Procedures for the Handling of Retaliation Complaints Under the Employee Protection Provisions of Six Federal Environmental Statutes and Section 211 of the Energy Reorganization Act of 1974, as Amended, 44956-44969 [E7-15539]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 72, Number 154 (Friday, August 10, 2007)]
[Rules and Regulations]
[Pages 44956-44969]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-15539]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 24

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


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

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Interim final rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: The Department of Labor amends the regulations governing the 
employee protection (``whistleblower'') provisions of Section 211 of 
the Energy Reorganization Act of 1974, as amended (``ERA''), to 
implement the statutory changes enacted into law on August 8, 2005, as 
part of the Energy Policy Act of 2005. The regulations also make the 
procedures for handling retaliation complaints under Section 211 of the 
ERA and the environmental whistleblower statutes listed in Part 24 as 
consistent as possible with the more recently promulgated procedures 
for handling retaliation complaints under other employee protection 
provisions administered by the Occupational Safety and Health 
Administration (``OSHA''), see 29 CFR parts 1979-1981.

DATES: This interim final rule is effective on August 10, 2007. 
Comments and additional materials must be submitted (postmarked, sent 
or received) by October 9, 2007.

ADDRESSES: You may submit comments and additional materials by any of 
the following methods:
    Electronically: You may submit comments and attachments 
electronically at https://www.regulations.gov, which is the Federal 
eRulemaking Portal. Follow the instructions online for making 
electronic submissions.
    Fax: If your submissions, including attachments, do not exceed 10 
pages, you may fax them to the OSHA Docket Office at (202) 693-1648.
    Mail, hand delivery, express mail, messenger or courier service: 
You must submit three copies of your comments and attachments to the 
OSHA Docket Office, Docket No. OSHA-2007-0028, U.S. Department of 
Labor, Room N-2625, 200 Constitution Avenue, NW., Washington, DC 20210. 
Deliveries (hand, express mail, messenger and courier service) are 
accepted during the Department of Labor's and Docket Office's normal 
business hours, 8:15 a.m.-4:45 p.m., e.t.
    Instructions: All submissions must include the Agency name and the 
OSHA docket number for this rulemaking (Docket No. OSHA-2007-0028). 
Submissions, including any personal information you provide, are placed 
in the public docket without change and may be made available online at 
https://www.regulations.gov. Therefore, OSHA cautions you about 
submitting personal information such as social security numbers and 
birth dates. For further information on submitting comments plus 
additional information on the rulemaking process, see the ``Public 
Participation'' heading in the SUPPLEMENTARY INFORMATION section of 
this document.
    Docket: To read or download submissions or other material in the 
docket, go to https://www.regulations.gov or the OSHA Docket Office at 
the address above. All documents in the docket are listed in the http:/
/www.regulations.gov index; however, some information (e.g., 
copyrighted material) is not publicly available to read or download 
through the Web site. All submissions, including copyrighted material, 
are available for inspection and copying at the OSHA Docket Office.

FOR FURTHER INFORMATION CONTACT: Nilgun Tolek, Director, Office of 
Investigative Assistance, Occupational Safety and Health 
Administration, U.S. Department of Labor, Room N-3610, 200 Constitution 
Avenue, NW., Washington, DC 20210; telephone (202) 693-2199. This is 
not a toll-free number. The alternative formats available are large 
print, electronic file on computer disk (Word Perfect, ASCII, Mates 
with Duxbury Braille System) and audiotape.

SUPPLEMENTARY INFORMATION:

I. Background

    The Energy Policy Act of 2005, Public Law 109-58, was enacted on 
August 8, 2005. Among other provisions, this new law amended the 
employee protection provisions for nuclear whistleblowers under Section 
211 of the ERA, 42 U.S.C. 5851; the statutory amendments affect

[[Page 44957]]

only ERA whistleblower complaints. The amendments to the ERA apply to 
whistleblower claims filed on or after August 8, 2005, the date of the 
enactment of Section 629 of the Energy Policy Act of 2005. The changes 
to the regulations also affect the six environmental whistleblower 
statutes because the same procedures apply to each of the statutes 
covered in Part 24. The regulatory changes recognize the importance of 
consistency in the procedures governing the whistleblower statutes 
administered by OSHA.

II. Public Participation

Submission of Comments and Access to Docket

    You may submit comments and additional materials (1) electronically 
at https://www.regulations.gov, which is the Federal eRulemaking Portal; 
(2) by facsimile (FAX); or (3) by hard copy. All submissions must 
identify the Agency name and the OSHA docket number for this rulemaking 
(Docket No. OSHA-2007-0028). You may supplement electronic submissions 
by uploading document attachments and files electronically. If, 
instead, you wish to mail additional materials in reference to an 
electronic or fax submission, you must submit three copies to the OSHA 
Docket Office (see ADDRESSES section). The additional materials must 
clearly identify your electronic submissions by name, date, and docket 
number so OSHA can attach them to your submissions.
    Because of security-related procedures, the use of regular mail may 
cause a significant delay in the receipt of submissions. For 
information about security procedures concerning the delivery of 
materials by hand, express delivery, messenger or courier service, 
please contact the OSHA Docket Office at (202) 693-2350 (TTY (877) 889-
5627).
    Submissions are posted without change at https://
www.regulations.gov. Therefore, OSHA cautions commenters about 
submitting personal information such as social security numbers and 
birth dates. Although all submissions are listed in the https://
www.regulations.gov index, some information (e.g., copyrighted 
material) is not publicly available to read or download through https://
www.regulations.gov. All submissions, including copyrighted material, 
are available for inspection and copying at the OSHA Docket Office. 
Information on using the https://www.regulations.gov Web site to submit 
comments, requests for hearings and attachments, and to access the 
docket is available at the Web site's User Tips link. Contact the OSHA 
Docket Office for information about materials not available through the 
Web site and for assistance in using the internet to locate docket 
submissions.
    Electronic copies of this Federal Register document are available 
at https://www.regulations.gov. This document, as well as news releases 
and other relevant information, also are available at OSHA's Web page 
at https://www.osha.gov.

III. Summary of Statutory Changes to ERA Whistleblower Provisions

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

Revised Definition of ``Employer''

    Section 211 of the ERA defined a covered ``employer'' to include: 
licensees of the Nuclear Regulatory Commission (``Commission''); 
applicants for such licenses, and their contractors and subcontractors; 
contractors and subcontractors of the Department of Energy, except 
those involved in naval nuclear propulsion work under Executive Order 
12344; licensees of an agreement State under Section 274 of the Atomic 
Energy Act of 1954; applicants for such licenses, and their contractors 
and subcontractors. The August 2005 amendments revised the definition 
of ``employer'' to extend coverage to employees of contractors and 
subcontractors of the Commission; the Commission; and the Department of 
Energy.

