Procedures for the Handling of Retaliation Complaints Under the Employee Protection Provision of the Surface Transportation Assistance Act of 1982 (STAA), as Amended, 44121-44139 [2012-17994]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 77, Number 145 (Friday, July 27, 2012)]
[Rules and Regulations]
[Pages 44121-44139]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-17994]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1978

[Docket Number: OSHA-2008-0026]
RIN 1218-AC36


Procedures for the Handling of Retaliation Complaints Under the 
Employee Protection Provision of the Surface Transportation Assistance 
Act of 1982 (STAA), as Amended

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Final rule.

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SUMMARY: This document provides the final text of regulations governing 
employee protection (or ``whistleblower'') claims under the Surface 
Transportation Assistance Act of 1982 (STAA), as amended, implementing 
statutory changes to STAA enacted into law on August 3, 2007, as part 
of the Implementing Recommendations of the 9/11 Commission Act of 2007. 
On August 31, 2010, the Occupational Safety and Health Administration 
(OSHA) published an interim final rule (IFR) for STAA whistleblower 
complaints in the Federal Register and requested public comment on the 
IFR. This final rule implements changes to the IFR in response to 
comments received, where appropriate. This final rule also finalizes 
changes to the procedures for handling whistleblower complaints under 
STAA that were designed to make them more consistent with OSHA's 
procedures for handling retaliation complaints under Section 211 of the 
Energy Reorganization Act of 1974, and other whistleblower provisions. 
It also sets forth interpretations of STAA.

DATES: This final rule is effective on July 27, 2012.

FOR FURTHER INFORMATION CONTACT: Sandra Dillon, Director, Office of the 
Whistleblower Protection Program, Occupational Safety and Health 
Administration, U.S. Department of Labor, Room N-3112, 200 Constitution 
Avenue NW., Washington, DC 20210; telephone (202) 693-2199. This is not 
a toll-free number. This Federal Register publication is available in 
alternative formats: large print, electronic file on computer disk 
(Word Perfect, ASCII, Mates with Duxbury Braille System), and 
audiotape.

SUPPLEMENTARY INFORMATION:

I. Background

    Among other provisions of the Implementing Recommendations of the 
9/11 Commission Act of 2007 (9/11 Commission Act), Public Law 110-53, 
121 Stat. 266, section 1536 re-enacted the whistleblower provision in 
STAA, 49 U.S.C. 31105 (previously referred to as ``Section 405''), with 
certain amendments. The regulatory revisions described herein reflect 
these statutory changes and also seek to clarify and improve OSHA's 
procedures for handling STAA whistleblower claims, as well as to set 
forth interpretations of STAA. To the extent possible within the bounds 
of applicable statutory language, these revised regulations are 
designed to be consistent with the procedures applied to claims under 
other whistleblower statutes administered by OSHA, including Section 
211 of the Energy Reorganization Act of 1974 (ERA), 42 U.S.C. 5851, the 
Wendell H. Ford Aviation Investment and Reform Act for the 21st Century 
(AIR21), 49 U.S.C. 42121, and Title VIII of the Sarbanes-Oxley Act of 
2002 (SOX), 18 U.S.C. 1514A. Responsibility for receiving and 
investigating complaints under 49 U.S.C. 31105 has been delegated by 
the Secretary of Labor (Secretary) to the Assistant Secretary of Labor 
for Occupational Safety and Health (Assistant Secretary). Secretary's 
Order 1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012). Hearings on 
determinations by the Assistant Secretary are conducted by the Office 
of Administrative Law Judges, and appeals from decisions by 
administrative law judges (ALJs) are decided by the Department of 
Labor's Administrative Review Board (ARB) (Secretary's Order 1-2010), 
75 FR 3924-01 (Jan. 25, 2010).

II. Summary of Statutory Changes to STAA Whistleblower Provisions

    The 9/11 Commission Act amended 49 U.S.C. 31105, and the related 
definitions provision at 49 U.S.C. 31101, by making the changes 
described below.

Expansion of Protected Activity

    Before passage of the 9/11 Commission Act, STAA protected certain 
activities related to commercial motor vehicle safety. The 9/11 
Commission Act expanded STAA's coverage to commercial motor vehicle 
security. In particular, 49 U.S.C. 31105(a)(1)(A) previously made it

[[Page 44122]]

unlawful for a person to discharge, discipline, or discriminate against 
an employee regarding pay, terms, or privileges of employment because 
the employee, or another person at the employee's request, filed a 
complaint or began a proceeding related to a violation of a commercial 
motor vehicle safety regulation, standard or order, or testified or 
planned to testify in such a proceeding. The 9/11 Commission Act 
expanded this provision to include complaints and proceedings related 
to violations of commercial motor vehicle security regulations, 
standards, and orders.
    Prior to the 2007 amendments, paragraph (a)(1)(B)(i) of STAA's 
whistleblower provision prohibited a person from discharging, 
disciplining, or discriminating against an employee regarding pay, 
terms or privileges of employment for refusing to operate a vehicle in 
violation of a regulation, standard, or order related to commercial 
motor vehicle safety or health. The statute also protected any employee 
who refused to operate a vehicle because he or she had a reasonable 
apprehension of serious injury to himself or herself or the public 
because of the vehicle's unsafe condition. The recent STAA amendments 
expanded these protections to cover: (1) Any employee who refuses to 
operate a vehicle in violation of regulations, standards, or orders 
related to commercial motor vehicle security; and (2) any employee who 
refuses to operate a vehicle because he or she has a reasonable 
apprehension of serious injury to himself or herself or the public due 
to the vehicle's hazardous security condition.
    Before the statutory amendments, paragraph (a)(2) of STAA's 
whistleblower provision provided that an employee's apprehension of 
serious injury was reasonable only if a reasonable person in the 
circumstances then confronting the employee would have concluded that 
the ``unsafe condition'' of the vehicle established a real danger of 
accident, injury, or serious impairment to health. Moreover, to qualify 
for protection under this provision the employee had to have sought 
from the employer, and been unable to obtain, correction of the 
``unsafe condition.'' The August 2007 amendments replaced the term 
``unsafe condition'' with the phrase ``hazardous safety or security 
condition'' throughout this paragraph.
    The 9/11 Commission Act added a new paragraph to 49 U.S.C. 
31105(a)(1)(A)(ii), making it unlawful for a person to discharge, 
discipline or discriminate against an employee regarding pay, terms or 
privileges of employment because of a perception that the employee has 
filed or is about to file a complaint or has begun or is about to bring 
a proceeding concerning a violation of a commercial motor vehicle 
safety or security regulation, standard, or order. Paragraph (a)(1)(C) 
of 49 U.S.C. 31105 is also new and makes it unlawful to discharge, 
discipline, or discriminate against an employee regarding pay, terms, 
or privileges of employment because the employee accurately reports 
hours on duty pursuant to 49 U.S.C. Chapter 315. The recent statutory 
amendments also added paragraph (a)(1)(D) to 49 U.S.C. 31105. This 
paragraph prohibits discharging, disciplining or discriminating against 
an employee regarding pay, terms or privileges of employment because 
the employee cooperates, or is perceived as being about to cooperate, 
with a safety or security investigation by the Secretary of 
Transportation, the Secretary of Homeland Security, or the National 
Transportation Safety Board. Finally, the 9/11 Commission Act inserted 
paragraph (a)(1)(E) into 49 U.S.C. 31105. This provision prohibits a 
person from discharging, disciplining, or discriminating against an 
employee regarding pay, terms or privileges of employment because the 
employee furnishes, or is perceived as having furnished or being about 
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 about the facts concerning any accident or incident resulting in 
injury or death to an individual or damage to property occurring in 
connection with commercial motor vehicle transportation.

Legal Burdens of Proof for STAA Complaints

    Prior to the 9/11 Commission Act, the parties' burdens of proof in 
STAA actions were understood to be analogous to those developed for 
retaliation claims under Title VII of the Civil Rights Act of 1964, 42 
U.S.C. 2000e et seq. See, e.g., Clean Harbors Envtl. Servs., Inc. v. 
Herman, 146 F.3d 12, 21-22 (1st Cir. 1998); Yellow Freight Sys., Inc. 
v. Reich, 27 F.3d 1133, 1138 (6th Cir. 1994). The plaintiff's prima 
facie case could be carried by a sufficient showing that (1) he or she 
engaged in protected activity; (2) he or she suffered an adverse 
action; and (3) a causal connection existed between the two events. Id. 
The ARB also required proof that the employer was aware that the 
employee had engaged in the protected activity. See, e.g., Baughman v. 
J.P. Donmoyer, Inc., No. 05-1505, 2007 WL 3286335, at *3 (ARB Oct. 31, 
2007).
    Once the complainant made this showing, an inference of retaliation 
arose and the burden shifted to the employer to produce evidence of a 
legitimate, non-retaliatory reason for the adverse action. Clean 
Harbors, 146 F.3d at 21; Yellow Freight, 27 F.3d at 1138. If the 
employer met this burden of production, the inference of retaliation 
was rebutted and the burden shifted back to the complainant to show by 
a preponderance of the evidence that the legitimate reason was a 
pretext for unlawful retaliation. Id. Where there was evidence that the 
employer acted out of mixed motives, i.e., it acted for both 
permissible and impermissible reasons, the employer bore ``the burden 
of establishing by a preponderance of the evidence that it would have 
taken the adverse employment action in the absence of the employee's 
protected activity.'' Clean Harbors, 146 F.3d at 21-22.
    The 9/11 Commission Act amended paragraph (b)(1) of 49 U.S.C. 31105 
to state that STAA whistleblower complaints will be governed by the 
legal burdens of proof set forth in AIR21 at 49 U.S.C. 42121(b). AIR21 
contains whistleblower protections for employees in the aviation 
industry. Under AIR21, a violation may be found only if the complainant 
demonstrates that protected activity was a contributing factor in the 
adverse action described in the complaint. 49 U.S.C. 
42121(b)(2)(B)(iii). Relief is unavailable 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. 49 U.S.C. 
42121(b)(2)(B)(iv). See Vieques Air Link, Inc. v. Dep't of Labor, 437 
F.3d 102, 108-09 (1st Cir. 2006) (per curiam) (burdens of proof under 
AIR21).

Written Notification of Complaints and Findings

    Prior to the 9/11 Commission Act, STAA's whistleblower provision 
required the Secretary to notify persons when complaints were filed 
against them. The statute has now been amended at paragraph (b)(1) to 
clarify that this notice must be in writing. Similarly, the 9/11 
Commission Act amended paragraph (b)(2)(A) of 49 U.S.C. 31105 to 
clarify that the Secretary's findings must be in writing.

Expansion of Remedies

    Paragraph (b)(3)(A) of 49 U.S.C. 31105 previously compelled the 
Secretary, upon finding a violation of STAA's

[[Page 44123]]

whistleblower provision, to order the employer to take affirmative 
action to abate the violation, reinstate the complainant to his or her 
former position with the same pay and terms and privileges of 
employment, and pay compensatory damages, including backpay. The 9/11 
Commission Act amended paragraph (b)(3)(A)(iii) to reflect existing law 
on damages in STAA whistleblower cases and expressly provide for the 
award of interest on backpay as well as compensation for any special 
damages sustained as a result of the unlawful discrimination, including 
litigation costs, expert witness fees, and reasonable attorney fees. 
The 2007 amendments also added a new provision to 49 U.S.C. 31105, 
paragraph (b)(3)(C), authorizing punitive damage awards of up to 
$250,000.

De Novo Review

    The August 2007 amendments added paragraph (c) to 49 U.S.C. 31105. 
That paragraph provides for de novo review of a STAA whistleblower 
claim 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 a 
complaint and the delay is not due to the complainant's bad faith. 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.

Preemption and Employee Rights

    The 9/11 Commission Act added a new provision to 49 U.S.C. 31105 at 
paragraph (f) clarifying that nothing in the statute preempts or 
diminishes any other safeguards against discrimination provided by 
Federal or State law. The 2007 amendments to STAA also added a 
provision at paragraph (g) in 49 U.S.C. 31105 stating that nothing in 
STAA shall be deemed to diminish the rights, privileges, or remedies of 
any employee under any Federal or State law or under any collective 
bargaining agreement. New paragraph (g) further states that rights and 
remedies under 49 U.S.C. 31105 ``may not be waived by any agreement, 
policy, form, or condition of employment.''

Miscellaneous Provisions

    The 9/11 Commission Act added a new provision to 49 U.S.C. 31105 at 
paragraph (h) regarding the circumstances in which the Secretary of 
Transportation and the Secretary of Homeland Security may disclose the 
names of employees who have provided information about certain alleged 
violations. In addition, the amendments added a new paragraph (i) to 49 
U.S.C. 31105, which provides that the Secretary of Homeland Security 
will establish a process by which any person may report motor carrier 
vehicle security problems, deficiencies or vulnerabilities. Neither of 
these amendments significantly impacts OSHA's handling of whistleblower 
complaints under STAA.

Definition of ``Employee''

    Definitions applicable to STAA are found at 49 U.S.C. 31101. That 
section defines ``employee'' as a driver of a commercial motor vehicle 
(including an independent contractor when personally operating a 
commercial motor vehicle), a mechanic, a freight handler, or an 
individual not an employer, who (i) directly affects commercial motor 
vehicle safety in the course of employment by a commercial motor 
carrier; and (ii) is not an employee of the Federal, State or local 
government acting in the course of employment. The 9/11 Commission Act 
incorporated this definition into the whistleblower section of STAA, 49 
U.S.C. 31105, at paragraph (j), and expanded it to include employees 
who directly affect commercial motor vehicle security in the course of 
employment by a commercial motor carrier.

