secretary, the complainant, and the
respondent. 6 U.S.C. 1142(c)(3)(A); 49
U.S.C. 20109(d)(2)(A); 49 U.S.C.
42121(b)(3)(A). The procedures for
submission of settlements to the agency
under section 1982.111 implement these
statutory requirements to ensure that
settlements of whistleblower claims
under NTSSA and FRSA are fair,
adequate, and reasonable, in the public
interest, and that the employee’s
consent was knowing and voluntary.
The final rule adopts a revision to
section 1982.111(a) that permits
complainants to withdraw their
complaints orally. In such
circumstances, OSHA will, in writing,
confirm a complainant’s desire to
withdraw. This revision will reduce
burdens on complainants who no longer
want to pursue their claims. Other
minor changes were made as needed to
clarify the provision without changing
its meaning.
Section 1982.112 Judicial Review
This section describes the statutory
provisions for judicial review of
decisions of the Secretary and requires,
in cases where judicial review is sought,
the ALJ or the ARB to submit the record
of proceedings to the appropriate court
pursuant to the rules of such court. This
section also states that a final order is
not subject to judicial review in any
criminal or other civil proceeding.
NTSSA explicitly provides that ‘‘[a]n
order of the Secretary of Labor with
respect to which review could have
been obtained [in the court of appeals]
shall not be subject to judicial review in
any criminal or other civil proceeding.’’

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6 U.S.C. 1142(c)(4)(B). In addition, the
Secretary interprets FRSA as also
prohibiting collateral attack on a final
order of the Secretary. This
interpretation is consistent with wellestablished case law that, where ‘‘a
direct-review statute specifically gives
the court of appeals subject-matter
jurisdiction to directly review agency
action[,]’’ district courts do not have
federal question jurisdiction. Watts v.
Securities and Exchange Comm'n, 482
F.3d 501, 505 (D.C. Cir. 2007); see
Thunder Basin Coal Co. v. Reich, 510
U.S. 200, 208 (1994) (district court did
not have jurisdiction over an action by
mine operators challenging an
administrative order because the statute
only expressly authorized district court
jurisdiction in actions by the Secretary
and provided for judicial review in the
court of appeals); Sturm, Ruger & Co. v.
Chao, 300 F.3d 867, 873 (D.C. Cir. 2002)
(dismissing action claiming that
Secretary lacked statutory authority to
conduct a survey because the action was
not one of those over which district
courts had jurisdiction under the statute
and statute provided for judicial review
of agency action in the court of appeals);
Griffith v. Fed. Labor Relations Auth.,
842 F.2d 487, 491 (D.C. Cir. 1988)
(district court did not have jurisdiction
because, while the statute explicitly
authorized district court review of some
types of actions, it did not authorize
review of the particular action at issue
and judicial review was available in the
court of appeals). No comments were
received on this section. However,
minor changes have been made to
clarify it.
Section 1982.113

Judicial Enforcement

This section describes the Secretary’s
authority under NTSSA and FRSA to
obtain judicial enforcement of orders
and the terms of a settlement agreement.
FRSA expressly authorizes district
courts to enforce orders, including
preliminary orders of reinstatement,
issued by the Secretary under 49 U.S.C.
20109(d)(2)(A) (adopting the rules and
procedures set forth in AIR 21, 49 U.S.C.
42121(b)). 49 U.S.C. 20109(d)(2)(A)(iii)
(‘‘If a person fails to comply with an
order issued by the Secretary of Labor
pursuant to the procedures in section
42121(b), the Secretary of Labor may
bring a civil action to enforce the order
in the district court of the United States
for the judicial district in which the
violation occurred, as set forth in
42121.’’). FRSA permits the Secretary to
bring an action to obtain such
enforcement. 49 U.S.C.
20109(d)(2)(A)(iii). However, there is no
provision in FRSA permitting the

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person on whose behalf the order was
issued to bring such an action.
NTSSA gives district courts authority
to enforce orders, including preliminary
reinstatement orders, issued by the
Secretary. Specifically, reinstatement
orders issued under subsection (c)(3) are
immediately enforceable in district
court under 6 U.S.C. 1142(c)(5) and (6).
Subsections (c)(3)(B)(ii) and (d)(2)(A)
provide that the Secretary shall order
the person who has committed a
violation to reinstate the complainant to
his or her former position. Subsection
(c)(2)(A) instructs the Secretary to
accompany any reasonable cause
finding that a violation occurred with a
preliminary order containing the relief
prescribed by subsection (c)(3)(B),
which includes reinstatement. 6 U.S.C.
1142(c)(3)(B)(ii) and (d)(2)(A).
Subsection (c)(2)(A) also declares that
the subsection (c)(3)(B)’s relief of
reinstatement contained in a
preliminary order is not stayed upon the
filing of objections. 6 U.S.C.
1142(c)(2)(A) (‘‘The filing of such
objections shall not operate to stay any
reinstatement remedy contained in the
preliminary order.’’) Thus, under the
statute, enforceable orders issued under
subsection (c)(3)(B) include preliminary
orders that contain the relief of
reinstatement prescribed by subsection
(c)(3)(B) and (d)(2)(A). This statutory
interpretation of FRSA and NTSSA is
consistent with the Secretary’s
interpretation of similar language in AIR
21 and Sarbanes-Oxley. See Brief for the
Secretary of Labor, Solis v. Union
Pacific R.R. Co., No. 4:12–cv–00304
BLW (D. Id. 2012); Brief for the
Intervenor/Plaintiff-Appellee Secretary
of Labor, Solis v. Tenn. Commerce
Bancorp, Inc., No. 10–5602 (6th Cir.
2010); Solis v. Tenn. Commerce
Bancorp, Inc., 713 F. Supp. 2d 701
(M.D. Tenn. 2010); but see Bechtel v.
Competitive Techs., Inc., 448 F.3d 469
(2d Cir. 2006); Solis v. Union Pacific
R.R. Co., No. 4:12–cv–00304 BLW, 2013
WL 440707 (D. Id. Jan. 11, 2013); Welch
v. Cardinal Bankshares Corp., 454 F.
Supp. 2d 552 (W.D. Va. 2006) (decision
vacated, appeal dismissed, No. 06–2995
(4th Cir. Feb. 20, 2008)). NTSSA also
permits the person on whose behalf the
order was issued under NTSSA to
obtain judicial enforcement of orders
and the terms of a settlement agreement.
Rail Labor commented on this
provision (it labeled its comment as
related to section 1982.112, which
addresses judicial review, but it is clear
from the substance of the comment that
it is related to section 1982.113, which
addresses judicial enforcement). Rail
Labor disagreed with the statement in
the proposal that, under FRSA, the

