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airspace. This regulation is within the
scope of that authority because it
establishes additional controlled
airspace at Roundup Airport, Roundup,
MT.
[FR Doc. 2012–18146 Filed 7–26–12; 8:45 am]
Environmental Review
BILLING CODE 4910–13–P
The FAA has determined that this
action qualifies for categorical exclusion
under the National Environmental
Policy Act in accordance with FAA
Order 1050.1E, ‘‘Environmental
Impacts: Policies and Procedures,’’
paragraph 311a. This airspace action is
not expected to cause any potentially
significant environmental impacts, and
no extraordinary circumstances exist
that warrant preparation of an
environmental assessment.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference,
Navigation (air).
Adoption of the Amendment
In consideration of the foregoing, the
Federal Aviation Administration
amends 14 CFR part 71 as follows:
PART 71—DESIGNATION OF CLASS A,
B, C, D AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND
REPORTING POINTS
1. The authority citation for 14 CFR
part 71 continues to read as follows:
■
Authority: 49 U.S.C. 106(g), 40103, 40113,
40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–
1963 Comp., p. 389.
§ 71.1
[Amended]
2. The incorporation by reference in
14 CFR 71.1 of the Federal Aviation
Administration Order 7400.9V, Airspace
Designations and Reporting Points,
dated August 9, 2011, and effective
September 15, 2011 is amended as
follows:
■
Paragraph 6005 Class E airspace areas
extending upward from 700 feet or more
above the surface of the earth.
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*
*
*
*
*
ANM MT E5 Roundup, MT [New]
Roundup Airport, MT
(Lat. 46°28′30″ N., long. 108°32′36″ W.)
That airspace extending from 700 feet
above the surface within a 7.6-mile radius of
the Roundup Airport; that airspace extending
upward from 1,200 feet above the surface
within an area bounded by a line beginning
at lat. 46°53′00″ N., long. 109°17′00″ W.; lat.
47°04′00″ N., long. 108°04′00″ W.; lat.
46°51′00″ N., long. 107°39′00″ W.; lat.
46°32′00″ N., long. 107°27′00″ W.; lat.
46°06′00″ N., long. 107°42′00″ W.; lat.
45°54′00″ N., long. 109°01′00″ W.; lat.
46°10′00″ N., long. 109°33′00″ W.; lat.
46°32′00″ N., long. 109°37′00″ W.; thence to
the point of beginning.
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14:46 Jul 26, 2012
Issued in Seattle, Washington, on July 19,
2012.
Robert Henry,
Acting Manager, Operations Support Group,
Western Service Center.
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DEPARTMENT OF LABOR
Occupational Safety and Health
Administration
29 CFR Part 1978
[Docket Number: OSHA–2008–0026]
RIN 1218–AC36
Procedures for the Handling of
Retaliation Complaints Under the
Employee Protection Provision of the
Surface Transportation Assistance Act
of 1982 (STAA), as Amended
Occupational Safety and Health
Administration, Labor.
ACTION: Final rule.
AGENCY:
This document provides the
final text of regulations governing
employee protection (or
‘‘whistleblower’’) claims under the
Surface Transportation Assistance Act
of 1982 (STAA), as amended,
implementing statutory changes to
STAA enacted into law on August 3,
2007, as part of the Implementing
Recommendations of the 9/11
Commission Act of 2007. On August 31,
2010, the Occupational Safety and
Health Administration (OSHA)
published an interim final rule (IFR) for
STAA whistleblower complaints in the
Federal Register and requested public
comment on the IFR. This final rule
implements changes to the IFR in
response to comments received, where
appropriate. This final rule also
finalizes changes to the procedures for
handling whistleblower complaints
under STAA that were designed to make
them more consistent with OSHA’s
procedures for handling retaliation
complaints under Section 211 of the
Energy Reorganization Act of 1974, and
other whistleblower provisions. It also
sets forth interpretations of STAA.
DATES: This final rule is effective on July
27, 2012.
FOR FURTHER INFORMATION CONTACT:
Sandra Dillon, Director, Office of the
Whistleblower Protection Program,
Occupational Safety and Health
Administration, U.S. Department of
Labor, Room N–3112, 200 Constitution
Avenue NW., Washington, DC 20210;
telephone (202) 693–2199. This is not a
toll-free number. This Federal Register
SUMMARY:
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publication is available in alternative
formats: large print, electronic file on
computer disk (Word Perfect, ASCII,
Mates with Duxbury Braille System),
and audiotape.
SUPPLEMENTARY INFORMATION:
I. Background
Among other provisions of the
Implementing Recommendations of the
9/11 Commission Act of 2007 (9/11
Commission Act), Public Law 110–53,
121 Stat. 266, section 1536 re-enacted
the whistleblower provision in STAA,
49 U.S.C. 31105 (previously referred to
as ‘‘Section 405’’), with certain
amendments. The regulatory revisions
described herein reflect these statutory
changes and also seek to clarify and
improve OSHA’s procedures for
handling STAA whistleblower claims,
as well as to set forth interpretations of
STAA. To the extent possible within the
bounds of applicable statutory language,
these revised regulations are designed to
be consistent with the procedures
applied to claims under other
whistleblower statutes administered by
OSHA, including Section 211 of the
Energy Reorganization Act of 1974
(ERA), 42 U.S.C. 5851, the Wendell H.
Ford Aviation Investment and Reform
Act for the 21st Century (AIR21), 49
U.S.C. 42121, and Title VIII of the
Sarbanes-Oxley Act of 2002 (SOX), 18
U.S.C. 1514A. Responsibility for
receiving and investigating complaints
under 49 U.S.C. 31105 has been
delegated by the Secretary of Labor
(Secretary) to the Assistant Secretary of
Labor for Occupational Safety and
Health (Assistant Secretary). Secretary’s
Order 1–2012 (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 administrative law
judges (ALJs) are decided by the
Department of Labor’s Administrative
Review Board (ARB) (Secretary’s Order
1–2010), 75 FR 3924–01 (Jan. 25, 2010).
II. Summary of Statutory Changes to
STAA Whistleblower Provisions
The 9/11 Commission Act amended
49 U.S.C. 31105, and the related
definitions provision at 49 U.S.C. 31101,
by making the changes described below.
Expansion of Protected Activity
Before passage of the 9/11
Commission Act, STAA protected
certain activities related to commercial
motor vehicle safety. The 9/11
Commission Act expanded STAA’s
coverage to commercial motor vehicle
security. In particular, 49 U.S.C.
31105(a)(1)(A) previously made it
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unlawful for a person to discharge,
discipline, or discriminate against an
employee regarding pay, terms, or
privileges of employment because the
employee, or another person at the
employee’s request, filed a complaint or
began a proceeding related to a violation
of a commercial motor vehicle safety
regulation, standard or order, or testified
or planned to testify in such a
proceeding. The 9/11 Commission Act
expanded this provision to include
complaints and proceedings related to
violations of commercial motor vehicle
security regulations, standards, and
orders.
Prior to the 2007 amendments,
paragraph (a)(1)(B)(i) of STAA’s
whistleblower provision prohibited a
person from discharging, disciplining,
or discriminating against an employee
regarding pay, terms or privileges of
employment for refusing to operate a
vehicle in violation of a regulation,
standard, or order related to commercial
motor vehicle safety or health. The
statute also protected any employee
who refused to operate a vehicle
because he or she had a reasonable
apprehension of serious injury to
himself or herself or the public because
of the vehicle’s unsafe condition. The
recent STAA amendments expanded
these protections to cover: (1) Any
employee who refuses to operate a
vehicle in violation of regulations,
standards, or orders related to
commercial motor vehicle security; and
(2) any employee who refuses to operate
a vehicle because he or she has a
reasonable apprehension of serious
injury to himself or herself or the public
due to the vehicle’s hazardous security
condition.
Before the statutory amendments,
paragraph (a)(2) of STAA’s
whistleblower provision provided that
an employee’s apprehension of serious
injury was reasonable only if a
reasonable person in the circumstances
then confronting the employee would
have concluded that the ‘‘unsafe
condition’’ of the vehicle established a
real danger of accident, injury, or
serious impairment to health. Moreover,
to qualify for protection under this
provision the employee had to have
sought from the employer, and been
unable to obtain, correction of the
‘‘unsafe condition.’’ The August 2007
amendments replaced the term ‘‘unsafe
condition’’ with the phrase ‘‘hazardous
safety or security condition’’ throughout
this paragraph.
The 9/11 Commission Act added a
new paragraph to 49 U.S.C.
31105(a)(1)(A)(ii), making it unlawful
for a person to discharge, discipline or
discriminate against an employee
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regarding pay, terms or privileges of
employment because of a perception
that the employee has filed or is about
to file a complaint or has begun or is
about to bring a proceeding concerning
a violation of a commercial motor
vehicle safety or security regulation,
standard, or order. Paragraph (a)(1)(C) of
49 U.S.C. 31105 is also new and makes
it unlawful to discharge, discipline, or
discriminate against an employee
regarding pay, terms, or privileges of
employment because the employee
accurately reports hours on duty
pursuant to 49 U.S.C. Chapter 315. The
recent statutory amendments also added
paragraph (a)(1)(D) to 49 U.S.C. 31105.
This paragraph prohibits discharging,
disciplining or discriminating against an
employee regarding pay, terms or
privileges of employment because the
employee cooperates, or is perceived as
being about to cooperate, with a safety
or security investigation by the
Secretary of Transportation, the
Secretary of Homeland Security, or the
National Transportation Safety Board.
Finally, the 9/11 Commission Act
inserted paragraph (a)(1)(E) into 49
U.S.C. 31105. This provision prohibits a
person from discharging, disciplining,
or discriminating against an employee
regarding pay, terms or privileges of
employment because the employee
furnishes, or is perceived as having
furnished or being about to furnish,
information to the Secretary of
Transportation, the Secretary of
Homeland Security, the National
Transportation Safety Board, or any
Federal, State, or local regulatory or law
enforcement agency about the facts
concerning any accident or incident
resulting in injury or death to an
individual or damage to property
occurring in connection with
commercial motor vehicle
transportation.
Legal Burdens of Proof for STAA
Complaints
Prior to the 9/11 Commission Act, the
parties’ burdens of proof in STAA
actions were understood to be analogous
to those developed for retaliation claims
under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. 2000e et seq. See, e.g.,
Clean Harbors Envtl. Servs., Inc. v.
Herman, 146 F.3d 12, 21–22 (1st Cir.
1998); Yellow Freight Sys., Inc. v. Reich,
27 F.3d 1133, 1138 (6th Cir. 1994). The
plaintiff’s prima facie case could be
carried by a sufficient showing that (1)
he or she engaged in protected activity;
(2) he or she suffered an adverse action;
and (3) a causal connection existed
between the two events. Id. The ARB
also required proof that the employer
was aware that the employee had
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engaged in the protected activity. See,
e.g., Baughman v. J.P. Donmoyer, Inc.,
No. 05–1505, 2007 WL 3286335, at *3
(ARB Oct. 31, 2007).
Once the complainant made this
showing, an inference of retaliation
arose and the burden shifted to the
employer to produce evidence of a
legitimate, non-retaliatory reason for the
adverse action. Clean Harbors, 146 F.3d
at 21; Yellow Freight, 27 F.3d at 1138.
If the employer met this burden of
production, the inference of retaliation
was rebutted and the burden shifted
back to the complainant to show by a
preponderance of the evidence that the
legitimate reason was a pretext for
unlawful retaliation. Id. Where there
was evidence that the employer acted
out of mixed motives, i.e., it acted for
both permissible and impermissible
reasons, the employer bore ‘‘the burden
of establishing by a preponderance of
the evidence that it would have taken
the adverse employment action in the
absence of the employee’s protected
activity.’’ Clean Harbors, 146 F.3d at
21–22.
The 9/11 Commission Act amended
paragraph (b)(1) of 49 U.S.C. 31105 to
state that STAA whistleblower
complaints will be governed by the legal
burdens of proof set forth in AIR21 at 49
U.S.C. 42121(b). AIR21 contains
whistleblower protections for
employees in the aviation industry.
Under AIR21, a violation may be found
only if the complainant demonstrates
that protected activity was a
contributing factor in the adverse action
described in the complaint. 49 U.S.C.
42121(b)(2)(B)(iii). Relief is unavailable
if the employer demonstrates by clear
and convincing evidence that it would
have taken the same adverse action in
the absence of the protected activity. 49
U.S.C. 42121(b)(2)(B)(iv). See Vieques
Air Link, Inc. v. Dep’t of Labor, 437 F.3d
102, 108–09 (1st Cir. 2006) (per curiam)
(burdens of proof under AIR21).
Written Notification of Complaints and
Findings
Prior to the 9/11 Commission Act,
STAA’s whistleblower provision
required the Secretary to notify persons
when complaints were filed against
them. The statute has now been
amended at paragraph (b)(1) to clarify
that this notice must be in writing.
Similarly, the 9/11 Commission Act
amended paragraph (b)(2)(A) of 49
U.S.C. 31105 to clarify that the
Secretary’s findings must be in writing.
