Procedures for the Handling of Retaliation Complaints Under the National Transit Systems Security Act and the Federal Railroad Safety Act, 53522-53533 [2010-21128]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 75, Number 168 (Tuesday, August 31, 2010)]
[Rules and Regulations]
[Pages 53522-53533]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-21128]



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Part IV





Department of Labor





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Occupational Safety and Health Administration



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29 CFR Parts 1978, 1982, and 1983



Procedures for the Handling of Retaliation Complaints Under the 
National Transit Systems Security Act, Federal Railroad Safety Act, 
Section 219 of the Consumer Product Safety Improvement Act of 2008, the 
Employee Protection Provision of the Surface Transportation Assistance 
Act of 1982; Final Rules

Federal Register / Vol. 75 , No. 168 / Tuesday, August 31, 2010 / 
Rules and Regulations

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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: Interim Final Rule; request for comments.

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SUMMARY: This document provides the interim final text of regulations 
governing the employee protection (``whistleblower'') 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 by Public Law 110-432, 122 Stat. 4892, Div. A, Title 
IV, section 419 (Oct. 16, 2008). This rule establishes 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) and judicial review of 
the Secretary's final decision.

DATES: This interim final rule is effective on August 31, 2010. 
Comments and additional materials must be submitted (post-marked, sent 
or received) by November 1, 2010.

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 your comments and attachments to the OSHA Docket 
Office, Docket No. OSHA-2008-0027, 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-2008-0027). 
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.
    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 https://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 the 
Whistleblower Protection Program, Occupational Safety and Health 
Administration, U.S. Department of Labor, Room N-3610, 200 Constitution 
Avenue, NW., Washington, DC 20210; telephone (202) 693-2199. 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

    NTSSA, enacted as Section 1413 of the 9/11 Commission Act, created 
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 
statutes, employees perceived to have engaged or to be about to engage 
in protected activity). Section 1521 of the 9/11 Commission Act, which 
amended FRSA, 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 
statutes, employees perceived to have engaged or to be about to engage 
in protected activity). The amendments to FRSA also establish 
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, 49 
U.S.C. 20109(c)(2). In addition, the FRSA amendments 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). Section (c)(1) is not a 
whistleblower provision because it prohibits certain conduct by 
railroad carriers and other covered persons irrespective of any 
protected activity by an employee. The procedures established in this 
interim final rule apply only to the remaining provisions of 49 U.S.C. 
20109.
    The whistleblower provisions of NTSSA and FRSA each provide that an 
employee may not seek protection under those 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 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 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).

II. Summary of Statutory Procedures

    Prior to the 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

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whistleblower proceedings before the National Railroad Adjustment 
Board, as well as other dispute resolution procedures. The amendment 
changes the procedures for resolution of such complaints and transfers 
the authority to implement the whistleblower provisions for railroad 
carrier employees to the Secretary of Labor (``the Secretary'').
    The procedures for filing and adjudicating whistleblower complaints 
under NTSSA and FRSA, as amended, are generally the same. 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 allegations contained in the 
complaint, the substance of the evidence supporting the complaint, and 
the rights afforded the respondent throughout 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.
    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.
    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 all relief necessary to make the 
employee whole, including, where appropriate: A requirement 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 compensation for any special damages sustained 
as a result of the retaliation, including litigation costs, expert 
witness fees, and reasonable attorney's 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 on the record. 
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 appropriate relief 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 which terminates the 
proceeding. Where the Secretary has determined that a violation has 
occurred, the Secretary, where appropriate, will assess against the 
respondent a sum equal to the total amount of all costs and expenses, 
including attorney's and expert witness fees, reasonably incurred by 
the complainant for, or in connection with, the bringing of the 
complaint upon which the Secretary issued the order. Under NTSSA, the 
Secretary also may award a prevailing employer a reasonable attorney's 
fee, not exceeding $1,000, if she 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 provision provides that the 
court will have jurisdiction over the action without regard to the 
amount in controversy and that the case will be tried before a jury at 
the request of either party.

III. Summary and Discussion of Regulatory Provisions

    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 (Secretary's Order 5-2007, 72 FR 31160 (June 5, 
2007)). 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's Order 1-2010 
(Jan. 15, 2010), 75 FR 3924-01 (Jan. 25, 2010)).

