Department of Labor: 72 FED REG 44956

44956 Federal Register / Vol. 72, No.
154 / Friday, August 10, 2007 / Rules and Regulations
not a ‘‘significant regulatory action’’ Issued in Seattle, Washington, on April 26, you may fax them to the OSHA Docket
under Executive Order 12866; (2) is not 2007. Office at (202) 693–1648.
a ‘‘significant rule’’ under DOT Clark Desing, Mail, hand delivery, express mail,
Regulatory Policies and Procedures (44 Manager, System Support Group, Western messenger or courier service: You must
FR 11034; February 26, 1979); and (3) Service Center. submit three copies of your comments
does not warrant preparation of a [FR Doc. E7–15579 Filed 8–9–07; 8:45 am] and attachments to the OSHA Docket
regulatory evaluation as the anticipated BILLING CODE 4910–13–P Office, Docket No. OSHA–2007–0028,
impact is so minimal. Since this is a U.S. Department of Labor, Room N–
routine matter that will only affect air 2625, 200 Constitution Avenue, NW.,
traffic procedures and air navigation, it DEPARTMENT OF LABOR Washington, DC 20210. Deliveries
is certified that this rule, when (hand, express mail, messenger and
promulgated, would not have a Occupational Safety and Health courier service) are accepted during the
significant economic impact on a Administration Department of Labor’s and Docket
substantial number of small entities Office’s normal business hours, 8:15
under the criteria of the Regulatory 29 CFR Part 24 a.m.–4:45 p.m., e.t.
Flexibility Act. Instructions: All submissions must
[Docket Number: OSHA–2007–0028]
include the Agency name and the OSHA
List of Subjects in 14 CFR Part 71 RIN 1218–AC25 docket number for this rulemaking
Airspace, Incorporation by reference, (Docket No. OSHA–2007–0028).
Navigation (air). Procedures for the Handling of Submissions, including any personal
Retaliation Complaints Under the information you provide, are placed in
Adoption of the Amendment Employee Protection Provisions of Six the public docket without change and
■ In consideration of the foregoing, the Federal Environmental Statutes and may be made available online at http://
Federal Aviation Administration Section 211 of the Energy www.regulations.gov. Therefore, OSHA
amends 14 CFR part 71 as follows: Reorganization Act of 1974, as cautions you about submitting personal
Amended information such as social security
PART 71—DESIGNATION OF CLASS A, AGENCY: Occupational Safety and Health numbers and birth dates. For further
B, C, D, AND E AIRSPACE AREAS; AIR Administration, Labor. information on submitting comments
TRAFFIC SERVICE ROUTES; AND plus additional information on the
ACTION: Interim final rule; request for
REPORTING POINTS rulemaking process, see the ‘‘Public
comments.
■ 1. The authority citation for 14 CFR Participation’’ heading in the
SUMMARY: The Department of Labor SUPPLEMENTARY INFORMATION section of
part 71 continues to read as follows:
amends the regulations governing the this document.
Authority: 49 U.S.C. 106(g), 40103, 40113, employee protection (‘‘whistleblower’’) Docket: To read or download
40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– submissions or other material in the
provisions of Section 211 of the Energy
1963 Comp., p. 389.
Reorganization Act of 1974, as amended docket, go to http://www.regulations.gov
§ 71.1 [Amended]. (‘‘ERA’’), to implement the statutory or the OSHA Docket Office at the
changes enacted into law on August 8, address above. All documents in the
■ 2. The incorporation by reference in docket are listed in the http://
2005, as part of the Energy Policy Act
14 CFR 71.1 of the Federal Aviation www.regulations.gov index; however,
of 2005. The regulations also make the
Administration Order 7400.9P, Airspace some information (e.g., copyrighted
procedures for handling retaliation
Designations and Reporting Points, material) is not publicly available to
complaints under Section 211 of the
dated September 1, 2006, and effective read or download through the Web site.
ERA and the environmental
September 15, 2006 is amended as All submissions, including copyrighted
whistleblower statutes listed in Part 24
follows: material, are available for inspection
as consistent as possible with the more
Paragraph 6005 Class E airspace areas recently promulgated procedures for and copying at the OSHA Docket Office.
extending upward from 700 feet or more handling retaliation complaints under FOR FURTHER INFORMATION CONTACT:
above the surface of the earth. other employee protection provisions Nilgun Tolek, Director, Office of
* * * * * administered by the Occupational Investigative Assistance, Occupational
ANM UT E5 Beaver, UT [New] Safety and Health Administration Safety and Health Administration, U.S.
(‘‘OSHA’’), see 29 CFR parts 1979–1981. Department of Labor, Room N–3610,
Beaver Municipal Airport, UT
(Lat. 38°13′51″ N., long. 112°40′31″ W.) DATES: This interim final rule is 200 Constitution Avenue, NW.,
Bryce Canyon VORTAC effective on August 10, 2007. Comments Washington, DC 20210; telephone (202)
(Lat. 37°41′21″ N., long. 112°18′14″ W.) and additional materials must be 693–2199. This is not a toll-free number.
That airspace extending upward from 700 submitted (postmarked, sent or The alternative formats available are
feet above the surface within a 5.0-mile received) by October 9, 2007. large print, electronic file on computer
radius of Beaver Municipal Airport and ADDRESSES: You may submit comments disk (Word Perfect, ASCII, Mates with
within 3 miles each side of the 261° bearing and additional materials by any of the Duxbury Braille System) and audiotape.
from the Airport extending from the 5.0-mile following methods: SUPPLEMENTARY INFORMATION:
radius to 14.0 miles west of the Airport, and
that airspace extending upward from 1,200
Electronically: You may submit
comments and attachments I. Background
feet above the surface beginning at lat.
38°19′24″ N., long. 113°30′00″ W.; thence east electronically at http:// The Energy Policy Act of 2005, Public
on V–244 to lat. 38°22′22″ N., long. www.regulations.gov, which is the Law 109–58, was enacted on August 8,
yshivers on PROD1PC62 with RULES
112°37′47″ W.; thence south on V–257 to Federal eRulemaking Portal. Follow the 2005. Among other provisions, this new
BRYCE CANYON VORTAC; thence west on instructions online for making law amended the employee protection
V–293 to lat. 37°56′30″ N., long. 113°00′00″ electronic submissions. provisions for nuclear whistleblowers
W.; to point of beginning. Fax: If your submissions, including under Section 211 of the ERA, 42 U.S.C.
* * * * * attachments, do not exceed 10 pages, 5851; the statutory amendments affect
VerDate Aug<31>2005 13:35 Aug 09, 2007 Jkt 211001 PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 E:\FR\FM\10AUR1.SGM 10AUR1
Federal Register / Vol. 72, No. 154 / Friday, August 10, 2007 / Rules and Regulations 44957
only ERA whistleblower complaints. site’s User Tips link. Contact the OSHA regulation also have been changed to
The amendments to the ERA apply to Docket Office for information about correspond with the numbering under
whistleblower claims filed on or after materials not available through the Web the regulations implementing AIR21,
August 8, 2005, the date of the site and for assistance in using the SOX, and PSIA. Although these
enactment of Section 629 of the Energy internet to locate docket submissions. regulations are intended to conform to
Policy Act of 2005. The changes to the Electronic copies of this Federal those implementing AIR21, SOX, and
regulations also affect the six Register document are available at PSIA, they make one change in
environmental whistleblower statutes http://www.regulations.gov. This terminology; they refer to actions
because the same procedures apply to document, as well as news releases and brought under the employee protection
each of the statutes covered in Part 24. other relevant information, also are provisions of these statutes as actions
The regulatory changes recognize the available at OSHA’s Web page at http:// alleging ‘‘retaliation’’ rather than
importance of consistency in the www.osha.gov. ‘‘discrimination.’’ This change in
procedures governing the whistleblower terminology, which is not intended to
III. Summary of Statutory Changes to have substantive effect, reflects that
statutes administered by OSHA. ERA Whistleblower Provisions claims brought under these employee
II. Public Participation Section 629 of Public Law 109–58 protection provisions are prototypical
Submission of Comments and Access to (119 Stat. 785) amended Section 211 of retaliation claims. A retaliation claim is
Docket the ERA, 42 U.S.C. 5851 by making the a specific type of discrimination claim
changes described below. that focuses on actions taken as a result
You may submit comments and
Revised Definition of ‘‘Employer’’ of an employee’s protected activity
additional materials (1) electronically at
rather than as a result of an employee’s
http://www.regulations.gov, which is Section 211 of the ERA defined a characteristics (i.e., race, gender, or
the Federal eRulemaking Portal; (2) by covered ‘‘employer’’ to include: religion). The burdens of proving a
facsimile (FAX); or (3) by hard copy. All licensees of the Nuclear Regulatory retaliation claim are the same as those
submissions must identify the Agency Commission (‘‘Commission’’); of a standard discrimination claim. See
name and the OSHA docket number for applicants for such licenses, and their Essex v. United Parcel Service, Inc., 111
this rulemaking (Docket No. OSHA– contractors and subcontractors; F.3d 1304, 1308 (7th Cir. 1997).
2007–0028). You may supplement contractors and subcontractors of the
electronic submissions by uploading Department of Energy, except those Section 24.100 Purpose and Scope
document attachments and files involved in naval nuclear propulsion This section (formerly § 24.1)
electronically. If, instead, you wish to work under Executive Order 12344; describes the purpose of the regulations
mail additional materials in reference to licensees of an agreement State under implementing the employee protection
an electronic or fax submission, you Section 274 of the Atomic Energy Act of provisions of seven statutes enforced by
must submit three copies to the OSHA 1954; applicants for such licenses, and the Secretary of Labor and provides an
Docket Office (see ADDRESSES section). their contractors and subcontractors. overview of the procedures covered by
The additional materials must clearly The August 2005 amendments revised the regulations. The section has been
identify your electronic submissions by the definition of ‘‘employer’’ to extend revised to refer to the Federal Water
