[Federal Register Volume 80, Number 216 (Monday, November 9, 2015)]
[Rules and Regulations]
[Pages 69115-69138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-28040]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1982

[Docket Number: OSHA-2008-0027]
RIN 1218-AC36


Procedures for the Handling of Retaliation Complaints Under the 
National Transit Systems Security Act and the Federal Railroad Safety 
Act

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 provisions of the National Transit Systems 
Security Act (NTSSA), enacted as Section 1413 of the Implementing 
Recommendations of the 9/11 Commission Act of 2007 (9/11 Commission 
Act), and the Federal Railroad Safety Act (FRSA), as amended by Section 
1521 of the 9/11 Commission Act. The 9/11 Commission Act was enacted 
into law on August 3, 2007. FRSA was amended further in 2008. An 
interim final rule establishing procedures for these provisions and a 
request for public comment was published in the Federal Register on 
August 31, 2010. Ten comments were received. This rule responds to 
those comments and establishes the final procedures and time frames for 
the handling of retaliation complaints under NTSSA and FRSA, including 
procedures and time frames for employee complaints to the Occupational 
Safety and Health Administration (OSHA), investigations by OSHA, 
appeals of OSHA determinations to an administrative law judge (ALJ) for 
a hearing de novo, hearings by ALJs, review of ALJ decisions by the 
Administrative Review Board (ARB) (acting on behalf of the Secretary of 
Labor), and judicial review of the Secretary of Labor's final decision.

DATES: This final rule is effective on November 9, 2015.

FOR FURTHER INFORMATION CONTACT: Rob Swick, Directorate of 
Whistleblower Protection Programs, Occupational Safety and Health 
Administration, U.S. Department of Labor, Room N-4618, 200 Constitution 
Avenue NW., Washington, DC 20210; telephone (202) 693-2199 (this is not 
a toll-free number); email [email protected]. This Federal Register 
document is available in alternative formats. The alternative formats 
available are large print, electronic file on computer disk (Word 
Perfect, ASCII, Mates with Duxbury Braille System) and audiotape.

SUPPLEMENTARY INFORMATION: 

I. Background

    NTSSA, which was enacted by the 9/11 Commission Act, establishes 
employee protection provisions for public transportation agency 
employees who engage in whistleblowing activities pertaining to public 
transportation safety or security (or, in circumstances covered by the 
statute, employees perceived to have engaged or to be about to engage 
in protected activity). See Public Law 110-53, Title XIV, Sec.  1413, 
121 Stat. 414 (2007) (NTSSA, codified at 6 U.S.C. 1142).
    FRSA, which was amended by the 9/11 Commission Act, establishes 
employee protection provisions for railroad carrier employees who 
engage in whistleblowing activities pertaining to railroad safety or 
security (or, in circumstances covered by the statute, employees 
perceived to have engaged or to be about to engage in protected 
activity). Public Law 110-53, Title XV, Sec.  1521, 121 Stat. 444 
(2007) (FRSA, codified at 49 U.S.C. 20109). FRSA, as further amended in 
2008, establishes whistleblower provisions for railroad carrier 
employees who are retaliated against for requesting medical or first 
aid treatment, or for following orders or a treatment plan of a 
treating physician. See Public Law 110-432, Div. A, Title IV, Sec.  
419, 122 Stat. 4892 (Oct. 16, 2008) (FRSA, codified at 49 U.S.C. 
20109(c)(2)). The 2008 FRSA amendments also prohibit railroad carriers 
and other covered persons from denying, delaying, or interfering with 
the medical or first aid treatment of an employee, and require that an 
injured employee be promptly transported to the nearest hospital upon 
request. 49 U.S.C. 20109(c)(1). These rules establish final procedures 
for the handling of whistleblower complaints under NTSSA and FRSA.

II. Summary of Statutory Procedures

    Prior to the 9/11 Commission Act amendment of FRSA, whistleblower 
retaliation complaints by railroad carrier employees were subject to 
mandatory dispute resolution pursuant to the Railway Labor Act (45 
U.S.C. 151 et seq.), which included whistleblower proceedings before 
the National Railroad Adjustment Board, as well as other dispute 
resolution procedures. The amendment changed the procedures for 
resolution of such complaints and transferred the authority to 
implement the whistleblower provisions for railroad carrier employees 
to the Secretary of Labor (Secretary).
    The procedures for filing and adjudicating whistleblower complaints 
under NTSSA and FRSA, as amended, are generally the same.\1\ FRSA 
provides that the rules and procedures set forth in the Wendell H. Ford 
Aviation Investment and Reform Act for the 21st Century (AIR 21), 49 
U.S.C. 42121(b), govern in FRSA actions, 49 U.S.C. 20109(d)(2). AIR 
21's rules and procedures are very similar to the procedures provided 
in NTSSA, 6 U.S.C. 1142(c). The NTSSA and FRSA whistleblower provisions 
include procedures that allow a covered employee to file, within 180 
days of the alleged retaliation, a complaint with the Secretary. Upon 
receipt of the complaint, the Secretary must provide written notice to 
the person or persons named in the complaint alleged to have violated 
NTSSA or FRSA (respondent) of the filing of the complaint, the

[[Page 69116]]

allegations contained in the complaint, the substance of the evidence 
supporting the complaint, and the rights afforded the respondent during 
the investigation. The Secretary must then, within 60 days of receipt 
of the complaint, afford the respondent an opportunity to submit a 
response and meet with the investigator to present statements from 
witnesses, and conduct an investigation.
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    \1\ The regulatory provisions in this part have been written and 
organized to be consistent with other whistleblower regulations 
promulgated by OSHA to the extent possible within the bounds of the 
statutory language of NTSSA and FRSA. Responsibility for receiving 
and investigating complaints under NTSSA and FRSA has been delegated 
to the Assistant Secretary for Occupational Safety and Health. 
Secretary's Order 01-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 
2012). Hearings on determinations by the Assistant Secretary are 
conducted by the Office of Administrative Law Judges, and appeals 
from decisions by ALJs are decided by the ARB. Secretary of Labor's 
Order No. 2-2012 (Oct. 19, 2012), 77 FR 69378 (Nov. 16, 2012).
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    The Secretary may conduct an investigation only if the complainant 
has made a prima facie showing that the protected activity was a 
contributing factor in the adverse action alleged in the complaint and 
the respondent has not demonstrated, through clear and convincing 
evidence, that the employer would have taken the same adverse action in 
the absence of that activity. Under OSHA's procedures, a complainant 
may meet this burden through the complaint supplemented by interviews 
of the complainant.
    After investigating a complaint, the Secretary will issue written 
findings. If, as a result of the investigation, the Secretary finds 
there is reasonable cause to believe that retaliation has occurred, the 
Secretary must notify the respondent of those findings, along with a 
preliminary order which includes the relief available under FRSA or 
NTSSA as applicable, including: An order that the respondent abate the 
violation; reinstatement with the same seniority status that the 
employee would have had but for the retaliation; back pay with 
interest; and compensatory damages, including compensation for any 
special damages sustained as a result of the discrimination, including 
litigation costs, expert witness fees, and reasonable attorney fees. 
The preliminary order may also require payment of punitive damages up 
to $250,000.
    The complainant and the respondent then have 30 days after receipt 
of the Secretary's notification in which to file objections to the 
findings and/or preliminary order and request a hearing before an ALJ. 
The filing of objections under NTSSA or FRSA will stay any remedy in 
the preliminary order except for preliminary reinstatement. If a 
hearing before an ALJ is not requested within 30 days, the preliminary 
order becomes final and is not subject to judicial review.
    If a hearing is held, NTSSA and FRSA require the hearing to be 
conducted ``expeditiously.'' The Secretary then has 120 days after the 
conclusion of a hearing in which to issue a final order, which may 
provide the relief authorized by the statute or deny the complaint. 
Until the Secretary's final order is issued, the Secretary, the 
complainant, and the respondent may enter into a settlement agreement 
that terminates the proceeding. Under NTSSA, the Secretary also may 
award a prevailing employer reasonable attorney fees, not exceeding 
$1,000, if the Secretary finds that the complaint is frivolous or has 
been brought in bad faith.
    Within 60 days of the issuance of the final order, any person 
adversely affected or aggrieved by the Secretary's final order may file 
an appeal with the United States Court of Appeals for the circuit in 
which the violation occurred or the circuit where the complainant 
resided on the date of the violation.
    NTSSA and FRSA permit the employee to seek de novo review of the 
complaint by a United States district court in the event that the 
Secretary has not issued a final decision within 210 days after the 
filing of the complaint, and there is no showing that the delay is due 
to the bad faith of the complainant. The court will have jurisdiction 
over the action without regard to the amount in controversy and the 
case will be tried before a jury at the request of either party. The 
whistleblower provisions of NTSSA and FRSA each provide that an 
employee may not seek protection under those respective provisions and 
another provision of law for the same allegedly unlawful act of the 
public transportation agency (under NTSSA) or railroad carrier (under 
FRSA). 6 U.S.C. 1142(e); 49 U.S.C. 20109(f). The whistleblower 
provisions of NTSSA and FRSA also provide that nothing in their 
respective provisions preempts or diminishes any other safeguards 
against discrimination, demotion, discharge, suspension, threats, 
harassment, reprimand, retaliation, or any other manner of 
discrimination provided by Federal or State law. 6 U.S.C. 1142(f); 49 
U.S.C. 20109(g). The whistleblower provisions of NTSSA and FRSA further 
provide that nothing in their respective provisions shall be construed 
to diminish the rights, privileges, or remedies of any employee under 
any Federal or State law or under any collective bargaining agreement 
and that the rights and remedies in the whistleblower provisions of 
NTSSA or FRSA may not be waived by any agreement, policy, form, or 
condition of employment. 6 U.S.C. 1142(g); 49 U.S.C. 20109(h).

III. Summary and Discussion of Rulemaking Proceedings and Regulatory 
Provisions

    On August 31, 2010, OSHA published in the Federal Register an 
interim final rule, promulgating rules governing the employee 
protection provisions of NTSSA and FRSA. 75 FR 53522. In addition to 
promulgating the interim final rule, OSHA's notice included a request 
for public comment on the interim rules by November 1, 2010.
    In response, several organizations and individuals filed comments 
with the agency within the public comment period. Comments were 
received from the National Whistleblower Center (NWC); the Government 
Accountability Project (GAP); nine railroad labor organizations 
(collectively Rail Labor) that submitted one collective set of 
comments; the AFL-CIO Transportation Trades Department, which 
represents 32 unions; the Utah Transit Authority FrontRunner Commuter 
Rail; the American Public Transportation Association; the American 
Shortline and Regional Railroad Association (ASLRRA); the Association 
of American Railroads (AAR); Charles Goetsch; and Todd Miller.
    OSHA has reviewed and considered the comments and now adopts this 
final rule, which has been revised in part in response to the comments. 
The following discussion addresses the comments and OSHA's responses in 
the order of the provisions of the rule.

General Comments

Comments Regarding the Treatment of Complaints Under Section 
20109(c)(1)

    In the preamble to the interim final rule, OSHA stated that the 
procedural rules provided in this part would not apply to complaints 
under paragraph 20109(c)(1) of FRSA. That paragraph provides:

    A railroad carrier or person covered under this section may not 
deny, delay, or interfere with the medical or first aid treatment of 
an employee who is injured during the course of employment. If 
transportation to a hospital is requested by an employee who is 
injured during the course of employment, the railroad shall promptly 
arrange to have the injured employee transported to the nearest 
hospital where the employee can receive safe and appropriate medical 
care.

    OSHA stated that section 20109(c)(1) is not a whistleblower 
provision because it appears to prohibit certain conduct by railroad 
carriers irrespective of any protected activity by an employee. 75 FR 
at 53522. Rail Labor, the AFL-CIO Transportation Trades Department, and 
Charles Goetsch all disagreed and urged the Secretary to apply the 
procedures in this part to complaints under section 20109(c)(1). These 
commenters noted that section 20109(d) of FRSA gives the Secretary the 
authority and duty to enforce the statute when an employee alleges 
``discharge, discipline, or other

[[Page 69117]]

discrimination in violation of subsection (a), (b), or (c)[.]'' 49 
U.S.C. 20109(d). They noted that the legislative history shows that the 
prompt medical attention provision was originally drafted as a stand-
alone provision, but was transferred to section 20109, which is the 
only section in FRSA not assigned to the Federal Railroad 
Administration (FRA). Therefore, they concluded, enforcement of section 
20109, including paragraph (c)(1), is assigned to the Secretary. They 
further asserted that ``other discrimination'' in section 20109(d)(1) 
encompasses the denial, delay, or interference with medical treatment 
prohibited in paragraph (c)(1), and that ``other discrimination'' is 
not limited to situations involving protected activity. Consequently, 
according to these commenters, any denial or infringement of the right 
under paragraph (c)(1) to prompt medical attention constitutes per se 
discrimination. They also argued that it is wrong to assume that 
paragraph (c)(1) involves no protected activity. The prohibited conduct 
in paragraph (c)(1) (i.e., the denial, delay, or interference) only 
occurs if an employee has requested medical treatment. In other words, 
the commenters suggest that an employee has to have requested medical 
treatment for that treatment to be denied, delayed, or interfered with. 
Thus, they maintained, the protected activity under paragraph (c)(1) is 
requesting medical treatment. Lastly, they argued that it would be 
illogical to prohibit a railroad carrier from disciplining an employee 
for requesting medical treatment as paragraph (c)(2) does, but not to 
prohibit the railroad carrier from denying, delaying, or interfering 
with that medical treatment. Treating paragraph (c)(1) as if it were 
not a whistleblower provision would, they claimed, permit a railroad 
carrier to use the denial, delay, or interference with an employee's 
medical treatment as the means of retaliating against the employee 
rather than having to discipline the employee, which would violate 
paragraph (c)(2). They urged OSHA to reconsider its position and to 
process paragraph (c)(1) complaints under the procedures applicable to 
all other complaints arising under 49 U.S.C. 20109.
    Apart from these comments on paragraph (c)(1), the ARB set out its 
interpretation of paragraph (c)(1) in Santiago v. Metro-North Commuter 
R.R. Co., Inc., ARB No. 10-147, 2012 WL 3164360 (ARB June 12, 2015), 
pet. for review filed, Santiago v. U.S. Dep't of Labor, Case No. 15-
2551 (2d Cir. Aug. 13, 2015). The ARB treated a complaint under 
paragraph (c)(1) as a whistleblower claim subject to the same 
procedures and burdens of proof as a claim under paragraphs (a) or (b). 
See id. at *5. The ARB reasoned that paragraph (c) implicitly 
identifies protected activity as requesting or receiving medical 
treatment or complying with treatment plans for work injuries, and 
identifies the prohibited discrimination as delaying, denying, or 
interfering, or imposing or threatening to impose discipline. See id. 
The ARB further reasoned that AIR 21's procedural burdens of proof 
govern claims under paragraph (c), but must be tailored to apply to the 
processing of such claims. See id. at *6. The ARB also outlined how the 
burdens of proof would apply to complaints under paragraph (c)(1). See 
id. at *10-12. Because FRSA grants to the Secretary the authority to 
enforce and adjudicate FRSA claims, 49 U.S.C. 20109(c), and because the 
Secretary has delegated his adjudicative authority under FRSA to the 
ARB, Secretary of Labor's Order No. 2-2012 (Oct. 19, 2012), 77 FR 69378 
(Nov. 16, 2012), the ARB's decision in Santiago constitutes the 
Secretary's interpretation of paragraph (c).
    Based on the statutory text, the legislative history of paragraph 
(c)(1), and the ARB's decision in Santiago outlined above, the 
procedures provided in 49 U.S.C. 20109(d) apply to complaints alleging 
violations of paragraph (c)(1). The language and structure of the 
statute, together with the legislative history, show that FRSA provides 
employees the ability to file complaints regarding violations of 
paragraph (c)(1) with the Secretary and recover the remedies listed in 
section 20109(e) in the event of a violation.
    Paragraph (d)(1) states that ``[a]n employee who alleges discharge, 
discipline or other discrimination in violation of subsection (a), (b), 
or (c) of this section, may seek relief in accordance with the 
provisions of this section, with any petition or other request for 
relief under this section to be initiated by filing a complaint with 
the [Secretary].'' 49 U.S.C. 20109(d)(1). The plain language of 
paragraph (d)(1) does not distinguish between complaints alleging 
violations of paragraph (c)(1) or (c)(2) in prescribing the treatment 
of complaints, but rather broadly applies to ``any petition or request 
for relief under this section.'' (Emphasis added.) Further, no other 
provision in 49 U.S.C. 20109 contains an alternative mechanism for 
adjudication of complaints under paragraph (c)(1). Therefore, the 
``other discrimination'' for which an employee may seek relief under 
paragraph (d)(1) necessarily includes a denial, delay, or interference 
with medical or first aid treatment, or failing to promptly transport 
an injured employee to the nearest hospital upon the employee's 
request. See Delgado v. Union Pacific R.R. Co., 12 C 2596, 2012 WL 
4854588, at *3 (N.D. Ill.) (``[T]he obstruction of an injured employee 
seeking medical attention is itself discrimination against an employee 
and therefore provides a basis for private enforcement under subsection 
(d)(1).'').
    The legislative history also supports the conclusion that the 
Secretary has the authority to enforce paragraph (c)(1) and that the 
procedures outlined elsewhere in section 20109 also apply to complaints 
alleging violations of paragraph (c)(1). As the commenters and the ARB 
in Santiago noted, Congress originally proposed to prohibit the denial, 
delay, or interference with medical or first aid treatment in a 
freestanding section of FRSA, over which the Secretary of Labor would 
not have enforcement authority, but made a conscious decision to move 
that prohibition to paragraph (c)(1) of section 20109. See Federal 
Railroad Safety Improvement Act of 2007, H.R. 2095, 110th Cong. Title 
VI, Sec.  606 (2007) (proposed bill, which would have included the 
provision at 49 U.S.C. 20162); Rail Safety Improvement Act of 2008, 
H.R. Res. 1492 110th Cong. Sec.  419 (2008) (reconciling H.R. 2095 with 
Senate amendments and moving the prohibition on the denial, delay, or 
interference with medical or first aid treatment from section 20162 to 
section 20109). Moving the provision to section 20109 indicates that 
Congress intended employees to have the same right to file a complaint 
with the Secretary of Labor seeking damages and other remedies 
following an unlawful denial, delay or interference with medical or 
first aid treatment that employees have for other violations of section 
20109. Santiago, 2012 WL 3255136, at *9 (describing this history as ``a 
progressive expansion of anti-retaliation measures in an effort to 
address continuing concerns about railroad safety and injury 
reporting''). For all of these reasons, and in light of the ARB's 
decision in Santiago, the procedures established in 29 CFR part 1982 
apply to complaints alleging violations of 49 U.S.C. 20109(c)(1), and 
OSHA has accordingly revised sections 1982.100 and 1982.102 to reflect 
this protection.