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.
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(a)(10), defines 
``public transportation'' as ``transportation by a conveyance that 
provides regular and continuous general or special transportation to 
the public, but does not include school buses, charter, or intercity 
bus transportation or intercity passenger rail transportation provided 
by the entity described in chapter 243 (or a successor to such 
entity).'' Chapter 243, 49 U.S.C. 24301, governs Amtrak.
    The definition section of FRSA, 49 U.S.C. 20102(2), defines 
``railroad carrier'' as ``a person providing railroad transportation.'' 
The definition section of FRSA, 49 U.S.C. 20102(1), defines 
``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

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general railroad system of transportation.''
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.
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 
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. Equal Employment Opportunity Commission v. United Parcel 
Service, 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.
Section 1982.104 Investigation.
    This section describes the procedures that apply to the 
investigation of NTSSA and FRSA complaints. 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. Paragraph (c) addresses disclosure to the complainant of 
respondent's submissions to the agency that are responsive to the 
complaint. 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 the Wendell H. Ford Aviation 
Investment and Reform Act for the 21st Century (``AIR21''), 49 U.S.C. 
42121, which are the same as those provided under NTSSA. Therefore, 
this paragraph generally conforms to the similar provision in the 
regulations implementing AIR21. Paragraph (f) describes the procedures 
the Assistant Secretary will follow prior to the issuance of findings 
and a preliminary order when the Assistant Secretary has reasonable 
cause to believe that a violation has occurred.
    All these statutes require that a complainant make an initial prima 
facie showing that the complainant engaged in protected activity that 
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, 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 the statutes, that the respondent perceived 
the employee to have engaged or to be about to engage in protected 
activity), and that the protected activity (or the 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, giving rise to the 
inference that it was a contributing factor in the adverse action.
    If the complainant does not make the prima facie showing, the 
investigation must be discontinued and the complaint dismissed. See 
Trimmer v. U.S. Dep't of Labor, 174 F.3d 1098, 1101 (10th Cir. 1999) 
(noting that the burden-shifting framework of the whistleblower 
provisions of Section 211 of the Energy Reorganization Act of 1974, as 
amended, (``ERA''), 42 U.S.C. 5851, which is the same as that under 
AIR21 and the Surface Transportation Assistance Act of 1982 (``STAA''), 
49 U.S.C. 31105, served a ``gatekeeping function'' that ``stemm[ed] 
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, the Secretary must dismiss a 
complaint under NTSSA or FRSA and not investigate (or cease 
investigating) if either: (1) The complainant fails to meet the prima 
facie showing that protected activity was a contributing factor in the 
adverse action; or (2) the employer rebuts that showing by clear and 
convincing evidence that it would have taken the same adverse action 
absent the protected activity.
    Assuming that an investigation proceeds beyond the gatekeeping 
phase, the statutory burdens of proof require an employee to prove that 
the alleged protected activity was a ``contributing factor'' to 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.'' Marano v. Dep't of Justice, 2 F.3d 1137, 
1140 (Fed. Cir. 1993) (Whistleblower Protection Act, 5 U.S.C. 
1221(e)(1)). 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 the 
complainant's protected activity. See Klopfenstein v. PCC Flow Techs. 
Holdings, Inc., No. 04-149, 2006 WL 3246904, at *13 (ARB May 31, 2006) 
(discussing contributing factor test under the whistleblower provisions 
of Section 806 of the Corporate and Criminal Fraud Accountability Act 
of 2002, Title VIII of the Sarbanes-Oxley Act of 2002 (``SOX''), 18 
U.S.C. 1514A) (citing Rachid v. Jack in the Box, Inc., 376 F.3d 305, 
312 (5th Cir. 2004)).
    The NTSSA burdens of proof, and the AIR21 burdens of proof which 
the FRSA now incorporates, do not address the evidentiary standard that 
applies to a complainant's proof that protected activity was a 
contributing factor in an adverse action. NTSSA and AIR21 simply 
provide that the Secretary may find a violation only ``if the 
complainant demonstrates'' that protected activity was a contributing 
factor in the alleged adverse action. See 6 U.S.C. 1142(c)(2)(B)(iii) 
and 49 U.S.C. 42121(b)(2)(B)(iii). It is the Secretary's position that 
the complainant must prove by a ``preponderance of the evidence'' that 
his or her protected activity contributed to the adverse action; 
otherwise, the burden never shifts to the employer to establish its 
defense by ``clear and convincing evidence.'' See, e.g., Allen v. 
Admin. Review Bd., 514 F.3d 468, 475 n. 1 (5th Cir. 2008) (``The term 
`demonstrate' [under 42121(b)(2)(B)(iii)] means to prove by a 
preponderance of the evidence.''). Once the complainant establishes 
that the protected activity was a contributing factor in the adverse 
action, the employer can escape liability only by proving by clear and 
convincing