name, date, and docket number so coverage to employees of contractors Pollution Control Act, instead of the
OSHA can attach them to your and subcontractors of the Commission; Clean Water Act. They are synonymous,
submissions. the Commission; and the Department of but the Office of Administrative Law
Because of security-related Energy. Judges and the Administrative Review
procedures, the use of regular mail may Board generally use Federal Water
cause a significant delay in the receipt De Novo Review
Pollution Control Act, and we do so
of submissions. For information about The August 2005 amendments added here for the sake of consistency. In
security procedures concerning the a provision for de novo review by a addition, the section has been
delivery of materials by hand, express United States District Court in the event renumbered to conform to the
delivery, messenger or courier service, that the Secretary has not issued a final numbering system for regulations that
please contact the OSHA Docket Office decision within one year after the filing implement AIR21, SOX, and the PSIA.
at (202) 693–2350 (TTY (877) 889– of a complaint, and there is no showing Thus, for example, former § 24.1
5627). that the delay is due to the bad faith of becomes current § 24.100.
Submissions are posted without the complainant.
change at http://www.regulations.gov. Section 24.101 Definitions
Therefore, OSHA cautions commenters IV. Summary and Discussion of
This new section includes general
about submitting personal information Regulatory Provisions
definitions applicable to the employee
such as social security numbers and The regulatory provisions in this part protection provisions of the seven
birth dates. Although all submissions have been revised in the interest of statutes listed in § 24.100(a). This
are listed in the http:// consistency to conform to the section does not include program-
www.regulations.gov index, some regulations implementing the employee specific definitions, which may be
information (e.g., copyrighted material) protection provisions of the following found in the statutes.
is not publicly available to read or statutes that are administered and
download through http:// enforced by the Secretary of Labor: Section 24.102 Obligations and
www.regulations.gov. All submissions, Wendell H. Ford Aviation Investment Prohibited Acts
including copyrighted material, are and Reform Act for the 21st Century This section (formerly § 24.2)
available for inspection and copying at (‘‘AIR21’’), codified at 29 CFR part 1979; describes the whistleblower activity that
the OSHA Docket Office. Information on the Sarbanes-Oxley Act of 2002 is protected under the statutes covered
using the http://www.regulations.gov (‘‘SOX’’), codified at 29 CFR part 1980; by this Part and the type of conduct that
Web site to submit comments, requests and the Pipeline Safety Improvement is prohibited in response to any
for hearings and attachments, and to Act of 2002 (‘‘PSIA’’), codified at 29 protected activity. The language
access the docket is available at the Web CFR 1981. The section numbers of this generally has been revised to conform to
44958 Federal Register / Vol. 72, No. 154 / Friday, August 10, 2007 / Rules and Regulations
the language in the regulations that VII and other discrimination law as set amendments to the ERA, its
implement the AIR21, SOX, and PSIA forth under Mt. Healthy City School whistleblower provisions, in contrast to
whistleblower provisions. The changes District Board of Education v. Doyle, the other whistleblower provisions
are not intended to be substantive. 429 U.S. 274 (1977); Texas Dep’t of listed under Sec. 24.100(a), have
References to the statutes listed in Community Affairs v. Burdine, 450 U.S. contained specific statutory standards
24.100(a) have deleted the adjective 248 (1981); and McDonnell Douglas for the dismissal and adjudication of
‘‘Federal’’ as unnecessary. Paragraph (e) Corp. v. Green, 411 U.S. 792 (1973). See complaints and for the resolution of
has been moved from former Sec. 24.9. Dartey v. Zack Co. of Chicago, No. 82– mixed motive or dual motive cases. See
We note that the ARB interprets the ERA–2, 1983 WL 189787, at *3–*4 42 U.S.C. 5851(b)(3)(A) through
phrase ‘‘deliberate violations’’ for the (Sec’y of Labor Apr. 25, 1983 (b)(3)(D); Public Law 102–486, section
purpose of denying protection to an (discussing Burdine, 450 U.S. at 254– 2902, 106 Stat. at 3123–3124. The ERA
employee as including an element of 255)). Under these standards, a requires that a complainant make an
willfulness. See Fields v. United States complainant seeking to prove retaliation initial prima facie showing that
Department of Labor Administrative must first establish a prima facie case protected activity was ‘‘a contributing
Review Board, 173 F.3d 811, 814 (11th that protected activity was a motivating factor’’ in the unfavorable personnel
Cir. 1999) (petitioners knowingly factor in the adverse action, which action alleged in the complaint, i.e., that
conducted unauthorized and potentially creates a presumption of retaliation. whistleblowing activity, alone or in
dangerous experiments). See, e.g., St. Mary’s Honor Ctr. v. Hicks, combination with other factors, affected
Section 24.103 Filing of Retaliation 509 U.S. 502 (1993). Once a in some way the outcome of the
Complaint complainant establishes a prima facie employer’s personnel decision. 42
case, the employer has the burden of U.S.C. 5851(b)(3)(A). If the complainant
This section (formerly § 24.3) has producing a legitimate, nonretaliatory does not make the prima facie showing,
been revised to be consistent with the explanation for its actions. If the the investigation must be discontinued
regulatory procedures implementing the employer presents such evidence, the and the complaint dismissed. See
whistleblower provisions of the AIR21, presumption in favor of the complainant Trimmer v. United States Dep’t of Labor,
SOX, and PSIA. Thus, the section disappears, and the complainant must 174 F.3d 1098, 1101 (10th Cir. 1999)
heading has been changed from establish by a preponderance of the (noting that the distinct burden-shifting
‘‘Complaint’’ to ‘‘Filing of Retaliation evidence that the employer’s framework of the 1992 ERA
Complaint.’’ Also, paragraph (c) has explanation was a pretext, that is, that amendments served a ‘‘gatekeeping
been changed to paragraph (b) and the
the real reason for the adverse action function’’ that ‘‘stemmed frivolous
heading has been changed from ‘‘Form
was retaliation. A prima facie case, complaints’’). Even in cases where the
of Complaint’’ to ‘‘Nature of filing;’’
together with proof that the employer’s complainant successfully makes a prima
paragraph (d) has been changed to
explanation is pretext, permits (but does facie showing, the investigation must be
paragraph (c); and paragraph (b) has
not require) a trier of fact to find discontinued if the employer
been changed to paragraph (d) and the
retaliation. See Reeves v. Sanderson ‘‘demonstrates, by clear and convincing
language has been changed to conform
Plumbing Products, Inc., 530 U.S. 133, evidence, that it would have taken the
with that appearing in the AIR21, SOX,
147–148 (2000); St. Mary’s Honor same unfavorable personnel action’’ in
and PSIA regulations. Finally,
Center, 509 U.S. at 519 (‘‘It is not the absence of the protected activity. 42
paragraph (e) ‘‘Relationship to section
enough * * * to disbelieve the U.S.C. 5851(b)(3)(B). Thus, under the
11(c) complaints’’ has been added to
employer; the factfinder must believe ERA, the Secretary must dismiss the
explain the policy of the Secretary
the plaintiff’s explanation of intentional complaint and not investigate (or cease
regarding the relationship between
discrimination.’’); Dartey v. Zack, supra. investigating) if either: (1) The
complaints filed under the statutes
Thus, under these principles, an complainant fails to meet the prima
listed in Sec. 24.100(a) and a complaint
employee must prove by a facie showing that protected activity
under Section 11(c) of the Occupational
preponderance of the evidence that was a contributing factor in the
Safety and Health Act.
retaliation was a ‘‘motivating factor’’ for unfavorable personnel action; or (2) the
Section 24.104 Investigation the adverse employment action. The employer rebuts that showing by clear
This section (formerly § 24.4) has Secretary can conclude from the and convincing evidence that it would
been revised so that its language will evidence that the employer’s reason for have taken the same unfavorable
conform more closely to the language of the retaliation was a pretext and rule for personnel action absent the protected
the regulations implementing AIR21, the employee, or that the employer was activity.
SOX, and PSIA. Additionally, former not motivated in whole or in part by Assuming that an investigation
paragraph (b) of § 24.5 has been revised protected activity and rule for the proceeds beyond the gatekeeping phase,
and moved to this section, and former employer, or that an employer acted out the ERA provides statutory burdens of
paragraph (d) of § 24.4 has been revised of mixed motives. See Dartey v. Zack, proof that require an employee to prove
and moved to § 24.105, where it more 1983 WL 189787, at *4. If the Secretary that the alleged protected activity was a
appropriately appears under ‘‘Issuance concludes that the employer acted out ‘‘contributing factor’’ to the alleged
of findings and orders.’’ of mixed motives, the employer can adverse action. 42 U.S.C. 5851(b)(3)(C).
This rule sets forth two different escape liability by proving, by a If the employee proves that the alleged
standards of causation—‘‘motivating’’ preponderance of the evidence, that it protected activity was a contributing
factor and ‘‘contributing’’ factor— would have reached the same decision factor to the adverse action, the
depending on the whistleblower statute even in the absence of protected employer, to escape liability, must
under which a complaint is filed. When activity. Id. (discussing Mt. Healthy, 429 prove by ‘‘clear and convincing
investigating or adjudicating U.S. at 287). evidence’’ that it would have taken the
whistleblower complaints under the six Paragraph (b) of this section, which same action in the absence of the
environmental whistleblower statutes, sets forth procedures that apply only in protected activity. A contributing factor
the Department of Labor relies on the ERA cases, applies the ERA’s statutory is ‘‘any factor, which alone or in
traditional standards derived from Title burdens of proof. Since the 1992 combination with other factors, tends to
affect in any way the outcome of the clear and convincing evidence that it findings. These new regulations have
