[Federal Register Volume 76, Number 11 (Tuesday, January 18, 2011)]
[Rules and Regulations]
[Pages 2808-2826]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-828]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 24

[Docket Number: OSHA-2007-0028]
RIN 1218-AC25


Procedures for the Handling of Retaliation Complaints Under the 
Employee Protection Provisions of Six Environmental Statutes and 
Section 211 of the Energy Reorganization Act of 1974, as Amended

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 (or ``whistleblower'') provisions of Section 
211 of the Energy Reorganization Act of 1974, as amended, (``ERA''), 
implementing the statutory changes enacted into law on August 8, 2005, 
as part of the Energy Policy Act of 2005. The regulations also finalize 
changes to the procedures for handling retaliation complaints under 
Section 211 of the ERA and the six environmental whistleblower statutes 
that were designed to make them as consistent as possible with the more 
recently promulgated procedures for handling retaliation complaints 
under other whistleblower provisions administered by the Occupational 
Safety and Health Administration (OSHA).

DATES: This final rule is effective on January 18, 2011.

FOR FURTHER INFORMATION CONTACT: Nilgun Tolek, Director, Office of the 
Whistleblower Protection Program, Occupational Safety and Health 
Administration, U.S. Department of Labor, Room N-3610, 200 Constitution 
Avenue, NW., Washington, DC 20210; telephone (202) 693-2199.

SUPPLEMENTARY INFORMATION:

I. Background

    The Energy Policy Act of 2005, Public Law 109-58, was enacted on 
August 8, 2005. Among other provisions, this new law amended the 
employee protection provisions for nuclear whistleblowers under Section 
211 of the ERA, 42 U.S.C. 5851; the statutory amendments affect only 
ERA whistleblower complaints. The changes to the regulations also 
affect the six environmental whistleblower statutes because the same 
procedures generally apply to each of the statutes covered in 29 CFR 
part 24. Because OSHA recognizes the importance of consistency in the 
procedures governing the whistleblower statutes that it administers, it 
has tried to standardize these regulations with other whistleblower 
regulations promulgated by OSHA to the extent possible within the 
bounds of the statutory language. We have removed from this background 
section as unnecessary and confusing the statement in the interim final 
rule that the 2005 ERA amendments apply to claims filed on or after 
August 8, 2005; OSHA takes no position in these regulations on the 
applicability of the 2005 ERA amendments to complaints filed with the 
Department before August 8, 2005.

II. Summary of Statutory Changes to ERA Whistleblower Provisions

    Section 629 of Public Law 109-58 (119 Stat. 785) amended Section 
211 of the ERA, 42 U.S.C. 5851, by making the changes described below.

Revised Definition of ``Employer''

    Section 211 of the ERA defined a covered ``employer'' to include: 
Licensees of the Nuclear Regulatory Commission (``Commission''); 
applicants for such licenses, and their contractors and subcontractors; 
contractors and subcontractors of the Department of Energy, except 
those involved in naval nuclear propulsion work under Executive Order 
12344; licensees of an

[[Page 2809]]

agreement State under Section 274 of the Atomic Energy Act of 1954; 
applicants for such licenses, and their contractors and subcontractors. 
The August 2005 amendments revised the definition of ``employer'' to 
extend coverage to employees of contractors and subcontractors of the 
Commission; the Commission; and the Department of Energy.

De Novo Review

    The August 2005 amendments added a provision for de novo review by 
a United States District Court in the event that the Secretary has not 
issued a final decision within one year after the filing of a 
complaint, and there is no showing that the delay is due to the bad 
faith of the complainant.

III. Summary of Regulations and Rulemaking Proceedings

    On August 10, 2007, the Occupational Safety and Health 
Administration published in the Federal Register an interim final rule 
revising the rules that implemented Section 211 of the ERA, and the 
whistleblower provisions of the environmental statutes listed in part 
24, 72 FR 44956-44969. In addition to promulgating the interim final 
rule, OSHA's notice included a request for public comment on the 
interim rules by October 9, 2007.
    In response, two organizations--the Government Accountability 
Project (``GAP'') and the National Whistleblower Center (``NWC'')--and 
four individuals--William H. Ewing, Esq.; Richard R. Renner, Esq., 
Jason M. Zuckerman, Esq., and James F. Newport--filed comments with the 
agency within the public comment period. OSHA has reviewed and 
considered these comments and now adopts this final rule which has been 
revised in part to address problems perceived by the agency and the 
commenters.

General Comments

    Richard R. Renner, Jason M. Zuckerman, and William H. Ewing 
commented generally that they believe the interim final regulations 
frustrate the purposes of the statutes to protect the public from 
environmental and nuclear safety dangers. They further commented that 
the interim final rule will deter complainants who have filed 
complaints under Section 211 of the ERA from seeking de novo relief in 
district courts. Renner and Zuckerman stated that previously the 
National Employment Lawyers Association helped initiate a liaison 
process with the Office of Administrative Law Judges (OALJ) and with 
OSHA ``to establish avenues of communication among policy makers, 
whistleblower groups and employer groups'' and expressed disappointment 
that the Department did not use that process to collect information and 
make decisions prior to issuing an interim final rule. Although no 
formal liaison process has been established, OSHA has met with 
representatives of the National Employment Lawyers Association and 
looks forward to further dialogue with its stakeholders.
    The provisions in the interim final rule governing the filing of 
actions for de novo review in district court were modeled on the 
regulations implementing the whistleblower provisions of Section 806 of 
the Corporate and Criminal Fraud Accountability Act of 2002, Title VIII 
of the Sarbanes-Oxley Act of 2002 (``SOX''), 18 U.S.C. 1514A, codified 
at 29 CFR part 1980. OSHA does not believe that those regulations have 
deterred complainants from taking actions to district court under the 
de novo review provision. Nevertheless, based on a review of the 
comments and the agency's further consideration, OSHA has made some 
changes to the preamble and regulatory provisions that address an 
employee's option of proceeding in district court.

IV. Summary and Discussion of Regulatory Provisions

    The regulatory provisions in this part have been revised to be 
consistent with other whistleblower regulations promulgated by OSHA to 
the extent possible within the bounds of the statutory language of the 
ERA and the six environmental statutes listed in section 24.100(a). The 
section numbers of these regulations also have been changed to 
correspond with the numbering under the regulations implementing other 
whistleblower statutes administered by OSHA. Although these regulations 
are intended to be consistent with the majority of OSHA's other 
whistleblower regulations, they refer to actions brought under the 
whistleblower provisions of the ERA and the six environmental statutes 
as actions alleging ``retaliation'' rather than ``discrimination.'' 
This change in terminology, which is not intended to have substantive 
effect, reflects that claims brought under these whistleblower 
provisions are prototypical retaliation claims. A retaliation claim is 
a specific type of discrimination claim that focuses on actions taken 
as a result of an employee's protected activity rather than as a result 
of an employee's characteristics (e.g., race, gender, or religion).
    Richard R. Renner and Jason Zuckerman commented that it would be 
helpful if the Department clarified in this Summary and Discussion of 
Regulatory Provisions that adverse actions in Title VII retaliation 
cases are not limited to tangible employment actions and that the 
burdens of proof in ERA cases, which were altered by statute in 1992, 
differ from the burdens of proof generally applicable to traditional 
discrimination cases. Renner and Zuckerman suggested that these 
principles can be clarified by including within the regulations 
definitions of ``unfavorable personnel action,'' ``clear and convincing 
evidence,'' and ``contributing factor.'' OSHA does not believe that 
these clarifications are necessary in the regulations. However, OSHA 
has included a discussion of these phrases in the preamble. Also, as 
explained in more detail below, for clarity and consistency, the final 
regulations use the phrase ``adverse action'' throughout, rather than 
the phrase ``unfavorable personnel action.'' In addition, both the 
preamble and the regulations clearly distinguish between the burdens of 
proof that apply under Section 211 of the ERA and the burdens of proof 
that apply under the six environmental whistleblower statutes.

Subpart A--Complaints, Investigations, Issuance of Findings

Section 24.100 Purpose and Scope
    This section (formerly section 24.1) describes the purpose of the 
regulations implementing the whistleblower provisions of seven statutes 
enforced by the Secretary of Labor and provides an overview of the 
procedures covered by the regulations. The section has been revised to 
refer to the Federal Water Pollution Control Act, instead of the Clean 
Water Act. They are synonymous, but the Office of Administrative Law 
Judges and the Administrative Review Board (ARB) generally use Federal 
Water Pollution Control Act, and we do so here for the sake of 
consistency. In addition, the section has been renumbered to conform to 
the numbering system for other whistleblower regulations promulgated by 
OSHA. Thus, for example, former section 24.1 becomes current section 
24.100. No comments were received on this section.
Section 24.101 Definitions
    This new section includes general definitions applicable to the 
whistleblower provisions of the seven statutes listed in section 
24.100(a). This section does not include program-specific definitions, 
which may be

[[Page 2810]]

found in the statutes. For purposes of clarity, OSHA has added a 
definition of ``business days'' to this definitional section. The term 
means days other than Saturday, Sunday, and Federal holidays.
    One comment was received regarding the definitions contained in 
section 24.101. GAP commented that the definition of ``Respondent'' 
should include individuals other than employers, because the Solid 
Waste Disposal Act (SWDA), 42 U.S.C. 6971(a), provides that ``[n]o 
person shall fire, or in any other way discriminate against * * * any 
employee'' who has engaged in protected activity, and the Federal Water 
Pollution Control Act (FWPCA), 33 U.S.C. 1367, and the Comprehensive 
Environmental Response, Compensation, and Liability Act (CERCLA), 42 
U.S.C. 9610, have similar provisions. As GAP acknowledges in its 
comments, however, the ARB has held that notwithstanding the use of 
``person'' in the FWPCA, SWDA, and CERCLA in place of ``employer,'' the 
statutes nevertheless require that the respondent have an employment 
relationship with the complainant or act in the capacity of an 
employer, that is, exercise control over the terms, conditions, or 
privileges of the complainant's employment. See, e.g., Culligan v. 
American Heavy Lifting Shipping Co., No. 03-046 (ARB June 30, 2004). 
Accordingly, OSHA does not believe that changes to the definition of 
Respondent are necessary.
Section 24.102 Obligations and Prohibited Acts
    This section (formerly section 24.2) describes the activities that 
are protected under the statutes covered by this part, and the conduct 
that is prohibited in response to any protected activities. The 
language generally has been revised to conform to the language in the 
majority of the other whistleblower regulations promulgated by OSHA, to 
the extent possible within the bounds of the statutory language of the 
ERA and the six environmental statutes. The changes are not intended to 
be substantive. References to the statutes listed in section 24.100(a) 
have deleted the adjective ``Federal'' as unnecessary. Paragraph (e) 
has been moved from former section 24.9. We note that the ARB 
interprets the phrase ``deliberate violations'' for the purpose of 
denying protection to an employee as including an element of 
willfulness. See Fields v. U.S. Dep't of Labor Admin. Review Bd., 173 
F.3d 811, 814 (11th Cir. 1999) (petitioners knowingly conducted 
unauthorized and potentially dangerous experiments).
    One comment was received regarding the obligations and prohibited 
acts contained in section 24.102. GAP commented that in section 
24.102(a), the term ``employer'' is too restrictive with respect to the 
FWPCA, CERCLA, and SWDA. As discussed above, the ARB has held that the 
use of ``person'' in the FWPCA, SWDA, and CERCLA in place of 
``employer'' still requires that the respondent have an employment 
relationship with the complainant or act in the capacity of an 
employer. Accordingly, OSHA does not believe that use of the term 
``employer'' is too restrictive in section 24.102(a). We note that 
former section 24.2 also used the term ``employer'' in describing 
obligations and prohibited acts. GAP also commented that the phrase 
``or otherwise retaliate against'' should be changed to the statutory 
language ``or otherwise discriminate against'' to be consistent with 
the statutes, and that the language in section 24.102(c) describing the 
prohibitions under the ERA also should be changed from ``retaliate'' to 
``discriminate,'' because `` `[d]iscrimination' and `retaliation' are 
not synonyms.'' According to GAP, the latter term ``requires a showing 
of animus; the former only disparate treatment.'' As noted in this 
preamble, the use of the term ``retaliation'' in lieu of 
``discrimination'' in these regulations is not meant to have a 
substantive distinction. Rather, the change in nomenclature reflects 
that claims brought under these whistleblower provisions are 
prototypical retaliation claims. Use of the term ``retaliation'' does 
not preclude a complaint based on an allegation of ``disparate 
treatment,'' as suggested by GAP. A discrimination claim based on 
``disparate treatment'' requires a showing of intent to discriminate. 
See, e.g., EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1283-84 (11th 
Cir. 2000). Similarly, a retaliation claim requires a showing of intent 
to retaliate. See Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1119 
(8th Cir. 2006) (``The ultimate question in any retaliation case is 
whether the employer's adverse action against the employee was 
motivated by retaliatory intent.''). Accordingly, OSHA does not believe 
that it is necessary to change its use of the word ``retaliation,'' 
which is an accurate description of the type of discrimination claim 
that is at issue under the whistleblower provisions of the ERA and the 
six environmental statutes.
Section 24.103 Filing of Retaliation Complaint
    This section (formerly section 24.3) has been revised to be 
consistent with the regulatory procedures implementing other 
whistleblower provisions administered by OSHA. Thus, the section 
heading has been changed from ``Complaint'' to ``Filing of retaliation 
complaint.'' Also, paragraph (c) has been changed to paragraph (b) and 
the heading has been changed from ``Form of Complaint'' to ``Nature of 
filing.'' Paragraph (d) has been changed to paragraph (c); and 
paragraph (b) has been changed to paragraph (d) and the language has 
been changed to conform with that appearing in most of OSHA's other 
whistleblower regulations. Finally, paragraph (e) ``Relationship to 
section 11(c) complaints'' has been added to explain the policy of the 
Secretary regarding the relationship between complaints filed under the 
statutes listed in section 24.100(a) and a complaint under Section 
11(c) of the Occupational Safety and Health Act. No comments were 
received on this section.
    The final regulation in paragraph (b) has been revised to provide 
that no particular form of complaint is required. Paragraph (b) 
specifies that a complaint may be made orally or in writing. It also 
states that when a complaint is made orally, OSHA will reduce the 
complaint to writing and that if a complainant is not able to file the 
complaint in English, the complaint may be filed in any language. These 
changes are consistent with decisions of the ARB, which have permitted 
oral complaints. See, e.g., Roberts v. Rivas Environmental Consultants, 
Inc., 96-CER-1, 1997 WL 578330, at *3 n.6 (Admin. Review Bd. Sept. 17, 
1997) (complainant's oral statement to an OSHA investigator, and the 
subsequent preparation of an internal memorandum by that investigator 
summarizing the oral complaint, satisfies the ``in writing'' 
requirement of CERCLA, 42 U.S.C. Sec.  9610(b), and the Department's 
accompanying regulations in 29 CFR part 24); Dartey v. Zack Co. of 
Chicago, No. 82-ERA-2, 1983 WL 189787, at *3 n.1 (Sec'y of Labor Apr. 
25, 1983) (adopting administrative law judge's findings that 
complainant's filing of a complaint to the wrong DOL office did not 
render the filing invalid and that the agency's memorandum of the 
complaint satisfied the ``in writing'' requirement of the ERA and the 
Department's accompanying regulations in 29 CFR part 24). Moreover, 
this is consistent with OSHA's longstanding practice of accepting oral 
complaints filed under Section 11(c) of the Occupational Safety and 
Health Act of 1970, 29 U.S.C. 660(c); Section 211 of the Asbestos 
Hazard Emergency Response Act of 1986, 15 U.S.C. 2651; Section 7 of the 
International Safe Container Act of 1977, 46 U.S.C. 80507; and the 
Surface