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person on whose behalf an order was
issued cannot bring an action to enforce
such order (only the Secretary can).
However, if OSHA’s interpretation is
correct, Rail Labor expressed concern
that the language in section 1982.113
gives unrestricted discretion to OSHA to
enforce an order. Therefore, Rail Labor
suggested that this section should be
modified to clarify that the Secretary
will, in all but the most extraordinary
circumstances, enforce an order.
OSHA declines to change this section
as suggested. FRSA provides that the
Secretary may bring an action to enforce
an order, such as a preliminary
reinstatement order. FRSA also states
that an order of preliminary
reinstatement will not be stayed during
the administrative proceedings, making
clear that preliminary reinstatement is
the presumptive remedy for retaliation.
OSHA does not believe any further
explanation of the circumstances in
which the Secretary will seek
enforcement of an order, such as a
preliminary reinstatement order, is
necessary in these rules.
OSHA has made two changes to this
section that are not intended to have
substantive effects. First, OSHA has
revised this section to more closely
parallel the differing provisions of
NTSSA and FRSA regarding the proper
venue for enforcement actions. Second,
the list of remedies that formerly
appeared in this section has been moved
to section 1982.114. This revision does
not reflect a change in the Secretary’s
views regarding the remedies that are
available under NTSSA and FRSA in an
action to enforce an order of the
Secretary. The revision has been made
to better parallel the statutory structure
of NTSSA and FRSA which both
contemplate enforcement of a
Secretary’s order and specify the
remedies that are available in an action
for de novo review of a retaliation
complaint in district court.
Section 1982.114 District Court
Jurisdiction of Retaliation Complaints
This section sets forth NTSSA’s and
FRSA’s respective provisions allowing a
complainant to bring an original de
novo action in district court, alleging
the same allegations contained in the
complaint filed with OSHA, if there has
been no final decision of the Secretary
within 210 days of the filing of the
complaint and there is no delay due to
the complainant’s bad faith.
In the Secretary’s view, the right to
seek de novo review in district court
under these provisions terminates when
the Secretary issues a final decision,
even if the date of the final decision is
more than 210 days after the filing of the

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complaint. The purpose of these ‘‘kickout’’ provisions is to aid the
complainant in receiving a prompt
decision. That goal is not implicated in
a situation where the complainant
already has received a final decision
from the Secretary. In addition, as
previously discussed with regard to
§ 1982.112 above, permitting the
complainant to file a new case in
district court in such circumstances
would be a collateral attack on the
Secretary’s final order and, as such, is
inconsistent with the provisions
providing parties the right to seek
judicial review of the Secretary’s final
decision in the court of appeals.
OSHA has revised paragraph (a) of
this section to incorporate the statutory
provision allowing a jury trial at the
request of either party in a district court
action under NTSSA and FRSA. OSHA
also has added paragraph (b) to specify
the burdens of proof applicable to ‘‘kick
out’’ actions under this section and the
statutory remedies available in those
actions. For both NTSSA and FRSA
complaints, the same burdens of proof
that apply in proceedings before the
ALJ, as outlined in section 1982.109,
apply to ‘‘kick out’’ actions. See 6 U.S.C.
1142(c)(7); Araujo, 708 F.3d at 157–58
(holding that the burdens of proof in 49
U.S.C. 42121 apply to ‘‘kick out’’ actions
under FRSA). Paragraph (b) also notes
the remedies available to an employee
who prevails in an action in district
court, which are the same under NTSSA
and FRSA. Both NTSSA and FRSA
provide that an employee who prevails
in an action in district court shall be
entitled to all relief necessary to make
the employee whole and that remedies
shall include reinstatement with the
same seniority status that the employee
would have had, but for the retaliation,
any back pay with interest, and payment
of compensatory damages, including
compensation for any special damages
sustained as a result of the retaliation,
including litigation costs, expert witness
fees, and reasonable attorney fees. The
relief for an employee who prevails in
an action in district court under NTSSA
or FRSA may also include punitive
damages in an amount not to exceed
$250,000. See 6 U.S.C. 1142 (d); 49
U.S.C. 20109(e).
In paragraph (c) of this section, OSHA
eliminated the requirement in the
interim final rule that complainants
provide the agency 15 days advance
notice before filing a de novo complaint
in district court. Instead, this section
now provides that within seven days
after filing a complaint in district court,
a complainant must provide a filestamped copy of the complaint to the
Assistant Secretary, the ALJ, or the ARB,

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depending on where the proceeding is
pending. In all cases a copy of the
district court complaint also must be
provided to the Regional Administrator,
the Assistant Secretary, Occupational
Safety and Health Administration, and
the U.S. Department of Labor’s
Associate Solicitor for Fair Labor
Standards. This provision is necessary
to notify the agency that the
complainant has opted to file a
complaint in district court. This
provision is not a substitute for the
complainant’s compliance with the
requirements for service of process of
the district court complaint contained in
the Federal Rules of Civil Procedure and
the local rules of the district court
where the complaint is filed.
This change responds to NWC’s
comment that the 15-day advance notice
requirement for filing a suit in district
court should be eliminated because it
inhibits complainants’ access to federal
courts. OSHA believes that a provision
for notifying the agency of the district
court complaint is necessary to avoid
unnecessary expenditure of agency
resources once a complainant has
decided to remove the complaint to
federal district court. OSHA believes
that the revised provision adequately
balances the complainant’s interest in
ready access to federal court and the
agency’s interest in receiving prompt
notice that the complainant no longer
wishes to continue with the
administrative proceeding. Other minor
changes were made as needed to clarify
the provision without changing its
meaning.
Section 1982.115 Special
Circumstances; Waiver of Rules
This section provides that in
circumstances not contemplated by
these rules or for good cause the ALJ or
the ARB may, upon application and
notice to the parties, waive any rule as
justice or the administration of NTSSA
or FRSA requires.
Rail Labor commented that the waiver
provision raises due process concerns
and should therefore be deleted.
According to Rail Labor, any waiver
works to the disadvantage of one party
and the advantage of the other party,
and it creates a drain on limited agency
resources.
OSHA believes that, because these
procedural rules cannot cover every
conceivable contingency, there may be
occasions where certain exceptions to
the rules are necessary. OSHA notes that
a similar section appears in the
regulations for handling complaints
under the whistleblower provisions of
AIR 21 and Sarbanes-Oxley and that
both the ALJs and the ARB have relied

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upon the rule on occasion. See, e.g.,
Haefling v. United Parcel Serv., ALJ No.
98–STA–6 (ALJ Mar. 23, 1998);
Caimano v. Brink's Inc., ARB No 97–
041, 1997 WL 24368 (ARB Jan 22, 1997).
Thus, OSHA has made no changes to
this section.
IV. Paperwork Reduction Act
This rule contains a reporting
provision (filing a retaliation complaint,
section 1982.103) which was previously
reviewed and approved for use by the
Office of Management and Budget
(OMB) under the provisions of the
Paperwork Reduction Act of 1995, (Pub.
L. 104–13). The assigned OMB control
number is 1218–0236.
V. Administrative Procedure Act
The notice and comment rulemaking
procedures of section 553 of the
Administrative Procedure Act (APA) do
not apply ‘‘to interpretative rules,
general statements of policy, or rules of
agency organization, procedure, or
practice.’’ (5 U.S.C. 553(b)(A)). This is a
rule of agency procedure, practice and
interpretation within the meaning of
that section. Therefore, publication in
the Federal Register of a notice of
proposed rulemaking and request for
comments were not required for these
regulations, which provide the
procedures for the handling of
retaliation complaints and set forth the
Secretary’s interpretations on certain
statutory issues. The Assistant
Secretary, however, 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 and interpretative 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 final
rule. It is in the public interest that the
rule be effective immediately so that
parties may know what procedures are
applicable to pending cases.
VI. Executive Orders 12866 and 13563;
Unfunded Mandates Reform Act of
1995; Executive Order 13132
The Department has concluded that
this rule is not a ‘‘significant regulatory
action’’ within the meaning of Executive
Order 12866, reaffirmed by Executive
Order 13563, because it is not likely to:
(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,

