[Federal Register Volume 68, Number 55 (Friday, March 21, 2003)]
[Rules and Regulations]
[Pages 14100-14111]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: X03-10321]



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Part VI





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&thnsp/&thnspVol. 68, No. 55&thnsp/&thnspFriday, 
March 21, 2003&thnsp/&thnspRules and Regulations  

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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: Final rule.

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SUMMARY: This document provides the final 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.
    On April 1, 2002, OSHA published an interim final rule (67 FR 
15454) which provided for rules of procedure and time frames to 
implement Section 519 of AIR21. At that time the agency requested 
comments concerning the interim final rules, and in response several 
comments were received from interested parties. OSHA has reviewed the 
comments and now adopts this final rule which has been revised in part 
to address problems perceived by the agency and the commenters.

DATES: This final rule is effective on March 21, 2003.

FOR FURTHER INFORMATION CONTACT: John Spear, Director, Office of 
Investigative Assistance, Occupational Safety and Health 
Administration, U.S. Department of Labor, Room N–3603, 200 
Constitution Avenue, NW., Washington, DC 20210; telephone (202) 
693–2199.

SUPPLEMENTARY INFORMATION:

I. Background

    The Wendell H. Ford Aviation Investment and Reform Act for the 21st 
Century (“AIR21”), Public Law 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.

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\&thnspResponsibility for receiving and investigating these 
complaints has been delegated to the Assistant Secretary for OSHA. 
Secretary's Order 5–2002 (67 FR 65008, October 22, 2002); 
Secretary's Order 1–2002 (67 FR 64272, October 17, 2002). 
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 1–2002.
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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 
attorney's and expert 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 the employee 
protection provision 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 the 
proceeding. The Secretary shall 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 proceeding which resulted in 
the order on behalf of the complainant. The Secretary also may award a 
prevailing employer an attorney's fee, not exceeding $1,000, if he or 
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

[[Page 14101]]

civil penalty of up to $1,000. This provision is administered by the 
FAA.

III. Summary of Regulations and Rulemaking Proceedings

    On April 1, 2002, the Occupational Safety and Health Administration 
published in the Federal Register an interim final rule promulgating 
rules which implemented Section 519 of the Wendell H. Ford Aviation 
Investment and Reform Act for the 21st Century, Public Law 
106–181, 67 FR 15454—15461. In addition to promulgating the 
interim final rule, OSHA's notice included a request for public comment 
on the interim rules by May 31, 2002. On May 29, 2002, OSHA received a 
request from the Association of Flight Attendants requesting a 30-day 
extension of the comment period, and on June 13, 2002, OSHA published a 
notice in the Federal Register extending the comment period to June 30, 
2002, 67 FR 40597.
    In response, six organizations filed comments with the agency. 
Comments were received from the Association of Flight Attendants (AFA); 
the Air Line Pilots Association (ALPA); the Transportation Trades 
Department, AFL–CIO (TTD); the Air Transport Association (ATA); 
the American Federation of Labor and Congress of Industrial 
Organizations (AFL–CIO); and the National Whistleblower Legal 
Defense and Education Fund on behalf of the National Whistleblower 
Center (NWC). Senator Charles Grassley of Iowa also submitted comments.
    OSHA has reviewed the comments and, in response, has developed a 
final rule which makes some changes in the interim final rule. Other 
changes urged by commenters were considered but rejected. OSHA 
addresses the comments in the discussion that follows. The comments and 
OSHA's response are discussed in the order of the provisions of the 
rule.

General Comments

    OSHA received four comments of a general nature relating to the 
regulations. The AFL–CIO questioned whether the interim 
procedures related to filing of complaints, processing of 
investigations and conduct of administrative reviews satisfy the 
following four requirements which, in its opinion, are needed to meet 
the intent of Congress:
    (1) Whistleblowers must have control of their legal cases through 
an Individual Right of Action;
    (2) The investigating and prosecuting authority must not have 
discretionary authority that may be abused to undermine the legal 
interests of complainants;
    (3) Loopholes that allow illegal employer conduct or circumscribe 
the protected acts of complainants must be eliminated; and
    (4) Legal burdens of proof for whistleblowers must be realistic.