decision.’’ Marano v. Dep’t of Justice, 2 would have taken the same action in the been changed to provide that if no
F.3d 1137, 1140 (Fed. Cir. 1993) absence of protected activity). objections to the Assistant Secretary’s
(Whistleblower Protection Act, 5 U.S.C. Under traditional Title VII burden findings and order are filed within 30
1221(e)(1)); cf. Trimmer, 174 F.3d at shifting principles applicable to the six days of their receipt, the findings and
1101 (the 1992 amendments aimed, in environmental whistleblower statutes, if order of the Assistant Secretary will
part, ‘‘to make it easier for [ERA] the Secretary concludes that the become the final order of the Secretary.
whistleblowers to prevail in their employer acted for both prohibited and Thus, the timeframe for objecting to the
discrimination suits’’)). In proving that legitimate reasons (i.e., a ‘‘mixed findings and/or order and for requesting
protected activity was a contributing motive’’ case), the employer can escape a hearing has been extended from 5
factor in the adverse action, ‘‘a liability by proving, by a preponderance business days to 30 days. The Secretary
complainant need not necessarily prove of the evidence, that it would have is aware that, since the ERA, the Clean
that the respondent’s articulated reason reached the same decision even in the Air Act (‘‘CAA’’), the Safe Drinking
was a pretext in order to prevail,’’ absence of the protected conduct. See Water Act (‘‘SDWA’’), and the Toxic
because a complainant alternatively can Dartey v. Zack, 1983 WL 189787, at *4 Substances Control Act (‘‘TSCA’’)
prevail by showing that the (discussing Mt. Healthy, 429 U.S. at provide that the Secretary should issue
respondent’s reason, while true, is only 287). However, the 1992 ERA a final decision within 90 days of the
one of the reasons for its conduct, and amendments altered the employer’s filing of the complaint, allowing the
that another reason was complainant’s burden in a ‘‘mixed motive’’ case; under parties 30 days in which to object to the
protected activity. See Klopfenstein v. the ERA, once the Secretary concludes Assistant Secretary’s findings and any
PCC Flow Techs. Holdings, Inc., No. 04– that the employer acted for both order issued may have an impact on the
149, 2006 WL 1516650, *13 (ARB May prohibited and legitimate reasons, the Department’s meeting the 90-day
31, 2006) (discussing contributing factor employer can escape liability only by timeframe. Although the ERA
test under SOX) (citing Rachid v. Jack proving by clear and convincing amendments in 2005 did not change the
in the Box, Inc., 376 F.3d 305, 312 (5th evidence that it would have reached the 90-day timeframe, the Secretary believes
Cir. 2004). same decision even in the absence of the that in amending the ERA in 2005,
protected activity. 42 U.S.C. Congress recognized that it
The ERA statutory burdens of proof
5851(b)(3)(D). The ‘‘clear and appropriately could take up to one year
do not address the evidentiary standard convincing evidence’’ standard is a
that applies to a complainant’s proof to complete the investigatory and
higher burden of proof for employers adjudicative processing of a
that protected activity was a than the former ‘‘preponderance of the
contributing factor in an adverse action. whistleblower complaint (i.e., issue a
evidence’’ standard. See 138 Cong. Rec. final decision of the Secretary) under
The Secretary therefore adheres to 32,081, 32,082 (1992).
traditional Title VII discrimination law these environmental statutes.
for that determination, i.e., the Section 24.105 Issuance of Findings Accordingly, the Secretary believes that
complainant must prove by a and Orders allowing 30 days for a party to object to
‘‘preponderance of the evidence’’ that The procedures set forth in this the Assistant Secretary’s findings and
his protected activity contributed to his section formerly appeared under a request a hearing is warranted. Not only
termination; otherwise, the burden paragraph of § 24.4, the Investigations does the extension make the regulations
never shifts to the employer to establish section. This new section was created more consistent with those
its ‘‘clear and convincing evidence’’ for purposes of clarification and implementing AIR21, SOX, and PSIA, it
mixed-motive defense. See, e.g., Dysert consistency with the regulations also offers the parties a more reasonable
v. United States Secretary of Labor, 105 implementing the AIR21, SOX, and timeframe in which to consider whether
F.3d 607, 609 (11th Cir. 1997) PSIA whistleblower provisions. The to appeal the Assistant Secretary’s
(upholding Department’s interpretation former regulations provided that the findings.
of 42 U.S.C. 5851(b)(3)(C), as requiring Assistant Secretary would issue a Subpart B—Litigation
an employee to prove by a ‘‘Notice of Determination’’ at the
preponderance of the evidence that conclusion of the investigation, or upon Section 24.106 Objections to the
protected activity was a contributing dismissal of a complaint. These Findings and Order and Request for a
factor in an adverse action); see also regulations no longer use the term Hearing
Trimmer, 174 F.3d at 1102 (‘‘[o]nly if ‘‘Notice of Determination.’’ Instead, the Formerly, the procedures for
the complainant meets his burden [of regulations refer to the issuance of requesting a hearing before an
proving by a preponderance of the findings and orders, the nomenclature administrative law judge (‘‘ALJ’’) were
evidence that he engaged in protected used in the regulations implementing set forth under § 24.6. As indicated
activity that was a contributing factor in AIR21, SOX, and PSIA. This change in above, to be effective, objections to the
an unfavorable employment decision] nomenclature is not intended to be findings of the Assistant Secretary must
does the burden then shift to the substantive. be in writing and must be filed with the
employer to demonstrate by clear and The 30-day timeframe for completion Chief Administrative Law Judge, U.S.
convincing evidence that it would have of the investigation has been retained Department of Labor, 800 K Street, NW.,
taken the same unfavorable personnel because it is a statutory requirement Washington, DC 20001 within 30 days
action in the absence of such under the majority of the whistleblower of receipt of the findings. The date of
behavior.’’); Stone & Webster statutes covered by this part (the Solid the postmark, facsimile transmittal, or e-
Engineering Corp. v. Herman, 115 F.3d Waste Disposal Act, the Federal Water mail communication is considered the
1568, 1572 (11th Cir. 1997) (under Pollution Control Act, and the date of the filing. The filing of
section 5851, an employee must first Comprehensive Environmental objections is also considered a request
persuade the Secretary that protected Response, Compensation and Liability for a hearing before an ALJ. Although
activity was a contributing factor in an Act have no timeframe). The current the parties are directed to serve a copy
adverse action and then, if the employee regulations provide a 5-business-day of their objections to the other parties of
succeeds, the employer must prove by timeframe for filing objections to the record, as well as the OSHA official who
issued the findings and order, the Section 24.108 Role of Federal the ERA and whether to make particular
Assistant Secretary, and the Associate Agencies investigative findings under any of the
Solicitor, Division of Fair Labor This new section was added to statutes subject to this Part are
Standards, U.S. Department of Labor, N conform these regulations to those discretionary decisions not subject to
2716, 200 Constitution Ave., NW., implementing AIR21, SOX, and PSIA. review by the ALJ. The ALJ hears cases
Washington, DC 20210, the failure to As noted above, the substance of this de novo and, therefore, as a general
serve copies of the objections to the section formerly was set forth under matter, may not remand cases to the
other parties of record does not affect paragraphs (f) and (g) of § 24.6, the Assistant Secretary to conduct an
the ALJ’s jurisdiction to hear and decide section covering hearings. No investigation or make further factual
the merits of the case. See Shirani v. substantive changes are intended. Under findings. A full discussion of the
Calvert Cliffs Nuclear Power Plant, Inc., the ERA and the environmental burdens of proof used by the
No. 04–101, 2005 WL 2865915, *7 (ARB Department of Labor to resolve
whistleblower statutes, OSHA does not
Oct. 31, 2005). whistleblower cases under this part is
ordinarily appear as a party in the
Section 24.107 Hearings proceeding. The Secretary has found set forth above in the discussion of
that in most whistleblower cases, parties § 24.104.
This section has been revised to
have been ably represented and the This section also has been revised to
conform to the regulations
public interest has not required the eliminate the requirement under the
implementing the whistleblower
Department’s participation. ERA for the ALJ to issue a preliminary
provisions under AIR21, SOX, and
PSIA. It adopts the rules of practice of Nevertheless, the Assistant Secretary, at order of reinstatement separate from the
the Office of Administrative Law Judges his or her discretion, may participate as findings. The section clarifies that when
at 29 CFR Part 18, Subpart A. In order a party or amicus curiae at any time in an ALJ’s decision finds that the
to assist in obtaining full development the administrative proceedings. For complaint has merit and orders relief,
of the facts in whistleblower example, the Assistant Secretary may the order will be effective immediately
proceedings, formal rules of evidence do exercise his or her discretion to upon its receipt by the respondent,
not apply. The section specifically prosecute the case in the administrative except for that part of the order
provides for consolidation of hearings if proceeding before an ALJ; petition for awarding compensatory damages.
both the complainant and respondent review of a decision of an ALJ, Congress intended that whistleblowers
object to the findings and/or order of the including a decision based on a under the ERA be reinstated and
Assistant Secretary. Otherwise, this settlement agreement between the provided additional interim relief based
section no longer addresses procedural complainant and the respondent, upon the ALJ’s order even while the
issues, e.g., place of hearing, right to regardless of whether the Assistant decision is on review with the
counsel, procedures, evidence and Secretary participated before the ALJ; or Administrative Review Board. The