Expansion of Remedies
Paragraph (b)(3)(A) of 49 U.S.C. 31105
previously compelled the Secretary,
upon finding a violation of STAA’s
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whistleblower provision, to order the
employer to take affirmative action to
abate the violation, reinstate the
complainant to his or her former
position with the same pay and terms
and privileges of employment, and pay
compensatory damages, including
backpay. The 9/11 Commission Act
amended paragraph (b)(3)(A)(iii) to
reflect existing law on damages in
STAA whistleblower cases and
expressly provide for the award of
interest on backpay as well as
compensation for any special damages
sustained as a result of the unlawful
discrimination, including litigation
costs, expert witness fees, and
reasonable attorney fees. The 2007
amendments also added a new
provision to 49 U.S.C. 31105, paragraph
(b)(3)(C), authorizing punitive damage
awards of up to $250,000.
De Novo Review
The August 2007 amendments added
paragraph (c) to 49 U.S.C. 31105. That
paragraph provides for de novo review
of a STAA whistleblower claim by a
United States district court in the event
that the Secretary has not issued a final
decision within 210 days after the filing
of a complaint and the delay is not due
to the complainant’s bad faith. The
provision provides that the court will
have jurisdiction over the action
without regard to the amount in
controversy and that the case will be
tried before a jury at the request of
either party.
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Preemption and Employee Rights
The 9/11 Commission Act added a
new provision to 49 U.S.C. 31105 at
paragraph (f) clarifying that nothing in
the statute preempts or diminishes any
other safeguards against discrimination
provided by Federal or State law. The
2007 amendments to STAA also added
a provision at paragraph (g) in 49 U.S.C.
31105 stating that nothing in STAA
shall be deemed to diminish the rights,
privileges, or remedies of any employee
under any Federal or State law or under
any collective bargaining agreement.
New paragraph (g) further states that
rights and remedies under 49 U.S.C.
31105 ‘‘may not be waived by any
agreement, policy, form, or condition of
employment.’’
Miscellaneous Provisions
The 9/11 Commission Act added a
new provision to 49 U.S.C. 31105 at
paragraph (h) regarding the
circumstances in which the Secretary of
Transportation and the Secretary of
Homeland Security may disclose the
names of employees who have provided
information about certain alleged
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III. Summary of Rulemaking
Proceedings
General Comments
NWC made several comments
addressing particular provisions of the
rule. These comments have been
addressed, and changes to the regulatory
provisions have been explained in the
Summary and Discussion of Regulatory
Provisions (below), where applicable.
GAP commented that ‘‘these rules
reasonably interpret statutory
requirements and in some instances
[will] significantly improve [OSHA]
procedures to investigate whistleblower
complaints.’’ GAP specifically
expressed support for the following
provisions: .103(b), .103(d), .104(c),
.104(d), and certain aspects of .104(f).
Finally, TTD expressed its support for
the interim final rules in general,
commenting that the ‘‘rules implement
improved procedures for handling
whistleblower complaints under
[STAA].’’ TTD believes that the changes
‘‘provide important protections for
transportation workers,’’ and TTD
applauded OSHA for moving forward
with the rulemaking. TTD’s comments
went on to suggest some changes and
modifications to other interim final
rules that were submitted on the same
docket as the STAA interim final rule,
namely the Procedures for the Handling
of Retaliation Complaints Under the
National Transit System Security Act
and the Federal Railroad Safety Act.
Those specific comments were not
relevant to STAA and thus have not
been addressed in the regulatory text.
On August 31, 2010, OSHA published
in the Federal Register an IFR
implementing statutory changes to
STAA enacted into law on August 3,
2007, as part of the 9/11 Commission
Act, Public Law 110–53, 121 Stat. 266,
as well as making other improvements
to Part 1978. 75 FR 53544 (Aug. 31,
2010). In addition to promulgating the
IFR, OSHA’s notice included a request
for public comment on the interim rules
by November 1, 2010. There were no
objections to most of the IFR and thus
OSHA has adopted the IFR, except as
noted.
In response to the IFR, three
organizations—the Government
Accountability Project (GAP), the
National Whistleblower Center (NWC),
and the Transportation Trades
Department, AFL–CIO (TTD), filed
comments with the agency within the
public comment period. OSHA has
reviewed and considered these
comments and now adopts this final
rule, which has been revised in part to
address problems perceived by the
agency and the commenters.
IV. Summary and Discussion of
Regulatory Provisions
The regulatory provisions in this part
have been made to reflect the 9/11
Commission Act’s amendments to
STAA, to make other improvements to
the procedures for handling STAA
whistleblower cases, to interpret some
provisions of STAA, and, to the extent
possible within the bounds of
applicable statutory language, to be
consistent with regulations
implementing the whistleblower
provisions of the following statutes,
among others, that are also administered
and enforced by OSHA: the Safe
Drinking Water Act, 42 U.S.C. 300j–9(i);
the Federal Water Pollution Control Act,
33 U.S.C. 1367; the Toxic Substances
Control Act, 15 U.S.C. 2622; the Solid
Waste Disposal Act, 42 U.S.C. 6971; the
Clean Air Act, 42 U.S.C. 7622; the ERA;
the Comprehensive Environmental
Response, Compensation and Liability
Act of 1980, 42 U.S.C. 9610 (all
regulations for these statutory
provisions jointly codified at 29 CFR
part 24); AIR21, codified at 29 CFR part
1979; SOX, codified at 29 CFR part
violations. In addition, the amendments
added a new paragraph (i) to 49 U.S.C.
31105, which provides that the
Secretary of Homeland Security will
establish a process by which any person
may report motor carrier vehicle
security problems, deficiencies or
vulnerabilities. Neither of these
amendments significantly impacts
OSHA’s handling of whistleblower
complaints under STAA.
Definition of ‘‘Employee’’
Definitions applicable to STAA are
found at 49 U.S.C. 31101. That section
defines ‘‘employee’’ as a driver of a
commercial motor vehicle (including an
independent contractor when
personally operating a commercial
motor vehicle), a mechanic, a freight
handler, or an individual not an
employer, who (i) directly affects
commercial motor vehicle safety in the
course of employment by a commercial
motor carrier; and (ii) is not an
employee of the Federal, State or local
government acting in the course of
employment. The 9/11 Commission Act
incorporated this definition into the
whistleblower section of STAA, 49
U.S.C. 31105, at paragraph (j), and
expanded it to include employees who
directly affect commercial motor vehicle
security in the course of employment by
a commercial motor carrier.
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1980; the Pipeline Safety Improvement
Act of 2002, 49 U.S.C. 60129, codified
at 29 CFR part 1981; the National
Transit Systems Security Act, 6 U.S.C.
1142, the Federal Railroad Safety Act,
49 U.S.C. 20109, codified at 29 CFR part
1982; and the Consumer Product Safety
Improvement Act, 15 U.S.C. 2087,
codified at 29 CFR part 1983. The
section numbers of these STAA
regulations correspond as closely as
possible with the numbering in the
regulations implementing other
whistleblower statutes administered by
OSHA.
These regulatory provisions use more
appropriate terminology. First, cases
brought under the whistleblower
provisions of STAA are referred to as
actions alleging ‘‘retaliation’’ rather than
‘‘discrimination.’’ This terminology,
which has already been used in the
regulations implementing the ERA and
the other whistleblower statutes covered
by 29 CFR part 24, is not intended to
have substantive effect. It simply
reflects the fact that claims brought
under these whistleblower provisions
are prototypical retaliation claims. A
retaliation claim is a specific type of
discrimination claim that focuses on
actions taken as a result of an
employee’s protected activity rather
than as a result of an employee’s
characteristics (e.g., race, gender, or
religion).
Second, before the issuance of the
IFR, the regulations referred to persons
named in STAA whistleblower
complaints as ‘‘named persons,’’ but in
these regulations they are referred to as
‘‘respondents.’’ Again, this wording is
not intended to have any substantive
impact on the handling of STAA
whistleblower cases. This wording
simply reflects a preference for more
conventional terminology.
Section 1978.100 Purpose and Scope
This section describes the purpose of
the regulations implementing STAA’s
whistleblower provision and provides
an overview of the procedures
contained in the regulations. Paragraph
(a) of this section includes an updated
citation reference to the correct section
of the United States Code where STAA’s
whistleblower provision is located and
to reflect the recent statutory
amendments extending coverage to
activities pertaining to commercial
motor vehicle security matters. Minor
editorial revisions made to paragraph (b)
of this section in the IFR are continued
here.
The express inclusion of certain
provisions in Part 1978 should not be
read to suggest that similar legal
principles may not be implied under
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other OSHA whistleblower rules. In
other words, the canon of construction
expressio unius est exclusio alterius (the
expression of one thing is the exclusion
of another) should not be applied in
comparing these rules to other OSHA
whistleblower rules. See United States
v. Vonn, 535 U.S. 55, 65 (2002) (canon
not applied when contrary to intent of
drafters). For example, the express
references to oral and internal
complaints in these rules do not imply
that oral and internal complaints are not
protected under other OSHA
whistleblower statutes.
Section 1978.101
Definitions
This section includes general
definitions applicable to STAA’s
whistleblower provision. The
definitions are organized in alphabetical
order and minor edits made to clarify
regulatory text in the IFR are adopted
here.
A definition of ‘‘business days’’ in
paragraph (c) clarifies that the term
means days other than Saturdays,
Sundays, and Federal holidays. This
definition is consistent with 29 CFR
1903.22(c), an OSHA regulation
interpreting the analogous term
‘‘working days’’ in section 10 of the
Occupational Safety and Health Act of
1970 (OSH Act), 29 U.S.C. 659, in the
same way.
The regulations in effect before the
IFR defined ‘‘commercial motor carrier’’
as a person who satisfied the definitions
of ‘‘motor carrier’’ and ‘‘motor private
carrier’’ in 49 U.S.C. 10102(13) and
10102(16). The IFR replaced that
definition with: ‘‘Commercial motor
carrier means any person engaged in a
business affecting commerce between
States or between a State and a place
outside thereof who owns or leases a
commercial motor vehicle in connection
with that business, or assigns employees
to operate such a vehicle.’’ This
definition of ‘‘commercial motor
carrier’’ reflects the Secretary’s
longstanding practice of giving that
phrase expansive meaning, i.e.,
including within its reach all motor
carriers in or affecting commerce. See,
e.g., Arnold v. Associated Sand and
Gravel Co., ALJ No. 92–STA–19, 1992
WL 752791, at *3 (Sec’y Aug. 31, 1992)
(appropriate to give the term
‘‘commercial’’ its legal meaning;
‘‘legislative history of the STAA * * *
additionally militates in favor of
construing the term expansively to
describe motor carriers ‘in’ or ‘affecting’
commerce’’). In addition, this definition
of ‘‘commercial motor carrier’’ is more
consistent with the statutory definition
of ‘‘employer.’’ See 49 U.S.C. 31101(3).
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The definition in the IFR has been
adopted here.
The statutory definition of
‘‘commercial motor vehicle’’ in
paragraph (e) included in the IFR has
been revised in the final rule. Rather
than reiterate the statutory definition,
the final rule simply refers to the
definition of this term as provided in
the statute, 49 U.S.C. 31101(1). This
change is intended to ensure that the
regulation refers to the appropriate
statutory definition, should it be
amended in the future. The definition of
‘‘employee’’ reflects the statutory
amendment expanding coverage to
individuals whose work directly affects
commercial motor vehicle security. In
addition, the statutory definitions of
‘‘employer’’ and ‘‘State’’ are in this
section at paragraphs (i) and (n)
respectively, and a paragraph at the end
of this section clarifies that any future
statutory amendments will govern in
lieu of the definitions contained in
section 1978.101. A definition of
‘‘complaint’’ in paragraph (g) clarifies
the scope of activities protected by
STAA’s whistleblower provisions. See
discussion of section 1978.102
(Obligations and prohibited acts) below.
The definition of ‘‘complainant’’ in
paragraph (f) in the IFR has been
changed slightly. The word
‘‘whistleblower’’ has been deleted
because it is unnecessary.
A sentence has been added to the
definition of ‘‘employee’’ in section
1978.101(h) to include former
employees and applicants. Such
language is included in the definition of
‘‘employee’’ in other OSHA
whistleblower rules, such as those
under the National Transit Systems
Security Act and the Federal Railroad
Safety Act (29 CFR 1982.101(d)), SOX
(29 CFR 1980.101(g)), and the OSH Act
(29 CFR 1977.5(b)). This interpretation
is consistent with the Supreme Court’s
interpretation of the term ‘‘employee’’ in
42 U.S. C. 2000e–3a, the anti-retaliation
provision of Title VII of the Civil Rights
Act of 1964, to include former
employees. Robinson v. Shell Oil Co.,
519 U.S. 337 (1997). Among the Court’s
reasons for this interpretation were the
lack of temporal modifiers for the term
‘‘employee’’; the reinstatement remedy,
which only applies to former
employees; and the remedial purpose of
preventing workers from being deterred
from whistleblowing because of a fear of
blacklisting. These reasons apply
equally to the anti-retaliation provision
of STAA and the other whistleblower
provisions enforced by OSHA.
