29 CFR Part 1992 (AMLA Interim Final Rule)

Federal Register / Vol. 90, No. 8 / Tuesday, January 14, 2025 / Rules and Regulations
(11) Disregarded payment loss rules.
Section 1.1503(d)–1(d) applies to
taxable years beginning on or after
January 1, 2026. See also § 301.7701–
2(e)(10) of this chapter (applicability
dates for the entity classification
provisions relevant to the disregarded
payment loss rules).
(12) [Reserved].
(13) [Reserved].
(14) [Reserved].
(15) Anti-avoidance rule. Section
1.1503(d)–1(f) applies to dual
consolidated losses incurred in taxable
years ending on or after August 6, 2024,
and to disregarded payment losses in
taxable years beginning on or after
January 1, 2026.
(16) [Reserved].
(17) Deemed ordering rule. Section
1.1503(d)–3(c)(3) applies to dual
consolidated losses incurred in taxable
years beginning on or after January 1,
2026, and to disregarded payment losses
in taxable years beginning on or after
January 1, 2026. For the application of
the deemed ordering rule to dual
consolidated losses incurred in taxable
years beginning before January 1, 2026,
but on or after April 18, 2007, see
§ 1.1503(d)–3(c)(3) as contained in 26
CFR part 1 revised as of April 1, 2024.
(18) Exception to mirror legislation
rule for disregarded payment losses.
Section 1.1503(d)–3(e)(4) applies to
taxable years beginning on or after
January 1, 2026.
PART 301—PROCEDURE AND
ADMINISTRATION
Par. 6. The authority citation for part
301 is amended by adding an entry for
§ 301.7701–2 to read as follows:

■

(c)(2)(i) of this section is otherwise
disregarded as an entity separate from
its owner, are in effect taken into
account as if the entity were regarded
and the deduction was denied, and
therefore give rise to an income
inclusion, and corresponding
suspended deduction, to the entity’s
owner.
(B) Non-application of the sixtymonth limitation. If an eligible entity
that is disregarded as an entity separate
from its owner would become a
disregarded payment entity (within the
meaning of § 1.1503(d)–1(d)(5)(i)(A) of
this chapter) when this paragraph
(c)(2)(vii) applies, the sixty-month
limitation under § 301.7701–3(c)(1)(iv)
does not apply with respect to an
election by such eligible entity to
change its classification to an
association effective before January 1,
2026 (such that it would not become a
disregarded payment entity).
*
*
*
*
*
(e) * * *
(10) Paragraph (c)(2)(vii) of this
section (special rules for certain
disregarded payments) applies to
taxable years beginning on or after
January 1, 2026, except that paragraph
(c)(2)(vii)(B) of this section (nonapplication of sixty-month limitation)
applies as of August 6, 2024.
Douglas W. O’Donnell,
Deputy Commissioner.
Approved: January 2, 2025.
Aviva R. Aron-Dine,
Deputy Assistant Secretary of the Treasury
(Tax Policy).
[FR Doc. 2025–00318 Filed 1–10–25; 11:15 am]
BILLING CODE 4830–01–P

Authority: 26 U.S.C. 7805 * * *

*

*

*

*

*

Section 301.7701–2 also issued under 26
U.S.C. 7701.

*

*
*
*
*
■ Par. 7. Section 301.7701–2 is
amended by:
■ 1. In the last sentence of paragraph (a),
removing the language ‘‘(vi)’’ and
adding in its place the language ‘‘(vii)’’;
■ 2. Adding paragraph (c)(2)(vii); and
■ 3. Adding paragraph (e)(10).
The additions read as follows:
§ 301.7701–2
definitions.

Business entities;

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Occupational Safety and Health
Administration
29 CFR Part 1992
[Docket Number: OSHA–2022–0005]
RIN 1218–AD37

Procedures for the Handling of
Retaliation Complaints Under the AntiMoney Laundering Act of 2020 (AMLA)
Occupational Safety and Health
Administration (OSHA), Labor.
ACTION: Interim final rule; request for
comments.
AGENCY:

*

*
*
*
*
(c) * * *
(2) * * *
(vii) Special rules for certain
disregarded payments—(A) Disregarded
payment loss rules. To the extent
provided in § 1.1503(d)–1(d) of this
chapter, certain payments involving a
business entity that, under paragraph

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This document provides the
interim final text of regulations
governing the anti-retaliation provisions
of the Anti-Money Laundering Act of
2020 (AMLA or the Act). This rule

SUMMARY:

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establishes procedures and timeframes
for the handling of retaliation
complaints under AMLA, including
procedures and timeframes for
complaints to the Occupational Safety
and Health Administration (OSHA),
investigations by OSHA, appeals of
OSHA determinations to an
administrative law judge (ALJ) for a
hearing de novo, hearings by ALJs,
review of ALJ decisions by the
Administrative Review Board (ARB)
(acting on behalf of the Secretary of
Labor (Secretary)), and judicial review
of the Secretary’s final decision. It also
sets forth the Secretary’s interpretations
of the AMLA anti-retaliation provision
on certain matters.
DATES: This interim final rule is
effective on January 14, 2025.
Comments and additional materials
must be submitted (post-marked, sent or
received) by March 17, 2025.
ADDRESSES: Submit comments by the
following method:
Electronically: You may submit
comments and attachments
electronically at: https://
www.regulations.gov, which is the
Federal eRulemaking Portal. Follow the
instructions online for submitting
comments.
Docket: To read or download
comments or other material in the
docket, go to https://
www.regulations.gov. Documents in the
docket are listed in the https://
www.regulations.gov index; however,
some information (e.g., copyrighted
material) is not publicly available to
read or download through the website.
All submissions, including copyrighted
material, are available for inspection
through the OSHA Docket Office.
Contact the OSHA Docket Office at (202)
693–2350 (TTY (877) 889–5627) for
assistance in locating docket
submissions.
Instructions: All submissions must
include the agency name and the OSHA
docket number for this Federal Register
document (OSHA–2022–0005). OSHA
will place comments and requests to
speak, including personal information,
in the public docket, which may be
available online. Therefore, OSHA
cautions interested parties about
submitting personal information such as
Social Security numbers and birthdates.
For further information on submitting
comments, see the ‘‘Public
Participation’’ heading in the section of
this document titled SUPPLEMENTARY
INFORMATION.
Extension of comment period: Submit
requests for an extension of the
comment period on or before January
29, 2025 to the Directorate of

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Whistleblower Protection Programs,
Occupational Safety and Health
Administration, U.S. Department of
Labor, 200 Constitution Avenue NW,
Room N–3647, Washington, DC 20210,
or by fax to (202) 693–2199.
FOR FURTHER INFORMATION CONTACT:
Philippe Blanca´to, Investigative
Specialist, Directorate of Whistleblower
Protection Programs, Occupational
Safety and Health Administration, U.S.
Department of Labor, Room N–3647,
200 Constitution Avenue NW,
Washington, DC 20210; telephone (202)
693–2199 (this is not a toll-free number)
or email: [email protected]. This
Federal Register publication is available
in alternative formats.
SUPPLEMENTARY INFORMATION:
I. Background
On January 1, 2021, Congress enacted
the William M. (Mac) Thornberry
National Defense Authorization Act for
Fiscal Year 2021, Public Law 116–283,
134 Stat. 3388 (January 1, 2021) which
included significant reforms to the U.S.
anti-money laundering framework,
including the Anti-Money Laundering
Act of 2020. That law was, in turn,
amended by the Anti-Money
Laundering Whistleblower
Improvements Act, Sec. 401 of the
Consolidated Appropriations Act of
2023, Public Law 117–328, 136 Stat
4459 (enacted December 29, 2022). The
anti-retaliation provisions, codified at
31 U.S.C. 5323 (g)(1)–(3) & (5)–(6), and
referred to throughout this interim final
rule as AMLA, the Act, or the AMLA
anti-retaliation provisions, prohibit
retaliation by an employer against a
whistleblower in the terms and
conditions of employment or postemployment in reprisal for the
whistleblower having engaged in
protected activity.1 Protected activity
under AMLA includes any lawful act
done by a whistleblower in reporting
certain information to the Secretary of
the Treasury; Attorney General; a
Federal regulatory or law enforcement
agency; any Member of Congress or any
committee of Congress; or the employer
of the individual, including as part of
the job duties of the individual. The
employer includes ‘‘a person with
supervisory authority over the
whistleblower, or such other person
working for the employer who has the
authority to investigate, discover, or
terminate misconduct.’’ 31 U.S.C.
5323(g)(1)(A)(iv). Protected activity also
1 In

addition to the AMLA anti-retaliation
provisions, 31 U.S.C. 5323 establishes a
whistleblower award program administered by the
Department of the Treasury. That award program is
not a subject of this rulemaking.

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includes any lawful act done by a
whistleblower in initiating, testifying in,
or assisting in any investigation or
judicial or administrative action of the
Department of the Treasury or the
Department of Justice based upon or
related to such information. 31 U.S.C.
5323(g)(1)(B).
The information must relate to
violations of certain enumerated
statutes, including violations of 31
U.S.C. chapter 53, subchapter II (31
U.S.C. 5311–5336), chapter 35 or section
4305 or 4312 of title 50, U.S.C., or the
Foreign Narcotics Kingpin Designation
Act (21 U.S.C. 1901 et seq.), or
conspiracies to violate the
aforementioned provisions. 31 U.S.C.
5323(a)(5) (as amended). 31 U.S.C.
chapter 53, subchapter II is part of the
Bank Secrecy Act (BSA). The legislative
framework generally referred to as the
BSA consists of the Currency and
Foreign Transactions Reporting Act of
1970, Title II of Public Law 91–508
(October 26, 1970), as amended by the
Uniting and Strengthening America by
Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism Act
of 2001 (USA PATRIOT Act), Public
Law 107–56 (October 26, 2001), and
other legislation, including the AMLA.2
The Secretary of the Treasury is
authorized to administer the BSA and to
require financial institutions to keep
records and file reports that ‘‘are highly
useful in criminal, tax, or regulatory
investigations or proceedings’’ or in the
conduct of ‘‘intelligence or
counterintelligence activities, including
analysis, to protect against international
terrorism’’.3 Authority to implement,
administer, and enforce compliance
with the BSA and its implementing
regulations has been delegated to the
Director of the Financial Crimes
Enforcement Network (FinCEN), a
bureau of the Department of the
Treasury.4 See https://www.fincen.gov/
resources/statutes-and-regulations/
bank-secrecy-act; https://
bsaaml.ffiec.gov/. ‘‘Chapter 35 of Title
50’’ refers to the International
Emergency Economic Powers Act
(IEEPA), 50 U.S.C. 1701 et seq., as
amended, which authorizes the
President to take certain actions,
including, but not limited to, the
regulation of transactions subject to U.S.
jurisdiction involving property in which
any foreign country or foreign national
has an interest, to deal with any unusual
2 The BSA is codified at 12 U.S.C. 1829b, 12
U.S.C. 1951–1960, and 31 U.S.C. 5311–5314 and
5316–5336, and includes notes thereto, with
implementing regulations at 31 CFR chapter X.
3 31 U.S.C. 5311(1).
4 Treasury Order 180–01 (Jan. 14, 2020).