III. Summary of Rulemaking Proceedings

    On August 31, 2010, OSHA published in the Federal Register an IFR 
implementing statutory changes to STAA enacted into law on August 3, 
2007, as part of the 9/11 Commission Act, Public Law 110-53, 121 Stat. 
266, as well as making other improvements to Part 1978. 75 FR 53544 
(Aug. 31, 2010). In addition to promulgating the IFR, OSHA's notice 
included a request for public comment on the interim rules by November 
1, 2010. There were no objections to most of the IFR and thus OSHA has 
adopted the IFR, except as noted.
    In response to the IFR, three organizations--the Government 
Accountability Project (GAP), the National Whistleblower Center (NWC), 
and the Transportation Trades Department, AFL-CIO (TTD), filed comments 
with the agency within the public comment period. OSHA has reviewed and 
considered these comments and now adopts this final rule, which has 
been revised in part to address problems perceived by the agency and 
the commenters.

General Comments

    NWC made several comments addressing particular provisions of the 
rule. These comments have been addressed, and changes to the regulatory 
provisions have been explained in the Summary and Discussion of 
Regulatory Provisions (below), where applicable. GAP commented that 
``these rules reasonably interpret statutory requirements and in some 
instances [will] significantly improve [OSHA] procedures to investigate 
whistleblower complaints.'' GAP specifically expressed support for the 
following provisions: .103(b), .103(d), .104(c), .104(d), and certain 
aspects of .104(f). Finally, TTD expressed its support for the interim 
final rules in general, commenting that the ``rules implement improved 
procedures for handling whistleblower complaints under [STAA].'' TTD 
believes that the changes ``provide important protections for 
transportation workers,'' and TTD applauded OSHA for moving forward 
with the rulemaking. TTD's comments went on to suggest some changes and 
modifications to other interim final rules that were submitted on the 
same docket as the STAA interim final rule, namely the Procedures for 
the Handling of Retaliation Complaints Under the National Transit 
System Security Act and the Federal Railroad Safety Act. Those specific 
comments were not relevant to STAA and thus have not been addressed in 
the regulatory text.

IV. Summary and Discussion of Regulatory Provisions

    The regulatory provisions in this part have been made to reflect 
the 9/11 Commission Act's amendments to STAA, to make other 
improvements to the procedures for handling STAA whistleblower cases, 
to interpret some provisions of STAA, and, to the extent possible 
within the bounds of applicable statutory language, to be consistent 
with regulations implementing the whistleblower provisions of the 
following statutes, among others, that are also administered and 
enforced by OSHA: the Safe Drinking Water Act, 42 U.S.C. 300j-9(i); the 
Federal Water Pollution Control Act, 33 U.S.C. 1367; the Toxic 
Substances Control Act, 15 U.S.C. 2622; the Solid Waste Disposal Act, 
42 U.S.C. 6971; the Clean Air Act, 42 U.S.C. 7622; the ERA; the 
Comprehensive Environmental Response, Compensation and Liability Act of 
1980, 42 U.S.C. 9610 (all regulations for these statutory provisions 
jointly codified at 29 CFR part 24); AIR21, codified at 29 CFR part 
1979; SOX, codified at 29 CFR part

[[Page 44124]]

1980; the Pipeline Safety Improvement Act of 2002, 49 U.S.C. 60129, 
codified at 29 CFR part 1981; the National Transit Systems Security 
Act, 6 U.S.C. 1142, the Federal Railroad Safety Act, 49 U.S.C. 20109, 
codified at 29 CFR part 1982; and the Consumer Product Safety 
Improvement Act, 15 U.S.C. 2087, codified at 29 CFR part 1983. The 
section numbers of these STAA regulations correspond as closely as 
possible with the numbering in the regulations implementing other 
whistleblower statutes administered by OSHA.
    These regulatory provisions use more appropriate terminology. 
First, cases brought under the whistleblower provisions of STAA are 
referred to as actions alleging ``retaliation'' rather than 
``discrimination.'' This terminology, which has already been used in 
the regulations implementing the ERA and the other whistleblower 
statutes covered by 29 CFR part 24, is not intended to have substantive 
effect. It simply reflects the fact that claims brought under these 
whistleblower provisions are prototypical retaliation claims. A 
retaliation claim is a specific type of discrimination claim that 
focuses on actions taken as a result of an employee's protected 
activity rather than as a result of an employee's characteristics 
(e.g., race, gender, or religion).
    Second, before the issuance of the IFR, the regulations referred to 
persons named in STAA whistleblower complaints as ``named persons,'' 
but in these regulations they are referred to as ``respondents.'' 
Again, this wording is not intended to have any substantive impact on 
the handling of STAA whistleblower cases. This wording simply reflects 
a preference for more conventional terminology.

Section 1978.100 Purpose and Scope

    This section describes the purpose of the regulations implementing 
STAA's whistleblower provision and provides an overview of the 
procedures contained in the regulations. Paragraph (a) of this section 
includes an updated citation reference to the correct section of the 
United States Code where STAA's whistleblower provision is located and 
to reflect the recent statutory amendments extending coverage to 
activities pertaining to commercial motor vehicle security matters. 
Minor editorial revisions made to paragraph (b) of this section in the 
IFR are continued here.
    The express inclusion of certain provisions in Part 1978 should not 
be read to suggest that similar legal principles may not be implied 
under other OSHA whistleblower rules. In other words, the canon of 
construction expressio unius est exclusio alterius (the expression of 
one thing is the exclusion of another) should not be applied in 
comparing these rules to other OSHA whistleblower rules. See United 
States v. Vonn, 535 U.S. 55, 65 (2002) (canon not applied when contrary 
to intent of drafters). For example, the express references to oral and 
internal complaints in these rules do not imply that oral and internal 
complaints are not protected under other OSHA whistleblower statutes.

Section 1978.101 Definitions

    This section includes general definitions applicable to STAA's 
whistleblower provision. The definitions are organized in alphabetical 
order and minor edits made to clarify regulatory text in the IFR are 
adopted here.
    A definition of ``business days'' in paragraph (c) clarifies that 
the term means days other than Saturdays, Sundays, and Federal 
holidays. This definition is consistent with 29 CFR 1903.22(c), an OSHA 
regulation interpreting the analogous term ``working days'' in section 
10 of the Occupational Safety and Health Act of 1970 (OSH Act), 29 
U.S.C. 659, in the same way.
    The regulations in effect before the IFR defined ``commercial motor 
carrier'' as a person who satisfied the definitions of ``motor 
carrier'' and ``motor private carrier'' in 49 U.S.C. 10102(13) and 
10102(16). The IFR replaced that definition with: ``Commercial motor 
carrier means any person engaged in a business affecting commerce 
between States or between a State and a place outside thereof who owns 
or leases a commercial motor vehicle in connection with that business, 
or assigns employees to operate such a vehicle.'' This definition of 
``commercial motor carrier'' reflects the Secretary's longstanding 
practice of giving that phrase expansive meaning, i.e., including 
within its reach all motor carriers in or affecting commerce. See, 
e.g., Arnold v. Associated Sand and Gravel Co., ALJ No. 92-STA-19, 1992 
WL 752791, at *3 (Sec'y Aug. 31, 1992) (appropriate to give the term 
``commercial'' its legal meaning; ``legislative history of the STAA * * 
* additionally militates in favor of construing the term expansively to 
describe motor carriers `in' or `affecting' commerce''). In addition, 
this definition of ``commercial motor carrier'' is more consistent with 
the statutory definition of ``employer.'' See 49 U.S.C. 31101(3). The 
definition in the IFR has been adopted here.
    The statutory definition of ``commercial motor vehicle'' in 
paragraph (e) included in the IFR has been revised in the final rule. 
Rather than reiterate the statutory definition, the final rule simply 
refers to the definition of this term as provided in the statute, 49 
U.S.C. 31101(1). This change is intended to ensure that the regulation 
refers to the appropriate statutory definition, should it be amended in 
the future. The definition of ``employee'' reflects the statutory 
amendment expanding coverage to individuals whose work directly affects 
commercial motor vehicle security. In addition, the statutory 
definitions of ``employer'' and ``State'' are in this section at 
paragraphs (i) and (n) respectively, and a paragraph at the end of this 
section clarifies that any future statutory amendments will govern in 
lieu of the definitions contained in section 1978.101. A definition of 
``complaint'' in paragraph (g) clarifies the scope of activities 
protected by STAA's whistleblower provisions. See discussion of section 
1978.102 (Obligations and prohibited acts) below.
    The definition of ``complainant'' in paragraph (f) in the IFR has 
been changed slightly. The word ``whistleblower'' has been deleted 
because it is unnecessary.
    A sentence has been added to the definition of ``employee'' in 
section 1978.101(h) to include former employees and applicants. Such 
language is included in the definition of ``employee'' in other OSHA 
whistleblower rules, such as those under the National Transit Systems 
Security Act and the Federal Railroad Safety Act (29 CFR 1982.101(d)), 
SOX (29 CFR 1980.101(g)), and the OSH Act (29 CFR 1977.5(b)). This 
interpretation is consistent with the Supreme Court's interpretation of 
the term ``employee'' in 42 U.S. C. 2000e-3a, the anti-retaliation 
provision of Title VII of the Civil Rights Act of 1964, to include 
former employees. Robinson v. Shell Oil Co., 519 U.S. 337 (1997). Among 
the Court's reasons for this interpretation were the lack of temporal 
modifiers for the term ``employee''; the reinstatement remedy, which 
only applies to former employees; and the remedial purpose of 
preventing workers from being deterred from whistleblowing because of a 
fear of blacklisting. These reasons apply equally to the anti-
retaliation provision of STAA and the other whistleblower provisions 
enforced by OSHA.
    The definition of ``person'' in paragraph (k) is basically the same 
as the one in the IFR except for the

[[Page 44125]]

addition of ``organized'' before the word ``group.'' The definition 
reflects the statutory definition of ``person'' for the STAA 
whistleblower provision in 49 App. U.S.C. 2301(4) that existed before 
the 1994 codification of Title 49 of the United States Code, dealing 
with transportation. See Public Law 103-272, 108 Stat. 984. The 
provision at 49 App. U.S.C. 2301(4) stated: `` `person' means one or 
more individuals, partnerships, associations, corporations, business 
trusts, or any other organized group of individuals.'' The definition 
of ``person'' was deleted from the codification because it was regarded 
as unnecessary due to the Dictionary Act's definition of ``person'' in 
1 U.S.C. 1, which states that the term ``includes'' entities, such as 
individuals and corporations, which for the most part are the same as 
the entities listed in the definition in this rule. See note after 49 
U.S.C. 31101. Changes in codifications are not intended to make 
substantive changes in a statute unless the congressional intent to do 
so is clear. Muniz v.  Hoffman, 422 U.S. 454, 472 n.11 (1975); Carbo v. 
 United States, 364 U.S. 611, 618-19 (1961). The congressional intent 
to rely on the definition of ``person'' in 1 U.S.C. 1 does not indicate 
an intent to change the definition. Practically all of the entities 
listed in 49 App. U.S.C. 2314 are the same as the ones specifically 
listed in 1 U.S.C. 1. Some of the entities are different, but the 
Dictionary Act definition, using the word ``includes,'' is not an 
exclusive list. Federal Land Bank v.  Bismarck Lumber Co., 314 U.S. 95, 
100 (1941) (``* * * term `including' is not one of all-embracing 
definition, but connotes simply an illustrative application of the 
general principle.''). Furthermore, because the term ``person'' 
includes an individual and it is a ``person'' who is prohibited from 
engaging in the retaliation described in 49 U.S.C. 31105, a corporate 
officer or other individual responsible for the retaliation is 
individually liable under the STAA whistleblower provision. Smith v. 
Lake City Enterprises, Inc., Crystle Morgan, and Donald Morgan, Nos. 
09-033, 08-091, 2010 WL 3910346, at *6 (ARB Sept. 24, 2010) (corporate 
president and sole shareholder individually liable under STAA), citing 
Wilson v.  Bolin Assocs., Inc., ALJ No. 1991-STA-004 (Sec'y Dec. 30, 
1991). Section 1978.102 has been corrected to reflect the fact that the 
statute imposes obligations on ``person[s].''