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evidence that it would have reached the same decision even in the 
absence of the prohibited rationale. The ``clear and convincing 
evidence'' standard is a higher burden of proof than the 
``preponderance of the evidence'' standard.
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. 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 
attorney's fees 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. See, e.g., Secretary of Labor on behalf of York v. BR&D 
Enters., Inc., 23 FMSHRC 697, 2001 WL 1806020, at *1 (June 26, 2001). 
Congress intended that employees be preliminarily reinstated to their 
positions if OSHA finds reasonable cause 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. An employer does not 
have 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.

Subpart B--Litigation

Section 1982.106 Objections to the Findings and the Preliminary Order 
and Request 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 e-mail communication is considered 
the date of the filing; if the objection is filed in person, by hand-
delivery or other means, the objection is filed upon receipt. The 
filing of objections is 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 
Associate Solicitor, Division of Fair Labor Standards, U.S. Department 
of Labor, 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., No. 04-101, 2005 WL 2865915, at *7 (ARB Oct. 31, 
2005).
Section 1982.107 Hearings
    This section adopts the rules of practice and evidence of the 
Office of Administrative Law Judges at 29 CFR part 18. 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 does not address 
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.
Section 1982.108 Role of Federal Agencies
    Under NTSSA and FRSA, it is not expected that the Secretary 
ordinarily will appear as a party in the proceeding. The Secretary has 
found that in most whistleblower cases, parties have been ably 
represented and the public interest has not required the Department's 
participation. Nevertheless, the Assistant Secretary, at his or her 
discretion, may participate as a party or amicus curiae at any time in 
the administrative proceedings. For example, the Assistant Secretary 
may exercise his or her discretion to prosecute the case in the 
administrative proceeding before an ALJ; petition for review of a 
decision of an ALJ, including a decision based on a settlement 
agreement between the complainant and the respondent, regardless of 
whether the Assistant Secretary participated before the ALJ; or 
participate as amicus curiae before the ALJ or in the ARB proceeding. 
Although we anticipate that ordinarily the Assistant Secretary will not 
participate, the Assistant Secretary may choose to 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 and the 
Department of Homeland Security, at those agencies' discretion, also 
may participate as amicus curiae at any time in the proceedings.
Section 1982.109 Decision and Orders 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 NTSSA 
or FRSA. 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

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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 section 1982.104.
Section 1982.110 Decision and Orders of the Administrative Review Board
    Upon the issuance of the ALJ's decision, the parties have 10 
business days within which to petition the ARB for review of that 
decision. 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 e-mail communication will be 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 
will ordinarily be deemed waived. The ARB has 30 days to decide whether 
to grant the petition for review. If the ARB does not grant the 
petition, the decision of the ALJ becomes the final decision of the 
Secretary. 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.
    This section also provides that in the exceptional case, 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. The Secretary believes that 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, and a balancing of possible harms 
to the parties and the public favors a stay.