Comments Regarding the Proper Interpretation of the Election of 
Remedies, No Preemption, and Rights Retained by Employees Provisions

    The whistleblower provisions of NTSSA and FRSA each provide that an

[[Page 69118]]

employee may not seek protection under those respective provisions and 
another provision of law for the same allegedly unlawful act of the 
public transportation agency (under NTSSA) or railroad carrier (under 
FRSA). 6 U.S.C. 1142(e); 49 U.S.C. 20109(f). The whistleblower 
provisions of NTSSA and FRSA also provide that nothing in those 
respective provisions preempts or diminishes any other safeguards 
against discrimination, demotion, discharge, suspension, threats, 
harassment, reprimand, retaliation, or any other manner of 
discrimination provided by Federal or State law. 6 U.S.C. 1142(f); 49 
U.S.C. 20109(g). The whistleblower provisions of NTSSA and FRSA further 
provide that nothing in those respective provisions shall be construed 
to diminish the rights, privileges, or remedies of any employee under 
any Federal or State law or under any collective bargaining agreement 
and that the rights and remedies in the whistleblower provisions of 
NTSSA or FRSA may not be waived by any agreement, policy, form, or 
condition of employment. 6 U.S.C. 1142(g); 49 U.S.C. 20109(h).
    Several commenters addressed the provisions in FRSA regarding 
election of remedies, no preemption, and rights retained by employees, 
49 U.S.C. 20109(f), (g), and (h). (NTSSA contains these same 
provisions, 6 U.S.C. 1142(e), (f), and (g), but the comments 
specifically referenced FRSA.) The AFL-CIO Transportation Trades 
Department asserted that railroad employees have the right to seek 
relief under both collective bargaining agreements and the 
whistleblower provision in 49 U.S.C. 20109, and that a claim or 
grievance filed by a railroad employee for an alleged violation of the 
collective bargaining agreement should not bar the employee from 
seeking remedies available under FRSA. This commenter stated that the 
rights to organize, to bargain collectively, and to file grievances for 
collective bargaining agreement violations provided for in the Railway 
Labor Act (RLA), 45 U.S.C. 151 et seq., which governs labor-management 
relations in the railroad industry, ``are essential to maintaining 
decent wages, and health and retirement benefits, as well as providing 
a legal remedy for workers who have been wronged by their employers.'' 
According to this commenter, it would make no sense for Congress to 
have intended ``to strip rail employees of contractual rights'' when it 
provided whistleblower railroad employees a statutory remedy against 
retaliation. Rail Labor urged OSHA to interpret paragraph (f) of FRSA, 
the election of remedies provision, as not barring claims made by an 
employee under the Federal Employers' Liability Act (FELA), 45 U.S.C. 
51 et seq., or a collective bargaining agreement, when a FRSA claim has 
been filed, or vice versa. Rather, Rail Labor suggested, the election 
of remedies provision could apply to state public policy doctrines or 
state whistleblower statutes or regulations. Rail Labor urged OSHA to 
interpret section 20109(g) of FRSA, the no-preemption provision, to 
mean that FRSA has no bearing on FRA's jurisdiction under 49 CFR part 
225 to investigate, make findings, and levy and enforce penalties 
against railroad carriers for prohibited conduct. Also referencing the 
FRA regulation at 49 CFR part 225, the Utah Transit Authority 
FrontRunner Commuter Rail commented that all railroad carriers are 
already governed by 49 CFR 225.33(a)(1) and (2), and suggested that 
OSHA should cross-reference these regulations to avoid regulatory 
duplication. Rail Labor also urged OSHA to interpret paragraph (h) of 
FRSA, the rights retained by an employee provision, to mean that 
section 20109 has no bearing on matters under the RLA or collective 
bargaining agreements, and that the rights provided for in FRSA are not 
a proper subject of collective bargaining and not subject to waiver. 
Lastly, Rail Labor urged OSHA to state that the RLA and railroad 
collective bargaining agreements do not provide whistleblower 
protection, that a railroad carrier's pre-disciplinary investigations 
and disciplinary decisions do not address an employee's whistleblower 
claims, and that the National Railroad Adjustment Board has no 
jurisdiction to adjudicate whistleblower claims under FRSA.
    OSHA does not believe that the changes to the text of these 
procedural rules suggested by these commenters are necessary. However, 
OSHA notes that the specific issue of the applicability of FRSA's 
election of remedies provision to an arbitration brought pursuant to 
the employee's collective bargaining agreement under the RLA was 
decided by the ARB in the consolidated cases of Koger v. Norfolk 
Southern Railway Co. and Mercier v. Union Pacific Railroad, ARB Nos. 
09-101 and 09-121, 2011 WL 4889278 (ARB Sept. 29, 2011). The ARB 
concluded that FRSA's election of remedies provision permits a 
whistleblower claim to proceed notwithstanding the employee's pursuit 
of a grievance or arbitration under a collective bargaining agreement. 
Id. at *8. The ARB's decision constitutes the Secretary's 
interpretation of the election of remedies provision on this issue and 
nothing in these final rules alters the ARB's conclusion. Three circuit 
courts of appeals and numerous district courts have agreed with the 
Secretary's conclusion. See Norfolk S. Ry. Co. v. Perez, 778 F.3d 507 
(6th Cir. 2015); Grimes v. BNSF Ry. Co., 746 F.3d 184 (5th Cir. 2014); 
Reed v. Norfolk S. Ry. Co., 740 F.3d 420 (7th Cir. 2014); Koger v. 
Norfolk S. Ry. Co., No. 1:13-12030, 2014 WL 2778793 (S.D.W. Va. June 
19, 2014); Pfeiffer v. Union Pacific R.R. Co., No. 12-cv-2485, 2014 WL 
2573326 (D. Kan. June 9, 2014); Ray v. Union Pac. R.R., 971 F. Supp. 2d 
869 (S.D. Iowa 2013); Ratledge v. Norfolk S. Ry. Co., No. 1:12-cv-402, 
2013 WL 3872793 (E.D. Tenn. July 25, 2013); cf. Battenfield v. BNSF Ry. 
Co., No. 12-cv-213, 2013 WL 1309439 (N.D. Okla. Mar. 26, 2013) 
(examining section 20109(f) and permitting plaintiff to add FRSA 
retaliation claim despite having challenged his termination under his 
CBA); Norfolk S. Ry. Co. v. Solis, 915 F. Supp. 2d 32, 43-45 (D.D.C. 
2013) (concluding that court did not have jurisdiction to review ARB's 
Mercier decision because the ARB's statutory interpretation was, at a 
minimum, a colorable interpretation of FRSA's election of remedies 
provision).
    Furthermore, FRSA's election of remedies provision generally does 
not bar complainants from bringing both a FRSA retaliation claim and a 
complaint for compensation for a workplace injury under FELA. A worker 
who files a claim under FRSA and separately under FELA generally is not 
seeking ``protection under both [FRSA] and another provision of law for 
the same allegedly unlawful act of the railroad carrier.'' Under FRSA, 
a worker may seek reinstatement, back pay, and damages resulting from 
an act of retaliation by the railroad because of the worker's protected 
activity. Under FELA, a worker may seek damages for a workplace injury 
that was due in whole or part to the railroad's negligence. The conduct 
that gives rise to a retaliation claim under FRSA generally differs 
from the conduct that causes a worker's injury, which is the subject of 
a FELA claim. The latter involves a general standard of care that a 
railroad owes a worker while the former is akin to an intentional tort. 
OSHA notes that employees routinely pursue a FRSA claim and a FELA 
claim concurrently in district court. See, e.g., Davis v. Union Pacific 
R.R. Co., _ F. Supp. 2d _, 2014 WL 3499228 (W.D. La. Jul. 14, 2014); 
Barati v. Metro-North R.R., 939 F. Supp. 2d 153 (D. Conn. 2013); Cook 
v. Union

[[Page 69119]]

Pacific R.R. Co., No. 10-6339-TC, 2011 WL 5842795 (D. Or. Nov. 18, 
2011).
    Additionally, in response to Rail Labor's and Utah Transit 
Authority FrontRunner Commuter Rail's comments concerning FRA's 
regulation at 49 CFR part 225, OSHA notes that an employee's ability to 
pursue a retaliation claim under FRSA seeking reinstatement and a 
monetary remedy is separate from and is not limited by FRA's authority 
to investigate, make findings, levy and enforce penalties, or take 
other enforcement action against railroads for conduct prohibited by 49 
CFR part 225, including violations of 49 CFR 225.33. Likewise, an 
employee's ability to pursue a retaliation claim under FRSA does not 
limit FRA's authority to enforce 49 CFR part 225. As previously 
explained, 49 CFR 225.33(a)(1) requires that each railroad carrier 
adopt and comply with an internal control plan that includes a policy 
statement declaring the railroad carrier's commitment to complete and 
accurate reporting of all accidents, incidents, injuries, and 
occupational illnesses arising from the operation of the railroad 
carrier. The policy statement must also declare the railroad carrier's 
commitment to prohibiting harassment or intimidation of any person that 
is intended to discourage or prevent such person from receiving proper 
medical treatment for or from reporting such accident, incident, 
injury, and illness. In addition, 49 CFR 225.33(a)(2) requires that 
each railroad carrier disseminate such policy statement to all 
employees, have procedures to process complaints that the policy 
statement has been violated, and impose discipline on the individual(s) 
violating the policy statement. While an act of intimidation and 
harassment, such as a threat of discipline, may run afoul of both 49 
CFR 225.33 and 49 U.S.C. 20109, this overlap does not lead to 
regulatory duplication. FRA's ability to utilize its enforcement tools 
to cite a railroad for a violation of its policy statement against 
harassment and intimidation calculated to prevent an employee from 
reporting a casualty or accident or receiving proper medical treatment, 
and FRA's ability to discipline an individual such as a manager for 
violation of such policy, is not a remedy for the individual railroad 
employee who may have suffered retaliation as result of reporting an 
injury or requesting medical treatment. By contrast, FRSA gives 
employees the right to obtain reinstatement, back pay and appropriate 
damages resulting from a railroad's retaliation because the employee 
reports an injury or requests medical treatment.

Comment Regarding the Secretary's Compliance With Statutory Timelines

    Mr. Todd Miller commented generally that the regulations do not 
provide a means for redress where OSHA does not meet the timelines 
provided for in the statute. Courts and the ARB have long recognized 
that failure to complete the investigation or issue a final decision 
within the statutory time frame does not deprive the Secretary of 
jurisdiction over a whistleblower complaint. See, e.g., Passaic Valley 
Sewerage Comm'rs v. U.S. Dep't of Labor, 992 F.2d 474, 477 n.7 (3d Cir. 
1993); Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1066 (5th Cir. 
1991); Lewis v. Metro. Transp. Auth., ARB No. 11-070, 2011 WL 3882486, 
at *2 (ARB Aug. 8, 2011); Welch v. Cardinal Bankshares, ARB No. 04-054, 
2004 WL 5030301 (ARB May 13, 2004). The Secretary is cognizant of NTSSA 
and FRSA's statutory directives regarding completion of the OSHA 
investigation and administrative proceedings and the need to resolve 
whistleblower complaints expeditiously. However, in those instances 
where the agency cannot complete the administrative proceedings within 
the statutory timeframes, NTSSA's and FRSA's ``kick-out'' provisions, 
which allow a complainant to file a complaint for de novo review in 
federal district court if the Secretary has not issued a final decision 
within 210 days of the filing of the complaint, allow the complainant 
an alternative avenue for resolution of the whistleblower complaint.

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

Section 1982.100 Purpose and Scope

    This section describes the purpose of the regulations implementing 
NTSSA and FRSA and provides an overview of the procedures covered by 
these regulations. No comments were received on this section. However, 
OSHA has added a statement in subparagraph (a) noting that FRSA 
protects employees against delay, denial or interference with first aid 
or medical treatment for workplace injuries. OSHA has also added a 
statement in subparagraph (b) noting that these rules set forth the 
Secretary's interpretations of NTSSA and FRSA on certain statutory 
issues.

Section 1982.101 Definitions

    This section includes general definitions applicable to the 
employee protection provisions of NTSSA and FRSA.
    The definition section of NTSSA, 6 U.S.C. 1131(5), defines ``public 
transportation agency'' as ``a publicly owned operator of public 
transportation eligible to receive federal assistance under chapter 53 
of title 49.'' Chapter 53 of title 49, 49 U.S.C. 5302(14), defines 
``public transportation'' as ``regular, continuing shared-ride surface 
transportation services that are open to the general public or open to 
a segment of the general public defined by age, disability, or low 
income; and does not include: Intercity passenger rail transportation 
provided by the entity described in chapter 243 (or a successor to such 
entity); intercity bus service; charter bus service; school bus 
service; sightseeing service; courtesy shuttle service for patrons of 
one or more specific establishments; or intra-terminal or intra-
facility shuttle services.'' Chapter 243, 49 U.S.C. 24301 et seq., 
governs Amtrak. The definition of ``public transportation'' has been 
updated as needed to be consistent with 2012 amendments to 49 U.S.C. 
5302.
    In the interim final rule, OSHA stated that the definition section 
of FRSA, 49 U.S.C. 20102(2), defined ``railroad carrier'' as ``a person 
providing railroad transportation,'' and that section 20102(1) defined 
``railroad'' as ``any form of nonhighway ground transportation that 
runs on rails or electromagnetic guideways, including commuter or other 
short-haul railroad passenger service in a metropolitan or suburban 
area and commuter railroad service that was operated by the 
Consolidated Rail Corporation on January 1, 1979; and high speed ground 
transportation systems that connect metropolitan areas, without regard 
to whether those systems use new technologies not associated with 
traditional railroads; but does not include rapid transit operations in 
an urban area that are not connected to the general railroad system of 
transportation.'' 75 FR at 53523-24. It has come to OSHA's attention 
that these citations were incorrect. Section 20102 of FRSA was amended 
such that the definition of ``railroad carrier'' is now in paragraph 
(3), not (2), and that the definition of ``railroad'' is now in 
paragraph (2), not (1). Public Law 110-432, 122 Stat. 4850, 4886 (Oct. 
16, 2008). In addition, the definition of ``railroad carrier'' was 
modified: It is defined as ``a person providing railroad 
transportation, except that, upon petition by a group of commonly 
controlled railroad carriers that the Secretary [of Transportation] 
determines is operating within the United States as a single, 
integrated rail system, the

[[Page 69120]]

Secretary [of Transportation] may by order treat the group of railroad 
carriers as a single railroad carrier for purposes of one or more 
provisions of part A, subtitle V of [ ] title [49] and implementing 
regulations and order, subject to any appropriate conditions that the 
Secretary [of Transportation] may impose.'' 49 U.S.C. 20102(3). The 
regulatory text in section 1982.101(k) is modified accordingly in the 
final rule. The definition of ``railroad'' remains the same as in the 
interim final rule.
    The AFL-CIO Transportation Trades Department suggested that OSHA 
define ``public transportation agency'' and ``railroad carrier'' to 
include explicitly as covered employers owners, as well as contractors 
and subcontractors acting as operators. Rail Labor suggested that OSHA 
supplement these definitions by clarifying coverage over joint 
employers because, according to Rail Labor, the current regulatory 
definition does not address retaliation by railroad owners who are not 
operators. Under NTSSA, a covered employer is a ``public transportation 
agency,'' which the statute defines in relevant part as ``a publicly 
owned operator of public transportation.'' Similarly, under FRSA, a 
covered employer is a ``railroad carrier,'' which the statute defines 
in relevant part as ``a person providing railroad transportation.'' 
Thus, these statutes contain specific definitions of a covered 
employer. The determination of whether an ``operator'' (in the case of 
NTSSA) or ``a person providing'' (in the case of FRSA) includes owners 
who are not operators may turn on the facts of a given case and is 
better addressed through the adjudication of cases under NTSSA and FRSA 
rather than in these procedural rules. OSHA notes that NTSSA prohibits 
a contractor or subcontractor of a public transportation agency from 
engaging in the retaliatory conduct prohibited under the statute. 6 
U.S.C. 1142(a) and (b). Similarly, FRSA prohibits a contractor or 
subcontractor of a railroad carrier from engaging in certain 
retaliatory conduct prohibited under the statue. 49 U.S.C. 20109(a). 
Therefore, OSHA declines to make the changes to this section suggested 
by AFL-CIO Transportation Trades Department and Rail Labor.