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69131

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 economic impact analysis
under Section 6(a)(3)(C) of Executive
Order 12866 has been prepared. For the
same reason, and because no notice of
proposed rulemaking has been
published, no statement is required
under Section 202 of the Unfunded
Mandates Reform Act of 1995, 2 U.S.C.
1532. In any event, this rulemaking is
procedural and interpretive in nature
and is thus not expected to have a
significant economic impact. 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 notice and comment rulemaking
procedures of Section 553 of the APA
do not apply ‘‘to interpretative rules,
general statements of policy, or rules of
agency organization, procedure, or
practice.’’ 5 U.S.C. 553(b)(A). Rules that
are exempt from APA notice and
comment requirements are also exempt
from the Regulatory Flexibility Act
(RFA). See SBA Office of Advocacy, A
Guide for Government Agencies: How to
Comply with the Regulatory Flexibility
Act, at 9; also found at https://
www.sba.gov/advocacy/guidegovernment-agencies-how-complyregulatory-flexibility-act. This is a rule
of agency procedure, practice, and
interpretation within the meaning of 5
U.S.C. 553; and therefore the rule is
exempt from both the notice and
comment rulemaking procedures of the
APA and the requirements under the
RFA.
Document Preparation: This
document was prepared under the
direction and control of the Assistant
Secretary, Occupational Safety and
Health Administration, U.S. Department
of Labor.

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List of Subjects in 29 CFR Part 1982

Subpart A—Complaints,
Investigations, Findings and
Preliminary Orders

Administrative practice and
procedure, Employment, Homeland
security, Investigations, Mass
transportation, Reporting and
recordkeeping requirements, Public
transportation, Railroads, Safety,
Transportation, Whistleblowing.

§ 1982.100

Authority and Signature
This document was prepared under
the direction and control of David
Michaels, Ph.D., MPH, Assistant
Secretary of Labor for Occupational
Safety and Health.
Signed at Washington, DC, on October 28,
2015.
David Michaels,
Assistant Secretary of Labor for Occupational
Safety and Health.

Accordingly, for the reasons set out in
the preamble, 29 CFR part 1982 is
revised to read as follows:
PART 1982—PROCEDURES FOR THE
HANDLING OF RETALIATION
COMPLAINTS UNDER THE NATIONAL
TRANSIT SYSTEMS SECURITY ACT
AND THE FEDERAL RAILROAD
SAFETY ACT
Subpart A—Complaints, Investigations,
Findings and Preliminary Orders
Sec.
1982.100 Purpose and scope.
1982.101 Definitions.
1982.102 Obligations and prohibited acts.
1982.103 Filing of retaliation complaints.
1982.104 Investigation.
1982.105 Issuance of findings and
preliminary orders.
Subpart B—Litigation
1982.106 Objections to the findings and the
preliminary order and requests for a
hearing.
1982.107 Hearings.
1982.108 Role of Federal agencies.
1982.109 Decision and orders of the
administrative law judge.
1982.110 Decision and orders of the
Administrative Review Board.

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Subpart C—Miscellaneous Provisions
1982.111 Withdrawal of complaints,
findings, objections, and petitions for
review; settlement.
1982.112 Judicial review.
1982.113 Judicial enforcement.
1982.114 District court jurisdiction of
retaliation complaints.
1982.115 Special circumstances; waiver of
rules.
Authority: 6 U.S.C. 1142 and 49 U.S.C.
20109; Secretary of Labor’s Order 01–2012
(Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012);
Secretary of Labor’s Order No. 2–2012 (Oct.
19, 2012), 77 FR 69378 (Nov. 16, 2012).

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Purpose and scope.

(a) This part implements procedures
of the National Transit Systems Security
Act (NTSSA), 6 U.S.C. 1142, and the
Federal Railroad Safety Act (FRSA), 49
U.S.C. 20109, as amended. NTSSA
provides for employee protection from
retaliation because the employee has
engaged in protected activity pertaining
to public transportation safety or
security (or, in circumstances covered
by the statute, the employee is
perceived to have engaged or to be about
to engage in protected activity). FRSA
provides for employee protection from
retaliation because the employee has
engaged in protected activity pertaining
to railroad safety or security (or, in
circumstances covered by the statute,
the employee is perceived to have
engaged or to be about to engage in
protected activity), has requested
medical or first aid treatment, or has
followed orders or a treatment plan of
a treating physician. It also protects an
employee against delay, denial or
interference with first aid or medical
treatment for a workplace injury.
(b) This part establishes procedures
under NTSSA and FRSA for the
expeditious handling of retaliation
complaints filed by employees, or by
persons acting on their behalf, and sets
forth the Secretary’s interpretations of
NTSSA and FRSA on certain statutory
issues. These rules, together with those
codified at 29 CFR part 18, set forth the
procedures under NTSSA or FRSA for
submission of complaints,
investigations, issuance of findings and
preliminary orders, objections to
findings and orders, litigation before
administrative law judges, post-hearing
administrative review, and withdrawals
and settlements.
§ 1982.101

Definitions.

As used in this part:
(a) Assistant Secretary means the
Assistant Secretary of Labor for
Occupational Safety and Health or the
person or persons to whom he or she
delegates authority under NTSSA or
FRSA.
(b) Business days means days other
than Saturdays, Sundays, and Federal
holidays.
(c) Complainant means the employee
who filed a NTSSA or FRSA complaint
or on whose behalf a complaint was
filed.
(d) Employee means an individual
presently or formerly working for, an
individual applying to work for, or an
individual whose employment could be

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affected by a public transportation
agency or a railroad carrier, or a
contractor or subcontractor of a public
transportation agency or a railroad
carrier.
(e) FRSA means Section 1521 of the
Implementing Recommendations of the
9/11 Commission Act of 2007, Public
Law 110–053, August 3, 2007, as further
amended by Public Law 110–432,
October, 16, 2008, codified at 49 U.S.C.
20109.
(f) NTSSA means Section 1413 of the
Implementing Recommendations of the
9/11 Commission Act of 2007, Public
Law 110–053, August 3, 2007, codified
at 6 U.S.C. 1142.
(g) OSHA means the Occupational
Safety and Health Administration of the
United States Department of Labor.
(h) Public transportation means
regular, continuing shared-ride surface
transportation services that are open to
the general public or open to a segment
of the general public defined by age,
disability, or low income; and does not
include: Intercity passenger rail
transportation provided by the entity
described in chapter 243 (or a successor
to such entity); intercity bus service;
charter bus service; school bus service;
sightseeing service; courtesy shuttle
service for patrons of one or more
specific establishments; or intraterminal or intra-facility shuttle
services.
(i) Public transportation agency
means a publicly owned operator of
public transportation eligible to receive
federal assistance under 49 U.S.C.
chapter 53.
(j) Railroad means any form of
nonhighway ground transportation that
runs on rails or electromagnetic
guideways, including commuter or
other short-haul railroad passenger
service in a metropolitan or suburban
area and commuter railroad service that
was operated by the Consolidated Rail
Corporation on January 1, 1979; and
high speed ground transportation
systems that connect metropolitan areas,
without regard to whether those systems
use new technologies not associated
with traditional railroads; but does not
include rapid transit operations in an
urban area that are not connected to the
general railroad system of
transportation.
(k) Railroad carrier means a person
providing railroad transportation,
except that, upon petition by a group of
commonly controlled railroad carriers
that the Secretary of Transportation
determines is operating within the
United States as a single, integrated rail
system, the Secretary of Transportation
may by order treat the group of railroad
carriers as a single railroad carrier for