record of hearing, oral arguments and participate as amicus curiae before the previous regulations have caused
briefs, and dismissal for cause, because ALJ or in the Administrative Review confusing delays to the complainant’s
the Office of Administrative Law Judges Board proceeding. Although we right to immediate reinstatement. See,
has adopted its own rules of practice anticipate that ordinarily the Assistant e.g., McNeill v. Crane Nuclear, Inc., No.
that cover these matters. In order for Secretary will not participate, the 02–002, 2002 WL 31932543, *1–*2
hearings to be conducted as Assistant Secretary may choose to do so (Adm. Rev. Bd. Apr. 24, 2006). The
expeditiously as possible, and in appropriate cases, such as cases Secretary intends that, by eliminating
particularly in light of the unique involving important or novel legal any requirement that the ALJ ‘‘shall also
provision in the ERA allowing issues, large numbers of employees, issue a preliminary order providing all
complainants to seek a de novo hearing alleged violations which appear of the relief’’ specified in the
in federal court if the Secretary has not egregious, or where the interests of recommended order before an interim
issued a final decision within one year justice might require participation by order becomes effective, confusion will
of the filing of the complaint, this the Assistant Secretary. The be avoided and congressional intent to
section provides that the ALJ has broad Environmental Protection Agency, the have complainants promptly reinstated
authority to limit discovery. For Nuclear Regulatory Commission, and based upon a meritorious ALJ decision
example, an ALJ may limit the number the Department of Energy, at those will be better effectuated. Furthermore,
of interrogatories, requests for agencies’ discretion, also may the ALJ’s order will be effective
production of documents, or participate as amicus curiae at any time immediately whether or not the ALJ
depositions allowed. An ALJ also may in the proceedings. designates the decision and/or order as
exercise discretion to limit discovery recommended. As the Administrative
Section 24.109 Decision and Order of Review Board recently recognized,
unless the complainant agrees to delay
filing a complaint in federal court for the Administrative Law Judge every decision of an ALJ is
some definite period of time beyond the This section sets forth the content of recommended until it becomes the final
one-year point. If a complainant seeks the decision and order of the ALJ, and decision of the Secretary. Welch v.
excessive or burdensome discovery includes the standard for finding a Cardinal Bankshares Corp., No. 06–062,
under the ALJ’s rules and procedures at violation under the environmental 2006 WL 861374, * 3 n. 13 (Adm. Rev.
part 18 of Title 29, or fails to adhere to statutes and the ERA. The section Bd. Mar. 31, 2006) (‘‘The APA
an agreement to delay filing a complaint further provides that the Assistant authorizes ALJs to issue recommended
in federal court, a district court Secretary’s determination to dismiss the decisions. See 5 U.S.C. 554(d) (‘The
considering a request for de novo review complaint without an investigation or employee [i.e. ALJ] who presides at the
might conclude that such conduct without a complete investigation reception of evidence pursuant to
resulted in a delay due to the claimant’s pursuant to § 24.104 is not subject to section 556 of this title shall make the
bad faith. review. Thus, paragraph (c) of section recommended decision or initial
Former paragraphs (f) and (g) of this 24.109 clarifies that the Assistant decision required by section 557 of this
section have been moved to section Secretary’s determinations on whether title.* * *’ (emphasis added); 5 U.S.C.
24.108. to proceed with an investigation under 557(c) (‘Before a recommended, initial,
or tentative decision, or a decision on processing of a whistleblower complaint settlement that has not been reviewed
agency review of the decision of under these statutes. If a timely petition and approved by the Secretary will not
subordinate employees * * *. All for review is filed with the Board, any be considered a final order enforceable
decisions, including initial, relief ordered by the ALJ, except for that under section 24.113.
recommended, and tentative decisions, ordered under the ERA, is inoperative
are a part of the record. * * *’) while the matter is pending before the Section 24.112 Judicial Review
(emphasis added).’’). Board. The relief ordered by the ALJ
The substance of the rest of this This section describes the statutory
under the ERA is effective immediately
section was formerly found in section provisions for judicial review of
except for that portion awarding
24.7. The requirement that the ALJ issue decisions of the Secretary and requires,
compensatory damages. This section
a decision within 20 days after the in cases where judicial review is sought,
further provides that, when the Board
conclusion of the hearing has been accepts a petition for review, its factual the Administrative Review Board to
eliminated because procedures for determinations will be reviewed under submit the record of proceedings to the
issuing decisions, including their the substantial evidence standard. This appropriate court pursuant to the
timeliness, is addressed by the Rules of standard also is applied to Board review Federal Rules of Appellate Procedure
Practice and Procedure for of ALJ decisions under the and the local rules of such court.
Administrative Hearings Before the whistleblower provisions of AIR21, Paragraph (d) reflects that original
Office of Administrative Law Judges at SOX, and PSIA. jurisdiction for judicial review of a
29 CFR 18.57. This section also provides that in the decision issued under the
Section 24.110 Decision and Orders of exceptional case, the Board may grant a Comprehensive Environmental
the Administrative Review Board motion to stay an ALJ’s order of relief Response, Compensation and Liability
under the ERA, which otherwise will be Act is with the district courts rather
The decision of the ALJ is the final effective, while review is conducted by than the appellate courts. See 42 U.S.C.
decision of the Secretary if no timely the Board. The Secretary believes that a 9610(b) and 9613(b). The paragraph also
petition for review is filed with the stay of an ALJ’s order of relief under the
Administrative Review Board. Upon the reflects, however, that when an agency
ERA only would be appropriate where decision is based on other statutes that
issuance of the ALJ’s decision, the the respondent can establish the
parties have 10 business days within provide for direct review in the court of
necessary criteria for equitable appeals, principles of judicial economy
which to petition the Board for review
injunctive relief, i.e., irreparable injury, and consistency justify review of the
of that decision, or it becomes the final
likelihood of success on the merits, and entire proceeding in the court of
decision of the Secretary and is not
a balancing of possible harms to the appeals. See Ruud v. United States
subject to judicial review. The date of
parties and the public favors a stay. Dep’t of Labor, 347 F.3d 1086, 1090 (9th
the postmark, facsimile transmittal, or e-
mail communication will be considered Subpart C—Miscellaneous Provisions Cir. 2003) (‘‘[T]he court of appeals
to be the date of filing; if the petition is Section 24.111 Withdrawal of should entertain a petition to review an
filed in person, by hand-delivery or Complaints, Objections, and Findings; agency decision made pursuant to the
other means, the petition is considered Settlement agency’s authority under two or more
filed upon receipt. The appeal statutes, at least one of which provides
provisions in this part have been This section provides for procedures for direct review in the court of appeals,
revised, consistent with the and time periods for withdrawal of
where the petition involves a common
whistleblower provisions of AIR21, SOX complaints, the withdrawal of findings
factual background and raises a
and PSIA, to provide that an appeal to by the Assistant Secretary, and the
common legal question. Consolidated
the Board is no longer a matter of right withdrawal of objections to findings. It
also provides for approval of settlements review of such a petition avoids
but is accepted at the discretion of the
at the investigative and adjudicative inconsistency and conflicts between the
Board. Congress intended these
whistleblower actions to be expedited stages of the case. The regulations district and appellate courts while
and this change may assist in furthering reflect that settlement agreements under ensuring the timely and efficient
that goal. To facilitate review, the the statutory provisions of the ERA, resolution of administrative cases.’’); see
parties must specifically identify the CAA, SDWA, and TSCA must be also Shell Oil Co. v. F.E.R.C., 47 F.3d
findings and conclusions to which they reviewed and approved by the Secretary 1186, 1195 (D.C. Cir. 1995) (‘‘[W]hen an
take exception, or the exceptions to ensure that they are just and agency decision has two distinct bases,
ordinarily will be deemed waived by the reasonable and in the public interest. one of which provides for exclusive
parties. The Board has 30 days to decide See Beliveau v. United States Dep’t of jurisdiction in the court of appeals, the
whether to grant the petition for review. Labor, 170 F.3d 83, 86 (1st Cir. 1999); entire decision is reviewable exclusively
If the Board does not grant the petition, Macktal v. Secretary of Labor, 923 F.2d in the appellate court.’’) (citations and
the decision of the ALJ becomes the 1150, 1154 (5th Cir. 1991). Although it internal question marks omitted).
final decision of the Secretary. The ERA, has been OSHA’s practice to review
CAA, SDWA, and TSCA contain a 90- settlements for approval under all the Section 24.113 Judicial Enforcement
day timeframe for issuing final agency environmental whistleblower statutes, it This section describes the Secretary’s
decisions. Notwithstanding this short is required by statute only under the power under several of the statutes
timeframe, the Secretary believes that it ones noted above. See Bertacchi v. City listed in Sec. 24.100(a) to obtain judicial
is appropriate to give the Board 30 days of Columbus-Division of Sewerage &
enforcement of orders and the terms of
in which to decide whether to grant Drainage, ARB Case No. 05–155 (April
a settlement agreement. It also provides
review; as stated above, the Secretary 13, 2006). Notwithstanding this
for enforcement of orders of the
believes that in amending the ERA in statutory distinction, the Department