De Novo Review

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

IV. Summary and Discussion of Regulatory Provisions

    The regulatory provisions in this part have been revised in the 
interest of consistency to conform to the regulations implementing the 
employee protection provisions of the following statutes that are 
administered and enforced by the Secretary of Labor: Wendell H. Ford 
Aviation Investment and Reform Act for the 21st Century (``AIR21''), 
codified at 29 CFR part 1979; the Sarbanes-Oxley Act of 2002 (``SOX''), 
codified at 29 CFR part 1980; and the Pipeline Safety Improvement Act 
of 2002 (``PSIA''), codified at 29 CFR 1981. The section numbers of 
this regulation also have been changed to correspond with the numbering 
under the regulations implementing AIR21, SOX, and PSIA. Although these 
regulations are intended to conform to those implementing AIR21, SOX, 
and PSIA, they make one change in terminology; they refer to actions 
brought under the employee protection provisions of these statutes as 
actions alleging ``retaliation'' rather than ``discrimination.'' This 
change in terminology, which is not intended to have substantive 
effect, reflects that claims brought under these employee protection 
provisions are prototypical retaliation claims. A retaliation claim is 
a specific type of discrimination claim that focuses on actions taken 
as a result of an employee's protected activity rather than as a result 
of an employee's characteristics (i.e., race, gender, or religion). The 
burdens of proving a retaliation claim are the same as those of a 
standard discrimination claim. See Essex v. United Parcel Service, 
Inc., 111 F.3d 1304, 1308 (7th Cir. 1997).

Section 24.100 Purpose and Scope

    This section (formerly Sec.  24.1) describes the purpose of the 
regulations implementing the employee protection provisions of seven 
statutes enforced by the Secretary of Labor and provides an overview of 
the procedures covered by the regulations. The section has been revised 
to refer to the Federal Water Pollution Control Act, instead of the 
Clean Water Act. They are synonymous, but the Office of Administrative 
Law Judges and the Administrative Review Board generally use Federal 
Water Pollution Control Act, and we do so here for the sake of 
consistency. In addition, the section has been renumbered to conform to 
the numbering system for regulations that implement AIR21, SOX, and the 
PSIA. Thus, for example, former Sec.  24.1 becomes current Sec.  
24.100.

Section 24.101 Definitions

    This new section includes general definitions applicable to the 
employee protection provisions of the seven statutes listed in Sec.  
24.100(a). This section does not include program-specific definitions, 
which may be found in the statutes.

Section 24.102 Obligations and Prohibited Acts

    This section (formerly Sec.  24.2) describes the whistleblower 
activity that is protected under the statutes covered by this Part and 
the type of conduct that is prohibited in response to any protected 
activity. The language generally has been revised to conform to

[[Page 44958]]

the language in the regulations that implement the AIR21, SOX, and PSIA 
whistleblower provisions. The changes are not intended to be 
substantive. References to the statutes listed in 24.100(a) have 
deleted the adjective ``Federal'' as unnecessary. Paragraph (e) has 
been moved from former Sec. 24.9. We note that the ARB interprets the 
phrase ``deliberate violations'' for the purpose of denying protection 
to an employee as including an element of willfulness. See Fields v. 
United States Department of Labor Administrative Review Board, 173 F.3d 
811, 814 (11th Cir. 1999) (petitioners knowingly conducted unauthorized 
and potentially dangerous experiments).

Section 24.103 Filing of Retaliation Complaint

    This section (formerly Sec.  24.3) has been revised to be 
consistent with the regulatory procedures implementing the 
whistleblower provisions of the AIR21, SOX, and PSIA. Thus, the section 
heading has been changed from ``Complaint'' to ``Filing of Retaliation 
Complaint.'' Also, paragraph (c) has been changed to paragraph (b) and 
the heading has been changed from ``Form of Complaint'' to ``Nature of 
filing;'' paragraph (d) has been changed to paragraph (c); and 
paragraph (b) has been changed to paragraph (d) and the language has 
been changed to conform with that appearing in the AIR21, SOX, and PSIA 
regulations. Finally, paragraph (e) ``Relationship to section 11(c) 
complaints'' has been added to explain the policy of the Secretary 
regarding the relationship between complaints filed under the statutes 
listed in Sec. 24.100(a) and a complaint under Section 11(c) of the 
Occupational Safety and Health Act.

