[Federal Register Volume 67, Number 62 (Monday, April 1, 2002)]
[Rules and Regulations]
[Pages 15454-15461]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-7636]



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Part II





Department of Labor





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Occupational Safety and Health Administration



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29 CFR Part 1979



Procedures for the Handling of Discrimination Complaints under Section 
519 of the Wendell H. Ford Aviation Investment and Reform Act for the 
21st Century; Final Rule

  Federal Register / Vol. 67, No. 62 / Monday, April 1, 2002 / Rules 
and Regulations  

[[Page 15454]]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1979

RIN 1218-AB99


Procedures for the Handling of Discrimination Complaints Under 
Section 519 of the Wendell H. Ford Aviation Investment and Reform Act 
for the 21st Century

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Interim final rule; request for comments.

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SUMMARY: This document provides the text of regulations governing the 
employee protection (``whistleblower'') provisions of Section 519 of 
the Wendell H. Ford Aviation Investment and Reform Act for the 21st 
Century (``AIR21''), a Federal Aviation Administration reauthorization 
bill, enacted into law April 5, 2000. This rule establishes procedures 
and time frames for the handling of complaints under AIR21, including 
procedures and time frames for employee complaints to the Occupational 
Safety and Health Administration (``OSHA''), investigations by OSHA, 
appeals of OSHA determinations to an administrative law judge (``ALJ'') 
for a hearing de novo, hearings by ALJs, appeal of ALJ decisions to the 
Administrative Review Board (acting on behalf of the Secretary) and 
judicial review of the Secretary's final decision.

DATES: This interim final rule is effective on April 1, 2002. Comments 
on the interim final rule are due on or before May 31, 2002.

ADDRESSES: Submit written comments to: Assistant Secretary, 
Occupational Safety and Health Administration, U.S. Department of 
Labor, Room N-3468, 200 Constitution Avenue, NW., Washington, DC 20210. 
Commenters who wish to receive notification of receipt of comments are 
requested to include a self-addressed, stamped post card or to submit 
them by certified mail, return receipt requested. As a convenience, 
comments may be transmitted by facsimile (``FAX'') machine to (202) 
693-1681. This is not a toll-free number. If commenters transmit 
comments by FAX and also submit a hard copy by mail, please indicate on 
the hard copy that it is a duplicate copy of the FAX transmission.

FOR FURTHER INFORMATION CONTACT: John Spear, Occupational Safety and 
Health Administration, U.S. Department of Labor, Room N-3468, 200 
Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693-
2187. This is not a toll-free number. The alternative formats available 
are large print, electronic file on computer disk (Word Perfect, ASCII, 
Mates with Duxbury Braille System) and audiotape.

SUPPLEMENTARY INFORMATION:

I. Background

    The Wendell H. Ford Aviation Investment and Reform Act for the 21st 
Century (``AIR21''), Public Law No. 106-181, was enacted on April 5, 
2000. Section 519 of the Act, codified at 49 U.S.C. 42121, provides 
protection to employees against retaliation by air carriers, their 
contractors and their subcontractors, because they provided information 
to the employer or the federal government relating to air carrier 
safety violations, or filed, testified, or assisted in a proceeding 
against the employer relating to any violation or alleged violation of 
any order, regulation, or standard of the Federal Aviation 
Administration (``FAA'') or any other law relating to the safety of air 
carriers, or because they are about to take any of these actions. These 
rules establish procedures for the handling of complaints under AIR21. 
In drafting these regulations, consideration has been given to the 
whistleblower regulations of the Surface Transportation Assistance Act 
(``STAA''), codified at 29 CFR part 1978, and the Energy Reorganization 
Act (``ERA''), codified at 29 CFR part 24, where deemed appropriate.

II. Summary of Statutory Provisions

    The AIR21 whistleblower provisions include procedures which allow a 
covered employee to file, within 90 days of the alleged discrimination, 
a complaint with the Secretary of Labor (``the Secretary'').\1\ Upon 
receipt of the complaint, the Secretary must provide written notice to 
both the person named in the complaint who is alleged to have violated 
the Act (``the named person'') and the FAA of: The allegations 
contained in the complaint, the substance of the evidence submitted 
with the complaint, and the rights of the named person throughout the 
investigation. The Secretary must then, within 60 days of receipt of 
the complaint, afford the named person an opportunity to submit a 
response and meet with the investigator to present statements from 
witnesses, and conduct an investigation. However, the Secretary may 
conduct an investigation only if the complainant has made a prima facie 
showing that the alleged discriminatory behavior was a contributing 
factor in the unfavorable personnel action alleged in the complaint and 
the named person has not demonstrated, through clear and convincing 
evidence, that the employer would have taken the same unfavorable 
personnel action in the absence of that behavior. This provision is 
similar to the 1992 amendments to the ERA, codified at 42 U.S.C. 5851.
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    \1\ Responsibility for receiving and investigating these 
complaints has been delegated to the Assistant Secretary for OSHA. 
Secretary's Order 3-2000, 65 FR 50017 (August 16, 2000). Hearings on 
determinations by the Assistant Secretary are conducted by the 
Office of Administrative Law Judges, and appeals from decisions by 
administrative law judges are decided by the Administrative Review 
Board. See Secretary's Order 2-96, 61 FR 19978 (May 3, 1996).
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    After investigating a complaint, the Secretary shall issue a 
determination letter. If, as a result of the investigation, the 
Secretary finds there is reasonable cause to believe that 
discriminatory behavior has occurred, the Secretary must notify the 
named person of those findings along with a preliminary order which 
requires the named person to: Abate the violation, reinstate the 
complainant to his or her former position and provide make whole relief 
and compensatory damages to the complainant, as well as costs and fees 
reasonably incurred. The complainant and the named person then have 30 
days after the date of the Secretary's notification in which to file 
objections to the findings and/or preliminary order and request a 
hearing on the record. The filing of objections under AIR21 shall stay 
any remedy in the preliminary order except for preliminary 
reinstatement. This provision for preliminary reinstatement after the 
investigation is similar to Section 405 of STAA, 49 U.S.C. 31105. If a 
hearing before an administrative law judge is not requested within 30 
days, the preliminary order becomes final and is not subject to 
judicial review.
    If a hearing is held, AIR21 requires the hearing to be conducted 
``expeditiously.'' The Secretary then has 120 days after the 
``conclusion of a hearing'' in which to issue a final order, which may 
provide appropriate relief or deny the complaint. Until the Secretary's 
final order is issued, the Secretary, complainant and the named person 
may enter into a settlement agreement which terminates this proceeding. 
The Secretary may assess against the named person, on the complainant's 
request, a sum equal to the total amount of all costs and expenses, 
including attorney's and expert witness fees reasonably incurred by the 
complainant in bringing the complaint to the Secretary or in connection 
with participating in the

