[Federal Register: April 8, 2005 (Volume 70, Number 67)][Rules and Regulations] [Page 17889-17898]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08ap05-2]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1981
RIN 1218-AC12
Procedures for the Handling of Discrimination Complaints Under
Section 6 of the Pipeline Safety Improvement Act of 2002
AGENCY: Occupational Safety and Health Administration, Labor.
ACTION: Final rule.
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SUMMARY: This document provides the final text of regulations governing
the employee protection (``whistleblower'') provisions of Section 6 of
the Pipeline Safety Improvement Act of 2002 (``Pipeline Safety Act''),
enacted into law December 17, 2002. This rule establishes procedures
and time frames for the handling of discrimination complaints under the
Pipeline Safety Act, including procedures and time frames for employee
complaints to the Occupational Safety and Health Administration
(``OSHA''), investigations by OSHA, appeals of OSHA determinations to
an administrative law judge (``ALJ'') for a hearing de novo, hearings
by ALJs, review of ALJ decisions by the Administrative Review Board
(acting on behalf of the Secretary) and judicial review of the
Secretary's final decision.
DATES: This final rule is effective on April 8, 2005.
FOR FURTHER INFORMATION CONTACT: Richard E. Fairfax, Director,
Directorate of Enforcement Programs, Occupational Safety and Health
Administration, U.S. Department of Labor, Room N-3112, 200 Constitution
Avenue, NW., Washington, DC 20210; telephone (202) 693-2100.
SUPPLEMENTARY INFORMATION:
I. Background
The Pipeline Safety Improvement Act of 2002 (``Pipeline Safety
Act''), Public Law 107-355, was enacted on December 17, 2002. Section 6
of the Act, codified at 49 U.S.C. 60129, provides protection to
employees against retaliation by an employer, defined as a person
owning or operating a pipeline facility or a contractor or
subcontractor of such a person, because they provided
information to the employer or the Federal Government relating to
Federal pipeline safety violations or filed, testified, or assisted in
a proceeding against the employer relating to any violation or alleged
violation of any Federal law relating to pipeline safety, or because
they are about to take any of these actions. These rules establish
procedures for the handling of whistleblower complaints under the
Pipeline Safety Act.
II. Summary of Statutory Procedures
The Pipeline Safety Act whistleblower provisions include procedures
that allow a covered employee to file, within 180 days of the alleged
discrimination, a complaint with the Secretary of Labor (``the
Secretary'').\1\ Upon receipt of the complaint, the Secretary must
provide written notice both to the person or persons named in the
complaint alleged to have violated the Act (``the named person'') and
to the Secretary of Transportation of the filing of the complaint, the
allegations contained in the complaint, the substance of the evidence
supporting the complaint, and the rights afforded the named person
throughout the investigation. The Secretary must then, within 60 days
of receipt of the complaint, afford the named person an opportunity to
submit a response and meet with the investigator to present statements
from witnesses, and conduct an investigation. However, the Secretary
may conduct an investigation only if the complainant has made a prima
facie showing that the alleged discriminatory behavior was a
contributing factor in the unfavorable personnel action alleged in the
complaint and the named person has not demonstrated, through clear and
convincing evidence, that the employer would have taken the same
unfavorable personnel action in the absence of that behavior.
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\1\ Responsibility for receiving and investigating these
complaints has been delegated to the Assistant Secretary for OSHA.
Secretary's Order 5-2002 (67 FR 65008, October 22, 2002);
Secretary's Order 1-2002 (67 FR 64272, October 17, 2002). Hearings
on determinations by the Assistant Secretary are conducted by the
Office of Administrative Law Judges, and appeals from decisions by
administrative law judges are decided by the Administrative Review
Board. See Secretary's Order 1-2002.
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After investigating a complaint, the Secretary will issue a
determination letter. If, as a result of the investigation, the
Secretary finds there is reasonable cause to believe that
discriminatory behavior has occurred, the Secretary must notify the
named person of those findings, along with a preliminary order which
requires the named person to: Take affirmative action to abate the
violation, reinstate the complainant to his or her former position
together with the compensation of that position (including back pay)
and restore the terms, conditions, and privileges associated with his
or her employment; and provide compensatory damages to the complainant,
as well as costs and attorney's and expert fees reasonably incurred by
the complainant for, or in connection with, the bringing of the
complaint upon which the order was issued. The complainant and the
named person then have 60 days after the date of the Secretary's
notification in which to file objections to the findings and/or
preliminary order and request a hearing on the record. The filing of
objections under the Pipeline Safety Act will stay any remedy in the
preliminary order except for preliminary reinstatement. If a hearing
before an administrative law judge is not requested within 60 days, the
preliminary order becomes final and is not subject to judicial review.