Section 24.104 Investigation

    This section (formerly Sec.  24.4) has been revised so that its 
language will conform more closely to the language of the regulations 
implementing AIR21, SOX, and PSIA. Additionally, former paragraph (b) 
of Sec.  24.5 has been revised and moved to this section, and former 
paragraph (d) of Sec.  24.4 has been revised and moved to Sec.  24.105, 
where it more appropriately appears under ``Issuance of findings and 
orders.''
    This rule sets forth two different standards of causation--
``motivating'' factor and ``contributing'' factor--depending on the 
whistleblower statute under which a complaint is filed. When 
investigating or adjudicating whistleblower complaints under the six 
environmental whistleblower statutes, the Department of Labor relies on 
the traditional standards derived from Title VII and other 
discrimination law as set forth under Mt. Healthy City School District 
Board of Education v. Doyle, 429 U.S. 274 (1977); Texas Dep't of 
Community Affairs v. Burdine, 450 U.S. 248 (1981); and McDonnell 
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Dartey v. Zack Co. of 
Chicago, No. 82-ERA-2, 1983 WL 189787, at *3-*4 (Sec'y of Labor Apr. 
25, 1983 (discussing Burdine, 450 U.S. at 254-255)). Under these 
standards, a complainant seeking to prove retaliation must first 
establish a prima facie case that protected activity was a motivating 
factor in the adverse action, which creates a presumption of 
retaliation. See, e.g., St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 
(1993). Once a complainant establishes a prima facie case, the employer 
has the burden of producing a legitimate, nonretaliatory explanation 
for its actions. If the employer presents such evidence, the 
presumption in favor of the complainant disappears, and the complainant 
must establish by a preponderance of the evidence that the employer's 
explanation was a pretext, that is, that the real reason for the 
adverse action was retaliation. A prima facie case, together with proof 
that the employer's explanation is pretext, permits (but does not 
require) a trier of fact to find retaliation. See Reeves v. Sanderson 
Plumbing Products, Inc., 530 U.S. 133, 147-148 (2000); St. Mary's Honor 
Center, 509 U.S. at 519 (``It is not enough * * * to disbelieve the 
employer; the factfinder must believe the plaintiff's explanation of 
intentional discrimination.''); Dartey v. Zack, supra. Thus, under 
these principles, an employee must prove by a preponderance of the 
evidence that retaliation was a ``motivating factor'' for the adverse 
employment action. The Secretary can conclude from the evidence that 
the employer's reason for the retaliation was a pretext and rule for 
the employee, or that the employer was not motivated in whole or in 
part by protected activity and rule for the employer, or that an 
employer acted out of mixed motives. See Dartey v. Zack, 1983 WL 
189787, at *4. If the Secretary concludes that the employer acted out 
of mixed motives, the employer can escape liability by proving, by a 
preponderance of the evidence, that it would have reached the same 
decision even in the absence of protected activity. Id. (discussing Mt. 
Healthy, 429 U.S. at 287).
    Paragraph (b) of this section, which sets forth procedures that 
apply only in ERA cases, applies the ERA's statutory burdens of proof. 
Since the 1992 amendments to the ERA, its whistleblower provisions, in 
contrast to the other whistleblower provisions listed under Sec. 
24.100(a), have contained specific statutory standards for the 
dismissal and adjudication of complaints and for the resolution of 
mixed motive or dual motive cases. See 42 U.S.C. 5851(b)(3)(A) through 
(b)(3)(D); Public Law 102-486, section 2902, 106 Stat. at 3123-3124. 
The ERA requires that a complainant make an initial prima facie showing 
that protected activity was ``a contributing factor'' in the 
unfavorable personnel action alleged in the complaint, i.e., that 
whistleblowing activity, alone or in combination with other factors, 
affected in some way the outcome of the employer's personnel decision. 
42 U.S.C. 5851(b)(3)(A). If the complainant does not make the prima 
facie showing, the investigation must be discontinued and the complaint 
dismissed. See Trimmer v. United States Dep't of Labor, 174 F.3d 1098, 
1101 (10th Cir. 1999) (noting that the distinct burden-shifting 
framework of the 1992 ERA amendments served a ``gatekeeping function'' 
that ``stemmed frivolous complaints''). Even in cases where the 
complainant successfully makes a prima facie showing, the investigation 
must be discontinued if the employer ``demonstrates, by clear and 
convincing evidence, that it would have taken the same unfavorable 
personnel action'' in the absence of the protected activity. 42 U.S.C. 
5851(b)(3)(B). Thus, under the ERA, the Secretary must dismiss the 
complaint and not investigate (or cease investigating) if either: (1) 
The complainant fails to meet the prima facie showing that protected 
activity was a contributing factor in the unfavorable personnel action; 
or (2) the employer rebuts that showing by clear and convincing 
evidence that it would have taken the same unfavorable personnel action 
absent the protected activity.
    Assuming that an investigation proceeds beyond the gatekeeping 
phase, the ERA provides statutory burdens of proof that require an 
employee to prove that the alleged protected activity was a 
``contributing factor'' to the alleged adverse action. 42 U.S.C. 
5851(b)(3)(C). If the employee proves that the alleged protected 
activity was a contributing factor to the adverse action, the employer, 
to escape liability, must prove by ``clear and convincing evidence'' 
that it would have taken the same action in the absence of the 
protected activity. A contributing factor is ``any factor, which alone 
or in combination with other factors, tends to

[[Page 44959]]

affect in any way the outcome of the decision.'' Marano v. Dep't of 
Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993) (Whistleblower Protection 
Act, 5 U.S.C. 1221(e)(1)); cf. Trimmer, 174 F.3d at 1101 (the 1992 
amendments aimed, in part, ``to make it easier for [ERA] whistleblowers 
to prevail in their discrimination suits'')). In proving that protected 
activity was a contributing factor in the adverse action, ``a 
complainant need not necessarily prove that the respondent's 
articulated reason was a pretext in order to prevail,'' because a 
complainant alternatively can prevail by showing that the respondent's 
reason, while true, is only one of the reasons for its conduct, and 
that another reason was complainant's protected activity. See 
Klopfenstein v. PCC Flow Techs. Holdings, Inc., No. 04-149, 2006 WL 
1516650, *13 (ARB May 31, 2006) (discussing contributing factor test 
under SOX) (citing Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 
(5th Cir. 2004).
    The ERA statutory burdens of proof do not address the evidentiary 
standard that applies to a complainant's proof that protected activity 
was a contributing factor in an adverse action. The Secretary therefore 
adheres to traditional Title VII discrimination law for that 
determination, i.e., the complainant must prove by a ``preponderance of 
the evidence'' that his protected activity contributed to his 
termination; otherwise, the burden never shifts to the employer to 
establish its ``clear and convincing evidence'' mixed-motive defense. 
See, e.g., Dysert v. United States Secretary of Labor, 105 F.3d 607, 
609 (11th Cir. 1997) (upholding Department's interpretation of 42 
U.S.C. 5851(b)(3)(C), as requiring an employee to prove by a 
preponderance of the evidence that protected activity was a 
contributing factor in an adverse action); see also Trimmer, 174 F.3d 
at 1102 (``[o]nly if the complainant meets his burden [of proving by a 
preponderance of the evidence that he engaged in protected activity 
that was a contributing factor in an unfavorable employment decision] 
does the burden then shift to the employer to demonstrate by clear and 
convincing evidence that it would have taken the same unfavorable 
personnel action in the absence of such behavior.''); Stone & Webster 
Engineering Corp. v. Herman, 115 F.3d 1568, 1572 (11th Cir. 1997) 
(under section 5851, an employee must first persuade the Secretary that 
protected activity was a contributing factor in an adverse action and 
then, if the employee succeeds, the employer must prove by clear and 
convincing evidence that it would have taken the same action in the 
absence of protected activity).
    Under traditional Title VII burden shifting principles applicable 
to the six environmental whistleblower statutes, if the Secretary 
concludes that the employer acted for both prohibited and legitimate 
reasons (i.e., a ``mixed motive'' case), the employer can escape 
liability by proving, by a preponderance of the evidence, that it would 
have reached the same decision even in the absence of the protected 
conduct. See Dartey v. Zack, 1983 WL 189787, at *4 (discussing Mt. 
Healthy, 429 U.S. at 287). However, the 1992 ERA amendments altered the 
employer's burden in a ``mixed motive'' case; under the ERA, once the 
Secretary concludes that the employer acted for both prohibited and 
legitimate reasons, the employer can escape liability only by proving 
by clear and convincing evidence that it would have reached the same 
decision even in the absence of the protected activity. 42 U.S.C. 
5851(b)(3)(D). The ``clear and convincing evidence'' standard is a 
higher burden of proof for employers than the former ``preponderance of 
the evidence'' standard. See 138 Cong. Rec. 32,081, 32,082 (1992).