Section 1978.102 Obligations and Prohibited Acts

    This section describes the activities that are protected under STAA 
and the conduct that is prohibited in response to any protected 
activities. Insertion of this section in the IFR resulted in the 
renumbering of many subsequent sections; that renumbering is continued 
in the final rule. The discussion below highlights some significant 
interpretations of STAA in these provisions, but it is by no means 
exhaustive.
    Among other prohibited acts, it is unlawful under STAA for a person 
to retaliate against an employee because the employee, or someone 
acting pursuant to the employee's request, has filed a complaint 
related to a violation of a commercial motor vehicle safety or security 
regulation, standard or order. 49 U.S.C. 31105(a)(1)(A)(i). STAA's 
whistleblower provision also prohibits a person from retaliating 
against an employee because the person perceives that the employee has 
filed or was about to file such a complaint. 49 U.S.C. 
31105(a)(1)(A)(ii).
    The Secretary has long taken the position that these provisions of 
STAA, as well as similarly worded provisions in other whistleblower 
statutes enforced by OSHA, cover both written and oral complaints to 
the employer or a government agency. The U.S. Supreme Court held that 
an analogous whistleblower provision in the Fair Labor Standards Act 
(FLSA), 29 U.S.C. 215(a)(3), protects oral as well as written 
complaints. Kasten v. Saint-Gobain Performance Plastics Corp., 131 
S.Ct. 1325, 1329 (2011). Among other things, the FLSA forbids employers 
from discriminating against any employee ``because such employee has 
filed any complaint.'' Although the Court examined ``filed any 
complaint'' in the FLSA, the decision is applicable to analogous 
language in STAA, as well as in other OSHA whistleblower statutes. See 
Northcross v. Board of Education of the Memphis City Schools, 412 U.S. 
427, 427-28 (1973) (statutes in pari materia should be construed 
similarly). Specifically, Congress's intent in passing the 
whistleblower provision of STAA was to encourage employee reporting of 
noncompliance with safety regulations. Brock v. Roadway Exp., Inc., 481 
U.S. 252, 258 (1987). As with the FLSA, those employees who are in the 
best position to report complaints under this provision may find it 
difficult or impractical to reduce a complaint to writing. It is 
particularly important for STAA to cover oral as well as written 
complaints because in many cases truck drivers are out on the road and 
the only way they can communicate immediate concerns about violations 
of safety and security regulations is via CB radio or phone. Requiring 
that complaints of safety concerns and violations be in writing would 
undermine the basic purpose of the statute. Furthermore, since the 
passage of the STAA whistleblower provision, the ARB and federal courts 
have consistently held that protected activity under STAA includes 
oral, informal, and unofficial complaints about violations of 
commercial motor vehicle regulations. See, e.g., Harrison v. Roadway 
Express, Inc., No. 00-048, 2002 WL 31932546, at *4 (ARB Dec. 31, 2002) 
(``[C]omplaints about violations of commercial motor vehicle 
regulations may be oral, informal or unofficial.''), aff'd on other 
grounds, 390 F.3d 752 (2d Cir. 2004); see also, e.g., Calhoun v. Dep't 
of Labor, 576 F.3d 201, 212 (4th Cir. 2009) (citing Yellow Freight 
Sys., Inc. v. Reich, 8 F.3d 980, 986 (4th Cir. 1993)) for the 
proposition that ``written or oral'' complaints can be protected under 
STAA). Cf. Power City Elec., Inc., No. C-77-197, 1979 WL 23049, at *2 
(E.D. Wash. Oct. 23, 1979) (noting that the term ``filed'', as used in 
Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. 
660(c), ``is not limited to a written form of complaint.''). As the 
Court noted in Kasten, long-standing interpretations suggest that such 
views are ``reasonable'' and ``consistent with the Act.'' Kasten, 131 
S.Ct. at 1335. For these reasons, sections 1978.102(b)(1) and 
1978.102(e)(1) cover the filing of written and oral complaints with 
employers or government agencies, and the definition of the term 
``complaint,'' reflecting this intent, in the IFR in section 1978.101 
is reiterated here. Similarly, the words ``orally or in writing'' have 
been added after the words ``filed'' and ``file'' in sections 
1978.102(b)(1) and .102(e)(2) to clarify that the protected activity 
includes oral as well as written communication.
    Sections 1978.102(b)(1) and 1978.102(e)(2) clarify the long-
standing position of the Secretary, supported by the courts of appeals, 
that under STAA and other OSHA whistleblower statutes the filing of a 
complaint is protected, whether the complaint is filed with an 
employer, a government agency, or others. Similarly, the definition of 
``complaint'' in section 1978.101(g) states that the term includes 
complaints to employers, government agencies, and others. See 29 CFR 
1977.9(c) (section 11(c) of the OSH Act protects complaints to an 
employer); McKoy v. North Fork Services Joint Venture, No. 04-176, 2007 
WL 1266925, at *3 (ARB Apr. 30, 2007) (complaining to employer about 
violations of environmental statutes is protected activity). STAA does 
not specify the

[[Page 44126]]

entities to whom a complaint may be filed in order to be protected. The 
preamble to the interim final rule noted: ``The Secretary has long 
taken the position that these provisions of STAA, as well as similarly 
worded provisions in other whistleblower statutes enforced by OSHA, 
cover both written and oral complaints to the employer or a government 
agency.'' 75 FR 53544, 53547 (Aug. 31, 2010) (emphasis added). In 
particular, the Secretary has ruled that complaints to an employer are 
protected under STAA in order to promote the statute's goal of highway 
safety. Israel v. Branrich, Inc., No. 09-069, 2011 WL 5023051, at *4 
(ARB Sept. 29. 2011); Davis v. H.R. Hill, Inc., ALJ No.1986-STA-018 
(Sec'y Mar. 19, 1987). This interpretation has been adopted by courts 
of appeals. Calhoun v. Dep't of Labor, 576 F.3d 201, 212 (4th Cir. 
2009); Clean Harbors Envt'l Services, Inc. v. Herman, 146 F.3d 12, 19-
21 (1st Cir. 1998). Cf. Minor v. Bostwick Laboratories, Inc., 669 F.3d 
428 (4th Cir. 2012) (analogous anti-retaliation provision of Fair Labor 
Standards Act protects complaints to an employer).
    In describing the conduct that is prohibited under STAA, the final 
rule adds the words ``harass, suspend, demote'' to paragraphs (b), (c), 
and (e) to make this rule more consistent with other OSHA whistleblower 
rules.

Section 1978.103 Filing of Retaliation Complaints

    This section (formerly section 1978.102) was revised in the IFR to 
make it more consistent with the regulatory procedures for other OSHA-
administered whistleblower laws; that revision is adopted here with 
minor editorial corrections.
    Complaints filed under STAA's whistleblower provision need not be 
in any particular form. Complainants have always been permitted to file 
STAA whistleblower complaints either orally or in writing. In light of 
this longstanding practice, OSHA will continue to accept STAA 
whistleblower complaints in either oral or written form. Allowing STAA 
whistleblower complaints to be filed orally is also consistent with 
OSHA's practice under other OSHA whistleblower laws. Language has been 
added to paragraph (b) to clarify that when a complaint is made orally, 
OSHA will reduce the complaint to writing. In addition, paragraph (b) 
provides that if an employee is not able to file a complaint in 
English, OSHA will accept the complaint in any other language.
    Language in paragraph (c) of the IFR providing that 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 * * *'' has been changed. ``Area Director'' has 
been changed to ``office'' in recognition of the possibility that 
organizational changes may take place.
    Language in paragraph (d) clarifies the date on which a complaint 
will be considered ``filed,'' i.e., the date of postmark, facsimile 
transmittal, electronic communication transmittal, telephone call, 
hand-delivery, delivery to a third-party commercial carrier, or in-
person filing at an OSHA office. To be timely, a complaint must be 
filed within 180 days of the occurrence of the alleged violation. 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 Emp't Opportunity Comm'n v. United 
Parcel Serv., Inc., 249 F.3d 557, 561-62 (6th Cir. 2001).
    Provisions dealing with tolling of the 180-day period for the 
filing of STAA whistleblower complaints were deleted in the IFR for 
consistency with other OSHA whistleblower regulations, which do not 
contain this language; the final rule makes no changes in this regard. 
This revision is not intended to change the way OSHA handles untimely 
complaints under any whistleblower laws. A sentence in the regulatory 
text clarifies that filing deadlines may still be tolled based on 
principles developed in applicable case law. See, e.g., Donovan v. 
Hahner, Foreman & Harness, Inc., 736 F.2d 1421, 1423-29 (10th Cir. 
1984).
    Finally, paragraph (e), ``Relationship to Section 11(c) 
complaints,'' conforms to similar provisions implementing other OSHA 
whistleblower programs and more clearly describes the relationship 
between Section 11(c) complaints and STAA whistleblower complaints. 
Section 11(c) of the OSH Act generally prohibits employers from 
retaliating against employees for filing safety or health complaints or 
otherwise initiating or participating in proceedings under the OSH Act. 
In some circumstances an employee covered by STAA may engage in 
activities that are protected under STAA and Section 11(c) of the OSH 
Act. For example, a freight handler loading cargo onto a commercial 
motor vehicle may complain about both the overloading of that vehicle 
(a safety complaint protected by STAA) and also about an unsafe 
forklift (a safety complaint covered by the OSH Act). In practice, OSHA 
would investigate whether either or both of these protected activities 
caused the firing. Paragraph (e) now clarifies that STAA whistleblower 
complaints that also allege facts constituting an 11(c) violation will 
be deemed to have been filed under both statutes. Similarly, Section 
11(c) complaints that allege facts constituting a violation of STAA's 
whistleblower provision will also be deemed to have been filed under 
both laws. In these cases, normal procedures and timeliness 
requirements under the respective statutes and regulations will be 
followed.
    OSHA notes that a complaint of retaliation filed with OSHA under 
STAA is not a formal document and need not conform to the pleading 
standards for complaints filed in federal district court articulated in 
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. 
Iqbal, 556 U.S. 662 (2009). See Sylvester v. Parexel Int'l, Inc., ARB 
Case No. 07-123, 2011 WL 2165854, at *9-10 (ARB May 26, 2011) (holding 
whistleblower complaints filed with OSHA under analogous provisions in 
the Sarbanes-Oxley Act need not conform to federal court pleading 
standards). Rather, the complaint filed with OSHA under this section 
simply alerts the agency to the existence of the alleged retaliation 
and the complainant's desire that the agency investigate the complaint. 
Upon the filing of a complaint with OSHA, the Assistant Secretary is to 
determine whether ``the complaint, supplemented as appropriate by 
interviews of the complainant'' alleges ``the existence of facts and 
evidence to make a prima facie showing.'' 29 CFR 1978.104(e). As 
explained in section 1978.104(e), if the complaint, supplemented as 
appropriate, contains a prima facie allegation, and the respondent does 
not show clear and convincing evidence that it would have taken the 
same action in the absence of the alleged protected activity, OSHA 
conducts an investigation to determine whether there is reasonable 
cause to believe that retaliation has occurred. See 49 U.S.C. 
42121(b)(2), 29 CFR 1978.104(e).

Section 1978.104 Investigation

    This section (formerly section 1978.103) more closely conforms to 
the regulations implementing other whistleblower provisions 
administered by OSHA. Former paragraph (f) in section 1978.102, which 
deals with the notice sent to employers when complaints are filed 
against them, is in paragraph (a) in section 1978.104, where

[[Page 44127]]

it more appropriately appears under the ``Investigation'' heading. In 
addition, OSHA here adopts minor revisions made to that paragraph in 
the IFR to be more consistent with similar provisions in other OSHA 
whistleblower regulations. Of particular note, OSHA adopts language in 
the IFR which was added requiring OSHA to send the Federal Motor 
Carrier Safety Administration (FMCSA) a copy of the notice that goes to 
the employer. This has been standard practice in any event. Minor 
editorial changes to the language of the IFR have been made.
    Former section 1978.103(a), which simply stated that OSHA would 
investigate and gather data as it deemed appropriate, was deleted in 
the IFR as unnecessary; that deletion remains. The language in 
paragraph (a) of the IFR relating to the provision of information to 
respondent's counsel has been deleted because when the respondent is 
first notified about the complaint the respondent is usually not 
represented by counsel. Paragraph (b) conforms to other OSHA 
whistleblower regulations. Language describing the persons who can be 
present and the issues that can be addressed at OSHA's meetings with 
respondents was deleted in the IFR and is not present in the final 
rule, but this deletion is not substantive.
    Paragraph (c) specifies that throughout the investigation the 
agency will provide to the complainant (or the complainant's legal 
counsel, if the complainant is represented by counsel) a copy of all of 
respondent's submissions to the agency that are responsive to the 
complainant's whistleblower complaint. 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, and other 
applicable confidentiality laws. The phrase ``if necessary'' has been 
added because not all of respondent's submissions will contain 
confidential information. Paragraph (d) addresses confidentiality in 
investigations. Minor editorial changes have been made.
    Paragraph (e) reflects the incorporation of the AIR21 burdens of 
proof provision by the second sentence of 49 U.S.C. 31105(b)(1), which 
was added by the 9/11 Commission Act. This paragraph generally conforms 
to similar provisions in the regulations implementing the AIR21 and ERA 
whistleblower laws. All of these statutes now require that a 
complainant make an initial prima facie showing that protected activity 
was ``a contributing factor'' in the adverse action alleged in the 
complaint, i.e., that the protected activity, alone or in combination 
with other factors, affected in some way the outcome of the employer's 
decision. Ferguson v. New Prime, Inc., No. 10-75, 2011 WL 4343278, at 
*3 (ARB Aug. 31, 2011); Clarke v. Navajo Express, No. 09-114, 2011 WL 
2614326, at *3 (ARB June 29, 2011). 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. Complainant's burden may be 
satisfied, for example, if he or she shows that the adverse action took 
place shortly after protected activity, giving rise to the inference 
that it was a contributing factor in the adverse action. Language from 
some of OSHA's other whistleblower regulations, including those 
implementing AIR21 and ERA, setting forth specific elements of the 
complainant's prima facie case, has been carried over into these 
regulations.
    The revised STAA provision specifically bans retaliation against 
employees because of their perceived protected activity. This provision 
clarifies existing whistleblower law. See Reich v. Hoy Shoe Co., 32 
F.3d 361, 368 (8th Cir. 1994) (``Construing Sec.  11(c), the OSH Act's 
anti-retaliation provision, to protect employees from adverse 
employment actions because they are suspected of having engaged in 
protected activity is consistent with * * * the specific purposes of 
the anti-retaliation provisions.''). However, the references in this 
section to perceived protected activity have been deleted here because 
the concept is covered by the language of paragraph (e)(2)(ii) on 
suspected protected activity. Also, the final rule adds language 
clarifying that the revised STAA provision protects not only actual 
protected activity but also activity about to be undertaken.
    If the complainant does not make the required prima facie showing, 
the investigation must be discontinued and the complaint dismissed. See 
Trimmer v. U.S. Dep't of Labor, 174 F.3d 1098, 1101 (10th Cir. 1999) 
(noting that the burden-shifting framework of the ERA, which is the 
same framework now found in the AIR21 law and STAA, 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. 
Cf. Ferguson, supra (analogous burden shift in litigation); Clarke, 
supra (same). Thus, OSHA must dismiss a complaint under STAA and not 
investigate (or cease investigating) if either: (1) The complainant 
fails to meet the prima facie showing that protected activity or the 
perception of 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 or the perception thereof. The final rule 
makes other minor editorial corrections.
    Former section 1978.103(c) was moved to paragraph (f) of this 
section in the IFR; that change remains. In the IFR minor revisions 
were made to this paragraph to conform to similar paragraphs in the 
regulations implementing the AIR21 and SOX whistleblower provisions; 
those changes remain. The provision allows 10 business days (rather 
than 5 days) for the respondent to present evidence in support of its 
position against an order of preliminary reinstatement. Paragraph (f) 
of this section has been revised to provide complainants with copies of 
the same materials provided to respondents under this paragraph, except 
to the extent that confidentiality laws require redaction.
    NWC and GAP commented on the provisions in section 1978.104. NWC 
noted that to conduct a full and fair investigation, OSHA needs to 
obtain the available, responsive information from both parties. If one 
party does not have the information submitted by the other, NWC 
explained, that party cannot help the investigation by providing 
available information to shed light on the matter. NWC also suggested 
that the phrase ``other applicable confidentiality laws'' be replaced 
with more specific language describing the confidentiality laws that 
might apply to a respondent's answer.
    GAP commented that while it was pleased with the provisions in 
section 1978.104 providing copies of respondent's submissions to 
complainants and protecting witness confidentiality, it was concerned 
that the procedures under section 1978.104(f) ``disenfranchise[d] the 
victim, giving only one side of the dispute the chance to participate 
in the most significant step of the process'' and that ``[a]t a 
minimum, this procedural favoritism means there will not be an even 
playing field in the administrative hearing.'' GAP advocated removing 
section 1978.104(f).
    OSHA agrees with NWC and GAP that the input of both parties in the 
investigation is important to ensuring