OSHA believes that, as a general matter, the interim rules provide for 
administrative and judicial review procedures and burdens of proof 
required by AIR21 and fully satisfy the spirit and intent of Congress 
to provide whistleblower protection to aviation workers, thus helping 
to increase the safety of the aviation industry and the traveling 
public.
    The NWC suggested that OSHA posters be amended to inform employees 
of all the whistleblower laws administered by OSHA; or, in the 
alternative, OSHA should make posters regarding employee rights under 
all the whistleblower laws widely available free of charge to the 
regulated community and encourage employers to comply with the law and 
voluntarily post notice of the law. OSHA believes that posters and 
other means or informing employers and employees of their rights and 
responsibilities under the various whistleblower statutes are vital to 
achieving the goals of the statutes, although AIR21 does not authorize 
OSHA to require employers to post notice of the law. However, the FAA 
has developed and distributed posters and other informational materials 
to airport authorities, employers and employee groups around the 
country.
    The ATA submitted three general comments regarding the nature of 
the relationship between OSHA and the FAA. The ATA suggested that the 
rules be modified to provide that (1) the FAA has complete and 
exclusive jurisdiction over air carrier safety issues, (2) when OSHA 
receives an AIR21 discrimination complaint, the FAA must first make a 
threshold determination as to whether the underlying safety issues 
raised by the complaint relate to a violation, and (3) throughout any 
investigation by OSHA, the FAA retains exclusive authority to determine 
any air carrier safety issues underlying or related to the 
discrimination complaint. With respect to the first and third comments, 
OSHA agrees that the FAA has authority over air carrier safety issues 
as defined by statute. OSHA does not agree, however, that AIR21 
provides that it is the FAA's responsibility to first make a threshold 
determination as to whether the underlying safety issues raised by the 
complainant relates to an air carrier safety violation. That initial, 
threshold determination of whether the complainant engaged in 
activities protected by the law is common to all the various 
whistleblower statutes and is made by OSHA in the regular course of 
determining a prima facie showing that protected conduct was a 
contributing factor in the alleged unfavorable personnel action.

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. No comments were received relating to this section.

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).
    Four comments were received regarding the definitions contained in 
§&thnsp1979.101. The NWC proposed that the term “air 
carrier” include those carriers owned by foreign persons, stating 
that it would be inconsistent with safety and national security to 
exclude from protection whistleblowers who uncovered and disclosed 
problems related to air carriers which may happen to be owned or 
controlled by foreign corporations or persons. AIR21 is contained in 
Title 49, Subtitle VII, Part A, of the United States Code. While AIR21 
contains a definition of “contractor,” it does not contain 
a definition of “air carrier” and so the general 
definitions applicable to Part A contained in Subpart 1 apply. The 
terms “air carrier” and “foreign air carrier” 
are separately defined by statute at 49 U.S.C. 40102(a)(2) (“air 
carrier”) and 49 U.S.C. 40102(a)(21) (“foreign air 
carrier”), and the general definition of air carrier is set forth 
in the AIR21 rule. OSHA has no authority to define the terms otherwise.
    The NWC also stated that the definition of the term 
“contractor” should be further explained to ensure that the 
definition include all contractors which perform, directly or 
indirectly, any function whatsoever which may have safety implications, 
and that safety-sensitive functions specifically include security 
related activities. The NWC suggested that the definition of 
“safety-sensitive” should include persons who work for

[[Page 14102]]

contractors who are in a position to witness and or identify the 
misconduct of other employees or contractors as opposed to reporting 
only on the employee's own employer. OSHA agrees that “safety-
sensitive functions” include security-related activities, but 
believes that the definition as written is adequate.
    The AFA commented that the terms “contractors, 
subcontractors, or agents or air carriers” be added to the 
definition of “person.” The term “person” is 
included in the definitions because it is used variously in the statute 
to mean both organizations and individuals. The definition describes 
what type of legal entities may be included in the term 
“person.”

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.
    The NWC commented that §&thnsp1979.102(b) should explicitly 
include reports of security violations or reports of security 
weaknesses made to the employer or a law enforcement agency in the 
definition of protected activity. OSHA believes that the regulation 
appropriately sets forth the statutory definition of protected 
activity, which includes providing “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 this subtitle or any other law 
of the United States.” Therefore, OSHA does not believe that the 
additional language requested is necessary.
    The AFA suggested that the words “actively or 
passively” be added to §&thnsp1979.102(b) to clarify that 
all forms of discrimination, whether active or passive, are violations 
of the Act. The AFA also recommended that the words “actual or 
constructive” be added before the word “knowledge” in 
§&thnsp1979.102(b)(1) and (2) to prevent an employer from making 
a “don't want to know” plausible deniability argument to 
escape accountability for violating the Act. OSHA considers that 
extensive case law exists involving analogous language in other 
employee protection statutes. Therefore, OSHA anticipates that similar 
interpretations would be applied under AIR21.
    The NWC recommended that §&thnsp1979.102(c) be further 
defined, in order to prevent a chilling effect on employee disclosures, 
by stating that the term “deliberate” does not apply to 
unintentional conduct. There is case law involving analogous provisions 
of other employee protection statutes defining the phrase 
“deliberate violations” for purposes of denying protection 
to an employee who causes a violation of applicable safety laws. See, 
e.g., Fields v. United States Department of Labor Administrative Review 
Board, 173 F.3d 811, 814 (11th Cir. 1999) (“petitioners moved 
knowingly and dangerously beyond their authority when, on their own, 
and fully aware that their employer would not approve, they conducted 
experiments inherently fraught with danger”). We anticipate that 
a similar construction of that term would be applied under AIR21.