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purposes of one or more provisions of
part A, subtitle V of title 49 and
implementing regulations and order,
subject to any appropriate conditions
that the Secretary of Transportation may
impose.
(l) Respondent means the person
alleged to have violated NTSSA or
FRSA.
(m) Secretary means the Secretary of
Labor or person to whom authority
under NTSSA or FRSA has been
delegated.
(n) Any future statutory amendments
that affect the definition of a term or
terms listed in this section will apply in
lieu of the definition stated herein.

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§ 1982.102
acts.

Obligations and prohibited

(a) National Transit Systems Security
Act. (1) A public transportation agency,
contractor, or subcontractor of such
agency, or officer or employee of such
agency, shall not discharge, demote,
suspend, reprimand, or in any other
way retaliate against, including but not
limited to intimidating, threatening,
restraining, coercing, blacklisting, or
disciplining, an employee if such
retaliation is due, in whole or in part,
to the employee’s lawful, good faith act
done, or perceived by the employer to
have been done or about to be done—
(i) To provide information, directly
cause information to be provided, or
otherwise directly assist in any
investigation regarding any conduct
which the employee reasonably believes
constitutes a violation of any Federal
law, rule, or regulation relating to public
transportation safety or security, or
fraud, waste, or abuse of Federal grants
or other public funds intended to be
used for public transportation safety or
security, if the information or assistance
is provided to or an investigation
stemming from the provided
information is conducted by—
(A) A Federal, State or local
regulatory or law enforcement agency
(including an office of the Inspector
General under the Inspector General Act
of 1978 (5 U.S.C. App.; Pub. L. 95–452));
(B) Any Member of Congress, any
Committee of Congress, or the
Government Accountability Office; or
(C) A person with supervisory
authority over the employee or such
other person who has the authority to
investigate, discover, or terminate the
misconduct;
(ii) To refuse to violate or assist in the
violation of any Federal law, rule, or
regulation relating to public
transportation safety or security;
(iii) To file a complaint or directly
cause to be brought a proceeding related

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to the enforcement of this section or to
testify in that proceeding;
(iv) To cooperate with a safety or
security investigation by the Secretary
of Transportation, the Secretary of
Homeland Security, or the National
Transportation Safety Board; or
(v) To furnish information to the
Secretary of Transportation, the
Secretary of Homeland Security, the
National Transportation Safety Board, or
any Federal, State, or local regulatory or
law enforcement agency as to the facts
relating to any accident or incident
resulting in injury or death to an
individual or damage to property
occurring in connection with public
transportation.
(2)(i) A public transportation agency,
contractor, or subcontractor of such
agency, or officer or employee of such
agency, shall not discharge, demote,
suspend, reprimand, or in any other
way retaliate against, including but not
limited to intimidating, threatening,
restraining, coercing, blacklisting, or
disciplining, an employee for—
(A) Reporting a hazardous safety or
security condition;
(B) Refusing to work when confronted
by a hazardous safety or security
condition related to the performance of
the employee’s duties, if the conditions
described in paragraph (a)(2)(ii) of this
section exist; or
(C) Refusing to authorize the use of
any safety- or security-related
equipment, track, or structures, if the
employee is responsible for the
inspection or repair of the equipment,
track, or structures, when the employee
believes that the equipment, track, or
structures are in a hazardous safety or
security condition, if the conditions
described in paragraph (a)(2)(ii) of this
section exist.
(ii) A refusal is protected under
paragraph (a)(2)(i)(B) and (C) of this
section if—
(A) The refusal is made in good faith
and no reasonable alternative to the
refusal is available to the employee;
(B) A reasonable individual in the
circumstances then confronting the
employee would conclude that—
(1) The hazardous condition presents
an imminent danger of death or serious
injury; and
(2) The urgency of the situation does
not allow sufficient time to eliminate
the danger without such refusal; and
(C) The employee, where possible, has
notified the public transportation
agency of the existence of the hazardous
condition and the intention not to
perform further work, or not to
authorize the use of the hazardous
equipment, track, or structures, unless
the condition is corrected immediately

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69133

or the equipment, track, or structures
are repaired properly or replaced.
(iii) In this paragraph (a)(2), only
paragraph (a)(2)(i)(A) shall apply to
security personnel, including transit
police, employed or utilized by a public
transportation agency to protect riders,
equipment, assets, or facilities.
(b) Federal Railroad Safety Act. (1) A
railroad carrier engaged in interstate or
foreign commerce, a contractor or a
subcontractor of such a railroad carrier,
or an officer or employee of such a
railroad carrier, may not discharge,
demote, suspend, reprimand, or in any
other way retaliate against, including
but not limited to intimidating,
threatening, restraining, coercing,
blacklisting, or disciplining, an
employee if such retaliation is due, in
whole or in part, to the employee’s
lawful, good faith act done, or perceived
by the employer to have been done or
about to be done—
(i) To provide information, directly
cause information to be provided, or
otherwise directly assist in any
investigation regarding any conduct
which the employee reasonably believes
constitutes a violation of any Federal
law, rule, or regulation relating to
railroad safety or security, or gross
fraud, waste, or abuse of Federal grants
or other public funds intended to be
used for railroad safety or security, if the
information or assistance is provided to
or an investigation stemming from the
provided information is conducted by—
(A) A Federal, State, or local
regulatory or law enforcement agency
(including an office of the Inspector
General under the Inspector General Act
of 1978 (5 U.S.C. App.; Public Law 95–
452));
(B) Any Member of Congress, any
committee of Congress, or the
Government Accountability Office; or
(C) A person with supervisory
authority over the employee or such
other person who has the authority to
investigate, discover, or terminate the
misconduct;
(ii) To refuse to violate or assist in the
violation of any Federal law, rule, or
regulation relating to railroad safety or
security;
(iii) To file a complaint, or directly
cause to be brought a proceeding related
to the enforcement of 49 U.S.C. part A
of subtitle V or, as applicable to railroad
safety or security, 49 U.S.C. chapter 51
or 57, or to testify in that proceeding;
(iv) To notify, or attempt to notify, the
railroad carrier or the Secretary of
Transportation of a work-related
personal injury or work-related illness
of an employee;
(v) To cooperate with a safety or
security investigation by the Secretary