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or extraordinary threat, which has its
source in whole or in substantial part
outside the United States, to the
national security, foreign policy, or
economy of the United States, if the
President has declared a national
emergency with respect to such threat.
50 U.S.C. 4305 and 4312 are provisions
of the Trading with the Enemy Act
(TWEA); section 4305 authorizes during
time of war, among other measures,
regulation of transactions subject to U.S.
jurisdiction involving any property in
which a foreign country or foreign
national has an interest, while section
4312 authorizes seizure and holding of
foreign-owned property in trust during
times of war. The Foreign Narcotics
Kingpin Designation Act, 21 U.S.C. 1901
et seq., effectively applies the
authorities in the IEEPA, 50 U.S.C. 1701
et seq., to significant foreign narcotics
traffickers and their organizations
operating worldwide. See https://
ofac.treasury.gov/ (explaining the Office
of Foreign Asset Control (OFAC)
administration and enforcement of
IEEPA, TWEA, and the Foreign
Narcotics Kingpin Designation Act).
Providing information regarding any
conduct that the whistleblower
reasonably believes constitutes a
violation of any law, rule, or regulation
subject to the jurisdiction of the
Department of the Treasury, or a
violation of section 1956, 1957, or 1960
of title 18 (or any rule or regulation
under any such provision) is also
protected, if the information is provided
to a person with supervisory authority
over the whistleblower at the employer
of the whistleblower; or to another
individual working for the employer
who the whistleblower reasonably
believes has the authority to investigate,
discover, or terminate the misconduct;
or take any other action to address the
misconduct. See 31 U.S.C. 5323(g)(1)(C).
18 U.S.C. 1956 and 1957 are Federal
criminal statutes which prohibit money
laundering and related financial
transactions, while 18 U.S.C. 1960 is a
Federal criminal statute that prohibits
unlicensed money transmitting
businesses.
While the AMLA anti-retaliation
provision at 31 U.S.C. 5323(g) provides
broad protection against retaliation in
employment and post-employment for
whistleblowers, it also contains a
statutory exclusion from protection
under 31 U.S.C. 5323(g) for employees
of federally insured depository
institutions and credit unions covered
by the anti-retaliation provisions of two
separate federal statutes. 31 U.S.C.
5323(g)(6) (‘‘This subsection [31 U.S.C.
5323(g)] shall not apply with respect to
any employer that is subject to section

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33 of the Federal Deposit Insurance Act
(12 U.S.C. 23 1831j) or section 213 or
214 of the Federal Credit Union Act (12
U.S.C. 1790b, 1790c)’’).
This interim final rule establishes
procedures for the handling of
retaliation complaints under the Act.
II. Summary of Statutory Procedures
AMLA incorporates the rules,
procedures, and burdens of proof set
forth in the Wendell H. Ford Aviation
Investment and Reform Act for the 21st
Century (AIR21), 49 U.S.C. 42121(b),
with some exceptions. 31 U.S.C.
5323(g)(3)(A). Under AMLA, a person
who believes that they have been
discharged or otherwise retaliated
against in violation of the Act
(complainant) may file a complaint with
the Secretary of Labor (Secretary) within
90 days of the alleged retaliation. 31
U.S.C. 5323(g)(3)(A), incorporating the
requirements of 49 U.S.C. 42121(b).
Upon receipt of the complaint, the
Secretary must provide written notice to
each person named in the complaint
alleged to have violated the Act
(respondent) and to the complainant’s
employer (which in most cases will be
the respondent) of the filing of the
complaint, the allegations contained in
the complaint, the substance of the
evidence supporting the complaint, and
the rights afforded the respondent
throughout the investigation. 49 U.S.C.
42121(b)(1). The Secretary must then
conduct an investigation, within 60
days of receipt of the complaint, after
affording the respondent an opportunity
to submit a written response and to
meet with the investigator to present
statements from witnesses. 49 U.S.C.
42121(b)(2)(A).
The Secretary may conduct an
investigation only if the complainant
has made a prima facie showing that the
protected activity was a contributing
factor in the adverse action alleged in
the complaint and the respondent has
not demonstrated, through clear and
convincing evidence, that it would have
taken the same adverse action in the
absence of that activity. (See § 1992.104
for a summary of the investigation
process) OSHA interprets the prima
facie case requirement as allowing the
complainant to meet this burden
through the information the
complainant provides in the complaint
as supplemented by interviews of the
complainant.
After investigating a complaint, the
Secretary will issue written findings. If,
as a result of the investigation, the
Secretary finds there is reasonable cause
to believe that retaliation has occurred,
the Secretary must notify the
complainant and respondent of those

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findings, and issue a preliminary order
providing relief including reinstatement
with the same seniority status that the
individual would have had, but for the
retaliation, two times the amount of
back pay otherwise owed to the
individual, with interest; compensatory
damages, which shall include
compensation for litigation costs, expert
witness fees, and reasonable attorney
fees; and any other appropriate remedy
with respect to the conduct that is the
subject of the complaint or action, as
applicable.
The complainant and the respondent
then have 30 days after the date of
receipt of the Secretary’s notification in
which to file objections to the findings
and/or preliminary order and request a
hearing before an ALJ. The filing of
objections will not stay any
reinstatement order. However, under
OSHA’s regulations, the filing of
objections will stay any other remedy in
the preliminary order. If a hearing
before an ALJ is not requested within 30
days, the preliminary order becomes
final and is not subject to judicial
review.
If a hearing is held, the hearing must
be conducted ‘‘expeditiously.’’ 49 U.S.C.
42121(b)(2)(A). The Secretary then has
120 days after the conclusion of any
hearing to issue a final order, which
may provide appropriate relief or deny
the complaint. 49 U.S.C. 42121(b)(3)(A).
Until the Secretary’s final order is
issued, the Secretary, the complainant,
and the respondent may enter into a
settlement agreement that terminates the
proceeding. Id. Where the Secretary has
determined that a violation has
occurred, the Secretary will order relief
including reinstatement with the same
seniority status that the individual
would have had, but for the retaliation,
two times the amount of back pay
otherwise owed to the individual, with
interest; compensatory damages, which
shall include compensation for
litigation costs, expert witness fees, and
reasonable attorney fees; and any other
appropriate remedy with respect to the
conduct that is the subject of the
complaint or action, as applicable. The
Secretary also may award a prevailing
employer reasonable attorney fees, not
exceeding $1,000, if the Secretary finds
that the complaint is frivolous or has
been brought in bad faith. Within 60
days of the issuance of the final order,
any person adversely affected or
aggrieved by the Secretary’s final order
may file an appeal with the United
States Court of Appeals for the circuit in
which the violation allegedly occurred
or the circuit where the complainant
resided on the date of the violation. 49
U.S.C. 42121(b)(4).

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The Act permits the whistleblower to
bring an AMLA retaliation claim against
the employer in the appropriate United
States district court if the Secretary has
not issued a final decision within 180
days after the filing of the complaint
and there is no showing that the delay
is due to the bad faith of the
complainant. The court will have
jurisdiction over the action without
regard to the amount in controversy and
either party is entitled to request a trial
by jury.
The Act also states that the rights and
remedies provided in the AMLA antiretaliation provision may not be waived
by any agreement, policy form, or
condition of employment, including by
a predispute arbitration agreement. No
predispute arbitration agreement is
valid or enforceable, to the extent that
the agreement requires arbitration of a
dispute arising under the AMLA antiretaliation provision. 31 U.S.C. 5323(j).
Finally, under the Act, nothing in the
AMLA anti-retaliation provision shall
be deemed to diminish the rights,
privileges, or remedies of any
whistleblower under any Federal or
State law, or under any collective
bargaining agreement. 31 U.S.C.
5323(g)(5).
III. Summary and Discussion of
Regulatory Provisions
The regulatory provisions in this part
have been written and organized to be
consistent with other whistleblower
regulations promulgated by OSHA to
the extent possible within the bounds of
the statutory language of the Act.
Responsibility for receiving and
investigating complaints under the Act
has been delegated to the Assistant
Secretary for Occupational Safety and
Health (Assistant Secretary) by
Secretary of Labor’s Order No. 08–2020
(May 15, 2020), 85 FR 58393 (September
18, 2020). Hearings on determinations
by the Assistant Secretary are conducted
by the Office of Administrative Law
Judges, and appeals from decisions by
ALJs are decided by the ARB. See
Secretary of Labor’s Order 01–2020
(Feb. 21, 2020), 85 FR 13024–01 (Mar.
6, 2020) (Delegation of Authority and
Assignment of Responsibility to the
Administrative Review Board).
Subpart A—Complaints, Investigations,
Findings, and Preliminary Orders
Section 1992.100

Purpose and Scope

This section describes the purpose of
the regulations in this interim final rule
implementing the anti-retaliation
provisions of AMLA and provides an
overview of the procedures covered by
these regulations.

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Section 1992.101 Definitions
This section includes the general
definitions of certain terms used in this
rule. In particular, 31 U.S.C. 5323(a)(5)
defines the statutory term
‘‘whistleblower.’’ 31 U.S.C.
5323(a)(5)(A) provides that the term
‘‘whistleblower’’ means ‘‘any individual
who provides, or 2 or more individuals
acting jointly who provide, information
relating to a violation of this subchapter,
chapter 35 or section 4305 or 4312 of
title 50, the Foreign Narcotics Kingpin
Designation Act (21 U.S.C. 1901 et
seq.),’’ and ‘‘for conspiracies to violate
the aforementioned provisions to the
employer of the individual or
individuals, including as part of the job
duties of the individual or individuals,
or to the Secretary or the Attorney
General.’’ 31 U.S.C. 5323(a)(5)(B)
provides a special rule that expands the
definition of the term ‘‘whistleblower’’
solely for purposes of the antiretaliation provisions at 31 U.S.C.
5323(g)(1) to include ‘‘any individual
who takes, or 2 or more individuals
acting jointly who take, an action
described in subsection (g)(1)(A).’’ Thus,
a whistleblower who is protected
against retaliation under AMLA
includes any individual who meets the
criteria in 31 U.S.C. 5323(a)(5)(A) and/
or 31 U.S.C. 5323(a)(5)(B). To reflect the
provisions that define a
‘‘whistleblower’’ that is protected from
retaliation, OSHA has defined a
‘‘whistleblower’’ in these rules as ‘‘any
individual, or two or more individuals
acting jointly, who take any of the
actions described in § 1992.102(b).’’
Section 1992.102(b) in turn, as
described below, encompasses all of the
activities listed in 31 U.S.C. 5323(a)(5)
and (g)(1). Consistent with the broad
language of the statutory definition of
‘‘whistleblower,’’ which refers to ‘‘any
individual’’ or two or more individuals
acting jointly (31 U.S.C. 5323(a)(5)), the
approach that OSHA has taken in
defining covered employees under other
whistleblower protection provisions,
and applicable ARB case law, the
interim final rule includes in the
definition of ‘‘whistleblower’’ the
explanation that ‘‘[a] whistleblower
includes an individual presently or
formerly working for an employer, an
individual applying to work for an
employer, or an individual whose
employment could be affected by an
employer.’’ See, e.g., 29 CFR 1979.101
(AIR21 definition of employee); 29 CFR
1980.101(g) (Sarbanes-Oxley Act of 2002
(SOX) definition of employee). This
section also provides that the term
‘‘FinCEN’’ means the Financial Crimes
Enforcement Network, a bureau of the