Section 1982.102 Obligations and Prohibited Acts

    This section describes the activities that are protected under 
NTSSA and FRSA, and the conduct that is prohibited in response to any 
protected activities. Minor corrections have been made throughout this 
section to more closely parallel NTSSA and FRSA and OSHA's procedural 
rules under other whistleblower statutes and the section has been 
renumbered to better comply with the drafting requirements of the 
Federal Register.
    In light of OSHA's revised position regarding 49 U.S.C. 20109(c)(1) 
discussed above, the regulatory text for this section of FRSA has been 
modified to more closely mirror the statutory text of section 20109(c) 
and to include the (c)(1) provision as 29 CFR 1982.102(b)(3)(i).
    Rail Labor and the AFL-CIO Transportation Trades Department each 
commented on the exception to FRSA's prompt medical attention provision 
in 49 U.S.C. 20109(c)(2) permitting a railroad carrier to refuse to 
allow an employee to return to work when that refusal is pursuant to 
FRA's medical standards for fitness of duty, or, if no such standards 
exist, then pursuant to the railroad carrier's own medical standards 
for fitness of duty. They argued that this exception gives railroad 
carriers the ability to use groundless medical refusals as a substitute 
for retaliatory discipline or other forms of retaliation. Therefore, 
they urged OSHA to include a statement in the regulation that a 
railroad carrier's refusal must be done in good faith and with a 
reasonable basis of medical fact, and that when the railroad carrier is 
relying on its own standards, those standards must be established in 
the carrier's official policies, be medically reasonable, and uniformly 
applied. By contrast, the American Public Transportation Association 
commented that the protection against discipline for requesting medical 
treatment or following a treatment plan ignores management's right to 
discipline employees whose injuries are directly caused by a violation 
of work rules or procedures. This commenter suggested that this rule 
should recognize management's right to discipline employees in such 
situations, and that this right is independent of management's 
obligation not to discipline an employee for requesting medical 
treatment.
    OSHA declines to change the text of these regulations in response 
to these comments but notes that these commenters raise legitimate 
concerns regarding the adjudication of cases under FRSA. For example, 
the question of whether a railroad's discipline of an employee is in 
retaliation for requesting medical treatment or results from the 
legitimate application of a work rule or procedure is often the central 
question in a FRSA complaint. In each complaint, that question should 
be resolved based on the specific facts of the case and the applicable 
case law.
    Similarly, OSHA believes that the safe-harbor in 49 U.S.C. 
20109(c)(2) requires that the railroad's refusal to allow an employee 
to return to work be in good faith. A retaliatory refusal to permit an 
employee to return to work cannot properly be regarded as made 
``pursuant to'' FRA's or the carrier's own medical standards for 
fitness for duty under the statute. Any other interpretation of the 
provision would permit a railroad carrier to refuse to allow an 
employee to return to work in retaliation against the employee for 
reporting the injury (which would violate 20109(a)(4)) or as a means 
for extending retaliatory discipline prohibited by 20109(c)(2). 
However, OSHA declines to incorporate the language proposed by the 
commenters into the rule, which mirrors the statutory language. 
Evidence that a railroad carrier's refusal to allow an employee to 
return to work is not reasonable based on the employee's medical 
condition may be important to show that the refusal is not in good 
faith and constitutes retaliation. Evidence that a refusal is based on 
carrier standards that are not recorded in the carrier's official 
policies, not uniformly applied or not medically reasonable likewise 
may help to demonstrate that the refusal is due not to a legitimate 
safety concern of the railroad carrier but rather is motivated by 
retaliatory intent. However, the question of whether a particular 
refusal to permit an employee to return to work falls outside 
20109(c)(2)'s safe harbor turns on the facts of the case and should be 
adjudicated in accordance with the applicable case law.
    Finally, in a change that is not intended to have substantive 
effect, the terms ``retaliate'' and ``retaliation'' have been 
substituted for the terms ``discriminate'' and ``discrimination,'' 
which were used in the interim final rule. This change makes the 
terminology used in this rule consistent with the terminology in OSHA's 
more recently promulgated whistleblower rules. Subheadings have been 
added to more clearly indicate which activities are protected under 
NTSSA and which are protected under FRSA and the paragraphs have been 
renumbered as needed to comply with Federal Register drafting 
requirements and to reflect that the protections in 49 U.S.C. 
20109(c)(1) have been added.

Section 1982.103 Filing of Retaliation Complaints

    This section explains the requirements for filing a retaliation 
complaint under NTSSA and FRSA. To be timely, a complaint must be filed

[[Page 69121]]

within 180 days of when the alleged violation occurs. Under Delaware 
State College v. Ricks, 449 U.S. 250, 258 (1980), this is considered to 
be when the retaliatory decision has been both made and communicated to 
the complainant. In other words, the limitations period commences once 
the employee is aware or reasonably should be aware of the employer's 
decision to take an adverse action, not when the employee learns of the 
retaliatory nature of the action. See Equal Emp't Opportunity Comm'n v. 
United Parcel Serv., Inc., 249 F.3d 557, 561-62 (6th Cir. 2001). 
Complaints filed under NTSSA or FRSA need not be in any particular 
form. They may be either oral or in writing. If the complainant is 
unable to file the complaint in English, OSHA will accept the complaint 
in any language. With the consent of the employee, complaints may be 
filed by any person on the employee's behalf.
    GAP expressed support for Sections 1982.103(b) (nature of filing) 
and (d) (time for filing), which outline the form of filing and the 
time for filing, respectively, and commented that they improved 
protection for whistleblowers. GAP also asked that the text of section 
1982.103(d) clarify that the 180-day statute of limitations for filing 
a complaint under FRSA and NTSSA does not begin to run until an 
employee becomes aware of an alleged retaliatory act. OSHA believes 
that the rule as drafted properly states the statute of limitations but 
has added a sentence to further explain that because OSHA may consider 
the statute of limitations tolled for reasons warranted by applicable 
case law. OSHA may, for example, consider the time for filing a 
complaint equitably tolled if a complainant mistakenly files a 
complaint with another agency instead of OSHA within 180 days after 
becoming aware of the alleged violation.
    AAR asserted that complaints should be accepted only in writing, 
not orally as well. AAR argued that permitting oral complaints is not 
consistent with the regulations in AIR 21, which section 20109(d)(2) of 
FRSA requires the Secretary to follow in administering FRSA actions. 
AAR further argues that FRSA's use of the word ``filing'' in section 
20109(d)(1) contemplates a writing. According to AAR, requiring written 
complaints is better from a policy perspective because written 
complaints are clearer and less burdensome and inefficient for both 
OSHA and employers. ASLRRA similarly urged OSHA to require that all 
complaints must be in writing, for much the same reasons that AAR 
expressed. In addition, ASLRRA suggested that written complaints must 
include a statement of the acts and omissions, with pertinent dates, 
that are believed to have created the statutory violation.
    OSHA declines to adopt AAR's and ASLRRA's suggestion and will 
permit complaints to be made orally or in writing. Submission of a 
complaint in writing is not a statutory requirement of NTSSA, FRSA, or 
AIR 21. Cf. Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. 
Ct. 1325, 2011 WL 977061, at *2 (2011) (the statutory term ``filed any 
complaint'' in the Fair Labor Standards Act includes oral as well as 
written complaints). OSHA is generally updating its whistleblower 
procedures to allow oral complaints. Permitting oral complaints is 
consistent with decisions of the ARB permitting oral complaints. See, 
e.g., Roberts v. Rivas Env't Consultants, Inc., ARB No. 97-026, 1997 WL 
578330, at *3 n.6 (ARB 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 Comprehensive Environmental 
Response, Compensation, and Liability Act, 42 U.S.C. 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 (Office of 
Admin. App. Apr. 25, 1983) (adopting ALJ'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 Energy Reorganization Act of 1974, as 
amended, (ERA), 42 U.S.C. 5851, 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 Transportation 
Assistance Act of 1982, 49 U.S.C. 31105.
    OSHA notes that a complaint of retaliation filed with OSHA under 
NTSSA and FRSA is not a formal document and need not conform to the 
pleading standards for complaints filed in federal district court 
articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and 
Ashcroft v. Iqbal, 556 U.S. 662 (2009). See Sylvester v. Parexel Int'l, 
Inc., ARB No. 07-123, 2011 WL 2165854, at *9-10 (ARB May 26, 2011) 
(holding whistleblower complaints filed with OSHA under analogous 
provisions in the Sarbanes-Oxley Act need not conform to federal court 
pleading standards). Rather, the complaint filed with OSHA under this 
section simply alerts the agency to the existence of the alleged 
retaliation and the complainant's desire that the agency investigate 
the complaint. Upon the filing of a complaint with OSHA, OSHA is to 
determine whether ``the complaint, supplemented as appropriate by 
interviews of the complainant'' alleges ``the existence of facts and 
evidence to make a prima facie showing,'' 29 CFR 1982.104(e). As 
explained in section 1982.104(e), if the complaint, supplemented as 
appropriate, contains a prima facie allegation, and the respondent does 
not show clear and convincing evidence that it would have taken the 
same action in the absence of the alleged protected activity, OSHA 
conducts an investigation to determine whether there is reasonable 
cause to believe that retaliation has occurred. See 6 U.S.C. 
1142(c)(2)(B) (providing burdens of proof applicable to complaints 
under NTSSA); 49 U.S.C. 42121(b)(2)(B) (providing the burdens of proof 
applicable to complaints under FRSA).
    In the final rule, OSHA has deleted the phrase ``by an employer'' 
from paragraph (a) of this section in order to better reflect NTSSA's 
and FRSA's statutory provisions prohibiting retaliation by officers and 
employees as well as railroad carriers, public transportation agencies 
and those entities' contractors and subcontractors, and has made other 
minor changes as needed to clarify the provision without changing its 
meaning.

Section 1982.104 Investigation

    This section describes the procedures that apply to the 
investigation of complaints under NTSSA and FRSA. Paragraph (a) of this 
section outlines the procedures for notifying the parties and 
appropriate federal agencies of the complaint and notifying the 
respondent of its rights under these regulations. Paragraph (b) 
describes the procedures for the respondent to submit its response to 
the complaint. As explained below, paragraph (c) has been revised in 
response to the comments to state that OSHA will request that the 
parties provide each other with copies of their submissions to OSHA 
during the investigation and that, if a party does not provide such 
copies, OSHA will do so at a time permitting the other party an 
opportunity to respond to those submissions. Before providing such 
materials, OSHA will redact them in accordance with the Privacy Act of 
1974, 5 U.S.C. 552a, et seq., and other

[[Page 69122]]

applicable confidentiality laws. Paragraph (d) of this section 
discusses confidentiality of information provided during 
investigations.
    Paragraph (e) of this section sets forth NTSSA's and FRSA's 
statutory burdens of proof. FRSA adopts the burdens of proof provided 
under AIR 21, 49 U.S.C. 42121(b)(2), which are the same as those 
provided under NTSSA. Therefore, this paragraph generally conforms to 
the similar provision in the regulations implementing AIR 21.
    The statutes require that a complainant make an initial prima facie 
showing that a protected activity was ``a contributing factor'' in the 
adverse action alleged in the complaint, i.e., that the protected 
activity, alone or in combination with other factors, affected in some 
way the outcome of the employer's decision. The complainant will be 
considered to have met the required burden 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. The complainant's 
burden may be satisfied, for example, if he or she shows that the 
adverse action took place within a temporal proximity of the protected 
activity, or at the first opportunity available to the respondent, 
giving rise to the inference that it was a contributing factor in the 
adverse action. See, e.g., Porter v. Cal. Dep't of Corrs., 419 F.3d 
885, 895 (9th Cir. 2005) (years between the protected activity and the 
retaliatory actions did not defeat a finding of a causal connection 
where the defendant did not have the opportunity to retaliate until he 
was given responsibility for making personnel decisions).
    If the complainant does not make the required prima facie showing, 
the investigation must be discontinued and the complaint dismissed. See 
Trimmer v. U.S. Dep't of Labor, 174 F.3d 1098, 1101 (10th Cir. 1999) 
(noting that the burden-shifting framework of the Energy Reorganization 
Act of 1974 (ERA), which is the same as those under NTSSA and FRSA, 
serves a ``gatekeeping function'' that ``stem[s] frivolous 
complaints''). Even in cases where the complainant successfully makes a 
prima facie showing, the investigation must be discontinued if the 
employer demonstrates, by clear and convincing evidence, that it would 
have taken the same adverse action in the absence of the protected 
activity. Thus, OSHA must dismiss a complaint under NTSSA or FRSA and 
not investigate further if either: (1) The complainant fails to meet 
the prima facie showing that protected activity was a contributing 
factor in the alleged adverse action; or (2) the employer rebuts that 
showing by clear and convincing evidence that it would have taken the 
same adverse action absent the protected activity.
    Assuming that an investigation proceeds beyond the gatekeeping 
phase, the statute requires OSHA to determine whether there is 
reasonable cause to believe that protected activity was a contributing 
factor in the alleged adverse action. A contributing factor is ``any 
factor which, alone or in connection with other factors, tends to 
affect in any way the outcome of the decision.'' Araujo v. New Jersey 
Transit Rail Ops., Inc., 708 F.3d 152, 158 (3d Cir. 2013), quoting 
Marano v. Dep't of Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993) 
(internal quotation marks, emphasis and citation omitted) (discussing 
the Whistleblower Protection Act, 5 U.S.C. 1221(e)(1)). For protected 
activity to be 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 the complainant's protected activity. See 
Klopfenstein v. PCC Flow Techs. Holdings, Inc., ARB No. 04-149, 2006 WL 
3246904, at *13 (ARB May 31, 2006) (quoting Rachid v. Jack in the Box, 
Inc., 376 F.3d 305, 312 (5th Cir. 2004)) (discussing contributing 
factor test under the Sarbanes-Oxley Act whistleblower provision), 
aff'd sub nom. Klopfenstein v. Admin. Review Bd., U.S. Dep't of Labor, 
402 F. App'x 936, 2010 WL 4746668 (5th Cir. 2010).
    If OSHA finds reasonable cause to believe that the alleged 
protected activity was a contributing factor in the adverse action, 
OSHA may not order relief if the employer demonstrates by ``clear and 
convincing evidence'' that it would have taken the same action in the 
absence of the protected activity. See 6 U.S.C. 1142(c)(2)(B)(iv); 49 
U.S.C. 42121(b)(2)(B)(iv). The ``clear and convincing evidence'' 
standard is a higher burden of proof than a ``preponderance of the 
evidence'' standard. Clear and convincing evidence is evidence 
indicating that the thing to be proved is highly probable or reasonably 
certain. Clarke v. Navajo Express, ARB No. 09-114, 2011 WL 2614326, at 
*3 (ARB June 29, 2011); see also Araujo, 708 F.3d at 159.
    Paragraph (f) describes the procedures OSHA will follow prior to 
the issuance of findings and a preliminary order when OSHA has 
reasonable cause to believe that a violation has occurred and that 
preliminary reinstatement is warranted.
    NWC, GAP, AAR, and ASLRRA commented on the provisions in section 
1982.104. NWC suggested that the phrase ``other applicable 
confidentiality laws'' in 1982.104(c) be replaced with more specific 
language describing the confidentiality laws that might apply to a 
respondent's answer. NWC also suggested that OSHA provide a copy of the 
response to the complainant, and give the complainant an opportunity to 
respond. NWC noted that to conduct a full and fair investigation, OSHA 
needs to obtain the available, responsive information from both 
parties. If one party does not have the information submitted by the 
other, NWC explained, that party cannot help the investigation by 
providing available information to shed light on the matter.
    GAP commented that while it was pleased with the provisions in 
section 1982.104 providing copies of respondent's submissions to 
complainants and protecting witness confidentiality, it was concerned 
that the procedures under section 1982.104(f) ``disenfranchise[d] the 
victim, giving only one side of the dispute the chance to participate 
in the most significant step of the process'' and that ``[a]t a 
minimum, this procedural favoritism means there will not be an even 
playing field in the administrative hearing.'' GAP advocated removing 
section 1982.104(f).
    AAR commented that a complainant should not have access to a 
railroad carrier's confidential and/or privileged information, 
including internal business records, and investigative materials. 
According to AAR, it would be unfair for OSHA to provide such 
information to the complainant when a railroad carrier would be able to 
protect itself from the disclosure of such information in the context 
of litigation. AAR proposed that OSHA amend the language in 1982.104(c) 
to state that OSHA will not provide the complainant with any 
information the railroad carrier marks ``confidential,'' and that if 
OSHA disagrees with the railroad carrier's determination, OSHA will 
afford the railroad carrier an opportunity to justify its position 
before disclosure.
    AAR also proposed that OSHA should allow railroad carriers access 
to all of OSHA's interview notes, submissions, testimony, and other 
evidence (redacted if necessary). It also suggested that OSHA broaden 
the language in paragraph (f) to require OSHA to provide the employer 
with the

[[Page 69123]]

allegations and evidence relied upon by the complainant as OSHA 
processes a complaint, and that the employer should receive this 
information regardless of whether reinstatement is an issue. AAR argued 
that, overall, section 1982.104 puts the railroad carrier and the 
complainant on unequal footing, with the complainant having more timely 
access to information than the railroad carrier. AAR further noted that 
the comparable regulation under AIR 21, 29 CFR 1979.104(a), requires 
OSHA to provide the respondent ``the substance of the evidence 
supporting the complaint'' upon receipt of the complaint, rather than 
waiting until the Secretary believes preliminary reinstatement is 
warranted as in section 1982.104(f). According to AAR, providing the 
respondent with the evidence supporting the complaint at that late 
stage in the proceeding, as is contemplated by section 1982.104, is 
inconsistent with the statutory directive that AIR 21 procedures apply. 
AAR suggested that the respondent be provided with all of the evidence 
at the outset of a case, as well as throughout the course of a case.
    Lastly, ASLRRA expressed concern with the statement in section 
1982.104(e)(3) that a complainant may satisfy his prima facie showing 
requirement by showing that the adverse action took place shortly after 
the protected activity. According to ASLRRA, timing alone is 
insufficient to establish a prima face case of retaliation as timing is 
only one of many factors to consider. Further, according to ASLRRA, 
relying on timing is particularly problematic in a unionized workplace, 
where employers are contractually obligated to follow certain 
disciplinary procedures with short time limits.
    Regarding NWC's suggestion that OSHA provide more specific 
information about the confidentiality laws that may protect portions of 
the information submitted by a respondent and AAR's concern regarding 
protection of information that would not otherwise be discoverable, 
OSHA believes that the vast majority of respondent submissions will not 
be subject to any confidentiality laws. However, OSHA recognizes that, 
in addition to the Privacy Act, a variety of confidentiality provisions 
may protect information submitted during the course of an 
investigation. For example, a respondent may submit information that 
the respondent identifies as confidential commercial or financial 
information exempt from disclosure under the Freedom of Information Act 
(FOIA). OSHA's procedures for handling information identified as 
confidential during an investigation are explained in OSHA's 
Whistleblower Investigations Manual, available at: http://www.whistleblowers.gov/regulations_page.html. As the investigation 
manual illustrates, OSHA is cognizant of the protections available to 
employers and therefore believes there is no need to modify the 
regulatory text to ensure that employers' confidential information is 
protected.
    With regard to NWC and GAP's comments seeking more opportunities 
for the complainant to be involved in the investigation of the 
complainant's whistleblower complaint, OSHA agrees with NWC and GAP 
that the input of both parties in the investigation is important to 
ensuring that OSHA reaches the proper outcome during its investigation 
and has made two changes in response to these comments. Section 
1982.104(c) of the IFR provided that, throughout the investigation, the 
agency would provide the complainant (or the complainant's legal 
counsel if the complainant is represented by counsel) a copy of all of 
respondent's submissions to the agency that are responsive to the 
complainant's whistleblower complaint, redacted of confidential 
information as necessary. In response to the commenters, the final rule 
has been revised to state that OSHA will request that the parties 
provide each other with copies of their submissions to OSHA during the 
investigation and that, if a party does not provide such copies, OSHA 
will do so at a time permitting the other party an opportunity to 
respond to those submissions. Also, section 1982.104(f) provides that 
the complainant will receive a copy of the materials that must be 
provided to the respondent under that paragraph.
    With regard to GAP's comment that section 1982.104(f) should be 
removed and AAR's comment that this provision should be expanded to all 
cases regardless of whether reinstatement is at issue, OSHA notes that 
the purpose of 1982.104(f) is to ensure compliance with the Supreme 
Court's ruling in Brock v. Roadway Express, 481 U.S. 252, 264 (1987). 
In that decision, the Court upheld the facial constitutionality of the 
analogous provisions providing for preliminary reinstatement under 
STAA, 49 U.S.C. 31105, and the procedures adopted by OSHA to protect 
the respondent's rights under the Due Process Clause of the Fifth 
Amendment, but ruled that the record failed to show that OSHA 
investigators had informed the respondent of the substance of the 
evidence to support reinstatement of the discharged employee. In so 
finding, the Court noted that although a formal hearing was not 
required before OSHA ordered preliminary reinstatement ``minimum due 
process for the employer in this context requires notice of the 
employee's allegations, notice of the substance of the relevant 
supporting evidence, an opportunity to submit a written response, and 
an opportunity to meet with the investigator and present statements 
from rebuttal witnesses.'' Roadway Express, 481 U.S. at 264; see 
Bechtel v. Competitive Techs., Inc., 448 F.3d 469, 480-81 (Leval, J., 
concurring) (finding OSHA's preliminary reinstatement order under 
Sarbanes-Oxley unenforceable because the information provided to the 
respondent did not meet the requirements of Roadway Express). Thus, 
OSHA declines to remove the language providing the respondent notice 
and opportunity to respond under section 1982.104(f). Also, because in 
cases not involving preliminary reinstatement all of the remedies in 
the Secretary's preliminary order are stayed if the respondent files 
objections and requests a hearing, OSHA believes that the hearing 
procedures provided by these rules adequately protect respondents' due 
process rights in those cases. Expanding the application of section 
1982.104(f) to cases not involving preliminary reinstatement would 
significantly delay investigations of FRSA and NTSSA cases but would 
not ensure any additional due process rights for respondents.
    Also in response to AAR's comments regarding the information to be 
provided to respondents during the investigation, OSHA agrees, in part, 
with AAR's comments. NTSAA and FRSA, through its incorporation of AIR 
21's rules and procedures, both indicate that the Secretary, upon 
receipt of a complaint, shall notify the respondent not only of the 
filing of the complaint, but also of the allegations contained in the 
complaint and of the substance of the evidence supporting the 
complaint. See 6 U.S.C. 1142(c)(1); 49 U.S.C. 20109(d)(2)(A); 49 U.S.C. 
42121(b)(1). Accordingly, the Department has revised section 
1982.104(a) to reflect this statutory language and to be consistent 
with AIR 21's regulation at section 1979.104(a).
    Lastly, OSHA rejects ASLRRA's comment that 1982.104(e) should be 
revised to state that the timing of an adverse action alone is 
insufficient to establish a causal connection between the complainant's 
protected activity and the adverse action. At the gatekeeping phase, 
where OSHA is simply determining whether to conduct an investigation, 
the timing of the adverse