[[Page 2811]]

Transportation Assistance Act of 1982, 49 U.S.C. 31105.
Section 24.104 Investigation
    This section (formerly section 24.4) has been revised so that its 
language will conform more closely to the language of the majority of 
OSHA's other whistleblower regulations. Additionally, former paragraph 
(b) of section 24.5 has been revised and moved to this section, and 
former paragraph (d) of section 24.4 has been revised and moved to 
section 24.105, where it more appropriately appears under ``Issuance of 
findings and orders.''
    Paragraphs (e) and (f) of section 24.104 set forth the standards of 
causation that OSHA applies to cases under the six environmental 
whistleblower statutes and the ERA. When adjudicating whistleblower 
complaints under the six environmental whistleblower statutes, the 
Department has relied on standards derived from discrimination case law 
as set forth under Mt. Healthy City School District Board of Education 
v. Doyle, 429 U.S. 274 (1977); Price Waterhouse v. Hopkins, 490 U.S. 
228 (1989); Texas Department of Community Affairs v. Burdine, 450 U.S. 
248 (1981); and McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 
See Abdur-Rahman v. Dekalb County, ARB Case Nos. 08-003, 10-074, 2010 
WL 2158226, at *6 (Admin. Review Bd. May 18, 2010) (motion for 
reconsideration pending); Dartey v. Zack Co., No. 82-ERA-2, 1983 WL 
189787, at *3-*4 (Sec'y of Labor Apr. 25, 1983). Under these standards, 
a complainant may prove retaliation either by showing that the 
respondent took the adverse action because of the complainant's 
protected activity or by showing that retaliation was a motivating 
factor in the adverse action (i.e. a ``mixed-motive analysis''). See, 
e.g., Abdur-Rahman, 2010 WL 2158226, at *6 (FWPCA case applying a mixed 
motive analysis); Higgins v. Alyeska Pipeline Serv. Corp., ARB Case No. 
01-022, 2003 WL 21488356, at *4 (Admin. Review Bd. June 27, 2003) 
(explaining burdens of proof applicable to claims under TSCA, SWDA, and 
CAA); Masek v. The Cadle Co., ARB Case No. 97-069, 2000 WL 562699, at 
*9-*10 (Admin. Review Bd. Apr. 28, 2000) (explaining burdens of proof 
applicable to claims under FWCPA, TSCA, CAA and CERCLA); Combs v. 
Lambda Link, ARB Case No. 96-066, 1997 WL 665483, at *1-*2 (Admin. 
Review Bd. Oct. 17, 1997) (applying mixed-motive analysis under CAA, 
TSCA, FWCPA).
    If the complainant demonstrates that the respondent acted at least 
in part for prohibited reasons, the burden shifts to the respondent to 
prove by a preponderance of the evidence, that it would have reached 
the same decision even in the absence of protected activity. See, e.g., 
Dixon v. U.S. Dep't of Interior, Bureau of Land Mgmt., ARB Case No. 06-
14706-160, 2008 WL 4124113, at *9-*10 (Admin. Review Bd. Aug. 28, 2008) 
(applying ``mixed motive'' analysis to claims under CERCLA and SDWA); 
Dartey, 1983 WL 189787, at *4 (discussing Mt. Healthy, 429 U.S. at 
287). In such cases, the employer ``bears the risk that `the influence 
of legal and illegal motives cannot be separated.' '' Mackowiak v. 
Univ. Nuclear Sys. Inc., 735 F.2d 1159, 1164 (9th Cir. 1984) (ERA case) 
(which quoted NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 403 (1983)).
    At the investigation stage, OSHA will dismiss the complaint unless 
the complainant makes a prima facie showing that protected activity was 
at least a motivating factor in the alleged adverse action. 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;
    (ii) The respondent knew or suspected that the employee engaged in 
the protected activity;
    (iii) The employee suffered an adverse action; and
    (iv) The circumstances were sufficient to raise the inference that 
the protected activity was a motivating factor in the adverse action.
    The complainant will be considered to have met the required showing 
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 sufficient to give rise to an 
inference that the respondent knew or suspected that the employee 
engaged in protected activity and that the protected activity was a 
motivating factor in the adverse action. The required showing may be 
satisfied, for example, if the complainant shows that the adverse 
action took place shortly after the protected activity, giving rise to 
the inference that it was a motivating factor in the adverse action. 
OSHA will dismiss the complaint if a preponderance of the evidence 
shows that the respondent would have taken the same adverse action in 
the absence of the complainant's protected activity.
    The Department recognizes that after promulgation of the interim 
final rule, the Supreme Court issued Gross v. FBL Financial Services, 
Inc., 129 S. Ct. 2343 (2009). The Court held in Gross that the 
prohibition against discrimination ``because of'' age in the Age 
Discrimination in Employment Act (ADEA), 29 U.S.C. 623(a)(1), requires 
a plaintiff to ``prove that age was the `but-for' cause of the 
employer's adverse decision.'' 129 S. Ct. at 2350 (citation omitted). 
The Court rejected arguments that a plaintiff could prevail in an 
action under the ADEA by showing that discrimination was a motivating 
factor for the adverse decision, after which the employer had the 
burden of proving that it would have reached the same decision for non-
discriminatory reasons. Id. at 2351-52.
    The Department does not believe that the Supreme Court's decision 
in Gross affects the long-standing burden-shifting framework applied in 
mixed-motive cases under the six environmental whistleblower statutes 
as reflected in the Department's regulations and case law. The Supreme 
Court's Gross decision involved an age discrimination case under the 
ADEA, not retaliation cases filed by individuals under the 
environmental statutes. The Supreme Court cautioned in Gross itself 
that ``[w]hen conducting statutory interpretation, we `must be careful 
not to apply rules applicable under one statute to a different statute 
without careful and critical examination.' '' Id. at 2349 (quoting Fed. 
Express Corp. v. Holowecki, 552 U.S. 389, 393 (2008)); see Smith v. 
Xerox Corp., 602 F.3d 320 (5th Cir. 2010) (ADEA analysis in Gross is 
inapplicable to Title VII anti-retaliation cases); But see, e.g., 
Serwatka v. Rockwell Automation, Inc., 591 F.3d 957 (7th Cir. 2010) 
(applying Gross reasoning to Americans with Disabilities Act).
    In addition, as the Court noted in Gross, its decision did not 
conflict with, or undermine, prior Supreme Court decisions applying the 
mixed motive burden-shifting framework to Constitutional cases and 
cases under the National Labor Relations Act (NLRA). Gross, 129 S. Ct. 
at 2352 n.6 (citing Transp. Mgmt. Corp., 462 U.S. at 401-403; and Mt. 
Healthy City Bd. of Educ., 429 U.S. at 287); but see Fairley v. 
Andrews, 578 F.3d 518 (7th Cir. 2009) (applying Gross reasoning to 
First Amendment case), cert. denied, 130 S. Ct. 3320 (2010). The Court 
recognized the appropriateness of deferring to the National Labor 
Relations Board's (NLRB's) interpretation of the NLRA to allow a mixed 
motive burden-shifting analysis. Gross, 129 S. Ct. at 2352 n.6 (``The 
case involving the NLRA did not require the Court to decide in the 
first instance whether burden shifting should apply as the Court 
instead deferred to

[[Page 2812]]