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Department of the Treasury. As
explained below, under these rules
FinCEN will receive copies of
complaints and OSHA findings in
AMLA cases and the Department of the
Treasury may participate in AMLA
proceedings pending before an ALJ or
the ARB.
Section 1992.102 Obligations and
Prohibited Acts
This section describes the activities
that are protected under the Act and the
conduct that is prohibited in response to
any protected activities. The Act
prohibits an employer from directly or
indirectly discharging, demoting,
suspending, threatening, blacklisting,
harassing or in any other manner
discriminating against a whistleblower
in the terms and conditions of
employment or post-employment
because of any lawful act done by the
whistleblower to engage in protected
activity. Protected activity under AMLA
includes any lawful act done by the
whistleblower in providing certain
information to the Secretary of the
Treasury or the Attorney General, a
Federal regulatory or law enforcement
agency, a Member of Congress or a
Committee of Congress, or the employer.
The employer includes a person with
supervisory authority over the
whistleblower or such other person
working for the employer who has
authority to investigate, discover, or
terminate misconduct. The information
must relate to a violation of 31 U.S.C.
chapter 53, subchapter II (31 U.S.C.
5311–5336, requiring records and
reports on monetary instruments
transactions); 50 U.S.C. chapter 35 (50
U.S.C. 1701 et seq., as amended
(IEEPA)); 50 U.S.C. 4305 or 4312
(provisions of the Trading with the
Enemy Act); 21 U.S.C. 1901 et seq. (the
Foreign Narcotics Kingpin Designation
Act), or conspiracies to violate any of
the aforementioned provisions. 31
U.S.C. 5323(a)(5), (g)(1)(A).
Protected activity also includes any
lawful act done by the whistleblower in
initiating, testifying in, or assisting in
any investigation or judicial or
administrative action of the Department
of the Treasury or the Department of
Justice based upon or related to the
information described above. 31 U.S.C.
5323(g)(1)(B).
Finally, protected activity also
includes any lawful act done by the
whistleblower in providing information
regarding any conduct that the
whistleblower reasonably believes
constitutes a violation of any law, rule,
or regulation subject to the jurisdiction
of the Department of the Treasury, or a
violation of section 1956, 1957, or 1960

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of title 18 (or any rule or regulation
under any such provision) to a person
with supervisory authority over the
whistleblower at the employer of the
whistleblower; or another individual
working for the employer who the
whistleblower reasonably believes has
the authority to investigate, discover, or
terminate the misconduct; or take any
other action to address the misconduct.
31 U.S.C. 5323(g)(1)(C).
However, in keeping with the
statutory exclusion for employees of
federally insured depository institutions
and credit unions at 31 U.S.C.
5323(g)(6), which applies only to the
anti-retaliation provisions in 31 U.S.C.
5323(g), this section (29 CFR 1992.102)
does not apply with respect to any
employer that is subject to section 33 of
the Federal Deposit Insurance Act (12
U.S.C. 1831j) or section 213 or 214 of
the Federal Credit Union Act (12 U.S.C.
1790b, 1790c). 31 U.S.C. 5323(g)(6),
which provide separate protections from
retaliation for certain categories of
whistleblowing for those employees.
To engage in protected activity under
this section, the whistleblower need not
show that the conduct complained of is
an actual violation of one of the
provisions of law listed in the statute.
The statute protects the provision of
information relating to a violation of a
relevant law or a conspiracy to violate
a relevant law (31 U.S.C. 5323(a)(5)) and
information regarding conduct that the
employee reasonably believes
constitutes a violation of a relevant law
(31 U.S.C. 5323(g)(1)(C)). In providing
broad protection for such information,
the statutory language reflects
Congress’s desire to encourage reporting
not only to expose but also to prevent
money laundering and related violations
of law. Cf. Sylvester v. Parexel Int’l LLC,
ARB No. 07–123, 2011 WL 2165854, at
*18 (ARB May 25, 2011) (explaining
with respect to an analogous SOX
whistleblower provision that ‘‘[t]he
purpose of Section 806, and the SOX in
general, is to protect and encourage
greater disclosure. Section 806 exists
not only to expose existing fraud, i.e.,
conduct satisfying the elements of a
fraud claim, but also to prevent
potential fraud in its earliest stages.’’).
Indeed, case law under analogous antiretaliation provisions, such as SOX,
makes clear that a report based on a
whistleblower’s reasonable but mistaken
belief that reported conduct could lead
to a violation is protected. See Van
Asdale v. Int’l Game Techs., 577 F.3d
989, 1001 (9th Cir. 2009); Allen v.
Admin. Review Bd., 514 F.3d 468, 477
(5th Cir. 2008).
To have a reasonable belief that there
is a violation of relevant law, the

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whistleblower must subjectively believe
that the conduct is a violation and that
belief must be objectively reasonable.
See, e.g., Rhinehimer v. U.S. Bancorp.
Invs., Inc., 787 F.3d 797, 811 (6th Cir.
2015) (discussing the reasonable belief
standard under analogous language in
the SOX whistleblower provision, 18
U.S.C. 1514A) (citations omitted); Harp
v. Charter Commc’ns, Inc., 558 F.3d
722, 723 (7th Cir. 2009) (agreeing with
First, Fourth, Fifth, and Ninth Circuits
that determining reasonable belief under
the SOX whistleblower provision
requires analysis of the complainant’s
subjective belief and the objective
reasonableness of that belief); Sylvester,
2011 WL 2165854, at *11–12 (same).
The requirement that the whistleblower
have a subjective, good faith belief is
satisfied so long as the whistleblower
actually believed that the conduct at
issue violated the relevant law or
regulation. See Sylvester, 2011 WL
2165854, at *11–12 (citing Harp, 558
F.3d at 723; Day v. Staples, Inc., 555
F.3d 42, 54 n.10 (1st Cir. 2009)). The
objective reasonableness of a
whistleblower’s belief is typically
determined ‘‘based on the knowledge
available to a reasonable person in the
same factual circumstances with the
same training and experience as the
aggrieved employee.’’ Harp, 558 F.3d at
723 (quoting Allen, 514 F.3d at 477).
Section 1992.103 Filing of Retaliation
Complaint
This section explains the
requirements for filing a retaliation
complaint under the AMLA antiretaliation provisions. To be timely, a
complaint must be filed within 90 days
of when the alleged violation occurs.
Under Delaware State College v. Ricks,
449 U.S. 250, 258 (1980), an alleged
violation occurs when the retaliatory
decision has been made and
communicated to the complainant. In
other words, the limitations period
commences once the individual is
aware or reasonably should be aware of
the employer’s decision to take an
adverse action. EEOC v. United Parcel
Serv., Inc., 249 F.3d 557, 561–62 (6th
Cir. 2001). The time for filing a
complaint under AMLA may be tolled
or equitably modified for reasons
warranted by applicable case law. For
example, OSHA may consider the time
for filing a complaint to be tolled if a
complainant mistakenly files a
complaint with an agency other than
OSHA within 90 days after an alleged
adverse action. Xanthopoulos v. U.S.
Dep’t of Labor, 991 F.3d 823, 832 (7th
Cir. 2021) (affirming ARB’s refusal to
toll the statute of limitations under SOX
and explaining the limited

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circumstances in which tolling is
appropriate for a timely filing in the
wrong forum); see also Martin v.
Paragon Foods, ARB No. 2022–0058
(June 8, 2023) (explaining the
distinction between equitable estoppel
and tolling). Retaliation complaints filed
under this section need not be in any
particular form. They may be either oral
or in writing. If the complainant is
unable to file the complaint in English,
OSHA will accept the complaint in any
language. With the consent of the
whistleblower, complaints may be filed
by any person on the whistleblower’s
behalf.
Section 1992.104 Investigation
This section describes the procedures
that apply to OSHA’s investigation of
AMLA retaliation complaints. Paragraph
(a) of this section outlines the
procedures for notifying the respondent,
the employer (if different from the
respondent), and FinCEN of the
complaint and notifying the respondent
of the rights under these regulations.
Paragraph (b) describes the procedures
for the respondent to submit the
response to the complaint. Paragraph (c)
specifies that OSHA will request that
the parties provide each other with
copies of their submissions to OSHA
during the investigation and that, if a
party does not provide such copies,
OSHA generally will do so at a time
permitting the other party an
opportunity to respond to those
submissions. Before providing such
materials, OSHA will redact them
consistent with the Privacy Act of 1974,
5 U.S.C. 552a and other applicable
confidentiality laws. Paragraph (d) of
this section discusses confidentiality of
information provided during
investigations.
Paragraph (e) of this section sets forth
the applicable burdens of proof. AMLA
incorporates the burdens of proof in
AIR21. 31 U.S.C. 5323(g)(3)(A),
incorporating the burdens of proof in 49
U.S.C. 42121(b). Thus, in order for
OSHA to conduct an investigation,
AMLA requires that a complainant
make an initial prima facie showing that
a protected activity was ‘‘a contributing
factor’’ in the adverse action alleged in
the complaint, i.e., that the protected
activity, alone or in combination with
other factors, affected in some way the
outcome of the employer’s decision. The
complainant will be considered to have
met the required burden for OSHA to
commence an investigation 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.

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The complainant’s burden at this stage
may be satisfied, for example, if the
complainant shows that the adverse
action took place shortly after the
protected activity.
If the complainant does not make the
required prima facie showing, the
investigation must be discontinued and
the complaint dismissed. See Trimmer
v. U.S. Dep’t of Labor, 174 F.3d 1098,
1101 (10th Cir. 1999) (noting that the
burden-shifting framework of the Energy
Reorganization Act of 1974, as
amended, (ERA) which is the same as
that under AMLA, serves a ‘‘gatekeeping
function’’ intended to ‘‘stem[] frivolous
complaints’’). Even in cases where the
complainant successfully makes a prima
facie showing, the investigation must be
discontinued if the employer
demonstrates, by clear and convincing
evidence, that it would have taken the
same adverse action in the absence of
the protected activity. Thus, OSHA
must dismiss the complaint and not
investigate further if either: (1) the
complainant fails to make the prima
facie showing that protected activity
was a contributing factor in the alleged
adverse action; or (2) the employer
rebuts that showing by clear and
convincing evidence that it would have
taken the same adverse action absent the
protected activity.
Assuming that an investigation
proceeds beyond the gatekeeping phase,
the statute requires OSHA to determine
whether there is reasonable cause to
believe that protected activity was a
contributing factor in the alleged
adverse action. A contributing factor is
‘‘any factor which, alone or in
connection with other factors, tends to
affect in any way the outcome of the
decision.’’ Wiest v. Tyco Elec. Corp., 812
F.3d 319, 330 (3d Cir. 2016) (discussing
‘‘contributing factor standard’’ under
SOX); Feldman v. Law Enforcement
Assocs. Corp., 752 F.3d 339, 348 (4th
Cir. 2014) (same); Lockheed Martin
Corp. v. Admin. Review Bd., 717 F.3d
1121, 1136 (10th Cir. 2013) (same). A
conclusion that protected activity was a
contributing factor in an adverse action
can be based on direct evidence or
circumstantial evidence ‘‘such as the
temporal proximity between the
protected activity and the adverse
action, indications of pretext such as
inconsistent application of policies and
shifting explanations, antagonism or
hostility toward protected activity, the
relation between the discipline and the
protected activity, and the presence [or
absence] of intervening events that
independently justify’’ the adverse
action. Hess v. Union Pac. R.R. Co., 898
F.3d 852, 858 (8th Cir. 2018) (quoted
source omitted) (discussing the