[[Page 44128]]

that OSHA reaches the proper outcome during its investigation. To that 
end, in response to the comments, the procedures under STAA have been 
revised to contain the following safeguards aimed at ensuring that 
complainants and respondents have equal access to information during 
the course of the OSHA investigation:
     Section 1978.104(c) provides that, throughout the 
investigation, the agency will provide the complainant (or the 
complainant's legal counsel if the complainant is represented by 
counsel) a copy of all of respondent's submissions to the agency that 
are responsive to the complainant's whistleblower complaint, with 
confidential information redacted as necessary, and the complainant 
will have an opportunity to respond to such submissions; and
     Section 1978.104(f) provides that the complainant will 
receive a copy of the materials that must be provided to the respondent 
under that paragraph, with confidential information redacted as 
necessary.
    Regarding NWC's suggestion that OSHA provide more specific 
information about the confidentiality laws that may protect portions of 
the information submitted by a respondent, OSHA anticipates that the 
vast majority of respondent submissions will not be subject to any 
confidentiality laws. However, in addition to the Privacy Act, a 
variety of confidentiality provisions may protect information submitted 
during the course of an investigation. For example, a respondent may 
submit confidential business information, the disclosure of which would 
violate the Trade Secrets Act, 18 U.S.C. 1905. While the agency 
recognizes that a respondent must meet a high standard to show that the 
information it submits is protected and that it has a responsibility to 
independently evaluate claims that submissions contain confidential 
business information not subject to disclosure, it believes that the 
provision as drafted appropriately allows it to address legitimate 
claims of confidentiality.
    With regard to GAP's comment that section 1978.104(f) should be 
removed, OSHA notes the purpose of 1978.104(f) is to ensure compliance 
with the Due Process Clause of the Fifth Amendment, as interpreted in 
the Supreme Court's ruling in Brock v. Roadway Express, Inc., 481 U.S. 
252, 264 (1987), requiring OSHA to give the respondent the opportunity 
to review the substance of the evidence and respond, prior to ordering 
preliminary reinstatement.
    Nonetheless, while recognizing that the purpose of section 
1978.104(f) is to ensure that the respondents have been afforded due 
process prior to OSHA ordering preliminary reinstatement, OSHA 
appreciates that complainants wish to stay informed regarding their 
cases and may continue to have valuable input, even at this late stage 
in the investigation. Thus, under these rules, OSHA will provide 
complainants with a copy of the materials sent to the respondent under 
section 1978.104(f), with materials redacted in accordance with 
confidentiality laws.

Section 1978.105 Issuance of Findings and Preliminary Orders

    Paragraph (a) in section 1978.104, as it existed before the IFR, 
now at paragraph (a) in this section, was updated in the IFR to reflect 
the recent amendments to STAA expanding available remedies; the final 
rule adopts those revisions. Minor editorial corrections have been made 
in the final rule. If the Assistant Secretary concludes that there is 
reasonable cause to believe that a violation has occurred, he or she 
will order appropriate relief. Such order will include, where 
appropriate: a requirement that the respondent take affirmative action 
to abate the violation; reinstatement of the complainant to his or her 
former position with the same compensation, terms, conditions and 
privileges of the complainant's employment; payment of compensatory 
damages (backpay with interest and compensation for any special damages 
sustained as a result of the retaliation, including any litigation 
costs, expert witness fees, and reasonable attorney fees which the 
complainant has incurred); and payment of punitive damages up to 
$250,000. The final rule adds the words ``take affirmative action'' in 
connection with abatement of the violation because the statute uses 
this important term of labor law, found in the National Labor Relations 
Act at 29 U.S.C. 160(c) and Title VII of the Civil Rights Act of 1964, 
as amended, at 42 U.S.C. 2000e-5(g)(1). The word ``same'' has been 
inserted before ``compensation'' because this language is in the 
statute. A minor wording change, the deletion of the word ``together'', 
has been made in the final rule. The discussion of punitive damages has 
been put in a separate sentence to track the statute.
    In appropriate circumstances, in lieu of preliminary reinstatement, 
OSHA may order that the complainant receive the same pay and benefits 
that he or she received prior to his or her termination, but not 
actually return to work. Smith, supra, at *8 (front pay under STAA). 
Such front pay or economic reinstatement is also employed in cases 
arising under Section 105(c) of the Federal Mine Safety and Health Act 
of 1977, 30 U.S.C. 815(c)(2). See, e.g., Secretary of Labor ex rel. 
York v. BR&D Enters., Inc., 23 FMSHRC 697, 2001 WL 1806020, at *1 (ALJ 
June 26, 2001). Congress intended that complainants be preliminarily 
reinstated to their positions if OSHA finds reasonable cause that they 
were discharged in violation of STAA's whistleblower provision. When a 
violation is found, the norm is for OSHA to order immediate, 
preliminary reinstatement. Neither an employer nor an employee has a 
statutory right to choose economic reinstatement. Rather, economic 
reinstatement is designed to accommodate situations in which evidence 
establishes to OSHA's satisfaction that reinstatement is inadvisable 
for some reason, notwithstanding the employer's retaliatory discharge 
of the complainant. In such situations, actual reinstatement might be 
delayed until after the administrative adjudication is completed as 
long as the complainant 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 a complainant should the 
employer ultimately prevail in the whistleblower litigation.
    In ordering interest on backpay, the agency has determined that, 
instead of computing the interest due by compounding quarterly the 
Internal Revenue Service interest rate for the underpayment of taxes, 
which under 26 U.S.C. 6621 is generally the Federal short-term rate 
plus three percentage points, interest will be compounded daily. The 
Secretary believes that daily compounding of interest better achieves 
the make-whole purpose of a backpay award. Daily compounding of 
interest has become the norm in private lending and recently was found 
to be the most appropriate method of calculating interest on backpay by 
the National Labor Relations Board. See Jackson Hosp. Corp. v. United 
Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. 
Workers Int'l Union, 356 NLRB No. 8, 2010 WL 4318371, at *3-4 (2010). 
Additionally, interest on tax underpayments under the Internal Revenue 
Code, 26 U.S.C. 6621, is compounded daily pursuant to 26 U.S.C. 
6622(a).
    Paragraph (a)(2) of this section requires the Assistant Secretary 
to notify the parties if he or she finds that a violation has not 
occurred. Former section 1978.104(c), which provided for

[[Page 44129]]

the suspension of 11(c) complaints pending the outcome of STAA 
proceedings, was deleted in the IFR; the final rule adopts that 
revision. As described above, section 1978.103(e) adequately describes 
the relationship between STAA and 11(c) complaints.
    Paragraph (b) clarifies that OSHA need not send the original 
complaint to the Chief Administrative Law Judge when it issues its 
findings and preliminary order; a copy of the complaint will suffice. 
Former section 1978.105(b)(1) was moved to section 1978.105(c) in the 
IFR; the final rule adopts that revision. This paragraph states that 
the Assistant Secretary's preliminary order will be effective 30 days 
after receipt, or on the compliance date set forth in the preliminary 
order, whichever is later, unless an objection is filed. It also 
clarifies that any preliminary order requiring reinstatement will be 
effective immediately. This paragraph mirrors existing provisions in 
other OSHA whistleblower regulations. Minor editorial changes have been 
made in the final rule.

Subpart B--Litigation

 Section 1978.106 Objections to the Findings and the Preliminary Order 
and Request for a Hearing
    Minor revisions were made to paragraph (a), formerly section 
1978.105(a), in the IFR to conform to other OSHA whistleblower 
regulations; the final rule adopts those revisions. Other minor 
revisions have been made in the final rule. The paragraph clarifies 
that with respect to objections to the findings and preliminary order, 
the date of the postmark, fax, or electronic communication transmittal 
is considered the date of the filing; if the objection is filed in 
person, by hand-delivery, or other means, the objection is filed upon 
receipt. The filing of objections is also considered a request for a 
hearing before an ALJ. The amended language also clarifies that in 
addition to filing objections with the Chief Administrative Law Judge, 
the parties must serve a copy of their objections on the other parties 
of record and the OSHA official who issued the findings and order. The 
requirement in the IFR that objections be served on the Assistant 
Secretary and the Associate Solicitor for Occupational Safety and 
Health has been deleted because such service is unnecessary. A failure 
to serve copies of the objections on the appropriate parties 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).
    The title to former section 1978.105(b) was deleted in the IFR 
because it was unnecessary; the final rule adopts that revision. In 
addition, as previously mentioned, former paragraph (b)(1) in section 
1978.105 was moved to new paragraph (c) in section 1978.105; the final 
rule adopts that revision. Finally, some minor, non-substantive 
revisions were made in the IFR to former 1978.105(b)(2), now at 
1978.106(b), and additional language was added to that paragraph to 
clarify that all provisions of the ALJ's order, with the exception of 
any order for preliminary reinstatement, will be stayed upon the filing 
of a timely objection; the final rule adopts those revisions. A 
respondent may file a motion to stay OSHA's preliminary reinstatement 
order with the Office of Administrative Law Judges. However, such a 
motion will be granted only on the basis of exceptional circumstances. 
A stay of the Assistant Secretary's preliminary order of reinstatement 
would be appropriate only where the respondent can establish the 
necessary criteria for a stay, i.e. the respondent would suffer 
irreparable injury; the respondent is likely to succeed on the merits; 
a balancing of possible harms to the parties favors the respondent; and 
the public interest favors a stay.
Section 1978.107 Hearings
    Former section 1978.106, which became section 1978.107 in the IFR, 
was titled ``Scope of rules; applicability of other rules; notice of 
hearing.'' The title was changed to ``Hearings,'' the title assigned to 
similar sections in other OSHA whistleblower regulations. The final 
rule adopts those revisions. Other minor revisions have been made in 
the final rule.
    Minor revisions were made to paragraph (a) in the IFR, which 
adopted the rules of practice and procedure and the rules of evidence 
for administrative hearings before the Office of Administrative Law 
Judges, codified at 29 CFR part 18; those revisions have been adopted 
here. However, in the final rule the reference to the ALJ rules of 
evidence has been deleted. This change is discussed below. Changes were 
also made in the IFR to paragraph (b) to conform to other OSHA 
whistleblower regulations. The requirements for the ALJ to set a 
hearing date within 7 days and to commence a hearing within 30 days 
were deleted, and language was added in the IFR to clarify that 
hearings will commence expeditiously and be conducted de novo and on 
the record. The language in the IFR is not intended to change case-
handling practices. The final rule adopts those revisions.
    Paragraph (b) has been modified in the final rule to add language 
providing that ALJs have broad discretion to limit discovery in order 
to expedite the hearing. This provision furthers an important goal of 
STAA--to have unlawfully terminated employees reinstated as quickly as 
possible.
    Paragraph (c), which deals with situations in which both the 
complainant and the respondent object to the findings and/or 
preliminary order, was revised in the IFR, consistent with the changes 
made to paragraph (b), to remove language stating that hearings shall 
commence within 30 days of the last objection received. The final rule 
adopts those revisions.
    Former paragraph (d), dealing with the ALJ's discretion to order 
the filing of prehearing statements, was deleted in the IFR as 
unnecessary; the final rule adopts that change.
    A new paragraph (d) has been added to this section. It provides 
that in ALJ proceedings formal rules of evidence will not apply, but 
rules or principles designed to assure production of the most probative 
evidence will be applied. Furthermore, the ALJ may exclude evidence 
that is immaterial, irrelevant, or unduly repetitious. This evidence 
provision differs from the practice under the STAA IFR (section 
1978.107(a)) and the original STAA rules (section 1978. 106(a)) to 
follow the ALJ rules of evidence in 29 CFR part 1918. The new provision 
is consistent with the Administrative Procedure Act, which provides at 
5 U.S.C. 556(d): ``* * * Any oral or documentary evidence may be 
received, but the agency as a matter of policy shall provide for the 
exclusion of irrelevant, immaterial, or unduly repetitious evidence * * 
*.'' See also Federal Trade Commission v. Cement Institute, 333 U.S. 
683, 705-06 (1948) (administrative agencies not restricted by rigid 
rules of evidence). Furthermore, it is inappropriate to apply the 
technical rules of evidence in Part 18 because complainants often 
appear pro se. Also, hearsay evidence is often appropriate in 
whistleblower cases, as there often is no relevant evidence other than 
hearsay to prove discriminatory intent. ALJs have the responsibility to 
determine the appropriate weight to be given to such evidence. For 
these reasons, the interests of determining all of the relevant facts 
are best served by not having strict evidentiary rules.