the National Labor Relations Board's determination that such a 
framework was appropriate'') (citation omitted); see Hunter v. Valley 
View Local Schs., 579 F.3d 688, 691-92 (6th Cir. 2009) (deferring to 
Department of Labor's Family and Medical Leave Act (FMLA) regulations 
in holding that prohibition in FMLA against interference with the 
exercise of rights permits mixed-motive analysis after Gross). With 
regard to the environmental whistleblower provisions, as with the 
NLRB's interpretation of the NLRA, the Secretary's longstanding 
administrative case law permits a mixed-motive analysis. This case law 
is due deference as the Secretary's reasonable interpretation of the 
environmental whistleblower statutes. Knox v. U.S. Dep't of Labor, 434 
F.3d 721, 724 (4th Cir. 2006) (``We review the ARB's interpretation of 
the CAA under the deferential standard set forth in Chevron U.S.A., 
Inc. v. Natural Resources Defense Council, Inc.''); Anderson v. U.S. 
Dep't of Labor, 422 F.3d 1155, 1173, 1181 (10th Cir. 2005) (providing 
Chevron deference to the ARB's construction of the environmental 
whistleblower statutes); Reid v. Sec'y of Labor, No. 95-3648, 1996 WL 
742221, at *1 (6th Cir. 1996) (unpubl'd) (106 F.3d 401 (Table)) 
(deferring to Secretary's reasonable construction of the term employee 
under CAA); Mackowiak, 735 F.2d at 1164 (deferring to Secretary's 
application of mixed-motive analysis under pre-amendment version of the 
ERA).
    Finally, the Court in Gross based its decision that a mixed-motive 
analysis was inapplicable to the ADEA in part on its determination that 
Congress decided not to amend the ADEA to clarify that a mixed-motive 
analysis applied when it amended both the ADEA and Title VII in the 
Civil Rights Act of 1991 (Title VII). Gross, 129 S. Ct. at 2349 
(``Unlike Title VII, the ADEA's text does not provide that a plaintiff 
may establish discrimination by showing that age was simply a 
motivating factor. Moreover, Congress neglected to add such a provision 
to the ADEA when it amended Title VII to add Sec. Sec.  2000e-2(m) and 
2000e-5(g)(2)(B), even though it contemporaneously amended the ADEA in 
several ways'') (citations omitted). In so finding, the Court noted 
that `` `negative implications raised by disparate provisions are 
strongest' when the provisions were `considered simultaneously when the 
language raising the implication was inserted.' '' Id. (quoting Lindh 
v. Murphy, 521 U.S. 320, 330 (1997)). Congress did not consider 
amendments to the environmental whistleblower provisions when it 
amended Title VII and the ADEA in the Civil Rights Act of 1991. Thus, 
the environmental whistleblower statutes do not raise the strong 
negative implications that the Supreme Court noted in Gross.
    The Department therefore believes that the application of a mixed-
motive analysis to the environmental whistleblower statutes continues 
to be appropriate based on the ARB's longstanding decisions 
interpreting these statutes, is consistent with Congress' intent and is 
reasonable in the context of the remedial purposes of these laws to 
safeguard workers from retaliation for protected activity involving the 
public health and the environment.
    Paragraph (f) of this section, which sets forth procedures that 
apply only in ERA cases, applies the ERA's statutory burdens of proof. 
Since the 1992 amendments to the ERA, its whistleblower provisions, in 
contrast to the other whistleblower provisions listed under section 
24.100(a), have contained specific statutory standards for the 
dismissal and adjudication of complaints. See 42 U.S.C. 5851(b)(3)(A) 
through (b)(3)(D); Public Law 102-486, Sec.  2902, 106 Stat. at 3123-
3124. Because the ERA expressly sets forth the burdens of proof that 
apply to retaliation claims under that statute, the holding in Gross 
does not apply to the ERA. The ERA requires that a complainant make an 
initial prima facie showing that his or her protected activity was ``a 
contributing factor'' in the adverse action alleged in the complaint, 
i.e., that the protected activity, alone or in combination with other 
factors, affected in some way the outcome of the employer's decision. 
42 U.S.C. 5851(b)(3)(A). If the complainant does not make the prima 
facie showing, the investigation must be discontinued and the complaint 
dismissed. See Trimmer v. U.S. Dep't of Labor, 174 F.3d 1098, 1101 
(10th Cir. 1999) (noting that the distinct burden-shifting framework of 
the 1992 ERA amendments served a ``gatekeeping function'' that 
``stemmed frivolous complaints''). Even in cases where the complainant 
successfully makes a prima facie showing, the investigation must be 
discontinued if the employer demonstrates, by clear and convincing 
evidence, that it would have taken the same adverse action in the 
absence of the protected activity. Thus, under the ERA, the Secretary 
must dismiss the complaint and not investigate (or cease investigating) 
if either: (1) The complainant fails to meet the prima facie showing 
that protected activity was a contributing factor in the adverse 
action; or (2) the employer rebuts that showing by clear and convincing 
evidence that it would have taken the same adverse action absent the 
protected activity. Assuming that an investigation proceeds beyond the 
gatekeeping phase, the ERA specifies statutory burdens of proof that 
require an employee to prove that the alleged protected activity was a 
``contributing factor'' to the alleged adverse action. 42 U.S.C. 
5851(b)(3)(C). If the employee proves that the alleged protected 
activity was a contributing factor to the adverse action, the employer, 
to escape liability, must prove by ``clear and convincing evidence'' 
that it would have taken the same action in the absence of the 
protected activity. A contributing factor is ``any factor, which alone 
or in combination with other factors, tends to affect in any way the 
outcome of the decision.'' Marano v. Dep't of Justice, 2 F.3d 1137, 
1140 (Fed. Cir. 1993) (Whistleblower Protection Act, 5 U.S.C. 
1221(e)(1)); cf. Trimmer, 174 F.3d at 1101 (the 1992 amendments aimed, 
in part, ``to make it easier for [ERA] whistleblowers to prevail in 
their discrimination suits'')). In proving that protected activity was 
a contributing factor in the adverse action, ``a complainant need not 
necessarily prove that the respondent's articulated reason was a 
pretext in order to prevail,'' because a complainant alternatively can 
prevail by showing that the respondent's `` `reason, while true, is 
only one of the reasons for its conduct,' '' and that another reason 
was complainant's protected activity. See Klopfenstein v. PCC Flow 
Techs. Holdings, Inc., No. 04-149, 2006 WL 1516650, *13 (ARB May 31, 
2006) (discussing contributing factor test under SOX) (citing Rachid v. 
Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)).
    The ERA statutory burdens of proof do not address the evidentiary 
standard that applies to a complainant's proof that protected activity 
was a contributing factor in an adverse action. Adhering to traditional 
Title VII discrimination law, it is the Secretary's position that the 
complainant must prove by a ``preponderance of the evidence'' that his 
or her protected activity contributed to the adverse action; otherwise, 
the burden never shifts to the employer to establish its ``clear and 
convincing evidence'' defense. See, e.g., Dysert v. U.S. Sec'y of 
Labor, 105 F.3d 607, 609 (11th Cir. 1997) (upholding Department's 
interpretation of 42 U.S.C. 5851(b)(3)(C), as requiring an employee to 
prove by a preponderance of the evidence that

[[Page 2813]]

protected activity was a contributing factor in an adverse action); see 
also Trimmer, 174 F.3d at 1102 (``[o]nly if the complainant meets his 
burden [of proving by a preponderance of the evidence that he engaged 
in protected activity that was a contributing factor in an adverse 
action] does the burden then shift to the employer to demonstrate by 
clear and convincing evidence that it would have taken the same 
unfavorable personnel action in the absence of such behavior.''); Stone 
& Webster Engineering Corp. v. Herman, 115 F.3d 1568, 1572 (11th Cir. 
1997) (under section 5851, an employee must first persuade the 
Secretary that protected activity was a contributing factor in an 
adverse action and then, if the employee succeeds, the employer must 
prove by clear and convincing evidence that it would have taken the 
same action in the absence of protected activity).
    The 1992 ERA amendments altered the employer's burden in 
traditional ``mixed motive'' cases; under the ERA, once the Secretary 
concludes that the employer acted for both prohibited and legitimate 
reasons, the employer can escape liability only by proving by clear and 
convincing evidence that it would have reached the same decision even 
in the absence of the protected activity. 42 U.S.C. 5851(b)(3)(D). The 
``clear and convincing evidence'' standard is a higher burden of proof 
for employers than the former ``preponderance of the evidence'' 
standard. See 138 Cong. Rec. 32,081, 32,082 (1992). Comments were 
received on section 24.104 from GAP, NWC, William H. Ewing, Richard R. 
Renner, and Jason M. Zuckerman. GAP, Ewing, Renner, and Zuckerman 
commented that section 24.104(b) should require that the respondent's 
responses to the complaint be served on the complainant. According to 
GAP, while the procedures currently require the complainant to provide 
information that can be reviewed by the respondent, they do not require 
the respondent to share information with the complainant. Ewing, 
Renner, and Zuckerman commented that investigations would be improved 
if complainants were given copies of the respondents' responses. OSHA 
believes that these concerns are valid and has specified in the 
regulation that the agency will provide to the complainant (or the 
complainant's legal counsel if complainant is represented by counsel) a 
copy of all of respondent's submissions to the agency that are 
responsive to the complainant's whistleblower complaint. Before 
providing such materials to the complainant or the complainant's legal 
counsel, the agency will redact them, if necessary, in accordance with 
the Privacy Act of 1974, 5 U.S.C. 552a, et seq., and other applicable 
confidentiality laws. The agency expects that sharing information with 
complainants in accordance with this new provision will enhance OSHA's 
ability to conduct full and fair investigations and permit the 
Assistant Secretary to more thoroughly assess defenses raised by 
respondents.
    Commenting on section 24.104(c), Renner and Zuckerman commented 
that it is important for employee witnesses of respondents to have the 
option of meeting privately with the OSHA investigator because they may 
be reluctant to speak to investigators for fear of retaliation. While 
OSHA does not believe that any changes to its regulations are 
necessary, it is OSHA's policy to meet privately with non-management 
employees. The facts and circumstances of each case will be considered 
in determining whether an employee is a non-management employee. In 
addition, the whistleblower provisions of the six environmental 
statutes and the ERA protect management employees to the same extent 
that they protect non-management employees. Thus, where the complainant 
is a management employee, it is OSHA's policy to meet privately with 
the complainant.
    GAP objected to OSHA's use in sections 24.104(d) and (e) of the 
terms ``unfavorable personnel action'' and ``adverse personnel 
action,'' because those terms suggest that only actions taken by an 
employer's personnel or human resources departments are actionable. 
OSHA does not believe that the reference to ``personnel action'' in 
sections 24.104(d) and (e) of the interim final rule suggested that 
only adverse actions taken by personnel or human resources departments 
are actionable. However, for clarity and consistency, the final 
regulatory text has been changed to use ``adverse action'' throughout.
    GAP also commented with respect to section 24.104(e)(4) that to 
refuse to investigate or discontinue an investigation before all of the 
evidence is reviewed by OSHA is ``inconsistent with the letter and 
spirit of the employee protection provision of the ERA,'' and that only 
where there is no evidence of protected activity should an 
investigation be either not conducted or discontinued. Moreover, GAP 
commented that ``[t]he regulations must specify that investigators pay 
particular attention to pretext in the form of misuse of policies or 
unequal enforcement of policies against those who engage in protected 
activity.'' OSHA does not believe that these comments require revisions 
to the regulations. The language contained in section 24.104(e)(4) 
reflects the statutory language of the ERA. See 42 U.S.C. 5851(b)(3)(A) 
and (3)(B). OSHA conducts fair and impartial investigations of 
whistleblower complaints. In evaluating the merits of a complaint, 
investigators credit only explanations for adverse action taken by an 
employer that are supported by the evidence.
    NWC commented that these regulations should adopt the statutory ERA 
burdens of proof for complaints filed under the six environmental 
statutes, because since the 1992 ERA amendments, Congress has applied 
the ERA burdens of proof to other whistleblower statutes that it has 
enacted or amended, including the Pipeline Safety Improvement Act of 
2002 (``PSIA''), 49 U.S.C. 60129; SOX; the Wendell H. Ford Aviation 
Investment and Reform Act for the 21st Century (``AIR21''), 49 U.S.C. 
42121; and the Surface Transportation Assistance Act of 1982 
(``STAA''), 49 U.S.C. 31105. NWC commented in this regard that the 
burdens of proof currently applied to the six environmental 
whistleblower acts are not statutory, but are based on employment 
discrimination law (Title VII), and that using the ERA burdens of proof 
for the six environmental statutes would serve the interests of 
justice. However, absent specific statutory direction, OSHA does not 
believe it is appropriate to apply the ERA's burdens of proof to the 
six environmental statutes.
Section 24.105 Issuance of Findings and Orders
    The procedures set forth in this section formerly appeared under a 
paragraph of section 24.4, the Investigations section. This new section 
was created for purposes of clarification and consistency with a 
majority of the other whistleblower regulations promulgated by OSHA. 
The former regulations provided that the Assistant Secretary would 
issue a ``Notice of Determination'' at the conclusion of the 
investigation, or upon dismissal of a complaint. These regulations no 
longer use the term ``Notice of Determination.'' Instead, the 
regulations refer to the issuance of findings and orders, the 
nomenclature used in most of OSHA's other whistleblower regulations. 
This change in nomenclature is not intended to be substantive.
    The 30-day timeframe for completion of the investigation has been 
retained because it is a statutory requirement under the majority of 
the whistleblower

[[Page 2814]]

statutes covered by this part (the Solid Waste Disposal Act, the 
Federal Water Pollution Control Act, and the Comprehensive 
Environmental Response, Compensation and Liability Act have no 
timeframe). The current regulations provide a 5-business-day timeframe 
for filing objections to the findings. These new regulations have been 
changed to provide that if no objections to the Assistant Secretary's 
findings and order are filed within 30 days of their receipt, the 
findings and order of the Assistant Secretary will become the final 
order of the Secretary. Thus, the timeframe for objecting to the 
findings and/or order and for requesting a hearing has been extended 
from 5 business days to 30 days. The Secretary is aware that, since the 
ERA, the Clean Air Act (``CAA''), the Safe Drinking Water Act 
(``SDWA''), and the Toxic Substances Control Act (``TSCA'') provide 
that the Secretary should issue a final decision within 90 days of the 
filing of the complaint, allowing the parties 30 days in which to 
object to the Assistant Secretary's findings and any order issued may 
have an impact on the Department's meeting the 90-day timeframe. 
Although the ERA amendments in 2005 did not change the 90-day 
timeframe, the Secretary believes that in amending the ERA in 2005, 
Congress recognized that it appropriately could take up to one year to 
complete the investigatory and adjudicative processing of a 
whistleblower complaint (i.e., issue a final decision of the Secretary) 
under these environmental statutes. Accordingly, the Secretary believes 
that allowing 30 days for a party to object to the Assistant 
Secretary's findings and request a hearing is warranted. Not only does 
the extension make the regulations more consistent with those 
implementing the majority of the other whistleblower statutes 
administered by OSHA, it also offers the parties a more reasonable 
timeframe in which to consider whether to appeal the Assistant 
Secretary's findings.
    With regard to this section, GAP, William H. Ewing, Richard R. 
Renner and Jason M. Zuckerman expressed approval for OSHA's decision to 
increase the time period for seeking a hearing from five business days 
to 30 days. In addition, GAP, Ewing, Renner, and Zuckerman commented 
that in section 24.105(b), the rule should specifically require service 
on the attorney of record for each party (if the party has counsel). 
Ewing, Renner, and Zuckerman commented that alternatively, the rule 
should allow objections within 30 days of the last date of service, 
when the party and his or her attorney are served at different times. 
Although it is already OSHA's policy to send its findings to the 
complainant and the respondent by certified mail with copies to their 
respective attorneys, OSHA has revised the regulations to require 
service on the attorney of record.