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 the alleged violation. Under Delaware State College v. 
Ricks, 449 U.S. 250, 258 (1980), this date 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). Under 
§&thnsp1979.103(a), complaints may be made by any person on the 
employee's behalf with the consent of the employee.
    Section 1979.103(b) of the interim rule permitted complaints to be 
made both in writing and orally. The rule has been changed to require 
that complaints be made in writing, which shall include a full 
statement of the acts and omissions alleged to constitute the 
violation, in accordance with the procedures for filing whistleblower 
complaints under several other employee protection provisions for which 
the Secretary of Labor has delegated the responsibility for enforcement 
to OSHA. Complaints still do not need to be made in accordance with any 
particular form. However, because of difficulty encountered in the 
processing of oral complaints, OSHA has determined that the process for 
filing full complaints in writing codified at 29 CFR 24.3(c) should 
apply to whistleblower complaints filed under AIR21.
    The AFA commented that §&thnsp1979.103(c) should be changed 
to include the Federal Aviation Administration as a place where 
complaints may be sent because the FAA website advised that 
whistleblower complaints may be filed with the FAA. Similarly, the NWC 
proposed that §&thnsp1979.103.(c), (d) and (e) should make clear 
that whistleblower complaints filed with other agencies should be 
deemed timely filed, particularly when the underlying safety concern 
was originally directed to the other agency. The NWC also commented 
that an internal whistleblower complaint to the employer should also 
act to toll the AIR21 statute of limitations. OSHA wants to make clear 
in the regulations that claims should preferably be filed with OSHA. 
However, as noted in OSHA's Whistleblower Investigations Manual (OSHA 
Instruction DIS 0–0.8), it is OSHA's policy, as supported by case 
law, that complaints timely filed by mistake with the FAA or other 
agency not having the authority to grant relief to the whistleblower 
may be considered timely filed with OSHA. The reference to filing with 
“any Department of Labor officer or employee” has been 
changed to “any OSHA officer or employee” to make the rule 
consistent with other whistleblower rules administered by OSHA.
    The ATA commented that §&thnsp1979.103(e) should be deleted 
in its entirety because OSHA states no legal authority for the 
provision, individuals may intentionally file under one statute and not 
the other, and the section is vague because it does not make clear 
which statutory process OSHA will follow. The purpose of 
§&thnsp1979.103(e) is to make clear to the regulated community 
that OSHA reserves the right to investigate any whistleblower claim 
that properly falls under OSHA's purview. Section 11(c) of the 
Occupational Safety and Health Act (“OSH Act”) provides 
employment protection for employees who exercise certain rights under 
the OSH Act, principal among them being the right to file an 
occupational safety and health complaint with OSHA within 30 days of 
the alleged violation. Section 11(c), unlike STAA and ERA, does not 
provide for an administrative determination of the merits of a 
complaint by the Secretary; instead, the Secretary of Labor may seek to 
bring an action in Federal District Court to enforce the whistleblower 
protection provision of the OSH Act. Section 1979.103(e), which is 
comparable to a provision in the STAA regulations (see 
§&thnsp1978.102(e)), puts the community on notice that OSHA 
considers all complaints filed with it as potential complaints under 
Section 11(c) if it should turn out in the course of the investigation 
that the underlying

[[Page 14103]]

protected safety or health activity falls under OSHA's authority rather 
than that of the FAA. The final rule also clarifies that the 
requirements of Section 11(c) necessarily apply to complaints that OSHA 
treats as having been filed under the OSH Act, and that the 
requirements of AIR21 apply to complaints that OSHA treats as having 
been filed under AIR21.