[[Page 44130]]

Section 1978.108 Role of Federal Agencies
    Former section 1978.107, titled ``Parties,'' was moved in the IFR 
to section 1978.108 with the new title ``Role of Federal agencies.'' 
The final rule adopts that change. This conforms to the terminology 
used in OSHA's other whistleblower regulations.
    Former paragraphs (a), (b), and (c) in section 1978.107 were 
combined in section 1978.108(a)(1) in the IFR; that revision remains. 
The changes which were made to these paragraphs are not intended to be 
substantive, i.e., there is no intent to change the rights to party 
status currently afforded the Assistant Secretary, complainants, or 
respondents. The Assistant Secretary, represented by an attorney from 
the appropriate Regional Solicitor's Office, will still generally 
assume the role of prosecuting party in STAA whistleblower cases in 
which the respondent objects to the findings or preliminary order. This 
continues longstanding practice in STAA cases. The public interest 
generally requires the Assistant Secretary's continued participation in 
such matters. Relatively few private attorneys have developed adequate 
expertise in representing STAA whistleblower complainants, and 
complainants in the motor carrier industry have been more likely to 
proceed pro se than employees covered by OSHA's other whistleblower 
programs. Where the complainant, but not the respondent, objects to the 
findings or order, the regulations retain the Assistant Secretary's 
discretion to participate as a party or amicus curiae at any stage of 
the proceedings, including the right to petition for review of an ALJ 
decision.
    Paragraph (a)(2) clarifies that if the Assistant Secretary assumes 
the role of prosecuting party in accordance with paragraph (a)(1), he 
or she may, upon written notice to the other parties, withdraw as the 
prosecuting party in the exercise of prosecutorial discretion. If the 
Assistant Secretary withdraws, the complainant will become the 
prosecuting party, and the ALJ will issue appropriate orders to 
regulate the course of future proceedings.
    Paragraph (a)(3) provides that copies of documents in all cases 
must be sent to all parties, or, if represented by counsel, to them. If 
the Assistant Secretary is a party, documents shall be sent to the 
Regional Solicitor's Office representing the Assistant Secretary. This 
is a departure from the IFR, which also required distribution of 
documents to the Assistant Secretary and, where he or she was a party, 
to the Associate Solicitor for Occupational Safety and Health. 
Experience has shown that the additional distribution was not 
necessary. In the interest of saving time and resources the 
requirements for this additional distribution are being deleted.
    Paragraph (b) states that the Federal Motor Carrier Safety 
Administration (FMCSA), an agency of the U.S. Department of 
Transportation, may participate in the proceedings as amicus curiae at 
its own discretion. This paragraph also permits the FMCSA to request 
copies of all documents, regardless of whether it is participating in 
the case. This provision mirrors similar language in the regulations 
implementing other OSHA-administered whistleblower laws.
    The provisions formerly at section 1978.108, which described the 
manner in which STAA whistleblower cases would be captioned or titled, 
were deleted in the IFR. It is unnecessary to continue to include that 
material in these regulations.
Section 1978.109 Decisions and Orders of the Administrative Law Judge
    This section sets forth the content of the decision and order of 
the ALJ, and includes the standards for finding a violation under 
STAA's whistleblower provision. Minor editorial revisions have been 
made in the final rule. References to the perception of protected 
activity have been deleted in the final rule. This concept is 
adequately covered by section 1978.104(e)(2)(ii) (employer knowledge 
shown by suspicion of protected activity). The title of this section 
conforms to the title assigned to similar provisions in other OSHA 
whistleblower regulations. Before the issuance of the IFR, section 
1978.109 addressed decisions of both the ALJs and the ARB. In 
conformance with other OSHA whistleblower regulations, these two topics 
were separated by the IFR into individual sections; this separation 
remains in the final rule. Section 1978.109 covers only ALJ decisions 
and section 1978.110 addresses ARB decisions.
    Former paragraph (a) was divided in the IFR among multiple 
paragraphs in this section and otherwise revised to reflect the 
parties' new burdens of proof and to conform more closely to the 
regulations implementing other OSHA-administered whistleblower laws. 
Those changes remain in the final rule. In litigation, the statutory 
burdens of proof require a complainant to prove that the alleged 
protected activity was a ``contributing factor'' in the alleged adverse 
action. If the complainant satisfies his or her burden, 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 connection 
with other factors, tends to affect in any way the outcome of the 
decision.'' Clarke, supra, at *3. The complainant (whenever this term 
is used in this paragraph, it also refers to the Assistant Secretary) 
can succeed by providing either direct or indirect proof of 
contribution. Direct evidence is ``smoking gun'' evidence that 
conclusively connects the protected activity and the adverse action and 
does not rely upon inference. If the complainant does not produce 
direct evidence, he or she must proceed indirectly, or inferentially, 
by proving by a preponderance of the evidence that a motive prohibited 
by STAA was the true reason for the adverse action. One type of 
circumstantial evidence is evidence that discredits the respondent's 
proffered reasons for the adverse action, demonstrating instead that 
they were pretexts for retaliation. Id. Another type of circumstantial 
evidence is temporal proximity between the protected activity and the 
adverse action. Ferguson, supra, at *2. The respondent may avoid 
liability if it ``demonstrates by clear and convincing evidence'' that 
it would have taken the same adverse action in any event. Clear and 
convincing evidence is evidence indicating that the thing to be proved 
is highly probable or reasonably certain. Clarke, supra, at *3. This 
burden of proof regimen supersedes the one in effect before the 2007 
amendments to STAA. Id. at 7, n.1.
    The requirements that the ALJ close the record within 30 days after 
the filing of the objection and issue a decision within 30 days after 
the close of the record are not in these rules because procedures for 
issuing decisions, including their timeliness, are addressed by the 
Rules of Practice and Procedure for Administrative Hearings Before the 
Office of Administrative Law Judges at 29 CFR 18.57.
    Section 1978.109(c), which is similar to provisions in other OSHA 
whistleblower regulations, provides that the Assistant Secretary's 
determinations about when to proceed with an investigation and when to 
dismiss a complaint without completing an investigation are 
discretionary decisions not subject to review by the ALJ. The ALJ hears 
cases de novo and, therefore, may not remand cases to the Assistant 
Secretary to conduct an investigation or

[[Page 44131]]

make further factual findings. If there otherwise is jurisdiction, the 
ALJ will hear the case on the merits or dispose of the matter without a 
hearing if warranted by the facts and circumstances.
    Section 1978.109(d)(1) now describes the relief the ALJ can award 
upon finding a violation and reflects the recent statutory amendments 
(see earlier discussion of section 1978.105(a)). The language of the 
IFR has been slightly modified to clarify the available remedies. The 
requirement to take appropriate affirmative action to abate the 
violation is separated from the other remedies, as it is in the STAA 
remedy provision, 49 U.S.C. 31105(b)(3)(A). Affirmative action to abate 
the violation, required by section 31105(b)(3)(A)(i), includes a 
variety of measures in addition to others in (3)(A), such as posting 
notices about STAA orders and rights, as well as expungement of adverse 
comments in a personnel record. Scott v. Roadway Express, Inc., No. 01-
065, 2003 WL 21269144, at *1-2 (ARB May 29, 2003) (posting notices of 
STAA orders and rights); Pollock v. Continental Express, Nos. 07-073, 
08-051, 2010 WL 1776974, at *9 (ARB Apr. 7, 2010) (expungement of 
adverse references). Other minor wording changes have been made. In 
addition, paragraph (d)(2) in this section requires the ALJ to issue an 
order denying the complaint if he or she determines that the respondent 
has not violated STAA.
    Before the IFR, ALJs' decisions and orders were subject to 
automatic review by the ARB. These procedures were unique to STAA 
whistleblower cases and resulted in a heavy STAA caseload for the ARB. 
This made it more difficult for the ARB to promptly resolve the cases 
on its docket and delayed the resolution of STAA cases in which the 
parties were mutually satisfied with the ALJ's decision and order. 
Overall, requiring mandatory ARB review of every STAA whistleblower 
case is an inefficient use of limited resources. In conformance with 
the procedures used for the other whistleblower cases investigated by 
OSHA and adjudicated by ALJs, these regulations provide for ARB review 
of an ALJ's decision only if one or more of the parties to the case 
files a petition requesting such review. These procedures for review of 
ALJ decisions apply to all ALJ decisions issued on or after the 
effective date of the IFR, August 31, 2010. The final rule adopts these 
revisions.
    In the IFR, former section 1978.109(b) was deleted, although much 
of its content was moved to paragraph (e); the final rule adopts those 
revisions. Section 1978.109(e), which borrows language from similar 
provisions in other OSHA whistleblower regulations, gives parties 14 
days after the date of the ALJ's decision to file a petition for review 
with the ARB. If no petition for review is filed within that timeframe, 
the ALJ's decision is final and all portions of the order become 
effective. Paragraph (e), in addition to giving parties14 days to seek 
review before the ARB, clarifies that any orders relating to 
reinstatement will be effective immediately upon receipt of the 
decision by the respondent.
    In the IFR, all of the provisions in former section 1978.109, which 
codified the automatic review process, primarily former paragraphs 
(c)(1) and (c)(2), were deleted. The content of former paragraph 
(c)(3), regarding the standard for ARB review of ALJ decisions, was 
moved to new section 1978.110(b). The content of former paragraph 
(c)(4), which required the ARB to issue an order denying the complaint 
if it determined that the respondent had not violated the law, was 
moved to section 1978.110(e). Former paragraph (c)(5), which required 
service of the ARB decision on all parties, became a part of section 
1978.110(c). The final rule adopts all those revisions.
    OSHA has revised the period for filing a timely petition for review 
with the ARB to 14 days rather than 10 business days. With this change, 
the final rule expresses the time for a petition for review in a way 
that is consistent with the other deadlines for filings before the ALJs 
and the ARB in the rule, which are also expressed in days rather than 
business days. This change also makes the final rule congruent with the 
2009 amendments to Rule 6(a) of the Federal Rules of Civil Procedure 
and Rule 26(a) of the Federal Rules of Appellate Procedure, which 
govern computation of time before those tribunals and express filing 
deadlines as days rather than business days. Accordingly, the ALJ's 
order will become the final order of the Secretary 14 days after the 
date of the decision, rather than after 10 business days, unless a 
timely petition for review is filed. As a practical matter, this 
revision does not substantively alter the window of time for filing a 
petition for review before the ALJ's order becomes final.
Section 1978.110 Decisions and Orders of the Administrative Review 
Board
    This section is borrowed largely from existing regulations 
implementing other OSHA whistleblower laws. Minor editorial corrections 
have been made in the final rule. In accordance with the decision to 
discontinue automatic ARB review of ALJ decisions, paragraph (a) of 
this section gives the parties 14 days from the date of the ALJ's 
decision to file a petition for review with the ARB. If no timely 
petition for review is filed, the decision of the ALJ becomes the final 
decision of the Secretary, and is not subject to judicial review. 
Paragraph (a) also clarifies that the date of the postmark, fax, 
electronic communication transmittal, or hand-delivery will be deemed 
the date of filing; if the petition is filed in person, by hand-
delivery or other means, the petition is considered filed upon receipt. 
In its comments, NWC suggested that the filing period be extended from 
10 business days to 30 days to make this section parallel to the 
provision in 1978.105(c), which allows for 30 days within which to file 
an objection. OSHA declines to extend the filing period to 30 days 
because the 14-day filing period is consistent with the practices and 
procedures followed in OSHA's other whistleblower programs. 
Furthermore, parties may file a motion for extension of time to appeal 
an ALJ's decision, and the ARB has discretion to grant such extensions. 
However, as explained above, OSHA has revised the period to petition 
for review of an ALJ decision to 14 days rather than 10 business days. 
As a practical matter, this revision does not substantively alter the 
window of time for filing a petition for review before the ALJ's order 
becomes final.
    With regard to section 1978.110(a), NWC urged deletion of the 
provision that ``[t]he 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.'' NWC commented that 
parties should be allowed to add additional grounds for review in 
subsequent briefs and that allowing parties to do so would further the 
goal of deciding cases on the merits. OSHA's inclusion of this 
provision is not intended to limit the circumstances in which parties 
can add additional grounds for review as a case progresses before the 
ARB, but rather the rules include this provision to put the public on 
notice of the possible consequences of failing to specify the basis of 
a petition to the ARB. OSHA recognizes that while the ARB has held in 
some instances that an exception not specifically urged may be deemed 
waived, the ARB also has found that the rules provide for exceptions to 
this general rule. See, e.g., Furland v. American Airlines, Inc., Nos. 
09-102, 10-130, 2011 WL 3413364, at *7, n.5 (ARB Jul. 27, 2011), 
petition for review

[[Page 44132]]

filed, (11th Cir. Oct. 3, 2011) (No. 11-14419-C) (where a complainant 
consistently made an argument throughout the administrative proceedings 
the argument was not waived simply because it appeared in the 
complainant's reply brief to the ARB rather than in the petition for 
review); Avlon v. American Express Co., No. 09-089, 2011 WL 4915756, at 
*4-5, n.1 (ARB Sept. 14, 2011) (consideration of an argument not 
specifically raised in complainant's petition for review is believed to 
be within the authority of the ARB, and parallel provisions in 
Sarbanes-Oxley whistleblower regulations do not mandate that the ARB 
must limit its review to ALJ conclusions assigned as error in the 
petition for review); Brookman v. Levi Strauss, No. 07-074, 2008 WL 
7835844, at *5 (ARB Jul. 23, 2008) (concurring with the ALJ's findings 
despite Complainant's failure to specifically identify objections and 
invoke ARB review). However, recognizing that the interim final rule 
may have suggested too stringent a standard, the phrase ``will 
ordinarily'' has been replaced with ``may.''
    Consistent with the procedures for petitions for review under other 
OSHA-administered whistleblower laws, paragraph (b) provides that the 
ARB has discretion to accept or reject review in STAA whistleblower 
cases. Congress intended these whistleblower cases to be expedited, as 
reflected by the recent amendment to STAA providing for a hearing de 
novo in district court if the Secretary has not issued a final decision 
within 210 days of the filing of the complaint. Making review of STAA 
whistleblower cases discretionary may assist in furthering that goal.
    The ARB has 30 days to decide whether to grant a petition for 
review. If the ARB does not grant the petition, the decision of the ALJ 
becomes the final decision of the Secretary. This section further 
provides that when the ARB accepts a petition for review, it will 
review the ALJ's factual determinations under the substantial evidence 
standard, a standard previously set forth in section 1978.109(c)(3) 
before the issuance of the IFR. If a timely petition for review is 
filed with the ARB, relief ordered by the ALJ is inoperative while the 
matter is pending before the ARB, except that orders of reinstatement 
will be effective pending review. Paragraph (b) does provide that in 
exceptional circumstances the ARB may grant a motion to stay an ALJ's 
order of reinstatement. A stay of a reinstatement order is only 
appropriate when the respondent can establish the necessary criteria 
for a stay, i.e., the respondent will suffer irreparable injury; the 
respondent is likely to succeed on the merits; a balancing of possible 
harms to the parties favors the respondent; and the public interest 
favors a stay.
    Paragraph (c), which provides that the ARB will issue a final 
decision within 120 days of the conclusion of the ALJ hearing, was 
revised to state that the conclusion of the ALJ hearing will be deemed 
to be 14 days after the date of the decision of the ALJ, rather than 
after 10 business days, unless a motion for reconsideration has been 
filed with the ALJ in the interim. Like the revision to section 
1978.110(a), explained above, this revision does not substantively 
alter the length of time before the ALJ hearing will be deemed to have 
been concluded. This paragraph further provides for the ARB's decision 
in all cases to be served on all parties, the Chief Administrative Law 
Judge, the Assistant Secretary, and the Associate Solicitor for 
Occupational Safety and Health.
    Paragraph (d) describes the remedies the ARB can award if it 
concludes that the respondent has violated STAA's whistleblower 
provision (see earlier discussion of section 1978.109(d)(1)). In 
addition, under paragraph (e), if the ARB determines that the 
respondent has not violated STAA, it will issue an order denying the 
complaint. Paragraph (f) clarifies that the procedures for seeking 
review before the ARB apply to all cases in which ALJ decisions were 
issued on or after the effective date of the IFR, August 31, 2010.