[[Page 15455]]

proceeding which resulted in the order on behalf of the complainant. 
The Secretary may also award a prevailing employer an attorney's fee, 
not exceeding $1,000, if she finds that the complaint is or has been 
brought in bad faith. Within 60 days of the issuance of the final 
order, any person adversely affected or aggrieved by the Secretary's 
final order may file an appeal with the United States Court of Appeals 
for the circuit in which the violation occurred or the circuit where 
the complainant resided on the date of the violation. Finally, AIR21 
makes persons who violate these newly created whistleblower provisions 
subject to a civil penalty of up to $1,000. This provision is 
administered by the FAA.

III. Summary and Discussion of Regulatory Provisions

Section 1979.100  Purpose and Scope

    This section describes the purpose of the regulations implementing 
AIR21 and provides an overview of the procedures covered by these new 
regulations.

Section 1979.101  Definitions

    In addition to the general definitions, the regulations include 
program-specific definitions of ``air carrier'' and ``contractor.'' The 
statutory definition of ``air carrier'' applicable to AIR21 is found at 
49 U.S.C. 40102(a)(2), a general definitional provision applicable to 
air commerce and safety. The statutory definition of ``contractor'' is 
found in AIR21 at 49 U.S.C. 42121(e).

Section 1979.102  Obligations and Prohibited Acts

    This section describes the whistleblower activity which is 
protected under the Act and the type of conduct which is prohibited in 
response to any protected activity.

Section 1979.103  Filing of Discrimination Complaint

    This section explains the requirements for filing a discrimination 
complaint. Under AIR21, 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), this is considered to be 
when the discriminatory decision has been both made and communicated to 
the complainant. In other words, the limitations period commences once 
the employee is aware or reasonably should be aware of the employer's 
decision. Equal Employment Opportunity Commission v. United Parcel 
Service, 249 F.3d 557, 561-62 (6th Cir. 2001). Complaints under AIR21 
do not need to be made in any particular form, and, with the consent of 
the employee, may be made by any person on the employee's behalf. Oral 
complaints will be reduced to writing by the OSHA official receiving 
the complaint.

Section 1979.104  Investigation

    AIR21 contains a requirement similar to the requirement in the ERA 
that a complaint shall be dismissed if it fails to make a prima facie 
showing that protected behavior or conduct was a contributing factor in 
the unfavorable personnel action alleged in the complaint. Also 
included in this section is the AIR21 requirement that an investigation 
of the complaint will not be conducted if the named person demonstrates 
by clear and convincing evidence that it would have taken the same 
unfavorable personnel action in the absence of the complainant's 
protected behavior or conduct, notwithstanding the prima facie showing 
of the complainant. Under this section, the named person has the 
opportunity within ten days of receipt of the complaint to meet with 
representatives of OSHA and present evidence in support of his or her 
position.
    If, upon investigation, OSHA has reasonable cause to believe that 
the named person has violated the Act and therefore that preliminary 
relief for the complainant is warranted, OSHA again contacts the named 
person with notice of this determination and provides the substance of 
the relevant evidence upon which that determination is based, 
consistent with the requirements of confidentiality of informants. The 
named person is afforded the opportunity, within ten days, to provide 
written evidence in response to the allegation of the violation, meet 
with the investigators, and present legal and factual arguments why 
preliminary relief is not warranted. This provision provides due 
process procedures in accordance with the Supreme Court decision under 
STAA in Brock v. Roadway Express, Inc., 481 U.S. 252 (1987).

Section 1979.105  Issuance of Findings and Preliminary Orders

    This section provides that, on the basis of information obtained in 
the investigation, the Assistant Secretary will issue a finding 
regarding whether or not the complaint has merit. If the finding is 
that the complaint has merit, the Assistant Secretary will order 
appropriate preliminary relief.
    The letter accompanying the findings and order advises the parties 
of their right to file objections to the findings of the Assistant 
Secretary. If no objections are filed within 30 days of receipt of the 
findings, the findings and any preliminary order of the Assistant 
Secretary become the final findings and order of the Secretary. If 
objections are timely filed, any order of preliminary reinstatement 
will take effect, but the remaining provisions of the order will not 
take effect until administrative proceedings are completed.