[[Page 69124]]

action may be sufficient to give rise to an inference that the 
protected activity was a contributing factor in the adverse action so 
that the investigation may proceed. See Taylor v. Wells Fargo Bank, ARB 
No. 05-062, 2007 WL 7143176, at *3 n.12 (ARB June 28, 2007) (temporal 
proximity may establish the causal connection component of the prima 
facie case under Sarbanes-Oxley); see also Bullington v. United Air 
Lines, Inc., 186 F.3d 1301, 1320 (10th Cir. 1999) (the causal 
connection necessary to show a prima facie case under Title VII or the 
ADEA may be inferred by protected conduct closely followed by adverse 
action); Davis v. Union Pacific R.R. Co., Civ. A. No. 5:12-CV-2738, 
2014 WL 3499228, at *9 (W.D. La. July 14, 2014) (finding temporal 
proximity between protected injury report and adverse action sufficient 
to create a genuine issue of material fact precluding summary judgment 
for railroad). This approach is consistent with the approach that OSHA 
has taken under other whistleblower statutes employing the same burdens 
of proof as FRSA and NTSSA. See, e.g., 29 CFR 1979.104(e) (AIR 21); 29 
CFR 1980.104(e) (Sarbanes-Oxley); Procedures for the Handling of 
Discrimination Complaints under Federal Employee Protection Statutes, 
63 FR 6614-01, 6618 (Feb. 9, 1998) (explaining that under ERA temporal 
proximity is normally sufficient to establish causation at the 
gatekeeping phase). OSHA believes that it would be overly restrictive 
to require a complainant to provide evidence of retaliation (as 
distinguished from a showing) when the only purpose is to trigger an 
investigation to determine whether there is reasonable cause to believe 
that retaliation has occurred. Complainants in many cases do not have 
the knowledge or the resources to submit ``evidence'' of retaliation 
other than temporal proximity at the outset of OSHA's investigation.
    In addition to the revisions noted above, minor changes were made 
as needed in this section to clarify the provision without changing its 
meaning.

Section 1982.105 Issuance of Findings and Preliminary Orders

    This section provides that, on the basis of information obtained in 
the investigation, the Assistant Secretary will issue, within 60 days 
of the filing of a complaint, written findings regarding whether or not 
there is reasonable cause to believe that the complaint has merit. If 
the findings are that there is reasonable cause to believe that the 
complaint has merit, the Assistant Secretary will order appropriate 
relief, including preliminary reinstatement and back pay with interest 
and compensatory damages. To reflect the statutory language of FRSA and 
NTSSA and the agency's current practice, OSHA modified paragraph (a)(1) 
in the final rule to mirror the remedies listed in the statutes, 
including adding ``interest'' to the description of compensation that 
can be included in the preliminary order.
    In ordering interest on back pay under FRSA and NTSSA, the 
Secretary has determined that interest due will be computed by 
compounding daily the Internal Revenue Service (IRS) interest rate for 
the underpayment of taxes which, under 26 U.S.C. 6621, is generally the 
Federal short-term rate plus three percentage points.
    In the Secretary's view, 26 U.S.C. 6621 provides the appropriate 
rate of interest to ensure that victims of unlawful retaliation under 
FRSA and NTSSA are made whole. The Secretary has long applied the 
interest rate in 26 U.S.C. 6621 to calculate interest on back pay in 
whistleblower cases. Doyle v. Hydro Nuclear Servs., ARB Nos. 99-041, 
99-042, 00-012, 2000 WL 694384, at * 14-15, 17 (ARB May 17, 2000); see 
also Cefalu v. Roadway Express, Inc., ARB No. 09-070, 2011 WL 1247212, 
at * 2 (ARB Mar. 17, 2011); Pollock v. Cont'l Express, ARB Nos. 07-073, 
08-051, 2010 WL 1776974, at * 8 (ARB Apr. 10, 2010); Murray v. Air 
Ride, Inc., ARB No. 00-045, slip op. at 9 (ARB Dec. 29, 2000). Section 
6621 provides the appropriate measure of compensation under NTSSA, FRSA 
and other DOL-administered whistleblower statutes because it ensures 
the complainant will be placed in the same position he or she would 
have been in if no unlawful retaliation occurred. See Ass't Sec'y v. 
Double R. Trucking, Inc., ARB Case No. 99-061, slip op. at 5 (ARB July 
16, 1999) (interest awards pursuant to Sec.  6621 are mandatory 
elements of complainant's make-whole remedy). Section 6621 provides a 
reasonably accurate prediction of market outcomes (which represents the 
loss of investment opportunity by the complainant and the employer's 
benefit from use of the withheld money) and thus provides the 
complainant with appropriate make-whole relief. See EEOC v. Erie Cnty., 
751 F.2d 79, 82 (2d Cir. 1984) (``[s]ince the goal of a suit under the 
[Fair Labor Standards Act] and the Equal Pay Act is to make whole the 
victims of the unlawful underpayment of wages, and since [Sec.  6621] 
has been adopted as a good indicator of the value of the use of money, 
it was well within'' the district court's discretion to calculate 
prejudgment interest under Sec.  6621); New Horizons for the Retarded, 
283 N.L.R.B. No. 181, 1987 WL 89652, at * 2 (May 28, 1987) (observing 
that ``the short-term Federal rate [used by Sec.  6621] is based on 
average market yields on marketable Federal obligations and is 
influenced by private economic market forces'').
    The Secretary also believes that daily compounding of interest 
achieves the make-whole purpose of a back pay award. Daily compounding 
of interest has become the norm in private lending and was found to be 
the most appropriate method of calculating interest on back pay by the 
National Labor Relations Board. See Jackson Hosp. Corp. v. United 
Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. 
Workers Int'l Union, 356 N.L.R.B. No. 8, 2010 WL 4318371, at * 3-4 
(Oct. 22, 2010). Additionally, interest on tax underpayments under the 
Internal Revenue Code, 26 U.S.C. 6621, is compounded daily pursuant to 
26 U.S.C. 6622(a). Thus, paragraph (a)(1) of this section now states 
that interest on back pay will be calculated using the interest rate 
applicable to underpayment of taxes under 26 U.S.C. 6621 and will be 
compounded daily.
    In ordering back pay, OSHA also will require the respondent to 
submit the appropriate documentation to the Railroad Retirement Board 
or the Social Security Administration, as appropriate, allocating the 
back pay to the appropriate months (for employees who may be entitled 
to benefits under the Railroad Retirement Act) or calendar quarters 
(for employees who may be entitled to Social Security benefits). 
Requiring the reporting of back pay allocation to the Railroad 
Retirement Board or Social Security Administration serves the remedial 
purposes of FRSA and NTSSA by ensuring that employees subjected to 
retaliation are truly made whole. See Don Chavas, LLC d/b/a Tortillas 
Don Chavas, 361 NLRB No. 10, 2014 WL 3897178, at * 4-5 (NLRB Aug. 8, 
2014). As the NLRB has explained, when back pay is not properly 
allocated to the years covered by the award, a complainant may be 
disadvantaged in several ways. First, improper allocation may interfere 
with a complainant's ability to qualify for any old-age Social Security 
benefit. Id. at * 4 (``Unless a [complainant's] multiyear backpay award 
is allocated to the appropriate years, she will not receive appropriate 
credit for the entire period covered by the award, and could therefore 
fail to qualify for any old-age social security benefit.''). Second, 
improper allocation may reduce the complainant's eventual monthly 
benefit. Id. As the NLRB

[[Page 69125]]

explained, ``if a backpay award covering a multi-year period is posted 
as income for 1 year, it may result in SSA treating the [complainant] 
as having received wages in that year in excess of the annual 
contribution and benefit base.'' Id. Wages above this base are not 
subject to Social Security taxes, which reduces the amount paid on the 
employee's behalf. ``As a result, the [complainant's] eventual monthly 
benefit will be reduced because participants receive a greater benefit 
when they have paid more into the system.'' Id. Finally, ``social 
security benefits are calculated using a progressive formula: Although 
a participant receives more in benefits when she pays more into the 
system, the rate of return diminishes at higher annual incomes.'' 
Therefore, a complainant may ``receive a smaller monthly benefit when a 
multiyear award is posted to 1 year rather than being allocated to the 
appropriate periods, even if social security taxes were paid on the 
entire amount.'' Id. The purpose of a make-whole remedy such as back 
pay is to put the complainant in the same position the complainant 
would have been absent the prohibited retaliation. That purpose is not 
achieved when the complainant suffers the disadvantages described 
above. Therefore, OSHA has revised section (a)(1) of this paragraph to 
state that a preliminary order containing an award of back pay will 
also require the respondent to submit documentation to the Railroad 
Retirement Board or Social Security Administration to properly allocate 
back pay to the appropriate months or calendar quarters.
    The findings and, where appropriate, preliminary order, advise the 
parties of their right to file objections to the findings of the 
Assistant Secretary and to request a hearing. The findings and, where 
appropriate, preliminary order, also advise the respondent of the right 
under NTSSA to request an award of attorney fees not exceeding $1,000 
from the ALJ, regardless of whether the respondent has filed 
objections, if the respondent alleges that the complaint was frivolous 
or brought in bad faith. If no objections are filed within 30 days of 
receipt of the findings, the findings and any preliminary order of the 
Assistant Secretary become the final findings and order of the 
Secretary. If objections are timely filed, any order of preliminary 
reinstatement will take effect, but the remaining provisions of the 
order will not take effect until administrative proceedings are 
completed.
    In appropriate circumstances, in lieu of preliminary reinstatement, 
OSHA may order that the complainant receive the same pay and benefits 
that he received prior to his termination, but not actually return to 
work. Such ``economic reinstatement'' frequently is employed in cases 
arising under Section 105(c) of the Federal Mine Safety and Health Act 
of 1977, which protects miners from retaliation (30 U.S.C. 815(c)). 
See, e.g., Sec'y of Labor on behalf of York v. BR&D Enters., Inc., 23 
FMSHRC 697, 2001 WL 1806020, at * 1 (ALJ June 26, 2001).
    AAR and ASLRRA commented on the language in the preamble regarding 
economic reinstatement and urged OSHA to delete any reference to 
economic reinstatement. ASLRRA argued that OSHA does not have the 
authority under FRSA to require this remedy because it is not discussed 
in the statute and reliance on the Federal Mine Safety and Health Act 
is insufficient. AAR similarly argued that section 20109(d) of FRSA 
specifies the exclusive remedies available, and economic reinstatement 
is not listed as one of those remedies. In addition, both ASLRRA and 
AAR maintained that it is unfair to order economic reinstatement given 
the fact that it may take many months before the preliminary order 
requiring economic reinstatement is fully adjudicated and reviewed and 
that the employer cannot recover the costs of economic reinstatement if 
the employer ultimately prevails. AAR asserted that the only instance 
in which economic reinstatement is appropriate is when the railroad 
carrier voluntarily agrees to such a remedy.
    OSHA declines to revise the rule in response to these comments. 
OSHA believes that it has the authority to order economic 
reinstatement. Economic reinstatement is akin to an order of front pay. 
Front pay has been recognized as a possible remedy under whistleblower 
statutes in limited circumstances where actual reinstatement would not 
be possible. See, e.g., Moder v. Vill. of Jackson, ARB Nos. 01-095, 02-
039, 2003 WL 21499864, at * 10 (ARB June 30, 2003) (under environmental 
whistleblower statutes, ``front pay may be an appropriate substitute 
when the parties prove the impossibility of a productive and amicable 
working relationship, or the company no longer has a position for which 
the complainant is qualified''); Hobby v. Georgia Power Co., ARB No. 
98-166, 2001 WL 168898, at * 6-10 (ARB Feb. 9, 2001), aff'd sub nom. 
Hobby v. U.S. Dep't of Labor, No. 01-10916 (11th Cir. Sept. 30, 2002) 
(unpublished) (noting circumstances where front pay may be available in 
lieu of reinstatement but ordering reinstatement); Michaud v. BSP 
Transp., Inc., ARB Nos. 97-113, 1997 WL 626849, at * 4 (ARB Oct. 9, 
1997) (under STAA, front pay appropriate where employee was unable to 
work due to major depression resulting from the retaliation); Doyle v. 
Hydro Nuclear Servs., ARB Nos. 99-041, 99-042, 00-012, 1996 WL 518592, 
at * 6 (ARB Sept. 6, 1996) (under ERA, front pay appropriate where 
employer had eliminated the employee's position); Brown v. Lockheed 
Martin Corp., ALJ No. 2008-SOX-49, 2010 WL 2054426, at * 55-56 (ALJ 
Jan. 15, 2010) (noting that while reinstatement is the ``presumptive 
remedy'' under Sarbanes-Oxley, front pay may be awarded as a substitute 
when reinstatement is inappropriate).
    However, OSHA emphasizes that Congress intended that employees be 
preliminarily reinstated to their positions if OSHA finds reasonable 
cause to believe that they were discharged in violation of NTSSA or 
FRSA. When a violation is found, the norm is for OSHA to order 
immediate preliminary reinstatement. Neither an employer nor an 
employee has a statutory right to choose economic reinstatement. 
Rather, economic reinstatement is designed to accommodate situations in 
which evidence establishes to OSHA's satisfaction that reinstatement is 
inadvisable for some reason, notwithstanding the employer's retaliatory 
discharge of the employee. In such situations, actual reinstatement 
might be delayed until after the administrative adjudication is 
completed as long as the employee continues to receive his or her pay 
and benefits and is not otherwise disadvantaged by a delay in 
reinstatement. There is no statutory basis for allowing the employer to 
recover the costs of economically reinstating an employee should the 
employer ultimately prevail in the whistleblower adjudication.
    Two commenters addressed OSHA's authority to order reinstatement 
under FRSA in situations in which the railroad carrier asserts that 
such reinstatement will endanger the public, its property, and/or other 
employees. ASLRRA suggested that OSHA include an exception to the 
requirement that an employee be preliminarily reinstated immediately 
when a party has filed objections to OSHA's findings and/or order for 
situations in which the railroad carrier establishes that the employee 
poses a direct threat to the health or safety of himself or others. As 
support for this suggestion, ASLRRA pointed to a similar provision in 
the regulations under AIR 21 in which a preliminary reinstatement order 
is not appropriate when the employer establishes that the employee is a

[[Page 69126]]

security risk, 29 CFR 1979.105(a)(1). Rail Labor suggested that OSHA 
respond to any arguments by railroad carriers that preliminary 
reinstatement is inappropriate when such reinstatement will endanger 
the public, the railroad carrier's property, or other employees by 
supplementing the regulatory language to state that the Assistant 
Secretary has sufficient discretion pursuant to section 1982.105 to 
balance the competing interests of the public, all employees, and the 
railroad carrier, and that the full range of remedies is available.
    OSHA does not believe that it is necessary to include such an 
exception in the regulation as ASLRRA suggested or to supplement the 
language in the regulation as Rail Labor suggested because such cases 
may be adequately determined based on applicable case law. Also, the 
ALJ and the ARB each have sufficient discretion to stay a reinstatement 
order for exceptional circumstances, which may include the types of 
situations discussed by ASLRRA. See 1982.106(b); 1982.110(b).
    AAR commented on the reference to ``abatement'' in section 
1982.105(a)(1), and suggested that abatement under FRSA should be 
limited to relief for the individual employee. AAR asserted that, while 
section 20109 incorporates AIR 21's rules and procedures and AIR 21 
provides for abatement as a remedy, 49 U.S.C. 42121(b)(3)(B)(i), 
section 20109 of FRSA contains its own remedy provision, 49 U.S.C. 
20109(e), and nothing in section 20109(e) provides for abatement orders 
directed at an employer's practices and procedures. As an initial 
matter, OSHA notes that this comment addresses FRSA only. NTSSA, like 
AIR 21, explicitly permits the Secretary to order the respondent to 
``take affirmative action to abate the violation.'' 6 U.S.C. 
1142(c)(3)(B)(i).
    As AAR notes, FRSA contains its own remedies provision, apart from 
AIR 21's remedies provision. FRSA prescribes remedies to make the 
employee whole, 49 U.S.C. 20109(e), notwithstanding FRSA's 
incorporation of the ``rules and procedures'' of AIR 21, 49 U.S.C. 
20109(d)(2)(A). OSHA believes that injunctive relief to abate a 
violation of a specific employee's rights can be an important element 
of making the employee whole. Such relief could include, for example, 
an order requiring a railroad carrier to expunge certain records from 
an employee's personnel file or an order requiring that a particular 
company policy not be applied to an employee where application of the 
policy would penalize the employee for having engaged in protected 
activity. The posting of a notice to employees regarding the resolution 
of a whistleblower complaint can be important to remedying the 
reputational harm an employee has suffered as a result of retaliation. 
In some instances, an order to provide training to managers or notice 
to employees regarding the rights protected by the statute at issue can 
assist in making the employee whole by ensuring that the circumstances 
that led to retaliation do not persist, thus remedying the employee's 
fear of future retaliation for having engaged in the protected activity 
that gave rise to employee's whistleblower complaint. Therefore, while 
OSHA is cognizant of the textual differences between NTSSA and FRSA, it 
has made no change in response to this comment to the text of 1982.105, 
which permits an order of abatement where appropriate.
    In addition to the revisions noted above, which clarify the 
provision of interest on back pay awards and the allocation of back pay 
to the appropriate calendar quarters or months, minor changes were made 
as needed to clarify the provision without changing its meaning.