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 20 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 business 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). In addition, we clarified that the ten-day time period refers 
to ten business days. This is consistent with the Federal Rules of 
Civil Procedure 6(a), which excludes from the computation of the period 
of time intermediate Saturdays, Sundays, and legal holidays, when the 
period of time prescribed or allowed is less than 11 days.
    In a comment submitted by the AFA, it was suggested that 
§&thnsp1979.104(a) be revised to require the Assistant Secretary 
to notify both the named person and the complainant of the filing of 
the complaint and their rights under the Act. However, the statutory 
language only requires that the named person be notified in writing. As 
a matter of policy, OSHA does acknowledge receipt of the complaint in 
writing back to the complainant.
    The ATA commented that §&thnsp1979.104.(b) should be modified 
to make clear that if OSHA initiates an investigation, but later 
concludes that the complainant has failed to establish a prima facie 
case or that the respondent has rebutted the prima facie case, the 
agency should terminate the investigation. This comment misapprehends 
OSHA's practice and the intent of the rule. If, at any point in the 
investigation, it becomes clear that a prima facie showing cannot be 
established or that the evidence otherwise reveals that the complaint 
lacks merit, OSHA will dismiss the complaint.
    The TTD, NWC, AFA, and Senator Grassley all commented that 
§&thnsp1979.104(b)(1)(iv) and (b)(2) should be changed to more 
accurately reflect the language of the statute in describing the 
complainant's burden of proof. The commenters felt that the use of the 
word “likely” effectively changed the intent of the 
statutory language placing on the complainant the burden to demonstrate 
that the protected activity “was a contributing factor in the 
unfavorable personnel action alleged in the complaint.” OSHA 
agrees that the language of the interim rule could be construed to 
alter or otherwise inaccurately reflect the language of the statute, 
and has changed it by deleting the word “likely.”
    The AFA suggested that §&thnsp1979.104(c) be changed to 
require the Assistant Secretary to share documents submitted by the 
named person with the complainant and to allow the complainant to be 
present during the initial meeting with the named person, if requested. 
OSHA believes that, consistent with other whistleblower laws, the 
language of the statute is clear that the initial investigation by OSHA 
is to be conducted independently for the purpose of establishing the 
factual circumstances and facilitating an early resolution of the 
claim.
    The ATA recommended that §&thnsp1979.104(c) be changed to 
lengthen the named person's response time from ten days to 30 days. ATA 
felt that ten days is not enough time to research and provide an 
appropriate response that is substantial enough to make the required 
demonstration by “clear and convincing evidence.” OSHA 
agrees that ten days may frequently be a very short time to effectively 
research and prepare a response. However, because the statute provides 
only 60 days for OSHA to complete the entire investigation and issue 
findings, OSHA believes that allowing half that time for submitting an 
initial response will impede its ability to complete the investigation 
in a timely manner. The final rule is changed to permit 20 days for 
submitting an initial response and a request for a meeting, which is 
also consistent with other whistleblower statutes having a 60-day 
investigation time frame.
    The AFA suggested that §&thnsp1979.104(d) be modified to 
delete the words, “other than the complainant” from the 
last sentence to ensure confidentiality for all persons, including the 
complainant. This rule is intended to affirmatively provide for the 
protection of the identity of persons who come forward to OSHA to 
provide information or testimony relevant to OSHA's investigation of 
the whistleblower complaint. The phrase is not intended to limit or 
restrict in any way OSHA's ability to appropriately withhold 
information or documentation provided by the complainant which would 
ordinarily be exempt from disclosure under the provisions of the 
Freedom of Information Act.
    The AFA also suggested that §&thnsp1979.104(e) be changed to 
require that when the Assistant Secretary concludes that reinstatement 
is warranted, the complainant, as well as the named person, be 
contacted to give notice of the substance of the evidence supporting 
the complainant's claim and an opportunity to be present in any 
subsequent meeting. The NWC recommended that §&thnsp1979.104(e) 
be deleted in its entirety because a second review of the respondent's 
position unnecessarily delays the investigation. As noted above, it is 
OSHA's position that OSHA's investigation is conducted independently 
prior to the administrative hearing phase of the process, in which all 
parties participate fully. The purpose of §&thnsp1979.104(e) is 
to ensure compliance with the Supreme Court's ruling in Brock v. 
Roadway Express, Inc., 107 S. Ct. 1740 (1987), in which the court, on a 
constitutional challenge to the temporary reinstatement provision in 
the employee protection provisions of the Surface Transportation 
Assistance Act (now codified at 49 U.S.C. 31105), upheld the facial 
constitutionality of the statute and the procedures adopted by OSHA 
under the Due Process Clause of the Fifth Amendment, but ruled that the 
record

[[Page 14104]]

failed to show that OSHA investigators had informed Roadway of the 
substance of the evidence to support reinstatement of the discharged 
employee.