Section 1979.106  Objections to the Findings and the Preliminary Order

    To be effective, objections to the findings of the Assistant 
Secretary must be in writing and must be filed with the Chief 
Administrative Law Judge, U.S. Department of Labor, Washington, DC 
within 30 days of receipt of the findings. The date of the postmark, 
facsimile transmittal or e-mail communication is considered the date of 
the filing. The filing of objections is also considered a request for a 
hearing before an ALJ.

Section 1979.107  Hearings

    This section adopts the rules of practice of the Office of 
Administrative Law Judges at 29 CFR part 18. In order to assist in 
obtaining full development of the facts in whistleblower proceedings, 
formal rules of evidence do not apply. The section specifically 
provides for consolidation of hearings if both the complainant and the 
named person object to the findings and/or order of the Assistant 
Secretary.

Section 1979.108  Role of Federal Agencies

    The ERA and STAA regulations provide two different models for 
agency participation in administrative proceedings. Under STAA, OSHA 
ordinarily prosecutes cases where a complaint has been found to be 
meritorious. Under ERA and the other environmental whistleblower 
statutes, on the other hand, OSHA does not ordinarily appear as a party 
in the proceeding. The Department has found that in most environmental 
whistleblower cases, parties have been ably represented and the public 
interest has not required the Department's participation. Therefore 
this provision utilizes the approach of the ERA regulation at 29 CFR 
24.6(f)(1). The Assistant Secretary, at his or her discretion, may 
participate as a party or amicus curiae at any time in the 
administrative proceedings. For example, the Assistant Secretary may 
exercise his or her discretion to prosecute the case in the 
administrative proceeding before an administrative law judge; petition 
for review of a decision of an administrative law judge,

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including a decision based on a settlement agreement between 
complainant and the named person, regardless of whether the Assistant 
Secretary participated before the ALJ; or participate as amicus curiae 
before the ALJ or in the Administrative Review Board proceeding. 
Although we anticipate that ordinarily the Assistant Secretary will not 
participate in AIR21 proceedings, the Assistant Secretary may choose to 
do so in appropriate cases, such as cases involving important or novel 
legal issues, large numbers of employees, alleged violations which 
appear egregious, or where the interests of justice might require 
participation by the Assistant Secretary. The FAA, at that agency's 
discretion, also may participate as amicus curiae at any time in the 
proceedings. The Department believes it is unlikely that its 
preliminary decision not to ordinarily prosecute meritorious AIR21 
cases will discourage employees from making complaints about air 
carrier safety. The Department seeks comment regarding its preliminary 
decision that the Assistant Secretary should not ordinarily participate 
in AIR21 proceedings, but should participate in appropriate cases, or 
whether instead the Department should follow the STAA model under which 
it ordinarily participates where a complaint is found to have merit. 
The Department will consider these comments, as well as its experience 
under this program in the interim, in issuance of the final rule.

Section 1979.109  Decision of the Administrative Law Judge

    This section sets forth the content of the decision and order of 
the administrative law judge, and includes the statutory standard for 
finding a violation. The section further provides that the Assistant 
Secretary's determination as to whether to dismiss the complaint 
without an investigation or conduct an investigation pursuant to 
Sec. 1979.104 is not subject to review by the ALJ, who hears the case 
on the merits.

Section 1979.110  Decision of the Administrative Review Board

    The decision of the ALJ is the final decision of the Secretary if 
no timely petition for review is filed with the Administrative Review 
Board. Upon the issuance of the ALJ's decision, the parties have 15 
days to petition the Board for review of that decision. The decision of 
the Board is required by the Act to be issued not later than 120 days 
after the date of the conclusion of the hearing before the ALJ, which 
is deemed to be the conclusion of all proceedings before the 
administrative law judge--i.e., 15 days after the date of the decision 
of the administrative law judge unless a motion for reconsideration has 
been filed in the interim. If a timely petition for review is filed 
with the Board, any relief ordered by the ALJ, except for a preliminary 
order of reinstatement, is inoperative while review is conducted by the 
Board.

Section 1979.111  Withdrawal of Complaints, Objections, and Findings; 
Settlement

    This section provides for the procedures and time periods for 
withdrawal of complaints, the withdrawal of findings by the Assistant 
Secretary, and the withdrawal of objections to findings. It also 
provides for approval of settlements at the investigatory and judicial 
stages of the case.

Section 1979.112  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 Administrative Review Board to submit the record 
of proceedings to the appropriate court pursuant to the rules of such 
court.

Section 1979.113  Judicial Enforcement

    This section describes the Secretary's power under the statute to 
obtain judicial enforcement of orders and the terms of a settlement 
agreement. It also provides for enforcement of orders of the Secretary 
by the person on whose behalf the order was issued.

Section 1979.114  Special Circumstances; Waiver of Rules

    This section provides that in circumstances not contemplated by 
these rules or for good cause the Secretary may, upon application and 
notice to the parties, waive any rule as justice or the administration 
of the Act requires.

IV. Paperwork Reduction Act

    This rule contains a reporting requirement (Sec. 1979.103) which 
was previously reviewed and approved for use by the Office of 
Management and Budget (``OMB'') under 29 CFR 24.3 and assigned OMB 
control number 1218-0236 under the provisions of the Paperwork 
Reduction Act of 1995 (Pub. L. 104-13).