Section 24.105 Issuance of Findings and Orders

    The procedures set forth in this section formerly appeared under a 
paragraph of Sec.  24.4, the Investigations section. This new section 
was created for purposes of clarification and consistency with the 
regulations implementing the AIR21, SOX, and PSIA whistleblower 
provisions. The former regulations provided that the Assistant 
Secretary would issue a ``Notice of Determination'' at the conclusion 
of the investigation, or upon dismissal of a complaint. These 
regulations no longer use the term ``Notice of Determination.'' 
Instead, the regulations refer to the issuance of findings and orders, 
the nomenclature used in the regulations implementing AIR21, SOX, and 
PSIA. This change in nomenclature is not intended to be substantive.
    The 30-day timeframe for completion of the investigation has been 
retained because it is a statutory requirement under the majority of 
the whistleblower statutes covered by this part (the Solid Waste 
Disposal Act, the Federal Water Pollution Control Act, and the 
Comprehensive Environmental Response, Compensation and Liability Act 
have no timeframe). The current regulations provide a 5-business-day 
timeframe for filing objections to the findings. These new regulations 
have been changed to provide that if no objections to the Assistant 
Secretary's findings and order are filed within 30 days of their 
receipt, the findings and order of the Assistant Secretary will become 
the final order of the Secretary. Thus, the timeframe for objecting to 
the findings and/or order and for requesting a hearing has been 
extended from 5 business days to 30 days. The Secretary is aware that, 
since the ERA, the Clean Air Act (``CAA''), the Safe Drinking Water Act 
(``SDWA''), and the Toxic Substances Control Act (``TSCA'') provide 
that the Secretary should issue a final decision within 90 days of the 
filing of the complaint, allowing the parties 30 days in which to 
object to the Assistant Secretary's findings and any order issued may 
have an impact on the Department's meeting the 90-day timeframe. 
Although the ERA amendments in 2005 did not change the 90-day 
timeframe, the Secretary believes that in amending the ERA in 2005, 
Congress recognized that it appropriately could take up to one year to 
complete the investigatory and adjudicative processing of a 
whistleblower complaint (i.e., issue a final decision of the Secretary) 
under these environmental statutes. Accordingly, the Secretary believes 
that allowing 30 days for a party to object to the Assistant 
Secretary's findings and request a hearing is warranted. Not only does 
the extension make the regulations more consistent with those 
implementing AIR21, SOX, and PSIA, it also offers the parties a more 
reasonable timeframe in which to consider whether to appeal the 
Assistant Secretary's findings.

Subpart B--Litigation

Section 24.106 Objections to the Findings and Order and Request for a 
Hearing

    Formerly, the procedures for requesting a hearing before an 
administrative law judge (``ALJ'') were set forth under Sec.  24.6. As 
indicated above, to be effective, objections to the findings of the 
Assistant Secretary must be in writing and must be filed with the Chief 
Administrative Law Judge, U.S. Department of Labor, 800 K Street, NW., 
Washington, DC 20001 within 30 days of receipt of the findings. The 
date of the postmark, facsimile transmittal, or e-mail communication is 
considered the date of the filing. The filing of objections is also 
considered a request for a hearing before an ALJ. Although the parties 
are directed to serve a copy of their objections to the other parties 
of record, as well as the OSHA official who

[[Page 44960]]

issued the findings and order, the Assistant Secretary, and the 
Associate Solicitor, Division of Fair Labor Standards, U.S. Department 
of Labor, N 2716, 200 Constitution Ave., NW., Washington, DC 20210, the 
failure to serve copies of the objections to the other parties of 
record does not affect the ALJ's jurisdiction to hear and decide the 
merits of the case. See Shirani v. Calvert Cliffs Nuclear Power Plant, 
Inc., No. 04-101, 2005 WL 2865915, *7 (ARB Oct. 31, 2005).

Section 24.107 Hearings

    This section has been revised to conform to the regulations 
implementing the whistleblower provisions under AIR21, SOX, and PSIA. 
It adopts the rules of practice of the Office of Administrative Law 
Judges at 29 CFR Part 18, Subpart A. In order to assist in obtaining 
full development of the facts in whistleblower proceedings, formal 
rules of evidence do not apply. The section specifically provides for 
consolidation of hearings if both the complainant and respondent object 
to the findings and/or order of the Assistant Secretary. Otherwise, 
this section no longer addresses procedural issues, e.g., place of 
hearing, right to counsel, procedures, evidence and record of hearing, 
oral arguments and briefs, and dismissal for cause, because the Office 
of Administrative Law Judges has adopted its own rules of practice that 
cover these matters. In order for hearings to be conducted as 
expeditiously as possible, and particularly in light of the unique 
provision in the ERA allowing complainants to seek a de novo hearing in 
federal court if the Secretary has not issued a final decision within 
one year of the filing of the complaint, this section provides that the 
ALJ has broad authority to limit discovery. For example, an ALJ may 
limit the number of interrogatories, requests for production of 
documents, or depositions allowed. An ALJ also may exercise discretion 
to limit discovery unless the complainant agrees to delay filing a 
complaint in federal court for some definite period of time beyond the 
one-year point. If a complainant seeks excessive or burdensome 
discovery under the ALJ's rules and procedures at part 18 of Title 29, 
or fails to adhere to an agreement to delay filing a complaint in 
federal court, a district court considering a request for de novo 
review might conclude that such conduct resulted in a delay due to the 
claimant's bad faith.
    Former paragraphs (f) and (g) of this section have been moved to 
section 24.108.

Section 24.108 Role of Federal Agencies

    This new section was added to conform these regulations to those 
implementing AIR21, SOX, and PSIA. As noted above, the substance of 
this section formerly was set forth under paragraphs (f) and (g) of 
Sec.  24.6, the section covering hearings. No substantive changes are 
intended. Under the ERA and the environmental whistleblower statutes, 
OSHA does not ordinarily appear as a party in the proceeding. The 
Secretary has found that in most whistleblower cases, parties have been 
ably represented and the public interest has not required the 
Department's participation. Nevertheless, the Assistant Secretary, at 
his or her discretion, may participate as a party or amicus curiae at 
any time in the administrative proceedings. For example, the Assistant 
Secretary may exercise his or her discretion to prosecute the case in 
the administrative proceeding before an ALJ; petition for review of a 
decision of an ALJ, including a decision based on a settlement 
agreement between the complainant and the respondent, regardless of 
whether the Assistant Secretary participated before the ALJ; or 
participate as amicus curiae before the ALJ or in the Administrative 
Review Board proceeding. Although we anticipate 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 Environmental Protection 
Agency, the Nuclear Regulatory Commission, and the Department of 
Energy, at those agencies' discretion, also may participate as amicus 
curiae at any time in the proceedings.