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. The language of §&thnsp1979.105(c) has been changed to 
explain this process without repeating the discussion in 
§&thnsp1979.106(b).
    The AFA commented that §&thnsp1979.105(a) should be modified 
to require the awarding of attorney's fees to the complainant and to 
provide only to the complainant a written summary of the relevant facts 
obtained when a complaint is dismissed. OSHA believes that it is 
obligated under the law to provide written findings to both parties 
regardless of the outcome of the investigation. OSHA agrees that the 
statutory language requires the Secretary to award reasonable 
attorney's fees, and the language of the regulation has been changed 
accordingly.
    The ATA commented that §&thnsp1979.105(a) should be modified 
to make clear that OSHA should not order preliminary reinstatement of 
an employee involved in air carrier operations if the individual poses 
a safety risk to employees or passengers. The ATA felt that it was 
possible in certain situations that OSHA might reasonably conclude that 
a complainant should be reinstated, but that the complainant's return 
to work could pose a safety hazard to other employees or the public. 
AIR21 only permits issuance of a preliminary order granting 
reinstatement if there is reasonable cause to believe that a violation 
has occurred. Section 1979.104(e) provides opportunities for the named 
person to present evidence to OSHA that the complainant would have been 
discharged even in the absence of his or her protected activity. Where 
the named party establishes that the complainant would have been 
discharged even absent the protected activity, there would be no 
reasonable cause to believe that a violation has occurred. Therefore, a 
preliminary restatement order would not be issued.
    Furthermore, a preliminary order of reinstatement would not be an 
appropriate remedy where, for example, the named party establishes that 
the complainant is, or has become, a security risk based upon 
information obtained after the complainant's discharge in violation of 
AIR21's employee protection provision. See McKennon v. Nashville Banner 
Publishing Co., 513 U.S. 352, 360–62 (1995), in which the Supreme 
Court recognized that reinstatement would not be an appropriate remedy 
for discrimination under the Age Discrimination in Employment Act 
where, based upon after-acquired evidence, the employer would have 
terminated the employee upon lawful grounds. The final regulation 
explicitly so provides. Moreover, because section 1979.105(a) provides 
that the Assistant Secretary's preliminary order will require 
reinstatement, along with the other make-whole remedies, “where 
appropriate,” we believe that the regulations provide safeguards 
that address ATA's legitimate security-risk concerns. Finally, in 
appropriate circumstances, in lieu of preliminary reinstatement, OSHA 
may order that the complainant receive the same pay and benefits that 
he received prior to his termination, but not actually return to work. 
Such “economic reinstatement” frequently is employed in 
cases arising under section 105(c) of the Federal Mine Safety and 
Health Act of 1977. See, e.g., Secretary of Labor on behalf of York v. 
BR&D Enters., Inc., 23 FMSHRC 697, 2001 WL 1806020 **1 (June 26, 
2001).
    The AFA suggested that §&thnsp1979.105(b) should be changed 
to require the named person to produce proof of attorney's fees and to 
provide the evidence directly to the complainant in cases where OSHA 
finds that a complaint is frivolous or brought in bad faith. The NWC 
commented that such sanctions against the complainant should not be 
available during the investigation phase. In consideration of the 
comments presented and OSHA's own re-evaluation of the statutory 
language, OSHA has deleted the paragraph delegating to OSHA 
responsibility for assessing attorney's fees up to $1,000 during the 
investigation phase for complaints frivolously filed or filed in bad 
faith (§&thnsp1979.105(b)). The remaining paragraphs of this 
section have been renumbered. The named person may seek attorney's fees 
for complaints filed frivolously or in bad faith in the administrative 
law judge proceeding as provided in §&thnsp1979.106(a). Such 
attorney's fees may be sought for fees incurred during the 
investigation of a frivolous complaint, even where the Assistant 
Secretary finds no merit to the complaint and the complainant does not 
file any objection to the determination. See §&thnsp1979.105(b) 
and §&thnsp1979.109(b). The named person also may seek attorney's 
fees as provided in §&thnsp1979.110(a), in a petition for review 
by the Board. See §&thnsp1979.110(e).

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, D.C. 
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. The language of §&thnsp1979.106(b) 
has been changed to explain the effect of the timely filing of 
objections on the preliminary order without repeating the discussion in 
§&thnsp1979.105(c).
    The NWC commented that in §&thnsp1979.106(a) the requirement 
that a party needs to file “objections” at the time a 
request for hearing is filed should be deleted. The basis for the 
comment was that other whistleblower regulations do not require it and 
that unnecessary litigation may result over the adequacy of the 
objections rather than the merits of the case. OSHA has considered this 
concern and believes that the rules as drafted are correct and 
consistent with the language of the statute. It is not expected that a 
party's list of objections needs to be exhaustive at the time of the 
initial request for hearing. A named person may seek attorney's fees 
for the filing of a frivolous complaint or a complaint filed in bad 
faith when filing any objections and a request for a hearing.
    The NWC also felt that §&thnsp1979.106(b)(1) should require 
that all of the remedies of a preliminary order be immediately 
effective, rather than just the reinstatement portion, when the 
employee prevails at the investigative stage. OSHA believes that such 
an interpretation is clearly inconsistent with the statutory language 
which states that objections shall not operate to stay any 
reinstatement remedy contained in the preliminary order.