August 2005, Congress recognized that encourages the parties to submit all Secretary by the person on whose behalf
the Department appropriately could take settlements for review and approval, the order was issued under the ERA and
up to one year to complete the even those arising under the CERCLA, the CAA.
investigatory and adjudicative SWDA, and FWPCA. We note that a
Section 24.114 District Court matter is pending before an ALJ or the the handling of whistleblower
Jurisdiction of Retaliation Complaints Board for a decision, a federal court also complaints under SOX, AIR21, and
Under the Energy Reorganization Act might treat a complaint as a petition for PSIA. Specifically, those rules,
This section sets forth the ERA mandamus and order the Department to procedural in nature like this rule, were
provision allowing complainants to issue a decision under appropriate time published as interim final rules;
bring an action in district court for de frames. however, persons were given 60 days in
novo review if there has been no final which to submit comments. The
Section 24.115 Special Circumstances; Department carefully reviewed those
decision of the Secretary within one Waiver of Rules
year of the filing of the complaint and comments and then issued its final
there is no delay due to the This section provides that in rules. Similarly, in this instance, a final
complainant’s bad faith. It provides that circumstances not contemplated by rule will be published after the agency
complainants will give notice 15 days in these rules or for good cause the ALJ or receives and carefully reviews the
advance of their intent to file a the Board may, upon application and public’s comments.
complaint in district court. This notice to the parties, waive any rule as Furthermore, because this rule is
provision authorizing a federal court justice or the administration of the procedural rather than substantive, the
complaint is similar to one under the statutes listed in § 24.100(a) requires. normal requirement of 5 U.S.C. 553(d)
whistleblower provisions of SOX, but is that a rule be effective 30 days after
APPENDIX A—Your Rights Under the
otherwise unique among the publication in the Federal Register is
ERA
inapplicable. The Assistant Secretary
whistleblower statutes administered by The notice that employers are also finds good cause to provide an
the Secretary. This statutory scheme required to post under section 211(i) of immediate effective date for this rule. It
creates the possibility that a the ERA has been revised to reflect the is in the public interest that the rule be
complainant will have litigated a claim 2005 amendments. Specifically, the effective immediately so that parties
before the agency, will receive a notice now reflects that the definition of may know what procedures are
decision from an ALJ, and will then file ‘‘employer’’ has been expanded and that applicable to pending cases.
a complaint in district court while the the employee has a right to file a
case is pending review by the Board. complaint in district Court if the VII. Executive Order 12866; Unfunded
The Act might even be interpreted to Secretary has not issued a final decision Mandates Reform Act of 1995; Small
allow a complainant to bring an action Business Regulatory Enforcement
within one year of the filing of the
in federal court after receiving a final Fairness Act of 1996; Executive Order
complaint and the delay is not due to
decision from the Board, if that decision 13132
the bad faith of the employee. As noted
were issued more than one year after the above, we also have substituted the term The Department has concluded that
filing of the complaint. The Secretary ‘‘retaliation’’ for ‘‘discrimination.’’ this rule is not a ‘‘significant regulatory
believes that it would be a waste of the action’’ within the meaning of Executive
resources of the parties, the Department, V. Paperwork Reduction Act Order 12866 because it is not likely to
and the courts for complainants to This rule contains a reporting result in a rule that may: (1) Have an
pursue duplicative litigation. The provision (filing a retaliation complaint, annual effect on the economy of $100
Secretary notes that the courts have § 24.103) which was previously million or more or adversely affect in a
recognized that, when a party has had reviewed and approved for use by the material way the economy, a sector of
a full and fair opportunity to litigate a Office of Management and Budget the economy, productivity, competition,
claim, an adversary should be protected (‘‘OMB’’) under 29 CFR 24.3 and jobs, the environment, public health or
from the expense and vexation of assigned OMB control number 1218– safety, or State, local, or tribal
multiple lawsuits and that the public 0236 under the provisions of the governments or communities; (2) create
interest is served by preserving judicial Paperwork Reduction Act of 1995 (Pub. a serious inconsistency or otherwise
resources by prohibiting the same L. 104–13). interfere with an action taken or
parties making the same claims. See planned by another agency; (3)
Montana v. United States, 440 U.S. 147, VI. Administrative Procedure Act
materially alter the budgetary impact of
153 (1979). When an administrative The notice and comment rulemaking entitlements, grants, user fees, or loan
agency acts in a judicial capacity and procedures of Section 553 of the programs or the rights and obligations of
resolves disputed issues of fact properly Administrative Procedure Act (‘‘APA’’) recipients thereof; or (4) raise novel
before it, which the parties have had an do not apply ‘‘to interpretative rules, legal or policy issues arising out of legal
adequate opportunity to litigate, the general statements of policy, or rules of mandates, the President’s priorities, or
courts have not hesitated to apply the agency organization, procedure, or the principles set forth in Executive
principles of issue preclusion (collateral practice[.]’’ 5 U.S.C. 553(b)(A). This is a Order 12866. Therefore, no regulatory
estoppel) or claim preclusion (res rule of agency procedure and practice impact analysis has been prepared.
judicata) on the basis of that within the meaning of Section 553(b)(A)
administrative decision. See University of the APA; the agency does not have VIII. Regulatory Flexibility Analysis
of Tennessee v. Elliott, 478 U.S. 788, legislative rulemaking authority under The Department has determined that
799 (1986) (citing United States v. Utah the applicable statutes. Therefore the regulation will not have a significant
Construction and Mining Co., 384 U.S. publication in the Federal Register of a economic impact on a substantial
394, 422 (1966)). Therefore, the notice of proposed rulemaking and number of small entities. The regulation
Secretary anticipates that federal courts request for comments is not required. primarily implements procedures
will apply such principles if a Although this rule is not subject to the necessitated by statutory amendments
complainant brings a new action in notice and comment procedures of the enacted by Congress. Additionally, the
federal court following extensive APA, we are providing persons regulatory revisions are necessary for
litigation before the Department that has interested in this interim final rule 60 the sake of consistency with the
resulted in a decision by an ALJ or the days to submit comments. In so doing, regulatory provisions governing
Secretary. Where an administrative we are following the agency’s practice procedures under the other
hearing has been completed and a when it recently promulgated rules for whistleblower statutes administered by
the Secretary. Furthermore, no Subpart A—Complaints, terms, conditions, or privileges of