V. Administrative Procedure Act

    This rule is a rule of agency procedure and practice within the 
meaning of Section 553 of the Administrative Procedure Act (``APA''), 5 
U.S.C. 553(b)(A). Therefore publication in the Federal Register of a 
notice of proposed rulemaking and request for comments is not required 
by these regulations, which provide procedures for the handling of 
discrimination complaints. Although this rule is not subject to the 
notice and comment procedures of the APA, persons interested in this 
interim final rule may submit comments within 60 days. A final rule 
will be published after the agency receives and reviews the public's 
comments.
    Furthermore, because this rule is procedural rather than 
substantive, the normal requirement of 5 U.S.C. 553(d) that a rule be 
effective 30 days after publication in the Federal Register is 
inapplicable. The Assistant Secretary also finds good cause to provide 
an immediate effective date for this rule. It is in the public interest 
that the rule be effective immediately so that parties may know what 
procedures are applicable to pending cases.

VI. Executive Order 12866; Unfunded Mandates Reform Act of 1995; 
Small Business Regulatory Enforcement Fairness Act of 1996; 
Executive Order 13132

    The Department has concluded that this rule should be treated as a 
``significant regulatory action'' within the meaning of Section 3(f)(4) 
of Executive Order 12866 because AIR21 is a new program and because of 
the importance to FAA's airline safety program that ``whistleblowers'' 
be protected from retaliation. E.O. 12866 requires a full economic 
impact analysis only for ``economically significant'' rules, which are 
defined in Section 3(f)(1) as rules that may ``have an annual effect on 
the economy of $100 million or more, or adversely affect in a material 
way the economy, productivity, competition, jobs, the environment, 
public health or safety, or State, local, or tribal governments or 
communities.'' Because the rule is procedural in nature, it is not 
expected to have a significant economic impact; therefore no economic 
impact analysis has been prepared. For the same reason, the rule does 
not require a Section 202 statement under the Unfunded Mandates Reform 
Act of 1995 (2 U.S.C. 1531 et seq.). Furthermore, because this is a 
rule of agency procedure or practice, it is not a ``rule'' within the 
meaning of the Small Business Regulatory Enforcement Fairness Act of 
1996 (5 U.S.C. 801 et seq.), and does not require Congressional review. 
Finally, this rule does not have ``federalism implications.'' The rule 
does not have ``substantial direct effects on the States, on the 
relationship between the national

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government and the States, or on the distribution of power and 
responsibilities among the various levels of government'' and therefore 
is not subject to Executive Order 13132 (Federalism).

VII. Regulatory Flexibility Analysis

    The Department has determined that the regulation will not have a 
significant economic impact on a substantial number of small entities. 
The regulation simply implements procedures necessitated by enactment 
of AIR21, in order to allow resolution of whistleblower complaints. 
Furthermore, no certification to this effect is required and no 
regulatory flexibility analysis is required because no proposed rule 
has been issued.
    Document Preparation: This document was prepared under the 
direction and control of the Assistant Secretary, Occupational Safety 
and Health Administration, U.S. Department of Labor.

List of Subjects in 29 CFR Part 1979

    Administrative practice and procedure, Air carrier safety, 
Employment, Investigations, Reporting and Recordkeeping requirements, 
Whistleblowing.

    Signed at Washington, DC, this 22nd day of March, 2002.
John L. Henshaw,
Assistant Secretary for Occupational Safety and Health.

    Accordingly, for the reasons set out in the preamble part 1979 of 
title 29 of the Code of Federal Regulations is promulgated as follows:

PART 1979-PROCEDURES FOR THE HANDLING OF DISCRIMINATION COMPLAINTS 
UNDER SECTION 519 OF THE WENDELL H. FORD AVIATION INVESTMENT AND 
REFORM ACT FOR THE 21ST CENTURY

Subpart A--Complaints, Investigations, Findings and Preliminary Orders
Sec.
1979.100  Purpose and scope.
1979.101  Definitions.
1979.102  Obligations and prohibited acts.
1979.103  Filing of discrimination complaint.
1979.104  Investigation.
1979.105  Issuance of findings and preliminary orders.
Subpart B--Litigation
1979.106  Objections to the findings and the preliminary order and 
request for a hearing.
1979.107  Hearings.
1979.108  Role of Federal agencies.
1979.109  Decision and orders of the administrative law judge.
1979.110  Decision and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
1979.111  Withdrawal of complaints, objections, and findings; 
settlement.
1979.112  Judicial review.
1979.113  Judicial enforcement.
1979.114  Special circumstances; waiver of rules.

    Authority: 49 U.S.C. 42121; Secretary of Labor's Order No. 3-
2000, 65 FR 50017 (August 16, 2000).

Subpart A--Complaints, Investigations, Findings and Preliminary 
Orders


Sec. 1979.100  Purpose and scope.

    (a) This part implements procedures under section 519 of the 
Wendell H. Ford Aviation Investment and Reform Act for the 21st 
Century, 49 U.S.C. 42121 (``AIR21''), which provides for employee 
protection from discrimination by air carriers or contractors or 
subcontractors of air carriers because the employee has engaged in 
protected activity pertaining to a violation or alleged violation of 
any order, regulation, or standard of the Federal Aviation 
Administration or any other provision of Federal law relating to air 
carrier safety.
    (b) This part establishes procedures pursuant to AIR21 for the 
expeditious handling of complaints of discrimination made by employees, 
or by persons acting on their behalf. These rules, together with those 
rules set forth at 29 CFR part 18, set forth the procedures for 
submission of complaints under AIR21, investigations, issuance of 
findings and preliminary orders, objections to findings and orders, 
litigation before administrative law judges, post-hearing 
administrative review, and withdrawals and settlements.