[[Page 14105]]

Section 1979.107 Hearings

    This section adopts the rules of practice of the Office of 
Administrative Law Judges at 29 CFR Part 18, Subpart A. In order to 
assist in obtaining full development of the facts in whistleblower 
proceedings, 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 order of 
the Assistant Secretary.
    The ALPA commented that a new subsection should be added to 
§&thnsp1979.107 setting forth the standard of proof to be used by 
the administrative law judges at hearing. OSHA believes that the 
statute clearly sets forth the criteria for determination by the 
Secretary, and additional clarification is not necessary.

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, 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.
    Four comments were received regarding §&thnsp1979.108(a)(1). 
The TTD and the AFA commented that the regulation should explicitly 
provide that the Assistant Secretary shall act only in the interests of 
the complainant at any hearings. The ALPA commented that the Assistant 
Secretary should always act as prosecutor at any hearing before the ALJ 
or review by the Board. The AFA commented that the Assistant Secretary 
should act as prosecutor only at the request of the complainant. And 
the ATA supported the section as written and commented that the 
Assistant Secretary should limit participation to those few cases that 
present issues of such particular legal significance to the agency as 
to warrant participation. In consideration of all the comments received 
it is OSHA's determination to leave the language of this rule as 
written. The Assistant Secretary may participate as a party or may 
participate as amicus curiae as he or she may deem necessary or 
appropriate.

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 to dismiss the complaint without an 
investigation or complete an investigation pursuant to 
§&thnsp1979.104 is not subject to review. Paragraph (a) of this 
section has been clarified to state expressly that the Assistant 
Secretary's determinations on whether to proceed with an investigation 
and to make particular investigative findings are discretionary 
decisions not subject to review by the ALJ. The ALJ hears the case on 
the merits, and may not remand the matter to the Assistant Secretary to 
conduct an investigation or make further factual findings. Paragraph 
(c) of this section has been changed to make the ALJ decision effective 
ten business days after the date on which it was issued, unless a 
timely petition for review has been filed with the Administrative 
Review Board, to conform with the change in §&thnsp1979.110(a), 
which provides ten business days instead of “15 days” from 
the date of the ALJ decision for the filing of a petition for review.
    The AFA commented that §&thnsp1979.109(b) should be changed 
to require the administrative law judge to provide the complainant with 
any evidence of the named person's attorney's fees and to formally 
advise the complainant that the decision to award fees may be appealed. 
OSHA does not believe this language is necessary because the right of 
either party to appeal the administrative law judges' decisions is 
explained in the subsequent section, to wit, §&thnsp1979.110.
    The NWC commented that §&thnsp1979.109(c) should be modified 
to reflect that the administrative law judges do not have statutory 
authority to lift the Assistant Secretary's preliminary order of 
reinstatement. OSHA does not believe that the proposed change can be 
supported by the language of the statute.

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 may 
petition the Board for review of that decision. The date of the 
postmark, facsimile transmittal, or e-mail communication will be 
considered to be the date of filing; if the petition is filed in 
person, by hand-delivery or other means, the petition is considered 
filed upon receipt. Paragraph (a) of this section has been modified to 
facilitate the review process by stating expressly that the parties 
must specifically identify the findings and conclusions to which they 
take exception in the petition, or the exceptions are deemed waived by 
the parties.
    Paragraphs (a) and (b) also have been modified to provide that 
appeals to the Board are not a matter of right, but rather petitions 
for review are accepted at the discretion of the Board. The Board has 
30 days to decide whether to grant the petition for review. If the 
Board does not grant the petition, the decision of the ALJ becomes the 
final decision of the Secretary. If the Board grants the petition, the 
Act requires the Board to issue a decision not later than 120 days 
after the date of the conclusion of the hearing before the ALJ. The 
conclusion of the hearing is deemed to be the conclusion of all 
proceedings before the administrative law judge—i.e., ten 
business 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

[[Page 14106]]