Subpart B--Litigation

Section 24.106 Objections to the Findings and Order and Request for a 
Hearing
    Formerly, the procedures for requesting a hearing before an 
administrative law judge (``ALJ'') were set forth under section 24.6. 
As indicated above, 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, 800 K Street, NW., 
Washington, DC 20001 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; if the objection is filed in person, 
by hand-delivery or other means, the objection is filed upon receipt. 
The filing of objections is also considered a request for a hearing 
before an ALJ. Although the parties are directed to serve a copy of 
their objections to the other parties of record, as well as the OSHA 
official who issued the findings and order, the Assistant Secretary, 
and the Associate Solicitor, Division of Fair Labor Standards, U.S. 
Department of Labor, 200 Constitution Ave., NW., Room N-2716, 
Washington, DC 20210, the failure to serve copies of the objections to 
the other parties of record does not affect the ALJ's jurisdiction to 
hear and decide the merits of the case. See Shirani v. Calvert Cliffs 
Nuclear Power Plant, Inc., No. 04-101, 2005 WL 2865915, *7 (ARB Oct. 
31, 2005).
    GAP commented that the language in section 24.106(a) needs to be 
clarified because it is unclear whether detailed objections, which are 
unnecessary since an administrative hearing is de novo, must accompany 
a hearing request. GAP suggested that the regulation be changed to 
state that ``it is sufficient for an objecting party to request a 
hearing.'' OSHA has considered this concern and does not believe that 
changes to the rule are necessary or that the suggested change would 
add helpful clarification; the rule contains no requirement that a 
party file detailed objections to request a hearing.
Section 24.107 Hearings
    This section has been revised to conform to the majority of the 
other whistleblower regulations promulgated by OSHA. The interim final 
rule adopted 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, however, 
the interim final rule provided that formal rules of evidence do not 
apply. The section specifically provides for consolidation of hearings 
if both the complainant and respondent object to the findings and/or 
order of the Assistant Secretary. Otherwise, this section no longer 
addresses procedural issues, e.g., place of hearing, right to counsel, 
procedures, evidence and record of hearing, oral arguments and briefs, 
and dismissal for cause, because the Office of Administrative Law 
Judges has adopted its own rules of practice that cover these matters. 
In order for hearings to be conducted as expeditiously as possible, and 
particularly in light of the provision in the ERA allowing complainants 
to seek a de novo hearing in Federal court if the Secretary has not 
issued a final decision within one year of the filing of the complaint, 
this section in the interim final rule provided that the ALJ has broad 
authority to limit discovery. The preamble noted, for example, that an 
ALJ may limit the number of interrogatories, requests for production of 
documents, or depositions allowed. The preamble also noted that an ALJ 
may exercise discretion to limit discovery unless the complainant 
agrees to delay filing a complaint in Federal court for some definite 
period of time beyond the one-year point; and that if a complainant 
seeks excessive or burdensome discovery under the ALJ's rules and 
procedures at part 18 of Title 29, or fails to adhere to an agreement 
to delay filing a complaint in Federal court, a district court 
considering a request for de novo review might conclude that such 
conduct resulted in a delay due to the claimant's bad faith.
    Former paragraphs (f) and (g) of this section have been moved to 
section 24.108.
    Comments on section 24.107 were received from GAP, NWC, William H. 
Ewing, James F. Newport, Richard R. Renner, and Jason M. Zuckerman. GAP 
commented that this section should be rewritten to de-emphasize the 
importance of an expeditious hearing. According to GAP, limiting 
discovery injures complainants to a greater extent than respondents 
because the documents needed to prove their cases

[[Page 2815]]

are in the possession of the respondents. Similarly, NWC, Ewing, 
Newport, Renner, and Zuckerman opposed the last sentence of section 
24.107(b), which provides ALJs with broad discretion to limit discovery 
to expedite hearings. NWC commented that there is no legal basis for 
treating discovery in whistleblower cases differently from how it is 
treated in Title VII cases and that it is inconsistent with the 
interests of justice and Congressional intent to limit the ability of 
whistleblowers to obtain evidence in discovery while holding them to 
the same evidentiary burden applicable in Title VII cases. Ewing, 
Renner, and Zuckerman suggested that instead of limiting discovery, 
hearings could be expedited by requiring parties to comply with the 
initial disclosure requirements under Federal Rules of Civil Procedure 
26(a)(1), by shortening the time permitted for discovery, and by 
providing that ALJs can make adverse inferences of unlawful retaliation 
based on a respondent's failure to respond fully and completely to 
discovery requests. They also commented that hearings could be 
expedited by requiring parties to provide discovery responses in 
searchable electronic forms when a party has the responsive information 
in such forms. GAP also commented that the Department should clarify 
that it will not be considered bad faith ``to seek discovery; seek 
reasonable delays to allow discovery; or to accommodate the schedules 
of the parties, their counsel or the ALJ.'' Suggesting that most delays 
in administrative cases occur either at the investigative stage or 
during ARB review, GAP added that complainants should not be penalized 
for necessary delays at the hearing stage.
    The provisions and statements to which GAP, NWC, Ewing, Newport, 
Renner, and Zuckerman object were intended by OSHA to implement 
Congress's intent that administrative whistleblower hearings under the 
ERA proceed expeditiously. See 42 U.S.C. 5851(b)(2)(A) and (b)(4). OSHA 
believes that the short time frames provided under the whistleblower 
statutes generally, as well as the provision in Section 211 of the ERA 
providing for de novo review in district court, illustrate a 
congressional intent that the Department expedite its administrative 
hearings and procedures. Nevertheless, after carefully considering the 
comments, OSHA has decided to remove the regulatory provision in the 
rule stating that ALJs have broad discretion to limit discovery. The 
provision essentially reiterates authority that ALJs currently possess 
under their procedural rules at 29 CFR 18.14--18.21, which permit 
judges to limit discovery in appropriate circumstances as well as to 
make adverse inferences where parties fail to comply with their 
discovery orders. Accordingly, the provision is not necessary. In 
response to GAP's comments, OSHA also has eliminated from the preamble 
the suggestion that a complainant's attempts to engage in extensive 
discovery when prosecuting or defending a claim before an ALJ might 
constitute a presumption of bad faith delay. And while OSHA agrees that 
it would be beneficial for parties to provide discovery responses in 
searchable electronic formats, it does not believe that it is 
appropriate for these regulations to specify how discovery in a 
particular case should proceed. The final rule now adopts the rules of 
evidence of the Office of Administrative Law Judges at 29 CFR part 18, 
subpart B, as well as the rules of practice at subpart A. Because it is 
no longer necessary for this rule to address evidentiary matters, 
paragraph (d) of this section has been deleted.
    NWC commented regarding the preamble's discussion of this section 
that OSHA should not permit an employee to enter into an agreement to 
delay filing a complaint in district court because the jurisdictional 
time period for filing such an action cannot be altered by regulation. 
Rather, NWC commented that OSHA should add to section 24.107 a 
procedure in cases where third-party witnesses refuse to testify that 
permits employees to seek stays of their administrative proceedings so 
that they may file district court complaints once the one-year ``kick-
out'' period has passed. NWC believes that such a procedure would 
encourage third-party witnesses who cannot be compelled by subpoena to 
testify in a whistleblower case to voluntarily appear before an ALJ 
proceeding. While third-party witnesses may be more inclined to 
voluntarily testify at ALJ hearings as an alternative to being 
compelled to testify in district court pursuant to a subpoena, OSHA 
does not believe that a special regulatory procedure to enable 
complainants to seek stays prior to filing in district court is 
necessary; the regulations do not prohibit an employee from seeking a 
stay from an ALJ based on his or her intention to file a de novo action 
in district court.
    Finally, James F. Newport commented that the new rule shifts the 
cost of attending hearings to the complainant by removing the 
requirement that the hearing be held within 75 miles of the 
complainant's residence (see former section 24.6(c)). Newport commented 
that this change could discourage complainants from pursuing a case 
because of the financial burden. OSHA does not believe that the removal 
of the requirement that the hearing be held within 75 miles of the 
complainant's residence will discourage complainants from pursuing a 
case due to financial burden. This rule provides that the rules of 
practice and procedures for administrative hearings before the OALJ 
should apply to ALJ hearings. The OALJ's rules of practice and 
procedure provide, at 29 CFR 18.27(c): ``Unless otherwise required by 
statute or regulations, due regard shall be given to the convenience of 
the parties and the witnesses in selecting a place for the hearing.'' 
This same provision has governed the scheduling of hearings under 
regulations implementing the whistleblower protection provisions of 
AIR21, 29 CFR part 1979; SOX, 29 CFR part 1980; and PSIA, 29 CFR part 
1981. No evidence has been submitted to suggest that complainants have 
been discouraged from pursuing cases under those statutes out of 
concern for the potential location of the hearing.
Section 24.108 Role of Federal Agencies
    This new section was added to conform these regulations to the 
majority of OSHA's other whistleblower regulations. As noted above, the 
substance of this section formerly was set forth under paragraphs (f) 
and (g) of section 24.6, the section covering hearings. No substantive 
changes are intended. Under the ERA and the environmental whistleblower 
statutes, OSHA does not ordinarily appear as a party in the proceeding. 
The Secretary has found that in most whistleblower cases, parties have 
been ably represented and the public interest has not required the 
Department's participation. Nevertheless, 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 ALJ; petition for review of a 
decision of an ALJ, including a decision based on a settlement 
agreement between the complainant and the respondent, regardless of 
whether the Assistant Secretary participated before the ALJ; or 
participate as amicus curiae before the ALJ or in the ARB proceeding. 
Although we anticipate that ordinarily the Assistant Secretary will not 
participate, the Assistant Secretary may choose to

[[Page 2816]]