Sec. 1979.101  Definitions.

    Act or AIR21 means section 519 of the Wendell H. Ford Aviation 
Investment and Reform Act for the 21st Century, Public Law 106-181, 
April 5, 2000, 49 U.S.C. 42121.
    Air carrier means a citizen of the United States undertaking by any 
means, directly or indirectly, to provide air transportation.
    Assistant Secretary means the Assistant Secretary of Labor for 
Occupational Safety and Health or the person or persons to whom he or 
she delegates authority under the Act.
    Complainant means the employee who filed a complaint under the Act 
or on whose behalf a complaint was filed.
    Contractor means a company that performs safety-sensitive functions 
by contract for an air carrier.
    Employee means an individual presently or formerly working for an 
air carrier or contractor or subcontractor of an air carrier, an 
individual applying to work for an air carrier or contractor or 
subcontractor of an air carrier, or an individual whose employment 
could be affected by an air carrier or contractor or subcontractor of 
an air carrier.
    Named person means the person alleged to have violated the Act.
    OSHA means the Occupational Safety and Health Administration of the 
United States Department of Labor.
    Person means one or more individuals, partnerships, associations, 
corporations, business trusts, legal representatives or any group of 
persons.
    Secretary means the Secretary of Labor or persons to whom authority 
under the Act has been delegated.


Sec. 1979.102  Obligations and prohibited acts.

    (a) No air carrier or contractor or subcontractor of an air carrier 
may discharge any employee or otherwise discriminate against any 
employee with respect to the employee's compensation, terms, 
conditions, or privileges of employment because the employee, or any 
person acting pursuant to the employee's request, engaged in any of the 
activities specified in paragraphs (b)(1) through (4) of this section.
    (b) It is a violation of the Act for any air carrier or contractor 
or subcontractor of an air carrier to intimidate, threaten, restrain, 
coerce, blacklist, discharge or in any other manner discriminate 
against any employee because the employee has:
    (1) Provided, caused to be provided, or is about to provide (with 
any knowledge of the employer) or cause to be provided to the air 
carrier or contractor or subcontractor of an air carrier or the Federal 
Government, information relating to any violation or alleged violation 
of any order, regulation, or standard of the Federal Aviation 
Administration or any other provision of Federal law relating to air 
carrier safety under subtitle VII of title 49 of the United States Code 
or under any other law of the United States;
    (2) Filed, caused to be filed, or is about to file (with any 
knowledge of the employer) or cause to be filed a proceeding relating 
to any violation or alleged violation of any order, regulation, or 
standard of the Federal Aviation Administration or any other provision 
of Federal law relating to air carrier safety under subtitle VII of 
title 49 of the United States Code, or under any other law of the 
United States;
    (3) Testified or is about to testify in such a proceeding; or

[[Page 15458]]

    (4) Assisted or participated or is about to assist or participate 
in such a proceeding.
    (c) This part shall have no application to any employee of an air 
carrier, contractor, or subcontractor who, acting without direction 
from an air carrier, contractor, or subcontractor (or such person's 
agent) deliberately causes a violation of any requirement relating to 
air carrier safety under Subtitle VII Aviation Programs of Title 49 of 
the United States Code or any other law of the United States.


Sec. 1979.103  Filing of discrimination complaint.

    (a) Who may file. An employee who believes that he or she has been 
discriminated against by an air carrier or contractor or subcontractor 
of an air carrier in violation of the Act may file, or have filed by 
any person on the employee's behalf, a complaint alleging such 
discrimination.
    (b) Nature of filing. No particular form of complaint is required.
    (c) Place of filing. The complaint should be filed with the OSHA 
Area Director responsible for enforcement activities in the 
geographical area where the employee resides or was employed, but may 
be filed with any Department of Labor officer or employee. Addresses 
and telephone numbers for these officials are set forth in local 
directories and at the following Internet address: www.osha.gov.
    (d) Time for filing. Within 90 days after an alleged violation of 
the Act occurs (i.e., when the discriminatory decision has been both 
made and communicated to the complainant), an employee who believes 
that he or she has been discriminated against in violation of the Act 
may file, or have filed by any person on the employee's behalf, a 
complaint alleging such discrimination. The date of the postmark, 
facsimile transmittal, or e-mail communication will be considered to be 
the date of filing; if the complaint is filed in person, by hand-
delivery, or other means, the complaint is filed upon receipt.
    (e) Relationship to section 11(c) complaints. A complaint filed 
under AIR21 that alleges facts which would constitute a violation of 
section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. 
660(c), shall be deemed to be a complaint filed under both AIR21 and 
section 11(c). Similarly, a complaint filed under section 11(c) that 
alleges facts that would constitute a violation of AIR21 shall be 
deemed to be a complaint filed under both AIR21 and section 11(c).


Sec. 1979.104  Investigation.