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contributing factor standard under the
Federal Railroad Safety Act). The
evidence must show that the protected
activity was a contributing factor in the
unfavorable personnel action but the
whistleblower does not need to prove
that his or her employer acted with
‘‘retaliatory intent.’’ Murray v. UBS
Securities, LLC, 601 U.S. 23, 39 (2024).
If OSHA finds reasonable cause to
believe that the alleged protected
activity was a contributing factor in the
adverse action, OSHA may not order
relief if the employer demonstrates by
‘‘clear and convincing evidence’’ that it
would have taken the same action in the
absence of the protected activity. See 49
U.S.C. 42121(b)(2)(B)(iv). The ‘‘clear and
convincing evidence’’ standard is a
higher burden of proof than a
‘‘preponderance of the evidence’’
standard. Clear and convincing
evidence is evidence indicating that the
thing to be proved is highly probable or
reasonably certain. Clarke v. Navajo
Express, ARB No. 09–114, 2011 WL
2614326, at *3 (ARB June 29, 2011).
Paragraph (f) describes the procedures
OSHA will follow prior to the issuance
of findings and a preliminary order
when OSHA has reasonable cause to
believe that a violation has occurred and
reinstatement is required. Their purpose
is to ensure compliance with the Due
Process Clause of the Fifth Amendment,
as interpreted by the Supreme Court in
Brock v. Roadway Express, Inc., 481
U.S. 252 (1987) (requiring OSHA to give
a Surface Transportation Assistance Act
respondent the opportunity to review
the substance of the evidence and
respond prior to ordering preliminary
reinstatement).
Section 1992.105 Issuance of Findings
and Preliminary Orders
This section provides that, on the
basis of information obtained in the
investigation, the Assistant Secretary
will issue, within 60 days of the filing
of a complaint, written findings
regarding whether or not there is
reasonable cause to believe that the
complaint has merit. If the findings are
that there is reasonable cause to believe
that the complaint has merit, the
Assistant Secretary will order
reinstatement with the same seniority
status that the complainant would have
had, but for the retaliation; double back
pay with interest; and compensatory
damages, including litigation costs,
expert witness fees, and reasonable
attorney fees, as well as any other
appropriate remedy for the retaliation,
as applicable. The findings and, where
appropriate, preliminary order, will also
advise the parties of their right to file
objections to the findings of the

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Assistant Secretary and to request a
hearing. The findings and, where
appropriate, the preliminary order, will
also advise the respondent of the right
to request an award of attorney fees not
exceeding a total of $1,000 from the ALJ,
regardless of whether the respondent
has filed objections, if the respondent
alleges that the complaint was frivolous
or brought in bad faith. If no objections
are filed within 30 days of receipt of the
findings, the findings and any
preliminary order of the Assistant
Secretary become the final decision and
order of the Secretary. If objections are
timely filed, any order of preliminary
reinstatement will take effect, but the
remaining provisions of the order will
not take effect until administrative
proceedings are completed.
The remedies provided under AMLA
aim to make the complainant whole by
restoring the complainant to the
position that the complainant would
have occupied absent the retaliation and
to counteract the chilling effect of
retaliation on protected whistleblowing
in the complainant’s workplace. The
back pay, benefits, and other remedies
appropriate in each case will depend on
the individual facts of the case and the
evidence submitted, and the
complainant’s interim earnings must be
taken into account in determining the
appropriate back pay award. When there
is evidence to determine these figures,
a back pay award under AMLA might
include, for example, amounts that the
complainant would have earned in
commissions, bonuses, overtime, or
raises had the complainant not been
discharged in retaliation for engaging in
protected activity under AMLA. Lost
benefits may also be included in a back
pay award under AMLA when there is
evidence to support an award for lost
benefits. Such benefits might include
amounts that the employer would have
contributed to a 401(k) plan, insurance
plan, profit-sharing plan, or retirement
plan on the complainant’s behalf had
the complainant not been discharged in
retaliation for engaging in protected
activity under AMLA. Other damages,
including non-pecuniary damages, such
as damages for emotional distress due to
the retaliation, are also available under
AMLA. See, e.g., Jones v. Southpeak
Interactive Corp. of Del., 777 F.3d 658,
670–71 (4th Cir. 2015) (holding that
emotional distress damages are available
under an identical remedial provision in
SOX); Halliburton, Inc. v. Admin.
Review Bd., 771 F.3d 254, 264–66 (5th
Cir. 2014) (same). Consistent with the
rules under other whistleblower statutes
enforced by the Department of Labor, in
ordering interest on any back pay award

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under AMLA, OSHA will compute
interest due by compounding daily the
Internal Revenue Service interest rate
for the underpayment of taxes, which
under 26 U.S.C. 6621 generally is the
Federal short-term rate plus three
percentage points, against back pay. See,
e.g., 29 CFR 1980.105(a) (SOX); 29 CFR
1982.105(a) (Federal Railroad Safety Act
(FRSA)); 29 CFR 1988.105(a) (Moving
Ahead for Progress in the 21st Century
Act (MAP–21)).
Consistent with the rules governing
other Department of Labor-enforced
whistleblower protection statutes,
where appropriate, in ordering back
pay, OSHA will require the respondent
to submit the appropriate
documentation to the Social Security
Administration (SSA) allocating the
back pay to the appropriate periods.
See, e.g., 29 CFR 1980.105(a) (SOX); 29
CFR 1982.105(a) (FRSA); 29 CFR
1988.105(a) (MAP–21)).
The statute permits OSHA to
preliminarily reinstate whistleblowers
to their positions if OSHA finds
reasonable cause to believe that they
were discharged in violation of AMLA.
See 49 U.S.C. 42121(b)(2)(A). When a
violation is found, the norm is for
OSHA to order immediate preliminary
reinstatement. In appropriate
circumstances, in lieu of preliminary
reinstatement, OSHA may order that the
complainant receive the same pay and
benefits that the complainant received
prior to termination but not actually
return to work. Such ‘‘economic
reinstatement’’ is akin to an order of
front pay and is sometimes employed in
cases arising under section 105(c) of the
Federal Mine Safety and Health Act of
1977, which protects miners from
retaliation. 30 U.S.C. 815(c); see, e.g.,
Sec’y of Labor, MSHA v. North Fork
Coal Corp., 33 FMSHRC 589, 2011 WL
1455831, at *4 (FMSHRC Mar. 25, 2011)
(explaining economic reinstatement in
lieu of temporary reinstatement in the
context of section 105(c)). Front pay has
been recognized as an appropriate
remedy in cases under the
whistleblower statutes enforced by
OSHA in circumstances where
reinstatement would not be appropriate.
See, e.g., Deltek, Inc. v. Dep’t of Labor,
Admin. Rev Bd., 649 Fed. App’x. 320,
333 (4th Cir. 2016) (affirming award of
front pay in SOX case due to
‘‘pronounced animosity between the
parties;’’ explaining that ‘‘front pay ‘is
designed to place the complainant in
the identical financial position’ that she
would have occupied had she remained
employed or been reinstated.’’);
Continental Airlines, Inc. v. Admin.
Review Bd., 638 Fed. App’x. 283, 289–
90, 2016 WL 97461, at *4 (5th Cir. 2016)

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(affirming front pay award under AIR21,
and explaining that ‘‘front-pay is
available when reinstatement is not
possible’’), aff’g Luder v. Cont’l Airlines,
Inc., ARB No. 10–026, 2012 WL 376755,
at *11 (ARB Jan. 31, 2012); see also
Brown v. Lockheed Martin Corp., ALJ
No. 2008–SOX–00049, 2010 WL
2054426, at *55–56 (ALJ Jan. 15, 2010)
(noting that while reinstatement is the
‘‘presumptive remedy’’ under SOX
whistleblower provision, front pay may
be awarded as a substitute when
reinstatement is inappropriate), aff’d
Lockheed Martin Corp. v. Admin.
Review Bd., 717 F.3d 1121, 1138 (10th
Cir. 2013) (noting availability of all
relief necessary to make the employee
whole in SOX case but remanding for
DOL to quantify remedies); Indiana
Michigan Power Co. v. U.S. Dept. of
Labor, 278 Fed. Appx. 597, 606 (6th Cir.
2008) (affirming front pay award under
ERA). Neither an employer nor a
whistleblower 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 immediate
reinstatement is inadvisable for some
reason, notwithstanding the employer’s
retaliatory discharge of the
whistleblower.

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Subpart B—Litigation
Section 1992.106 Objections to the
Findings and the Preliminary Order and
Requests for a Hearing
Objections to the findings of the
Assistant Secretary must be in writing
and must be filed with the Chief
Administrative Law Judge, U.S.
Department of Labor, in accordance
with 29 CFR part 18, as applicable,
within 30 days of the receipt of the
findings. The date of the postmark,
facsimile transmittal, or electronic
transmittal is considered the date of the
filing; if the objection is filed in person,
by hand-delivery or other means, the
objection is filed upon receipt. The
filing of objections also is considered a
request for a hearing before an ALJ.
Although the parties are directed to
serve a copy of their objections on the
other parties of record, as well as on the
OSHA official who issued the findings
and order, the Assistant Secretary, and
the U.S. Department of Labor’s
Associate Solicitor for Fair Labor
Standards, the failure to serve copies of
the objections on the other parties of
record does not affect the ALJ’s
jurisdiction to hear and decide the
merits of the case. See Shirani v. Calvert
Cliffs Nuclear Power Plant, Inc., ARB
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(ARB Oct. 31, 2005). OSHA and the
Associate Solicitor for Fair Labor
Standards may specify the means,
including electronic means, to serve
them with copies of objections to
OSHA’s findings.
The timely filing of objections stays
all provisions of the preliminary order,
except for the portion requiring
reinstatement. A respondent may file a
motion to stay the Assistant Secretary’s
preliminary order of reinstatement with
the Office of Administrative Law Judges.
However, such a motion will be granted
only based on exceptional
circumstances. The Secretary believes
that a stay of the Assistant Secretary’s
preliminary order of reinstatement
under AMLA would be appropriate only
where the respondent can establish the
necessary criteria for equitable
injunctive relief, i.e., irreparable injury,
likelihood of success on the merits, a
balancing of possible harms to the
parties, and that the public interest
favors a stay. If no timely objection to
the Assistant Secretary’s findings and/or
preliminary order is filed, then the
Assistant Secretary’s findings and/or
preliminary order become the final
decision of the Secretary not subject to
judicial review.
Section 1992.107 Hearings
This section adopts the rules of
practice and procedure for
administrative hearings before the
Office of Administrative Law Judges, as
set forth in 29 CFR part 18, subpart A.
This section provides that the hearing is
to commence expeditiously, except
upon a showing of good cause or unless
otherwise agreed to by the parties.
Hearings will be conducted de novo, on
the record. As noted in this section,
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.
Section 1992.108 Role of Federal
Agencies
The Assistant Secretary may
participate as a party or amicus curiae
at any time in the administrative
proceedings under AMLA. For example,
the Assistant Secretary may exercise
discretion to prosecute the case in the
administrative proceeding before an
ALJ; petition for review of a decision of
an ALJ, including a decision based on
a settlement agreement between the
complainant and the respondent,
regardless of whether the Assistant
Secretary participated before the ALJ; or
participate as amicus curiae before the
ALJ or the ARB. Although OSHA