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of Transportation, the Secretary of
Homeland Security, or the National
Transportation Safety Board;
(vi) To furnish information to the
Secretary of Transportation, the
Secretary of Homeland Security, the
National Transportation Safety Board, or
any Federal, State, or local regulatory or
law enforcement agency as to the facts
relating to any accident or incident
resulting in injury or death to an
individual or damage to property
occurring in connection with railroad
transportation; or
(vii) To accurately report hours on
duty pursuant to 49 U.S.C. chapter 211.
(2)(i) A railroad carrier engaged in
interstate or foreign commerce, or an
officer or employee of such a railroad
carrier, shall not discharge, demote,
suspend, reprimand, or in any other
way retaliate against, including but not
limited to intimidating, threatening,
restraining, coercing, blacklisting, or
disciplining, an employee for—
(A) Reporting, in good faith, a
hazardous safety or security condition;
(B) Refusing to work when confronted
by a hazardous safety or security
condition related to the performance of
the employee’s duties, if the conditions
described in paragraph (b)(2)(ii) of this
section exist; or
(C) Refusing to authorize the use of
any safety-related equipment, track, or
structures, if the employee is
responsible for the inspection or repair
of the equipment, track, or structures,
when the employee believes that the
equipment, track, or structures are in a
hazardous safety or security condition,
if the conditions described in paragraph
(b)(2)(ii) of this section exist.
(ii) A refusal is protected under
paragraph (b)(2)(i)(B) and (C) of this
section if—
(A) The refusal is made in good faith
and no reasonable alternative to the
refusal is available to the employee;
(B) A reasonable individual in the
circumstances then confronting the
employee would conclude that—
(1) The hazardous condition presents
an imminent danger of death or serious
injury; and
(2) The urgency of the situation does
not allow sufficient time to eliminate
the danger without such refusal; and
(C) The employee, where possible, has
notified the railroad carrier of the
existence of the hazardous condition
and the intention not to perform further
work, or not to authorize the use of the
hazardous equipment, track, or
structures, unless the condition is
corrected immediately or the
equipment, track, or structures are
repaired properly or replaced.

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(iii) In this paragraph (b)(2), only
paragraph (b)(2)(i)(A) shall apply to
security personnel employed by a
railroad carrier to protect individuals
and property transported by railroad.
(3) A railroad carrier or person
covered under this section may not:
(i) Deny, delay, or interfere with the
medical or first aid treatment of an
employee who is injured during the
course of employment. If transportation
to a hospital is requested by an
employee injured during the course of
employment, the railroad shall
promptly arrange to have the injured
employee transported to the nearest
hospital where the employee can
receive safe and appropriate medical
care.
(ii) Discipline, or threaten discipline
to, an employee for requesting medical
or first aid treatment, or for following
orders or a treatment plan of a treating
physician, except that—
(A) A railroad carrier’s refusal to
permit an employee to return to work
following medical treatment shall not be
considered a violation of FRSA if the
refusal is pursuant to Federal Railroad
Administration medical standards for
fitness of duty or, if there are no
pertinent Federal Railroad
Administration standards, a carrier’s
medical standards for fitness for duty.
(B) For purposes of this paragraph, the
term ‘‘discipline’’ means to bring
charges against a person in a
disciplinary proceeding, suspend,
terminate, place on probation, or make
note of reprimand on an employee’s
record.
§ 1982.103

Filing of retaliation complaints.

(a) Who may file. An employee who
believes that he or she has been
retaliated against in violation of NTSSA
or FRSA may file, or have filed by any
person on the employee’s behalf, a
complaint alleging such retaliation.
(b) Nature of filing. No particular form
of complaint is required. A complaint
may be filed orally or in writing. Oral
complaints will be reduced to writing
by OSHA. If the complainant is unable
to file the complaint in English, OSHA
will accept the complaint in any
language.
(c) Place of filing. The complaint
should be filed with the OSHA office
responsible for enforcement activities in
the geographical area where the
employee resides or was employed, but
may be filed with any OSHA officer or
employee. Addresses and telephone
numbers for these officials are set forth
in local directories and at the following
Internet address: http://www.osha.gov.
(d) Time for Filing. Within 180 days
after an alleged violation of NTSSA or

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FRSA occurs, any employee who
believes that he or she has been
retaliated against in violation of NTSSA
or FRSA may file, or have filed by any
person on the employee’s behalf, a
complaint alleging such retaliation. The
date of the postmark, facsimile
transmittal, electronic communication
transmittal, 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. For
example, OSHA may consider the time
for filing a complaint equitably tolled if
a complainant mistakenly files a
complaint with another agency instead
of OSHA within 180 days after
becoming aware of the alleged violation.
§ 1982.104

Investigation.

(a) Upon receipt of a complaint in the
investigating office, OSHA will notify
the respondent of the filing of the
complaint, of the allegations contained
in the complaint, and of the substance
of the evidence supporting the
complaint. Such materials will be
redacted, if necessary, consistent with
the Privacy Act of 1974, 5 U.S.C. 552a,
and other applicable confidentiality
laws. OSHA will also notify the
respondent of its rights under
paragraphs (b) and (f) of this section and
§ 1982.110(e). OSHA will provide an
unredacted copy of these same materials
to the complainant (or the
complainant’s legal counsel if
complainant is represented by counsel),
and to the Federal Railroad
Administration, the Federal Transit
Administration, or the Transportation
Security Administration as appropriate.
(b) Within 20 days of receipt of the
notice of the filing of the complaint
provided under paragraph (a) of this
section, the respondent may submit to
OSHA a written statement and any
affidavits or documents substantiating
its position. Within the same 20 days,
the respondent may request a meeting
with OSHA to present its position.
(c) During the investigation, OSHA
will request that each party provide the
other parties to the whistleblower
complaint with a copy of submissions to
OSHA that are pertinent to the
whistleblower complaint. Alternatively,
if a party does not provide its
submissions to OSHA to the other party,
OSHA will provide them to the other
party (or the party’s legal counsel if the
party is represented by counsel) at a
time permitting the other party an
opportunity to respond. Before
providing such materials to the other
party, OSHA will redact them, if

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necessary, consistent with the Privacy
Act of 1974, 5 U.S.C. 552a, and other
applicable confidentiality laws. OSHA
will also provide each party with an
opportunity to respond to the other
party’s submissions.
(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 this title.
(e)(1) A complaint will be dismissed
unless the complainant has made a
prima facie showing that protected
activity was a contributing factor in the
adverse action alleged in the complaint.
(2) The complaint, supplemented as
appropriate by interviews of the
complainant, must allege the existence
of facts and evidence to make a prima
facie showing as follows:
(i) The employee engaged in a
protected activity (or, in circumstances
covered by NTSSA and FRSA, was
perceived to have engaged or to be about
to engage in protected activity);
(ii) The respondent knew or suspected
that the employee engaged in the
protected activity (or, in circumstances
covered by NTSSA and FRSA,
perceived the employee to have engaged
or to be about to engage in protected
activity);
(iii) The employee suffered an adverse
action; and
(iv) The circumstances were sufficient
to raise the inference that the protected
activity (or perception thereof) was a
contributing factor in the adverse action.
(3) For purposes of determining
whether to investigate, the complainant
will be considered to have met the
required burden if the complaint on its
face, supplemented as appropriate
through interviews of the complainant,
alleges the existence of facts and either
direct or circumstantial evidence to
meet the required showing, i.e., to give
rise to an inference that the respondent
knew or suspected that the employee
engaged in protected activity (or, in
circumstances covered by NTSSA and
FRSA, perceived the employee to have
engaged or to be about to engage in
protected activity), and that the
protected activity (or perception thereof)
was a contributing factor in the adverse
action. The burden may be satisfied, for
example, if the complaint shows that
the adverse action took place shortly
after the protected activity, or at the first
opportunity available to the respondent,
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)