Subpart B--Litigation

Section 1982.106 Objections to the Findings and the Preliminary Order 
and Requests for a Hearing

    To be effective, objections to the findings of the Assistant 
Secretary must be in writing and must be filed with the Chief 
Administrative Law Judge, U.S. Department of Labor, Washington, DC 
20001 within 30 days of receipt of the findings. The date of the 
postmark, facsimile transmittal, or electronic communication 
transmittal is considered the date of the filing; if the objection is 
filed in person, by hand-delivery or other means, the objection is 
filed upon receipt. The filing of objections is considered a request 
for a hearing before an ALJ. Although the parties are directed to serve 
a copy of their objections on the other parties of record, as well as 
the OSHA official who issued the findings and order, the Assistant 
Secretary, and the U.S. Department of Labor's Associate Solicitor for 
Fair Labor Standards, the failure to serve copies of the objections on 
the other parties of record does not affect the ALJ's jurisdiction to 
hear and decide the merits of the case. See Shirani v. Calvert Cliffs 
Nuclear Power Plant, Inc., ARB No. 04-101, 2005 WL 2865915, at * 7 (ARB 
Oct. 31, 2005).
    The timely filing of objections stays all provisions of the 
preliminary order, except for the portion requiring reinstatement. A 
respondent may file a motion to stay OSHA's preliminary order of 
reinstatement with the Office of Administrative Law Judges. However, 
such a motion will be granted only based on exceptional circumstances. 
Language was added to paragraph (b) of this section to make this point 
clear. A stay of the Assistant Secretary's preliminary order of 
reinstatement under FRSA or NTSSA would be appropriate only where the 
respondent can establish the necessary criteria for equitable 
injunctive relief, i.e., irreparable injury, likelihood of success on 
the merits, a balancing of possible harms to the parties, and the 
public interest favors a stay. See Bailey v. Consol. Rail Corp., ARB 
Nos. 13-030 13-033, 2013 WL 1385563, at * 2 (ARB Mar. 27, 2013) 
(discussing the factors for obtaining a stay of reinstatement under 
FRSA). If no timely objection to OSHA's findings and/or preliminary 
order is filed, then OSHA's findings and/or preliminary order become 
the final decision of the Secretary not subject to judicial review.
    No comments were received on this section. The term ``electronic 
communication transmittal'' was substituted for ``email communication'' 
and other minor changes were made as needed to clarify the provision 
without changing its meaning.

Section 1982.107 Hearings

    This section adopts the rules of practice and procedure for 
administrative hearings before the Office of Administrative Law Judges 
at 29 CFR part 18 subpart A. It specifically provides for hearings to 
be consolidated where both the complainant and respondent object to the 
findings and/or order of the Assistant Secretary. This section further 
provides that the hearing is to commence expeditiously, except upon a 
showing of good cause or unless otherwise agreed to by the parties. 
Hearings will be conducted de novo, on the record.
    In a revision from the interim final rule, paragraph (b) now notes 
the broad authority of ALJs to limit discovery in order to expedite the 
hearing. This change was made for consistency with OSHA's rules under 
other whistleblower statutes, which similarly note that the ALJ has 
broad authority to limit discovery. See, e.g., 29 CFR 1979.107 (AIR 
21); 29 CFR 1980.107 (Sarbanes-Oxley). As with other whistleblower 
statutes administered by OSHA, FRSA, and NTSSA dictate that hearings 
``shall be conducted expeditiously'' and allow complainants to seek de 
novo review of the complaint in federal court if the Secretary has not 
issued a final decision within 210 days

[[Page 69127]]

after the filing of the complaint. See 6 U.S.C. 1142(c)(7) and 49 
U.S.C. 20109(d)(3). The ALJ's broad discretion to limit discovery, for 
example by limiting the number of interrogatories, requests for 
production of documents, or depositions allowed, furthers Congress's 
intent to provide for expeditious hearings under FRSA and NTSSA.
    Finally, this section has been revised to add paragraph (d), which 
specifies that the formal rules of evidence will not apply to 
proceedings before an ALJ under section 1982.107, but rules or 
principles designed to assure the production of the most probative 
evidence will be applied. The Department has taken the same approach 
under the other whistleblower statutes administered by OSHA. See, e.g., 
29 CFR 1979.107 (AIR 21); 29 CFR 1980.107 (Sarbanes-Oxley). This 
approach is also consistent with the Administrative Procedure Act, 
which provides at 5 U.S.C. 556(d): ``Any oral or documentary evidence 
may be received, but the agency as a matter of policy shall provide for 
the exclusion of irrelevant, immaterial, or unduly repetitious 
evidence.'' See also Federal Trade Comm'n v. Cement Inst., 333 U.S. 
683, 805-06 (1948) (administrative agencies not restricted by rigid 
rules of evidence). The Secretary believes that it is inappropriate to 
apply the rules of evidence at 29 CFR part 18 subpart B because 
whistleblowers often appear pro se and may be disadvantaged by strict 
adherence to formal rules of evidence. Furthermore, hearsay evidence is 
often appropriate in whistleblower cases, as there often are no 
relevant documents or witnesses other than hearsay to prove retaliation 
ALJs have the responsibility to determine the appropriate weight to be 
given such evidence. For these reasons, the interests of determining 
all of the relevant facts are best served by not requiring strict 
evidentiary rules.
    No comments were received on this section, but, as explained above, 
this section was revised to specify that the formal rules of evidence 
will not apply to proceedings before an ALJ under this section.

Section 1982.108 Role of Federal Agencies

    The Assistant Secretary, at his or her discretion, may participate 
as a party or amicus curiae at any time in the administrative 
proceedings under NTSSA or FRSA. 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 OSHA anticipates that ordinarily the Assistant Secretary will 
not participate, the Assistant Secretary may choose to do so in 
appropriate cases, such as cases involving important or novel legal 
issues, large numbers of employees, alleged violations which appear 
egregious, or where the interests of justice might require 
participation by the Assistant Secretary. The Department of 
Transportation or the Department of Homeland Security, at each agency's 
discretion, also may participate as amicus curiae at any time in the 
proceedings. No comments were received on this section; however, it has 
been revised to specify that parties need only send documents to OSHA 
and the Department of Labor's Associate Solicitor for Fair Labor 
Standards when OSHA requests that documents be sent, OSHA is 
participating in the proceeding, or service on OSHA is otherwise 
required by these rules. Other minor changes were made as needed to 
clarify this provision without changing its meaning.

Section 1982.109 Decision and Orders of the Administrative Law Judge

    This section sets forth the requirements for the content of the 
decision and order of the ALJ, and includes the standard for finding a 
violation under NTSSA or FRSA. Paragraphs (a) and (b) set forth the 
burdens of proof that apply to claims under NTSSA and FRSA. 
Specifically, the complainant must demonstrate (i.e. prove by a 
preponderance of the evidence) that the protected activity was a 
``contributing factor'' in the adverse action. See, e.g., Allen v. 
Admin. Review Bd., 514 F.3d 468, 475 n.1 (5th Cir. 2008) (``The term 
`demonstrates' [under identical burden-shifting scheme in the Sarbanes-
Oxley whistleblower provision] means to prove by a preponderance of the 
evidence.''). If the employee demonstrates that the alleged protected 
activity was a contributing factor in the adverse action, the employer, 
to escape liability, must demonstrate by ``clear and convincing 
evidence'' that it would have taken the same action in the absence of 
the protected activity. See 6 U.S.C. 1142(c)(2)(B)(iv); 49 U.S.C. 
42121(b)(2)(B)(iv). 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 
1982.104 is not subject to review. Thus, paragraph (c) of section 
1982.109 clarifies that the Assistant Secretary's determinations on 
whether to proceed with an investigation under NTSSA or FRSA and 
whether to make particular investigative findings under either 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. A full 
discussion of the burdens of proof used by the Department to resolve 
whistleblower cases under this part is set forth above in the 
discussion of section 1982.104.
    Paragraph (d) notes the remedies that the ALJ may order under NTSSA 
or FRSA and, as discussed under section 1982.105 above, provides that 
interest on back pay will be calculated using the interest rate 
applicable to underpayment of taxes under 26 U.S.C. 6621 and will be 
compounded daily. Paragraph (d) has also been revised to provide that 
the respondent will be required to submit appropriate documentation to 
the Social Security Administration or the Railroad Retirement Board, as 
appropriate, allocating any back pay award to the appropriate calendar 
quarters or months.
    Paragraph (e) requires that the ALJ's decision be served on all 
parties to the proceeding, the Assistant Secretary, and the U.S. 
Department of Labor's Associate Solicitor for Fair Labor Standards. 
Paragraph (e) also provides that any ALJ decision requiring 
reinstatement or lifting an order of reinstatement by the Assistant 
Secretary will be effective immediately upon receipt of the decision by 
the respondent. All other portions of the ALJ's order will be effective 
14 days after the date of the decision unless a timely petition for 
review has been filed with the Administrative Review Board.
    OSHA has revised the period for filing a timely petition for review 
with the ARB to 14 days rather than 10 business days. With this change, 
the final rule expresses the time for a petition for review in a way 
that is consistent with the other deadlines for filings before the ALJs 
and the ARB in the rule, which are also expressed in days rather than 
business days. This change also makes the final rule congruent with the 
2009 amendments to Rule 6(a) of the Federal Rules of Civil Procedure 
and Rule 26(a) of the Federal Rules of Appellate Procedure, which 
govern computation of time before those tribunals and express filing 
deadlines as days rather

[[Page 69128]]

than business days. Accordingly, the ALJ's order will become the final 
order of the Secretary 14 days after the date of the decision, rather 
than after 10 business days, unless a timely petition for review is 
filed. As a practical matter, this revision does not substantively 
alter the window of time for filing a petition for review before the 
ALJ's order becomes final.
    AAR urged OSHA to include in this section a provision permitting an 
ALJ in a FRSA case to award the employer up to $1,000 in reasonable 
attorney fees if the ALJ determines that the complaint was frivolous or 
brought in bad faith. AAR pointed out that FRSA requires that AIR 21 
rules and procedures be used in FRSA actions, and that the AIR 21 
statute and regulations provide for attorney fees in such 
circumstances. See 49 U.S.C. 20109(d)(2)(A); 49 U.S.C. 42121(b)(3)(C); 
29 CFR 1979.109(b). OSHA does not believe that such a provision is 
warranted under FRSA. FRSA incorporates only the rules and procedures 
of AIR 21. It does not incorporate the attorney-fee provision from AIR 
21. See Vason v. Port Auth. Trans Hudson, ALJ No. 2010-FRS-00038, at 3-
4 (ALJ Dec. 20, 2010) (concluding that AIR 21's attorney fee provision 
for cases that are frivolous or brought in bad faith is not a ``rule'' 
or ``procedure'' and therefore FRSA's incorporation of AIR 21's rules 
and procedures does not incorporate AIR 21's attorney fee provision).
    Modifications were made to this section to match the language 
regarding remedies in 1982.105(a)(1). The statement that the decision 
of the ALJ will become the final order of the Secretary unless a 
petition for review is timely filed with the ARB and the ARB accepts 
the petition for review was deleted from section 1982.110(a) and moved 
to paragraph (e) of this section. Additional minor changes were made to 
clarify this provision without changing its meaning.

Section 1982.110 Decision and Orders of the Administrative Review Board

    Upon the issuance of the ALJ's decision, the parties have 14 days 
within which to petition the ARB for review of that decision. If no 
timely petition for review is filed with the ARB, the decision of the 
ALJ becomes the final decision of the Secretary and is not subject to 
judicial review. The date of the postmark, facsimile transmittal, or 
electronic communication transmittal is considered to be the date of 
filing of the petition; if the petition is filed in person, by hand-
delivery or other means, the petition is considered filed upon receipt.
    The appeal provisions in this part provide that an appeal to the 
ARB is not a matter of right but is accepted at the discretion of the 
ARB. The parties should identify in their petitions for review the 
legal conclusions or orders to which they object, or the objections may 
be deemed waived. The ARB has 30 days to decide whether to grant the 
petition for review. If the ARB does not grant the petition, the 
decision of the ALJ becomes the final decision of the Secretary. If a 
timely petition for review is filed with the ARB, any relief ordered by 
the ALJ, except for that portion ordering reinstatement, is inoperative 
while the matter is pending before the ARB. When the ARB accepts a 
petition for review, the ALJ's factual determinations will be reviewed 
under the substantial evidence standard. In order to be consistent with 
the practices and procedures followed in OSHA's other whistleblower 
programs, and to provide further clarification of the regulatory text, 
OSHA has modified the language of section 1982.110(c) to clarify when 
the ALJ proceedings conclude and when the final decision of the ARB 
will be issued.
    This section also provides that, based on exceptional 
circumstances, the ARB may grant a motion to stay an ALJ's preliminary 
order of reinstatement under NTSSA or FRSA, which otherwise would be 
effective, while review is conducted by the ARB. A stay of an ALJ's 
preliminary order of reinstatement under NTSSA or FRSA would be 
appropriate only where the respondent can establish the necessary 
criteria for equitable injunctive relief, i.e., irreparable injury, 
likelihood of success on the merits, a balancing of possible harms to 
the parties, and the public interest favors a stay. See Bailey, 2013 WL 
1385563, at * 2 (discussing the factors for obtaining a stay of 
reinstatement under FRSA).
    If the ARB concludes that the respondent has violated the law, it 
will order the remedies listed in paragraph (d). Interest on back pay 
will be calculated using the interest rate applicable to underpayment 
of taxes under 26 U.S.C. 6621 and will be compounded daily. If the ARB 
determines that the respondent has not violated the law, an order will 
be issued denying the complaint. In addition, when back pay is ordered, 
the respondent will be required to submit appropriate documentation to 
the Social Security Administration or the Railroad Retirement Board, as 
appropriate, allocating any back pay award to the appropriate months or 
calendar quarters. If, upon the request of the respondent, the ARB 
determines that a complaint filed under NTSSA was frivolous or was 
brought in bad faith, the ARB may award to the respondent reasonable 
attorney fees, not exceeding $1,000.
    With regard to section 1982.110(a), NWC urged deletion of the 
provision in the interim final rule that ``[a]ny exception not 
specifically urged will ordinarily be deemed waived by the parties.'' 
NWC commented that parties should be allowed to add additional grounds 
for review in subsequent briefs and that allowing parties to do so 
would further the goal of deciding cases on the merits. In response, 
OSHA notes that its inclusion of this provision is not intended to 
limit the circumstances in which parties can add additional grounds for 
review as a case progresses before the ARB; rather, the rules include 
this provision to put the public on notice of the possible consequences 
of failing to specify the basis of an appeal to the ARB. OSHA 
recognizes that while the ARB has held in some instances that an 
exception not specifically urged may be deemed waived, the ARB also has 
found that the rules provide for exceptions to this general rule. See, 
e.g., Furland v. American Airlines, Inc., ARB Nos. 09-102, 10-130, 2011 
WL 3413364, at * 10, n.5 (ARB July 27, 2011) (where complainant 
consistently made an argument throughout the administrative proceedings 
the argument was not waived simply because it appeared in complainant's 
reply brief to the ARB rather than in the petition for review); Avlon 
v. American Express Co., ARB No. 09-089, 2011 WL 4915756, at * 4, * 5, 
n.1 (ARB Sept. 14, 2011) (consideration of an argument not specifically 
raised in complainant's petition for review is within the authority of 
the ARB, and parallel provisions in the Sarbanes-Oxley Act 
whistleblower regulations do not mandate the ARB limit its review to 
ALJ conclusions assigned as error in the petition for review). However, 
recognizing that the interim final rule may have suggested too 
stringent a standard, OSHA has replaced the phrase ``ordinarily will'' 
with ``may.'' NWC also suggested that the review period be extended 
from ten to thirty days to make this section parallel to the provision 
in 1982.105(c), which allows for thirty days within which to file an 
objection. OSHA declines to extend the review period to 30 days because 
a shorter review period is consistent with the practices and procedures 
followed in OSHA's other whistleblower programs. Furthermore, parties 
may file a motion

[[Page 69129]]

for extension of time to appeal an ALJ's decision, and the ARB has 
discretion to grant such extensions. However, as explained above, OSHA 
has revised the period to petition for review of an ALJ decision to 14 
days rather than 10 business days. As a practical matter, this revision 
does not substantively alter the window of time for filing a petition 
for review before the ALJ's order becomes final.
    Similarly, section 1982.110(c), which provides that the ARB will 
issue a final decision within 120 days of the conclusion of the ALJ 
hearing, was similarly revised to state that the conclusion of the ALJ 
hearing will be deemed to be 14 days after the date of the decision of 
the ALJ, rather than after 10 business days, unless a motion for 
reconsideration has been filed with the ALJ in the interim. Like the 
revision to section 1982.110(a), this revision does not substantively 
alter the length of time before the ALJ hearing will be deemed to have 
been concluded.
    In addition to the changes noted above, OSHA moved the statement in 
paragraph (a) that if no timely petition for review is filed with the 
ARB, the decision of the ALJ becomes the final decision of the 
Secretary and is not subject to judicial review to section 1982.109(e) 
for clarity. Modifications were made paragraph (d) of this section to 
match the language regarding remedies in section 1982.105(a)(1). 
Lastly, OSHA has revised this section slightly to clarify that interest 
on back pay awards will be compounded daily and to make several minor 
changes to clarify the provision and more closely mirror the language 
used in the statutes.