certification to this effect is required Investigations, Issuance of Findings employment because the employee, or
and no regulatory flexibility analysis is any person acting pursuant to the
required because no proposed rule has § 24.100 Purpose and scope. employee’s request, engaged in any of
been issued. (a) This part implements procedures the activities specified in this section.
under the employee protection (b) It is a violation for any employer
Document Preparation. This
provisions for which the Secretary of to intimidate, threaten, restrain, coerce,
document was prepared under the
Labor has been given responsibility blacklist, discharge, or in any other
direction of the Assistant Secretary,
pursuant to the following federal manner retaliate against any employee
Occupational Safety and Health
statutes: Safe Drinking Water Act, 42 because the employee has:
Administration, U.S. Department of
U.S.C. 300j–9(i); Federal Water (1) Commenced or caused to be
Labor.
Pollution Control Act, 33 U.S.C. 1367; commenced, or is about to commence or
List of Subjects in 29 CFR Part 24 Toxic Substances Control Act, 15 U.S.C. cause to be commenced, a proceeding
2622; Solid Waste Disposal Act, 42 under one of the statutes listed in
Administrative practice and U.S.C. 6971; Clean Air Act, 42 U.S.C. § 24.100(a) or a proceeding for the
procedure, Employment, Environmental 7622; Energy Reorganization Act of administration or enforcement of any
Protection, Investigations, Reporting 1974, 42 U.S.C. 5851; and requirement imposed under such
and recordkeeping requirements, Comprehensive Environmental statute;
Whistleblowing. Response, Compensation and Liability (2) Testified or is about to testify in
Signed in Washington, DC, this 2nd day of Act of 1980, 42 U.S.C. 9610. any such proceeding; or
August, 2007. (b) This part establishes procedures (3) Assisted or participated, or is
pursuant to the federal statutory about to assist or participate, in any
Edwin G. Foulke, Jr.,
provisions listed in paragraph (a) of this manner in such a proceeding or in any
Assistant Secretary for Occupational Safety section for the expeditious handling of
and Health. other action to carry out the purposes of
retaliation complaints made by such statute.
■ Accordingly, for the reasons set out in employees, or by persons acting on their (c) Under the Energy Reorganization
the preamble part 24 of title 29 of the behalf. These rules, together with those Act, and by interpretation of the
Code of Federal Regulations is revised rules codified at 29 CFR part 18, set Secretary under any of the other statutes
to read as follows: forth the procedures for submission of listed in § 24.100(a), it is a violation for
complaints under the federal statutory any employer to intimidate, threaten,
PART 24—PROCEDURES FOR THE provisions listed in paragraph (a) of this restrain, coerce, blacklist, discharge, or
HANDLING OF RETALIATION section, investigations, issuance of in any other manner retaliate against
COMPLAINTS UNDER FEDERAL findings, objections to findings, any employee because the employee
EMPLOYEE PROTECTION STATUTES litigation before administrative law has:
judges, issuance of decisions and orders, (1) Notified the employer of an
Subpart A—Complaints, Investigations, post-hearing administrative review, and
Issuance of Findings alleged violation of such statute or the
withdrawals and settlements. AEA of 1954;
Sec. (2) Refused to engage in any practice
24.100 Purpose and scope. § 24.101 Definitions.
Assistant Secretary means the made unlawful by such statute or the
24.101 Definitions.
Assistant Secretary of Labor for AEA of 1954, if the employee has
24.102 Obligations and prohibited acts.
Occupational Safety and Health or the identified the alleged illegality to the
24.103 Filing of retaliation complaint.
person or persons to whom he or she employer; or
24.104 Investigation.
delegates authority under any of the (3) Testified or is about to testify
24.105 Issuance of findings and orders.
statutes listed in § 24.100(a). before Congress or at any federal or state
Subpart B—Litigation Complainant means the employee proceeding regarding any provision (or
24.106 Objections to the findings and order who filed a complaint under any of the proposed provision) of such statute or
and request for a hearing. statutes listed in § 24.100(a) or on whose the AEA of 1954.
24.107 Hearings. behalf a complaint was filed. (d)(1) Every employer subject to the
24.108 Role of Federal agencies. OSHA means the Occupational Safety Energy Reorganization Act of 1974, as
24.109 Decision and orders of the and Health Administration of the amended, shall prominently post and
administrative law judge. United States Department of Labor. keep posted in any place of employment
24.110 Decision and orders of the Respondent means the employer to which the employee protection
Administrative Review Board. named in the complaint, who is alleged provisions of the Act apply, a fully
to have violated any of the statutes legible copy of the notice prepared by
Subpart C—Miscellaneous Provisions
listed in § 24.100(a). OSHA, printed as appendix A to this
24.111 Withdrawal of complaints, Secretary means the Secretary of part, or a notice approved by the
objections, and findings; settlement. Assistant Secretary that contains
Labor or persons to whom authority
24.112 Judicial review. substantially the same provisions and
under any of the statutes listed in
24.113 Judicial enforcement. explains the employee protection
§ 24.100(a) has been delegated.
24.114 District court jurisdiction of provisions of the Act and the
retaliation complaints under the Energy § 24.102 Obligations and prohibited acts. regulations in this part. Copies of the
Reorganization Act. (a) No employer subject to the notice prepared by OSHA may be
24.115 Special circumstances; waiver of provisions of any of the statutes listed obtained from the Assistant Secretary
rules. in § 24.100(a), or to the Atomic Energy for Occupational Safety and Health, U.S.
Appendix A to Part 24—Your Rights Under Act of 1954 (AEA), 42 U.S.C. 2011 et Department of Labor, Washington, DC
the Energy Reorganization Act. seq., may discharge or otherwise 20210, from local OSHA offices, or from
Authority: 15 U.S.C. 2622; 33 U.S.C. 1367; retaliate against any employee with OSHA’s Web site at http://
42 U.S.C. 300j–9(i), 5851, 6971, 7622, 9610. respect to the employee’s compensation, www.osha.gov.
(2) Where the notice required by (2) Under the Energy Reorganization basis, other than the complainant, in
paragraph (d)(1) of this section has not Act, within 180 days after an alleged accordance with 29 CFR part 70.
been posted, the requirement in violation of the Act occurs (i.e., when (d) Investigation under the six
§ 24.103(d)(2) that a complaint be filed the retaliatory decision has been both environmental statutes. In addition to
with the Assistant Secretary within 180 made and communicated to the the investigative procedures set forth in
days of an alleged violation will be complainant), an employee who § 24.104(a), (b), and (c), this paragraph
inoperative, unless the respondent believes that he or she has been sets forth the procedures applicable to
establishes that the complainant had retaliated against in violation of the Act investigations under the Safe Drinking
knowledge of the material provisions of may file, or have filed by any person on Water Act; Federal Water Pollution
the notice. If it is established that the the employee’s behalf, a complaint Control Act; Toxic Substances Control
notice was posted at the employee’s alleging such retaliation. The date of the Act; Solid Waste Disposal Act; Clean
place of employment after the alleged postmark, facsimile transmittal, or e- Air Act; and Comprehensive
retaliatory action occurred or that the mail communication will be considered Environmental Response, Compensation
complainant later obtained knowledge to be the date of filing; if the complaint and Liability Act.
of the provisions of the notice, the 180 is filed in person, by hand-delivery, or (1) A complaint of alleged violation
days will ordinarily run from whichever other means, the complaint is filed upon will be dismissed unless the
of those dates is relevant. receipt. complainant has made a prima facie
(e) This part shall have no application (e) Relationship to section 11(c) showing that protected activity was a
to any employee who, acting without complaints. A complaint filed under motivating factor in the unfavorable
direction from his or her employer (or any of the statutes listed in § 24.100(a) personnel action alleged in the
the employer’s agent), deliberately alleging facts that would constitute a complaint.
causes a violation of any requirement of violation of section 11(c) of the (2) The complaint, supplemented as
any of the statutes listed in § 24.100(a) Occupational Safety and Health Act, 29 appropriate by interviews of the
or the AEA of 1954. U.S.C. 660(c), will be deemed to be both complainant, must allege the existence
§ 24.103 Filing of retaliation complaint. a complaint filed under any of the of facts and evidence to make a prima
(a) Who may file. An employee who statutes listed in § 24.100(a) and section facie showing as follows:
believes that he or she has been 11(c). Similarly, a complaint filed under (i) The employee engaged in a
retaliated against by an employer in section 11(c) that alleges facts that protected activity;
violation of any of the statutes listed in would constitute a violation of any of (ii) The respondent knew or
§ 24.100(a) may file, or have filed by any the statutes listed in § 24.100(a) will be suspected, actually or constructively,
person on the employee’s behalf, a deemed to be both a complaint filed that the employee engaged in the
complaint alleging such retaliation. under any of the statutes listed in protected activity;
(b) Nature of Filing. No particular § 24.100(a) and section 11(c). Normal (iii) The employee suffered an
form of complaint is required, except procedures and timeliness requirements unfavorable personnel action; and
that a complaint must be in writing and for investigations under the respective (iv) The circumstances were sufficient
should include a full statement of the statutes and regulations will be to raise the inference that the protected
acts and omissions, with pertinent followed. activity was a motivating factor in the
dates, which are believed to constitute unfavorable action.
§ 24.104 Investigation.
the violations. (3) The complainant will be
(c) Place of Filing. The complaint (a) Upon receipt of a complaint in the considered to have met the required
should be filed with the OSHA Area investigating office, the Assistant burden if the complaint on its face,
Director responsible for enforcement Secretary will notify the respondent of supplemented as appropriate through
activities in the geographical area where the filing of the complaint, of the interviews of the complainant, alleges
the employee resides or was employed, allegations contained in the complaint, the existence of facts and either direct
but may be filed with any OSHA officer and of the substance of the evidence or circumstantial evidence to meet the
or employee. Addresses and telephone supporting the complaint (redacted to required showing, i.e., to give rise to an
numbers for these officials are set forth protect the identity of any confidential inference that the respondent knew or
in local directories and at the following informants). A copy of the notice to the suspected that the employee engaged in
Internet address: http://www.osha.gov. respondent will also be provided to the protected activity and that the protected
(d) Time for Filing. (1) Except as appropriate office of the federal agency activity was a motivating factor in the
provided in paragraph (d)(2) of this charged with the administration of the unfavorable personnel action. The
section, within 30 days after an alleged general provisions of the statute(s) burden may be satisfied, for example, if
violation of any of the statutes listed in under which the complaint is filed. the complainant shows that the adverse
§ 24.100(a) occurs (i.e., when the (b) Within 20 days of receipt of the personnel action took place shortly after
retaliatory decision has been both made notice of the filing of the complaint the protected activity, giving rise to the
and communicated to the complainant), provided under paragraph (a) of this inference that it was a motivating factor
an employee who believes that he or she section the respondent may submit to in the adverse action.
has been retaliated against in violation the Assistant Secretary a written (4) The complaint will be dismissed if
of any of the statutes listed in statement and any affidavits or the respondent demonstrates by a
§ 24.100(a) may file, or have filed by any documents substantiating its position. preponderance of the evidence that it
person on the employee’s behalf, a Within the same 20 days, the would have taken the same unfavorable
complaint alleging such retaliation. The respondent may request a meeting with personnel action in the absence of the
date of the postmark, facsimile the Assistant Secretary to present its complainant’s protected activity.
transmittal, or e-mail communication position. (e) Investigation under the Energy