If a hearing is held, the Pipeline Safety Act requires the hearing
to be conducted ``expeditiously.'' The Secretary then has 90 days after
the ``conclusion of a hearing'' in which to issue a final order, which
may provide appropriate relief or deny the complaint. Until the
Secretary's final order is issued, the Secretary, the complainant, and
the named person may enter into a settlement agreement which terminates
the proceeding. At the complainant's request, the Secretary will assess
against the named person a sum equal to the total amount of all costs
and expenses, including attorney's and expert witness fees, reasonably
incurred by the complainant for, or in connection with, the bringing of
the complaint upon which the Secretary issued the order. The Secretary
also may award a prevailing employer a reasonable attorney's fee, not
exceeding $1,000, if he or she finds that the complaint is frivolous or
has been brought in bad faith. Within 60 days of the issuance of the
final order, any person adversely affected or aggrieved by the
Secretary's final order may file an appeal with the United States Court
of Appeals for the circuit in which the violation occurred or the
circuit where the complainant resided on the date of the violation.
Finally, the Pipeline Safety Act makes persons who violate these newly
created whistleblower provisions subject to a civil penalty of up to
$1,000. This provision is administered by the Secretary of
Transportation.
III. Summary and Discussion of Regulatory Provisions
On April 5, 2004, the Occupational Safety and Health Administration
published in the Federal Register an interim final rule promulgating
rules that implemented section 6 of the Pipeline Safety Improvement Act
of 2002 (``Pipeline Safety Act''), Public Law 107-355, 69 FR 17587-
17595. In addition to promulgating the interim final rule, OSHA's
notice included a request for public comment on the interim rules by
June 4, 2004.
OSHA did not receive any substantive comments during the public
comment period. Nor does OSHA believe that modifications to the interim
final rule are necessary. Accordingly, the interim final rule published
on April 4, 2004, will be repromulgated as the final rule.
Section 1981.100 Purpose and Scope
This section describes the purpose of the regulations implementing
the Pipeline Safety Act and provides an overview of the procedures
covered by these regulations.
Section 1981.101 Definitions
In addition to general definitions, the regulations contain the
Pipeline Safety Act definition of ``employer,'' and the statutory
definitions of ``gas pipeline facility,'' ``hazardous liquid pipeline
facility,'' ``person,'' and ``pipeline facility'' codified in chapter
601 of subtitle VIII of title 49 of the United States Code.
Section 1981.102 Obligations and Prohibited Acts
This section describes the several categories of whistleblower
activity that are protected under the Act and the type of conduct that
is prohibited in response to any protected activity. As under the
Energy Reorganization Act (``ERA'') and the environmental whistleblower
statutes listed at 29 CFR 24.1(a), refusals to engage in practices made
unlawful under applicable Federal law relating to the industry in which
the employee is employed are protected activities under the Act if the
employee has identified the alleged illegality to the employer. See 49
U.S.C. 60129(a)(1)(B); Timmons v. Franklin Electric Cooperative, Case
No. 97-141, 1998 WL 917114 (DOL Adm. Rev. Bd, Dec. 1, 1998); 29 CFR
24.2(c)(2). The employee does not have to prove that the allegedly
illegal practice actually violated a Federal pipeline safety law. See
Gilbert v. Federal Mine Safety & Health Review Commission, 866 F.2d
1433, 1439 (DC Cir. 1989). The employee must only prove that the
refusal to work was properly communicated to the employer
and was based on a reasonable and good faith belief that engaging in
that work was a practice made unlawful by a Federal law relating to
pipeline safety. See Liggett Industries, Inc. v. Federal Mine Safety
and Health Review Commission, 923 F.2d 150, 151 (10th Cir. 1991);
Eltzroth v. Amersham Medi-Physics, Inc., Case No. 98-002, 1999 WL
232896 *9 (DOL Adm. Rev. Bd, Apr. 15, 1999).