Section 24.109 Decision and Order of the Administrative Law Judge

    This section sets forth the content of the decision and order of 
the ALJ, and includes the standard for finding a violation under the 
environmental statutes and the ERA. The section further provides that 
the Assistant Secretary's determination to dismiss the complaint 
without an investigation or without a complete investigation pursuant 
to Sec.  24.104 is not subject to review. Thus, paragraph (c) of 
section 24.109 clarifies that the Assistant Secretary's determinations 
on whether to proceed with an investigation under the ERA and whether 
to make particular investigative findings under any of the statutes 
subject to this Part are discretionary decisions not subject to review 
by the ALJ. The ALJ hears cases de novo and, therefore, as a general 
matter, may not remand cases to the Assistant Secretary to conduct an 
investigation or make further factual findings. A full discussion of 
the burdens of proof used by the Department of Labor to resolve 
whistleblower cases under this part is set forth above in the 
discussion of Sec.  24.104.
    This section also has been revised to eliminate the requirement 
under the ERA for the ALJ to issue a preliminary order of reinstatement 
separate from the findings. The section clarifies that when an ALJ's 
decision finds that the complaint has merit and orders relief, the 
order will be effective immediately upon its receipt by the respondent, 
except for that part of the order awarding compensatory damages. 
Congress intended that whistleblowers under the ERA be reinstated and 
provided additional interim relief based upon the ALJ's order even 
while the decision is on review with the Administrative Review Board. 
The previous regulations have caused confusing delays to the 
complainant's right to immediate reinstatement. See, e.g., McNeill v. 
Crane Nuclear, Inc., No. 02-002, 2002 WL 31932543, *1-*2 (Adm. Rev. Bd. 
Apr. 24, 2006). The Secretary intends that, by eliminating any 
requirement that the ALJ ``shall also issue a preliminary order 
providing all of the relief'' specified in the recommended order before 
an interim order becomes effective, confusion will be avoided and 
congressional intent to have complainants promptly reinstated based 
upon a meritorious ALJ decision will be better effectuated. 
Furthermore, the ALJ's order will be effective immediately whether or 
not the ALJ designates the decision and/or order as recommended. As the 
Administrative Review Board recently recognized, every decision of an 
ALJ is recommended until it becomes the final decision of the 
Secretary. Welch v. Cardinal Bankshares Corp., No. 06-062, 2006 WL 
861374, * 3 n. 13 (Adm. Rev. Bd. Mar. 31, 2006) (``The APA authorizes 
ALJs to issue recommended decisions. See 5 U.S.C. 554(d) (`The employee 
[i.e. ALJ] who presides at the reception of evidence pursuant to 
section 556 of this title shall make the recommended decision or 
initial decision required by section 557 of this title.* * *' (emphasis 
added); 5 U.S.C. 557(c) (`Before a recommended, initial,

[[Page 44961]]

or tentative decision, or a decision on agency review of the decision 
of subordinate employees * * *. All decisions, including initial, 
recommended, and tentative decisions, are a part of the record. * * *') 
(emphasis added).'').
    The substance of the rest of this section was formerly found in 
section 24.7. The requirement that the ALJ issue a decision within 20 
days after the conclusion of the hearing has been eliminated because 
procedures for issuing decisions, including their timeliness, is 
addressed by the Rules of Practice and Procedure for Administrative 
Hearings Before the Office of Administrative Law Judges at 29 CFR 
18.57.

Section 24.110 Decision and Orders of the Administrative Review Board

    The decision of the ALJ is the final decision of the Secretary if 
no timely petition for review is filed with the Administrative Review 
Board. Upon the issuance of the ALJ's decision, the parties have 10 
business days within which to petition the Board for review of that 
decision, or it becomes the final decision of the Secretary and is not 
subject to judicial review. The date of the postmark, facsimile 
transmittal, or e-mail communication will be considered to be the date 
of filing; if the petition is filed in person, by hand-delivery or 
other means, the petition is considered filed upon receipt. The appeal 
provisions in this part have been revised, consistent with the 
whistleblower provisions of AIR21, SOX and PSIA, to provide that an 
appeal to the Board is no longer a matter of right but is accepted at 
the discretion of the Board. Congress intended these whistleblower 
actions to be expedited and this change may assist in furthering that 
goal. To facilitate review, the parties must specifically identify the 
findings and conclusions to which they take exception, or the 
exceptions ordinarily will be deemed waived by the parties. The Board 
has 30 days to decide whether to grant the petition for review. If the 
Board does not grant the petition, the decision of the ALJ becomes the 
final decision of the Secretary. The ERA, CAA, SDWA, and TSCA contain a 
90-day timeframe for issuing final agency decisions. Notwithstanding 
this short timeframe, the Secretary believes that it is appropriate to 
give the Board 30 days in which to decide whether to grant review; as 
stated above, the Secretary believes that in amending the ERA in August 
2005, Congress recognized that the Department appropriately could take 
up to one year to complete the investigatory and adjudicative 
processing of a whistleblower complaint under these statutes. If a 
timely petition for review is filed with the Board, any relief ordered 
by the ALJ, except for that ordered under the ERA, is inoperative while 
the matter is pending before the Board. The relief ordered by the ALJ 
under the ERA is effective immediately except for that portion awarding 
compensatory damages. This section further provides that, when the 
Board accepts a petition for review, its factual determinations will be 
reviewed under the substantial evidence standard. This standard also is 
applied to Board review of ALJ decisions under the whistleblower 
provisions of AIR21, SOX, and PSIA.
    This section also provides that in the exceptional case, the Board 
may grant a motion to stay an ALJ's order of relief under the ERA, 
which otherwise will be effective, while review is conducted by the 
Board. The Secretary believes that a stay of an ALJ's order of relief 
under the ERA only would be appropriate where the respondent can 
establish the necessary criteria for equitable injunctive relief, i.e., 
irreparable injury, likelihood of success on the merits, and a 
balancing of possible harms to the parties and the public favors a 
stay.

Subpart C--Miscellaneous Provisions

Section 24.111 Withdrawal of Complaints, Objections, and Findings; 
Settlement

    This section provides for procedures and time periods for 
withdrawal of complaints, the withdrawal of findings by the Assistant 
Secretary, and the withdrawal of objections to findings. It also 
provides for approval of settlements at the investigative and 
adjudicative stages of the case. The regulations reflect that 
settlement agreements under the statutory provisions of the ERA, CAA, 
SDWA, and TSCA must be reviewed and approved by the Secretary to ensure 
that they are just and reasonable and in the public interest. See 
Beliveau v. United States Dep't of Labor, 170 F.3d 83, 86 (1st Cir. 
1999); Macktal v. Secretary of Labor, 923 F.2d 1150, 1154 (5th Cir. 
1991). Although it has been OSHA's practice to review settlements for 
approval under all the environmental whistleblower statutes, it is 
required by statute only under the ones noted above. See Bertacchi v. 
City of Columbus-Division of Sewerage & Drainage, ARB Case No. 05-155 
(April 13, 2006). Notwithstanding this statutory distinction, the 
Department encourages the parties to submit all settlements for review 
and approval, even those arising under the CERCLA, SWDA, and FWPCA. We 
note that a settlement that has not been reviewed and approved by the 
Secretary will not be considered a final order enforceable under 
section 24.113.