    (a) Upon receipt of a complaint in the investigating office, the 
Assistant Secretary will notify the named person of the filing of the 
complaint, of the allegations contained in the complaint, and of the 
substance of the evidence supporting the complaint (sanitized to 
protect the identity of any confidential informants). The Assistant 
Secretary will also notify the named person of his or her rights under 
paragraphs (b) and (c) of this section. A copy of the notice to the 
named person will also be provided to the Federal Aviation 
Administration.
    (b) A complaint of alleged violation will be dismissed unless the 
complainant has made a prima facie showing that protected behavior or 
conduct was a contributing factor in the unfavorable personnel action 
alleged in the complaint.
    (1) The complaint, supplemented as appropriate by interviews of the 
complainant, must allege the existence of facts and evidence to make a 
prima facie showing as follows:
    (i) The employee engaged in a protected activity or conduct;
    (ii) The named person knew, actually or constructively, that the 
employee engaged in the protected activity;
    (iii) The employee suffered an unfavorable personnel action; and
    (iv) The circumstances were sufficient to raise the inference that 
the protected activity was likely a contributing factor in the 
unfavorable action.
    (2) 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 named person knew (or suspected) that the 
employee engaged in protected activity and that the protected activity 
was likely a reason for the personnel action. Normally the burden is 
satisfied, for example, if the complaint shows that the adverse 
personnel action took place shortly after the protected activity, 
giving rise to the inference that it was a factor in the adverse 
action. If the required showing has not been made, the complainant will 
be so advised and the investigation will not commence.
    (c) Notwithstanding a finding that a complainant has made a prima 
facie showing, as required by this section, an investigation of the 
complaint will not be conducted if the named person, pursuant to the 
procedures provided in this paragraph, demonstrates by clear and 
convincing evidence that it would have taken the same unfavorable 
personnel action in the absence of the complainant's protected behavior 
or conduct. Within ten days of receipt of the notice of the filing of 
the complaint, the named person may submit to the Assistant Secretary a 
written statement and any affidavits or documents substantiating his or 
her position. Within the same ten days the named person may request a 
meeting with the Assistant Secretary to present his or her position.
    (d) If the named person fails to demonstrate by clear and 
convincing evidence that it would have taken the same unfavorable 
personnel action in the absence of the behavior protected by the Act, 
an investigation will be conducted. Investigations will be conducted in 
a manner that protects the confidentiality of any person, other than 
the complainant, who provides information on a confidential basis, in 
accordance with part 70 of this title.
    (e) Prior to the issuance of findings and a preliminary order as 
provided for in Sec. 1979.105, if the Assistant Secretary has 
reasonable cause, on the basis of information gathered under the 
procedures of this part, to believe that the named person has violated 
the Act and that preliminary reinstatement is warranted, the Assistant 
Secretary will again contact the named person 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 sanitized to 
protect the identity of confidential informants where statements were 
given in confidence; if the statements cannot be sanitized without 
revealing the identity of confidential informants, summaries of their 
contents will be provided. The named person shall be given the 
opportunity to submit a written response, to meet with the 
investigators to present statements from witnesses in support of his or 
her position, and to present legal and factual arguments. The named 
person shall present this evidence within ten days of the Assistant 
Secretary's notification pursuant to this paragraph, or as soon 
afterwards as the Assistant Secretary and the named person can agree, 
if the interests of justice so require.


Sec. 1979.105  Issuance of findings and preliminary orders.

    (a) After considering all the relevant information collected during 
the investigation, the Assistant Secretary will issue, within 60 days 
of filing of the

[[Page 15459]]

complaint, written findings as to whether or not there is reasonable 
cause to believe that the named person has discriminated against the 
complainant in violation of the Act. If the Assistant Secretary 
concludes that there is reasonable cause to believe that a violation 
has occurred, he or she will accompany the findings with a preliminary 
order providing relief to the complainant. The preliminary order will 
include, where appropriate, a requirement that the named person abate 
the violation; reinstatement of the complainant to his or her former 
position, together with the compensation (including back pay), terms, 
conditions and privileges of the complainant's employment; and payment 
of compensatory damages. At the complainant's request the order may 
also assess against the named person the complainant's costs and 
expenses (including attorney's and expert witness fees) reasonably 
incurred in connection with the filing of the complaint. If the 
Assistant Secretary concludes that a violation has not occurred, the 
Assistant Secretary will notify the parties of that finding.
    (b) Upon the request of the named person, the Assistant Secretary 
shall determine, on the basis of information gathered under the 
procedures of Sec. 1979.104, whether a complaint was frivolous or was 
brought in bad faith. If the the Assistant Secretary determines the 
complaint was frivolous or was brought in bad faith, the Assistant 
Secretary may award to the named person a reasonable attorney's fee not 
exceeding $1,000. In order to support such award, the Assistant 
Secretary may require the named person to provide evidence of the 
attorney's fee it has incurred.
    (c) The findings and the preliminary order will be sent by 
certified mail, return receipt requested, to all parties of record. The 
letter accompanying the findings and order will inform the parties of 
the right to object to the findings and/or the order and will give the 
address of the Chief Administrative Law Judge. At the same time, the 
Assistant Secretary will file with the Chief Administrative Law Judge, 
U.S. Department of Labor, the original complaint and a copy of the 
findings and order.
    (d) The findings and the preliminary order shall be effective 30 
days after receipt by the named person, but shall be inoperative if an 
objection to the findings and preliminary order has been timely filed. 
However, the portion of any preliminary order requiring reinstatement 
shall be effective immediately upon receipt of the findings and 
preliminary order, regardless of any objections to the findings and 
order, and may not be stayed.

Subpart B--Litigation


Sec. 1979.106  Objections to the findings and the preliminary order and 
request for a hearing.