Subpart C--Miscellaneous Provisions

Section 1982.111 Withdrawal of Complaints, Findings, Objections, and 
Petitions for Review; Settlement

    This section provides for the procedures and time periods for 
withdrawal of complaints, the withdrawal of findings and/or preliminary 
orders by the Assistant Secretary, and the withdrawal of objections to 
findings and/or orders. It also provides for approval of settlements at 
the investigative and adjudicative stages of the case.
    AAR and Rail Labor both submitted comments relating to settlements. 
AAR stated that OSHA should not be overly involved in settlements as 
such involvement could frustrate the parties' ability to reach 
settlements. In addition, AAR noted that an employee often files a 
collective bargaining or statutory claim, such as a FELA claim, 
simultaneously with a FRSA claim. According to AAR, a settlement may 
resolve all of the employee's claims. OSHA has jurisdiction only over 
the FRSA claim and therefore cannot review the aspects of the 
settlement that do not involve the FRSA claim. Rail Labor similarly 
commented that it is possible that an employee may pursue multiple 
claims simultaneously. Rail Labor suggested modifying the language in 
section 1982.111(d) to clarify how a settlement will affect other 
pending cases and other parties involved in a particular case.
    While OSHA recognizes that, in whistleblower cases generally, an 
employee may have more than one cause of action against the employer, 
OSHA does not believe that any change in the procedures for handling 
whistleblower complaints is necessary to accommodate this possibility. 
NTSSA and FRSA both provide that, at any time before the issuance of a 
final order of the Secretary, a proceeding before the agency may be 
terminated on the basis of a settlement ``entered into'' by the 
Secretary, the complainant, and the respondent. 6 U.S.C. 1142(c)(3)(A); 
49 U.S.C. 20109(d)(2)(A); 49 U.S.C. 42121(b)(3)(A). The procedures for 
submission of settlements to the agency under section 1982.111 
implement these statutory requirements to ensure that settlements of 
whistleblower claims under NTSSA and FRSA are fair, adequate, and 
reasonable, in the public interest, and that the employee's consent was 
knowing and voluntary.
    The final rule adopts a revision to section 1982.111(a) that 
permits complainants to withdraw their complaints orally. In such 
circumstances, OSHA will, in writing, confirm a complainant's desire to 
withdraw. This revision will reduce burdens on complainants who no 
longer want to pursue their claims. Other minor changes were made as 
needed to clarify the provision without changing its meaning.

Section 1982.112 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 ALJ or the ARB to submit the record of 
proceedings to the appropriate court pursuant to the rules of such 
court. This section also states that a final order is not subject to 
judicial review in any criminal or other civil proceeding. NTSSA 
explicitly provides that ``[a]n order of the Secretary of Labor with 
respect to which review could have been obtained [in the court of 
appeals] shall not be subject to judicial review in any criminal or 
other civil proceeding.'' 6 U.S.C. 1142(c)(4)(B). In addition, the 
Secretary interprets FRSA as also prohibiting collateral attack on a 
final order of the Secretary. This interpretation is consistent with 
well-established case law that, where ``a direct-review statute 
specifically gives the court of appeals subject-matter jurisdiction to 
directly review agency action[,]'' district courts do not have federal 
question jurisdiction. Watts v. Securities and Exchange Comm'n, 482 
F.3d 501, 505 (D.C. Cir. 2007); see Thunder Basin Coal Co. v. Reich, 
510 U.S. 200, 208 (1994) (district court did not have jurisdiction over 
an action by mine operators challenging an administrative order because 
the statute only expressly authorized district court jurisdiction in 
actions by the Secretary and provided for judicial review in the court 
of appeals); Sturm, Ruger & Co. v. Chao, 300 F.3d 867, 873 (D.C. Cir. 
2002) (dismissing action claiming that Secretary lacked statutory 
authority to conduct a survey because the action was not one of those 
over which district courts had jurisdiction under the statute and 
statute provided for judicial review of agency action in the court of 
appeals); Griffith v. Fed. Labor Relations Auth., 842 F.2d 487, 491 
(D.C. Cir. 1988) (district court did not have jurisdiction because, 
while the statute explicitly authorized district court review of some 
types of actions, it did not authorize review of the particular action 
at issue and judicial review was available in the court of appeals). No 
comments were received on this section. However, minor changes have 
been made to clarify it.

Section 1982.113 Judicial Enforcement

    This section describes the Secretary's authority under NTSSA and 
FRSA to obtain judicial enforcement of orders and the terms of a 
settlement agreement.
    FRSA expressly authorizes district courts to enforce orders, 
including preliminary orders of reinstatement, issued by the Secretary 
under 49 U.S.C. 20109(d)(2)(A) (adopting the rules and procedures set 
forth in AIR 21, 49 U.S.C. 42121(b)). 49 U.S.C. 20109(d)(2)(A)(iii) 
(``If a person fails to comply with an order issued by the Secretary of 
Labor pursuant to the procedures in section 42121(b), the Secretary of 
Labor may bring a civil action to enforce the order in the district 
court of the United States for the judicial district in which the 
violation occurred, as set forth in 42121.''). FRSA permits the 
Secretary to bring an action to obtain such enforcement. 49 U.S.C. 
20109(d)(2)(A)(iii). However, there is no provision in FRSA permitting 
the

[[Page 69130]]

person on whose behalf the order was issued to bring such an action.
    NTSSA gives district courts authority to enforce orders, including 
preliminary reinstatement orders, issued by the Secretary. 
Specifically, reinstatement orders issued under subsection (c)(3) are 
immediately enforceable in district court under 6 U.S.C. 1142(c)(5) and 
(6). Subsections (c)(3)(B)(ii) and (d)(2)(A) provide that the Secretary 
shall order the person who has committed a violation to reinstate the 
complainant to his or her former position. Subsection (c)(2)(A) 
instructs the Secretary to accompany any reasonable cause finding that 
a violation occurred with a preliminary order containing the relief 
prescribed by subsection (c)(3)(B), which includes reinstatement. 6 
U.S.C. 1142(c)(3)(B)(ii) and (d)(2)(A). Subsection (c)(2)(A) also 
declares that the subsection (c)(3)(B)'s relief of reinstatement 
contained in a preliminary order is not stayed upon the filing of 
objections. 6 U.S.C. 1142(c)(2)(A) (``The filing of such objections 
shall not operate to stay any reinstatement remedy contained in the 
preliminary order.'') Thus, under the statute, enforceable orders 
issued under subsection (c)(3)(B) include preliminary orders that 
contain the relief of reinstatement prescribed by subsection (c)(3)(B) 
and (d)(2)(A). This statutory interpretation of FRSA and NTSSA is 
consistent with the Secretary's interpretation of similar language in 
AIR 21 and Sarbanes-Oxley. See Brief for the Secretary of Labor, Solis 
v. Union Pacific R.R. Co., No. 4:12-cv-00304 BLW (D. Id. 2012); Brief 
for the Intervenor/Plaintiff-Appellee Secretary of Labor, Solis v. 
Tenn. Commerce Bancorp, Inc., No. 10-5602 (6th Cir. 2010); Solis v. 
Tenn. Commerce Bancorp, Inc., 713 F. Supp. 2d 701 (M.D. Tenn. 2010); 
but see Bechtel v. Competitive Techs., Inc., 448 F.3d 469 (2d Cir. 
2006); Solis v. Union Pacific R.R. Co., No. 4:12-cv-00304 BLW, 2013 WL 
440707 (D. Id. Jan. 11, 2013); Welch v. Cardinal Bankshares Corp., 454 
F. Supp. 2d 552 (W.D. Va. 2006) (decision vacated, appeal dismissed, 
No. 06-2995 (4th Cir. Feb. 20, 2008)). NTSSA also permits the person on 
whose behalf the order was issued under NTSSA to obtain judicial 
enforcement of orders and the terms of a settlement agreement.
    Rail Labor commented on this provision (it labeled its comment as 
related to section 1982.112, which addresses judicial review, but it is 
clear from the substance of the comment that it is related to section 
1982.113, which addresses judicial enforcement). Rail Labor disagreed 
with the statement in the proposal that, under FRSA, the person on 
whose behalf an order was issued cannot bring an action to enforce such 
order (only the Secretary can). However, if OSHA's interpretation is 
correct, Rail Labor expressed concern that the language in section 
1982.113 gives unrestricted discretion to OSHA to enforce an order. 
Therefore, Rail Labor suggested that this section should be modified to 
clarify that the Secretary will, in all but the most extraordinary 
circumstances, enforce an order.
    OSHA declines to change this section as suggested. FRSA provides 
that the Secretary may bring an action to enforce an order, such as a 
preliminary reinstatement order. FRSA also states that an order of 
preliminary reinstatement will not be stayed during the administrative 
proceedings, making clear that preliminary reinstatement is the 
presumptive remedy for retaliation. OSHA does not believe any further 
explanation of the circumstances in which the Secretary will seek 
enforcement of an order, such as a preliminary reinstatement order, is 
necessary in these rules.
    OSHA has made two changes to this section that are not intended to 
have substantive effects. First, OSHA has revised this section to more 
closely parallel the differing provisions of NTSSA and FRSA regarding 
the proper venue for enforcement actions. Second, the list of remedies 
that formerly appeared in this section has been moved to section 
1982.114. This revision does not reflect a change in the Secretary's 
views regarding the remedies that are available under NTSSA and FRSA in 
an action to enforce an order of the Secretary. The revision has been 
made to better parallel the statutory structure of NTSSA and FRSA which 
both contemplate enforcement of a Secretary's order and specify the 
remedies that are available in an action for de novo review of a 
retaliation complaint in district court.

Section 1982.114 District Court Jurisdiction of Retaliation Complaints

    This section sets forth NTSSA's and FRSA's respective provisions 
allowing a complainant to bring an original de novo action in district 
court, alleging the same allegations contained in the complaint filed 
with OSHA, if there has been no final decision of the Secretary within 
210 days of the filing of the complaint and there is no delay due to 
the complainant's bad faith.
    In the Secretary's view, the right to seek de novo review in 
district court under these provisions terminates when the Secretary 
issues a final decision, even if the date of the final decision is more 
than 210 days after the filing of the complaint. The purpose of these 
``kick-out'' provisions 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, as previously discussed with regard to Sec.  1982.112 
above, permitting the complainant to file a new case in district court 
in such circumstances would be a collateral attack on the Secretary's 
final order and, as such, is inconsistent with the provisions providing 
parties the right to seek judicial review of the Secretary's final 
decision in the court of appeals.
    OSHA has revised paragraph (a) of this section to incorporate the 
statutory provision allowing a jury trial at the request of either 
party in a district court action under NTSSA and FRSA. OSHA also has 
added paragraph (b) to specify the burdens of proof applicable to 
``kick out'' actions under this section and the statutory remedies 
available in those actions. For both NTSSA and FRSA complaints, the 
same burdens of proof that apply in proceedings before the ALJ, as 
outlined in section 1982.109, apply to ``kick out'' actions. See 6 
U.S.C. 1142(c)(7); Araujo, 708 F.3d at 157-58 (holding that the burdens 
of proof in 49 U.S.C. 42121 apply to ``kick out'' actions under FRSA). 
Paragraph (b) also notes the remedies available to an employee who 
prevails in an action in district court, which are the same under NTSSA 
and FRSA. Both NTSSA and FRSA provide that an employee who prevails in 
an action in district court shall be entitled to all relief necessary 
to make the employee whole and that remedies shall include 
reinstatement with the same seniority status that the employee would 
have had, but for the retaliation, any back pay with interest, and 
payment of compensatory damages, including compensation for any special 
damages sustained as a result of the retaliation, including litigation 
costs, expert witness fees, and reasonable attorney fees. The relief 
for an employee who prevails in an action in district court under NTSSA 
or FRSA may also include punitive damages in an amount not to exceed 
$250,000. See 6 U.S.C. 1142 (d); 49 U.S.C. 20109(e).
    In paragraph (c) of this section, OSHA eliminated the requirement 
in the interim final rule that complainants provide the agency 15 days 
advance notice before filing a de novo complaint in district court. 
Instead, this section now provides that within seven days after filing 
a complaint in district court, a complainant must provide a file-
stamped copy of the complaint to the Assistant Secretary, the ALJ, or 
the ARB,

[[Page 69131]]

depending on where the proceeding is pending. In all cases a copy of 
the district court complaint also must be provided to the Regional 
Administrator, the Assistant Secretary, Occupational Safety and Health 
Administration, and the U.S. Department of Labor's Associate Solicitor 
for Fair Labor Standards. This provision is necessary to notify the 
agency that the complainant has opted to file a complaint in district 
court. This provision is not a substitute for the complainant's 
compliance with the requirements for service of process of the district 
court complaint contained in the Federal Rules of Civil Procedure and 
the local rules of the district court where the complaint is filed.
    This change responds to NWC's comment that the 15-day advance 
notice requirement for filing a suit in district court should be 
eliminated because it inhibits complainants' access to federal courts. 
OSHA believes that a provision for notifying the agency of the district 
court complaint is necessary to avoid unnecessary expenditure of agency 
resources once a complainant has decided to remove the complaint to 
federal district court. OSHA believes that the revised provision 
adequately balances the complainant's interest in ready access to 
federal court and the agency's interest in receiving prompt notice that 
the complainant no longer wishes to continue with the administrative 
proceeding. Other minor changes were made as needed to clarify the 
provision without changing its meaning.

Section 1982.115 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 NTSSA or FRSA requires.
    Rail Labor commented that the waiver provision raises due process 
concerns and should therefore be deleted. According to Rail Labor, any 
waiver works to the disadvantage of one party and the advantage of the 
other party, and it creates a drain on limited agency resources.
    OSHA believes that, because these procedural rules cannot cover 
every conceivable contingency, there may be occasions where certain 
exceptions to the rules are necessary. OSHA notes that a similar 
section appears in the regulations for handling complaints under the 
whistleblower provisions of AIR 21 and Sarbanes-Oxley and that both the 
ALJs and the ARB have relied upon the rule on occasion. See, e.g., 
Haefling v. United Parcel Serv., ALJ No. 98-STA-6 (ALJ Mar. 23, 1998); 
Caimano v. Brink's Inc., ARB No 97-041, 1997 WL 24368 (ARB Jan 22, 
1997). Thus, OSHA has made no changes to this section.

IV. Paperwork Reduction Act

    This rule contains a reporting provision (filing a retaliation 
complaint, section 1982.103) which was previously reviewed and approved 
for use by the Office of Management and Budget (OMB) under the 
provisions of the Paperwork Reduction Act of 1995, (Pub. L. 104-13). 
The assigned OMB control number is 1218-0236.

V. Administrative Procedure Act

    The notice and comment rulemaking procedures of section 553 of the 
Administrative Procedure Act (APA) do not apply ``to interpretative 
rules, general statements of policy, or rules of agency organization, 
procedure, or practice.'' (5 U.S.C. 553(b)(A)). This is a rule of 
agency procedure, practice and interpretation within the meaning of 
that section. Therefore, publication in the Federal Register of a 
notice of proposed rulemaking and request for comments were not 
required for these regulations, which provide the procedures for the 
handling of retaliation complaints and set forth the Secretary's 
interpretations on certain statutory issues. The Assistant Secretary, 
however, sought and considered comments to enable the agency to improve 
the rules by taking into account the concerns of interested persons.
    Furthermore, because this rule is procedural and interpretative 
rather than substantive, the normal requirement of 5 U.S.C. 553(d) that 
a rule be effective 30 days after publication in the Federal Register 
is inapplicable. The Assistant Secretary also finds good cause to 
provide an immediate effective date for this final rule. It is in the 
public interest that the rule be effective immediately so that parties 
may know what procedures are applicable to pending cases.

VI. Executive Orders 12866 and 13563; Unfunded Mandates Reform Act of 
1995; Executive Order 13132

    The Department has concluded that this rule is not a ``significant 
regulatory action'' within the meaning of Executive Order 12866, 
reaffirmed by Executive Order 13563, because it is not likely to: (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 economic impact analysis under Section 6(a)(3)(C) 
of Executive Order 12866 has been prepared. For the same reason, and 
because no notice of proposed rulemaking has been published, no 
statement is required under Section 202 of the Unfunded Mandates Reform 
Act of 1995, 2 U.S.C. 1532. In any event, this rulemaking is procedural 
and interpretive in nature and is thus not expected to have a 
significant economic impact. Finally, this rule does not have 
``federalism implications.'' The rule does not have ``substantial 
direct effects on the States, on the relationship 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 notice and comment rulemaking procedures of Section 553 of the 
APA do not apply ``to interpretative rules, general statements of 
policy, or rules of agency organization, procedure, or practice.'' 5 
U.S.C. 553(b)(A). Rules that are exempt from APA notice and comment 
requirements are also exempt from the Regulatory Flexibility Act (RFA). 
See SBA Office of Advocacy, A Guide for Government Agencies: How to 
Comply with the Regulatory Flexibility Act, at 9; also found at https://www.sba.gov/advocacy/guide-government-agencies-how-comply-regulatory-flexibility-act. This is a rule of agency procedure, practice, and 
interpretation within the meaning of 5 U.S.C. 553; and therefore the 
rule is exempt from both the notice and comment rulemaking procedures 
of the APA and the requirements under the RFA.
    Document Preparation: This document was prepared under the 
direction and control of the Assistant Secretary, Occupational Safety 
and Health Administration, U.S. Department of Labor.

[[Page 69132]]

List of Subjects in 29 CFR Part 1982

    Administrative practice and procedure, Employment, Homeland 
security, Investigations, Mass transportation, Reporting and 
recordkeeping requirements, Public transportation, Railroads, Safety, 
Transportation, Whistleblowing.

Authority and Signature

    This document was prepared under the direction and control of David 
Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational 
Safety and Health.

    Signed at Washington, DC, on October 28, 2015.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.