will be considered to be the date of (c) Investigations will be conducted in Reorganization Act. In addition to the
filing; if the complaint is filed in person, a manner that protects the investigative procedures set forth in
by hand-delivery, or other means, the confidentiality of any person who § 24.104(a), (b), and (c), this paragraph
complaint is filed upon receipt. provides information on a confidential sets forth special procedures applicable
only to investigations under the Energy the investigation. The investigation will Subpart B—Litigation
Reorganization Act. proceed whenever it is necessary or
(1) A complaint of alleged violation appropriate to confirm or verify the § 24.106 Objections to the findings and
will be dismissed unless the information provided by the order and request for a hearing.
complainant has made a prima facie respondent. (a) Any party who desires review,
showing that protected activity was a including judicial review, of the
contributing factor in the unfavorable § 24.105 Issuance of findings and orders. findings and order must file any
personnel action alleged in the (a) After considering all the relevant objections and/or a request for a hearing
complaint. information collected during the on the record within 30 days of receipt
(2) The complaint, supplemented as investigation, the Assistant Secretary of the findings and order pursuant to
appropriate by interviews of the will issue, within 30 days of filing of the paragraph (b) of § 24.105. The objection
complainant, must allege the existence complaint, written findings as to and/or request for a hearing must be in
of facts and evidence to make a prima whether or not there is reasonable cause writing and state whether the objection
facie showing as follows: to believe that the respondent has is to the findings and/or the order. The
(i) The employee engaged in a discriminated against the complainant date of the postmark, facsimile
protected activity; in violation of any of the statutes listed transmittal, or e-mail communication
(ii) The respondent knew or in § 24.100(a). will be considered to be the date of
suspected, actually or constructively, (1) If the Assistant Secretary filing; if the objection is filed in person,
that the employee engaged in the concludes that there is reasonable cause by hand-delivery or other means, the
protected activity; to believe that a violation has occurred, objection is filed upon receipt.
(iii) The employee suffered an he or she shall accompany the findings Objections must be filed with the Chief
unfavorable personnel action; and with an order providing relief to the Administrative Law Judge, U.S.
(iv) The circumstances were sufficient complainant. The order shall include, Department of Labor, 800 K Street, NW.,
to raise the inference that the protected where appropriate, a requirement that Washington, DC 20001, and copies of
activity was a contributing factor in the the respondent abate the violation; the objections must be mailed at the
unfavorable action. reinstate the complainant to his or her same time to the other parties of record,
(3) For purposes of determining former position, together with the the OSHA official who issued the
whether to investigate, the complainant compensation (including back pay), findings and order, the Assistant
will be considered to have met the terms, conditions and privileges of the Secretary, and the Associate Solicitor,
required burden if the complaint on its complainant’s employment; pay Division of Fair Labor Standards, 200
face, supplemented as appropriate compensatory damages; and, under the Constitution Ave., NW., N 2716, U.S.
through interviews of the complainant, Toxic Substances Control Act and the Department of Labor, Washington, DC
alleges the existence of facts and either Safe Drinking Water Act, pay exemplary 20210.
direct or circumstantial evidence to damages, where appropriate. Where the (b) If a timely objection is filed, all
meet the required showing, i.e., to give respondent establishes that the provisions of the order will be stayed.
rise to an inference that the respondent complainant is a security risk (whether If no timely objection is filed with
knew or suspected that the employee or not the information is obtained after respect to either the findings or the
engaged in protected activity and that the complainant’s discharge), an order order, the findings and order will
the protected activity was a contributing of reinstatement would not be become the final decision of the
factor in the unfavorable personnel appropriate. At the complainant’s Secretary, not subject to judicial review.
action. The burden may be satisfied, for request the order shall also assess
example, if the complainant shows that against the respondent the § 24.107 Hearings.
the adverse personnel action took place complainant’s costs and expenses (a) Except as provided in this part,
shortly after the protected activity, (including attorney’s fees) reasonably proceedings will be conducted in
giving rise to the inference that it was incurred in connection with the filing of accordance with the rules of practice
a contributing factor in the adverse the complaint. and procedure for administrative
action. If the required showing has not (2) If the Assistant Secretary hearings before the Office of
been made, the complainant will be so concludes that a violation has not Administrative Law Judges, codified at
advised and the investigation will not occurred, the Assistant Secretary will subpart A, 29 CFR part 18.
commence. notify the parties of that finding. (b) Upon receipt of an objection and
(4) Notwithstanding a finding that a (b) The findings and order will be sent request for hearing, the Chief
complainant has made a prima facie by certified mail, return receipt Administrative Law Judge will promptly
showing, as required by this section, an requested, to all parties of record. The assign the case to a judge who will
investigation of the complaint will not letter accompanying the findings and notify the parties, by certified mail, of
be conducted or will be discontinued if order will inform the parties of their the day, time, and place of hearing. The
the respondent, pursuant to the right to file objections and to request a hearing is to commence expeditiously,
procedures provided in this paragraph, hearing and provide the address of the except upon a showing of good cause or
demonstrates by clear and convincing Chief Administrative Law Judge. The otherwise agreed to by the parties.
evidence that it would have taken the Assistant Secretary will file a copy of Hearings will be conducted de novo, on
same unfavorable personnel action in the original complaint and a copy of the the record. Administrative law judges
the absence of the complainant’s findings and order with the Chief have broad discretion to limit discovery
protected behavior or conduct. Administrative Law Judge, U.S. in order to expedite the hearing.
(5) If the respondent fails to make a Department of Labor. (c) If both the complainant and the
timely response or fails to demonstrate (c) The findings and order will be respondent object to the findings and/or
by clear and convincing evidence that it effective 30 days after receipt by the order, the objections will be
would have taken the same unfavorable respondent pursuant to paragraph (b) of consolidated, and a single hearing will
personnel action in the absence of the this section, unless an objection and a be conducted.
behavior protected by the Act, the request for a hearing has been filed as (d) Formal rules of evidence will not
Assistant Secretary will proceed with provided at § 24.106. apply, but rules or principles designed
to assure production of the most (b) In cases under the Energy filed with the Administrative Review
probative evidence available will be Reorganization Act, if the complainant Board.
applied. The administrative law judge has demonstrated by a preponderance of (3) If the administrative law judge
may exclude evidence that is the evidence that the protected activity determines that the respondent has not
immaterial, irrelevant, or unduly was a contributing factor in the violated the law, an order will be issued
repetitious. unfavorable personnel action alleged in denying the complaint.
the complaint, relief may not be ordered (e) The decision will be served upon
§ 24.108 Role of Federal agencies. if the respondent demonstrates by clear all parties to the proceeding. Any
(a)(1) The complainant and the and convincing evidence that it would administrative law judge’s decision
respondent will be parties in every have taken the same unfavorable issued under any of the statutes listed
proceeding. At the Assistant Secretary’s personnel action in the absence of any in § 24.100(a) will be effective 10
discretion, he or she may participate as protected activity. In cases under the business days after the date of the
a party or participate as amicus curiae other six statutes listed in § 24.100(a), decision unless a timely petition for
at any time at any stage of the even if the complainant has review has been filed with the
proceedings. This right to participate demonstrated by a preponderance of the Administrative Review Board. An
includes, but is not limited to, the right evidence that the protected activity was administrative law judge’s order issued
to petition for review of a decision of an a motivating factor in the unfavorable under the Energy Reorganization Act
administrative law judge, including a personnel action alleged in the will be effective immediately upon
decision approving or rejecting a complaint, relief may not be ordered if receipt, except for that portion of the
settlement agreement between the the respondent demonstrates by a order awarding any compensatory
complainant and the respondent. preponderance of the evidence that it damages.
(2) Copies of pleadings in all cases, would have taken the same unfavorable
§ 24.110 Decision and orders of the
whether or not the Assistant Secretary is personnel action in the absence of any Administrative Review Board.
participating in the proceeding, must be protected activity.
(c) Neither the Assistant Secretary’s (a) Any party desiring to seek review,
sent to the Assistant Secretary, including judicial review, of a decision
determination to dismiss a complaint
Occupational Safety and Health of the administrative law judge must file
without completing an investigation
Administration, and to the Associate a written petition for review with the
pursuant to § 24.104(d) nor the Assistant
Solicitor, Division of Fair Labor Administrative Review Board (‘‘the
Secretary’s determination to proceed
Standards, U.S. Department of Labor, Board’’), U.S. Department of Labor, 200
with an investigation is subject to
200 Constitution Ave., NW., N 2716, Constitution Ave., NW., Washington,
review by the administrative law judge,
Washington, DC 20210. DC 20210, which has been delegated the
and a complaint may not be remanded
(b) The Environmental Protection for the completion of an investigation or authority to act for the Secretary and
Agency, the Nuclear Regulatory for additional findings on the basis that issue final decisions under this part.
Commission, and the Department of a determination to dismiss was made in The decision of the administrative law
Energy, if interested in a proceeding, error. Rather, if there otherwise is judge will become the final order of the
may participate as amicus curiae at any jurisdiction, the administrative law Secretary unless, pursuant to this
time in the proceedings, at the agency’s judge will hear the case on the merits. section, a timely petition for review is
discretion. At the request of the (d)(1) If the administrative law judge filed with the Board. The petition for
interested federal agency, copies of all concludes that the respondent has review must specifically identify the
pleadings in a case must be sent to the violated the law, the order shall direct findings, conclusions or orders to which
federal agency, whether or not the the respondent to take appropriate exception is taken. Any exception not
agency is participating in the affirmative action to abate the violation, specifically urged ordinarily will be
proceeding. including reinstatement of the deemed to have been waived by the
complainant to that person’s former parties. A petition must be filed within
§ 24.109 Decision and orders of the 10 business days of the date of the
administrative law judge.
position, together with the
compensation (including back pay), decision of the administrative law
(a) The decision of the administrative terms, conditions, and privileges of that judge. The date of the postmark,
law judge will contain appropriate employment, and compensatory facsimile transmittal, or e-mail
findings, conclusions, and an order damages. In cases arising under the Safe communication will be considered to be
pertaining to the remedies provided in Drinking Water Act or the Toxic the date of filing; if the petition is filed
paragraph (c) of this section, as Substances Control Act, exemplary in person, by hand-delivery or other
appropriate. In cases arising under the damages may also be awarded when means, the petition is considered filed
ERA, a determination that a violation appropriate. At the request of the upon receipt. The petition must be