Subpart C--Miscellaneous Provisions

Section 1982.111 Withdrawal of Complaints, 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, the withdrawal of objections to 
findings and/or orders, and the withdrawal of petitions for review. It 
also provides for approval of settlements at the investigative and 
adjudicative stages of the case.
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 ARB to submit the record of proceedings to the 
appropriate court pursuant to the rules of such court.
Section 1982.113 Judicial Enforcement
    This section describes the Secretary's power 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 AIR21, 49 U.S.C. 42121(b)). See 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. See 49 U.S.C. 
20109(d)(2)(A)(iii). However, there is no provision in FRSA permitting 
the 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 1142(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 
1142(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. See 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 is consistent 
with the Secretary's interpretation of similar language in AIR21 and 
SOX. But see Bechtel v. Competitive Technologies, Inc., 448 F.3d 469 
(2d Cir. 2006); 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.
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. It requires complainants to provide notice 
15 days in advance of their intent to file a complaint in district 
court.
    It is the Secretary's position that complainants may not initiate 
an action in Federal court after 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 the ``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, permitting the 
complainant to file a new case in district court in such circumstances 
could conflict with the parties' rights to seek judicial review of the 
Secretary's final decision in the court of appeals.

[[Page 53527]]

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.

IV. Paperwork Reduction Act

    This rule does not contain a reporting provision that is subject to 
review by the Office of Management and Budget (OMB) under the 
provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13).

V. Administrative Procedure Act

    The notice and comment rulemaking procedures of Section 553 of the 
Administrative Procedure Act (``APA'') do not apply ``to 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 that section. Therefore, 
publication in the Federal Register of a notice of proposed rulemaking 
and request for comments is not required for these regulations, which 
provide procedures for the handling of retaliation complaints. Although 
this is a procedural rule 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. A final rule will be 
published after the Department 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 interim 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 Order 12866; Unfunded Mandates Reform Act of 1995; Small 
Business Regulatory Enforcement Fairness Act of 1996; Executive Order 
13132

    The Department has concluded that this rule should be treated as a 
``significant regulatory action'' within the meaning of Section 3(f)(4) 
of Executive Order 12866 because the NTSSA and FRSA whistleblower 
provisions are new or substantially new programs. Executive Order 12866 
requires a full economic impact analysis only for ``economically 
significant'' rules, which are defined in Section 3(f)(1) as rules that 
may ``have an annual effect on the economy of $100 million or more, or 
adversely affect in a material way the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or tribal governments or communities.'' Because the rule is 
procedural in nature, it is not expected to have a significant economic 
impact; therefore no economic impact analysis has been prepared. For 
the same reason, the rule does not require a Section 202 statement 
under the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531 et seq.). 
Furthermore, because this is a rule of agency procedure or practice, it 
is not a ``rule'' within the meaning of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (5 U.S.C. 804(3)(C)), and does not 
require Congressional review. Finally, this rule does not have 
``federalism implications.'' The rule does not have ``substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government'' and therefore 
is not subject to Executive Order 13132 (Federalism).

VII. Regulatory Flexibility Analysis

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

List of Subjects in 29 CFR Part 1982

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

    Signed at Washington, DC, August 19, 2010.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.

0
Accordingly, for the reasons set out in the preamble, 29 CFR part 1982 
is added to read as follows:

PART 1982--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS 
UNDER THE NATIONAL TRANSIT SYSTEMS SECURITY ACT OF 2007, ENACTED AS 
SECTION 1413 OF THE IMPLEMENTING RECOMMENDATIONS OF THE 9/11 
COMMISSION ACT OF 2007, AND THE FEDERAL RAILROAD SAFETY ACT, AS 
AMENDED BY SECTION 1521 OF THE IMPLEMENTING RECOMMENDATIONS OF THE 
9/11 COMMISSION ACT OF 2007

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 
request 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, 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 No. 5-2007, 72 FR 31160 (June 5, 2007); Secretary of 
Labor's Order No. 1-2010 (Jan. 15, 2010), 75 FR 3924-01 (Jan. 25, 
2010).

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


Sec.  1982.100  Purpose and scope.

    (a) This part implements procedures of NTSSA, 6 U.S.C. 1142, and 
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

[[Page 53528]]

security (or, in circumstances covered by the statutes, 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 
statutes, 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.
    (b) This part establishes procedures pursuant to NTSSA and FRSA for 
the expeditious handling of retaliation complaints filed by employees, 
or by persons acting on their behalf. These rules, together with those 
codified at 29 CFR part 18, set forth the procedures for submission of 
complaints under NTSSA or FRSA, 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.