    Accordingly, for the reasons set out in the preamble, 29 CFR part 
1982 is revised to read as follows:

PART 1982--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS 
UNDER THE NATIONAL TRANSIT SYSTEMS SECURITY ACT AND THE FEDERAL 
RAILROAD SAFETY ACT

Subpart A--Complaints, Investigations, Findings and Preliminary Orders
Sec.
1982.100 Purpose and scope.
1982.101 Definitions.
1982.102 Obligations and prohibited acts.
1982.103 Filing of retaliation complaints.
1982.104 Investigation.
1982.105 Issuance of findings and preliminary orders.
Subpart B--Litigation
1982.106 Objections to the findings and the preliminary order and 
requests for a hearing.
1982.107 Hearings.
1982.108 Role of Federal agencies.
1982.109 Decision and orders of the administrative law judge.
1982.110 Decision and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
1982.111 Withdrawal of complaints, findings, objections, and 
petitions for review; settlement.
1982.112 Judicial review.
1982.113 Judicial enforcement.
1982.114 District court jurisdiction of retaliation complaints.
1982.115 Special circumstances; waiver of rules.

    Authority:  6 U.S.C. 1142 and 49 U.S.C. 20109; Secretary of 
Labor's Order 01-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012); 
Secretary of Labor's Order No. 2-2012 (Oct. 19, 2012), 77 FR 69378 
(Nov. 16, 2012).

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


Sec.  1982.100  Purpose and scope.

    (a) This part implements procedures of the National Transit Systems 
Security Act (NTSSA), 6 U.S.C. 1142, and the Federal Railroad Safety 
Act (FRSA), 49 U.S.C. 20109, as amended. NTSSA provides for employee 
protection from retaliation because the employee has engaged in 
protected activity pertaining to public transportation safety or 
security (or, in circumstances covered by the statute, the employee is 
perceived to have engaged or to be about to engage in protected 
activity). FRSA provides for employee protection from retaliation 
because the employee has engaged in protected activity pertaining to 
railroad safety or security (or, in circumstances covered by the 
statute, the employee is perceived to have engaged or to be about to 
engage in protected activity), has requested medical or first aid 
treatment, or has followed orders or a treatment plan of a treating 
physician. It also protects an employee against delay, denial or 
interference with first aid or medical treatment for a workplace 
injury.
    (b) This part establishes procedures under NTSSA and FRSA for the 
expeditious handling of retaliation complaints filed by employees, or 
by persons acting on their behalf, and sets forth the Secretary's 
interpretations of NTSSA and FRSA on certain statutory issues. These 
rules, together with those codified at 29 CFR part 18, set forth the 
procedures under NTSSA or FRSA for submission of complaints, 
investigations, issuance of findings and preliminary orders, objections 
to findings and orders, litigation before administrative law judges, 
post-hearing administrative review, and withdrawals and settlements.


Sec.  1982.101  Definitions.

    As used in this part:
    (a) 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 NTSSA or FRSA.
    (b) Business days means days other than Saturdays, Sundays, and 
Federal holidays.
    (c) Complainant means the employee who filed a NTSSA or FRSA 
complaint or on whose behalf a complaint was filed.
    (d) Employee means an individual presently or formerly working for, 
an individual applying to work for, or an individual whose employment 
could be affected by a public transportation agency or a railroad 
carrier, or a contractor or subcontractor of a public transportation 
agency or a railroad carrier.
    (e) FRSA means Section 1521 of the Implementing Recommendations of 
the 9/11 Commission Act of 2007, Public Law 110-053, August 3, 2007, as 
further amended by Public Law 110-432, October, 16, 2008, codified at 
49 U.S.C. 20109.
    (f) NTSSA means Section 1413 of the Implementing Recommendations of 
the 9/11 Commission Act of 2007, Public Law 110-053, August 3, 2007, 
codified at 6 U.S.C. 1142.
    (g) OSHA means the Occupational Safety and Health Administration of 
the United States Department of Labor.
    (h) Public transportation means regular, continuing shared-ride 
surface transportation services that are open to the general public or 
open to a segment of the general public defined by age, disability, or 
low income; and does not include: Intercity passenger rail 
transportation provided by the entity described in chapter 243 (or a 
successor to such entity); intercity bus service; charter bus service; 
school bus service; sightseeing service; courtesy shuttle service for 
patrons of one or more specific establishments; or intra-terminal or 
intra-facility shuttle services.
    (i) Public transportation agency means a publicly owned operator of 
public transportation eligible to receive federal assistance under 49 
U.S.C. chapter 53.
    (j) Railroad means any form of nonhighway ground transportation 
that runs on rails or electromagnetic guideways, including commuter or 
other short-haul railroad passenger service in a metropolitan or 
suburban area and commuter railroad service that was operated by the 
Consolidated Rail Corporation on January 1, 1979; and high speed ground 
transportation systems that connect metropolitan areas, without regard 
to whether those systems use new technologies not associated with 
traditional railroads; but does not include rapid transit operations in 
an urban area that are not connected to the general railroad system of 
transportation.
    (k) Railroad carrier means a person providing railroad 
transportation, except that, upon petition by a group of commonly 
controlled railroad carriers that the Secretary of Transportation 
determines is operating within the United States as a single, 
integrated rail system, the Secretary of Transportation may by order 
treat the group of railroad carriers as a single railroad carrier for

[[Page 69133]]

purposes of one or more provisions of part A, subtitle V of title 49 
and implementing regulations and order, subject to any appropriate 
conditions that the Secretary of Transportation may impose.
    (l) Respondent means the person alleged to have violated NTSSA or 
FRSA.
    (m) Secretary means the Secretary of Labor or person to whom 
authority under NTSSA or FRSA has been delegated.
    (n) Any future statutory amendments that affect the definition of a 
term or terms listed in this section will apply in lieu of the 
definition stated herein.


Sec.  1982.102  Obligations and prohibited acts.

    (a) National Transit Systems Security Act. (1) A public 
transportation agency, contractor, or subcontractor of such agency, or 
officer or employee of such agency, shall not discharge, demote, 
suspend, reprimand, or in any other way retaliate against, including 
but not limited to intimidating, threatening, restraining, coercing, 
blacklisting, or disciplining, an employee if such retaliation is due, 
in whole or in part, to the employee's lawful, good faith act done, or 
perceived by the employer to have been done or about to be done--
    (i) To provide information, directly cause information to be 
provided, or otherwise directly assist in any investigation regarding 
any conduct which the employee reasonably believes constitutes a 
violation of any Federal law, rule, or regulation relating to public 
transportation safety or security, or fraud, waste, or abuse of Federal 
grants or other public funds intended to be used for public 
transportation safety or security, if the information or assistance is 
provided to or an investigation stemming from the provided information 
is conducted by--
    (A) A Federal, State or local regulatory or law enforcement agency 
(including an office of the Inspector General under the Inspector 
General Act of 1978 (5 U.S.C. App.; Pub. L. 95-452));
    (B) Any Member of Congress, any Committee of Congress, or the 
Government Accountability Office; or
    (C) A person with supervisory authority over the employee or such 
other person who has the authority to investigate, discover, or 
terminate the misconduct;
    (ii) To refuse to violate or assist in the violation of any Federal 
law, rule, or regulation relating to public transportation safety or 
security;
    (iii) To file a complaint or directly cause to be brought a 
proceeding related to the enforcement of this section or to testify in 
that proceeding;
    (iv) To cooperate with a safety or security investigation by the 
Secretary of Transportation, the Secretary of Homeland Security, or the 
National Transportation Safety Board; or
    (v) To furnish information to the Secretary of Transportation, the 
Secretary of Homeland Security, the National Transportation Safety 
Board, or any Federal, State, or local regulatory or law enforcement 
agency as to the facts relating to any accident or incident resulting 
in injury or death to an individual or damage to property occurring in 
connection with public transportation.
    (2)(i) A public transportation agency, contractor, or subcontractor 
of such agency, or officer or employee of such agency, shall not 
discharge, demote, suspend, reprimand, or in any other way retaliate 
against, including but not limited to intimidating, threatening, 
restraining, coercing, blacklisting, or disciplining, an employee for--
    (A) Reporting a hazardous safety or security condition;
    (B) Refusing to work when confronted by a hazardous safety or 
security condition related to the performance of the employee's duties, 
if the conditions described in paragraph (a)(2)(ii) of this section 
exist; or
    (C) Refusing to authorize the use of any safety- or security-
related equipment, track, or structures, if the employee is responsible 
for the inspection or repair of the equipment, track, or structures, 
when the employee believes that the equipment, track, or structures are 
in a hazardous safety or security condition, if the conditions 
described in paragraph (a)(2)(ii) of this section exist.
    (ii) A refusal is protected under paragraph (a)(2)(i)(B) and (C) of 
this section if--
    (A) The refusal is made in good faith and no reasonable alternative 
to the refusal is available to the employee;
    (B) A reasonable individual in the circumstances then confronting 
the employee would conclude that--
    (1) The hazardous condition presents an imminent danger of death or 
serious injury; and
    (2) The urgency of the situation does not allow sufficient time to 
eliminate the danger without such refusal; and
    (C) The employee, where possible, has notified the public 
transportation agency of the existence of the hazardous condition and 
the intention not to perform further work, or not to authorize the use 
of the hazardous equipment, track, or structures, unless the condition 
is corrected immediately or the equipment, track, or structures are 
repaired properly or replaced.
    (iii) In this paragraph (a)(2), only paragraph (a)(2)(i)(A) shall 
apply to security personnel, including transit police, employed or 
utilized by a public transportation agency to protect riders, 
equipment, assets, or facilities.
    (b) Federal Railroad Safety Act. (1) A railroad carrier engaged in 
interstate or foreign commerce, a contractor or a subcontractor of such 
a railroad carrier, or an officer or employee of such a railroad 
carrier, may not discharge, demote, suspend, reprimand, or in any other 
way retaliate against, including but not limited to intimidating, 
threatening, restraining, coercing, blacklisting, or disciplining, an 
employee if such retaliation is due, in whole or in part, to the 
employee's lawful, good faith act done, or perceived by the employer to 
have been done or about to be done--
    (i) To provide information, directly cause information to be 
provided, or otherwise directly assist in any investigation regarding 
any conduct which the employee reasonably believes constitutes a 
violation of any Federal law, rule, or regulation relating to railroad 
safety or security, or gross fraud, waste, or abuse of Federal grants 
or other public funds intended to be used for railroad safety or 
security, if the information or assistance is provided to or an 
investigation stemming from the provided information is conducted by--
    (A) A Federal, State, or local regulatory or law enforcement agency 
(including an office of the Inspector General under the Inspector 
General Act of 1978 (5 U.S.C. App.; Public Law 95-452));
    (B) Any Member of Congress, any committee of Congress, or the 
Government Accountability Office; or
    (C) A person with supervisory authority over the employee or such 
other person who has the authority to investigate, discover, or 
terminate the misconduct;
    (ii) To refuse to violate or assist in the violation of any Federal 
law, rule, or regulation relating to railroad safety or security;
    (iii) To file a complaint, or directly cause to be brought a 
proceeding related to the enforcement of 49 U.S.C. part A of subtitle V 
or, as applicable to railroad safety or security, 49 U.S.C. chapter 51 
or 57, or to testify in that proceeding;
    (iv) To notify, or attempt to notify, the railroad carrier or the 
Secretary of Transportation of a work-related personal injury or work-
related illness of an employee;
    (v) To cooperate with a safety or security investigation by the 
Secretary

[[Page 69134]]

of Transportation, the Secretary of Homeland Security, or the National 
Transportation Safety Board;
    (vi) To furnish information to the Secretary of Transportation, the 
Secretary of Homeland Security, the National Transportation Safety 
Board, or any Federal, State, or local regulatory or law enforcement 
agency as to the facts relating to any accident or incident resulting 
in injury or death to an individual or damage to property occurring in 
connection with railroad transportation; or
    (vii) To accurately report hours on duty pursuant to 49 U.S.C. 
chapter 211.
    (2)(i) A railroad carrier engaged in interstate or foreign 
commerce, or an officer or employee of such a railroad carrier, shall 
not discharge, demote, suspend, reprimand, or in any other way 
retaliate against, including but not limited to intimidating, 
threatening, restraining, coercing, blacklisting, or disciplining, an 
employee for--
    (A) Reporting, in good faith, a hazardous safety or security 
condition;
    (B) Refusing to work when confronted by a hazardous safety or 
security condition related to the performance of the employee's duties, 
if the conditions described in paragraph (b)(2)(ii) of this section 
exist; or
    (C) Refusing to authorize the use of any safety-related equipment, 
track, or structures, if the employee is responsible for the inspection 
or repair of the equipment, track, or structures, when the employee 
believes that the equipment, track, or structures are in a hazardous 
safety or security condition, if the conditions described in paragraph 
(b)(2)(ii) of this section exist.
    (ii) A refusal is protected under paragraph (b)(2)(i)(B) and (C) of 
this section if--
    (A) The refusal is made in good faith and no reasonable alternative 
to the refusal is available to the employee;
    (B) A reasonable individual in the circumstances then confronting 
the employee would conclude that--
    (1) The hazardous condition presents an imminent danger of death or 
serious injury; and
    (2) The urgency of the situation does not allow sufficient time to 
eliminate the danger without such refusal; and
    (C) The employee, where possible, has notified the railroad carrier 
of the existence of the hazardous condition and the intention not to 
perform further work, or not to authorize the use of the hazardous 
equipment, track, or structures, unless the condition is corrected 
immediately or the equipment, track, or structures are repaired 
properly or replaced.
    (iii) In this paragraph (b)(2), only paragraph (b)(2)(i)(A) shall 
apply to security personnel employed by a railroad carrier to protect 
individuals and property transported by railroad.
    (3) A railroad carrier or person covered under this section may 
not:
    (i) Deny, delay, or interfere with the medical or first aid 
treatment of an employee who is injured during the course of 
employment. If transportation to a hospital is requested by an employee 
injured during the course of employment, the railroad shall promptly 
arrange to have the injured employee transported to the nearest 
hospital where the employee can receive safe and appropriate medical 
care.
    (ii) Discipline, or threaten discipline to, an employee for 
requesting medical or first aid treatment, or for following orders or a 
treatment plan of a treating physician, except that--
    (A) A railroad carrier's refusal to permit an employee to return to 
work following medical treatment shall not be considered a violation of 
FRSA if the refusal is pursuant to Federal Railroad Administration 
medical standards for fitness of duty or, if there are no pertinent 
Federal Railroad Administration standards, a carrier's medical 
standards for fitness for duty.
    (B) For purposes of this paragraph, the term ``discipline'' means 
to bring charges against a person in a disciplinary proceeding, 
suspend, terminate, place on probation, or make note of reprimand on an 
employee's record.


Sec.  1982.103  Filing of retaliation complaints.

    (a) Who may file. An employee who believes that he or she has been 
retaliated against in violation of NTSSA or FRSA 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 the complainant is unable to file the 
complaint in English, OSHA will accept the complaint in any language.
    (c) Place of filing. The complaint should be filed with the OSHA 
office responsible for enforcement activities in the geographical area 
where the employee resides or was employed, but may be filed with any 
OSHA officer or employee. Addresses and telephone numbers for these 
officials are set forth in local directories and at the following 
Internet address: http://www.osha.gov.
    (d) Time for Filing. Within 180 days after an alleged violation of 
NTSSA or FRSA occurs, any employee who believes that he or she has been 
retaliated against in violation of NTSSA or FRSA may file, or have 
filed by any person on the employee's behalf, a complaint alleging such 
retaliation. The date of the postmark, facsimile transmittal, 
electronic communication transmittal, telephone call, hand-delivery, 
delivery to a 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. 
For example, OSHA may consider the time for filing a complaint 
equitably tolled if a complainant mistakenly files a complaint with 
another agency instead of OSHA within 180 days after becoming aware of 
the alleged violation.


Sec.  1982.104  Investigation.

    (a) Upon receipt of a complaint in the investigating office, OSHA 
will notify the respondent of the filing of the complaint, of the 
allegations contained in the complaint, and of the substance of the 
evidence supporting the complaint. Such materials will be redacted, if 
necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and 
other applicable confidentiality laws. OSHA will also notify the 
respondent of its rights under paragraphs (b) and (f) of this section 
and Sec.  1982.110(e). OSHA will provide an unredacted copy of these 
same materials to the complainant (or the complainant's legal counsel 
if complainant is represented by counsel), and to the Federal Railroad 
Administration, the Federal Transit Administration, or the 
Transportation Security Administration as appropriate.
    (b) Within 20 days of receipt of the notice of the filing of the 
complaint provided under paragraph (a) of this section, the respondent 
may submit to OSHA a written statement and any affidavits or documents 
substantiating its position. Within the same 20 days, the respondent 
may request a meeting with OSHA to present its position.
    (c) During the investigation, OSHA will request that each party 
provide the other parties to the whistleblower complaint with a copy of 
submissions to OSHA that are pertinent to the whistleblower complaint. 
Alternatively, if a party does not provide its submissions to OSHA to 
the other party, OSHA will provide them to the other party (or the 
party's legal counsel if the party is represented by counsel) at a time 
permitting the other party an opportunity to respond. Before providing 
such materials to the other party, OSHA will redact them, if

[[Page 69135]]

necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and 
other applicable confidentiality laws. OSHA will also provide each 
party with an opportunity to respond to the other party's submissions.
    (d) Investigations will be conducted in a manner that protects the 
confidentiality of any person who provides information on a 
confidential basis, other than the complainant, in accordance with part 
70 of this title.
    (e)(1) A complaint will be dismissed unless the complainant has 
made a prima facie showing that protected activity was a contributing 
factor in the adverse action alleged in the complaint.
    (2) The complaint, supplemented as appropriate by interviews of the 
complainant, must allege the existence of facts and evidence to make a 
prima facie showing as follows:
    (i) The employee engaged in a protected activity (or, in 
circumstances covered by NTSSA and FRSA, was perceived to have engaged 
or to be about to engage in protected activity);
    (ii) The respondent knew or suspected that the employee engaged in 
the protected activity (or, in circumstances covered by NTSSA and FRSA, 
perceived the employee to have engaged or to be about to engage in 
protected activity);
    (iii) The employee suffered an adverse action; and
    (iv) The circumstances were sufficient to raise the inference that 
the protected activity (or perception thereof) 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 (or, in circumstances covered by 
NTSSA and FRSA, perceived the employee to have engaged or to be about 
to engage in protected activity), and that the protected activity (or 
perception thereof) was a contributing factor in the adverse action. 
The burden may be satisfied, for example, if the complaint shows that 
the adverse action took place shortly after the protected activity, or 
at the first opportunity available to the respondent, 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, further investigation of 
the complaint will not be conducted if the respondent demonstrates by 
clear and convincing evidence that it would have taken the same adverse 
action in the absence of the complainant's protected activity.
    (5) If the respondent fails to make a timely response or fails to 
satisfy the burden set forth in the prior paragraph, OSHA will proceed 
with the investigation. The investigation will proceed whenever it is 
necessary or appropriate to confirm or verify the information provided 
by the respondent.
    (f) Prior to the issuance of findings and a preliminary order as 
provided for in Sec.  1982.105, if OSHA has reasonable cause, on the 
basis of information gathered under the procedures of this part, to 
believe that the respondent has violated NTSSA or FRSA and that 
preliminary reinstatement is warranted, OSHA will contact the 
respondent (or the respondent's legal counsel if respondent is 
represented by counsel) to give notice of the substance of the relevant 
evidence supporting the complainant's allegations as developed during 
the course of the investigation. This evidence includes any witness 
statements, which will be redacted to protect the identity of 
confidential informants where statements were given in confidence; if 
the statements cannot be redacted without revealing the identity of 
confidential informants, summaries of their contents will be provided. 
The complainant will also receive a copy of the materials that must be 
provided to the respondent under this paragraph. Before providing such 
materials, OSHA will redact them, if necessary, consistent with the 
Privacy Act of 1974, 5 U.S.C. 552a, and other applicable 
confidentiality laws. The respondent will be given the opportunity to 
submit a written response, to meet with the investigators, to present 
statements from witnesses in support of its position, and to present 
legal and factual arguments. The respondent must present this evidence 
within 10 business days of OSHA's notification pursuant to this 
paragraph, or as soon afterwards as OSHA and the respondent can agree, 
if the interests of justice so require.