The definition of ‘‘person’’ in
paragraph (k) is basically the same as
the one in the IFR except for the
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addition of ‘‘organized’’ before the word
‘‘group.’’ The definition reflects the
statutory definition of ‘‘person’’ for the
STAA whistleblower provision in 49
App. U.S.C. 2301(4) that existed before
the 1994 codification of Title 49 of the
United States Code, dealing with
transportation. See Public Law 103–272,
108 Stat. 984. The provision at 49 App.
U.S.C. 2301(4) stated: ‘‘ ‘person’ means
one or more individuals, partnerships,
associations, corporations, business
trusts, or any other organized group of
individuals.’’ The definition of ‘‘person’’
was deleted from the codification
because it was regarded as unnecessary
due to the Dictionary Act’s definition of
‘‘person’’ in 1 U.S.C. 1, which states that
the term ‘‘includes’’ entities, such as
individuals and corporations, which for
the most part are the same as the entities
listed in the definition in this rule. See
note after 49 U.S.C. 31101. Changes in
codifications are not intended to make
substantive changes in a statute unless
the congressional intent to do so is
clear. Muniz v. Hoffman, 422 U.S. 454,
472 n.11 (1975); Carbo v. United States,
364 U.S. 611, 618–19 (1961). The
congressional intent to rely on the
definition of ‘‘person’’ in 1 U.S.C. 1 does
not indicate an intent to change the
definition. Practically all of the entities
listed in 49 App. U.S.C. 2314 are the
same as the ones specifically listed in 1
U.S.C. 1. Some of the entities are
different, but the Dictionary Act
definition, using the word ‘‘includes,’’ is
not an exclusive list. Federal Land Bank
v. Bismarck Lumber Co., 314 U.S. 95,
100 (1941) (‘‘* * * term ‘including’ is
not one of all-embracing definition, but
connotes simply an illustrative
application of the general principle.’’).
Furthermore, because the term ‘‘person’’
includes an individual and it is a
‘‘person’’ who is prohibited from
engaging in the retaliation described in
49 U.S.C. 31105, a corporate officer or
other individual responsible for the
retaliation is individually liable under
the STAA whistleblower provision.
Smith v. Lake City Enterprises, Inc.,
Crystle Morgan, and Donald Morgan,
Nos. 09–033, 08–091, 2010 WL 3910346,
at *6 (ARB Sept. 24, 2010) (corporate
president and sole shareholder
individually liable under STAA), citing
Wilson v. Bolin Assocs., Inc., ALJ No.
1991–STA–004 (Sec’y Dec. 30, 1991).
Section 1978.102 has been corrected to
reflect the fact that the statute imposes
obligations on ‘‘person[s].’’
Section 1978.102 Obligations and
Prohibited Acts
This section describes the activities
that are protected under STAA and the
conduct that is prohibited in response to
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any protected activities. Insertion of this
section in the IFR resulted in the
renumbering of many subsequent
sections; that renumbering is continued
in the final rule. The discussion below
highlights some significant
interpretations of STAA in these
provisions, but it is by no means
exhaustive.
Among other prohibited acts, it is
unlawful under STAA for a person to
retaliate against an employee because
the employee, or someone acting
pursuant to the employee’s request, has
filed a complaint related to a violation
of a commercial motor vehicle safety or
security regulation, standard or order.
49 U.S.C. 31105(a)(1)(A)(i). STAA’s
whistleblower provision also prohibits a
person from retaliating against an
employee because the person perceives
that the employee has filed or was about
to file such a complaint. 49 U.S.C.
31105(a)(1)(A)(ii).
The Secretary has long taken the
position that these provisions of STAA,
as well as similarly worded provisions
in other whistleblower statutes enforced
by OSHA, cover both written and oral
complaints to the employer or a
government agency. The U.S. Supreme
Court held that an analogous
whistleblower provision in the Fair
Labor Standards Act (FLSA), 29 U.S.C.
215(a)(3), protects oral as well as written
complaints. Kasten v. Saint-Gobain
Performance Plastics Corp., 131 S.Ct.
1325, 1329 (2011). Among other things,
the FLSA forbids employers from
discriminating against any employee
‘‘because such employee has filed any
complaint.’’ Although the Court
examined ‘‘filed any complaint’’ in the
FLSA, the decision is applicable to
analogous language in STAA, as well as
in other OSHA whistleblower statutes.
See Northcross v. Board of Education of
the Memphis City Schools, 412 U.S. 427,
427–28 (1973) (statutes in pari materia
should be construed similarly).
Specifically, Congress’s intent in
passing the whistleblower provision of
STAA was to encourage employee
reporting of noncompliance with safety
regulations. Brock v. Roadway Exp.,
Inc., 481 U.S. 252, 258 (1987). As with
the FLSA, those employees who are in
the best position to report complaints
under this provision may find it
difficult or impractical to reduce a
complaint to writing. It is particularly
important for STAA to cover oral as
well as written complaints because in
many cases truck drivers are out on the
road and the only way they can
communicate immediate concerns about
violations of safety and security
regulations is via CB radio or phone.
Requiring that complaints of safety
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concerns and violations be in writing
would undermine the basic purpose of
the statute. Furthermore, since the
passage of the STAA whistleblower
provision, the ARB and federal courts
have consistently held that protected
activity under STAA includes oral,
informal, and unofficial complaints
about violations of commercial motor
vehicle regulations. See, e.g., Harrison
v. Roadway Express, Inc., No. 00–048,
2002 WL 31932546, at *4 (ARB Dec. 31,
2002) (‘‘[C]omplaints about violations of
commercial motor vehicle regulations
may be oral, informal or unofficial.’’),
aff’d on other grounds, 390 F.3d 752 (2d
Cir. 2004); see also, e.g., Calhoun v.
Dep’t of Labor, 576 F.3d 201, 212 (4th
Cir. 2009) (citing Yellow Freight Sys.,
Inc. v. Reich, 8 F.3d 980, 986 (4th Cir.
1993)) for the proposition that ‘‘written
or oral’’ complaints can be protected
under STAA). Cf. Power City Elec., Inc.,
No. C–77–197, 1979 WL 23049, at *2
(E.D. Wash. Oct. 23, 1979) (noting that
the term ‘‘filed’’, as used in Section
11(c) of the Occupational Safety and
Health Act, 29 U.S.C. 660(c), ‘‘is not
limited to a written form of
complaint.’’). As the Court noted in
Kasten, long-standing interpretations
suggest that such views are
‘‘reasonable’’ and ‘‘consistent with the
Act.’’ Kasten, 131 S.Ct. at 1335. For
these reasons, sections 1978.102(b)(1)
and 1978.102(e)(1) cover the filing of
written and oral complaints with
employers or government agencies, and
the definition of the term ‘‘complaint,’’
reflecting this intent, in the IFR in
section 1978.101 is reiterated here.
Similarly, the words ‘‘orally or in
writing’’ have been added after the
words ‘‘filed’’ and ‘‘file’’ in sections
1978.102(b)(1) and .102(e)(2) to clarify
that the protected activity includes oral
as well as written communication.
Sections 1978.102(b)(1) and
1978.102(e)(2) clarify the long-standing
position of the Secretary, supported by
the courts of appeals, that under STAA
and other OSHA whistleblower statutes
the filing of a complaint is protected,
whether the complaint is filed with an
employer, a government agency, or
others. Similarly, the definition of
‘‘complaint’’ in section 1978.101(g)
states that the term includes complaints
to employers, government agencies, and
others. See 29 CFR 1977.9(c) (section
11(c) of the OSH Act protects
complaints to an employer); McKoy v.
North Fork Services Joint Venture, No.
04–176, 2007 WL 1266925, at *3 (ARB
Apr. 30, 2007) (complaining to
employer about violations of
environmental statutes is protected
activity). STAA does not specify the
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entities to whom a complaint may be
filed in order to be protected. The
preamble to the interim final rule noted:
‘‘The Secretary has long taken the
position that these provisions of STAA,
as well as similarly worded provisions
in other whistleblower statutes enforced
by OSHA, cover both written and oral
complaints to the employer or a
government agency.’’ 75 FR 53544,
53547 (Aug. 31, 2010) (emphasis
added). In particular, the Secretary has
ruled that complaints to an employer
are protected under STAA in order to
promote the statute’s goal of highway
safety. Israel v. Branrich, Inc., No. 09–
069, 2011 WL 5023051, at *4 (ARB Sept.
29. 2011); Davis v. H.R. Hill, Inc., ALJ
No.1986–STA–018 (Sec’y Mar. 19,
1987). This interpretation has been
adopted by courts of appeals. Calhoun
v. Dep’t of Labor, 576 F.3d 201, 212 (4th
Cir. 2009); Clean Harbors Envt’l
Services, Inc. v. Herman, 146 F.3d 12,
19–21 (1st Cir. 1998). Cf. Minor v.
Bostwick Laboratories, Inc., 669 F.3d
428 (4th Cir. 2012) (analogous antiretaliation provision of Fair Labor
Standards Act protects complaints to an
employer).
In describing the conduct that is
prohibited under STAA, the final rule
adds the words ‘‘harass, suspend,
demote’’ to paragraphs (b), (c), and (e)
to make this rule more consistent with
other OSHA whistleblower rules.
Section 1978.103 Filing of Retaliation
Complaints
This section (formerly section
1978.102) was revised in the IFR to
make it more consistent with the
regulatory procedures for other OSHAadministered whistleblower laws; that
revision is adopted here with minor
editorial corrections.
Complaints filed under STAA’s
whistleblower provision need not be in
any particular form. Complainants have
always been permitted to file STAA
whistleblower complaints either orally
or in writing. In light of this
longstanding practice, OSHA will
continue to accept STAA whistleblower
complaints in either oral or written
form. Allowing STAA whistleblower
complaints to be filed orally is also
consistent with OSHA’s practice under
other OSHA whistleblower laws.
Language has been added to paragraph
(b) to clarify that when a complaint is
made orally, OSHA will reduce the
complaint to writing. In addition,
paragraph (b) provides that if an
employee is not able to file a complaint
in English, OSHA will accept the
complaint in any other language.
Language in paragraph (c) of the IFR
providing that the complaint should be
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filed with the ‘‘* * * OSHA Area
Director responsible for enforcement
activities in the geographical area where
the employee resides or was employed
* * *’’ has been changed. ‘‘Area
Director’’ has been changed to ‘‘office’’
in recognition of the possibility that
organizational changes may take place.
Language in paragraph (d) clarifies the
date on which a complaint will be
considered ‘‘filed,’’ i.e., the date of
postmark, facsimile transmittal,
electronic communication transmittal,
telephone call, hand-delivery, delivery
to a third-party commercial carrier, or
in-person filing at an OSHA office. To
be timely, a complaint must be filed
within 180 days of the occurrence of the
alleged violation. Under Delaware State
College v. Ricks, 449 U.S. 250, 258
(1980), this is considered to be when the
retaliatory decision has been both made
and communicated to the complainant.
In other words, the limitations period
commences once the employee is aware
or reasonably should be aware of the
employer’s decision. Equal Emp’t
Opportunity Comm’n v. United Parcel
Serv., Inc., 249 F.3d 557, 561–62 (6th
Cir. 2001).
Provisions dealing with tolling of the
180-day period for the filing of STAA
whistleblower complaints were deleted
in the IFR for consistency with other
OSHA whistleblower regulations, which
do not contain this language; the final
rule makes no changes in this regard.
This revision is not intended to change
the way OSHA handles untimely
complaints under any whistleblower
laws. A sentence in the regulatory text
clarifies that filing deadlines may still
be tolled based on principles developed
in applicable case law. See, e.g.,
Donovan v. Hahner, Foreman &
Harness, Inc., 736 F.2d 1421, 1423–29
(10th Cir. 1984).
Finally, paragraph (e), ‘‘Relationship
to Section 11(c) complaints,’’ conforms
to similar provisions implementing
other OSHA whistleblower programs
and more clearly describes the
relationship between Section 11(c)
complaints and STAA whistleblower
complaints. Section 11(c) of the OSH
Act generally prohibits employers from
retaliating against employees for filing
safety or health complaints or otherwise
initiating or participating in proceedings
under the OSH Act. In some
circumstances an employee covered by
STAA may engage in activities that are
protected under STAA and Section
11(c) of the OSH Act. For example, a
freight handler loading cargo onto a
commercial motor vehicle may
complain about both the overloading of
that vehicle (a safety complaint
protected by STAA) and also about an
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unsafe forklift (a safety complaint
covered by the OSH Act). In practice,
OSHA would investigate whether either
or both of these protected activities
caused the firing. Paragraph (e) now
clarifies that STAA whistleblower
complaints that also allege facts
constituting an 11(c) violation will be
deemed to have been filed under both
statutes. Similarly, Section 11(c)
complaints that allege facts constituting
a violation of STAA’s whistleblower
provision will also be deemed to have
been filed under both laws. In these
cases, normal procedures and timeliness
requirements under the respective
statutes and regulations will be
followed.
OSHA notes that a complaint of
retaliation filed with OSHA under
STAA 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 Case No. 07–123, 2011 WL
2165854, at *9–10 (ARB May 26, 2011)
(holding whistleblower complaints filed
with OSHA under analogous provisions
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, the
Assistant Secretary 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 1978.104(e). As
explained in section 1978.104(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 49 U.S.C.
42121(b)(2), 29 CFR 1978.104(e).
Section 1978.104 Investigation
This section (formerly section
1978.103) more closely conforms to the
regulations implementing other
whistleblower provisions administered
by OSHA. Former paragraph (f) in
section 1978.102, which deals with the
notice sent to employers when
complaints are filed against them, is in
paragraph (a) in section 1978.104, where
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it more appropriately appears under the
‘‘Investigation’’ heading. In addition,
OSHA here adopts minor revisions
made to that paragraph in the IFR to be
more consistent with similar provisions
in other OSHA whistleblower
regulations. Of particular note, OSHA
adopts language in the IFR which was
added requiring OSHA to send the
Federal Motor Carrier Safety
Administration (FMCSA) a copy of the
notice that goes to the employer. This
has been standard practice in any event.