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will be so notified and the investigation
will not commence.
(4) Notwithstanding a finding that a
complainant has made a prima facie
showing, as required by this section,
further investigation of the complaint
will not be conducted if the respondent
demonstrates by clear and convincing
evidence that it would have taken the
same adverse action in the absence of
the complainant’s protected activity.
(5) If the respondent fails to make a
timely response or fails to satisfy the
burden set forth in the prior paragraph,
OSHA will proceed with the
investigation. The investigation will
proceed whenever it is necessary or
appropriate to confirm or verify the
information provided by the
respondent.
(f) Prior to the issuance of findings
and a preliminary order as provided for
in § 1982.105, if OSHA has reasonable
cause, on the basis of information
gathered under the procedures of this
part, to believe that the respondent has
violated NTSSA or FRSA and that
preliminary reinstatement is warranted,
OSHA will contact the respondent (or
the respondent’s legal counsel if
respondent is represented by counsel) to
give notice of the substance of the
relevant evidence supporting the
complainant’s allegations as developed
during the course of the investigation.
This evidence includes any witness
statements, which will be redacted to
protect the identity of confidential
informants where statements were given
in confidence; if the statements cannot
be redacted without revealing the
identity of confidential informants,
summaries of their contents will be
provided. The complainant will also
receive a copy of the materials that must
be provided to the respondent under
this paragraph. Before providing such
materials, OSHA will redact them, if
necessary, consistent with the Privacy
Act of 1974, 5 U.S.C. 552a, and other
applicable confidentiality laws. The
respondent will be given the
opportunity to submit a written
response, to meet with the investigators,
to present statements from witnesses in
support of its position, and to present
legal and factual arguments. The
respondent must present this evidence
within 10 business days of OSHA’s
notification pursuant to this paragraph,
or as soon afterwards as OSHA and the
respondent can agree, if the interests of
justice so require.
§ 1982.105 Issuance of findings and
preliminary orders.

(a) After considering all the relevant
information collected during the
investigation, the Assistant Secretary

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69135

will issue, within 60 days of filing of the
complaint, written findings as to
whether or not there is reasonable cause
to believe that the respondent has
retaliated against the complainant in
violation of NTSSA or FRSA.
(1) If the Assistant Secretary
concludes that there is reasonable cause
to believe that a violation has occurred,
the Assistant Secretary will accompany
the findings with a preliminary order
providing relief to the complainant. The
preliminary order will include, where
appropriate: Affirmative action to abate
the violation; reinstatement with the
same seniority status that the employee
would have had, but for the retaliation;
any back pay with interest; and payment
of compensatory damages, including
compensation for any special damages
sustained as a result of the retaliation,
including litigation costs, expert witness
fees, and reasonable attorney fees.
Interest on back pay will be calculated
using the interest rate applicable to
underpayment of taxes under 26 U.S.C.
6621 and will be compounded daily.
The preliminary order will also require
the respondent to submit
documentation to the Social Security
Administration or the Railroad
Retirement Board, as appropriate,
allocating any back pay award to the
appropriate months or calendar
quarters. The preliminary order may
also require the respondent to pay
punitive damages up to $250,000.
(2) If the Assistant Secretary
concludes that a violation has not
occurred, the Assistant Secretary will
notify the parties of that finding.
(b) The findings and, where
appropriate, the preliminary order will
be sent by certified mail, return receipt
requested, to all parties of record (and
each party’s legal counsel if the party is
represented by counsel). The findings
and, where appropriate, the preliminary
order will inform the parties of the right
to object to the findings and/or order
and to request a hearing, and of the right
of the respondent under NTSSA to
request award of attorney fees not
exceeding $1,000 from the
administrative law judge (ALJ)
regardless of whether the respondent
has filed objections, if the respondent
alleges that the complaint was frivolous
or brought in bad faith. The findings
and, where appropriate, the preliminary
order also will give the address of the
Chief Administrative Law Judge, U.S.
Department of Labor. At the same time,
the Assistant Secretary will file with the
Chief Administrative Law Judge a copy
of the original complaint and a copy of
the findings and/or order.
(c) The findings and any preliminary
order will be effective 30 days after

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receipt by the respondent (or the
respondent’s legal counsel if the
respondent is represented by counsel),
or on the compliance date set forth in
the preliminary order, whichever is
later, unless an objection and/or a
request for a hearing has been timely
filed as provided at § 1982.106.
However, the portion of any preliminary
order requiring reinstatement will be
effective immediately upon the
respondent’s receipt of the findings and
of the preliminary order, regardless of
any objections to the findings and/or the
order.
Subpart B—Litigation

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§ 1982.106 Objections to the findings and
the preliminary order and requests for a
hearing.

(a) Any party who desires review,
including judicial review, of the
findings and preliminary order, or a
respondent alleging that the complaint
was frivolous or brought in bad faith
who seeks an award of attorney fees
under NTSSA, must file any objections
and/or a request for a hearing on the
record within 30 days of receipt of the
findings and preliminary order pursuant
to § 1982.105. The objections, request
for a hearing, and/or request for attorney
fees must be in writing and state
whether the objections are to the
findings, the preliminary order, and/or
whether there should be an award of
attorney fees. The date of the postmark,
facsimile transmittal, or electronic
communication transmittal is
considered the date of filing; if the
objection is filed in person, by handdelivery or other means, the objection is
filed upon receipt. Objections must be
filed with the Chief Administrative Law
Judge, U.S. Department of Labor, and
copies of the objections must be mailed
at the same time to the other parties of
record, the OSHA official who issued
the findings and order, the Assistant
Secretary, and the Associate Solicitor,
Division of Fair Labor Standards, U.S.
Department of Labor.
(b) If a timely objection is filed, all
provisions of the preliminary order will
be stayed, except for the portion
requiring preliminary reinstatement,
which will not be automatically stayed.
The portion of the preliminary order
requiring reinstatement will be effective
immediately upon the respondent’s
receipt of the findings and preliminary
order, regardless of any objections to the
order. The respondent may file a motion
with the Office of Administrative Law
Judges for a stay of the Assistant
Secretary’s preliminary order of
reinstatement, which shall be granted
only based on exceptional

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circumstances. If no timely objection is
filed with respect to either the findings
and/or the preliminary order, the
findings or preliminary order will
become the final decision of the
Secretary, not subject to judicial review.
§ 1982.107

Hearings.