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 Environmental Protection 
Agency, the Nuclear Regulatory Commission, and the Department of 
Energy, at those agencies' discretion, also may participate as amicus 
curiae at any time in the proceedings.
    NWC commented that when a State agency is named as a party, OSHA 
should be required to intervene or participate as a party in the 
proceeding. In support of this comment, NWC stated that the public 
interest would be served if OSHA intervened in every case in which a 
State agency is a named respondent because Congress intended that the 
whistleblower provisions of the six environmental acts cover State 
agencies. Richard R. Renner and Jason M. Zuckerman commented that OSHA 
should consider intervening on behalf of complainants, especially where 
a complainant is pro se, disputing OSHA's statement in the preamble 
that ``in most whistleblower cases, parties have been ably represented 
and the public interest has not required the Department's 
participation.''
    OSHA continues to believe that its participation as a routine 
matter in all whistleblower cases is neither necessary nor an effective 
use of its resources. Nevertheless, as noted above, it is OSHA's policy 
to consider participating in cases in which the Assistant Secretary 
considers the agency's participation to be in the interests of justice. 
The inability of complainants to pursue their own actions against State 
employers and their lack of representation by counsel are among the 
factors that OSHA considers when exercising its discretion to intervene 
as a party or as an amicus.
Section 24.109 Decision and Order of the Administrative Law Judge
    This section sets forth the content of the decision and order of 
the ALJ, and includes the standard for finding a violation under the 
environmental statutes and the ERA. The section further provides that 
the Assistant Secretary's determination to dismiss the complaint 
without an investigation or without a complete investigation pursuant 
to section 24.104 is not subject to review. Thus, paragraph (c) of 
section 24.109 clarifies that the Assistant Secretary's determinations 
on whether to proceed with an investigation under the ERA and whether 
to make particular investigative findings under any of the statutes 
subject to this part are discretionary decisions not subject to review 
by the ALJ. The ALJ hears cases de novo and, therefore, as a general 
matter, may not remand cases to the Assistant Secretary to conduct an 
investigation or make further factual findings. Paragraph (c) further 
clarifies that the ALJ will either hear a case on the merits or dispose 
of the matter without a hearing if appropriate. A full discussion of 
the burdens of proof used by the Department of Labor to resolve 
whistleblower cases under this part is set forth above in the 
discussion of section 24.104.
    This section also has been revised to eliminate the requirement 
under the ERA for the ALJ to issue a preliminary order of reinstatement 
separate from the findings. The section clarifies that when an ALJ's 
decision finds that the complaint has merit and orders relief, the 
order will be effective immediately upon its receipt by the respondent, 
except for that part of the order awarding compensatory damages. 
Congress intended that whistleblowers under the ERA be reinstated and 
provided additional interim relief based upon the ALJ's order even 
while the decision is on review with the ARB. The previous regulations 
have caused confusing delays to the complainant's right to immediate 
reinstatement. See, e.g., McNeill v. Crane Nuclear, Inc., ARB Case No. 
02-002, 2002 WL 31932543, at *1-*2 (Admin. Review Bd. Dec. 20, 2002). 
The Secretary intends that, by eliminating any requirement that the ALJ 
``shall also issue a preliminary order providing [all of the] relief'' 
specified in the recommended order before an interim order becomes 
effective, confusion will be avoided and congressional intent to have 
complainants promptly reinstated based upon a meritorious ALJ decision 
will be better effectuated. Id. Furthermore, the ALJ's order will be 
effective immediately whether or not the ALJ designates the decision 
and/or order as recommended.
    The substance of the rest of this section was formerly found in 
section 24.7. The requirement that the ALJ issue a decision within 20 
days after the conclusion of the hearing has been eliminated because 
procedures for issuing decisions, including their timeliness, are 
addressed by the Rules of Practice and Procedure for Administrative 
Hearings Before the Office of Administrative Law Judges at 29 CFR 
18.57.
    GAP commented that the language in section 24.109(b) discussing the 
burdens of proof should be clarified. GAP commented that the regulation 
should be changed to state affirmatively with respect to the 
respondent's burden that ``relief must be ordered unless'' the 
respondent carries its burden of proof, rather than to state that 
``relief may not be ordered'' if the respondent demonstrates by clear 
and convincing evidence under the ERA, or by preponderance of the 
evidence under the environmental statutes, that it would have taken the 
same action in the absence of protected activity. The language used in 
the regulation, however, accurately reflects the statutory language in 
section 211 of the ERA and, consistent with that language, the 
regulation retains language indicating that relief may not be ordered 
if the respondent proves by a preponderance of the evidence under the 
environmental statutes that it would have taken the same action in the 
absence of protected activity.
Section 24.110 Decision and Orders 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 ARB. Upon the issuance 
of the ALJ's decision, the parties have 10 business days within which 
to petition the ARB for review of that decision, or it becomes the 
final decision of the Secretary and is not subject to judicial review. 
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 appeal provisions in 
this part have been revised, consistent with the majority of OSHA's 
other whistleblower regulations, to provide that an appeal to the ARB 
is no longer a matter of right but is accepted at the discretion of the 
ARB. Congress intended these whistleblower actions to be expedited and 
this change may assist in furthering that goal. The parties should 
identify in their petitions for review the legal conclusions and orders 
to which exception is taken, or the exceptions will ordinarily be 
deemed waived. The ARB has 30 days to decide whether to grant the 
petition for review. If the ARB does not grant the petition, the 
decision of the ALJ becomes the final decision of the Secretary. The 
ERA, CAA, SDWA, and TSCA contain a 90-day timeframe for issuing final 
agency decisions. Notwithstanding this short timeframe, the Secretary 
believes that it is appropriate to give the ARB 30 days in which to 
decide whether to grant review; as stated above, the Secretary believes 
that in amending the ERA in August 2005, Congress recognized that

[[Page 2817]]

the Department appropriately could take up to one year to complete the 
investigatory and adjudicative processing of a whistleblower complaint 
under these statutes. If a timely petition for review is filed with the 
ARB, any relief ordered by the ALJ, except for that ordered under the 
ERA, is inoperative while the matter is pending before the ARB. The 
relief ordered by the ALJ under the ERA is effective immediately except 
for that portion awarding compensatory damages. This section further 
provides that, when the ARB accepts a petition for review, the ALJ's 
factual determinations will be reviewed under the substantial evidence 
standard.
    This section also provides that in the exceptional case, the ARB 
may grant a motion to stay an ALJ's order of relief under the ERA, 
which otherwise will be effective while review is conducted by the ARB. 
The Secretary believes that a stay of an ALJ's order of relief under 
the ERA only would be appropriate where the respondent can establish 
the necessary criteria for equitable injunctive relief, i.e., 
irreparable injury, likelihood of success on the merits, and a 
balancing of possible harms to the parties and the public favors a 
stay.
    Comments on section 24.110 were received by NWC, William H. Ewing, 
Richard R. Renner, and Jason M. Zuckerman. NWC commented that the 10-
day period for filing objections is too short and that parties should 
be given between 30 and 60 days to petition for review, depending on 
the level of specificity required in the petition. Ewing, Renner, and 
Zuckerman also commented that the time period for petitioning for 
review by the ARB was too short and suggested a 30-day period to 
petition for review. In addition, Ewing, Renner, and Zuckerman 
suggested that rather than provide that exceptions not raised in the 
petition for review ordinarily will be waived, the regulations should 
permit parties to supplement the reasons for seeking review when filing 
their opening briefs. They commented that to the extent that the ARB 
needs to determine whether there are issues meriting review, the 
regulations can require that a party file a petition that identifies 
good grounds for review, and permit the party to raise additional 
assignments of error in the brief.
    OSHA believes that 10 business days, which also is the time frame 
under AIR21 (see 29 CFR 1979.110(a)) and under SOX (see 29 CFR 
1980.110(a)), is sufficient time to petition for review of an ALJ 
decision, particularly in light of the fact that the rule uses the date 
of filing to determine timeliness rather than the date of the ARB's 
receipt of the petition. Furthermore, OSHA believes that to enable the 
ARB to determine whether to accept review, it is necessary that the 
petition for review identify the rulings to which the party seeking 
review takes exception. Nevertheless, it is not necessary that the 
petition identify each factual finding to which the party objects. 
Rather, it is sufficient that the petition generally identify the legal 
conclusions that are alleged to be erroneous. OSHA has amended these 
regulations accordingly.
    NWC commented that these regulations should revert to the previous 
practice that required the ARB to review the entire record on appeal de 
novo. As indicated above, in providing that the ARB will review factual 
determinations under the substantial evidence standard, these 
regulations apply the standard of review that the ARB applies in 
reviewing ALJ decisions under the whistleblower provisions of AIR21, 
SOX, and PSIA. OSHA believes that, because the ARB is an appellate 
body, it is appropriate for the ARB to give special deference to the 
findings of the trier of fact. See Henrich v. Ecolab, Inc., No 05-030, 
2007 WL 1578490, at *4 (Admin. Review Bd. May 30, 2007) (``As we and 
our predecessors often have noted, the Board is an appellate body. We 
review ALJ decisions for error; we do not simply sit as a second-tier 
fact-finder.''). Accordingly, no change to the standard of review is 
necessary.
    Finally, OSHA is changing the regulation at section 24.110(b) to 
correct the inadvertently erroneous statement that when the ARB denies 
a petition for review of an ALJ's decision, judicial review is not 
available. Although no comments were received regarding this error, 
OSHA is amending the rule to clarify that judicial review is available 
in cases where the ARB denies review of an ALJ decision for which 
appropriate review was sought.

Subpart C--Miscellaneous Provisions

Section 24.111 Withdrawal of Complaints, Objections, and Petitions for 
Review; Settlement
    This section provides for 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 investigative and 
adjudicative stages of the case. The regulations reflect that 
settlement agreements under the statutory provisions of the ERA, CAA, 
SDWA, and TSCA must be reviewed and approved by the Secretary to ensure 
that they are just and reasonable and in the public interest. See 
Beliveau v. United States Dep't of Labor, 170 F.3d 83, 86 (1st Cir. 
1999); Macktal v. Secretary of Labor, 923 F.2d 1150, 1154 (5th Cir. 
1991). Although it has been OSHA's practice to review settlements for 
approval under all the environmental whistleblower statutes, it is 
required by statute only under the ones noted above. See Bertacchi v. 
City of Columbus--Division of Sewerage & Drainage, ARB Case No. 05-155 
(April 13, 2006). Notwithstanding this statutory distinction, the 
Department encourages the parties to submit all settlements for review 
and approval, even those arising under the CERCLA, SWDA, and FWPCA. We 
note that a settlement that has not been reviewed and approved by the 
Secretary will not be considered a final order enforceable under 
section 24.113.
    One comment was received regarding section 24.111. NWC commented 
that the section should be dropped and that the former practice of 
liberally permitting employees to withdraw claims, without prejudice, 
should be continued, especially under the six environmental acts, in 
which employees are required to file claims within 30 days. NWC 
commented that any restriction on the right to freely withdraw claims 
without prejudice will chill an employee's willingness to file a claim 
and punish employees who simply needed to protect their procedural 
rights. OSHA does not believe that section 24.111 hinders a 
complainant's ability to withdraw his or her complaint prior to the 
filing of objections to the Assistant Secretary's findings and/or 
order. However, when OSHA is aware that a withdrawal is requested after 
a settlement has been reached between the complainant and the 
respondent, the Assistant Secretary's approval is necessary to ensure 
that the settlement is just, reasonable, and in the public interest. 
This policy, which is required by statute in most instances, recognizes 
that:

    The Department of Labor does not simply provide a forum for 
private parties to litigate their private employment discrimination 
suits. Protected whistleblowing under the ERA may expose not just 
private harms but health and safety hazards to the public. The 
Secretary represents the public interest by assuring that 
settlements adequately protect whistleblowers.

Beliveau, 170 F.3d at 88 (quoting Hoffman v. Fuel Econ. Contracting, 
97-ERA-33 (Sec'y Order Denying Request to Reconsider, Aug. 4, 1989); 
see also Thompson v. U. S. Dep't of Labor, 885 F.2d 551, 556 (9th Cir. 
1989) (Secretary must approve all settlement agreements under the ERA).


[[Page 2818]]