    (a) Any party who desires review, including judicial review, of the 
findings and preliminary order, or of an award of attorney's fees under 
Sec. 1979.105(b), must file objections and a request for a hearing on 
the record, within 30 days of receipt of the findings and preliminary 
order. The objection and request for a hearing must be in writing and 
state whether the objection is to the findings, the preliminary order, 
and/or the award of attorney's fees. The date of the postmark, 
facsimile transmittal, or e-mail communication will be considered to be 
the date of filing; if the objection is filed by hand-delivery or other 
means, the objection is filed upon receipt. Objections must be filed 
with the Chief Administrative Law Judge, U.S. Department of Labor, 
Washington, DC 20210, and copies of the objections must be mailed at 
the same time to the other parties of record, the Assistant Secretary's 
designee who issued the findings and order, and the Associate 
Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, 
Washington, DC 20210.
    (b)(1) If a timely objection is filed, all provisions of the 
preliminary order, except an order of preliminary reinstatement, shall 
be stayed. However, the portion of any preliminary order requiring 
reinstatement shall be effective immediately upon the named person's 
receipt of the findings and preliminary order, regardless of any 
objections to the order.
    (2) The findings and the preliminary order shall be effective 30 
days after receipt unless an objection to the findings or preliminary 
order has been timely filed. If no timely objection is filed with 
respect to either the findings or the preliminary order, the findings 
or preliminary order, as the case may be, shall become the final 
decision of the Secretary, not subject to judicial review.


Sec. 1979.107  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 part 18 of title 29 of the Code of Federal Regulations.
    (b) Upon receipt of an objection and request for hearing, the Chief 
Administrative Law Judge will promptly assign the case to a judge who 
will notify the parties, by certified mail, of the day, time, and place 
of hearing. The hearing is to commence expeditiously, except upon a 
showing of good cause or unless otherwise agreed to by the parties. 
Hearings will be conducted as hearings de novo, on the record.
    (c) If both complainant and the named person object to the findings 
and/or order, the objections will be consolidated and a single hearing 
will be conducted.
    (d) Formal rules of evidence shall not apply, but rules or 
principles designed to assure production of the most probative evidence 
available shall be applied. The administrative law judge may exclude 
evidence which is immaterial, irrelevant, or unduly repetitious.


Sec. 1979.108  Role of Federal agencies.

    (a)(1) The complainant and the named person shall be parties in 
every proceeding. At the Assistant Secretary's discretion, the 
Assistant Secretary may participate as a party or may participate as 
amicus curiae at any time in the proceedings. This right to participate 
shall include, but is not limited to, the right to petition for review 
of a decision of an administrative law judge, including a decision 
based on a settlement agreement between complainant and the named 
person, to dismiss a complaint or to issue an order encompassing the 
terms of the settlement.
    (2) Copies of pleadings in all cases, whether or not the Assistant 
Secretary is participating in the proceeding, must be sent to the 
Assistant Secretary, Occupational Safety and Health Administration, and 
to the Associate Solicitor, Division of Fair Labor Standards, U.S. 
Department of Labor, Washington, DC 20210.
    (b) The FAA may participate as amicus curiae at any time in the 
proceedings, at the FAA's discretion. At the request of the FAA, copies 
of all pleadings in a case must be served on the FAA, whether or not 
the FAA is participating in the proceeding.


Sec. 1979.109  Decision and orders of the administrative law judge.

    (a) The decision of the administrative law judge will contain 
appropriate findings, conclusions, and an order pertaining to the 
remedies provided in paragraph (b) of this section, as appropriate. A 
determination that a violation has occurred may only be made if the 
complainant has demonstrated that protected behavior or conduct was a 
contributing factor in the

[[Page 15460]]

unfavorable personnel action alleged in the complaint. Relief may not 
be ordered if the named person demonstrates by clear and convincing 
evidence that it would have taken the same unfavorable personnel action 
in the absence of any protected behavior. Neither the Assistant 
Secretary's determination to dismiss a complaint pursuant to 
Sec. 1979.104 without completing an investigation nor the Assistant 
Secretary's determination not to dismiss a complaint is subject to 
review by the administrative law judge, and a complaint may not be 
remanded for the completion of an investigation on the basis that a 
determination to dismiss was made in error. Rather, if there otherwise 
is jurisdiction, the administrative law judge shall hear the case on 
the merits.
    (b) If the administrative law judge concludes that the party 
charged has violated the law, the order shall direct the party charged 
to take appropriate affirmative action to abate the violation, 
including, where appropriate, reinstatement of the complainant to that 
person's former position, together with the compensation (including 
back pay), terms, conditions, and privileges of that employment, and 
compensatory damages. At the request of the complainant, the 
administrative law judge shall assess against the named person all 
costs and expenses (including attorneys' and expert witness fees) 
reasonably incurred. If, upon the request of the named person, the 
administrative law judge determines that a complaint was frivolous or 
was brought in bad faith, the judge may award to the named person a 
reasonable attorney's fee, not exceeding $1,000.
    (c) The decision will be served upon all parties to the proceeding. 
Any administrative law judge's decision requiring reinstatement or 
lifting an order of reinstatement by the Assistant Secretary shall be 
effective immediately upon receipt of the decision by the named person, 
and may not be stayed. All other portions of the judge's order shall be 
effective 15 days after the date of the decision unless a timely 
petition for review has been filed with the Administrative Review 
Board.


Sec. 1979.110  Decision and orders of the Administrative Review Board.