has occurred may only be made if the complainant, the administrative law served on all parties and on the Chief
complainant has demonstrated by a judge shall assess against the Administrative Law Judge at the time it
preponderance of the evidence that the respondent, all costs and expenses is filed with the Board. Copies of the
protected activity was a contributing (including attorney fees) reasonably petition for review and all briefs must
factor in the unfavorable personnel incurred. be served on the Assistant Secretary,
action alleged in the complaint. In cases (2) In cases brought under the Energy Occupational Safety and Health
arising under the other six statutes Reorganization Act, when an Administration, and on the Associate
listed in § 24.100(a), a determination administrative law judge issues a Solicitor, Division of Fair Labor
that a violation has occurred may only decision that the complaint has merit Standards, U.S. Department of Labor,
be made if the complainant has and orders the relief prescribed in 200 Constitution Ave., NW., N 2716,
demonstrated by a preponderance of the paragraph (d)(1) of this section, the Washington, DC 20210.
evidence that the protected activity was relief ordered, with the exception of (b) If a timely petition for review is
a motivating factor in the unfavorable compensatory damages, shall be filed pursuant to paragraph (a) of this
personnel action alleged in the effective immediately upon receipt, section, and the Board, within 30 days
complaint. whether or not a petition for review is of the filing of the petition, issues an
order notifying the parties that the case complaint under any of the statutes Act. At any time after the filing of
has been accepted for review, the listed in § 24.100(a) by filing a written objections to the Assistant Secretary’s
decision of the administrative law judge withdrawal with the Assistant findings and/or order, the case may be
will be inoperative unless and until the Secretary. The Assistant Secretary will settled if the participating parties agree
Board issues an order adopting the then determine whether to approve the to a settlement and the settlement is
decision, except that an order by an withdrawal. The Assistant Secretary approved by the administrative law
administrative law judge issued under will notify the respondent of the judge if the case is before the judge, or
the Energy Reorganization Act, other approval of any withdrawal. If the by the Board if a timely petition for
than that portion of the order awarding complaint is withdrawn because of review has been filed with the Board. A
compensatory damages, will be effective settlement under the Energy copy of the settlement must be filed
while review is conducted by the Board, Reorganization Act, the Clean Air Act, with the administrative law judge or the
unless the Board grants a motion by the the Safe Drinking Water Act, or the Board, as the case may be.
respondent to stay the order based on Toxic Substances Control Act, the (e) Any settlement approved by the
exceptional circumstances. The Board settlement must be submitted for Assistant Secretary, the administrative
will specify the terms under which any approval in accordance with paragraph law judge, or the Board will constitute
briefs are to be filed. The Board will (d) of this section. Parties to settlements the final order of the Secretary and may
review the factual determinations of the under the Federal Water Pollution be enforced pursuant to § 24.113.
administrative law judge under the Control Act, the Solid Waste Disposal
§ 24.112 Judicial review.
substantial evidence standard. If a Act, and the Comprehensive
Environmental Response, Compensation (a) Except as provided under
timely petition for review is not filed, or
and Liability Act are encouraged to paragraphs (b), (c), and (d) of this
the Board denies review, the decision of
submit their settlements for approval. section, within 60 days after the
the administrative law judge will issuance by the Board of a final order of
become the final order of the Secretary (b) The Assistant Secretary may
withdraw his or her findings and/or the Secretary under § 24.110, any person
and is not subject to judicial review. adversely affected or aggrieved by the
(c) The final decision of the Board order, at any time before the expiration
of the 30-day objection period described order may file a petition for review of
will be issued within 90 days of the
in § 24.106, provided that no objection the order in the United States Court of
filing of the complaint. The decision
has yet been filed, and substitute new Appeals for the circuit in which the
will be served upon all parties and the
findings and/or a new order. The date violation allegedly occurred or the
Chief Administrative Law Judge by mail
of the receipt of the substituted findings circuit in which the complainant
to the last known address. The final
and/or order will begin a new 30-day resided on the date of the violation. A
decision will also be served on the
objection period. final order of the Board is not subject to
Assistant Secretary, Occupational Safety
(c) At any time before the findings or judicial review in any criminal or other
and Health Administration, and on the
order become final, a party may civil proceeding.
Associate Solicitor, Division of Fair (b) Under the Federal Water Pollution
Labor Standards, U.S. Department of withdraw his or her objections to the
findings or order by filing a written Control Act, within 120 days after the
Labor, 200 Constitution Ave., NW., N issuance by the Board of a final order of
2716, Washington, DC 20210, even if the withdrawal with the administrative law
judge, or, if the case is on review, with the Secretary under § 24.110, any person
Assistant Secretary is not a party. adversely affected or aggrieved by the
(d) If the Board concludes that the the Board. The judge or the Board, as
the case may be, will determine whether order may file a petition for review of
respondent has violated the law, the
to approve the withdrawal. If the the order in the United States Court of
final order will order the respondent to
objections are withdrawn because of Appeals for the circuit in which the
take appropriate affirmative action to
settlement under the Energy violation allegedly occurred or the
abate the violation, including
Reorganization Act, the Clean Air Act, circuit in which the complainant
reinstatement of the complainant to that
the Safe Drinking Water Act, or the resided on the date of the violation.
person’s former position, together with (c) Under the Solid Waste Disposal
the compensation (including back pay), Toxic Substances Control Act, the
settlement must be submitted for Act, within 90 days after the issuance by
terms, conditions, and privileges of the Board of a final order of the
employment, and compensatory approval in accordance with paragraph
(d) of this section. Secretary under § 24.110, any person
damages. In cases arising under the Safe adversely affected or aggrieved by the
(d)(1) Investigative settlements under
Drinking Water Act or the Toxic order may file a petition for review of
the Energy Reorganization Act, the
Substances Control Act, exemplary Clean Air Act, the Safe Drinking Water the order in the United States Court of
damages may also be awarded when Act, and the Toxic Substances Control Appeals for the circuit in which the
appropriate. At the request of the Act. At any time after the filing of a violation allegedly occurred or the
complainant, the Board will assess complaint, and before the findings and/ circuit in which the complainant
against the respondent all costs and or order are objected to or become a resided on the date of the violation.
expenses (including attorney’s fees) final order by operation of law, the case (d) Under the Comprehensive
reasonably incurred. may be settled if the Assistant Secretary, Environmental Response, Compensation
(e) If the Board determines that the and Liability Act, after the issuance by
the complainant and the respondent
respondent has not violated the law, an the Board of a final order of the
agree to a settlement. The Assistant
order will be issued denying the Secretary under § 24.110, any person
Secretary’s approval of a settlement
complaint. adversely affected or aggrieved by the
reached by the respondent and the
Subpart C—Miscellaneous Provisions complainant demonstrates his or her order may file a petition for review of
consent and achieves the consent of all the order in the United States district
§ 24.111 Withdrawal of complaints, three parties. court in which the violation allegedly
objections, and findings; settlement. (2) Adjudicatory settlements under occurred. For purposes of judicial
(a) At any time prior to the filing of the Energy Reorganization Act, the economy and consistency, when a final
objections to the findings and/or order, Clean Air Act, the Safe Drinking Water order of the Secretary issued by the
a complainant may withdraw his or her Act, and the Toxic Substances Control Board under the Comprehensive
Environmental Response, Compensation § 24.111(d), the Secretary may file a (b) Fifteen days in advance of filing a
and Liability Act also is issued under civil action seeking enforcement of the complaint in federal court, a
any other statute listed in § 24.100(a), order in the United States district court complainant must file with the
the adversely affected or aggrieved for the district in which the violation Assistant Secretary, the administrative
person may file a petition for review of was found to have occurred. Whenever law judge, or the Board, depending
the entire order in the United States any person has failed to comply with an upon where the proceeding is pending,
Court of Appeals for the circuit in order by an administrative law judge a notice of his or her intention to file
which the violation allegedly occurred issued under the Energy Reorganization such complaint. The notice must be
or the circuit in which the complainant Act, with the exception of any award of served on all parties to the proceeding.
resided on the date of the violation. The compensatory damages, or with a final A copy of the notice must be served on
time for filing a petition for review of an order of the Secretary issued by the the Regional Administrator, the
order issued under the Comprehensive Board under either the Energy
Assistant Secretary, Occupational Safety
Environmental Response, Compensation Reorganization Act or the Clean Air Act,
and Liability Act and any other statute and Health Administration, and on the
the person on whose behalf the order
listed in § 24.100(a) is determined by Associate Solicitor, Division of Fair
was issued also may file a civil action
the time period applicable under the seeking enforcement of the order in the Labor Standards, U.S. Department of
other statute(s). United States district court for the Labor, 200 Constitution Ave., NW., N
(e) If a timely petition for review is district in which the violation was 2716, Washington, DC 20210.
filed, the record of a case, including the found to have occurred. § 24.115 Special circumstances; waiver of
record of proceedings before the
§ 24.114 District court jurisdiction of rules.
administrative law judge, will be
transmitted by the Board to the retaliation complaints under the Energy In special circumstances not
Reorganization Act.
appropriate court pursuant to the local contemplated by the provisions of this
rules of the court. (a) If the Board has not issued a final part, or for good cause shown, the
decision within one year of the filing of administrative law judge or the Board
§ 24.113 Judicial enforcement. a complaint under the Energy
on review may, upon application, after
Whenever any person has failed to Reorganization Act, and there is no
three days notice to all parties, waive
comply with an order by an showing that there has been delay due
any rule or issue any orders that justice
administrative law judge issued under to the bad faith of the complainant, the
the Energy Reorganization Act, with the complainant may bring an action at law or the administration of any of the
exception of any award of compensatory or equity for de novo review in the statutes listed in § 24.100(a) requires.
damages, or with a final order of the appropriate district court of the United Appendix A to Part 24—Your Rights
Secretary issued by the Board, including States, which will have jurisdiction over Under the Energy Reorganization Act
final orders approving settlement such an action without regard to the
agreements as provided under amount in controversy. BILLING CODE 4510–26–P
[FR Doc. E7–15539 Filed 8–9–07; 8:45 am]

ER10AU07.000</GPH>
BILLING CODE 4510–26–C

Department of Labor: 72 FED REG 44956

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Department of Labor: 72 FED REG 44956

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44956 Federal Register / Vol. 72, No.

154 / Friday, August 10, 2007 / Rules and Regulations

believes that in amending the ERA in statutory distinction, the Department

the Secretary. Furthermore, no Subpart A—Complaints, terms, conditions, or privileges of

transmittal, or e-mail communication position. (e) Investigation under the Energy

[FR Doc. E7–15539 Filed 8–9–07; 8:45 am]

BILLING CODE 4510–26–C

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