    Significant revisions are being made to paragraph (c), which 
addresses situations in which parties seek to withdraw either 
objections to the Assistant Secretary's findings and/or preliminary 
order or petitions for review of ALJ decisions. Paragraph (c) provides 
that a party may withdraw its objections to the Assistant Secretary's 
findings and/or preliminary order at any time before the findings and 
preliminary order become final by filing a written withdrawal with the 
ALJ. Similarly, if a case is on review with the ARB, a party may 
withdraw its petition for review of an ALJ's decision at any time 
before that decision becomes final by filing a written withdrawal with 
the ARB. The ALJ or the ARB, depending on where the case is pending, 
will determine whether to approve the withdrawal of the objections or 
the petition for review. Paragraph (c) clarifies that if the ALJ 
approves a request to withdraw objections to the Assistant Secretary's 
findings and/or preliminary order, and there are no other pending 
objections, the Assistant Secretary's findings and preliminary order 
will become the final order of the Secretary. Likewise, if the ARB 
approves a request to withdraw a petition for review of an ALJ 
decision, and there are no other pending petitions for review of that 
decision, the ALJ's decision will become the final order of the 
Secretary. Finally, paragraph (c) provides that if objections or a 
petition for review are withdrawn because of settlement, the settlement 
must be submitted for approval in accordance with paragraph (d).
Section 24.112 Judicial Review
    This section describes the statutory provisions for judicial review 
of decisions of the Secretary and requires, in cases where judicial 
review is sought, the ARB to submit the record of proceedings to the 
appropriate court pursuant to the Federal Rules of Appellate Procedure 
and the local rules of such court. Paragraph (d) reflects that original 
jurisdiction for judicial review of a decision issued under the 
Comprehensive Environmental Response, Compensation and Liability Act is 
with the district courts rather than the appellate courts. See 42 
U.S.C. 9610(b) and 9613(b). The paragraph also reflects, however, that 
when an agency decision is based on other statutes that provide for 
direct review in the court of appeals, principles of judicial economy 
and consistency justify review of the entire proceeding in the court of 
appeals. See Ruud v. U. S. Dep't of Labor, 347 F.3d 1086, 1090 (9th 
Cir. 2003) (``[T]he court of appeals should entertain a petition to 
review an agency decision made pursuant to the agency's authority under 
two or more statutes, at least one of which provides for direct review 
in the court of appeals, where the petition involves a common factual 
background and raises a common legal question. Consolidated review of 
such a petition avoids inconsistency and conflicts between the district 
and appellate courts while ensuring the timely and efficient resolution 
of administrative cases.''); see also Shell Oil Co. v. F.E.R.C., 47 
F.3d 1186, 1195 (DC Cir. 1995) (``[W]hen an agency decision has two 
distinct bases, one of which provides for exclusive jurisdiction in the 
court of appeals, the entire decision is reviewable exclusively in the 
appellate court.'') (citations and internal question marks omitted). No 
comments were received on this section.
Section 24.113 Judicial Enforcement
    This section describes the Secretary's power under several of the 
statutes listed in section 24.100(a) 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 under the ERA and the CAA. No comments were 
received on this section.
Section 24.114 District Court Jurisdiction of Retaliation Complaints 
Under the Energy Reorganization Act
    This section sets forth the ERA provision allowing complainants to 
bring an action in district court for de novo review if there has been 
no final decision of the Secretary within one year of the filing of the 
complaint and there is no delay due to the complainant's bad faith. It 
provides that complainants will give notice 15 days in advance of their 
intent to file a complaint in district court. This provision 
authorizing a Federal court complaint is similar to those under the 
whistleblower provisions of SOX, STAA, the National Transit Systems 
Security Act of 2007, and the Federal Railroad Safety Act. In the 
interim final rule, the Secretary noted that this statutory scheme 
created the possibility that a complainant would file a complaint in 
district court after having litigated a claim before the agency and 
having received a decision from an ALJ or the ARB. The Secretary 
believed that it would be a waste of the resources of the parties, the 
Department, and the courts for complainants to pursue duplicative 
litigation. Accordingly, the Secretary suggested that the Federal 
courts might apply principles of issue or claim preclusion if a 
complainant brought a new action in Federal court following extensive 
litigation before the Department that resulted in a decision by an ALJ 
or the ARB. The Secretary also stated that where an administrative 
hearing had been completed and a matter was pending before an ALJ or 
the ARB for a decision, a Federal court also might treat a complaint as 
a petition for mandamus and order the Department to issue a decision 
under appropriate time frames.
    Two comments were received regarding section 24.114. NWC commented 
that because the rules concerning issue and claim preclusion only apply 
to an agency's final order and an ALJ's decision is not a final order, 
the Department should not advise Federal courts or parties that res 
judicata and/or collateral estoppel principles may apply. NWC further 
commented that because once an employee exhausts his or her 
administrative remedies, the Department cannot legally implement a rule 
restricting an employee's right to file in Federal court, it should not 
urge a Federal court to remand a case back to the Department. NWC 
suggested that a potential waste of resources is not at issue because 
the discovery and hearing testimony obtained during an administrative 
proceeding may be used in the Federal court proceeding.
    In response to these comments, OSHA has reconsidered the statements 
made in the interim final rule. OSHA recognizes that there is no 
statutory basis for including preclusion principles in these 
regulations, and that the ERA does not delegate authority to the 
Secretary to regulate litigation in the Federal district courts. See 
Adams Fruit Co., Inc. v. Barrett, 494 U.S. 638, 649-50 (1990). 
Accordingly, the language in the preamble addressing issue preclusion 
principles and mandamus has been removed.
    Also on further consideration, the Secretary does not believe that 
it is reasonable to construe the statute to permit a complainant to 
initiate an action in Federal court after the Secretary issues a final 
decision, even if the date of the final decision is more than one year 
after the filing of the complaint. In the Secretary's view, the purpose 
of the ``kick out'' provision is to aid the complainant in receiving a 
prompt decision. That goal is not implicated in a situation where the 
complainant already has received a final decision from the Secretary. 
In addition, permitting the complainant to file a new case in district 
court in such circumstances could conflict with the parties' rights to 
seek judicial review of the Secretary's final decision in the courts of 
appeals. The regulation has

[[Page 2819]]

been reworded in accordance with this position.
    Finally, GAP commented that OSHA's requirement under section 
24.114(b) that a complainant file a notice with the agency of his or 
her intention to seek relief in district court within 15 days of filing 
his or her de novo action in district court goes beyond the ERA's 
requirements.
    Although the 15-day notice provision is not required by statute, 
OSHA believes that this notice provision falls within the scope of 
these procedural rules.
Section 24.115 Special Circumstances; Waiver of Rules
    This section provides that in circumstances not contemplated by 
these rules or for good cause the ALJ or the ARB may, upon application 
and notice to the parties, waive any rule as justice or the 
administration of the statutes listed in section 24.100(a) requires. No 
comments were received on this section.
Appendix A--Your Rights Under the ERA
    The notice that employers are required to post under Section 211(i) 
of the ERA has been revised to reflect the 2005 amendments. 
Specifically, the notice now reflects that the definition of 
``employer'' has been expanded and that the employee has a right to 
file a complaint in district court if the Secretary has not issued a 
final decision within one year of the filing of the complaint and the 
delay is not due to the bad faith of the employee. As noted above, we 
also have substituted the term ``retaliation'' for ``discrimination.'' 
The notice has also been revised to clarify that a complaint may be 
filed orally or in writing and that if a complainant is not able to 
file the complaint in English, the complaint may be filed in any 
language.
    One comment was received regarding Appendix A. GAP commented that 
the notice should be clarified to state that an employee is protected 
for raising concerns about a suspected violation of regulations or 
orders issued by the NRC or DOE. OSHA does not believe that changes to 
this notice are required because the protected activity listed on the 
notice applies the language used in the statute. Nevertheless, OSHA 
notes that the Secretary has held that the reporting of possible 
violations of NRC regulations is protected activity under the ERA. See 
McDonald v. University of Missouri, No. 90-ERA-59, 1995 WL 848132, *5 
(DOL Off. of Adm. App. Mar. 21, 1995). A similar analysis suggests that 
the reporting of possible violations of relevant DOE regulations also 
is protected activity under the ERA. GAP further commented that in the 
section describing prohibited activity, the use of the word 
``retaliate'' should be replaced with ``discriminate'' to make the 
language of the notice consistent with the statutory language. For the 
reasons discussed above in response to comments to section 24.102, OSHA 
does not believe that it is necessary or advisable to replace the word 
``retaliate'' in the required notice with the word ``discriminate.''

IV. Paperwork Reduction Act

    This rule contains a reporting provision (filing a retaliation 
complaint, section 24.103) which was previously reviewed and approved 
for use by the Office of Management and Budget (``OMB'') 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

    The notice and comment rulemaking procedures of Section 553 of the 
Administrative Procedure Act (``APA'') do not apply to ``interpretive 
rules, general statements of policy, or rules of agency organization, 
procedure, or practice.'' 5 U.S.C. 553(b)(A). This is a rule of agency 
procedure and practice within the meaning of that section. Therefore, 
publication in the Federal Register of a notice of proposed rulemaking 
and request for comments was not required. Although this rule was not 
subject to the notice and comment procedures of the APA, the Assistant 
Secretary sought and considered comments to enable the agency to 
improve the rules by taking into account the concerns of interested 
persons.
    Furthermore, because this rule is procedural 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 is not a ``significant 
regulatory action'' within the meaning of Executive Order 12866 because 
it is not likely to result in a rule that may: (1) Have an annual 
effect on the economy of $100 million or more or adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or Tribal governments or communities; (2) create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; (3) materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in Executive Order 12866. Therefore, no 
regulatory impact analysis has been prepared.
    Because this rulemaking is procedural in nature it is not expected 
to have a significant economic impact; therefore no statement is 
required under Section 202 of the Unfunded Mandates Reform Act of 1995. 
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. 804(3)(C)) 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 
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 primarily implements procedures necessitated by 
statutory amendments enacted by Congress. Additionally, the regulatory 
revisions are necessary for the sake of consistency with the regulatory 
provisions governing procedures under the other whistleblower statutes 
administered by the Secretary. 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 of the Assistant Secretary, Occupational Safety and Health 
Administration, U.S. Department of Labor.

[[Page 2820]]

List of Subjects in 29 CFR Part 24

    Administrative practice and procedure, Employment, Environmental 
protection, Investigations, Reporting and recordkeeping requirements, 
Whistleblowing.

    Signed in Washington, DC on January 7, 2011.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
    Accordingly, for the reasons set out in the preamble, part 24 of 
title 29 of the Code of Federal Regulations is revised to read as 
follows:

PART 24--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS 
UNDER THE EMPLOYEE PROTECTION PROVISIONS OF SIX ENVIRONMENTAL 
STATUTES AND SECTION 211 OF THE ENERGY REORGANIZATION ACT OF 1974, 
AS AMENDED

Subpart A--Complaints, Investigations, Issuance of Findings
Sec.
24.100 Purpose and scope.
24.101 Definitions.
24.102 Obligations and prohibited acts.
24.103 Filing of retaliation complaint.
24.104 Investigation.
24.105 Issuance of findings and orders.
Subpart B--Litigation
24.106 Objections to the findings and order and request for a 
hearing.
24.107 Hearings.
24.108 Role of Federal agencies.
24.109 Decision and orders of the administrative law judge.
24.110 Decision and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
24.111 Withdrawal of complaints, objections, and findings; 
settlement.
24.112 Judicial review.
24.113 Judicial enforcement.
24.114 District court jurisdiction of retaliation complaints under 
the Energy Reorganization Act.
24.115 Special circumstances; waiver of rules.
Appendix A to Part 24--Your Rights Under the Energy Reorganization 
Act

    Authority: 15 U.S.C. 2622; 33 U.S.C. 1367; 42 U.S.C. 300j-
9(i)BVG, 5851, 6971, 7622, 9610; Secretary of Labor's Order No. 5-
2007, 72 FR 31160 (June 5, 2007); Secretary of Labor's Order No. 1-
2010 (Jan. 15, 2010), 75 FR 3924-01 (Jan. 25, 2010).

Subpart A--Complaints, Investigations, Issuance of Findings


Sec.  24.100  Purpose and scope.

    (a) This part implements procedures under the employee protection 
(or ``whistleblower'') provisions for which the Secretary of Labor has 
been given responsibility pursuant to the following Federal statutes: 
Safe Drinking Water Act, 42 U.S.C. 300j-9(i); Federal Water Pollution 
Control Act, 33 U.S.C. 1367; Toxic Substances Control Act, 15 U.S.C. 
2622; Solid Waste Disposal Act, 42 U.S.C. 6971; Clean Air Act, 42 
U.S.C. 7622; Energy Reorganization Act of 1974, 42 U.S.C. 5851; and 
Comprehensive Environmental Response, Compensation and Liability Act of 
1980, 42 U.S.C. 9610.
    (b) This part establishes procedures pursuant to the Federal 
statutory provisions listed in paragraph (a) of this section for the 
expeditious handling of retaliation 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 the Federal statutory provisions listed in paragraph 
(a) of this section, investigations, issuance of findings, objections 
to findings, litigation before administrative law judges (``ALJ''), 
issuance of decisions and orders, post-hearing administrative review, 
and withdrawals and settlements.


Sec.  24.101  Definitions.

    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 any of the statutes listed in Sec.  
24.100(a).
    Business days means days other than Saturdays, Sundays, and Federal 
holidays.
    Complainant means the employee who filed a complaint under any of 
the statutes listed in Sec.  24.100(a) or on whose behalf a complaint 
was filed.
    OSHA means the Occupational Safety and Health Administration of the 
United States Department of Labor.
    Respondent means the employer named in the complaint, who is 
alleged to have violated any of the statutes listed in Sec.  24.100(a).
    Secretary means the Secretary of Labor or persons to whom authority 
under any of the statutes listed in Sec.  24.100(a) has been delegated.


Sec.  24.102  Obligations and prohibited acts.

    (a) No employer subject to the provisions of any of the statutes 
listed in Sec.  24.100(a), or to the Atomic Energy Act of 1954 (AEA), 
42 U.S.C. 2011 et seq., may discharge or otherwise retaliate 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 this section.
    (b) It is a violation for any employer to intimidate, threaten, 
restrain, coerce, blacklist, discharge, discipline, or in any other 
manner retaliate against any employee because the employee has:
    (1) Commenced or caused to be commenced, or is about to commence or 
cause to be commenced, a proceeding under one of the statutes listed in 
Sec.  24.100(a) or a proceeding for the administration or enforcement 
of any requirement imposed under such statute;
    (2) Testified or is about to testify in any such proceeding; or
    (3) Assisted or participated, or is about to assist or participate, 
in any manner in such a proceeding or in any other action to carry out 
the purposes of such statute.
    (c) Under the Energy Reorganization Act, and by interpretation of 
the Secretary under any of the other statutes listed in Sec.  
24.100(a), it is a violation for any employer to intimidate, threaten, 
restrain, coerce, blacklist, discharge, or in any other manner 
retaliate against any employee because the employee has:
    (1) Notified the employer of an alleged violation of such statute 
or the AEA of 1954;
    (2) Refused to engage in any practice made unlawful by such statute 
or the AEA of 1954, if the employee has identified the alleged 
illegality to the employer; or
    (3) Testified or is about to testify before Congress or at any 
Federal or State proceeding regarding any provision (or proposed 
provision) of such statute or the AEA of 1954.
    (d)(1) Every employer subject to the Energy Reorganization Act of 
1974, as amended, shall prominently post and keep posted in any place 
of employment to which the whistleblower provisions of the Act apply, a 
fully legible copy of the notice prepared by OSHA, printed as appendix 
A to this part, or a notice approved by the Assistant Secretary that 
contains substantially the same provisions and explains the 
whistleblower provisions of the Act and the regulations in this part. 
Copies of the notice prepared by OSHA may be obtained from the 
Assistant Secretary for Occupational Safety and Health, U.S. Department 
of Labor, Washington, DC 20210, from local OSHA offices, or from OSHA's 
Web site at http://www.osha.gov.
    (2) Where the notice required by paragraph (d)(1) of this section 
has not been posted, the requirement in Sec.  24.103(d)(2) that a 
complaint be filed with the Assistant Secretary within 180

[[Page 2821]]

days of an alleged violation will be inoperative, unless the respondent 
establishes that the complainant had knowledge of the material 
provisions of the notice. If it is established that the notice was 
posted at the employee's place of employment after the alleged 
retaliatory action occurred or that the complainant later obtained 
knowledge of the provisions of the notice, the 180 days will ordinarily 
run from whichever of those dates is relevant.
    (e) This part shall have no application to any employee who, acting 
without direction from his or her employer (or the employer's agent), 
deliberately causes a violation of any requirement of any of the 
statutes listed in Sec.  24.100(a) or the AEA of 1954.