    (a) The decision of the administrative law judge shall become the 
final order of the Secretary unless, pursuant to this section, a 
petition for review is timely filed with the Administrative Review 
Board (``the Board''). Any party desiring to seek review, including 
judicial review, of a decision of the administrative law judge must 
file a written petition for review with the Board, which has been 
delegated the authority to act for the Secretary and issue final 
decisions under this part. To be effective, a petition must be received 
within 15 days of the date of the decision of the administrative law 
judge. The petition must be served on all parties and on the Chief 
Administrative Law Judge. If a timely petition for review is filed, the 
decision of the administrative law judge shall be inoperative unless 
and until the Board issues an order adopting the decision, except that 
a preliminary order of reinstatement shall be effective while review is 
conducted by the Board. The Board will specify the terms under which 
any briefs are to be filed.
    (b) Copies of the petition for review and all briefs must be served 
on the Assistant Secretary, Occupational Safety and Health 
Administration, and on the Associate Solicitor, Division of Fair Labor 
Standards, U.S. Department of Labor, Washington, DC 20210.
    (c) The final decision of the Board shall be issued within 120 days 
of the conclusion of the hearing, which shall be deemed to be the 
conclusion of all proceedings before the administrative law judge--
i.e., 15 days after the date of the decision of the administrative law 
judge unless a motion for reconsideration has been filed in the 
interim. The decision will be served upon all parties and the Chief 
Administrative Law Judge by mail to the last known address. If the 
Assistant Secretary is not a party, the final decision will also be 
served on the Assistant Secretary, Occupational Safety and Health 
Administration, and on the Associate Solicitor, Division of Fair Labor 
Standards, U.S. Department of Labor, Washington, DC 20210.
    (d) If the Board concludes that the party charged has violated the 
law, the final order shall order the party charged to take appropriate 
affirmative action to abate the violation, including, where 
appropriate, reinstatement of the complainant to that person's former 
position, together with the compensation (including back pay), terms, 
conditions, and privileges of that employment, and compensatory 
damages. At the request of the complainant, the Board shall assess 
against the named person all costs and expenses (including attorneys' 
and expert witness fees) reasonably incurred.
    (e) If the Board determines that the named person has not violated 
the law, an order shall be issued denying the complaint. If, upon the 
request of the named person, the Board determines that a complaint was 
frivolous or was brought in bad faith, the Board may award to the named 
person a reasonable attorney's fee, not exceeding $1,000.

Subpart C--Miscellaneous Provisions


Sec. 1979.111  Withdrawal of complaints, objections, and findings; 
settlement.

    (a) At any time prior to the filing of objections to the findings 
or preliminary order, a complainant may withdraw his or her complaint 
under the Act by filing a written withdrawal with the Assistant 
Secretary. The Assistant Secretary will then determine whether the 
withdrawal will be approved. The Assistant Secretary will notify the 
named person of the approval of any withdrawal. If the complaint is 
withdrawn because of settlement, the settlement shall be approved in 
accordance with paragraph (d) of this section.
    (b) The Assistant Secretary may withdraw his or her findings or a 
preliminary order at any time before the expiration of the 30-day 
objection period, provided that no objection has yet been filed, and 
substitute new findings or preliminary order. The date of the receipt 
of the substituted findings or order will begin a new 30-day objection 
period.
    (c) At any time before the findings or order become final, a party 
may withdraw his or her objections to the findings or order by filing a 
written withdrawal with the administrative law judge or, if the case is 
on review, with the Board. The judge or the Board, as the case may be, 
will determine whether the withdrawal will be approved. If the 
objections are withdrawn because of settlement, the settlement shall be 
approved in accordance with paragraph (d) of this section.
    (d)(1) Investigative settlements. At any time after the filing of a 
complaint, and before the findings and/or order are objected to or 
become a final order by operation of law, the case may be settled if 
the Assistant Secretary, the complainant and the named person agree to 
a settlement.
    (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 administrative law judge if the case 
is before the judge, or by the Board if a timely petition for review 
has been filed with the Board. A copy of the settlement shall be filed 
with the administrative law judge or the Board, as the case may be.
    (e) Any settlement approved by the Assistant Secretary, the 
administrative law judge, or the Board, shall constitute

[[Page 15461]]

the final order of the Secretary and may be enforced pursuant to 
Sec. 1979.112.


Sec. 1979.112  Judicial review.

    (a) Within 60 days after the issuance of a final order under 
Sec. 1979.110, any person adversely affected or aggrieved by the order 
may file a petition for review of the order in the United States Court 
of Appeals for the circuit in which the violation allegedly occurred or 
the circuit in which the person resided on the date of the violation. A 
final order of the Board is not subject to judicial review in any 
criminal or other civil proceeding.
    (b) If a timely petition for review is filed, the record of a case, 
including the record of proceedings before the administrative law 
judge, will be transmitted by the Board to the appropriate court 
pursuant to the rules of the court.


Sec. 1979.113  Judicial enforcement.

    Whenever any person has failed to comply with a preliminary order 
of reinstatement or a final order or the terms of a settlement 
agreement, the Secretary or a person on whose behalf the order was 
issued may file a civil action seeking enforcement of the order in the 
United States district court for the district in which the violation 
was found to have occurred.


Sec. 1979.114  Special circumstances; waiver of rules.

    In special circumstances not contemplated by the provisions of this 
part, or for good cause shown, the administrative law judge or the 
Administrative Review Board on review may, upon application, after 
three days notice to all parties and interveners, waive any rule or 
issue any orders that justice or the administration of the Act 
requires.

[FR Doc. 02-7636 Filed 3-29-02; 8:45 am]
BILLING CODE 4510-26-P