(a) Except as provided in this part,
proceedings will be conducted in
accordance with the rules of practice
and procedure for administrative
hearings before the Office of
Administrative Law Judges, codified at
subpart A of part 18 of this title.
(b) Upon receipt of an objection and
request for hearing, the Chief
Administrative Law Judge will promptly
assign the case to an ALJ who will
notify the parties, by certified mail, of
the day, time, and place of hearing. The
hearing is to commence expeditiously,
except upon a showing of good cause or
unless otherwise agreed to by the
parties. Hearings will be conducted de
novo on the record. Administrative Law
Judges have broad discretion to limit
discovery in order to expedite the
hearing.
(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.
(d) Formal rules of evidence will not
apply, but rules or principles designed
to assure production of the most
probative evidence will be applied. The
ALJ may exclude evidence that is
immaterial, irrelevant, or unduly
repetitious.
§ 1982.108

Role of Federal agencies.

(a)(1) The complainant and the
respondent will be parties in every
proceeding and must be served with
copies of all documents in the case. At
the Assistant Secretary’s discretion, the
Assistant Secretary may participate as a
party or as amicus curiae at any time at
any stage of the proceeding. This right
to participate includes, but is not
limited to, the right to petition for
review of a decision of an ALJ,
including a decision approving or
rejecting a settlement agreement
between the complainant and the
respondent.
(2) Parties must send copies of
documents to OSHA and to the
Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of
Labor, only upon request of OSHA, or
when OSHA is participating in the
proceeding, or when service on OSHA
and the Associate Solicitor is otherwise
required by these rules.
(b) The Department of Homeland
Security or the Department of

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Transportation, if interested in a
proceeding, may participate as amicus
curiae at any time in the proceeding, at
those agencies’ discretion. At the
request of the interested federal agency,
copies of all documents in a case must
be sent to the federal agency, whether or
not the agency is participating in the
proceeding.
§ 1982.109 Decision and orders of the
administrative law judge.

(a) The decision of the ALJ will
contain appropriate findings,
conclusions, and an order pertaining to
the remedies provided in paragraph (d)
of this section, as appropriate. A
determination that a violation has
occurred may be made only if the
complainant has demonstrated by a
preponderance of the evidence that
protected activity was a contributing
factor in the adverse action alleged in
the complaint.
(b) If the complainant has satisfied the
burden set forth in the prior paragraph,
relief may not be ordered if the
respondent demonstrates by clear and
convincing evidence that it would have
taken the same adverse action in the
absence of any protected activity.
(c) Neither OSHA’s determination to
dismiss a complaint without completing
an investigation pursuant to
§ 1982.104(e) nor OSHA’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 ALJ
will issue an order that will include,
where appropriate: Affirmative action to
abate the violation; reinstatement with
the same seniority status that the
employee would have had, but for the
retaliation; any back pay with interest;
and payment of compensatory damages,
including compensation for any special
damages sustained as a result of the
retaliation, including litigation costs,
expert witness fees, and reasonable
attorney fees. Interest on back pay will
be calculated using the interest rate
applicable to underpayment of taxes
under 26 U.S.C. 6621 and will be
compounded daily. The order will also
require the respondent to submit
documentation to the Social Security
Administration or the Railroad
Retirement Board, as appropriate,
allocating any back pay award to the

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appropriate months or calendar
quarters. The order may also require the
respondent to pay punitive damages up
to $250,000.
(2) If the ALJ determines that the
respondent has not violated the law, an
order will be issued denying the
complaint. If, upon the request of the
respondent, the ALJ determines that a
complaint filed under NTSSA was
frivolous or was brought in bad faith,
the ALJ may award to the respondent a
reasonable attorney fee, not exceeding
$1,000.
(e) The decision will be served upon
all parties to the proceeding, the
Assistant Secretary, and the Associate
Solicitor, Division of Fair Labor
Standards, U.S. Department of Labor.
Any ALJ’s decision requiring
reinstatement or lifting an order of
reinstatement by the Assistant Secretary
will be effective immediately upon
receipt of the decision by the
respondent. All other portions of the
ALJ’s order will be effective 14 days
after the date of the decision unless a
timely petition for review has been filed
with the Administrative Review Board
(ARB), U.S. Department of Labor. The
decision of the ALJ will become the
final order of the Secretary unless a
petition for review is timely filed with
the ARB and the ARB accepts the
petition for review.

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§ 1982.110 Decision and orders of the
Administrative Review Board.

(a) Any party desiring to seek review,
including judicial review, of a decision
of the ALJ, or a respondent alleging that
the complaint under NTSSA was
frivolous or brought in bad faith who
seeks an award of attorney fees, must
file a written petition for review with
the ARB, which has been delegated the
authority to act for the Secretary and
issue final decisions under this part.
The parties should identify in their
petitions for review the legal
conclusions or orders to which they
object, or the objections may be deemed
waived. A petition must be filed within
14 days of the date of the decision of the
ALJ. The date of the postmark, facsimile
transmittal, or electronic
communication transmittal will be
considered to be the date of filing; if the
petition is filed in person, by handdelivery 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
must be served on the Assistant
Secretary, and on the Associate
Solicitor, Division of Fair Labor
Standards, U.S. Department of Labor.

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(b) If a timely petition for review is
filed pursuant to paragraph (a) of this
section, the decision of the ALJ will
become the final order of the Secretary
unless the ARB, within 30 days of the
filing of the petition, issues an order
notifying the parties that the case has
been accepted for review. If a case is
accepted for review, the decision of the
ALJ will be inoperative unless and until
the ARB issues an order adopting the
decision, except that any order of
reinstatement will be effective while
review is conducted by the ARB, unless
the ARB grants a motion by the
respondent to stay that order based on
exceptional circumstances. The ARB
will specify the terms under which any
briefs are to be filed. The ARB will
review the factual determinations of the
ALJ under the substantial evidence
standard. If no timely petition for
review is filed, or the ARB denies
review, the decision of the ALJ will
become the final order of the Secretary.
If no timely petition for review is filed,
the resulting final order is not subject to
judicial review.
(c) The final decision of the ARB will
be issued within 120 days of the
conclusion of the hearing, which will be
deemed to be 14 days after the date of
the decision of the ALJ, unless a motion
for reconsideration has been filed with
the ALJ in the interim. In such case, the
conclusion of the hearing is the date the
motion for reconsideration is denied or
14 days after a new decision is issued.
The ARB’s final decision will be served
upon all parties and the Chief
Administrative Law Judge by mail. The
final decision also will be served on the
Assistant Secretary, and on the
Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of
Labor, even if the Assistant Secretary is
not a party.
(d) If the ARB concludes that the
respondent has violated the law, the
ARB will issue a final order providing
relief to the complainant. The final
order will include, where appropriate:
Affirmative action to abate the violation;
reinstatement with the same seniority
status that the employee would have
had, but for the retaliation; any back pay
with interest; and payment of
compensatory damages, including
compensation for any special damages
sustained as a result of the retaliation,
including litigation costs, expert witness
fees, and reasonable attorney fees.
Interest on back pay will be calculated
using the interest rate applicable to
underpayment of taxes under 26 U.S.C.
6621 and will be compounded daily.
The order will also require the
respondent to submit documentation to
the Social Security Administration or

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69137

the Railroad Retirement Board, as
appropriate, allocating any back pay
award to the appropriate months or
calendar quarters. The order may also
require the respondent to pay punitive
damages up to $250,000.
(e) If the ARB determines that the
respondent has not violated the law, an
order will be issued denying the
complaint. If, upon the request of the
respondent, the ARB determines that a
complaint under NTSSA was frivolous
or was brought in bad faith, the ARB
may award to the respondent reasonable
attorney fees, not exceeding $1,000.
Subpart C—Miscellaneous Provisions
§ 1982.111 Withdrawal of complaints,
findings, objections, and petitions for
review; settlement.