Sec.  24.103  Filing of retaliation complaint.

    (a) Who may file. An employee who believes that he or she has been 
retaliated against by an employer in violation of any of the statutes 
listed in Sec.  24.100(a) may file, or have filed by any person on the 
employee's behalf, a complaint alleging such retaliation.
    (b) Nature of Filing. No particular form of complaint is required. 
A complaint may be filed orally or in writing. Oral complaints will be 
reduced to writing by OSHA. If a complainant is not able to file the 
complaint in English, the complaint may be filed in any language.
    (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. (1) Except as provided in paragraph (d)(2) of 
this section, within 30 days after an alleged violation of any of the 
statutes listed in Sec.  24.100(a) occurs (i.e., when the retaliatory 
decision has been both made and communicated to the complainant), an 
employee who believes that he or she has been retaliated against in 
violation of any of the statutes listed in Sec.  24.100(a) may file, or 
have filed by any person on the employee's behalf, a complaint alleging 
such retaliation. The date of the postmark, facsimile transmittal, e-
mail communication, telephone call, hand-delivery, delivery to a third-
party commercial carrier, or in-person filing at an OSHA office will be 
considered the date of filing. The time for filing a complaint may be 
tolled for reasons warranted by applicable case law.
    (2) Under the Energy Reorganization Act, within 180 days after an 
alleged violation of the Act occurs (i.e., when the retaliatory 
decision has been both made and communicated to the complainant), an 
employee who believes that he or she has been retaliated against in 
violation of the Act may file, or have filed by any person on the 
employee's behalf, a complaint alleging such retaliation. The date of 
the postmark, facsimile transmittal, e-mail communication, telephone 
call, hand-delivery, delivery to a third-party commercial carrier, or 
in-person filing at an OSHA office will be considered the date of 
filing. The time for filing a complaint may be tolled for reasons 
warranted by applicable case law.
    (e) Relationship to Section 11(c) complaints. A complaint filed 
under any of the statutes listed in Sec.  24.100(a) alleging facts that 
would also constitute a violation of Section 11(c) of the Occupational 
Safety and Health Act, 29 U.S.C. 660(c), will be deemed to be a 
complaint under both Section 11(c) and the applicable statutes listed 
in Sec.  24.100(a). Similarly, a complaint filed under Section 11(c) 
that alleges facts that would also constitute a violation of any of the 
statutes listed in Sec.  24.100(a) will be deemed to be a complaint 
under both section 11(c) and the applicable statutes listed in Sec.  
24.100(a). Normal procedures and timeliness requirements under the 
respective statutes and regulations will be followed.


Sec.  24.104  Investigation.

    (a) Upon receipt of a complaint in the investigating office, the 
Assistant Secretary will notify the respondent of the filing of the 
complaint by providing the respondent (or the respondent's legal 
counsel if respondent is represented by counsel) with a copy of the 
complaint, redacted, if necessary, in accordance with the Privacy Act 
of 1974, 5 U.S.C. 552a, et seq., and other applicable confidentiality 
laws. The Assistant Secretary will provide a copy of the unredacted 
complaint to the complainant (or complainant's legal counsel, if 
complainant is represented) and to the appropriate office of the 
Federal agency charged with the administration of the general 
provisions of the statute(s) under which the complaint is filed.
    (b) Within 20 days of receipt of the notice of the filing of the 
complaint provided under paragraph (a) of this section, the respondent 
may submit to the Assistant Secretary a written statement and any 
affidavits or documents substantiating its position. Within the same 20 
days, the respondent may request a meeting with the Assistant Secretary 
to present its position.
    (c) Throughout the investigation, the agency will provide to the 
complainant (or the complainant's legal counsel if complainant is 
represented by counsel) a copy of all of respondent's submissions to 
the agency that are responsive to the complainant's whistleblower 
complaint. Before providing such materials to the complainant, the 
agency will redact them, if necessary, in accordance with the Privacy 
Act of 1974, 5 U.S.C. 552a, et seq., and other applicable 
confidentiality laws.
    (d) Investigations will be conducted in a manner that protects the 
confidentiality of any person who provides information on a 
confidential basis, other than the complainant, in accordance with part 
70 of title 29 of the Code of Federal Regulations.
    (e) Investigation under the six environmental statutes. In addition 
to the investigative procedures set forth in Sec. Sec.  24.104(a), (b), 
(c), and (d), this paragraph sets forth the procedures applicable to 
investigations under the Safe Drinking Water Act; Federal Water 
Pollution Control Act; Toxic Substances Control Act; Solid Waste 
Disposal Act; Clean Air Act; and Comprehensive Environmental Response, 
Compensation and Liability Act.
    (1) A complaint of alleged violation will be dismissed unless the 
complainant has made a prima facie showing that protected activity was 
a motivating factor in the adverse action alleged in the complaint.
    (2) The complaint, supplemented as appropriate by interviews of the 
complainant, must allege the existence of facts and evidence to make a 
prima facie showing as follows:
    (i) The employee engaged in a protected activity;
    (ii) The respondent knew or suspected that the employee engaged in 
the protected activity;
    (iii) The employee suffered an adverse action; and
    (iv) The circumstances were sufficient to raise the inference that 
the protected activity was a motivating factor in the adverse action.
    (3) The complainant will be considered to have met the required 
showing 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 sufficient to give rise to 
an inference that the respondent knew or suspected that the employee 
engaged in protected activity and that the protected activity was a 
motivating factor in the adverse action.

[[Page 2822]]

The required showing may be satisfied, for example, if the complainant 
shows that the adverse action took place shortly after the protected 
activity, giving rise to the inference that it was a motivating factor 
in the adverse action.
    (4) The complaint will be dismissed if a preponderance of the 
evidence shows that the respondent would have taken the same adverse 
action in the absence of the complainant's protected activity.
    (f) Investigation under the Energy Reorganization Act. In addition 
to the investigative procedures set forth in Sec. Sec.  24.104(a), (b), 
(c), and (d), this paragraph sets forth special procedures applicable 
only to investigations under the Energy Reorganization Act.
    (1) A complaint of alleged violation will be dismissed unless the 
complainant has made a prima facie showing that protected activity was 
a contributing factor in the adverse action alleged in the complaint.
    (2) The complaint, supplemented as appropriate by interviews of the 
complainant, must allege the existence of facts and evidence to make a 
prima facie showing as follows:
    (i) The employee engaged in a protected activity;
    (ii) The respondent knew or suspected, actually or constructively, 
that the employee engaged in the protected activity;
    (iii) The employee suffered an adverse action; and
    (iv) The circumstances were sufficient to raise the inference that 
the protected activity was a contributing factor in the adverse action.
    (3) For purposes of determining whether to investigate, the 
complainant will be considered to have met the required burden if the 
complaint on its face, supplemented as appropriate through interviews 
of the complainant, alleges the existence of facts and either direct or 
circumstantial evidence to meet the required showing, i.e., to give 
rise to an inference that the respondent knew or suspected that the 
employee engaged in protected activity and that the protected activity 
was a contributing factor in the adverse action. The burden may be 
satisfied, for example, if the complainant shows that the adverse 
action took place shortly after the protected activity, giving rise to 
the inference that it was a contributing factor in the adverse action. 
If the required showing has not been made, the complainant (or the 
complainant's legal counsel if complainant is represented by counsel) 
will be so notified and the investigation will not commence.
    (4) Notwithstanding a finding that a complainant has made a prima 
facie showing, as required by this section, an investigation of the 
complaint will not be conducted or will be discontinued if the 
respondent, pursuant to the procedures provided in this paragraph, 
demonstrates by clear and convincing evidence that it would have taken 
the same adverse action in the absence of the complainant's protected 
behavior or conduct.
    (5) If the respondent fails to make a timely response or fails to 
demonstrate by clear and convincing evidence that it would have taken 
the same adverse action in the absence of the behavior protected by the 
Act, the Assistant Secretary will proceed with the investigation. The 
investigation will proceed whenever it is necessary or appropriate to 
confirm or verify the information provided by the respondent.


Sec.  24.105  Issuance of findings and orders.

    (a) After considering all the relevant information collected during 
the investigation, the Assistant Secretary will issue, within 30 days 
of filing of the complaint, written findings as to whether or not there 
is reasonable cause to believe that the respondent has retaliated 
against the complainant in violation of any of the statutes listed in 
Sec.  24.100(a).
    (1) If the Assistant Secretary concludes that there is reasonable 
cause to believe that a violation has occurred, he or she shall 
accompany the findings with an order providing relief to the 
complainant. The order shall include, where appropriate, a requirement 
that the respondent abate the violation; reinstate the complainant to 
his or her former position, together with the compensation (including 
back pay), terms, conditions and privileges of the complainant's 
employment; pay compensatory damages; and, under the Toxic Substances 
Control Act and the Safe Drinking Water Act, pay exemplary damages, 
where appropriate. At the complainant's request the order shall also 
assess against the respondent the complainant's costs and expenses 
(including attorney's 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 order will be sent by certified mail, return 
receipt requested, to all parties of record (and each party's legal 
counsel if the party is represented by counsel). The findings and order 
will inform the parties of their right to file objections and to 
request a hearing and provide the address of the Chief Administrative 
Law Judge. The Assistant Secretary will file a copy of the original 
complaint and a copy of the findings and order with the Chief 
Administrative Law Judge, U.S. Department of Labor.
    (c) The findings and order will be effective 30 days after receipt 
by the respondent (or the respondent's legal counsel if the respondent 
is represented by counsel) or on the compliance date set forth in the 
order, whichever is later, unless an objection and/or a request for a 
hearing has been filed as provided at Sec.  24.106.

Subpart B-Litigation


Sec.  24.106  Objections to the findings and order and request for a 
hearing.

    (a) Any party who desires review, including judicial review, of the 
findings and order must file any objections and/or a request for a 
hearing on the record within 30 days of receipt of the findings and 
order pursuant to paragraph (b) of Sec.  24.105. The objection and/or 
request for a hearing must be in writing and state whether the 
objection is to the findings and/or the order. 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, 800 K Street, NW., 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, the Assistant Secretary, and the Associate Solicitor, 
Division of Fair Labor Standards, U.S. Department of Labor.
    (b) If a timely objection is filed, all provisions of the order 
will be stayed. If no timely objection is filed with respect to either 
the findings or the order, the findings and order will become the final 
decision of the Secretary, not subject to judicial review.


Sec.  24.107  Hearings.

    (a) Except as provided in this part, proceedings will be conducted 
in accordance with the rules of practice and procedure and the rules of 
evidence 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

[[Page 2823]]

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 
otherwise agreed to by the parties. Hearings will be conducted de novo, 
on the record.
    (c) If both the complainant and the respondent object to the 
findings and/or order, the objections will be consolidated, and a 
single hearing will be conducted.


Sec.  24.108  Role of Federal agencies.

    (a)(1) The complainant and the respondent will be parties in every 
proceeding. At the Assistant Secretary's discretion, he or she may 
participate as a party or participate as amicus curiae at any time at 
any stage of the proceeding. This right to participate includes, but is 
not limited to, the right to petition for review of a decision of an 
administrative law judge, including a decision approving or rejecting a 
settlement agreement between the complainant and the respondent.
    (2) Copies of documents 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.
    (b) The Environmental Protection Agency, the Nuclear Regulatory 
Commission, and the Department of Energy, if interested in a 
proceeding, may participate as amicus curiae at any time in the 
proceedings, at the respective agency's discretion. At the request of 
the interested Federal agency, copies of all pleadings in a case must 
be sent to the Federal agency, whether or not the agency is 
participating in the proceeding.