Subpart C--Miscellaneous Provisions.

Section 1978.111 Withdrawal of STAA Complaints, Findings, Objections, 
and Petitions for Review; Settlement
    This section provides procedures and time periods for the 
withdrawal of complaints, the withdrawal of findings and/or preliminary 
orders by the Assistant Secretary, the withdrawal of objections to 
findings and/or preliminary orders, and the withdrawal of petitions for 
review of ALJ decisions. It also provides for the approval of 
settlements at the investigative and adjudicative stages of the case. 
Minor editorial changes have been made in the final rule.
    Paragraph (a) permits a complainant to withdraw orally or in 
writing his or her complaint to the Assistant Secretary, at any time 
prior to the filing of objections to the Assistant Secretary's findings 
and/or preliminary order. The Assistant Secretary confirms in writing 
the complainant's desire to withdraw and will determine whether to 
approve the withdrawal. The Assistant Secretary will notify all parties 
if the withdrawal is approved. Paragraph (a) clarifies that complaints 
that are withdrawn pursuant to settlement agreements prior to the 
filing of objections must be approved in accordance with the settlement 
approval procedures in paragraph (d). In addition, paragraph (a) 
clarifies that the complainant may not withdraw his or her complaint 
after the filing of objections to the Assistant Secretary's findings 
and/or preliminary order. Paragraph (c) addresses situations in which 
parties seek to withdraw either objections to the Assistant Secretary's 
findings and/or preliminary order or petitions for review of ALJ 
decisions. Paragraph (c) provides that a party may withdraw objections 
to the Assistant Secretary's findings and/or preliminary order at any 
time before the findings and preliminary order become final by filing a 
written withdrawal with the ALJ. Similarly, if a case is on review with 
the ARB, a party may withdraw a petition for review of an ALJ's 
decision at any time before that decision becomes final by filing a 
written withdrawal with the ARB. The ALJ or the ARB, depending on where 
the case is pending, will determine whether to approve the withdrawal 
of the objections or the petition for review. Paragraph (c) clarifies 
that if the ALJ approves a request to withdraw objections to the 
Assistant Secretary's findings and/or preliminary order, and there are 
no other pending objections, the Assistant Secretary's findings and 
preliminary order will become the final order of the Secretary. 
Likewise, if the ARB approves a request to withdraw a petition for 
review of an ALJ decision, and there are no other pending petitions for 
review of that decision, the ALJ's decision will become the final order 
of the Secretary. Finally, paragraph (c) provides that if objections or 
a petition for review are withdrawn because of settlement, the 
settlement must be submitted for approval in accordance with paragraph 
(d).
    Paragraph (d)(1) states that a case may be settled at the 
investigative stage if the Assistant Secretary, the complainant, and 
the respondent agree. The Assistant Secretary's approval of a 
settlement reached by the respondent and the complainant demonstrates 
his or her consent and achieves the consent of all three parties. 
Minor, non-substantive changes are being made to paragraph (d)(2). 
Paragraph (d)(3) is being deleted because the withdrawal of the 
Assistant Secretary as a party as a matter of prosecutorial discretion 
is adequately covered by section .107(a)(2). Paragraph (e), borrowing 
language from similar

[[Page 44133]]

provisions in other OSHA whistleblower regulations, clarifies that 
settlements approved by the Assistant Secretary, the ALJ, or the ARB 
will constitute the final order of the Secretary and may be enforced in 
federal district court pursuant to 49 U.S.C. 31105(e).
Section 1978.112 Judicial Review
    This section describes the statutory provisions for judicial review 
of decisions of the Secretary and, in cases where judicial review is 
sought, requires the ARB to submit the record of proceedings to the 
appropriate court pursuant to the Federal Rules of Appellate Procedure 
and the local rules of such court. Non-substantive revisions to 
paragraphs (a), (b), and (c) were made in the IFR and are continued 
here. Minor editorial changes from the IFR were made in the final rule. 
In the final rule a reference to the transmission of the record to a 
court of appeals by an ALJ has been made because parties may file 
petitions for review of those decisions in the courts of appeals where 
they have previously requested review by the ARB and the ARB has denied 
review.
    Former section 1978.112, which addressed postponement due to the 
pendency of proceedings in other forums, including grievance-
arbitration proceedings under collective bargaining agreements, and 
deferral to the outcomes of such proceedings, was deleted in the IFR to 
conform to other OSHA whistleblower regulations, which do not contain 
similar provisions; that deletion remains. This is a non-substantive 
change. Postponement and deferral principles will still be applied in 
accordance with case law.
Section 1978.113 Judicial Enforcement
    In the IFR, non-substantive revisions were made to this section, 
which describes the Secretary's power under STAA's whistleblower 
provision to obtain judicial enforcement of orders, including orders 
approving settlement agreements; the final rule adopts those revisions. 
Minor editorial corrections have been made in the final rule.
Section 1978.114 District Court Jurisdiction of Retaliation Complaints 
under STAA
    This section deals with the recent amendment to STAA, 49 U.S.C. 
31105(c), allowing a complainant in a STAA whistleblower case to bring 
an action in district court for de novo review if there has been no 
final decision of the Secretary and 210 days have passed since the 
filing of the complaint and the delay was not due to the complainant's 
bad faith. Section 1978.114 has been drafted to reflect the Secretary's 
position that it would not be reasonable to construe the statute to 
permit a complainant to initiate an action in federal court after the 
Secretary issues a final decision, even if the date of the final 
decision is more than 210 days after the filing of the administrative 
complaint. In the Secretary's view, the purpose of the ``kick-out'' 
provision is to aid the complainant in receiving a prompt decision. 
That goal is not implicated in a situation where the complainant 
already has received a final decision from the Secretary. In addition, 
permitting the complainant to file a new case in district court in such 
circumstances could conflict with the parties' rights to seek judicial 
review of the Secretary's final decision in the court of appeals. The 
regulations have been drafted in accordance with this position. Minor 
editorial corrections have been made in the final rule.
    The IFR did not note that 49 U.S.C. 31105(c) guarantees the right 
to a jury trial at the request of either party in these cases. This 
rule notes that statutory provision.
    In this section, OSHA eliminated the requirement that complainants 
provide the agency 15 days advance notice before filing a de novo 
complaint in district court. Instead, this section provides that within 
seven days after filing a complaint in district court, a complainant 
must provide a file-stamped copy of the complaint to the Assistant 
Secretary, the ALJ, or the ARB, depending on where the proceeding is 
pending. A copy of the complaint also must be provided to the OSHA 
official who issued the findings and/or preliminary order, the 
Assistant Secretary, and the Associate Solicitor, Division of 
Occupational Safety and Health, U.S. Department of Labor. This 
provision is necessary to notify the agency that the complainant has 
opted to file a complaint in district court. This provision is not a 
substitute for the complainant's compliance with the requirements for 
service of process of the district court complaint contained in the 
Federal Rules of Civil Procedure and the local rules of the district 
court where the complaint is filed. The reference to the OSHA Regional 
Administrator in the IFR has been changed in the final rule to a 
reference to the OSHA official who issued the findings and/or 
preliminary order to reflect the possibility (not currently 
contemplated) of future organizational changes.
    This change responds to NWC's comment that the 15-day advance 
notice requirement for filing a suit in district court should be 
eliminated because it inhibits complainants' access to federal courts. 
OSHA believes that a provision for notifying the agency of the district 
court complaint is necessary to avoid unnecessary expenditure of agency 
resources once a complainant has decided to remove the case to federal 
district court. OSHA believes that the revised provision adequately 
balances the complainant's interest in ready access to federal court 
and the agency's interest in receiving prompt notice that the 
complainant no longer wishes to continue with the administrative 
proceeding.
Section 1978.115 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 three days notice to the parties, waive any rule or issue such 
orders as justice or the administration of STAA's whistleblower 
provision requires.
    In the IFR, OSHA deleted former section 1978.114, which provided 
that the time requirements imposed on the Secretary by these 
regulations are directory in nature and that a failure to meet those 
requirements did not invalidate any action by the Assistant Secretary 
or Secretary under STAA; that deletion remains. These principles are 
well-established in the case law, see, e.g., Roadway Express v. Dole, 
929 F.2d 1060, 1066 (5th Cir. 1991), and this provision, which was 
unique to OSHA's STAA regulations, is unnecessary. The deletion of this 
provision is a non-substantive amendment. No significant change in STAA 
practices or procedures is intended.

V. Paperwork Reduction Act

    This rule contains a reporting provision (filing a retaliation 
complaint, section 1978.103) which was previously reviewed and approved 
for use by the Office of Management and Budget (OMB) under the 
provisions of the Paperwork Reduction Act of 1995, Public Law 104-13, 
109 Stat. 163 (1995). The assigned OMB control number is 1218-0236.

VI. Administrative Procedure Act

    The notice and comment rulemaking procedures of Section 553 of the 
Administrative Procedure Act (``APA'') do not apply to ``interpretive 
rules, general statements of policy, or rules of agency organization, 
procedure, or practice.'' 5 U.S.C. 553(b)(A). Part 1978 sets forth 
interpretive rules and rules of agency procedure and practice within

[[Page 44134]]

the meaning of that section. Therefore, publication in the Federal 
Register of a notice of proposed rulemaking and request for comments 
was not required. Although part 1978 was not subject to the notice and 
comment procedures of the APA, the Assistant Secretary sought and 
considered comments to enable the agency to improve the rules by taking 
into account the concerns of interested persons.
    Furthermore, because this rule is procedural and interpretive 
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. Furthermore, most 
of the provisions of this rule were in the IFR and have already been in 
effect since August 31, 2010.

VII. Executive Order 12866, Executive Order 13563; Unfunded Mandates 
Reform Act of 1995; Executive Order 13132

    The agency has concluded that this rule is not a ``significant 
regulatory action'' within the meaning of Executive Order 12866, 
reaffirmed by Executive Order 13563, because it is not likely to result 
in a rule that may: (1) Have an annual effect on the economy of $100 
million or more or adversely affect in a material way the economy, a 
sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or tribal 
governments or communities; (2) create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
Executive Order 12866. Therefore, no regulatory impact analysis has 
been prepared.
    Because no notice of proposed rulemaking was published, no 
statement is required under Section 202 of the Unfunded Mandates Reform 
Act of 1995, 2 U.S.C. 1532. In any event, this rulemaking is procedural 
and interpretive in nature and is thus not expected to have a 
significant economic impact. Finally, this rule does not have 
``federalism implications.'' The rule does not have ``substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government'' and therefore 
is not subject to Executive Order 13132 (Federalism).

VIII. Regulatory Flexibility Analysis

    The agency has determined that the regulation will not have a 
significant economic impact on a substantial number of small entities. 
The regulation sets forth procedures and interpretations, many of which 
were 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 
other whistleblower statutes administered by OSHA. Furthermore, no 
certification to this effect is required and no regulatory flexibility 
analysis is required because no proposed rule has been issued.

List of Subjects in 29 CFR Part 1978

    Administrative practice and procedure, Employment, Highway safety, 
Investigations, Motor carriers, Motor vehicle safety, Reporting and 
recordkeeping requirements, Safety, Transportation, Whistleblowing.

Authority and Signature

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

    Signed at Washington, DC, on July 18, 2012.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.

    Accordingly, for the reasons set out in the preamble part 1978 of 
Title 29 of the Code of Federal Regulations is revised to read as 
follows:

PART 1978--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS 
UNDER THE EMPLOYEE PROTECTION PROVISION OF THE SURFACE 
TRANSPORTATION ASSISTANCE ACT OF 1982 (STAA), AS AMENDED

Subpart A--Complaints, Investigations, Findings, and Preliminary Orders
Sec.
1978.100 Purpose and scope.
1978.101 Definitions.
1978.102 Obligations and prohibited acts.
1978.103 Filing of retaliation complaints.
1978.104 Investigation.
1978.105 Issuance of findings and preliminary orders.
Subpart B--Litigation
1978.106 Objections to the findings and the preliminary order and 
request for a hearing.
1978.107 Hearings.
1978.108 Role of Federal agencies.
1978.109 Decisions and orders of the administrative law judge.
1978.110 Decisions and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
1978.111 Withdrawal of STAA complaints, findings, objections, and 
petitions for review; settlement.
1978.112 Judicial review.
1978.113 Judicial enforcement.
1978.114 District court jurisdiction of retaliation complaints under 
STAA.
1978.115 Special circumstances; waiver of rules.


    Authority:  49 U.S.C. 31101 and 31105; Secretary's Order 1-2012 
(Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012); Secretary's Order 1-
2010 (Jan. 15, 2010), 75 FR 3924 (Jan. 25, 2010).