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anticipates that ordinarily the Assistant
Secretary will not participate, the
Assistant Secretary may choose to do so
in appropriate cases, such as cases
involving important or novel legal
issues, multiple whistleblowers, alleged
violations that appear egregious, or
where the interests of justice might
require participation by the Assistant
Secretary. The Department of the
Treasury, if interested in a proceeding,
also may participate as amicus curiae at
any time in the proceedings.
Section 1992.109 Decisions and
Orders of the Administrative Law Judge
This section sets forth the
requirements for the content of the
decisions and orders of the ALJ, and
includes the standard for finding a
violation under AMLA. Specifically,
because AMLA incorporates the
burdens of proof in AIR21, the
complainant must demonstrate (i.e.,
prove by a preponderance of the
evidence) that the protected activity was
a ‘‘contributing factor’’ in the adverse
action. See 49 U.S.C. 42121(b)(2)(B)(iii);
see, e.g., Allen, 514 F.3d at 475 n.1
(‘‘The term ‘demonstrates’ [under
identical burden-shifting scheme in the
SOX whistleblower provision] means to
prove by a preponderance of the
evidence.’’). If the whistleblower
demonstrates that the alleged protected
activity was a contributing factor in the
adverse action, then the employer must
demonstrate by ‘‘clear and convincing
evidence’’ that it would have taken the
same action in the absence of the
protected activity. See 49 U.S.C.
42121(b)(2)(B)(iv).
Paragraph (c) of this section further
provides that OSHA’s determination to
dismiss the complaint without an
investigation or without a complete
investigation under § 1992.104 is not
subject to review. Thus, § 1992.109(c)
clarifies that OSHA’s determinations on
whether to proceed with an
investigation under AMLA and whether
to make particular investigative findings
are discretionary decisions not subject
to review by the ALJ. The ALJ hears
cases de novo and, therefore, as a
general matter, may not remand cases to
OSHA to conduct an investigation or
make further factual findings.
Paragraph (d) notes the remedies that
the ALJ may order under AMLA and, as
discussed under § 1992.105 above,
provides that interest on any back pay
award will be calculated using the
interest rate applicable to underpayment
of taxes under 26 U.S.C. 6621 and will
be compounded daily, and that the
respondent will be required to submit
appropriate documentation to the SSA
allocating any back pay award to the

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appropriate periods. Paragraph (e)
requires that the ALJ’s decision be
served on all parties to the proceeding,
OSHA, and the U.S. Department of
Labor’s Associate Solicitor for Fair
Labor Standards. OSHA and the
Associate Solicitor for Fair Labor
Standards may specify the means,
including electronic means, for service
of the ALJ’s decision on them.
Paragraph (e) also provides that any ALJ
decision requiring reinstatement or
lifting an order of reinstatement by the
Assistant Secretary will be effective
immediately upon receipt of the
decision by the respondent. All other
portions of the ALJ’s order will be
effective 30 days after the date of the
decision unless a timely petition for
review has been filed with the ARB. If
a timely petition for review is not filed
with the ARB, the decision of the ALJ
becomes the final decision of the
Secretary and is not subject to judicial
review.
Section 1992.110 Decisions and
Orders of the Administrative Review
Board
Upon the issuance of the ALJ’s
decision, the parties have 30 days
within which to petition the ARB for
review of that decision. The date of the
postmark or electronic transmittal is
considered the date of filing of the
petition; if the petition is filed in
person, by hand delivery, or other
means, the petition is considered filed
upon receipt.
The appeal provisions in this part
provide that an appeal to the ARB is
only accepted at the discretion of the
ARB. The parties should identify with
some specificity in their petitions for
review the legal conclusions or orders to
which they object, or the objections may
be deemed waived. Simply attaching the
order objected to will not suffice for a
petition for review. The ARB has 30
days to decide whether to grant the
petition for review. If the ARB does not
grant the petition, the decision of the
ALJ becomes the final decision of the
Secretary. If a timely petition for review
is filed with the ARB, any relief ordered
by the ALJ, except for that portion
ordering reinstatement, is inoperative
while the matter is pending before the
ARB. When the ARB accepts a petition
for review, the ALJ’s factual
determinations will be reviewed under
the substantial evidence standard, while
questions of law will be reviewed de
novo. Sylvester, 2011 WL 2165854, at
*6.
This section also provides that, based
on exceptional circumstances, the ARB
may grant a motion to stay an ALJ’s
preliminary order of reinstatement

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under AMLA (which otherwise would
be effective immediately), while the
ARB reviews the order. The Secretary
believes that a stay of an ALJ’s
preliminary order of reinstatement
under AMLA would be appropriate only
where the respondent can establish the
necessary criteria for equitable
injunctive relief, i.e., irreparable injury,
likelihood of success on the merits, a
balancing of possible harms to the
parties, and that the public interest
favors a stay.
If the ARB concludes that the
respondent has violated the law, it will
issue an order providing relief. The
order will require, where appropriate:
reinstatement with the same seniority
status that the complainant would have
had, but for the retaliation; double back
pay with interest; and compensatory
damages, including litigation costs,
expert witness fees, and reasonable
attorney fees, as well as any other
appropriate remedy for the retaliation,
as applicable. Interest on any back pay
award will be calculated using the
interest rate applicable to underpayment
of taxes pursuant to 26 U.S.C. 6621 and
will be compounded daily, and the
respondent will be required to submit
appropriate documentation to the SSA
allocating any back pay award to the
appropriate periods. If the ARB
determines that the respondent has not
violated the law, an order will be issued
denying the complaint. If, upon the
request of the respondent, the ARB
determines that a complaint was
frivolous or was brought in bad faith,
the ARB may award to the respondent
a reasonable attorney fee, not exceeding
a total of $1,000.
The decision of the ARB is subject to
discretionary review by the Secretary of
Labor. See Secretary of Labor’s Order,
01–2020 (Feb. 21, 2020), 85 FR 13024–
01 (Mar. 6, 2020). As provided in that
Secretary’s Order, a party may petition
the ARB to refer a decision to the
Secretary for further review, after which
the Secretary may accept review,
decline review, or take no action. If no
such petition is filed, the ARB’s
decision shall become the final action of
the Department 28 calendar days after
the date on which the decision was
issued. If such a petition is filed and the
ARB declines to refer the case to the
Secretary, the ARB’s decision shall
become final 28 calendar days after the
date on which the petition for review
was filed. If the ARB refers a decision
to the Secretary for further review, and
the Secretary takes no action in
response to the ARB’s referral, or
declines to accept the case for review,
the ARB’s decision shall become final
either 28 calendar days from the date of

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the referral, or on the date on which the
Secretary declines review, whichever
comes first.
In the alternative, under the
Secretary’s Order, at any point during
the first 28 calendar days after the date
on which an ARB decision was issued,
the Secretary may direct the ARB to
refer the decision to the Secretary for
review. If the Secretary directs the ARB
to refer a case to the Secretary or notifies
the parties that the case has been
accepted for review, the ARB’s decision
shall not become the final action of the
Department and shall have no legal
force or effect, unless and until the
Secretary adopts the ARB’s decision.
Under the Secretary’s Order, any final
decision made by the Secretary shall be
made solely based on the administrative
record, the petition and briefs filed with
the ARB, and any amicus briefs
permitted by the Secretary. The decision
shall be in writing and shall be
transmitted to the ARB, which will
publish the decision and transmit it to
the parties to the case. The Secretary’s
decision shall constitute final action by
the Department and shall serve as
binding precedent in all Department
proceedings involving the same issue or
issues.
Subpart C—Miscellaneous Provisions
Section 1992.111 Withdrawal of
Complaints, Findings, Objections, and
Petitions for Review; Settlement
This section provides the procedures
and time periods for withdrawal of
complaints, withdrawal of findings and/
or preliminary orders by the Assistant
Secretary, and withdrawal of objections
to findings and/or orders. It permits
complainants to withdraw their
complaints orally, and provides that, in
such circumstances, OSHA will confirm
a complainant’s desire to withdraw in
writing. It also provides for approval of
settlements at the investigative and
adjudicatory stages of the case.
Section 1992.112

Judicial Review

This section describes the statutory
provisions for judicial review of
decisions of the Secretary and requires,
in cases where judicial review is sought,
the ARB or the ALJ to submit the record
of proceedings to the appropriate court
pursuant to the rules of such court.
Section 1992.113

Judicial Enforcement

This section describes the ability of
the Secretary, the complainant, and the
respondent under AMLA to obtain
judicial enforcement of orders and terms
of settlement agreements. Through the
incorporation of the rules and
procedures in AIR21, AMLA authorizes

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district courts to enforce orders issued
by the Secretary under the provisions of
49 U.S.C. 42121(b). Specifically, 49
U.S.C. 42121(b)(5) provides that
‘‘[w]henever any person has failed to
comply with an order issued under
paragraph (3), the Secretary of Labor
may file a civil action in the United
States district court for the district in
which the violation was found to occur
to enforce such order. In actions brought
under this paragraph, the district courts
shall have jurisdiction to grant all
appropriate relief, including injunctive
relief and compensatory damages.’’ 49
U.S.C. 42121(b)(5). Similarly, 49 U.S.C.
42121(b)(6) provides that a person on
whose behalf an order was issued ‘‘may
commence a civil action against the
person to whom such order was issued
to required compliance with such
order’’ in the appropriate United States
district court, which will have
jurisdiction without regard to the
amount in controversy or the
citizenship of the parties, to enforce
such order. The Secretary views these
provisions as permitting district courts
to enforce both final orders of the
Secretary and preliminary orders of
reinstatement for the same reasons that
the Secretary has expressed with regard
to SOX, which incorporates the rules
and procedures of AIR21 using identical
language to that in AMLA. See
Procedures for the Handling of
Retaliation Complaints Under section
806 of the Sarbanes-Oxley Act of 2002,
as Amended, Final Rule, 80 FR 11865–
02, 11877 (Mar. 5, 2015) (discussing
district court enforcement of
preliminary reinstatement orders under
SOX); see also Brief for the Intervenor/
Plaintiff-Appellee Secretary of Labor,
Solis v. Tenn. Commerce Bancorp, Inc.,
No. 10–5602 (6th Cir. 2010); Solis v.
Tenn. Commerce Bancorp, Inc., 713 F.
Supp. 2d 701 (M.D. Tenn. 2010); but see
Bechtel v. Competitive Techs., Inc., 448
F.3d 469 (2d Cir. 2006); Welch v.
Cardinal Bankshares Corp., 454 F.
Supp. 2d 552 (W.D. Va. 2006), decision
vacated, appeal dismissed, No. 06–2295
(4th Cir. Feb. 20, 2008)).
Section 1992.114 District Court
Jurisdiction of Retaliation Complaints
This section sets forth AMLA’s
provisions allowing a complainant to
bring an original de novo civil action in
district court, alleging the same
allegations contained in the complaint
filed with OSHA, if there has been no
final decision of the Secretary within
180 days after the date of the filing of
the complaint. See 31 U.S.C.
5323(g)(2)(B). This section also
incorporates the statutory provision that
allows for a jury trial at the request of