Section 24.112 Judicial Review

    This section describes the statutory provisions for judicial review 
of decisions of the Secretary and requires, in cases where judicial 
review is sought, the Administrative Review Board to submit the record 
of proceedings to the appropriate court pursuant to the Federal Rules 
of Appellate Procedure and the local rules of such court. Paragraph (d) 
reflects that original jurisdiction for judicial review of a decision 
issued under the Comprehensive Environmental Response, Compensation and 
Liability Act is with the district courts rather than the appellate 
courts. See 42 U.S.C. 9610(b) and 9613(b). The paragraph also reflects, 
however, that when an agency decision is based on other statutes that 
provide for direct review in the court of appeals, principles of 
judicial economy and consistency justify review of the entire 
proceeding in the court of appeals. See Ruud v. United States Dep't of 
Labor, 347 F.3d 1086, 1090 (9th Cir. 2003) (``[T]he court of appeals 
should entertain a petition to review an agency decision made pursuant 
to the agency's authority under two or more statutes, at least one of 
which provides for direct review in the court of appeals, where the 
petition involves a common factual background and raises a common legal 
question. Consolidated review of such a petition avoids inconsistency 
and conflicts between the district and appellate courts while ensuring 
the timely and efficient resolution of administrative cases.''); see 
also Shell Oil Co. v. F.E.R.C., 47 F.3d 1186, 1195 (D.C. Cir. 1995) 
(``[W]hen an agency decision has two distinct bases, one of which 
provides for exclusive jurisdiction in the court of appeals, the entire 
decision is reviewable exclusively in the appellate court.'') 
(citations and internal question marks omitted).

Section 24.113 Judicial Enforcement

    This section describes the Secretary's power under several of the 
statutes listed in Sec. 24.100(a) to obtain judicial enforcement of 
orders and the terms of a settlement agreement. It also provides for 
enforcement of orders of the Secretary by the person on whose behalf 
the order was issued under the ERA and the CAA.

[[Page 44962]]

Section 24.114 District Court Jurisdiction of Retaliation Complaints 
Under the Energy Reorganization Act

    This section sets forth the ERA provision allowing complainants to 
bring an action in district court for de novo review if there has been 
no final decision of the Secretary within one year of the filing of the 
complaint and there is no delay due to the complainant's bad faith. It 
provides that complainants will give notice 15 days in advance of their 
intent to file a complaint in district court. This provision 
authorizing a federal court complaint is similar to one under the 
whistleblower provisions of SOX, but is otherwise unique among the 
whistleblower statutes administered by the Secretary. This statutory 
scheme creates the possibility that a complainant will have litigated a 
claim before the agency, will receive a decision from an ALJ, and will 
then file a complaint in district court while the case is pending 
review by the Board. The Act might even be interpreted to allow a 
complainant to bring an action in federal court after receiving a final 
decision from the Board, if that decision were issued more than one 
year after the filing of the complaint. The Secretary believes that it 
would be a waste of the resources of the parties, the Department, and 
the courts for complainants to pursue duplicative litigation. The 
Secretary notes that the courts have recognized that, when a party has 
had a full and fair opportunity to litigate a claim, an adversary 
should be protected from the expense and vexation of multiple lawsuits 
and that the public interest is served by preserving judicial resources 
by prohibiting the same parties making the same claims. See Montana v. 
United States, 440 U.S. 147, 153 (1979). When an administrative agency 
acts in a judicial capacity and resolves disputed issues of fact 
properly before it, which the parties have had an adequate opportunity 
to litigate, the courts have not hesitated to apply the principles of 
issue preclusion (collateral estoppel) or claim preclusion (res 
judicata) on the basis of that administrative decision. See University 
of Tennessee v. Elliott, 478 U.S. 788, 799 (1986) (citing United States 
v. Utah Construction and Mining Co., 384 U.S. 394, 422 (1966)). 
Therefore, the Secretary anticipates that federal courts will apply 
such principles if a complainant brings a new action in federal court 
following extensive litigation before the Department that has resulted 
in a decision by an ALJ or the Secretary. Where an administrative 
hearing has been completed and a matter is pending before an ALJ or the 
Board for a decision, a federal court also might treat a complaint as a 
petition for mandamus and order the Department to issue a decision 
under appropriate time frames.

Section 24.115 Special Circumstances; Waiver of Rules

    This section provides that in circumstances not contemplated by 
these rules or for good cause the ALJ or the Board may, upon 
application and notice to the parties, waive any rule as justice or the 
administration of the statutes listed in Sec.  24.100(a) requires.

APPENDIX A--Your Rights Under the ERA

    The notice that employers are required to post under section 211(i) 
of the ERA has been revised to reflect the 2005 amendments. 
Specifically, the notice now reflects that the definition of 
``employer'' has been expanded and that the employee has a right to 
file a complaint in district Court if the Secretary has not issued a 
final decision within one year of the filing of the complaint and the 
delay is not due to the bad faith of the employee. As noted above, we 
also have substituted the term ``retaliation'' for ``discrimination.''

V. Paperwork Reduction Act

    This rule contains a reporting provision (filing a retaliation 
complaint, Sec.  24.103) which was previously reviewed and approved for 
use by the Office of Management and Budget (``OMB'') under 29 CFR 24.3 
and assigned OMB control number 1218-0236 under the provisions of the 
Paperwork Reduction Act of 1995 (Pub. L. 104-13).

VI. 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 and practice within the meaning of Section 553(b)(A) 
of the APA; the agency does not have legislative rulemaking authority 
under the applicable statutes. Therefore publication in the Federal 
Register of a notice of proposed rulemaking and request for comments is 
not required. Although this rule is not subject to the notice and 
comment procedures of the APA, we are providing persons interested in 
this interim final rule 60 days to submit comments. In so doing, we are 
following the agency's practice when it recently promulgated rules for 
the handling of whistleblower complaints under SOX, AIR21, and PSIA. 
Specifically, those rules, procedural in nature like this rule, were 
published as interim final rules; however, persons were given 60 days 
in which to submit comments. The Department carefully reviewed those 
comments and then issued its final rules. Similarly, in this instance, 
a final rule will be published after the agency receives and carefully 
reviews the public's comments.
    Furthermore, because this rule is procedural rather than 
substantive, the normal requirement of 5 U.S.C. 553(d) that a rule be 
effective 30 days after publication in the Federal Register is 
inapplicable. The Assistant Secretary also finds good cause to provide 
an immediate effective date for this rule. It is in the public interest 
that the rule be effective immediately so that parties may know what 
procedures are applicable to pending cases.