Minor editorial changes to the language
of the IFR have been made.
Former section 1978.103(a), which
simply stated that OSHA would
investigate and gather data as it deemed
appropriate, was deleted in the IFR as
unnecessary; that deletion remains. The
language in paragraph (a) of the IFR
relating to the provision of information
to respondent’s counsel has been
deleted because when the respondent is
first notified about the complaint the
respondent is usually not represented
by counsel. Paragraph (b) conforms to
other OSHA whistleblower regulations.
Language describing the persons who
can be present and the issues that can
be addressed at OSHA’s meetings with
respondents was deleted in the IFR and
is not present in the final rule, but this
deletion is not substantive.
Paragraph (c) specifies that
throughout the investigation the agency
will provide to the complainant (or the
complainant’s legal counsel, if the
complainant is represented by counsel)
a copy of all of respondent’s
submissions to the agency that are
responsive to the complainant’s
whistleblower complaint. Before
providing such materials to the
complainant, the agency will redact
them, if necessary, in accordance with
the Privacy Act of 1974, 5 U.S.C. 552a,
and other applicable confidentiality
laws. The phrase ‘‘if necessary’’ has
been added because not all of
respondent’s submissions will contain
confidential information. Paragraph (d)
addresses confidentiality in
investigations. Minor editorial changes
have been made.
Paragraph (e) reflects the
incorporation of the AIR21 burdens of
proof provision by the second sentence
of 49 U.S.C. 31105(b)(1), which was
added by the 9/11 Commission Act.
This paragraph generally conforms to
similar provisions in the regulations
implementing the AIR21 and ERA
whistleblower laws. All of these statutes
now require that a complainant make an
initial prima facie showing that
protected activity was ‘‘a contributing
factor’’ in the adverse action alleged in
the complaint, i.e., that the protected
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activity, alone or in combination with
other factors, affected in some way the
outcome of the employer’s decision.
Ferguson v. New Prime, Inc., No. 10–75,
2011 WL 4343278, at *3 (ARB Aug. 31,
2011); Clarke v. Navajo Express, No. 09–
114, 2011 WL 2614326, at *3 (ARB June
29, 2011). The complainant will be
considered to have met the required
burden if the complaint on its face,
supplemented as appropriate through
interviews of the complainant, alleges
the existence of facts and either direct
or circumstantial evidence to meet the
required showing. Complainant’s
burden may be satisfied, for example, if
he or she shows that the adverse action
took place shortly after protected
activity, giving rise to the inference that
it was a contributing factor in the
adverse action. Language from some of
OSHA’s other whistleblower
regulations, including those
implementing AIR21 and ERA, setting
forth specific elements of the
complainant’s prima facie case, has
been carried over into these regulations.
The revised STAA provision
specifically bans retaliation against
employees because of their perceived
protected activity. This provision
clarifies existing whistleblower law. See
Reich v. Hoy Shoe Co., 32 F.3d 361, 368
(8th Cir. 1994) (‘‘Construing § 11(c), the
OSH Act’s anti-retaliation provision, to
protect employees from adverse
employment actions because they are
suspected of having engaged in
protected activity is consistent with
* * * the specific purposes of the antiretaliation provisions.’’). However, the
references in this section to perceived
protected activity have been deleted
here because the concept is covered by
the language of paragraph (e)(2)(ii) on
suspected protected activity. Also, the
final rule adds language clarifying that
the revised STAA provision protects not
only actual protected activity but also
activity about to be undertaken.
If the complainant does not make the
required prima facie showing, the
investigation must be discontinued and
the complaint dismissed. See Trimmer
v. U.S. Dep’t of Labor, 174 F.3d 1098,
1101 (10th Cir. 1999) (noting that the
burden-shifting framework of the ERA,
which is the same framework now
found in the AIR21 law and STAA,
served a ‘‘gatekeeping function’’ that
‘‘stemm[ed] frivolous complaints’’).
Even in cases where the complainant
successfully makes a prima facie
showing, the investigation must be
discontinued if the employer
demonstrates, by clear and convincing
evidence, that it would have taken the
same adverse action in the absence of
the protected activity. Cf. Ferguson,
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supra (analogous burden shift in
litigation); Clarke, supra (same). Thus,
OSHA must dismiss a complaint under
STAA and not investigate (or cease
investigating) if either: (1) The
complainant fails to meet the prima
facie showing that protected activity or
the perception of protected activity was
a contributing factor in the adverse
action; or (2) the employer rebuts that
showing by clear and convincing
evidence that it would have taken the
same adverse action absent the
protected activity or the perception
thereof. The final rule makes other
minor editorial corrections.
Former section 1978.103(c) was
moved to paragraph (f) of this section in
the IFR; that change remains. In the IFR
minor revisions were made to this
paragraph to conform to similar
paragraphs in the regulations
implementing the AIR21 and SOX
whistleblower provisions; those changes
remain. The provision allows 10
business days (rather than 5 days) for
the respondent to present evidence in
support of its position against an order
of preliminary reinstatement. Paragraph
(f) of this section has been revised to
provide complainants with copies of the
same materials provided to respondents
under this paragraph, except to the
extent that confidentiality laws require
redaction.
NWC and GAP commented on the
provisions in section 1978.104. 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.
NWC also suggested that the phrase
‘‘other applicable confidentiality laws’’
be replaced with more specific language
describing the confidentiality laws that
might apply to a respondent’s answer.
GAP commented that while it was
pleased with the provisions in section
1978.104 providing copies of
respondent’s submissions to
complainants and protecting witness
confidentiality, it was concerned that
the procedures under section
1978.104(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 1978.104(f).
OSHA agrees with NWC and GAP that
the input of both parties in the
investigation is important to ensuring
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that OSHA reaches the proper outcome
during its investigation. To that end, in
response to the comments, the
procedures under STAA have been
revised to contain the following
safeguards aimed at ensuring that
complainants and respondents have
equal access to information during the
course of the OSHA investigation:
• Section 1978.104(c) provides that,
throughout the investigation, the agency
will 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, with
confidential information redacted as
necessary, and the complainant will
have an opportunity to respond to such
submissions; and
• Section 1978.104(f) provides that
the complainant will receive a copy of
the materials that must be provided to
the respondent under that paragraph,
with confidential information redacted
as necessary.
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,
OSHA anticipates that the vast majority
of respondent submissions will not be
subject to any confidentiality laws.
However, 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
confidential business information, the
disclosure of which would violate the
Trade Secrets Act, 18 U.S.C. 1905.
While the agency recognizes that a
respondent must meet a high standard
to show that the information it submits
is protected and that it has a
responsibility to independently evaluate
claims that submissions contain
confidential business information not
subject to disclosure, it believes that the
provision as drafted appropriately
allows it to address legitimate claims of
confidentiality.
With regard to GAP’s comment that
section 1978.104(f) should be removed,
OSHA notes the purpose of 1978.104(f)
is to ensure compliance with the Due
Process Clause of the Fifth Amendment,
as interpreted in the Supreme Court’s
ruling in Brock v. Roadway Express,
Inc., 481 U.S. 252, 264 (1987), requiring
OSHA to give the respondent the
opportunity to review the substance of
the evidence and respond, prior to
ordering preliminary reinstatement.
Nonetheless, while recognizing that
the purpose of section 1978.104(f) is to
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ensure that the respondents have been
afforded due process prior to OSHA
ordering preliminary reinstatement,
OSHA appreciates that complainants
wish to stay informed regarding their
cases and may continue to have
valuable input, even at this late stage in
the investigation. Thus, under these
rules, OSHA will provide complainants
with a copy of the materials sent to the
respondent under section 1978.104(f),
with materials redacted in accordance
with confidentiality laws.
Section 1978.105 Issuance of Findings
and Preliminary Orders
Paragraph (a) in section 1978.104, as
it existed before the IFR, now at
paragraph (a) in this section, was
updated in the IFR to reflect the recent
amendments to STAA expanding
available remedies; the final rule adopts
those revisions. Minor editorial
corrections have been made in the final
rule. If the Assistant Secretary
concludes that there is reasonable cause
to believe that a violation has occurred,
he or she will order appropriate relief.
Such order will include, where
appropriate: a requirement that the
respondent take affirmative action to
abate the violation; reinstatement of the
complainant to his or her former
position with the same compensation,
terms, conditions and privileges of the
complainant’s employment; payment of
compensatory damages (backpay with
interest and compensation for any
special damages sustained as a result of
the retaliation, including any litigation
costs, expert witness fees, and
reasonable attorney fees which the
complainant has incurred); and
payment of punitive damages up to
$250,000. The final rule adds the words
‘‘take affirmative action’’ in connection
with abatement of the violation because
the statute uses this important term of
labor law, found in the National Labor
Relations Act at 29 U.S.C. 160(c) and
Title VII of the Civil Rights Act of 1964,
as amended, at 42 U.S.C. 2000e–5(g)(1).
The word ‘‘same’’ has been inserted
before ‘‘compensation’’ because this
language is in the statute. A minor
wording change, the deletion of the
word ‘‘together’’, has been made in the
final rule. The discussion of punitive
damages has been put in a separate
sentence to track the statute.
In appropriate circumstances, in lieu
of preliminary reinstatement, OSHA
may order that the complainant receive
the same pay and benefits that he or she
received prior to his or her termination,
but not actually return to work. Smith,
supra, at *8 (front pay under STAA).
Such front pay or economic
reinstatement is also employed in cases
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arising under Section 105(c) of the
Federal Mine Safety and Health Act of
1977, 30 U.S.C. 815(c)(2). See, e.g.,
Secretary of Labor ex rel. York v. BR&D
Enters., Inc., 23 FMSHRC 697, 2001 WL
1806020, at *1 (ALJ June 26, 2001).
Congress intended that complainants be
preliminarily reinstated to their
positions if OSHA finds reasonable
cause that they were discharged in
violation of STAA’s whistleblower
provision. When a violation is found,
the norm is for OSHA to order
immediate, preliminary reinstatement.
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 complainant.
In such situations, actual reinstatement
might be delayed until after the
administrative adjudication is
completed as long as the complainant
continues to receive his or her pay and
benefits and is not otherwise
disadvantaged by a delay in
reinstatement. There is no statutory
basis for allowing the employer to
recover the costs of economically
reinstating a complainant should the
employer ultimately prevail in the
whistleblower litigation.
In ordering interest on backpay, the
agency has determined that, instead of
computing the interest due by
compounding quarterly the Internal
Revenue Service 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, interest will be compounded
daily. The Secretary believes that daily
compounding of interest better achieves
the make-whole purpose of a backpay
award. Daily compounding of interest
has become the norm in private lending
and recently was found to be the most
appropriate method of calculating
interest on backpay 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
NLRB No. 8, 2010 WL 4318371, at *3–
4 (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).
Paragraph (a)(2) of this section
requires the Assistant Secretary to notify
the parties if he or she finds that a
violation has not occurred. Former
section 1978.104(c), which provided for
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the suspension of 11(c) complaints
pending the outcome of STAA
proceedings, was deleted in the IFR; the
final rule adopts that revision. As
described above, section 1978.103(e)
adequately describes the relationship
between STAA and 11(c) complaints.
Paragraph (b) clarifies that OSHA
need not send the original complaint to
the Chief Administrative Law Judge
when it issues its findings and
preliminary order; a copy of the
complaint will suffice. Former section
1978.105(b)(1) was moved to section
1978.105(c) in the IFR; the final rule
adopts that revision. This paragraph
states that the Assistant Secretary’s
preliminary order will be effective 30
days after receipt, or on the compliance
date set forth in the preliminary order,
whichever is later, unless an objection
is filed. It also clarifies that any
preliminary order requiring
reinstatement will be effective
immediately. This paragraph mirrors
existing provisions in other OSHA
whistleblower regulations. Minor
editorial changes have been made in the
final rule.
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Subpart B—Litigation
Section 1978.106 Objections to the
Findings and the Preliminary Order and
Request for a Hearing
Minor revisions were made to
paragraph (a), formerly section
1978.105(a), in the IFR to conform to
other OSHA whistleblower regulations;
the final rule adopts those revisions.
Other minor revisions have been made
in the final rule. The paragraph clarifies
that with respect to objections to the
findings and preliminary order, the date
of the postmark, fax, 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 also considered a request
for a hearing before an ALJ. The
amended language also clarifies that in
addition to filing objections with the
Chief Administrative Law Judge, the
parties must serve a copy of their
objections on the other parties of record
and the OSHA official who issued the
findings and order. The requirement in
the IFR that objections be served on the
Assistant Secretary and the Associate
Solicitor for Occupational Safety and
Health has been deleted because such
service is unnecessary. A failure to serve
copies of the objections on the
appropriate parties does not affect the
ALJ’s jurisdiction to hear and decide the
merits of the case. See Shirani v. Calvert
Cliffs Nuclear Power Plant, Inc., No. 04–
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101, 2005 WL 2865915, at *7 (ARB Oct.
31, 2005).