Sec.  1982.105  Issuance of findings and preliminary orders.

    (a) After considering all the relevant information collected during 
the investigation, the Assistant Secretary will issue, within 60 days 
of filing of the complaint, written findings as to whether or not there 
is reasonable cause to believe that the respondent has retaliated 
against the complainant in violation of NTSSA or FRSA.
    (1) If the Assistant Secretary concludes that there is reasonable 
cause to believe that a violation has occurred, the Assistant Secretary 
will accompany the findings with a preliminary order providing relief 
to the complainant. The preliminary order will include, where 
appropriate: Affirmative action to abate the violation; reinstatement 
with the same seniority status that the employee would have had, but 
for the retaliation; any back pay with interest; and payment of 
compensatory damages, including compensation for any special damages 
sustained as a result of the retaliation, including litigation costs, 
expert witness fees, and reasonable attorney fees. Interest on back pay 
will be calculated using the interest rate applicable to underpayment 
of taxes under 26 U.S.C. 6621 and will be compounded daily. The 
preliminary order will also require the respondent to submit 
documentation to the Social Security Administration or the Railroad 
Retirement Board, as appropriate, allocating any back pay award to the 
appropriate months or calendar quarters. The preliminary order may also 
require the respondent to pay punitive damages up to $250,000.
    (2) If the Assistant Secretary concludes that a violation has not 
occurred, the Assistant Secretary will notify the parties of that 
finding.
    (b) The findings and, where appropriate, the preliminary order will 
be sent by certified mail, return receipt requested, to all parties of 
record (and each party's legal counsel if the party is represented by 
counsel). The findings and, where appropriate, the preliminary order 
will inform the parties of the right to object to the findings and/or 
order and to request a hearing, and of the right of the respondent 
under NTSSA to request award of attorney fees not exceeding $1,000 from 
the administrative law judge (ALJ) regardless of whether the respondent 
has filed objections, if the respondent alleges that the complaint was 
frivolous or brought in bad faith. The findings and, where appropriate, 
the preliminary order also will give the address of the Chief 
Administrative Law Judge, U.S. Department of Labor. At the same time, 
the Assistant Secretary will file with the Chief Administrative Law 
Judge a copy of the original complaint and a copy of the findings and/
or order.
    (c) The findings and any preliminary order will be effective 30 
days after

[[Page 69136]]

receipt by the respondent (or the respondent's legal counsel if the 
respondent is represented by counsel), or on the compliance date set 
forth in the preliminary order, whichever is later, unless an objection 
and/or a request for a hearing has been timely filed as provided at 
Sec.  1982.106. However, the portion of any preliminary order requiring 
reinstatement will be effective immediately upon the respondent's 
receipt of the findings and of the preliminary order, regardless of any 
objections to the findings and/or the order.

Subpart B--Litigation


Sec.  1982.106  Objections to the findings and the preliminary order 
and requests for a hearing.

    (a) Any party who desires review, including judicial review, of the 
findings and preliminary order, or a respondent alleging that the 
complaint was frivolous or brought in bad faith who seeks an award of 
attorney fees under NTSSA, must file any objections and/or a request 
for a hearing on the record within 30 days of receipt of the findings 
and preliminary order pursuant to Sec.  1982.105. The objections, 
request for a hearing, and/or request for attorney fees must be in 
writing and state whether the objections are to the findings, the 
preliminary order, and/or whether there should be an award of attorney 
fees. The date of the postmark, facsimile transmittal, or electronic 
communication transmittal is considered the date of filing; if the 
objection is filed in person, by 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, 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 
preliminary order will be stayed, except for the portion requiring 
preliminary reinstatement, which will not be automatically stayed. The 
portion of the preliminary order requiring reinstatement will be 
effective immediately upon the respondent's receipt of the findings and 
preliminary order, regardless of any objections to the order. The 
respondent may file a motion with the Office of Administrative Law 
Judges for a stay of the Assistant Secretary's preliminary order of 
reinstatement, which shall be granted only based on exceptional 
circumstances. If no timely objection is filed with respect to either 
the findings and/or the preliminary order, the findings or preliminary 
order will become the final decision of the Secretary, not subject to 
judicial review.


Sec.  1982.107  Hearings.

    (a) Except as provided in this part, proceedings will be conducted 
in accordance with the rules of practice and procedure for 
administrative hearings before the Office of Administrative Law Judges, 
codified at subpart A of part 18 of this title.
    (b) Upon receipt of an objection and request for hearing, the Chief 
Administrative Law Judge will promptly assign the case to an ALJ who 
will notify the parties, by certified mail, of the day, time, and place 
of hearing. The hearing is to commence expeditiously, except upon a 
showing of good cause or unless otherwise agreed to by the parties. 
Hearings will be conducted de novo on the record. Administrative Law 
Judges have broad discretion to limit discovery in order to expedite 
the hearing.
    (c) If both the complainant and the respondent object to the 
findings and/or order, the objections will be consolidated and a single 
hearing will be conducted.
    (d) Formal rules of evidence will not apply, but rules or 
principles designed to assure production of the most probative evidence 
will be applied. The ALJ may exclude evidence that is immaterial, 
irrelevant, or unduly repetitious.


Sec.  1982.108  Role of Federal agencies.

    (a)(1) The complainant and the respondent will be parties in every 
proceeding and must be served with copies of all documents in the case. 
At the Assistant Secretary's discretion, the Assistant Secretary may 
participate as a party or as amicus curiae at any time at any stage of 
the proceeding. This right to participate includes, but is not limited 
to, the right to petition for review of a decision of an ALJ, including 
a decision approving or rejecting a settlement agreement between the 
complainant and the respondent.
    (2) Parties must send copies of documents to OSHA and to the 
Associate Solicitor, Division of Fair Labor Standards, U.S. Department 
of Labor, only upon request of OSHA, or when OSHA is participating in 
the proceeding, or when service on OSHA and the Associate Solicitor is 
otherwise required by these rules.
    (b) The Department of Homeland Security or the Department of 
Transportation, if interested in a proceeding, may participate as 
amicus curiae at any time in the proceeding, at those agencies' 
discretion. At the request of the interested federal agency, copies of 
all documents in a case must be sent to the federal agency, whether or 
not the agency is participating in the proceeding.


Sec.  1982.109  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 (d) of this section, as appropriate. A determination that a 
violation has occurred may be made only if the complainant has 
demonstrated by a preponderance of the evidence that protected activity 
was a contributing factor in the adverse action alleged in the 
complaint.
    (b) If the complainant has satisfied the burden set forth in the 
prior paragraph, relief may not be ordered if the respondent 
demonstrates by clear and convincing evidence that it would have taken 
the same adverse action in the absence of any protected activity.
    (c) Neither OSHA's determination to dismiss a complaint without 
completing an investigation pursuant to Sec.  1982.104(e) nor OSHA's 
determination to proceed with an investigation is subject to review by 
the ALJ, and a complaint may not be remanded for the completion of an 
investigation or for additional findings on the basis that a 
determination to dismiss was made in error. Rather, if there otherwise 
is jurisdiction, the ALJ will hear the case on the merits or dispose of 
the matter without a hearing if the facts and circumstances warrant.
    (d)(1) If the ALJ concludes that the respondent has violated the 
law, the ALJ will issue an order that will include, where appropriate: 
Affirmative action to abate the violation; reinstatement with the same 
seniority status that the employee would have had, but for the 
retaliation; any back pay with interest; and payment of compensatory 
damages, including compensation for any special damages sustained as a 
result of the retaliation, including litigation costs, expert witness 
fees, and reasonable attorney fees. Interest on back pay will be 
calculated using the interest rate applicable to underpayment of taxes 
under 26 U.S.C. 6621 and will be compounded daily. The order will also 
require the respondent to submit documentation to the Social Security 
Administration or the Railroad Retirement Board, as appropriate, 
allocating any back pay award to the

[[Page 69137]]

appropriate months or calendar quarters. The order may also require the 
respondent to pay punitive damages up to $250,000.
    (2) If the ALJ determines that the respondent has not violated the 
law, an order will be issued denying the complaint. If, upon the 
request of the respondent, the ALJ determines that a complaint filed 
under NTSSA was frivolous or was brought in bad faith, the ALJ may 
award to the respondent a reasonable attorney fee, not exceeding 
$1,000.
    (e) The decision will be served upon all parties to the proceeding, 
the Assistant Secretary, and the Associate Solicitor, Division of Fair 
Labor Standards, U.S. Department of Labor. Any ALJ's decision requiring 
reinstatement or lifting an order of reinstatement by the Assistant 
Secretary will be effective immediately upon receipt of the decision by 
the respondent. All other portions of the ALJ's order will be effective 
14 days after the date of the decision unless a timely petition for 
review has been filed with the Administrative Review Board (ARB), U.S. 
Department of Labor. The decision of the ALJ will become the final 
order of the Secretary unless a petition for review is timely filed 
with the ARB and the ARB accepts the petition for review.


Sec.  1982.110  Decision and orders of the Administrative Review Board.

    (a) Any party desiring to seek review, including judicial review, 
of a decision of the ALJ, or a respondent alleging that the complaint 
under NTSSA was frivolous or brought in bad faith who seeks an award of 
attorney fees, must file a written petition for review with the ARB, 
which has been delegated the authority to act for the Secretary and 
issue final decisions under this part. The parties should identify in 
their petitions for review the legal conclusions or orders to which 
they object, or the objections may be deemed waived. A petition must be 
filed within 14 days of the date of the decision of the ALJ. The date 
of the postmark, facsimile transmittal, or electronic communication 
transmittal will be considered to be the date of filing; if the 
petition is filed in person, by hand-delivery or other means, the 
petition is considered filed upon receipt. The petition must be served 
on all parties and on the Chief Administrative Law Judge at the time it 
is filed with the ARB. Copies of the petition for review must be served 
on the Assistant Secretary, 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, the decision of the ALJ will become the final 
order of the Secretary unless the ARB, within 30 days of the filing of 
the petition, issues an order notifying the parties that the case has 
been accepted for review. If a case is accepted for review, the 
decision of the ALJ will be inoperative unless and until the ARB issues 
an order adopting the decision, except that any order of reinstatement 
will be effective while review is conducted by the ARB, unless the ARB 
grants a motion by the respondent to stay that order based on 
exceptional circumstances. The ARB will specify the terms under which 
any briefs are to be filed. The ARB will review the factual 
determinations of the ALJ under the substantial evidence standard. If 
no timely petition for review is filed, or the ARB denies review, the 
decision of the ALJ will become the final order of the Secretary. If no 
timely petition for review is filed, the resulting final order is not 
subject to judicial review.
    (c) The final decision of the ARB will be issued within 120 days of 
the conclusion of the hearing, which will be deemed to be 14 days after 
the date of the decision of the ALJ, unless a motion for 
reconsideration has been filed with the ALJ in the interim. In such 
case, the conclusion of the hearing is the date the motion for 
reconsideration is denied or 14 days after a new decision is issued. 
The ARB's final decision will be served upon all parties and the Chief 
Administrative Law Judge by mail. The final decision also will be 
served on the Assistant Secretary, and on the Associate Solicitor, 
Division of 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 ARB will issue a final order providing relief to the complainant. 
The final order will include, where appropriate: Affirmative action to 
abate the violation; reinstatement with the same seniority status that 
the employee would have had, but for the retaliation; any back pay with 
interest; and payment of compensatory damages, including compensation 
for any special damages sustained as a result of the retaliation, 
including litigation costs, expert witness fees, and reasonable 
attorney fees. Interest on back pay will be calculated using the 
interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 
and will be compounded daily. The order will also require the 
respondent to submit documentation to the Social Security 
Administration or the Railroad Retirement Board, as appropriate, 
allocating any back pay award to the appropriate months or calendar 
quarters. The order may also require the respondent to pay punitive 
damages up to $250,000.
    (e) If the ARB determines that the respondent has not violated the 
law, an order will be issued denying the complaint. If, upon the 
request of the respondent, the ARB determines that a complaint under 
NTSSA was frivolous or was brought in bad faith, the ARB may award to 
the respondent reasonable attorney fees, not exceeding $1,000.

Subpart C--Miscellaneous Provisions


Sec.  1982.111  Withdrawal of complaints, findings, objections, and 
petitions for review; settlement.

    (a) At any time prior to the filing of objections to the Assistant 
Secretary's findings and/or preliminary order, a complainant may 
withdraw his or her complaint by notifying OSHA, orally or in writing, 
of his or her withdrawal. OSHA then will confirm in writing the 
complainant's desire to withdraw and determine whether to approve the 
withdrawal. OSHA will notify the parties (or each party's legal counsel 
if the party is represented by counsel) of the approval of any 
withdrawal. If the complaint is withdrawn because of settlement, the 
settlement must be submitted for approval in accordance with paragraph 
(d) of this section. A complainant may not withdraw his or her 
complaint after the filing of objections to the Assistant Secretary's 
findings and/or preliminary order.
    (b) The Assistant Secretary may withdraw the findings and/or 
preliminary order at any time before the expiration of the 30-day 
objection period described in Sec.  1982.106, provided that no 
objection has been filed yet, and substitute new findings and/or a new 
preliminary order. The date of the receipt of the substituted findings 
or order will begin a new 30-day objection period.
    (c) At any time before the Assistant Secretary's findings and/or 
order become final, a party may withdraw its objections to the 
Assistant Secretary's findings and/or order by filing a written 
withdrawal with the ALJ. If the case is on review with the ARB, a party 
may withdraw 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

[[Page 69138]]

Assistant Secretary's findings and/or order, and there are no other 
pending objections, the Assistant Secretary's findings and/or order 
will become the final order of the Secretary. If the ARB approves a 
request to withdraw a petition for review of an ALJ decision, and there 
are no other pending petitions for review of that decision, the ALJ's 
decision will become the final order of the Secretary. If objections or 
a petition for review are withdrawn because of settlement, the 
settlement must be submitted for approval in accordance with paragraph 
(d) of this section.
    (d)(1) Investigative settlements. At any time after the filing of a 
complaint, 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 
OSHA, the complainant, and the respondent agree to a settlement. OSHA's 
approval of a settlement reached by the respondent and the complainant 
demonstrates OSHA's consent and achieves the consent of all three 
parties.
    (2) Adjudicatory settlements. At any time after the filing of 
objections to the Assistant Secretary's findings and/or order, the case 
may be settled if the participating parties agree to a settlement and 
the settlement is approved by the ALJ if the case is before the ALJ, or 
by the ARB if the ARB has accepted the case for review. A copy of the 
settlement will be filed with the ALJ or the ARB, as the case may be.
    (e) Any settlement approved by OSHA, the ALJ, or the ARB will 
constitute the final order of the Secretary and may be enforced in 
United States district court pursuant to Sec.  1982.113.


Sec.  1982.112  Judicial review.

    (a) Within 60 days after the issuance of a final order under 
Sec. Sec.  1982.109 and 1982.110, 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.
    (b) A final order is not subject to judicial review in any criminal 
or other civil proceeding.
    (c) If a timely petition for review is filed, the record of a case, 
including the record of proceedings before the ALJ, will be transmitted 
by the ARB or the ALJ, as the case may be, to the appropriate court 
pursuant to the Federal Rules of Appellate Procedure and the local 
rules of such court.


Sec.  1982.113  Judicial enforcement.

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


Sec.  1982.114  District court jurisdiction of retaliation complaints.

    (a) If there is no final order of the Secretary, 210 days have 
passed since the filing of the complaint, and there is no showing that 
there has been delay due to the bad faith of the complainant, the 
complainant may bring an action at law or equity for de novo review in 
the appropriate district court of the United States, which will have 
jurisdiction over such an action without regard to the amount in 
controversy. At the request of either party, the action shall be tried 
by the court with a jury.
    (b) A proceeding under paragraph (a) of this section shall be 
governed by the same legal burdens of proof specified in Sec.  
1982.109. An employee prevailing in a proceeding under paragraph (a) 
shall be entitled to all relief necessary to make the employee whole, 
including, where appropriate: Reinstatement with the same seniority 
status that the employee would have had, but for the retaliation; any 
back pay with interest; and payment of compensatory damages, including 
compensation for any special damages sustained as a result of the 
retaliation, including litigation costs, expert witness fees, and 
reasonable attorney fees. The court may also order punitive damages in 
an amount not to exceed $250,000.
    (c) Within 7 days after 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 copy of the 
file-stamped complaint. In all cases, a copy of the complaint must also 
be served on the OSHA official who issued the findings and/or 
preliminary order, the Assistant Secretary, and the Associate 
Solicitor, Division of Fair Labor Standards, U.S. Department of Labor.


Sec.  1982.115  Special circumstances; waiver of rules.

    In special circumstances not contemplated by the provisions of 
these rules, or for good cause shown, the ALJ or the ARB on review may, 
upon application, after three-days notice to all parties, waive any 
rule or issue such orders that justice or the administration of NTSSA 
or FRSA requires.

[FR Doc. 2015-28040 Filed 11-6-15; 8:45 am]
BILLING CODE 4510-26-P