Board, any relief ordered by the ALJ, except for a preliminary order of 
reinstatement, is inoperative while the matter is pending before the 
Board. This section now further provides that, when the Board accepts a 
petition for review, its review of factual determinations will be 
conducted under the substantial evidence standard. This standard also 
is applied to Board review of ALJ decisions under the whistleblower 
provision of STAA. 29 CFR 1978.109(b)(3).
    The AFA recommended that §&thnsp1979.110(a) be changed to 
state that a petition for review must be filed with the ARB within ten 
days, rather than received by the Board within 15 days to allow either 
party sufficient time to file without being penalized by inconsistent 
postal delivery. OSHA agrees that, due to the vagaries of postal 
delivery, the date of filing as described in this section rather than 
the date of the Board's receipt of the petition should be used to 
determine whether a petition is timely, and that ten days is sufficient 
time to petition for review of an ALJ decision. Only business days 
shall be counted in the ten days allowed for filing a petition, 
consistent with the Federal Rules of Civil Procedure 6(a), and 
paragraph (a) of this section has been changed to clarify the change 
from “15” to “ten” days.
    The AFA also recommended that §&thnsp1979.110(c) be changed 
to avoid undue delay by providing that the administrative law judge's 
decision becomes the final order of the Secretary after 120 days if the 
Administrative Review Board fails to act within the 120 days. OSHA 
agrees that the procedure for Board review of an ALJ decision should be 
modified to avoid delay and prejudice to the parties, and to facilitate 
the issuance of a final order of the Secretary as required by the Act. 
The modifications to the Board review procedure in paragraphs (a) and 
(b) of this section, i.e., discretionary review by the Board, which 
shall accept as conclusive ALJ findings of fact that are supported by 
substantial evidence, address the concerns expressed by the AFA, and 
the recommended change to paragraph (c) of this section is not 
necessary.

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.
    The NWC commented that §&thnsp1979.111 should be modified to 
permit a complainant to freely withdraw his or her complaint without 
prejudice. OSHA believes that §&thnsp1979.111 does permit a 
complainant to freely withdraw his or her complaint without prejudice. 
The purpose of the Assistant Secretary's approval is to help ensure 
that the complainant's withdrawal is, indeed, made freely without 
threat of coercion or unlawful promise.

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.
    The NWC commented that §&thnsp1979.114 should be deleted in 
its entirety because it has no basis in the statutory language. OSHA 
believes that the regulation should remain to give the administrative 
law judges and the Administrative Review Board the flexibility to take 
actions in unusual situations that are not contemplated by the 
regulations.

IV. Paperwork Reduction Act

    This rule contains a reporting requirement (§&thnsp1979.103) 
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 was not required for these regulations, which provide 
procedures for the handling of discrimination complaints. However, the 
Assistant Secretary sought and considered comments to enable the agency 
to improve the rules by taking into account the concerns of interested 
persons.
    Furthermore, because this rule is procedural rather than 
substantive, the normal requirement of 5 U.S.C. 553(d) that a rule be 
effective 30 days after publication in the Federal Register is 
inapplicable. The Assistant Secretary also finds good cause to provide 
an immediate effective date for this rule. It is in the public interest 
that the rule be effective immediately so that parties may know what 
procedures are applicable to pending cases.

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

    The Department has concluded that this rule 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 government and the States, or on the distribution 
of power and

[[Page 14107]]

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 17th day of March, 2003.
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 revised to read 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 
5–2002, 67 FR 65008 (October 22, 2002).

Subpart A—Complaints, Investigations, Findings and 
Preliminary Orders


§&thnsp1979.100  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 discrimination complaints made by employees, or 
by persons acting on their behalf. These rules, together with those 
rules codified at 29 CFR part 18, set forth the procedures for 
submission of complaints under 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.


§&thnsp1979.101  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.


§&thnsp1979.102  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
    (4) Assisted or participated or is about to assist or participate 
in such a proceeding.

[[Page 14108]]

    (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.


§&thnsp1979.103  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, 
except that a complaint must be in writing and should include a full 
statement of the acts and omissions, with pertinent dates, which are 
believed to constitute the violations.
    (c) Place of filing. The complaint should be filed with the OSHA 
Area Director responsible for enforcement activities in the 
geographical area where the employee resides or was employed, but may 
be filed with any OSHA officer or employee. Addresses and telephone 
numbers for these officials are set forth in local directories and at 
the following Internet address: http://www.osha.gov.
    (d) Time for filing. 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). 
Normal procedures and timeliness requirements for investigations under 
the respective laws and regulations will be followed.


§&thnsp1979.104  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 (redacted 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 and paragraph (e) of §&thnsp1979.110. 
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 or suspected, 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 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 a contributing factor in the unfavorable 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 20 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 20 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, 
the Assistant Secretary will conduct an investigation. 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 29 CFR part 70.
    (e) Prior to the issuance of findings and a preliminary order as 
provided for in §&thnsp1979.105, 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 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 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 business days of the 
Assistant Secretary's notification pursuant to this paragraph, or as 
soon afterwards as the Assistant Secretary and the named

[[Page 14109]]

person can agree, if the interests of justice so require.