(a) At any time prior to the filing of
objections to the Assistant Secretary’s
findings and/or preliminary order, a
complainant may withdraw his or her
complaint by notifying OSHA, orally or
in writing, of his or her withdrawal.
OSHA then will confirm in writing the
complainant’s desire to withdraw and
determine whether to approve the
withdrawal. OSHA will notify the
parties (or each party’s legal counsel if
the party is represented by counsel) of
the approval of any withdrawal. If the
complaint is withdrawn because of
settlement, the settlement must be
submitted for approval in accordance
with paragraph (d) of this section. A
complainant may not withdraw his or
her complaint after the filing of
objections to the Assistant Secretary’s
findings and/or preliminary order.
(b) The Assistant Secretary may
withdraw the findings and/or
preliminary order at any time before the
expiration of the 30-day objection
period described in § 1982.106,
provided that no objection has been
filed yet, and substitute new findings
and/or a new preliminary order. The
date of the receipt of the substituted
findings or order will begin a new 30day objection period.
(c) At any time before the Assistant
Secretary’s findings and/or order
become final, a party may withdraw its
objections to the Assistant Secretary’s
findings and/or order by filing a written
withdrawal with the ALJ. If the case is
on review with the ARB, a party may
withdraw its petition for review of an
ALJ’s decision at any time before that
decision becomes final by filing a
written withdrawal with the ARB. The
ALJ or the ARB, as the case may be, will
determine whether to approve the
withdrawal of the objections or the
petition for review. If the ALJ approves
a request to withdraw objections to the

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Federal Register / Vol. 80, No. 216 / Monday, November 9, 2015 / Rules and Regulations

Assistant Secretary’s findings and/or
order, and there are no other pending
objections, the Assistant Secretary’s
findings and/or order will become the
final order of the Secretary. If the ARB
approves a request to withdraw a
petition for review of an ALJ decision,
and there are no other pending petitions
for review of that decision, the ALJ’s
decision will become the final order of
the Secretary. If objections or a petition
for review are withdrawn because of
settlement, the settlement must be
submitted for approval in accordance
with paragraph (d) of this section.
(d)(1) Investigative settlements. At any
time after the filing of a complaint, and
before the findings and/or order are
objected to or become a final order by
operation of law, the case may be settled
if OSHA, the complainant, and the
respondent agree to a settlement.
OSHA’s approval of a settlement
reached by the respondent and the
complainant demonstrates OSHA’s
consent and achieves the consent of all
three parties.
(2) Adjudicatory settlements. At any
time after the filing of objections to the
Assistant Secretary’s findings and/or
order, the case may be settled if the
participating parties agree to a
settlement and the settlement is
approved by the ALJ if the case is before
the ALJ, or by the ARB if the ARB has
accepted the case for review. A copy of
the settlement will be filed with the ALJ
or the ARB, as the case may be.
(e) Any settlement approved by
OSHA, the ALJ, or the ARB will
constitute the final order of the
Secretary and may be enforced in
United States district court pursuant to
§ 1982.113.

Lhorne on DSK5TPTVN1PROD with RULES

§ 1982.112

Judicial review.

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

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§ 1982.113

Judicial enforcement.

(a) Whenever any person has failed to
comply with a preliminary order of
reinstatement, or a final order, including
one approving a settlement agreement,
issued under NTSSA, the Secretary 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 a preliminary order of
reinstatement, or a final order, including
one approving a settlement agreement,
issued under NTSSA, a person on
whose behalf the order was issued may
file a civil action seeking enforcement of
the order in the appropriate United
States district court.
(b) Whenever a person has failed to
comply with a preliminary order of
reinstatement, or a final order, including
one approving a settlement agreement,
issued under FRSA, the Secretary may
file a civil action seeking enforcement of
the order in the United States district
court for the district in which the
violation was found to have occurred.
§ 1982.114 District court jurisdiction of
retaliation complaints.

(a) If there is no final order of the
Secretary, 210 days have passed since
the filing of the complaint, and there is
no showing that there has been delay
due to the bad faith of the complainant,
the complainant may bring an action at
law or equity for de novo review in the
appropriate district court of the United
States, which will have jurisdiction over
such an action without regard to the
amount in controversy. At the request of
either party, the action shall be tried by
the court with a jury.
(b) A proceeding under paragraph (a)
of this section shall be governed by the
same legal burdens of proof specified in
§ 1982.109. An employee prevailing in a
proceeding under paragraph (a) shall be
entitled to all relief necessary to make
the employee whole, including, where
appropriate: Reinstatement with the
same seniority status that the employee
would have had, but for the retaliation;
any back pay with interest; and payment
of compensatory damages, including
compensation for any special damages
sustained as a result of the retaliation,
including litigation costs, expert witness
fees, and reasonable attorney fees. The
court may also order punitive damages
in an amount not to exceed $250,000.
(c) Within 7 days after 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 copy of the file-stamped
complaint. In all cases, a copy of the

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complaint must also be served on the
OSHA official who issued the findings
and/or preliminary order, the Assistant
Secretary, and the Associate Solicitor,
Division of Fair Labor Standards, U.S.
Department of Labor.
§ 1982.115
of rules.

Special circumstances; waiver

In special circumstances not
contemplated by the provisions of these
rules, or for good cause shown, the ALJ
or the ARB on review may, upon
application, after three-days notice to all
parties, waive any rule or issue such
orders that justice or the administration
of NTSSA or FRSA requires.
[FR Doc. 2015–28040 Filed 11–6–15; 8:45 am]
BILLING CODE 4510–26–P

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 660
[Docket No. 150721634–5999–02]
RIN 0648–BF11

Magnuson-Stevens Act Provisions;
Fisheries Off West Coast States;
Pacific Coast Groundfish Fishery;
Process for Divestiture of Excess
Quota Shares in the Individual Fishing
Quota Fishery
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:

In January 2011, NMFS
implemented the trawl rationalization
program (a catch share program) for the
Pacific coast groundfish limited entry
trawl fishery. The program was
implemented through Amendment 20 to
the Pacific Coast Groundfish Fishery
Management Plan (FMP) and the
corresponding implementing
regulations. Amendment 20 established
the trawl rationalization program, which
includes an Individual Fishing Quota
program for limited entry trawl
participants. Under current regulations,
quota share permit owners must divest
quota share holdings that exceed
accumulation limits by November 30,
2015. This final rule makes narrow
procedural additions to regulations to
clarify how divestiture and revocation
of excess quota share will occur in
November 2015, and establishes
procedures for the future if divestiture
becomes necessary.
DATES: Effective November 4, 2015.
SUMMARY:

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