The title to former section 1978.105(b)
was deleted in the IFR because it was
unnecessary; the final rule adopts that
revision. In addition, as previously
mentioned, former paragraph (b)(1) in
section 1978.105 was moved to new
paragraph (c) in section 1978.105; the
final rule adopts that revision. Finally,
some minor, non-substantive revisions
were made in the IFR to former
1978.105(b)(2), now at 1978.106(b), and
additional language was added to that
paragraph to clarify that all provisions
of the ALJ’s order, with the exception of
any order for preliminary reinstatement,
will be stayed upon the filing of a timely
objection; the final rule adopts those
revisions. A respondent may file a
motion to stay OSHA’s preliminary
reinstatement order with the Office of
Administrative Law Judges. However,
such a motion will be granted only on
the basis of exceptional circumstances.
A stay of the Assistant Secretary’s
preliminary order of reinstatement
would be appropriate only where the
respondent can establish the necessary
criteria for a stay, i.e. the respondent
would suffer irreparable injury; the
respondent is likely to succeed on the
merits; a balancing of possible harms to
the parties favors the respondent; and
the public interest favors a stay.
Section 1978.107 Hearings
Former section 1978.106, which
became section 1978.107 in the IFR, was
titled ‘‘Scope of rules; applicability of
other rules; notice of hearing.’’ The title
was changed to ‘‘Hearings,’’ the title
assigned to similar sections in other
OSHA whistleblower regulations. The
final rule adopts those revisions. Other
minor revisions have been made in the
final rule.
Minor revisions were made to
paragraph (a) in the IFR, which adopted
the rules of practice and procedure and
the rules of evidence for administrative
hearings before the Office of
Administrative Law Judges, codified at
29 CFR part 18; those revisions have
been adopted here. However, in the
final rule the reference to the ALJ rules
of evidence has been deleted. This
change is discussed below. Changes
were also made in the IFR to paragraph
(b) to conform to other OSHA
whistleblower regulations. The
requirements for the ALJ to set a hearing
date within 7 days and to commence a
hearing within 30 days were deleted,
and language was added in the IFR to
clarify that hearings will commence
expeditiously and be conducted de novo
and on the record. The language in the
IFR is not intended to change case-
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handling practices. The final rule adopts
those revisions.
Paragraph (b) has been modified in
the final rule to add language providing
that ALJs have broad discretion to limit
discovery in order to expedite the
hearing. This provision furthers an
important goal of STAA—to have
unlawfully terminated employees
reinstated as quickly as possible.
Paragraph (c), which deals with
situations in which both the
complainant and the respondent object
to the findings and/or preliminary
order, was revised in the IFR, consistent
with the changes made to paragraph (b),
to remove language stating that hearings
shall commence within 30 days of the
last objection received. The final rule
adopts those revisions.
Former paragraph (d), dealing with
the ALJ’s discretion to order the filing
of prehearing statements, was deleted in
the IFR as unnecessary; the final rule
adopts that change.
A new paragraph (d) has been added
to this section. It provides that in ALJ
proceedings formal rules of evidence
will not apply, but rules or principles
designed to assure production of the
most probative evidence will be
applied. Furthermore, the ALJ may
exclude evidence that is immaterial,
irrelevant, or unduly repetitious. This
evidence provision differs from the
practice under the STAA IFR (section
1978.107(a)) and the original STAA
rules (section 1978. 106(a)) to follow the
ALJ rules of evidence in 29 CFR part
1918. The new provision is 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 Commission v. Cement Institute,
333 U.S. 683, 705–06 (1948)
(administrative agencies not restricted
by rigid rules of evidence). Furthermore,
it is inappropriate to apply the technical
rules of evidence in Part 18 because
complainants often appear pro se. Also,
hearsay evidence is often appropriate in
whistleblower cases, as there often is no
relevant evidence other than hearsay to
prove discriminatory intent. ALJs have
the responsibility to determine the
appropriate weight to be given to such
evidence. For these reasons, the
interests of determining all of the
relevant facts are best served by not
having strict evidentiary rules.
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Section 1978.108 Role of Federal
Agencies
Former section 1978.107, titled
‘‘Parties,’’ was moved in the IFR to
section 1978.108 with the new title
‘‘Role of Federal agencies.’’ The final
rule adopts that change. This conforms
to the terminology used in OSHA’s
other whistleblower regulations.
Former paragraphs (a), (b), and (c) in
section 1978.107 were combined in
section 1978.108(a)(1) in the IFR; that
revision remains. The changes which
were made to these paragraphs are not
intended to be substantive, i.e., there is
no intent to change the rights to party
status currently afforded the Assistant
Secretary, complainants, or
respondents. The Assistant Secretary,
represented by an attorney from the
appropriate Regional Solicitor’s Office,
will still generally assume the role of
prosecuting party in STAA
whistleblower cases in which the
respondent objects to the findings or
preliminary order. This continues
longstanding practice in STAA cases.
The public interest generally requires
the Assistant Secretary’s continued
participation in such matters. Relatively
few private attorneys have developed
adequate expertise in representing
STAA whistleblower complainants, and
complainants in the motor carrier
industry have been more likely to
proceed pro se than employees covered
by OSHA’s other whistleblower
programs. Where the complainant, but
not the respondent, objects to the
findings or order, the regulations retain
the Assistant Secretary’s discretion to
participate as a party or amicus curiae
at any stage of the proceedings,
including the right to petition for review
of an ALJ decision.
Paragraph (a)(2) clarifies that if the
Assistant Secretary assumes the role of
prosecuting party in accordance with
paragraph (a)(1), he or she may, upon
written notice to the other parties,
withdraw as the prosecuting party in the
exercise of prosecutorial discretion. If
the Assistant Secretary withdraws, the
complainant will become the
prosecuting party, and the ALJ will
issue appropriate orders to regulate the
course of future proceedings.
Paragraph (a)(3) provides that copies
of documents in all cases must be sent
to all parties, or, if represented by
counsel, to them. If the Assistant
Secretary is a party, documents shall be
sent to the Regional Solicitor’s Office
representing the Assistant Secretary.
This is a departure from the IFR, which
also required distribution of documents
to the Assistant Secretary and, where he
or she was a party, to the Associate
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Solicitor for Occupational Safety and
Health. Experience has shown that the
additional distribution was not
necessary. In the interest of saving time
and resources the requirements for this
additional distribution are being
deleted.
Paragraph (b) states that the Federal
Motor Carrier Safety Administration
(FMCSA), an agency of the U.S.
Department of Transportation, may
participate in the proceedings as amicus
curiae at its own discretion. This
paragraph also permits the FMCSA to
request copies of all documents,
regardless of whether it is participating
in the case. This provision mirrors
similar language in the regulations
implementing other OSHAadministered whistleblower laws.
The provisions formerly at section
1978.108, which described the manner
in which STAA whistleblower cases
would be captioned or titled, were
deleted in the IFR. It is unnecessary to
continue to include that material in
these regulations.
Section 1978.109 Decisions and
Orders of the Administrative Law Judge
This section sets forth the content of
the decision and order of the ALJ, and
includes the standards for finding a
violation under STAA’s whistleblower
provision. Minor editorial revisions
have been made in the final rule.
References to the perception of
protected activity have been deleted in
the final rule. This concept is
adequately covered by section
1978.104(e)(2)(ii) (employer knowledge
shown by suspicion of protected
activity). The title of this section
conforms to the title assigned to similar
provisions in other OSHA
whistleblower regulations. Before the
issuance of the IFR, section 1978.109
addressed decisions of both the ALJs
and the ARB. In conformance with other
OSHA whistleblower regulations, these
two topics were separated by the IFR
into individual sections; this separation
remains in the final rule. Section
1978.109 covers only ALJ decisions and
section 1978.110 addresses ARB
decisions.
Former paragraph (a) was divided in
the IFR among multiple paragraphs in
this section and otherwise revised to
reflect the parties’ new burdens of proof
and to conform more closely to the
regulations implementing other OSHAadministered whistleblower laws. Those
changes remain in the final rule. In
litigation, the statutory burdens of proof
require a complainant to prove that the
alleged protected activity was a
‘‘contributing factor’’ in the alleged
adverse action. If the complainant
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satisfies his or her burden, the
employer, to escape liability, must
prove by ‘‘clear and convincing
evidence’’ that it would have taken the
same action in the absence of the
protected activity.
A contributing factor is ‘‘any factor
which, alone or in connection with
other factors, tends to affect in any way
the outcome of the decision.’’ Clarke,
supra, at *3. The complainant
(whenever this term is used in this
paragraph, it also refers to the Assistant
Secretary) can succeed by providing
either direct or indirect proof of
contribution. Direct evidence is
‘‘smoking gun’’ evidence that
conclusively connects the protected
activity and the adverse action and does
not rely upon inference. If the
complainant does not produce direct
evidence, he or she must proceed
indirectly, or inferentially, by proving
by a preponderance of the evidence that
a motive prohibited by STAA was the
true reason for the adverse action. One
type of circumstantial evidence is
evidence that discredits the
respondent’s proffered reasons for the
adverse action, demonstrating instead
that they were pretexts for retaliation.
Id. Another type of circumstantial
evidence is temporal proximity between
the protected activity and the adverse
action. Ferguson, supra, at *2. The
respondent may avoid liability if it
‘‘demonstrates by clear and convincing
evidence’’ that it would have taken the
same adverse action in any event. Clear
and convincing evidence is evidence
indicating that the thing to be proved is
highly probable or reasonably certain.
Clarke, supra, at *3. This burden of
proof regimen supersedes the one in
effect before the 2007 amendments to
STAA. Id. at 7, n.1.
The requirements that the ALJ close
the record within 30 days after the filing
of the objection and issue a decision
within 30 days after the close of the
record are not in these rules because
procedures for issuing decisions,
including their timeliness, are
addressed by the Rules of Practice and
Procedure for Administrative Hearings
Before the Office of Administrative Law
Judges at 29 CFR 18.57.
Section 1978.109(c), which is similar
to provisions in other OSHA
whistleblower regulations, provides that
the Assistant Secretary’s determinations
about when to proceed with an
investigation and when to dismiss a
complaint without completing an
investigation are discretionary decisions
not subject to review by the ALJ. The
ALJ hears cases de novo and, therefore,
may not remand cases to the Assistant
Secretary to conduct an investigation or
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make further factual findings. If there
otherwise is jurisdiction, the ALJ will
hear the case on the merits or dispose
of the matter without a hearing if
warranted by the facts and
circumstances.
Section 1978.109(d)(1) now describes
the relief the ALJ can award upon
finding a violation and reflects the
recent statutory amendments (see earlier
discussion of section 1978.105(a)). The
language of the IFR has been slightly
modified to clarify the available
remedies. The requirement to take
appropriate affirmative action to abate
the violation is separated from the other
remedies, as it is in the STAA remedy
provision, 49 U.S.C. 31105(b)(3)(A).
Affirmative action to abate the violation,
required by section 31105(b)(3)(A)(i),
includes a variety of measures in
addition to others in (3)(A), such as
posting notices about STAA orders and
rights, as well as expungement of
adverse comments in a personnel
record. Scott v. Roadway Express, Inc.,
No. 01–065, 2003 WL 21269144, at *1–
2 (ARB May 29, 2003) (posting notices
of STAA orders and rights); Pollock v.
Continental Express, Nos. 07–073, 08–
051, 2010 WL 1776974, at *9 (ARB Apr.
7, 2010) (expungement of adverse
references). Other minor wording
changes have been made. In addition,
paragraph (d)(2) in this section requires
the ALJ to issue an order denying the
complaint if he or she determines that
the respondent has not violated STAA.
Before the IFR, ALJs’ decisions and
orders were subject to automatic review
by the ARB. These procedures were
unique to STAA whistleblower cases
and resulted in a heavy STAA caseload
for the ARB. This made it more difficult
for the ARB to promptly resolve the
cases on its docket and delayed the
resolution of STAA cases in which the
parties were mutually satisfied with the
ALJ’s decision and order. Overall,
requiring mandatory ARB review of
every STAA whistleblower case is an
inefficient use of limited resources. In
conformance with the procedures used
for the other whistleblower cases
investigated by OSHA and adjudicated
by ALJs, these regulations provide for
ARB review of an ALJ’s decision only if
one or more of the parties to the case
files a petition requesting such review.
These procedures for review of ALJ
decisions apply to all ALJ decisions
issued on or after the effective date of
the IFR, August 31, 2010. The final rule
adopts these revisions.
In the IFR, former section 1978.109(b)
was deleted, although much of its
content was moved to paragraph (e); the
final rule adopts those revisions.
Section 1978.109(e), which borrows
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language from similar provisions in
other OSHA whistleblower regulations,
gives parties 14 days after the date of the
ALJ’s decision to file a petition for
review with the ARB. If no petition for
review is filed within that timeframe,
the ALJ’s decision is final and all
portions of the order become effective.
Paragraph (e), in addition to giving
parties14 days to seek review before the
ARB, clarifies that any orders relating to
reinstatement will be effective
immediately upon receipt of the
decision by the respondent.
In the IFR, all of the provisions in
former section 1978.109, which codified
the automatic review process, primarily
former paragraphs (c)(1) and (c)(2), were
deleted. The content of former
paragraph (c)(3), regarding the standard
for ARB review of ALJ decisions, was
moved to new section 1978.110(b). The
content of former paragraph (c)(4),
which required the ARB to issue an
order denying the complaint if it
determined that the respondent had not
violated the law, was moved to section
1978.110(e). Former paragraph (c)(5),
which required service of the ARB
decision on all parties, became a part of
section 1978.110(c). The final rule
adopts all those revisions.
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
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.