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


Sec.  1978.100  Purpose and scope.

    (a) This part sets forth, the procedures for, and interpretations 
of, the employee protection (whistleblower) provision of the Surface 
Transportation Assistance Act of 1982 (STAA), 49 U.S.C. 31105, as 
amended, which protects employees from retaliation because the employee 
has engaged in, or is perceived to have engaged in, protected activity 
pertaining to commercial motor vehicle safety, health, or security 
matters.
    (b) This part establishes procedures under STAA for the expeditious 
handling of retaliation complaints filed 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, investigations, issuance of findings and preliminary 
orders, objections to findings and orders, litigation before 
administrative law judges (ALJs), post-hearing administrative review, 
and withdrawals and settlements. This part also sets forth 
interpretations of STAA.


Sec.  1978.101  Definitions.

    (a) Act means the Surface Transportation Assistance Act of 1982 
(STAA), as amended.
    (b) Assistant Secretary means the Assistant Secretary of Labor for 
Occupational Safety and Health or the person or persons to whom he or 
she delegates authority under the Act.
    (c) Business days means days other than Saturdays, Sundays, and 
Federal holidays.

[[Page 44135]]

    (d) Commercial motor carrier means any person engaged in a business 
affecting commerce between States or between a State and a place 
outside thereof who owns or leases a commercial motor vehicle in 
connection with that business, or assigns employees to operate such a 
vehicle.
    (e) Commercial motor vehicle means a vehicle as defined by 49 
U.S.C. 31101(1).
    (f) Complainant means the employee who filed a STAA complaint or on 
whose behalf a complaint was filed.
    (g) Complaint, for purposes of Sec.  1978.102(b)(1) and (e)(1), 
includes both written and oral complaints to employers, government 
agencies, and others.
    (h) Employee means a driver of a commercial motor vehicle 
(including an independent contractor when personally operating a 
commercial motor vehicle), a mechanic, a freight handler, or an 
individual not an employer, who:
    (1) Directly affects commercial motor vehicle safety or security in 
the course of employment by a commercial motor carrier; and
    (2) Is not an employee of the United States Government, a State, or 
a political subdivision of a State acting in the course of employment.
    (3) The term includes an individual formerly performing the work 
described above or an applicant for such work.
    (i) Employer means a person engaged in a business affecting 
commerce that owns or leases a commercial motor vehicle in connection 
with that business, or assigns an employee to operate the vehicle in 
commerce, but does not include the Government, a State, or a political 
subdivision of a State.
    (j) OSHA means the Occupational Safety and Health Administration of 
the United States Department of Labor.
    (k) Person means one or more individuals, partnerships, 
associations, corporations, business trusts, legal representatives, or 
any other organized group of individuals.
    (l) Respondent means the person alleged to have violated 49 U.S.C. 
31105.
    (m) Secretary means the Secretary of Labor or persons to whom 
authority under the Act has been delegated.
    (n) State means a State of the United States, the District of 
Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, and 
the Northern Mariana Islands.
    (o) 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.  1978.102  Obligations and prohibited acts.

    (a) No person may discharge or otherwise retaliate against any 
employee with respect to the employee's compensation, terms, 
conditions, or privileges of employment because the employee engaged in 
any of the activities specified in paragraphs (b) or (c) of this 
section. In addition, no person may discharge or otherwise retaliate 
against any employee with respect to the employee's compensation, 
terms, conditions, or privileges of employment because a person acting 
pursuant to the employee's request engaged in any of the activities 
specified in paragraph (b).
    (b) It is a violation for any person to intimidate, threaten, 
restrain, coerce, blacklist, discharge, discipline, harass, suspend, 
demote, or in any other manner retaliate against any employee because 
the employee or a person acting pursuant to the employee's request has:
    (1) Filed orally or in writing a complaint with an employer, 
government agency, or others or begun a proceeding related to a 
violation of a commercial motor vehicle safety or security regulation, 
standard, or order; or
    (2) Testified or will testify at any proceeding related to a 
violation of a commercial motor vehicle safety or security regulation, 
standard, or order.
    (c) It is a violation for any person to intimidate, threaten, 
restrain, coerce, blacklist, discharge, discipline, harass, suspend, 
demote, or in any other manner retaliate against any employee because 
the employee:
    (1) Refuses to operate a vehicle because:
    (i) The operation violates a regulation, standard, or order of the 
United States related to commercial motor vehicle safety, health, or 
security; or
    (ii) He or she has a reasonable apprehension of serious injury to 
himself or herself or the public because of the vehicle's hazardous 
safety or security condition;
    (2) Accurately reports hours on duty pursuant to Chapter 315 of 
Title 49 of the United States Code; or
    (3) Cooperates with a safety or security investigation by the 
Secretary of Transportation, the Secretary of Homeland Security, or the 
National Transportation Safety Board; or
    (4) Furnishes 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 commercial motor vehicle transportation.
    (d) No person may discharge or otherwise retaliate against any 
employee with respect to the employee's compensation, terms, 
conditions, or privileges of employment because the person perceives 
that the employee has engaged in any of the activities specified in 
paragraph (e) of this section.
    (e) It is a violation for any person to intimidate, threaten, 
restrain, coerce, blacklist, discharge, discipline, harass, suspend, 
demote, or in any other manner retaliate against any employee because 
the employer perceives that:
    (1) The employee has filed orally or in writing or is about to file 
orally or in writing a complaint with an employer, government agency, 
or others or has begun or is about to begin a proceeding related to a 
violation of a commercial motor vehicle safety or security regulation, 
standard or order;
    (2) The employee is about 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
    (3) The employee has furnished or is about 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 commercial motor 
vehicle transportation.
    (f) For purposes of this section, an employee's apprehension of 
serious injury is reasonable only if a reasonable individual in the 
circumstances then confronting the employee would conclude that the 
hazardous safety or security condition establishes a real danger of 
accident, injury or serious impairment to health. To qualify for 
protection, the employee must have sought from the employer, and been 
unable to obtain, correction of the hazardous safety or security 
condition.


Sec.  1978.103  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 STAA may file, or 
have filed by any person on the employee's behalf, a complaint alleging 
such retaliation.
    (b) Nature of filing. No particular form of complaint is required. 
A complaint may be filed orally or in writing. Oral

[[Page 44136]]

complaints will be reduced to writing by OSHA. If the complainant is 
unable to file a complaint in English, OSHA will accept the complaint 
in any other language.
    (c) Place of filing. The complaint should be filed with the OSHA 
office responsible for enforcement activities in the geographical area 
where the employee resides or was employed, but may be filed with any 
OSHA officer or employee. Addresses and telephone numbers for these 
officials are set forth in local directories and at the following 
Internet address: https://www.osha.gov.
    (d) Time for filing. Within 180 days after an alleged violation of 
STAA occurs, any employee who believes that he or she has been 
retaliated against in violation of STAA may file, or have filed by any 
person on the employee's behalf, a complaint alleging such retaliation. 
The date of the postmark, facsimile transmittal, electronic 
communication transmittal, telephone call, hand-delivery, delivery to a 
third-party commercial carrier, or in-person filing at an OSHA office 
will be considered the date of filing. The time for filing a complaint 
may be tolled for reasons warranted by applicable case law.
    (e) Relationship to section 11(c) complaints. A complaint filed 
under STAA alleging facts that would also constitute a violation of 
section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. 
660(c), will be deemed to be a complaint under both STAA and section 
11(c). Similarly, a complaint filed under section 11(c) that alleges 
facts that would also constitute a violation of STAA will be deemed to 
be a complaint filed under both STAA and section 11(c). Normal 
procedures and timeliness requirements under the respective statutes 
and regulations will be followed.


Sec.  1978.104  Investigation.

    (a) Upon receipt of a complaint in the investigating office, the 
Assistant Secretary will notify the respondent of the filing of the 
complaint by providing the respondent with a copy of the complaint, 
redacted in accordance with the Privacy Act of 1974, 5 U.S.C. 552a and 
other applicable confidentiality laws. The Assistant Secretary will 
also notify the respondent of the respondent's rights under paragraphs 
(b) and (f) of this section. The Assistant Secretary will provide a 
copy of the unredacted complaint to the complainant (or complainant's 
legal counsel, if complainant is represented by counsel) and to the 
Federal Motor Carrier Safety Administration.
    (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, and other applicable confidentiality laws. 
The agency will also provide the complainant with an opportunity to 
respond to such submissions.
    (d) Investigations will be conducted in a manner that protects the 
confidentiality of any person who provides information on a 
confidential basis, other than the complainant, in accordance with part 
70 of this title.
    (e)(1) A complaint will be dismissed unless the complainant has 
made a prima facie showing that protected activity was a contributing 
factor in the adverse action alleged in the complaint.
    (2) The complaint, supplemented as appropriate by interviews of the 
complainant, must allege the existence of facts and evidence to make a 
prima facie showing as follows:
    (i) The employee engaged in a protected activity, either actual 
activity or activity about to be undertaken;
    (ii) The respondent knew or suspected, actually or constructively, 
that the employee engaged in the protected activity;
    (iii) The employee suffered an adverse action; and
    (iv) The circumstances were sufficient to raise the inference that 
the protected activity was a contributing factor in the adverse action.
    (3) For purposes of determining whether to investigate, the 
complainant will be considered to have met the required burden if the 
complaint on its face, supplemented as appropriate through interviews 
of the complainant, alleges the existence of facts and either direct or 
circumstantial evidence to meet the required showing, i.e., to give 
rise to an inference that the respondent knew or suspected that the 
employee engaged in protected activity and that the protected activity 
was a contributing factor in the adverse action. The burden may be 
satisfied, for example, if the complainant shows that the adverse 
action took place shortly after the protected activity, giving rise to 
the inference that it was a contributing factor in the adverse action. 
If the required showing has not been made, the complainant (or the 
complainant's legal counsel, if complainant is represented by counsel) 
will be so notified and the investigation will not commence.
    (4) Notwithstanding a finding that a complainant has made a prima 
facie showing, as required by this section, an investigation of the 
complaint will not be conducted or will be discontinued if the 
respondent demonstrates by clear and convincing evidence that it would 
have taken the same adverse action in the absence of the complainant's 
protected activity.
    (5) If the respondent fails to make a timely response or fails to 
satisfy the burden set forth in the prior paragraph, the Assistant 
Secretary will proceed with the investigation. The investigation will 
proceed whenever it is necessary or appropriate to confirm or verify 
the information provided by the respondent.
    (f) Prior to the issuance of findings and a preliminary order as 
provided for in Sec.  1978.105, if the Assistant Secretary has 
reasonable cause, on the basis of information gathered under the 
procedures of this part, to believe that the respondent has violated 
the Act and that preliminary reinstatement is warranted, the Assistant 
Secretary will again contact the respondent (or the respondent's legal 
counsel, if respondent is represented by counsel) to give notice of the 
substance of the relevant evidence supporting the complainant's 
allegations as developed during the course of the investigation. This 
evidence includes any witness statements, which will be redacted to 
protect the identity of confidential informants where statements were 
given in confidence; if the statements cannot be redacted without 
revealing the identity of confidential informants, summaries of their 
contents will be provided. The complainant will also receive a copy of 
the materials that must be provided to the respondent under this 
paragraph. Before providing such materials to the complainant, the 
agency will redact them, if necessary, in accordance with the Privacy 
Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. 
The respondent will be given the opportunity to submit a written 
response, to meet with the investigators, to present statements from 
witnesses in

[[Page 44137]]

support of its position, and to present legal and factual arguments. 
The respondent must present this evidence within 10 business days of 
the Assistant Secretary's notification pursuant to this paragraph, or 
as soon thereafter as the Assistant Secretary and the respondent can 
agree, if the interests of justice so require.


Sec.  1978.105  Issuance of findings and preliminary orders.

    (a) After considering all the relevant information collected during 
the investigation, the Assistant Secretary will issue, within 60 days 
of the filing of the complaint, written findings as to whether there is 
reasonable cause to believe that the respondent has retaliated against 
the complainant in violation of STAA.
    (1) If the Assistant Secretary concludes that there is reasonable 
cause to believe that a violation has occurred, the Assistant Secretary 
will accompany the findings with a preliminary order providing relief. 
Such order will require, where appropriate: affirmative action to abate 
the violation; reinstatement of the complainant to his or her former 
position, with the same compensation, terms, conditions and privileges 
of the complainant's employment; and payment of compensatory damages 
(backpay with interest and compensation for any special damages 
sustained as a result of the retaliation, including any litigation 
costs, expert witness fees, and reasonable attorney fees which the 
complainant has incurred). Interest on backpay will be calculated using 
the interest rate applicable to underpayment of taxes under 26 U.S.C. 
6621 and will be compounded daily. The preliminary order may also 
require the respondent to pay punitive damages up to $250,000.
    (2) If the Assistant Secretary concludes that a violation has not 
occurred, the Assistant Secretary will notify the parties of that 
finding.
    (b) The findings and, where appropriate, the preliminary order will 
be sent by certified mail, return receipt requested, to all parties of 
record (and each party's legal counsel if the party is represented by 
counsel). The findings and, where appropriate, the preliminary order 
will inform the parties of the right to object to the findings and/or 
the order and to request a hearing. The findings and, where 
appropriate, the preliminary order also will give the address of the 
Chief Administrative Law Judge, U.S. Department of Labor. At the same 
time, the Assistant Secretary will file with the Chief Administrative 
Law Judge a copy of the original complaint and a copy of the findings 
and/or order.
    (c) The findings and the preliminary order will be effective 30 
days after receipt by the respondent (or the respondent's legal counsel 
if the respondent is represented by counsel), or on the compliance date 
set forth in the preliminary order, whichever is later, unless an 
objection and request for a hearing have been timely filed as provided 
at Sec.  1978.106. However, the portion of any preliminary order 
requiring reinstatement will be effective immediately upon the 
respondent's receipt of the findings and the preliminary order, 
regardless of any objections to the findings and/or the order.

Subpart B--Litigation


Sec.  1978.106  Objections to the findings and the preliminary order 
and request for a hearing.