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

    The Department has concluded that this rule is not a ``significant 
regulatory action'' within the meaning of Executive Order 12866 because 
it is not likely to result in a rule that may: (1) Have an annual 
effect on the economy of $100 million or more or adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or tribal governments or communities; (2) create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; (3) materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in Executive Order 12866. Therefore, no 
regulatory impact analysis has been prepared.

VIII. Regulatory Flexibility Analysis

    The Department has determined that the regulation will not have a 
significant economic impact on a substantial number of small entities. 
The regulation primarily implements procedures necessitated by 
statutory amendments enacted by Congress. Additionally, the regulatory 
revisions are necessary for the sake of consistency with the regulatory 
provisions governing procedures under the other whistleblower statutes 
administered by

[[Page 44963]]

the Secretary. Furthermore, no certification to this effect is required 
and no regulatory flexibility analysis is required because no proposed 
rule has been issued.
    Document Preparation. This document was prepared under the 
direction of the Assistant Secretary, Occupational Safety and Health 
Administration, U.S. Department of Labor.

List of Subjects in 29 CFR Part 24

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

    Signed in Washington, DC, this 2nd day of August, 2007.
Edwin G. Foulke, Jr.,
Assistant Secretary for Occupational Safety and Health.

0
Accordingly, for the reasons set out in the preamble part 24 of title 
29 of the Code of Federal Regulations is revised to read as follows:

PART 24--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS 
UNDER FEDERAL EMPLOYEE PROTECTION STATUTES

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

    Authority: 15 U.S.C. 2622; 33 U.S.C. 1367; 42 U.S.C. 300j-9(i), 
5851, 6971, 7622, 9610.

Subpart A--Complaints, Investigations, Issuance of Findings


Sec.  24.100  Purpose and scope.

    (a) This part implements procedures under the employee protection 
provisions for which the Secretary of Labor has been given 
responsibility pursuant to the following federal statutes: Safe 
Drinking Water Act, 42 U.S.C. 300j-9(i); Federal Water Pollution 
Control Act, 33 U.S.C. 1367; Toxic Substances Control Act, 15 U.S.C. 
2622; Solid Waste Disposal Act, 42 U.S.C. 6971; Clean Air Act, 42 
U.S.C. 7622; Energy Reorganization Act of 1974, 42 U.S.C. 5851; and 
Comprehensive Environmental Response, Compensation and Liability Act of 
1980, 42 U.S.C. 9610.
    (b) This part establishes procedures pursuant to the federal 
statutory provisions listed in paragraph (a) of this section for the 
expeditious handling of retaliation complaints made by employees, or by 
persons acting on their behalf. These rules, together with those rules 
codified at 29 CFR part 18, set forth the procedures for submission of 
complaints under the federal statutory provisions listed in paragraph 
(a) of this section, investigations, issuance of findings, objections 
to findings, litigation before administrative law judges, issuance of 
decisions and orders, post-hearing administrative review, and 
withdrawals and settlements.


Sec.  24.101  Definitions.

    Assistant Secretary means the Assistant Secretary of Labor for 
Occupational Safety and Health or the person or persons to whom he or 
she delegates authority under any of the statutes listed in Sec.  
24.100(a).
    Complainant means the employee who filed a complaint under any of 
the statutes listed in Sec.  24.100(a) or on whose behalf a complaint 
was filed.
    OSHA means the Occupational Safety and Health Administration of the 
United States Department of Labor.
    Respondent means the employer named in the complaint, who is 
alleged to have violated any of the statutes listed in Sec.  24.100(a).
    Secretary means the Secretary of Labor or persons to whom authority 
under any of the statutes listed in Sec.  24.100(a) has been delegated.


Sec.  24.102  Obligations and prohibited acts.

    (a) No employer subject to the provisions of any of the statutes 
listed in Sec.  24.100(a), or to the Atomic Energy Act of 1954 (AEA), 
42 U.S.C. 2011 et seq., may discharge or otherwise retaliate against 
any employee with respect to the employee's compensation, terms, 
conditions, or privileges of employment because the employee, or any 
person acting pursuant to the employee's request, engaged in any of the 
activities specified in this section.
    (b) It is a violation for any employer to intimidate, threaten, 
restrain, coerce, blacklist, discharge, or in any other manner 
retaliate against any employee because the employee has:
    (1) Commenced or caused to be commenced, or is about to commence or 
cause to be commenced, a proceeding under one of the statutes listed in 
Sec.  24.100(a) or a proceeding for the administration or enforcement 
of any requirement imposed under such statute;
    (2) Testified or is about to testify in any such proceeding; or
    (3) Assisted or participated, or is about to assist or participate, 
in any manner in such a proceeding or in any other action to carry out 
the purposes of such statute.
    (c) Under the Energy Reorganization Act, and by interpretation of 
the Secretary under any of the other statutes listed in Sec.  
24.100(a), it is a violation for any employer to intimidate, threaten, 
restrain, coerce, blacklist, discharge, or in any other manner 
retaliate against any employee because the employee has:
    (1) Notified the employer of an alleged violation of such statute 
or the AEA of 1954;
    (2) Refused to engage in any practice made unlawful by such statute 
or the AEA of 1954, if the employee has identified the alleged 
illegality to the employer; or
    (3) Testified or is about to testify before Congress or at any 
federal or state proceeding regarding any provision (or proposed 
provision) of such statute or the AEA of 1954.
    (d)(1) Every employer subject to the Energy Reorganization Act of 
1974, as amended, shall prominently post and keep posted in any place 
of employment to which the employee protection provisions of the Act 
apply, a fully legible copy of the notice prepared by OSHA, printed as 
appendix A to this part, or a notice approved by the Assistant 
Secretary that contains substantially the same provisions and explains 
the employee protection provisions of the Act and the regulations in 
this part. Copies of the notice prepared by OSHA may be obtained from 
the Assistant Secretary for Occupational Safety and Health, U.S. 
Department of Labor, Washington, DC 20210, from local OSHA offices, or 
from OSHA's Web site at https://www.osha.gov.

[[Page 44964]]

    (2) Where the notice required by paragraph (d)(1) of this section 
has not been posted, the requirement in Sec.  24.103(d)(2) that a 
complaint be filed with the Assistant Secretary within 180 days of an 
alleged violation will be inoperative, unless the respondent 
establishes that the complainant had knowledge of the material 
provisions of the notice. If it is established that the notice was 
posted at the employee's place of employment after the alleged 
retaliatory action occurred or that the complainant later obtained 
knowledge of the provisions of the notice, the 180 days will ordinarily 
run from whichever of those dates is relevant.
    (e) This part shall have no application to any employee who, acting 
without direction from his or her employer (or the employer's agent), 
deliberately causes a violation of any requirement of any of the 
statutes listed in Sec.  24.100(a) or the AEA of 1954.