Section 1978.110 Decisions and
Orders of the Administrative Review
Board
This section is borrowed largely from
existing regulations implementing other
OSHA whistleblower laws. Minor
editorial corrections have been made in
the final rule. In accordance with the
decision to discontinue automatic ARB
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review of ALJ decisions, paragraph (a) of
this section gives the parties 14 days
from the date of the ALJ’s decision to
file a petition for review with the ARB.
If no timely petition for review is filed,
the decision of the ALJ becomes the
final decision of the Secretary, and is
not subject to judicial review. Paragraph
(a) also clarifies that the date of the
postmark, fax, electronic
communication transmittal, or handdelivery will be deemed the date of
filing; if the petition is filed in person,
by hand-delivery or other means, the
petition is considered filed upon
receipt. In its comments, NWC
suggested that the filing period be
extended from 10 business days to 30
days to make this section parallel to the
provision in 1978.105(c), which allows
for 30 days within which to file an
objection. OSHA declines to extend the
filing period to 30 days because the 14day filing period is consistent with the
practices and procedures followed in
OSHA’s other whistleblower programs.
Furthermore, parties may file a motion
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.
With regard to section 1978.110(a),
NWC urged deletion of the provision
that ‘‘[t]he parties should identify in
their petitions for review the legal
conclusions or orders to which they
object, or the objections will ordinarily
be deemed waived.’’ 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. OSHA’s
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, but rather the rules
include this provision to put the public
on notice of the possible consequences
of failing to specify the basis of a
petition 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., Nos. 09–102,
10–130, 2011 WL 3413364, at *7, n.5
(ARB Jul. 27, 2011), petition for review
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filed, (11th Cir. Oct. 3, 2011) (No. 11–
14419–C) (where a complainant
consistently made an argument
throughout the administrative
proceedings the argument was not
waived simply because it appeared in
the complainant’s reply brief to the ARB
rather than in the petition for review);
Avlon v. American Express Co., 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
believed to be within the authority of
the ARB, and parallel provisions in
Sarbanes-Oxley whistleblower
regulations do not mandate that the
ARB must limit its review to ALJ
conclusions assigned as error in the
petition for review); Brookman v. Levi
Strauss, No. 07–074, 2008 WL 7835844,
at *5 (ARB Jul. 23, 2008) (concurring
with the ALJ’s findings despite
Complainant’s failure to specifically
identify objections and invoke ARB
review). However, recognizing that the
interim final rule may have suggested
too stringent a standard, the phrase
‘‘will ordinarily’’ has been replaced
with ‘‘may.’’
Consistent with the procedures for
petitions for review under other OSHAadministered whistleblower laws,
paragraph (b) provides that the ARB has
discretion to accept or reject review in
STAA whistleblower cases. Congress
intended these whistleblower cases to
be expedited, as reflected by the recent
amendment to STAA providing for a
hearing de novo in district court if the
Secretary has not issued a final decision
within 210 days of the filing of the
complaint. Making review of STAA
whistleblower cases discretionary may
assist in furthering that goal.
The ARB has 30 days to decide
whether to grant a petition for review.
If the ARB does not grant the petition,
the decision of the ALJ becomes the
final decision of the Secretary. This
section further provides that when the
ARB accepts a petition for review, it
will review the ALJ’s factual
determinations under the substantial
evidence standard, a standard
previously set forth in section
1978.109(c)(3) before the issuance of the
IFR. If a timely petition for review is
filed with the ARB, relief ordered by the
ALJ is inoperative while the matter is
pending before the ARB, except that
orders of reinstatement will be effective
pending review. Paragraph (b) does
provide that in exceptional
circumstances the ARB may grant a
motion to stay an ALJ’s order of
reinstatement. A stay of a reinstatement
order is only appropriate when the
respondent can establish the necessary
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criteria for a stay, i.e., the respondent
will suffer irreparable injury; the
respondent is likely to succeed on the
merits; a balancing of possible harms to
the parties favors the respondent; and
the public interest favors a stay.
Paragraph (c), which provides that the
ARB will issue a final decision within
120 days of the conclusion of the ALJ
hearing, was 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 1978.110(a), explained above,
this revision does not substantively alter
the length of time before the ALJ hearing
will be deemed to have been concluded.
This paragraph further provides for the
ARB’s decision in all cases to be served
on all parties, the Chief Administrative
Law Judge, the Assistant Secretary, and
the Associate Solicitor for Occupational
Safety and Health.
Paragraph (d) describes the remedies
the ARB can award if it concludes that
the respondent has violated STAA’s
whistleblower provision (see earlier
discussion of section 1978.109(d)(1)). In
addition, under paragraph (e), if the
ARB determines that the respondent has
not violated STAA, it will issue an order
denying the complaint. Paragraph (f)
clarifies that the procedures for seeking
review before the ARB apply to all cases
in which ALJ decisions were issued on
or after the effective date of the IFR,
August 31, 2010.
Subpart C—Miscellaneous Provisions.
Section 1978.111 Withdrawal of STAA
Complaints, Findings, Objections, and
Petitions for Review; Settlement
This section provides procedures and
time periods for the withdrawal of
complaints, the withdrawal of findings
and/or preliminary orders by the
Assistant Secretary, the withdrawal of
objections to findings and/or
preliminary orders, and the withdrawal
of petitions for review of ALJ decisions.
It also provides for the approval of
settlements at the investigative and
adjudicative stages of the case. Minor
editorial changes have been made in the
final rule.
Paragraph (a) permits a complainant
to withdraw orally or in writing his or
her complaint to the Assistant Secretary,
at any time prior to the filing of
objections to the Assistant Secretary’s
findings and/or preliminary order. The
Assistant Secretary confirms in writing
the complainant’s desire to withdraw
and will determine whether to approve
the withdrawal. The Assistant Secretary
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will notify all parties if the withdrawal
is approved. Paragraph (a) clarifies that
complaints that are withdrawn pursuant
to settlement agreements prior to the
filing of objections must be approved in
accordance with the settlement approval
procedures in paragraph (d). In
addition, paragraph (a) clarifies that the
complainant may not withdraw his or
her complaint after the filing of
objections to the Assistant Secretary’s
findings and/or preliminary order.
Paragraph (c) addresses situations in
which parties seek to withdraw either
objections to the Assistant Secretary’s
findings and/or preliminary order or
petitions for review of ALJ decisions.
Paragraph (c) provides that a party may
withdraw objections to the Assistant
Secretary’s findings and/or preliminary
order at any time before the findings
and preliminary order become final by
filing a written withdrawal with the
ALJ. Similarly, if a case is on review
with the ARB, a party may withdraw a
petition for review of an ALJ’s decision
at any time before that decision becomes
final by filing a written withdrawal with
the ARB. The ALJ or the ARB,
depending on where the case is
pending, will determine whether to
approve the withdrawal of the
objections or the petition for review.
Paragraph (c) clarifies that if the ALJ
approves a request to withdraw
objections to the Assistant Secretary’s
findings and/or preliminary order, and
there are no other pending objections,
the Assistant Secretary’s findings and
preliminary order will become the final
order of the Secretary. Likewise, if the
ARB approves a request to withdraw a
petition for review of an ALJ decision,
and there are no other pending petitions
for review of that decision, the ALJ’s
decision will become the final order of
the Secretary. Finally, paragraph (c)
provides that if objections or a petition
for review are withdrawn because of
settlement, the settlement must be
submitted for approval in accordance
with paragraph (d).
Paragraph (d)(1) states that a case may
be settled at the investigative stage if the
Assistant Secretary, the complainant,
and the respondent agree. The Assistant
Secretary’s approval of a settlement
reached by the respondent and the
complainant demonstrates his or her
consent and achieves the consent of all
three parties. Minor, non-substantive
changes are being made to paragraph
(d)(2). Paragraph (d)(3) is being deleted
because the withdrawal of the Assistant
Secretary as a party as a matter of
prosecutorial discretion is adequately
covered by section .107(a)(2). Paragraph
(e), borrowing language from similar
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provisions in other OSHA
whistleblower regulations, clarifies that
settlements approved by the Assistant
Secretary, the ALJ, or the ARB will
constitute the final order of the
Secretary and may be enforced in
federal district court pursuant to 49
U.S.C. 31105(e).
Section 1978.112 Judicial Review
This section describes the statutory
provisions for judicial review of
decisions of the Secretary and, in cases
where judicial review is sought, requires
the ARB to submit the record of
proceedings to the appropriate court
pursuant to the Federal Rules of
Appellate Procedure and the local rules
of such court. Non-substantive revisions
to paragraphs (a), (b), and (c) were made
in the IFR and are continued here.
Minor editorial changes from the IFR
were made in the final rule. In the final
rule a reference to the transmission of
the record to a court of appeals by an
ALJ has been made because parties may
file petitions for review of those
decisions in the courts of appeals where
they have previously requested review
by the ARB and the ARB has denied
review.
Former section 1978.112, which
addressed postponement due to the
pendency of proceedings in other
forums, including grievance-arbitration
proceedings under collective bargaining
agreements, and deferral to the
outcomes of such proceedings, was
deleted in the IFR to conform to other
OSHA whistleblower regulations, which
do not contain similar provisions; that
deletion remains. This is a nonsubstantive change. Postponement and
deferral principles will still be applied
in accordance with case law.
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Section 1978.113 Judicial Enforcement
In the IFR, non-substantive revisions
were made to this section, which
describes the Secretary’s power under
STAA’s whistleblower provision to
obtain judicial enforcement of orders,
including orders approving settlement
agreements; the final rule adopts those
revisions. Minor editorial corrections
have been made in the final rule.
Section 1978.114 District Court
Jurisdiction of Retaliation Complaints
under STAA
This section deals with the recent
amendment to STAA, 49 U.S.C.
31105(c), allowing a complainant in a
STAA whistleblower case to bring an
action in district court for de novo
review if there has been no final
decision of the Secretary and 210 days
have passed since the filing of the
complaint and the delay was not due to
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the complainant’s bad faith. Section
1978.114 has been drafted to reflect the
Secretary’s position that it would not be
reasonable to construe the statute to
permit a complainant to initiate an
action in federal court after the
Secretary issues a final decision, even if
the date of the final decision is more
than 210 days after the filing of the
administrative complaint. In the
Secretary’s view, the purpose of the
‘‘kick-out’’ provision is to aid the
complainant in receiving a prompt
decision. That goal is not implicated in
a situation where the complainant
already has received a final decision
from the Secretary. In addition,
permitting the complainant to file a new
case in district court in such
circumstances could conflict with the
parties’ rights to seek judicial review of
the Secretary’s final decision in the
court of appeals. The regulations have
been drafted in accordance with this
position. Minor editorial corrections
have been made in the final rule.
The IFR did not note that 49 U.S.C.
31105(c) guarantees the right to a jury
trial at the request of either party in
these cases. This rule notes that
statutory provision.
In this section, OSHA eliminated the
requirement that complainants provide
the agency 15 days advance notice
before filing a de novo complaint in
district court. Instead, this section
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,
depending on where the proceeding is
pending. A copy of the complaint also
must be provided to the OSHA official
who issued the findings and/or
preliminary order, the Assistant
Secretary, and the Associate Solicitor,
Division of Occupational Safety and
Health, U.S. Department of Labor. 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. The
reference to the OSHA Regional
Administrator in the IFR has been
changed in the final rule to a reference
to the OSHA official who issued the
findings and/or preliminary order to
reflect the possibility (not currently
contemplated) of future organizational
changes.
This change responds to NWC’s
comment that the 15-day advance notice
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44133
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 case 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.
Section 1978.115 Special
Circumstances; Waiver of Rules
This section provides that in
circumstances not contemplated by
these rules or for good cause the ALJ or
the ARB may, upon application and
three days notice to the parties, waive
any rule or issue such orders as justice
or the administration of STAA’s
whistleblower provision requires.
In the IFR, OSHA deleted former
section 1978.114, which provided that
the time requirements imposed on the
Secretary by these regulations are
directory in nature and that a failure to
meet those requirements did not
invalidate any action by the Assistant
Secretary or Secretary under STAA; that
deletion remains. These principles are
well-established in the case law, see,
e.g., Roadway Express v. Dole, 929 F.2d
1060, 1066 (5th Cir. 1991), and this
provision, which was unique to OSHA’s
STAA regulations, is unnecessary. The
deletion of this provision is a nonsubstantive amendment. No significant
change in STAA practices or procedures
is intended.
V. Paperwork Reduction Act
This rule contains a reporting
provision (filing a retaliation complaint,
section 1978.103) 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,
Public Law 104–13, 109 Stat. 163
(1995). The assigned OMB control
number is 1218–0236.
VI. Administrative Procedure Act
The notice and comment rulemaking
procedures of Section 553 of the
Administrative Procedure Act (‘‘APA’’)
do not apply to ‘‘interpretive rules,
general statements of policy, or rules of
agency organization, procedure, or
practice.’’ 5 U.S.C. 553(b)(A). Part 1978
sets forth interpretive rules and rules of
agency procedure and practice within
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the meaning of that section. Therefore,
publication in the Federal Register of a
notice of proposed rulemaking and
request for comments was not required.
Although part 1978 was not subject to
the notice and comment procedures of
the APA, the Assistant Secretary sought
and considered comments to enable the
agency to improve the rules by taking
into account the concerns of interested
persons.