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either party in a district court action.
See 31 U.S.C. 5323(g)(3)(B). A civil
action may not be brought under AMLA
more than 6 years after the date on
which the violation occurs or more than
3 years after the date on which when
facts material to the right of action are
known, or reasonably should have been
known, by the whistleblower alleging a
violation. See 31 U.S.C. 5323(g)(3)(B)(ii).
This section also requires that, within
seven days after filing a complaint in
district court, a complainant must
provide a file-stamped copy of the
complaint to OSHA, the ALJ, or the
ARB, depending on where the
proceeding is pending. If the ARB has
issued a decision that has not yet
become final under Secretary of Labor’s
Order 01–2020, the case is regarded as
pending before the ARB for purposes of
this section and a copy of any district
court complaint should be sent to the
ARB. A copy of the district court
complaint also must be provided to the
OSHA official who issued the findings
and/or preliminary order, the Assistant
Secretary, and the U.S. Department of
Labor’s Associate Solicitor for Fair
Labor Standards. This provision is
necessary to notify the agency that the
complainant has opted to file a
complaint in district court. This
provision is not a substitute for the
complainant’s compliance with the
requirements for service of process of
the district court complaint contained in
the Federal Rules of Civil Procedure and
the local rules of the district court
where the complaint is filed.
Finally, it should be noted that
although a complainant may file an
action in district court if the Secretary
has not issued a final decision within
180 days of the filing of the complaint
with OSHA, it is the Department of
Labor’s position that complainants may
not initiate an action in federal court
after the Secretary issues a final
decision, even if the date of the final
decision is more than 180 days after the
filing of the complaint. Thus, for
example, after the ARB has issued a
decision that has become final denying
a whistleblower complaint, the
complainant no longer may file an
action for de novo review in federal
district court. See Soo Line R.R., Inc. v.
Admin. Review Bd., 990 F.3d 596, 598
n.1 (8th Cir. 2021). 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

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parties’ rights to seek judicial review of
the Secretary’s final decision in the
court of appeals. See 49 U.S.C.
42121(b)(4)(B) (providing that an order
with respect to which review could
have been obtained in the court of
appeals shall not be subject to judicial
review in any criminal or other civil
proceeding).
Section 1992.115 Special
Circumstances; Waiver of Rules
This section provides that, in
circumstances not contemplated by
these rules or for good cause, the ALJ or
the ARB may, upon application and
notice to the parties, waive any rule as
justice or the administration of AMLA
requires.
IV. Paperwork Reduction Act
This rule contains a reporting
provision (filing a retaliation complaint,
§ 1992.103) which was previously
reviewed as a statutory requirement of
AMLA and approved for use by the
Office of Management and Budget
(OMB), as part of the Information
Collection Request (ICR) assigned OMB
control number 1218–0236 under the
provisions of the Paperwork Reduction
Act of 1995 (PRA). See Public Law 104–
13, 109 Stat. 163 (1995). A non-material
change has been submitted to OMB to
include the regulatory citation.
V. Administrative Procedure Act
The notice and comment rulemaking
procedures of section 553 of the
Administrative Procedure Act (APA) do
not apply ‘‘to interpretative rules,
general statements of policy, or rules of
agency organization, procedure, or
practice.’’ 5 U.S.C. 553(b)(A). This
interim final rule is a rule of agency
procedure, practice, and interpretation
within the meaning of that section,
because it provides the procedures for
the handling of retaliation complaints.
Therefore, publication in the Federal
Register of a notice of proposed
rulemaking and request for comments
are not required for this rule. Although
this interim final rule is a procedural
and interpretative rule not subject to the
notice and comment procedures of the
APA, OSHA is providing persons
interested in this interim final rule 60
days to submit comments. A final rule
will be published after OSHA receives
and reviews the public’s comments.
Furthermore, because this interim
final rule is procedural and
interpretative rather than substantive,
the normal requirement of 5 U.S.C.
553(d) that a rule be effective 30 days
after publication in the Federal Register
is inapplicable. 5 U.S.C. 553(d)(2).
OSHA also finds good cause to provide

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an immediate effective date for this
interim final rule. It is in the public
interest that the rule be effective
immediately so that parties may know
what procedures are applicable to
pending cases.

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VI. Executive Orders 12866: Regulatory
Planning and Review, Executive Order
14094: Modernizing Regulatory Review,
and Executive Order 13563: Improving
Regulation and Regulatory Review;
Unfunded Mandates Reform Act of
1995; Executive Order 13132
(Federalism)
The Office of Information and
Regulatory Affairs has concluded that
this rule is not a ‘‘significant regulatory
action’’ within the meaning of Executive
Order 12866, as reaffirmed and
amended by Executive Orders 14094
and 13563, because it is not likely to: (1)
have an annual effect on the economy
of $200 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,
Territorial 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 for which centralized review
would meaningfully further the
President’s priorities or the principles
set forth in Executive Order 12866.
Modernizing Regulatory Review, 88 FR
21879, 21879 (Apr. 11, 2023). Therefore,
no economic impact analysis under
section 6(a)(3)(C) of Executive Order
12866 has been prepared.
Also, because this rule is not
significant under Executive Order
12866, and because no notice of
proposed rulemaking has been
published, no statement is required
under section 202 of the Unfunded
Mandates Reform Act of 1995, 2 U.S.C.
1532. In any event, this rulemaking is
procedural and interpretative in nature
and is thus not expected to have a
significant economic impact. Finally,
this rule does not have ‘‘federalism
implications.’’ The rule does not have
substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, and therefore, is
not subject to Executive Order 13132
(Federalism).

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VII. Regulatory Flexibility Analysis
The notice and comment rulemaking
procedures of section 553 of the APA do
not apply ‘‘to interpretative rules,
general statements of policy, or rules of
agency organization, procedure, or
practice.’’ 5 U.S.C. 553(b)(A). Rules that
are exempt from APA notice and
comment requirements are also exempt
from the Regulatory Flexibility Act
(RFA). See Small Business
Administration Office of Advocacy, A
Guide for Government Agencies: How to
Comply with the Regulatory Flexibility
Act, at 9; also found at https://
www.sba.gov/advocacy/guidegovernment-agencies-how-complyregulatory-flexibility-act. This is a rule
of agency procedure, practice, and
interpretation within the meaning of 5
U.S.C. 553; and, therefore, the rule is
exempt from both the notice and
comment rulemaking procedures of the
APA and the requirements under the
RFA.
List of Subjects in 29 CFR Part 1992
Administrative practice and
procedure, Anti-money laundering,
Employment, Whistleblower.
Authority and Signature
This document was prepared under
the direction and control of Douglas L.
Parker, Assistant Secretary of Labor for
Occupational Safety and Health.
Signed at Washington, DC.
Douglas L. Parker,
Assistant Secretary of Labor for Occupational
Safety and Health.

Accordingly, for the reasons set out in
the preamble, 29 CFR part 1992 is added
to read as follows:
PART 1992—PROCEDURES FOR THE
HANDLING OF RETALIATION
COMPLAINTS UNDER THE ANTIMONEY LAUNDERING ACT (AMLA)
Subpart A—Complaints,
Investigations, Findings, and
Preliminary Orders
Sec.
1992.100 Purpose and scope.
1992.101 Definitions.
1992.102 Obligations and prohibited acts.
1992.103 Filing of retaliation complaint.
1992.104 Investigation.
1992.105 Issuance of findings and
preliminary orders.
Subpart B—Litigation
1992.106 Objections to the findings and the
preliminary order and requests for a
hearing.
1992.107 Hearings.
1992.108 Role of Federal agencies.
1992.109 Decisions and orders of the
administrative law judge.

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1992.110 Decisions and orders of the
Administrative Review Board.
Subpart C—Miscellaneous Provisions
1992.111 Withdrawal of complaints,
findings, objections, and petitions for
review; settlement.
1992.112 Judicial review.
1992.113 Judicial enforcement.
1992.114 District court jurisdiction of
retaliation complaints.
1992.115 Special circumstances; waiver of
rules.
Authority: 31 U.S.C. 5323(a)(5), (g), and
(j); Secretary of Labor’s Order 08–2020, 85 FR
58393; Secretary of Labor’s Order 01–2020,
85 FR 13024–01.

Subpart A—Complaints,
Investigations, Findings, and
Preliminary Orders
§ 1992.100

Purpose and scope.

(a) This part sets forth procedures for,
and interpretations of the antiretaliation protections of the AntiMoney Laundering Act of 2020
contained in section 6314 of the
William M. (Mac) Thornberry National
Defense Authorization Act for Fiscal
Year 2021, Public Law 116–283, 134
Stat. 3388 (January 1, 2021), as
amended, codified at 31 U.S.C. 5323
(g)(1)–(3)and (g)(6) and referred to
herein as AMLA. AMLA provides for
protection from retaliation because a
whistleblower has engaged in protected
activity by providing information
relating to a violation of 31 U.S.C.
chapter 53, subchapter II (relating to
records and reports on monetary
instruments transactions, 31 U.S.C.
5311–5336); chapter 35 or section 4305
or 4312 of title 50; the Foreign Narcotics
Kingpin Designation Act (21 U.S.C.
1901 et seq.), or conspiracies to violate
the aforementioned provisions; or
initiating, testifying in, or assisting in
any investigation or judicial or
administrative action of the Department
of the Treasury or the Department of
Justice based upon or related to such
information; or providing information
relating to any conduct that the
whistleblower reasonably believes
constitutes a violation of any law, rule,
or regulation subject to the jurisdiction
of the Department of the Treasury, or a
violation of section 1956, 1957, or 1960
of title 18 (or any rule or regulation
under any such provision).
(b) This part establishes procedures
under AMLA for the expeditious
handling of retaliation complaints filed
by whistleblowers, or by persons acting
on their behalf. This part, together with
29 CFR parts 18 and 26, set forth the
procedures under AMLA for submission
of complaints, investigations, issuance
of findings and preliminary orders,

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objections to findings and orders,
litigation before administrative law
judges (ALJs), post-hearing
administrative review, and withdrawals
and settlements. In addition, this part
provide the Secretary’s interpretations
of certain statutory provisions.
§ 1992.101

Definitions.

As used in this part:
AMLA means the provisions relating
to anti-retaliation of the Anti-Money
Laundering Act of 2020 contained in
Sec. 6314 of the William M. (Mac)
Thornberry National Defense
Authorization Act for Fiscal Year 2021,
Public Law 116–283, 134 Stat. 3388
(January 1, 2021), as amended, codified
at 31 U.S.C. 5323(g)(1)–(3) and (6).
Assistant Secretary means the
Assistant Secretary of Labor for
Occupational Safety and Health or the
person or persons to whom the
Assistant Secretary delegates authority
under AMLA.
Business days means days other than
Saturdays, Sundays, and Federal
holidays.
Complainant means the
whistleblower who filed an AMLA
complaint or on whose behalf a
complaint was filed.
FinCEN means the Financial Crimes
Enforcement Network, a bureau of the
United States Department of the
Treasury.
OSHA means the Occupational Safety
and Health Administration of the
United States Department of Labor.
Respondent means the person named
in the complaint who is alleged to have
violated AMLA.
Secretary means the Secretary of
Labor or the person or persons to whom
the Secretary delegates authority under
certain anti-retaliation provisions of
AMLA, 31 U.S.C. 5323(g)(1)–(3).
Whistleblower means any individual,
or two or more individuals acting
jointly, who take any of the actions
described in § 1992.102(b). A
whistleblower includes an individual
presently or formerly working for an
employer, an individual applying to
work for an employer, or an individual
whose employment could be affected by
an employer.

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§ 1992.102
acts.