    (a) Any party who desires review, including judicial review, must 
file any objections and a request for a hearing on the record within 30 
days of receipt of the findings and preliminary order pursuant to Sec.  
1978.105(c). The objections and request for a hearing must be in 
writing and state whether the objections are to the findings and/or the 
preliminary order. The date of the postmark, facsimile transmittal, or 
electronic communication transmittal is considered the date of filing; 
if the objection is filed in person, by hand-delivery or other means, 
the objection is filed upon receipt. Objections must be filed with the 
Chief Administrative Law Judge, U.S. Department of Labor, and copies of 
the objections must be mailed at the same time to the other parties of 
record and the OSHA official who issued the findings.
    (b) If a timely objection is filed, all provisions of the 
preliminary order will be stayed, except for the portion requiring 
preliminary reinstatement, which will not be automatically stayed. The 
portion of the preliminary order requiring reinstatement will be 
effective immediately upon the respondent's receipt of the findings and 
preliminary order, regardless of any objections to the order. The 
respondent may file a motion with the Office of Administrative Law 
Judges for a stay of the Assistant Secretary's preliminary order of 
reinstatement, which shall be granted only based on exceptional 
circumstances. If no timely objection is filed with respect to either 
the findings or the preliminary order, the findings and/or the 
preliminary order will become the final decision of the Secretary, not 
subject to judicial review.


Sec.  1978.107  Hearings.

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


Sec.  1978.108  Role of Federal agencies.

    (a)(1) The complainant and the respondent will be parties in every 
proceeding. In any case in which the respondent objects to the findings 
or the preliminary order the Assistant Secretary ordinarily will be the 
prosecuting party. In any other cases, at the Assistant Secretary's 
discretion, the Assistant Secretary may participate as a party or 
participate as amicus curiae at any stage of the proceeding. This right 
to participate includes, but is not limited to, the right to petition 
for review of a decision of an ALJ, including a decision approving or 
rejecting a settlement agreement between the complainant and the 
respondent.
    (2) If the Assistant Secretary assumes the role of prosecuting 
party in accordance with paragraph (a)(1) of this section, he or she 
may, upon written notice to the ALJ or the Administrative Review Board, 
as the case may be, and the other parties, withdraw as the prosecuting 
party in the exercise of prosecutorial discretion. If the Assistant 
Secretary withdraws, the complainant will become the prosecuting party 
and the ALJ or the Administrative Review Board, as the case may be, 
will issue appropriate orders to regulate the course of future 
proceedings.

[[Page 44138]]

    (3) Copies of documents in all cases shall be sent to the parties 
or, if they are represented by counsel, to the latter. In cases in 
which the Assistant Secretary is a party, copies of documents shall be 
sent to the Regional Solicitor's Office representing the Assistant 
Secretary.
    (b) The Federal Motor Carrier Safety Administration, if interested 
in a proceeding, may participate as amicus curiae at any time in the 
proceeding, at its discretion. At the request of the Federal Motor 
Carrier Safety Administration, copies of all documents in a case must 
be sent to that agency, whether or not that agency is participating in 
the proceeding.


Sec.  1978.109  Decisions and orders of the administrative law judge.

    (a) The decision of the ALJ will contain appropriate findings, 
conclusions, and an order pertaining to the remedies provided in 
paragraph (d) of this section, as appropriate. A determination that a 
violation has occurred may be made only if the complainant has 
demonstrated by a preponderance of the evidence that protected activity 
was a contributing factor in the adverse action alleged in the 
complaint.
    (b) If the complainant or the Assistant Secretary has satisfied the 
burden set forth in the prior paragraph, relief may not be ordered if 
the respondent demonstrates by clear and convincing evidence that it 
would have taken the same adverse action in the absence of any 
protected activity.
    (c) Neither the Assistant Secretary's determination to dismiss a 
complaint without completing an investigation pursuant to Sec.  
1978.104(e) nor the Assistant Secretary's determination to proceed with 
an investigation is subject to review by the ALJ, and a complaint may 
not be remanded for the completion of an investigation or for 
additional findings on the basis that a determination to dismiss was 
made in error. Rather, if there otherwise is jurisdiction, the ALJ will 
hear the case on the merits or dispose of the matter without a hearing 
if the facts and circumstances warrant.
    (d)(1) If the ALJ concludes that the respondent has violated the 
law, the ALJ will issue an order that will require, where appropriate: 
affirmative action to abate the violation; reinstatement of the 
complainant to his or her former position with the same compensation, 
terms, conditions, and privileges of the complainant's employment; 
payment of compensatory damages (backpay with interest and compensation 
for any special damages sustained as a result of the retaliation, 
including any litigation costs, expert witness fees, and reasonable 
attorney fees which the complainant may have incurred); and payment of 
punitive damages up to $250,000. Interest on backpay will be calculated 
using the interest rate applicable to underpayment of taxes under 26 
U.S.C. 6621 and will be compounded daily.
    (2) If the ALJ determines that the respondent has not violated the 
law, an order will be issued denying the complaint.
    (e) The decision will be served upon all parties to the proceeding, 
the Assistant Secretary, and the Associate Solicitor, Division of 
Occupational Safety and Health, U.S. Department of Labor. Any ALJ's 
decision requiring reinstatement or lifting an order of reinstatement 
by the Assistant Secretary will be effective immediately upon receipt 
of the decision by the respondent. For ALJ decisions issued on or after 
the effective date of the interim final rule, August 31, 2010, all 
other portions of the ALJ's order will be effective 14 days after the 
date of the decision unless a timely petition for review has been filed 
with the Administrative Review Board (ARB), U.S. Department of Labor. 
Any ALJ decision issued on or after the effective date of the interim 
final rule, August 31, 2010, will become the final order of the 
Secretary unless a petition for review is timely filed with the ARB and 
the ARB accepts the decision for review.


Sec.  1978.110  Decisions and orders of the Administrative Review 
Board.

    (a) The Assistant Secretary or any other party desiring to seek 
review, including judicial review, of a decision of the ALJ must file a 
written petition for review with the ARB, which has been delegated the 
authority to act for the Secretary and issue final decisions under this 
part. The parties should identify in their petitions for review the 
legal conclusions or orders to which they object, or the objections may 
be deemed waived. A petition must be filed within 14 days of the date 
of the decision of the ALJ. The date of the postmark, facsimile 
transmittal, or electronic communication transmittal will be considered 
to be the date of filing; if the petition is filed in person, by hand-
delivery or other means, the petition is considered filed upon receipt. 
The petition must be served on all parties and on the Chief 
Administrative Law Judge at the time it is filed with the ARB. Copies 
of the petition for review and all briefs must be served on the 
Assistant Secretary and, in cases in which the Assistant Secretary is a 
party, on the Associate Solicitor, Division of Occupational Safety and 
Health, U.S. Department of Labor.
    (b) If a timely petition for review is filed pursuant to paragraph 
(a) of this section, the decision of the ALJ will become the final 
order of the Secretary unless the ARB, within 30 days of the filing of 
the petition, issues an order notifying the parties that the case has 
been accepted for review. If a case is accepted for review, the 
decision of the ALJ will be inoperative unless and until the ARB issues 
an order adopting the decision, except that any order of reinstatement 
will be effective while review is conducted by the ARB unless the ARB 
grants a motion by the respondent to stay that order based on 
exceptional circumstances. The ARB will specify the terms under which 
any briefs are to be filed. The ARB will review the factual 
determinations of the ALJ under the substantial evidence standard. If 
no timely petition for review is filed, or the ARB denies review, the 
decision of the ALJ will become the final order of the Secretary. If no 
timely petition for review is filed, the resulting final order is not 
subject to judicial review.
    (c) The final decision of the ARB will be issued within 120 days of 
the conclusion of the hearing, which will be deemed to be 14 days after 
the date of the decision of the ALJ, unless a motion for 
reconsideration has been filed with the ALJ in the interim. In such 
case, the conclusion of the hearing is the date the motion for 
reconsideration is ruled upon or 14 days after a new decision is 
issued. The ARB's final decision will be served upon all parties and 
the Chief Administrative Law Judge by mail. The final decision also 
will be served on the Assistant Secretary, and on the Associate 
Solicitor, Division of Occupational Safety and Health, U.S, Department 
of Labor, even if the Assistant Secretary is not a party.
    (d) If the ARB concludes that the respondent has violated the law, 
the ARB will issue a final order providing relief to the complainant. 
The final order will require, where appropriate: affirmative action to 
abate the violation; reinstatement of the complainant to his or her 
former position with the same compensation, terms, conditions, and 
privileges of the complainant's employment; payment of compensatory 
damages (backpay with interest and compensation for any special damages 
sustained as a result of the retaliation, including any litigation 
costs, expert witness fees, and reasonable attorney fees the 
complainant may have incurred); and payment of punitive damages up to 
$250,000. Interest on

[[Page 44139]]

backpay will be calculated using the interest rate applicable to 
underpayment of taxes under 26 U.S.C. 6621 and will be compounded 
daily.
    (e) If the ARB determines that the respondent has not violated the 
law, an order will be issued denying the complaint.
    (f) Paragraphs (a) and (b) of this section apply to all cases in 
which the decision of the ALJ was issued on or after August 31, 2010.

Subpart C--Miscellaneous Provisions


Sec.  1978.111  Withdrawal of STAA complaints, findings, objections, 
and petitions for review; settlement.

    (a) At any time prior to the filing of objections to the Assistant 
Secretary's findings and/or preliminary order, a complainant may 
withdraw his or her complaint by notifying the Assistant Secretary, 
orally or in writing, of his or her withdrawal. The Assistant Secretary 
then will confirm in writing the complainant's desire to withdraw and 
determine whether to approve the withdrawal. The Assistant Secretary 
will notify the parties (and each party's legal counsel if the party is 
represented by counsel) of the approval of any withdrawal. If the 
complaint is withdrawn because of settlement, the settlement must be 
submitted for approval in accordance with paragraph (d) of this 
section. A complainant may not withdraw his or her complaint after the 
filing of objections to the Assistant Secretary's findings and/or 
preliminary order.
    (b) The Assistant Secretary may withdraw the findings and/or 
preliminary order at any time before the expiration of the 30-day 
objection period described in Sec.  1978.106, provided that no 
objection has been filed yet, and substitute new findings and/or a new 
preliminary order. The date of the receipt of the substituted findings 
or order will begin a new 30-day objection period.
    (c) At any time before the Assistant Secretary's findings and/or 
preliminary order become final, a party may withdraw objections to the 
Assistant Secretary's findings and/or preliminary order by filing a 
written withdrawal with the ALJ. If a case is on review with the ARB, a 
party may withdraw a petition for review of an ALJ's decision at any 
time before that decision becomes final by filing a written withdrawal 
with the ARB. The ALJ or the ARB, as the case may be, will determine 
whether to approve the withdrawal of the objections or the petition for 
review. If the ALJ approves a request to withdraw objections to the 
Assistant Secretary's findings and/or order, and there are no other 
pending objections, the Assistant Secretary's findings and/or order 
will become the final order of the Secretary. If the ARB approves a 
request to withdraw a petition for review of an ALJ decision, and there 
are no other pending petitions for review of that decision, the ALJ's 
decision will become the final order of the Secretary. If objections or 
a petition for review are withdrawn because of settlement, the 
settlement must be submitted for approval in accordance with paragraph 
(d) of this section.
    (d)(1) Investigative settlements. At any time after the filing of a 
STAA complaint and before the findings and/or order are objected to or 
become a final order by operation of law, the case may be settled if 
the Assistant Secretary, the complainant, and the respondent agree to a 
settlement. The Assistant Secretary's approval of a settlement reached 
by the respondent and the complainant demonstrates the Assistant 
Secretary's consent and achieves the consent of all three parties.
    (2) Adjudicatory settlements. At any time after the filing of 
objections to the Assistant Secretary's findings and/or order, the case 
may be settled if the participating parties agree to a settlement and 
the settlement is approved by the ALJ if the case is before the ALJ or 
by the ARB, if the ARB has accepted the case for review. A copy of the 
settlement will be filed with the ALJ or the ARB, as the case may be.
    (e) Any settlement approved by the Assistant Secretary, the ALJ, or 
the ARB will constitute the final order of the Secretary and may be 
enforced in United States district court pursuant to 49 U.S.C. 
31105(e).


Sec.  1978.112  Judicial review.

    (a) Within 60 days after the issuance of a final order under 
Sec. Sec.  1978.109 and 1978.110, any person adversely affected or 
aggrieved by the order may file a petition for review of the order in 
the United States Court of Appeals for the circuit in which the 
violation allegedly occurred or the circuit in which the person resided 
on the date of the violation.
    (b) A final order is not subject to judicial review in any criminal 
or other civil proceeding.
    (c) If a timely petition for review is filed, the record of a case, 
including the record of proceedings before the ALJ, will be transmitted 
by the ARB or the ALJ, as the case may be, to the appropriate court 
pursuant to the Federal Rules of Appellate Procedure and the local 
rules of such court.


Sec.  1978.113  Judicial enforcement.

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


Sec.  1978.114  District court jurisdiction of retaliation complaints 
under STAA.

    (a) If there is no final order of the Secretary, 210 days have 
passed since the filing of the complaint, and there is no showing that 
there has been delay due to the bad faith of the complainant, the 
complainant may bring an action at law or equity for de novo review in 
the appropriate district court of the United States, which will have 
jurisdiction over such an action without regard to the amount in 
controversy. The action shall, at the request of either party to such 
action, be tried by the court with a jury.
    (b) Within seven days after filing a complaint in federal court, a 
complainant must file with the Assistant Secretary, the ALJ, or the 
ARB, depending on where the proceeding is pending, a copy of the file-
stamped complaint. A copy of the complaint also must be served on the 
OSHA official who issued the findings and/or preliminary order, the 
Assistant Secretary, and the Associate Solicitor, Division of 
Occupational Safety and Health, U.S. Department of Labor.


Sec.  1978.115  Special circumstances; waiver of rules.

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

[FR Doc. 2012-17994 Filed 7-26-12; 8:45 am]
BILLING CODE 4510-26-P