Furthermore, because this rule is
procedural and interpretive rather than
substantive, the normal requirement of
5 U.S.C. 553(d) that a rule be effective
30 days after publication in the Federal
Register is inapplicable. The Assistant
Secretary also finds good cause to
provide an immediate effective date for
this rule. It is in the public interest that
the rule be effective immediately so that
parties may know what procedures are
applicable to pending cases.
Furthermore, most of the provisions of
this rule were in the IFR and have
already been in effect since August 31,
2010.
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. Executive Order 12866, Executive
Order 13563; Unfunded Mandates
Reform Act of 1995; Executive Order
13132
The agency 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
result in a rule that may: (1) Have an
annual effect on the economy of $100
million or more or adversely affect in a
material way the economy, a sector of
the economy, productivity, competition,
jobs, the environment, public health or
safety, or State, local, or tribal
governments or communities; (2) create
a serious inconsistency or otherwise
interfere with an action taken or
planned by another agency; (3)
materially alter the budgetary impact of
entitlements, grants, user fees, or loan
programs or the rights and obligations of
recipients thereof; or (4) raise novel
legal or policy issues arising out of legal
mandates, the President’s priorities, or
the principles set forth in Executive
Order 12866. Therefore, no regulatory
impact analysis has been prepared.
Because no notice of proposed
rulemaking was 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
Administrative practice and
procedure, Employment, Highway
safety, Investigations, Motor carriers,
Motor vehicle safety, Reporting and
recordkeeping requirements, Safety,
Transportation, Whistleblowing.
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VIII. Regulatory Flexibility Analysis
The agency has determined that the
regulation will not have a significant
economic impact on a substantial
number of small entities. The regulation
sets forth procedures and
interpretations, many of which were
necessitated by statutory amendments
enacted by Congress. Additionally, the
regulatory revisions are necessary for
the sake of consistency with the
regulatory provisions governing
procedures under other whistleblower
statutes administered by OSHA.
Furthermore, no certification to this
effect is required and no regulatory
flexibility analysis is required because
no proposed rule has been issued.
List of Subjects in 29 CFR Part 1978
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 July 18,
2012.
David Michaels,
Assistant Secretary of Labor for Occupational
Safety and Health.
Accordingly, for the reasons set out in
the preamble part 1978 of Title 29 of the
Code of Federal Regulations is revised
to read as follows:
PART 1978—PROCEDURES FOR THE
HANDLING OF RETALIATION
COMPLAINTS UNDER THE EMPLOYEE
PROTECTION PROVISION OF THE
SURFACE TRANSPORTATION
ASSISTANCE ACT OF 1982 (STAA), AS
AMENDED
Subpart A—Complaints, Investigations,
Findings, and Preliminary Orders
Sec.
1978.100 Purpose and scope.
1978.101 Definitions.
1978.102 Obligations and prohibited acts.
1978.103 Filing of retaliation complaints.
1978.104 Investigation.
1978.105 Issuance of findings and
preliminary orders.
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Subpart B—Litigation
1978.106 Objections to the findings and the
preliminary order and request for a
hearing.
1978.107 Hearings.
1978.108 Role of Federal agencies.
1978.109 Decisions and orders of the
administrative law judge.
1978.110 Decisions and orders of the
Administrative Review Board.
Subpart C—Miscellaneous Provisions
1978.111 Withdrawal of STAA complaints,
findings, objections, and petitions for
review; settlement.
1978.112 Judicial review.
1978.113 Judicial enforcement.
1978.114 District court jurisdiction of
retaliation complaints under STAA.
1978.115 Special circumstances; waiver of
rules.
Authority: 49 U.S.C. 31101 and 31105;
Secretary’s Order 1–2012 (Jan. 18, 2012), 77
FR 3912 (Jan. 25, 2012); Secretary’s Order 1–
2010 (Jan. 15, 2010), 75 FR 3924 (Jan. 25,
2010).
Subpart A—Complaints,
Investigations, Findings, and
Preliminary Orders
§ 1978.100
Purpose and scope.
(a) This part sets forth, the procedures
for, and interpretations of, the employee
protection (whistleblower) provision of
the Surface Transportation Assistance
Act of 1982 (STAA), 49 U.S.C. 31105, as
amended, which protects employees
from retaliation because the employee
has engaged in, or is perceived to have
engaged in, protected activity pertaining
to commercial motor vehicle safety,
health, or security matters.
(b) This part establishes procedures
under STAA for the expeditious
handling of retaliation complaints filed
by employees, or by persons acting on
their behalf. These rules, together with
those rules codified at 29 CFR part 18,
set forth the procedures for submission
of complaints, investigations, issuance
of findings and preliminary orders,
objections to findings and orders,
litigation before administrative law
judges (ALJs), post-hearing
administrative review, and withdrawals
and settlements. This part also sets forth
interpretations of STAA.
§ 1978.101
Definitions.
(a) Act means the Surface
Transportation Assistance Act of 1982
(STAA), as amended.
(b) Assistant Secretary means the
Assistant Secretary of Labor for
Occupational Safety and Health or the
person or persons to whom he or she
delegates authority under the Act.
(c) Business days means days other
than Saturdays, Sundays, and Federal
holidays.
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(d) Commercial motor carrier means
any person engaged in a business
affecting commerce between States or
between a State and a place outside
thereof who owns or leases a
commercial motor vehicle in connection
with that business, or assigns employees
to operate such a vehicle.
(e) Commercial motor vehicle means a
vehicle as defined by 49 U.S.C.
31101(1).
(f) Complainant means the employee
who filed a STAA complaint or on
whose behalf a complaint was filed.
(g) Complaint, for purposes of
§ 1978.102(b)(1) and (e)(1), includes
both written and oral complaints to
employers, government agencies, and
others.
(h) Employee means a driver of a
commercial motor vehicle (including an
independent contractor when
personally operating a commercial
motor vehicle), a mechanic, a freight
handler, or an individual not an
employer, who:
(1) Directly affects commercial motor
vehicle safety or security in the course
of employment by a commercial motor
carrier; and
(2) Is not an employee of the United
States Government, a State, or a political
subdivision of a State acting in the
course of employment.
(3) The term includes an individual
formerly performing the work described
above or an applicant for such work.
(i) Employer means a person engaged
in a business affecting commerce that
owns or leases a commercial motor
vehicle in connection with that
business, or assigns an employee to
operate the vehicle in commerce, but
does not include the Government, a
State, or a political subdivision of a
State.
(j) OSHA means the Occupational
Safety and Health Administration of the
United States Department of Labor.
(k) Person means one or more
individuals, partnerships, associations,
corporations, business trusts, legal
representatives, or any other organized
group of individuals.
(l) Respondent means the person
alleged to have violated 49 U.S.C.
31105.
(m) Secretary means the Secretary of
Labor or persons to whom authority
under the Act has been delegated.
(n) State means a State of the United
States, the District of Columbia, Puerto
Rico, the Virgin Islands, American
Samoa, Guam, and the Northern
Mariana Islands.
(o) Any future statutory amendments
that affect the definition of a term or
terms listed in this section will apply in
lieu of the definition stated herein.
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§ 1978.102
acts.
Obligations and prohibited
(a) No person may discharge or
otherwise retaliate against any employee
with respect to the employee’s
compensation, terms, conditions, or
privileges of employment because the
employee engaged in any of the
activities specified in paragraphs (b) or
(c) of this section. In addition, no person
may discharge or otherwise retaliate
against any employee with respect to
the employee’s compensation, terms,
conditions, or privileges of employment
because a person acting pursuant to the
employee’s request engaged in any of
the activities specified in paragraph (b).
(b) It is a violation for any person to
intimidate, threaten, restrain, coerce,
blacklist, discharge, discipline, harass,
suspend, demote, or in any other
manner retaliate against any employee
because the employee or a person acting
pursuant to the employee’s request has:
(1) Filed orally or in writing a
complaint with an employer,
government agency, or others or begun
a proceeding related to a violation of a
commercial motor vehicle safety or
security regulation, standard, or order;
or
(2) Testified or will testify at any
proceeding related to a violation of a
commercial motor vehicle safety or
security regulation, standard, or order.
(c) It is a violation for any person to
intimidate, threaten, restrain, coerce,
blacklist, discharge, discipline, harass,
suspend, demote, or in any other
manner retaliate against any employee
because the employee:
(1) Refuses to operate a vehicle
because:
(i) The operation violates a regulation,
standard, or order of the United States
related to commercial motor vehicle
safety, health, or security; or
(ii) He or she has a reasonable
apprehension of serious injury to
himself or herself or the public because
of the vehicle’s hazardous safety or
security condition;
(2) Accurately reports hours on duty
pursuant to Chapter 315 of Title 49 of
the United States Code; or
(3) Cooperates with a safety or
security investigation by the Secretary
of Transportation, the Secretary of
Homeland Security, or the National
Transportation Safety Board; or
(4) Furnishes information to the
Secretary of Transportation, the
Secretary of Homeland Security, the
National Transportation Safety Board, or
any Federal, State, or local regulatory or
law enforcement agency as to the facts
relating to any accident or incident
resulting in injury or death to an
individual or damage to property
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44135
occurring in connection with
commercial motor vehicle
transportation.
(d) No person may discharge or
otherwise retaliate against any employee
with respect to the employee’s
compensation, terms, conditions, or
privileges of employment because the
person perceives that the employee has
engaged in any of the activities specified
in paragraph (e) of this section.
(e) It is a violation for any person to
intimidate, threaten, restrain, coerce,
blacklist, discharge, discipline, harass,
suspend, demote, or in any other
manner retaliate against any employee
because the employer perceives that:
(1) The employee has filed orally or
in writing or is about to file orally or in
writing a complaint with an employer,
government agency, or others or has
begun or is about to begin a proceeding
related to a violation of a commercial
motor vehicle safety or security
regulation, standard or order;
(2) The employee is about to
cooperate with a safety or security
investigation by the Secretary of
Transportation, the Secretary of
Homeland Security, or the National
Transportation Safety Board; or
(3) The employee has furnished or is
about to furnish information to the
Secretary of Transportation, the
Secretary of Homeland Security, the
National Transportation Safety Board, or
any Federal, State, or local regulatory or
law enforcement agency as to the facts
relating to any accident or incident
resulting in injury or death to an
individual or damage to property
occurring in connection with
commercial motor vehicle
transportation.
(f) For purposes of this section, an
employee’s apprehension of serious
injury is reasonable only if a reasonable
individual in the circumstances then
confronting the employee would
conclude that the hazardous safety or
security condition establishes a real
danger of accident, injury or serious
impairment to health. To qualify for
protection, the employee must have
sought from the employer, and been
unable to obtain, correction of the
hazardous safety or security condition.
§ 1978.103
Filing of retaliation complaints.
(a) Who may file. An employee who
believes that he or she has been
retaliated against by an employer in
violation of STAA may file, or have
filed by any person on the employee’s
behalf, a complaint alleging such
retaliation.
(b) Nature of filing. No particular form
of complaint is required. A complaint
may be filed orally or in writing. Oral
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complaints will be reduced to writing
by OSHA. If the complainant is unable
to file a complaint in English, OSHA
will accept the complaint in any other
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 STAA
occurs, any employee who believes that
he or she has been retaliated against in
violation of STAA 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, hand-delivery, delivery to a thirdparty commercial carrier, or in-person
filing at an OSHA office will be
considered the date of filing. The time
for filing a complaint may be tolled for
reasons warranted by applicable case
law.
(e) Relationship to section 11(c)
complaints. A complaint filed under
STAA alleging facts that would also
constitute a violation of section 11(c) of
the Occupational Safety and Health Act,
29 U.S.C. 660(c), will be deemed to be
a complaint under both STAA and
section 11(c). Similarly, a complaint
filed under section 11(c) that alleges
facts that would also constitute a
violation of STAA will be deemed to be
a complaint filed under both STAA and
section 11(c). Normal procedures and
timeliness requirements under the
respective statutes and regulations will
be followed.
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§ 1978.104
Investigation.
(a) Upon receipt of a complaint in the
investigating office, the Assistant
Secretary will notify the respondent of
the filing of the complaint by providing
the respondent with a copy of the
complaint, redacted in accordance with
the Privacy Act of 1974, 5 U.S.C. 552a
and other applicable confidentiality
laws. The Assistant Secretary will also
notify the respondent of the
respondent’s rights under paragraphs (b)
and (f) of this section. The Assistant
Secretary will provide a copy of the
unredacted complaint to the
complainant (or complainant’s legal
counsel, if complainant is represented
by counsel) and to the Federal Motor
Carrier Safety Administration.
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(b) Within 20 days of receipt of the
notice of the filing of the complaint
provided under paragraph (a) of this
section, the respondent may submit to
the Assistant Secretary a written
statement and any affidavits or
documents substantiating its position.
Within the same 20 days, the
respondent may request a meeting with
the Assistant Secretary to present its
position.
(c) Throughout the investigation, the
agency will provide to the complainant
(or the complainant’s legal counsel, if
complainant is represented by counsel)
a copy of all of respondent’s
submissions to the agency that are
responsive to the complainant’s
whistleblower complaint. Before
providing such materials to the
complainant, the agency will redact
them, if necessary, in accordance with
the Privacy Act of 1974, 5 U.S.C. 552a,
and other applicable confidentiality
laws. The agency will also provide the
complainant with an opportunity to
respond to such 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, either actual activity
or activity about to be undertaken;
(ii) The respondent knew or
suspected, actually or constructively,
that the employee engaged in the
protected activity;
(iii) The employee suffered an adverse
action; and
(iv) The circumstances were sufficient
to raise the inference that the protected
activity was a contributing factor in the
adverse action.