Sec.  24.103  Filing of retaliation complaint.

    (a) Who may file. An employee who believes that he or she has been 
retaliated against by an employer in violation of any of the statutes 
listed in Sec.  24.100(a) may file, or have filed by any person on the 
employee's behalf, a complaint alleging such retaliation.
    (b) Nature of Filing. No particular form of complaint is required, 
except that a complaint must be in writing and should include a full 
statement of the acts and omissions, with pertinent dates, which are 
believed to constitute the violations.
    (c) Place of Filing. The complaint should be filed with the OSHA 
Area Director responsible for enforcement activities in the 
geographical area where the employee resides or was employed, but may 
be filed with any OSHA officer or employee. Addresses and telephone 
numbers for these officials are set forth in local directories and at 
the following Internet address: https://www.osha.gov.
    (d) Time for Filing. (1) Except as provided in paragraph (d)(2) of 
this section, within 30 days after an alleged violation of any of the 
statutes listed in Sec.  24.100(a) occurs (i.e., when the retaliatory 
decision has been both made and communicated to the complainant), an 
employee who believes that he or she has been retaliated against in 
violation of any of the statutes listed in Sec.  24.100(a) may file, or 
have filed by any person on the employee's behalf, a complaint alleging 
such retaliation. The date of the postmark, facsimile transmittal, or 
e-mail communication will be considered to be the date of filing; if 
the complaint is filed in person, by hand-delivery, or other means, the 
complaint is filed upon receipt.
    (2) Under the Energy Reorganization Act, within 180 days after an 
alleged violation of the Act occurs (i.e., when the retaliatory 
decision has been both made and communicated to the complainant), an 
employee who believes that he or she has been retaliated against in 
violation of the Act may file, or have filed by any person on the 
employee's behalf, a complaint alleging such retaliation. The date of 
the postmark, facsimile transmittal, or e-mail communication will be 
considered to be the date of filing; if the complaint is filed in 
person, by hand-delivery, or other means, the complaint is filed upon 
receipt.
    (e) Relationship to section 11(c) complaints. A complaint filed 
under any of the statutes listed in Sec.  24.100(a) alleging facts that 
would constitute a violation of section 11(c) of the Occupational 
Safety and Health Act, 29 U.S.C. 660(c), will be deemed to be both a 
complaint filed under any of the statutes listed in Sec.  24.100(a) and 
section 11(c). Similarly, a complaint filed under section 11(c) that 
alleges facts that would constitute a violation of any of the statutes 
listed in Sec.  24.100(a) will be deemed to be both a complaint filed 
under any of the statutes listed in Sec.  24.100(a) and section 11(c). 
Normal procedures and timeliness requirements for investigations under 
the respective statutes and regulations will be followed.


Sec.  24.104  Investigation.

    (a) Upon receipt of a complaint in the investigating office, the 
Assistant Secretary will notify the respondent of the filing of the 
complaint, of the allegations contained in the complaint, and of the 
substance of the evidence supporting the complaint (redacted to protect 
the identity of any confidential informants). A copy of the notice to 
the respondent will also be provided to the appropriate office of the 
federal agency charged with the administration of the general 
provisions of the statute(s) under which the complaint is filed.
    (b) Within 20 days of receipt of the notice of the filing of the 
complaint provided under paragraph (a) of this section the respondent 
may submit to the Assistant Secretary a written statement and any 
affidavits or documents substantiating its position. Within the same 20 
days, the respondent may request a meeting with the Assistant Secretary 
to present its position.
    (c) Investigations will be conducted in a manner that protects the 
confidentiality of any person who provides information on a 
confidential basis, other than the complainant, in accordance with 29 
CFR part 70.
    (d) Investigation under the six environmental statutes. In addition 
to the investigative procedures set forth in Sec.  24.104(a), (b), and 
(c), this paragraph sets forth the procedures applicable to 
investigations under the Safe Drinking Water Act; Federal Water 
Pollution Control Act; Toxic Substances Control Act; Solid Waste 
Disposal Act; Clean Air Act; and Comprehensive Environmental Response, 
Compensation and Liability Act.
    (1) A complaint of alleged violation will be dismissed unless the 
complainant has made a prima facie showing that protected activity was 
a motivating factor in the unfavorable personnel action alleged in the 
complaint.
    (2) The complaint, supplemented as appropriate by interviews of the 
complainant, must allege the existence of facts and evidence to make a 
prima facie showing as follows:
    (i) The employee engaged in a protected activity;
    (ii) The respondent knew or suspected, actually or constructively, 
that the employee engaged in the protected activity;
    (iii) The employee suffered an unfavorable personnel action; and
    (iv) The circumstances were sufficient to raise the inference that 
the protected activity was a motivating factor in the unfavorable 
action.
    (3) The complainant will be considered to have met the required 
burden if the complaint on its face, supplemented as appropriate 
through interviews of the complainant, alleges the existence of facts 
and either direct or circumstantial evidence to meet the required 
showing, i.e., to give rise to an inference that the respondent knew or 
suspected that the employee engaged in protected activity and that the 
protected activity was a motivating factor in the unfavorable personnel 
action. The burden may be satisfied, for example, if the complainant 
shows that the adverse personnel action took place shortly after the 
protected activity, giving rise to the inference that it was a 
motivating factor in the adverse action.
    (4) The complaint will be dismissed if the respondent demonstrates 
by a preponderance of the evidence that it would have taken the same 
unfavorable personnel action in the absence of the complainant's 
protected activity.
    (e) Investigation under the Energy Reorganization Act. In addition 
to the investigative procedures set forth in Sec.  24.104(a), (b), and 
(c), this paragraph sets forth special procedures applicable

[[Page 44965]]

only to investigations under the Energy Reorganization Act.
    (1) A complaint of alleged violation will be dismissed unless the 
complainant has made a prima facie showing that protected activity was 
a contributing factor in the unfavorable personnel action alleged in 
the complaint.
    (2) The complaint, supplemented as appropriate by interviews of the 
complainant, must allege the existence of facts and evidence to make a 
prima facie showing as follows:
    (i) The employee engaged in a protected activity;
    (ii) The respondent knew or suspected, actually or constructively, 
that the employee engaged in the protected activity;
    (iii) The employee suffered an unfavorable personnel action; and
    (iv) The circumstances were sufficient to raise the inference that 
the protected activity was a contributing factor in the unfavorable 
action.
    (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