Obligations and prohibited

(a) No employer may directly or
indirectly discharge, demote, suspend,
threaten, blacklist, harass, or in any
other manner discriminate against a
whistleblower in the terms and
conditions of employment or postemployment because of any lawful act
done by the whistleblower to engage in
any of the activities specified in

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paragraphs (b)(1), (2) and (3) of this
section.
(b) A whistleblower is protected
against retaliation (as described in
paragraph (a) of this section) by an
employer for any lawful act done by the
whistleblower:
(1) In providing information relating
to a violation of 31 U.S.C. chapter 53,
subchapter II (Records and Reports on
Monetary Instruments Transactions, 31
U.S.C. 5311–5336); chapter 35 or section
4305 or 4312 of title 50; or the Foreign
Narcotics Kingpin Designation Act, 21
U.S.C. 1901 et seq., or a conspiracy to
violate the aforementioned provisions
to:
(i) The employer of the whistleblower,
including as part of the job duties of the
whistleblower. The employer includes a
person with supervisory authority over
the whistleblower or such other person
working for the employer who has
authority to investigate, discover, or
terminate misconduct;
(ii) The Secretary of the Treasury or
the Attorney General;
(iii) A Federal regulatory or law
enforcement agency; or
(iv) Any Member of Congress or any
committee of Congress;
(2) In initiating, testifying in, or
assisting in any investigation or judicial
or administrative action of the
Department of the Treasury or the
Department of Justice based upon or
related to the information described in
paragraph (b)(1) of this section; or
(3) In providing information regarding
any conduct that the whistleblower
reasonably believes constitutes a
violation of any law, rule, or regulation
subject to the jurisdiction of the
Department of the Treasury, or a
violation of section 1956, 1957, or 1960
of title 18 (or any rule or regulation
under any such provision) to:
(i) A person with supervisory
authority over the whistleblower at the
employer of the whistleblower; or
(ii) Another individual working for
the employer who the whistleblower
reasonably believes has the authority to
investigate, discover, or terminate the
misconduct; or take any other action to
address the misconduct.
(c) This section shall not apply with
respect to any employer that is subject
to section 33 of the Federal Deposit
Insurance Act (12 U.S.C. 1831j) or
section 213 or 214 of the Federal Credit
Union Act (12 U.S.C. 1790b, 1790c).
§ 1992.103

Filing of retaliation complaint.

(a) Who may file. Any individual who
believes that they have been discharged
or otherwise retaliated against, or is
otherwise aggrieved by an employer in
violation of AMLA may file, or have

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3031

filed by any person on their behalf, a
complaint alleging such retaliation.
(b) Nature of filing. No particular form
of complaint is required. A complaint
may be filed orally or in writing. Oral
complaints will be reduced to writing
by OSHA. If the complainant is unable
to file the complaint in English, OSHA
will accept the complaint in any
language.
(c) Place of filing. The complaint
should be filed with the OSHA office
responsible for enforcement activities in
the geographical area where the
complainant 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: https://www.osha.gov.
Complaints may also be filed online
using OSHA’s online complaint form,
currently available at https://
www.osha.gov/whistleblower/
WBComplaint.html.
(d) Time for filing. Within 90 days
after an alleged violation of AMLA
occurs, an individual who believes that
they have been retaliated against in
violation of AMLA must file, or have
filed by any person on their behalf, a
complaint alleging such retaliation. The
date of the postmark, facsimile
transmittal, electronic filing or
transmittal, telephone call, handdelivery, delivery to a third-party
commercial carrier, or in-person filing at
an OSHA office will be considered the
date of filing. The time for filing a
complaint may be tolled or equitably
modified for reasons warranted by
applicable case law. For example,
OSHA may consider the time for filing
a complaint to be tolled if a complainant
mistakenly files a complaint with an
agency other than OSHA within 90 days
after an alleged adverse action.
§ 1992.104

Investigation.

(a) Upon receipt of a complaint in the
investigating office, OSHA will notify
the respondent and the complainant’s
employer (if different) of the filing of the
complaint, of the allegations contained
in the complaint, and of the substance
of the evidence supporting the
complaint. Such materials will be
redacted, if necessary, consistent with
the Privacy Act of 1974, 5 U.S.C. 552a,
and other applicable confidentiality
laws. OSHA will also notify the
respondent of its rights under
paragraphs (b) and (f) of this section and
§ 1992.110(e). OSHA will provide an
unredacted copy of these same materials
to the complainant (or the
complainant’s legal counsel if
complainant is represented by counsel)
and to FinCEN.

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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
OSHA a written statement and any
affidavits or documents substantiating
its position. Within the same 20 days,
the respondent may request a meeting
with OSHA to present its position.
(c) During the investigation, OSHA
will request that each party provide the
other parties to the whistleblower
complaint with a copy of submissions to
OSHA that are pertinent to the
whistleblower complaint. Alternatively,
if a party does not provide its
submissions to OSHA to the other party,
OSHA generally will provide them to
the other party (or the party’s legal
counsel if the party is represented by
counsel) at a time permitting the other
party an opportunity to respond. Before
providing such materials to the other
party, OSHA will redact them, if
necessary, consistent with the Privacy
Act of 1974, 5 U.S.C. 552a and other
applicable confidentiality laws. OSHA
will also provide each party with an
opportunity to respond to the other
party’s submissions.
(d) Investigations will be conducted
in a manner that protects the
confidentiality of any person who
provides information on a confidential
basis, other than the complainant, in
accordance with part 70 of this title.
(e)(1) A complaint will be dismissed
unless the complainant has made a
prima facie showing that protected
activity was a contributing factor in the
adverse action alleged in the complaint.
(2) The complaint, supplemented as
appropriate by interviews of the
complainant, must allege the existence
of facts and evidence to make a prima
facie showing as follows:
(i) The individual engaged in a
protected activity;
(ii) The respondent knew or suspected
that the individual engaged in the
protected activity;
(iii) The individual 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 individual
engaged in protected activity and that

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the protected activity was a contributing
factor in the adverse action. The burden
may be satisfied, for example, if the
complainant shows that the adverse
action took place shortly after the
protected activity. 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,
further investigation of the complaint
will not be conducted if the respondent
demonstrates by clear and convincing
evidence that it would have taken the
same adverse action in the absence of
the complainant’s protected activity.
(5) If the respondent fails to make a
timely response or fails to satisfy its
burden set forth in paragraph (e)(4) of
this section, OSHA will proceed with
the investigation. The investigation will
proceed whenever it is necessary or
appropriate to confirm or verify the
information provided by the
respondent.
(f) Prior to the issuance of findings
and a preliminary order as provided for
in § 1992.105, if OSHA has reasonable
cause, on the basis of information
gathered under the procedures of this
part, to believe that the respondent has
violated AMLA and that preliminary
reinstatement is warranted, OSHA will
contact the respondent (or the
respondent’s legal counsel if respondent
is represented by counsel) to give notice
of the substance of the relevant evidence
supporting the complainant’s
allegations as developed during the
course of the investigation. This
evidence includes any witness
statements, which will be redacted to
protect the identity of confidential
informants where statements were given
in confidence; if the statements cannot
be redacted without revealing the
identity of confidential informants,
summaries of their contents will be
provided. The complainant will also
receive a copy of the materials that must
be provided to the respondent under
this paragraph (f). Before providing such
materials, OSHA will redact them, if
necessary, consistent with the Privacy
Act of 1974, 5 U.S.C. 552a, and other
applicable confidentiality laws. The
respondent will be given the
opportunity to submit a written
response, to meet with the investigator,
to present statements from witnesses in
support of its position, and to present
legal and factual arguments. The
respondent must present this evidence
within 10 business days of OSHA’s
notification pursuant to this paragraph

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(f), or as soon thereafter as OSHA and
the respondent can agree, if the interests
of justice so require.
§ 1992.105 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 or not there is reasonable cause
to believe that the respondent has
retaliated against the complainant in
violation of AMLA.
(1) If the Assistant Secretary
concludes that there is reasonable cause
to believe that a violation has occurred,
the Assistant Secretary will accompany
the findings with a preliminary order
providing relief to the complainant. The
preliminary order will include, where
appropriate: reinstatement with the
same seniority status that the
complainant would have had, but for
the retaliation; two times the amount of
back pay otherwise owed to the
individual with interest; compensatory
damages, including litigation costs,
expert witness fees, and reasonable
attorney fees; and any other appropriate
remedy for the retaliation, as applicable.
Interest on any back pay award will be
calculated using the interest rate
applicable to underpayment of taxes
under 26 U.S.C. 6621 and will be
compounded daily. Where appropriate,
the preliminary order will also require
the respondent to submit appropriate
documentation to the Social Security
Administration allocating any back pay
award to the appropriate periods.
(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 physical or electronic means
that allow OSHA to confirm delivery to
all parties of record (or each party’s
legal counsel if the party is represented
by counsel). The findings and, where
appropriate, the preliminary order will
inform the parties of the right to object
to the findings and/or order and to
request a hearing, and of the right of the
respondent to request an award of
attorney fees not exceeding $1,000 from
the ALJ, regardless of whether the
respondent has filed objections, if the
respondent alleges that the complaint
was frivolous or brought in bad faith.
The findings and, where appropriate,
the preliminary order, also will give the
address of the Chief Administrative Law
Judge, U.S. Department of Labor, or
appropriate information regarding filing
objections electronically with the Office

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Federal Register / Vol. 90, No. 8 / Tuesday, January 14, 2025 / Rules and Regulations
of Administrative Law Judges. The
findings also may specify the means,
including electronic means, for serving
OSHA and the Associate Solicitor for
Fair Labor Standards with documents in
the administrative litigation as required
under this part. At the same time, the
Assistant Secretary will file with the
Chief Administrative Law Judge a copy
of the original complaint and a copy of
the findings and/or order.
(c) The findings and any preliminary
order will be effective 30 days after
receipt by the respondent (or the
respondent’s legal counsel if the
respondent is represented by counsel),
or on the compliance date set forth in
the preliminary order, whichever is
later, unless an objection and/or a
request for hearing has been timely filed
as provided at § 1992.106. 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

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§ 1992.106 Objections to the findings and
the preliminary order and requests for a
hearing.

(a) Any party who desires review,
including judicial review, of the
findings and/or preliminary order, or a
respondent alleging that the complaint
was frivolous or brought in bad faith
who seeks an award of attorney fees
under AMLA, must file any objections
and/or a request for a hearing on the
record within 30 days of receipt of the
findings and preliminary order pursuant
to § 1992.105. The objections and
request for hearing and/or request for
attorney fees must be in writing and
must state whether the objections are to
the findings, the preliminary order, or
both, and/or whether there should be an
award of attorney fees. The date of the
postmark, facsimile transmittal, or
electronic transmittal is considered the
date of filing; if the objection is filed in
person, by hand delivery, or other
means, the objection is filed upon
receipt. Objections must be filed with
the Chief Administrative Law Judge,
U.S. Department of Labor, in accordance
with 29 CFR part 18, and copies of the
objections must be served at the same
time on the other parties of record, the
OSHA official who issued the findings
and order, the Assistant Secretary, and
the Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of
Labor. OSHA and the Associate
Solicitor for Fair Labor Standards may
specify the means, including electronic

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means, for serving them with copies of
the objections.
(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.
§ 1992.107

Hearings.

(a) Except as provided in this part,
proceedings will be conducted in
accordance with the rules of practice
and procedure for administrative
hearings before the Office of
Administrative Law Judges, codified at
29 CFR part 18, subpart A.
(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 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. ALJs 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.
§ 1992.108

Role of Federal agencies.