    (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 transportation by a conveyance that 
provides regular and continuous general or special transportation to 
the public, but does not include school buses, charter, or intercity 
bus transportation or intercity passenger rail transportation provided 
by Amtrak.
    (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.
    (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 discriminate against, including 
but not limited to intimidating, threatening, restraining, coercing, 
blacklisting, or disciplining an employee if such discrimination 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 discriminate 
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

[[Page 53529]]

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 paragraph (a)(2)(ii) of this section, only paragraph 
(a)(2)(ii)(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 discriminate against, including but not limited to intimidating, 
threatening, restraining, coercing, blacklisting, or disciplining an 
employee if such discrimination 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.; 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 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 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 
discriminate 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 paragraphs (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 paragraph (b)(2)(ii) of this section, only paragraph 
(b)(2)(ii)(A) shall apply to security personnel employed by a railroad 
carrier to protect individuals and property transported by railroad.
    (3) 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 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--
    (i) 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.
    (ii) 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 by an employer in violation of NTSSA or FRSA may 
file, or have filed by any person on the employee's behalf, a complaint 
alleging such retaliation.

[[Page 53530]]

    (b) Nature of filing. No particular form of complaint is required. 
A complaint may be filed orally or in writing. Oral complaints will be 
reduced to writing by OSHA. If a complainant is 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 
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. Within 180 days after an alleged violation of 
NTSSA or FRSA occurs, 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. The date of the postmark, facsimile transmittal, e-mail 
communication, telephone call, hand-delivery, delivery to a third-party 
commercial carrier, or in-person filing at an OSHA office will be 
considered the date of filing. The time for filing a complaint may be 
tolled for reasons warranted by applicable case law.


Sec.  1982.104  Investigation.

    (a) Upon receipt of a complaint in the investigating office, the 
Assistant Secretary will notify the respondent of the filing of the 
complaint by providing a copy of the complaint, redacted, if necessary, 
in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, et seq., and 
other applicable confidentiality laws, and will also notify the 
respondent of its rights under paragraphs (b) and (f) of this section 
and paragraph (e) of Sec.  1982.110. The Assistant Secretary will 
provide a copy of the unredacted complaint to the complainant (or to 
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 the Assistant Secretary a written statement and any 
affidavits or documents substantiating its position. Within the same 20 
days, the respondent may request a meeting with the Assistant Secretary 
to present its position.
    (c) Throughout the investigation, the agency will provide to the 
complainant (or the complainant's legal counsel if complainant is 
represented by counsel) a copy of all of respondent's submissions to 
the agency that are responsive to the complainant's whistleblower 
complaint. Before providing such materials to the complainant, the 
agency will redact them, if necessary, in accordance with the Privacy 
Act of 1974, 5 U.S.C. 552a, et seq., and other applicable 
confidentiality laws.
    (d) Investigations will be conducted in a manner that protects the 
confidentiality of any person who provides information on a 
confidential basis, other than the complainant, in accordance with part 
70 of title 29 of the Code of Federal Regulations.
    (e)(1) A complaint of alleged violation will be dismissed unless 
the complainant has made a prima facie showing that protected activity 
was a contributing factor in the adverse action alleged in the 
complaint.
    (2) The complaint, supplemented as appropriate by interviews of the 
complainant, must allege the existence of facts and evidence to make a 
prima facie showing as follows:
    (i) The employee engaged in a protected activity (or, in 
circumstances covered by the statutes, was perceived to have engaged or 
to be about to engage in protected activity);
    (ii) The respondent knew or suspected, actually or constructively, 
that the employee engaged in the protected activity (or, in 
circumstances covered by the statutes, 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 
the statutes, 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, 
giving rise to the inference that it was a contributing factor in the 
adverse action. If the required showing has not been made, the 
complainant (or the complainant's legal counsel if complainant is 
represented by counsel) will be so notified and the investigation will 
not commence.
    (4) Notwithstanding a finding that a complainant has made a prima 
facie showing, as required by this section, an investigation of the 
complaint will not be conducted or will be discontinued if the 
respondent, pursuant to the procedures provided in this paragraph, 
demonstrates by clear and convincing evidence that it would have taken 
the same adverse action in the absence of the complaina