(3) For purposes of determining
whether to investigate, the complainant
will be considered to have met the
required burden if the complaint on its
face, supplemented as appropriate
through interviews of the complainant,
alleges the existence of facts and either
direct or circumstantial evidence to
meet the required showing, i.e., to give
rise to an inference that the respondent
knew or suspected that the employee
engaged in protected activity and that
the protected activity was a contributing
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Frm 00030
Fmt 4700
Sfmt 4700
factor in the adverse action. The burden
may be satisfied, for example, if the
complainant shows that the adverse
action took place shortly after the
protected activity, giving rise to the
inference that it was a contributing
factor in the adverse action. If the
required showing has not been made,
the complainant (or the complainant’s
legal counsel, if complainant is
represented by counsel) will be so
notified and the investigation will not
commence.
(4) Notwithstanding a finding that a
complainant has made a prima facie
showing, as required by this section, an
investigation of the complaint will not
be conducted or will be discontinued if
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,
the Assistant Secretary will proceed
with the investigation. The investigation
will proceed whenever it is necessary or
appropriate to confirm or verify the
information provided by the
respondent.
(f) Prior to the issuance of findings
and a preliminary order as provided for
in § 1978.105, if the Assistant Secretary
has reasonable cause, on the basis of
information gathered under the
procedures of this part, to believe that
the respondent has violated the Act and
that preliminary reinstatement is
warranted, the Assistant Secretary will
again contact the respondent (or the
respondent’s legal counsel, if
respondent is represented by counsel) to
give notice of the substance of the
relevant evidence supporting the
complainant’s allegations as developed
during the course of the investigation.
This evidence includes any witness
statements, which will be redacted to
protect the identity of confidential
informants where statements were given
in confidence; if the statements cannot
be redacted without revealing the
identity of confidential informants,
summaries of their contents will be
provided. The complainant will also
receive a copy of the materials that must
be provided to the respondent under
this paragraph. Before providing such
materials to the complainant, the agency
will redact them, if necessary, in
accordance with the Privacy Act of
1974, 5 U.S.C. 552a, 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
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support of its position, and to present
legal and factual arguments. The
respondent must present this evidence
within 10 business days of the Assistant
Secretary’s notification pursuant to this
paragraph, or as soon thereafter as the
Assistant Secretary and the respondent
can agree, if the interests of justice so
require.
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§ 1978.105 Issuance of findings and
preliminary orders.
(a) After considering all the relevant
information collected during the
investigation, the Assistant Secretary
will issue, within 60 days of the filing
of the complaint, written findings as to
whether there is reasonable cause to
believe that the respondent has
retaliated against the complainant in
violation of STAA.
(1) If the Assistant Secretary
concludes that there is reasonable cause
to believe that a violation has occurred,
the Assistant Secretary will accompany
the findings with a preliminary order
providing relief. Such order will
require, where appropriate: affirmative
action to abate the violation;
reinstatement of the complainant to his
or her former position, with the same
compensation, terms, conditions and
privileges of the complainant’s
employment; and payment of
compensatory damages (backpay with
interest and compensation for any
special damages sustained as a result of
the retaliation, including any litigation
costs, expert witness fees, and
reasonable attorney fees which the
complainant has incurred). Interest on
backpay 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 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 the order
and to request a hearing. 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.
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(c) The findings and the preliminary
order will be effective 30 days after
receipt by the respondent (or the
respondent’s legal counsel if the
respondent is represented by counsel),
or on the compliance date set forth in
the preliminary order, whichever is
later, unless an objection and request for
a hearing have been timely filed as
provided at § 1978.106. However, the
portion of any preliminary order
requiring reinstatement will be effective
immediately upon the respondent’s
receipt of the findings and the
preliminary order, regardless of any
objections to the findings and/or the
order.
Subpart B—Litigation
§ 1978.106 Objections to the findings and
the preliminary order and request for a
hearing.
(a) Any party who desires review,
including judicial review, must file any
objections and a request for a hearing on
the record within 30 days of receipt of
the findings and preliminary order
pursuant to § 1978.105(c). The
objections and request for a hearing
must be in writing and state whether the
objections are to the findings and/or the
preliminary order. The date of the
postmark, facsimile transmittal, or
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 and the OSHA official who
issued the findings.
(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
circumstances. If no timely objection is
filed with respect to either the findings
or the preliminary order, the findings
and/or the preliminary order will
become the final decision of the
Secretary, not subject to judicial review.
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§ 1978.107
44137
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.
§ 1978.108
Role of Federal agencies.
(a)(1) The complainant and the
respondent will be parties in every
proceeding. In any case in which the
respondent objects to the findings or the
preliminary order the Assistant
Secretary ordinarily will be the
prosecuting party. In any other cases, at
the Assistant Secretary’s discretion, the
Assistant Secretary may participate as a
party or participate as amicus curiae at
any stage of the proceeding. This right
to participate includes, but is not
limited to, the right to petition for
review of a decision of an ALJ,
including a decision approving or
rejecting a settlement agreement
between the complainant and the
respondent.
(2) If the Assistant Secretary assumes
the role of prosecuting party in
accordance with paragraph (a)(1) of this
section, he or she may, upon written
notice to the ALJ or the Administrative
Review Board, as the case may be, and
the other parties, withdraw as the
prosecuting party in the exercise of
prosecutorial discretion. If the Assistant
Secretary withdraws, the complainant
will become the prosecuting party and
the ALJ or the Administrative Review
Board, as the case may be, will issue
appropriate orders to regulate the course
of future proceedings.
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(3) Copies of documents in all cases
shall be sent to the parties or, if they are
represented by counsel, to the latter. In
cases in which the Assistant Secretary is
a party, copies of documents shall be
sent to the Regional Solicitor’s Office
representing the Assistant Secretary.
(b) The Federal Motor Carrier Safety
Administration, if interested in a
proceeding, may participate as amicus
curiae at any time in the proceeding, at
its discretion. At the request of the
Federal Motor Carrier Safety
Administration, copies of all documents
in a case must be sent to that agency,
whether or not that agency is
participating in the proceeding.
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§ 1978.109 Decisions 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 or the Assistant
Secretary has satisfied the burden set
forth in the prior paragraph, relief may
not be ordered if the respondent
demonstrates by clear and convincing
evidence that it would have taken the
same adverse action in the absence of
any protected activity.
(c) Neither the Assistant Secretary’s
determination to dismiss a complaint
without completing an investigation
pursuant to § 1978.104(e) nor the
Assistant Secretary’s determination to
proceed with an investigation is subject
to review by the ALJ, and a complaint
may not be remanded for the
completion of an investigation or for
additional findings on the basis that a
determination to dismiss was made in
error. Rather, if there otherwise is
jurisdiction, the ALJ will hear the case
on the merits or dispose of the matter
without a hearing if the facts and
circumstances warrant.
(d)(1) If the ALJ concludes that the
respondent has violated the law, the ALJ
will issue an order that will require,
where appropriate: affirmative action to
abate the violation; reinstatement of the
complainant to his or her former
position with the same compensation,
terms, conditions, and privileges of the
complainant’s employment; payment of
compensatory damages (backpay with
interest and compensation for any
special damages sustained as a result of
the retaliation, including any litigation
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14:46 Jul 26, 2012
Jkt 226001
costs, expert witness fees, and
reasonable attorney fees which the
complainant may have incurred); and
payment of punitive damages up to
$250,000. Interest on backpay will be
calculated using the interest rate
applicable to underpayment of taxes
under 26 U.S.C. 6621 and will be
compounded daily.
(2) If the ALJ determines that the
respondent has not violated the law, an
order will be issued denying the
complaint.
(e) The decision will be served upon
all parties to the proceeding, the
Assistant Secretary, and the Associate
Solicitor, Division of Occupational
Safety and Health, 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. For ALJ decisions issued on
or after the effective date of the interim
final rule, August 31, 2010, 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. Any ALJ
decision issued on or after the effective
date of the interim final rule, August 31,
2010, will become the final order of the
Secretary unless a petition for review is
timely filed with the ARB and the ARB
accepts the decision for review.
§ 1978.110 Decisions and orders of the
Administrative Review Board.
(a) The Assistant Secretary or any
other party desiring to seek review,
including judicial review, of a decision
of the ALJ must file a written petition
for review with the ARB, 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 hand-delivery or other means, the
petition is considered filed upon
receipt. The petition must be served on
all parties and on the Chief
Administrative Law Judge at the time it
is filed with the ARB. Copies of the
petition for review and all briefs must
be served on the Assistant Secretary
and, in cases in which the Assistant
Secretary is a party, on the Associate
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Fmt 4700
Sfmt 4700
Solicitor, Division of Occupational
Safety and Health, U.S. Department of
Labor.
(b) If a timely petition for review is
filed pursuant to paragraph (a) of this
section, the decision of the ALJ will
become the final order of the Secretary
unless the ARB, within 30 days of the
filing of the petition, issues an order
notifying the parties that the case has
been accepted for review. If a case is
accepted for review, the decision of the
ALJ will be inoperative unless and until
the ARB issues an order adopting the
decision, except that 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 ruled
upon 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
Occupational Safety and Health, 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 require, where appropriate:
affirmative action to abate the violation;
reinstatement of the complainant to his
or her former position with the same
compensation, terms, conditions, and
privileges of the complainant’s
employment; payment of compensatory
damages (backpay with interest and
compensation for any special damages
sustained as a result of the retaliation,
including any litigation costs, expert
witness fees, and reasonable attorney
fees the complainant may have
incurred); and payment of punitive
damages up to $250,000. Interest on
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backpay will be calculated using the
interest rate applicable to underpayment
of taxes under 26 U.S.C. 6621 and will
be compounded daily.
(e) If the ARB determines that the
respondent has not violated the law, an
order will be issued denying the
complaint.
(f) Paragraphs (a) and (b) of this
section apply to all cases in which the
decision of the ALJ was issued on or
after August 31, 2010.
Subpart C—Miscellaneous Provisions
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§ 1978.111 Withdrawal of STAA
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 the Assistant
Secretary, orally or in writing, of his or
her withdrawal. The Assistant Secretary
then will confirm in writing the
complainant’s desire to withdraw and
determine whether to approve the
withdrawal. The Assistant Secretary
will notify the parties (and 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 § 1978.106,
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 preliminary
order become final, a party may
withdraw objections to the Assistant
Secretary’s findings and/or preliminary
order by filing a written withdrawal
with the ALJ. If a case is on review with
the ARB, a party may withdraw a
petition for review of an ALJ’s decision
at any time before that decision becomes
final by filing a written withdrawal with
the ARB. The ALJ or the ARB, as the
case may be, will determine whether to
approve the withdrawal of the
objections or the petition for review. If
the ALJ approves a request to withdraw
objections to the Assistant Secretary’s
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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 STAA
complaint and before the findings and/
or order are objected to or become a
final order by operation of law, the case
may be settled if the Assistant Secretary,
the complainant, and the respondent
agree to a settlement. The Assistant
Secretary’s approval of a settlement
reached by the respondent and the
complainant demonstrates the Assistant
Secretary’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 the
Assistant Secretary, the ALJ, or the ARB
will constitute the final order of the
Secretary and may be enforced in
United States district court pursuant to
49 U.S.C. 31105(e).
§ 1978.112
Judicial review.
(a) Within 60 days after the issuance
of a final order under §§ 1978.109 and
1978.110, any person adversely affected
or aggrieved by 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
person 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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§ 1978.113
44139
Judicial enforcement.
Whenever any person has failed to
comply with a preliminary order of
reinstatement or a final order, including
one approving a settlement agreement
issued under STAA, the Secretary may
file a civil action seeking enforcement of
the order in the United States district
court for the district in which the
violation was found to have occurred.
§ 1978.114 District court jurisdiction of
retaliation complaints under STAA.
(a) If there is no final order of the
Secretary, 210 days have passed since
the filing of the complaint, and there is
no showing that there has been delay
due to the bad faith of the complainant,
the complainant may bring an action at
law or equity for de novo review in the
appropriate district court of the United
States, which will have jurisdiction over
such an action without regard to the
amount in controversy. The action shall,
at the request of either party to such
action, be tried by the court with a jury.
(b) Within seven days after filing a
complaint in federal court, a
complainant must file with the
Assistant Secretary, the ALJ, or the ARB,
depending on where the proceeding is
pending, a copy of the file-stamped
complaint. A copy of the complaint also
must be served on the OSHA official
who issued the findings and/or
preliminary order, the Assistant
Secretary, and the Associate Solicitor,
Division of Occupational Safety and
Health, U.S. Department of Labor.
§ 1978.115
of rules.
Special circumstances; waiver
In special circumstances not
contemplated by the provisions of these
rules, or for good cause shown, the ALJ
or the ARB on review may, upon
application, after three days notice to all
parties, waive any rule or issue such
orders as justice or the administration of
STAA requires.
[FR Doc. 2012–17994 Filed 7–26–12; 8:45 am]
BILLING CODE 4510–26–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 117
[Docket No. USCG–2012–0692]
Drawbridge Operation Regulation;
Sacramento River, Sacramento, CA
Coast Guard, DHS.
Notice of temporary deviation
from regulations.
AGENCY:
ACTION:
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| File Type | application/pdf |
| File Modified | 2012-07-27 |
| File Created | 2012-07-27 |