(a)(1) The complainant and the
respondent will be parties in every
proceeding and must be served with
copies of all documents in the case. At
the Assistant Secretary’s discretion, the
Assistant Secretary may participate as a
party or as amicus curiae at any time at
any stage of the proceeding. This right
to participate includes, but is not

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3033

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, and the right to seek
discretionary review of a decision of the
Administrative Review Board (ARB)
from the Secretary.
(2) Parties must send copies of
documents to OSHA and to the
Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of
Labor, only upon request of OSHA, or
when OSHA is participating in the
proceeding, or when service on OSHA
and the Associate Solicitor is otherwise
required by this part. Except as
otherwise provided in rules of practice
and/or procedure before the OALJ or the
ARB, OSHA and the Associate Solicitor
for Fair Labor Standards may specify the
means, including electronic means, for
serving them with documents under this
section.
(b) The Department of the Treasury, if
interested in a proceeding, may
participate as amicus curiae at any time
in the proceeding, at its discretion. At
the request of The Department of the
Treasury, copies of all documents in a
case must be sent to the Department of
the Treasury, whether or not it is
participating in the proceeding.
§ 1992.109 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 has satisfied the
burden set forth in paragraph (a) of this
section, relief may not be ordered if the
respondent demonstrates by clear and
convincing evidence that it would have
taken the same adverse action in the
absence of any protected activity.
(c) Neither OSHA’s determination to
dismiss a complaint without completing
an investigation pursuant to
§ 1992.104(e) nor OSHA’s determination
to proceed with an investigation is
subject to review by the ALJ, and a
complaint may not be remanded for the
completion of an investigation or for
additional findings on the basis that a
determination to dismiss was made in
error. Rather, if there otherwise is
jurisdiction, the ALJ will hear the case
on the merits or dispose of the matter

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Federal Register / Vol. 90, No. 8 / Tuesday, January 14, 2025 / Rules and Regulations

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 providing
reinstatement with the same seniority
status that the complainant would have
had, but for the retaliation; two times
the amount of back pay otherwise owed
to the individual with interest;
compensatory damages, including
litigation costs, expert witness fees, and
reasonable attorney fees; and any other
appropriate remedy for the retaliation,
as applicable. Interest on any back pay
award will be calculated using the
interest rate applicable to underpayment
of taxes under 26 U.S.C. 6621 and will
be compounded daily. The order will
also require the respondent to submit
appropriate documentation to the Social
Security Administration allocating any
back pay award to the appropriate
periods.
(2) If the ALJ determines that the
respondent has not violated the law, an
order will be issued denying the
complaint. If, upon the request of the
respondent, the ALJ determines that a
complaint was frivolous or was brought
in bad faith, the ALJ may award to the
respondent a reasonable attorney fee,
not exceeding $1,000.
(e) The decision will be served upon
all parties to the proceeding, the
Assistant Secretary, and the Associate
Solicitor, Division of Fair Labor
Standards, U.S. Department of Labor.
OSHA and the Associate Solicitor for
Fair Labor Standards may specify the
means, including electronic means, for
service of decisions on them under this
section. Any ALJ’s decision requiring
reinstatement or lifting an order of
reinstatement by the Assistant Secretary
will be effective immediately upon
receipt of the decision by the
respondent. All other portions of the
ALJ’s order will be effective 30 days
after the date of the decision unless a
timely petition for review has been filed
with the ARB. The decision of the ALJ
will become the final order of the
Secretary unless a petition for review is
timely filed with the ARB and the ARB
accepts the petition for review.

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§ 1992.110 Decisions and orders of the
Administrative Review Board.

(a) Any party desiring to seek review,
including judicial review, of a decision
of the ALJ, or a respondent alleging that
the complaint was frivolous or brought
in bad faith who seeks an award of
attorney fees, must file a written
petition for review with the ARB, which
has been delegated the authority to act
for the Secretary and issue decisions
under this part subject to the Secretary’s

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discretionary review. 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 30 days of the date of the
decision of the ALJ. All petitions and
documents submitted to the ARB must
be filed in accordance with part 26 of
this title. The date of the postmark, or
electronic 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. The petition for
review also must be served on the
Assistant Secretary and on the Associate
Solicitor, Division of Fair Labor
Standards, U.S. Department of Labor.
OSHA and the Associate Solicitor for
Fair Labor Standards may specify the
means, including electronic means, for
service of petitions for review on them
under this section.
(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, and will review legal
conclusions de novo. If a timely petition
for review is not filed, or the ARB
denies review, the decision of the ALJ
will become the final order of the
Secretary. If a timely petition for review
is not filed, the resulting final order is
not subject to judicial review.
(c) The decision of the ARB will be
issued within 120 days of the
conclusion of the hearing, which will be
deemed to be 30 days after 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 30 days after a new decision is
issued. The ARB’s decision will be
served upon all parties and the Chief
Administrative Law Judge. The decision

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will also be served on the Assistant
Secretary and on the Associate Solicitor,
Division of Fair Labor Standards, U.S.
Department of Labor, even if the
Assistant Secretary is not a party. OSHA
and the Associate Solicitor for Fair
Labor Standards may specify the means,
including electronic means, for service
of ARB decisions on them under this
section.
(d) If the ARB concludes that the
respondent has violated the law, the
ARB will issue an order providing
reinstatement with the same seniority
status that the complainant would have
had, but for the retaliation; two times
the amount of back pay otherwise owed
to the individual with interest;
compensatory damages, including
litigation costs, expert witness fees, and
reasonable attorney fees; and any other
appropriate remedy for the retaliation,
as applicable. Interest on any back pay
award will be calculated using the
interest rate applicable to underpayment
of taxes under 26 U.S.C. 6621 and will
be compounded daily. The order will
also require the respondent to submit
appropriate documentation to the Social
Security Administration allocating any
back pay award to the appropriate
periods. Such order is subject to
discretionary review by the Secretary (as
provided in Secretary’s Order 01–2020
or any successor to that order).
(e) If the ARB determines that the
respondent has not violated the law, an
order will be issued denying the
complaint. If, upon the request of the
respondent, the ARB determines that a
complaint was frivolous or was brought
in bad faith, the ARB may award to the
respondent a reasonable attorney fee,
not exceeding $1,000. An order under
this section is subject to discretionary
review by the Secretary (as provided in
Secretary’s Order 01–2020 or any
successor to that order).
Subpart C—Miscellaneous Provisions
§ 1992.111 Withdrawal of complaints,
findings, objections, and petitions for
review; settlement.

(a) At any time prior to the filing of
objections to the Assistant Secretary’s
findings and/or preliminary order, a
complainant may withdraw the
complaint by notifying OSHA, orally or
in writing, of the withdrawal. OSHA
then will confirm in writing the
complainant’s desire to withdraw and
determine whether to approve the
withdrawal. OSHA will notify the
parties (or each party’s legal counsel if
the party is represented by counsel) of
the approval of any withdrawal. If the
complaint is withdrawn because of
settlement, the settlement must be

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Federal Register / Vol. 90, No. 8 / Tuesday, January 14, 2025 / Rules and Regulations
submitted for approval in accordance
with paragraph (d) of this section. A
complainant may not withdraw the
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 § 1992.106,
provided that no objection has been
filed yet, and substitute new findings
and/or a new preliminary order. The
date of the receipt of the substituted
findings or order will begin a new 30day objection period.
(c) At any time before the Assistant
Secretary’s findings and/or order
become final, a party may withdraw
objections to the Assistant Secretary’s
findings and/or order by filing a written
withdrawal with the ALJ. If the case is
on review with the ARB, a party may
withdraw 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 findings and/or
order, and there are no other pending
objections, the Assistant Secretary’s
findings and/or order will become the
final order of the Secretary. If the ARB
approves a request to withdraw a
petition for review of an ALJ decision,
and there are no other pending petitions
for review of that decision, the ALJ’s
decision will become the final order of
the Secretary. If objections or a petition
for review are withdrawn because of
settlement, the settlement must be
submitted for approval in accordance
with paragraph (d) of this section.
(d)(1) Investigative settlements. At any
time after the filing of a complaint, but
before the findings and/or order are
objected to or become a final order by
operation of law, the case may be settled
if OSHA, the complainant, and the
respondent agree to a settlement.
OSHA’s approval of a settlement
reached by the respondent and the
complainant demonstrates OSHA’s
consent and achieves the consent of all
three parties.
(2) Adjudicatory settlements. At any
time after the filing of objections to the
Assistant Secretary’s findings and/or
order, the case may be settled if the
participating parties agree to a
settlement and the settlement is
approved by the ALJ if the case is before
the ALJ, or by the ARB if the ARB has
accepted the case for review. If the

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Secretary has accepted the case for
discretionary review, or directed that
the case be referred for discretionary
review, the settlement must be filed
with the ARB for approval by the
Secretary. A copy of the settlement will
be filed with the ALJ or the ARB, as
appropriate.
(e) Any settlement approved by
OSHA, the ALJ, the ARB or the
Secretary will constitute the final order
of the Secretary and may be enforced in
United States district court pursuant to
§ 1992.113.
§ 1992.112

Judicial review.

(a) Within 60 days after the issuance
of a final order for which judicial review
is available (including a decision issued
by the Secretary upon discretionary
review), any person adversely affected
or aggrieved by the order may file a
petition for review of the order in the
United States Court of Appeals for the
circuit in which the violation allegedly
occurred or the circuit in which the
complainant resided on the date of the
violation.
(b) A final order is not subject to
judicial review in any criminal or other
civil proceeding.
(c) If a timely petition for review is
filed, the record of the 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.
§ 1992.113

Judicial enforcement.

Whenever any person has failed to
comply with a preliminary order of
reinstatement or a final order issued
under AMLA, including one approving
a settlement agreement, the Secretary
may file a civil action seeking
enforcement of the order in the United
States district court for the district in
which the violation was found to have
occurred. Whenever any person has
failed to comply with a preliminary
order of reinstatement or a final order
issued under AMLA, including one
approving a settlement agreement, a
person on whose behalf the order was
issued may file a civil action seeking
enforcement of the order in the
appropriate United States district court.
§ 1992.114 District court jurisdiction of
retaliation complaints.

(a) If the Secretary has not issued a
final decision within 180 days of 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

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3035

appropriate district court of the United
States, which will have jurisdiction over
such an action without regard to the
amount in controversy. Either party
shall be entitled to a trial by jury.
(b) Within seven days after filing a
complaint in Federal court, a
complainant must file with OSHA, 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 Fair Labor Standards, U.S.
Department of Labor.
§ 1992.115
of rules.

Special circumstances; waiver

In special circumstances not
contemplated by the provisions of this
part, or for good cause shown, the ALJ
or the ARB on review may, upon
application, and after three days’ notice
to all parties, waive any rule or issue
such orders that justice or the
administration of AMLA requires.
[FR Doc. 2025–00539 Filed 1–13–25; 8:45 am]
BILLING CODE 4510–26–P

DEPARTMENT OF DEFENSE
Department of the Army, Corps of
Engineers
33 CFR Part 234
[Docket ID: COE–2023–0005]
RIN 0710–AB41

Corps of Engineers Agency Specific
Procedures To Implement the
Principles, Requirements, and
Guidelines for Federal Investments in
Water Resources; Correction
U.S. Army Corps of Engineers,
Army, Department of Defense (DoD).
ACTION: Final rule; correction.
AGENCY:

The U.S. Army Corps of
Engineers (Corps) ACF is correcting a
final rule (FR) that was published in the
Federal Register on December 19, 2024,
with an effective date of January 17,
2025. This rule establishes Agency
Specific Procedures (ASPs) for the
Corps to implement the Principles,
Requirements, and Guidelines (PR&G)
for Federal water resources investments.
It provides a framework to govern how
the Corps would evaluate proposed
water resources investments, subject to
the PR&G. The rule incorporates
recommendations from interested
parties. This correction ensures that this
final rule will be effective 30 days after

SUMMARY:

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