Sec.  24.109  Decision and orders of the administrative law judge.

    (a) The decision of the ALJ will contain appropriate findings, 
conclusions, and an order pertaining to the remedies provided in 
paragraph (c) of this section, as appropriate.
    (b)(1) In cases arising under the ERA, a determination that a 
violation has occurred may only be made if the complainant has 
demonstrated by a preponderance of the evidence that the protected 
activity was a contributing factor in the adverse action alleged in the 
complaint. If the complainant has demonstrated by a preponderance of 
the evidence that the protected activity was a contributing factor in 
the adverse action alleged in the complaint, relief may not be ordered 
if the respondent demonstrates by clear and convincing evidence that it 
would have taken the same adverse action in the absence of any 
protected activity.
    (2) In cases arising under the six environmental statutes listed in 
Sec.  24.100(a), a determination that a violation has occurred may only 
be made if the complainant has demonstrated by a preponderance of the 
evidence that the protected activity caused or was a motivating factor 
in the adverse action alleged in the complaint. If the complainant has 
demonstrated by a preponderance of the evidence that the protected 
activity caused or was a motivating factor in the adverse action 
alleged in the complaint, relief may not be ordered if the respondent 
demonstrates by a preponderance of the evidence that it would have 
taken the same adverse action in the absence of the protected activity.
    (c) Neither the Assistant Secretary's determination to dismiss a 
complaint without completing an investigation pursuant to Sec.  
24.104(e) nor the Assistant Secretary's determination to proceed with 
an investigation is subject to review by the ALJ, and a complaint may 
not be remanded for the completion of an investigation or for 
additional findings on the basis that a determination to dismiss was 
made in error. Rather, if there otherwise is jurisdiction, the ALJ will 
hear the case on the merits or dispose of the matter without a hearing 
if the facts and circumstances warrant.
    (d)(1) If the ALJ concludes that the respondent has violated the 
law, the order shall direct the respondent to take appropriate 
affirmative action to abate the violation, including 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. In cases arising under the 
Safe Drinking Water Act or the Toxic Substances Control Act, exemplary 
damages may also be awarded when appropriate. At the request of the 
complainant, the ALJ shall assess against the respondent, all costs and 
expenses (including attorney fees) reasonably incurred.
    (2) In cases brought under the Energy Reorganization Act, when an 
ALJ issues a decision that the complaint has merit and orders the 
relief prescribed in paragraph (d)(1) of this section, the relief 
ordered, with the exception of compensatory damages, shall be effective 
immediately upon receipt, whether or not a petition for review is filed 
with the ARB.
    (3) If the ALJ determines that the respondent has not violated the 
law, an order will be issued denying the complaint.
    (e) The decision will be served upon all parties to the proceeding, 
the Assistant Secretary, and the Associate Solicitor for Fair Labor 
Standards. Any ALJ's decision issued under any of the statutes listed 
in Sec.  24.100(a) will be effective 10 business days after the date of 
the decision unless a timely petition for review has been filed with 
the ARB. An ALJ's order issued under the Energy Reorganization Act will 
be effective immediately upon receipt, except for that portion of the 
order awarding any compensatory damages.


Sec.  24.110  Decision and orders of the Administrative Review Board.

    (a) Any party desiring to seek review, including judicial review, 
of a decision of the ALJ must file a written petition for review with 
the ARB, U.S. Department of Labor, 200 Constitution Ave., NW., 
Washington, DC 20210, which has been delegated the authority to act for 
the Secretary and issue final decisions under this part. The decision 
of the ALJ will become the final order of the Secretary unless, 
pursuant to this section, a timely petition for review is filed with 
the ARB and the ARB accepts the case for review. The parties should 
identify in their petitions for review the legal conclusions or orders 
to which they object, or the objections will ordinarily be deemed 
waived. A petition must be filed within 10 business days of the date of 
the decision of the ALJ. 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 ARB. 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.
    (b) If a timely petition for review is filed pursuant to paragraph 
(a) of this section, and the ARB, within 30 days of the filing of the 
petition, issues an order notifying the parties that the case has been 
accepted for review, the decision of the ALJ will be inoperative unless 
and until the ARB issues an order adopting the decision, except that an 
order by an ALJ issued under the Energy Reorganization Act, other than 
that portion of the order awarding

[[Page 2824]]

compensatory damages, will be effective while review is conducted by 
the ARB, unless the ARB grants a motion by the respondent to stay the 
order based on exceptional circumstances. The ARB will specify the 
terms under which any briefs are to be filed. The ARB will review the 
factual findings of the ALJ under the substantial evidence standard. If 
no timely petition for review is filed, or the ARB denies review, the 
decision of the ALJ will become the final order of the Secretary. If no 
timely petition for review is filed, the resulting final order is not 
subject to judicial review.
    (c) The final decision of the ARB will be issued within 90 days of 
the filing of the complaint. The decision will be served upon all 
parties and the Chief Administrative Law Judge by mail. 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, even if the 
Assistant Secretary is not a party.
    (d) If the ARB concludes that the respondent has violated the law, 
the final order will order the respondent to take appropriate 
affirmative action to abate the violation, including reinstatement of 
the complainant to that person's former position, together with the 
compensation (including back pay), terms, conditions, and privileges of 
employment, and compensatory damages. In cases arising under the Safe 
Drinking Water Act or the Toxic Substances Control Act, exemplary 
damages may also be awarded when appropriate. At the request of the 
complainant, the ARB will assess against the respondent all costs and 
expenses (including attorney's fees) reasonably incurred.
    (e) If the ARB determines that the respondent has not violated the 
law, an order will be issued denying the complaint.

Subpart C--Miscellaneous Provisions


Sec.  24.111  Withdrawal of complaints, objections, and petitions for 
review; settlement.

    (a) At any time prior to the filing of objections to the findings 
and/or order, a complainant may withdraw his or her complaint under any 
of the statutes listed in Sec.  24.100(a) by filing a written 
withdrawal with the Assistant Secretary. The Assistant Secretary will 
then determine whether to approve the withdrawal. The Assistant 
Secretary will notify the respondent of the approval of any withdrawal. 
If the complaint is withdrawn because of settlement under the Energy 
Reorganization Act, the Clean Air Act, the Safe Drinking Water Act, or 
the Toxic Substances Control Act, the settlement must be submitted for 
approval in accordance with paragraph (d) of this section. Parties to 
settlements under the Federal Water Pollution Control Act, the Solid 
Waste Disposal Act, and the Comprehensive Environmental Response, 
Compensation and Liability Act are encouraged to submit their 
settlements for approval. After the filing of objections to the 
Assistant Secretary's findings and/or order, a complainant may not 
withdraw his or her complaint.
    (b) The Assistant Secretary may withdraw his or her findings and/or 
order, at any time before the expiration of the 30-day objection period 
described in Sec.  24.106, provided that no objection has yet been 
filed, and substitute new findings and/or a new order. The date of the 
receipt of the substituted findings and/or order will begin a new 30-
day objection period.
    (c) At any time before the Assistant Secretary's findings or order 
become final, a party may withdraw its objections to the Assistant 
Secretary's findings or order by filing a written withdrawal with the 
ALJ. If a case is on review with the ARB, a party may withdraw its 
petition for review of an ALJ's decision at any time before that 
decision becomes final by filing a written withdrawal with the ARB. The 
ALJ or the ARB, as the case may be, will determine whether to approve 
the withdrawal of the objections or the petition for review. If the ALJ 
approves a request to withdraw objections to the Assistant Secretary's 
findings or order, and there are no other pending objections, the 
Assistant Secretary's findings and order will become the final order of 
the Secretary. If the ARB approves a request to withdraw a petition for 
review of an ALJ decision, and there are no other pending petitions for 
review of that decision, the ALJ's decision will become the final order 
of the Secretary. If the objections are withdrawn because of settlement 
under the Energy Reorganization Act, the Clean Air Act, the Safe 
Drinking Water Act, or the Toxic Substances Control Act, the settlement 
must be submitted for approval in accordance with paragraph (d) of this 
section.
    (d)(1) Investigative settlements under the Energy Reorganization 
Act, the Clean Air Act, the Safe Drinking Water Act, and the Toxic 
Substances Control Act. 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 respondent agree to a settlement. 
The Assistant Secretary's approval of a settlement reached by the 
respondent and the complainant demonstrates his or her consent and 
achieves the consent of all three parties.
    (2) Adjudicatory settlements under the Energy Reorganization Act, 
the Clean Air Act, the Safe Drinking Water Act, and the Toxic 
Substances Control Act. At any time after the filing of objections to 
the Assistant Secretary's findings and/or order, the case may be 
settled if the participating parties agree to a settlement and the 
settlement is approved by the ALJ if the case is before the judge, or 
by the ARB if the ARB has accepted the case for review. A copy of the 
settlement must be filed with the administrative law judge or the ARB, 
as the case may be.
    (e) Any settlement approved by the Assistant Secretary, the 
administrative law judge, or the ARB will constitute the final order of 
the Secretary and may be enforced pursuant to Sec.  24.113.


Sec.  24.112  Judicial review.

    (a) Except as provided under subsections (b), (c), and (d) of this 
section, within 60 days after the issuance by the ARB of a final order 
of the Secretary under Sec.  24.110, 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 ARB is not 
subject to judicial review in any criminal or other civil proceeding.
    (b) Under the Federal Water Pollution Control Act, within 120 days 
after the issuance by the ARB of a final order of the Secretary under 
Sec.  24.110, 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.
    (c) Under the Solid Waste Disposal Act, within 90 days after the 
issuance by the ARB of a final order of the Secretary under Sec.  
24.110, 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.
    (d) Under the Comprehensive Environmental Response, Compensation 
and Liability Act, after the issuance by

[[Page 2825]]

the ARB of a final order of the Secretary under Sec.  24.110, any 
person adversely affected or aggrieved by the order may file a petition 
for review of the order in the United States district court in which 
the violation allegedly occurred. For purposes of judicial economy and 
consistency, when a final order of the Secretary issued by the ARB 
under the Comprehensive Environmental Response, Compensation and 
Liability Act also is issued under any other statute listed in Sec.  
24.100(a), the adversely affected or aggrieved person may file a 
petition for review of the entire 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. The time for filing a petition for review of an order issued 
under the Comprehensive Environmental Response, Compensation and 
Liability Act and any other statute listed in Sec.  24.100(a) is 
determined by the time period applicable under the other statute(s).
    (e) 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 ARB to the appropriate court pursuant 
to the Federal Rules of Appellate Procedure and the local rules of the 
court.


Sec.  24.113  Judicial enforcement.

    Whenever any person has failed to comply with an order by an ALJ 
issued under the Energy Reorganization Act, with the exception of any 
award of compensatory damages, or with a final order of the Secretary, 
including final orders approving settlement agreements as provided 
under Sec.  24.111(d), the Secretary may file a civil action seeking 
enforcement of the order in the United States district court for the 
district in which the violation was found to have occurred. Whenever 
any person has failed to comply with an order by an ALJ issued under 
the Energy Reorganization Act, with the exception of any award of 
compensatory damages, or with a final order of the Secretary under 
either the Energy Reorganization Act or the Clean Air Act, the person 
on whose behalf the order was issued also 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.  24.114  District court jurisdiction of retaliation complaints 
under the Energy Reorganization Act.

    (a) If there is no final order of the Secretary, one year has 
passed since the filing of a complaint under the Energy Reorganization 
Act, and there is no showing that there has been delay due to the bad 
faith of the complainant, the complainant may bring an action at law or 
equity for de novo review in the appropriate district court of the 
United States, which will have jurisdiction over such an action without 
regard to the amount in controversy.
    (b) Fifteen days in advance of filing a complaint in Federal court, 
a complainant must file with the Assistant Secretary, the ALJ, or the 
ARB, depending upon where the proceeding is pending, a notice of his or 
her intention to file such complaint. The notice must be served on all 
parties to the proceeding. A copy of the notice must be served on the 
Regional Administrator, the Assistant Secretary, Occupational Safety 
and Health Administration, and on the Associate Solicitor, Division of 
Fair Labor Standards, U.S. Department of Labor. The complainant shall 
file and serve a copy of the district court complaint on the above as 
soon as possible after the district court complaint has been filed with 
the court.


Sec.  24.115  Special circumstances; waiver of rules.

    In special circumstances not contemplated by the provisions of this 
part, or for good cause shown, the ALJ or the ARB on review may, upon 
application, after three days notice to all parties, waive any rule or 
issue any orders that justice or the administration of any of the 
statutes listed in Sec.  24.100(a) requires.

Appendix A to Part 24--Your Rights Under the Energy Reorganization Act

BILLING CODE 4510-26-P

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[FR Doc. 2011-828 Filed 1-14-11; 8:45 am]
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