§&thnsp1979.105  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 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.
    (1) 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. 
Where the named person establishes that the complainant is a security 
risk (whether or not the information is obtained after the 
complainant's discharge), a preliminary order of reinstatement would 
not be appropriate. At the complainant's request the order shall 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.
    (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 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 
their right to file objections and to request a hearing, and of the 
right of the named person to request attorney's fees from the 
administrative law judge, regardless of whether the named person has 
filed objections, if the named person alleges that the complaint was 
frivolous or brought in bad faith. The letter also 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, a copy of the original complaint and a copy 
of the findings and order.
    (c) The findings and the preliminary order shall be effective 30 
days after receipt by the named person pursuant to paragraph (b) of 
this section, unless an objection and a request for a hearing has been 
filed as provided at §&thnsp1979.106. However, the portion of any 
preliminary order requiring reinstatement shall be effective 
immediately upon receipt of the findings and preliminary order.

Subpart B—Litigation


§&thnsp1979.106  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 a named person alleging that the 
complaint was frivolous or brought in bad faith who seeks an award of 
attorney's fees, 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 paragraph (b) of §&thnsp1979.105. 
The objection or request for attorney's fees and request for a hearing 
must be in writing and state whether the objection is to the findings, 
the preliminary order, and/or whether there should be an 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 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, Washington, 
DC 20001, and copies of the objections must be mailed at the same time 
to the other parties of record, the OSHA official who issued the 
findings and order, 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 shall be stayed, except for the portion requiring 
preliminary reinstatement. The portion of the 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) 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.


§&thnsp1979.107  Hearings.

    (a) Except as provided in this part, proceedings will be conducted 
in accordance with the rules of practice and procedure for 
administrative hearings before the Office of Administrative Law Judges, 
codified at subpart A, of 29 CFR part 18.
    (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. 
Administrative law judges shall have broad discretion to limit 
discovery in order to expedite the hearing.
    (c) If both the 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 
shall be applied. The administrative law judge may exclude evidence 
which is immaterial, irrelevant, or unduly repetitious.


§&thnsp1979.108  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 sent to the FAA, whether or not the 
FAA is participating in the proceeding.


§&thnsp1979.109  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

[[Page 14110]]

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 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 without 
completing an investigation pursuant to §&thnsp1979.104(b) nor 
the Assistant Secretary's determination to proceed with an 
investigation is subject to review by the administrative law judge, 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 
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 attorney's 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 ten business days after the date of the decision unless a 
timely petition for review has been filed with the Administrative 
Review Board.


§&thnsp1979.110  Decision and orders of the Administrative Review 
Board.

    (a) Any party desiring to seek review, including judicial review, 
of a decision of the administrative law judge, or a named person 
alleging that the complaint was frivolous or brought in bad faith who 
seeks an award of attorney's fees, must file a written petition for 
review with the Administrative Review Board (“the Board”), 
which has been delegated the authority to act for the Secretary and 
issue final decisions under this part. 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 Board. The petition for review must specifically identify the 
findings, conclusions or orders to which exception is taken. Any 
exception not specifically urged ordinarily shall be deemed to have 
been waived by the parties. To be effective, a petition must be filed 
within ten business days of the date of the decision of the 
administrative law judge. The date of the postmark, facsimile 
transmittal, or e-mail communication will be considered to be the date 
of filing; if the petition is filed in person, by hand-delivery or 
other means, the petition is considered filed upon receipt. The 
petition must be served on all parties and on the Chief Administrative 
Law Judge at the time it is filed with the Board. 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.
    (b) If a timely petition for review is filed pursuant to paragraph 
(a) of this section, the decision of the administrative law judge shall 
become the final order of the Secretary unless the Board, 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 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. The Board 
will review the factual determinations of the administrative law judge 
under the substantial evidence standard.
    (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., ten business days after the date of the decision of 
the administrative law judge unless a motion for reconsideration has 
been filed with the administrative law judge in the interim. The 
decision will be served upon all parties and the Chief Administrative 
Law Judge by mail to the last known address. 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, even 
if the Assistant Secretary is not a party.
    (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 attorney's 
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


§&thnsp1979.111  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 described in §&thnsp1979.106, 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

[[Page 14111]]

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 the final 
order of the Secretary and may be enforced pursuant to 
§&thnsp1979.113.


§&thnsp1979.112  Judicial review.

    (a) Within 60 days after the issuance of a final order by the Board 
under §&thnsp1979.110, any person adversely affected or aggrieved 
by the order may file a petition for review of the order in the United 
States Court of Appeals for the circuit in which the violation 
allegedly occurred or the circuit in which the complainant resided on 
the date of the violation. A final order of the 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.


§&thnsp1979.113  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.


§&thnsp1979.114  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 
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. 03–6792 Filed 3–20–03; 8:45 am]
BILLING CODE 4510–26–U