Section 1981.103 Filing of Discrimination Complaint
This section explains the requirements for filing a discrimination
complaint under the Pipeline Safety Act. To be timely, a complaint must
be filed within 180 days of when the alleged violation occurs. Under
Delaware State College v. Ricks, 449 U.S. 250, 258 (1980), this is
considered to be when the discriminatory decision has been both made
and communicated to the complainant. In other words, the limitations
period commences once the employee is aware or reasonably should be
aware of the employer's decision. Equal Employment Opportunity
Commission v. United Parcel Service, 249 F.3d 557, 561-62 (6th Cir.
2001). Complaints filed under the Act must be made in writing, but do
not needto be made in any particular form. With the consent of the
employee, complaints may be made by any person on the employee's
behalf.
Section 1981.104 Investigation
The Pipeline Safety Act contains the statutory requirement that a
complaint shall be dismissed if the complaint, supplemented as
appropriate by interviews with the complainant, fails to make a prima
facie showing that protected behavior or conduct was a contributing
factor in the unfavorable personnel action alleged in the complaint.
Also included in this section is the statutory requirement that an
investigation of the complaint will not be conducted if the named
person demonstrates by clear and convincing evidence that it would have
taken the same unfavorable personnel action in the absence of the
complainant's protected behavior or conduct, notwithstanding the prima
facie showing of the complainant. Upon receipt of a complaint in the
investigating office, the Assistant Secretary notifies the named person
of these requirements and the right of each named person to seek
attorney's fees from an ALJ or the Administrative Review Board if the
named person alleges that the complaint was frivolous or brought in bad
faith.
Under this section also, the named person has the opportunity
within 20 days of receipt of the complaint to meet with representatives
of OSHA and present evidence in support of its position. If, upon
investigation, OSHA has reasonable cause to believe that the named
person has violated the Act and therefore that an award of preliminary
relief for the complainant is warranted, OSHA again contacts the named
person with notice of this determination and provides the substance of
the relevant evidence upon which that determination is based,
consistent with the requirements of confidentiality of informants. The
named person is afforded the opportunity, within 10 business days, to
provide written evidence in response to the allegation of the
violation, meet with the investigators, and present legal and factual
arguments as to why preliminary relief is not warranted. This section
provides due process procedures in accordance with the United States
Supreme Court decision under the Surface Transportation Assistance Act
(``STAA'') in Brock v. Roadway Express, Inc., 481 U.S. 252 (1987).
Section 1981.105 Issuance of Findings and Preliminary Orders
This section provides that, on the basis of information obtained in
the investigation, the Assistant Secretary will issue a finding whether
there is reasonable cause to believe that the complaint has merit. If
the finding is that the complaint has merit, the Assistant Secretary
will order appropriate preliminary relief. The letter accompanying the
findings and order advises the parties of their right to file
objections to the findings of the Assistant Secretary and to request a
hearing, and of the right of the named person to request attorney's
fees from the ALJ, regardless of whether the named person has filed
objections, if the named person alleges that the complaint was
frivolous or brought in bad faith. If no objections are filed within 60
days of receipt of the findings, the findings and any preliminary order
of the Assistant Secretary become the final findings and order of the
Secretary. If objections are timely filed, any order of preliminary
reinstatement will take effect, but the remaining provisions of the
order will not take effect until administrative proceedings are
completed. Legislative history under the Pipeline Safety Act indicates
that Congress intended to assure that the mere filing of an objection
would not automatically stay the preliminary order, but that an
employer could file a motion for a stay. 148 Cong. Rec. S11068 (Nov.
14, 2002) (section-by-section analysis). Thus, Sec. 1981.106(b)(1) of
this rule provides that although the portion of the preliminary order
requiring reinstatement will be effective immediately upon the named
person's receipt of the findings and preliminary order, regardless of
any objections to the order, the named person may file a motion with
the Office of Administrative Law Judges for a stay of the Assistant
Secretary's preliminary order. OSHA believes, however, that a stay of a
preliminary reinstatement order would be appropriate only in the
exceptional case. In other words, a stay only would be granted where
the named person can establish the necessary criteria for equitable
injunctive relief, i.e., irreparable injury, likelihood of success on
the merits, and a balancing of possible harms to the parties and the
public.
Where the named party establishes that the complainant would have
been discharged even absent the protected activity, there would be no
reasonable cause to believe that a violation has occurred. Therefore, a
preliminary reinstatement order would not be issued. Furthermore, a
preliminary order of reinstatement would not be an appropriate remedy
where, for example, the named party establishes that the complainant
is, or has become, a security risk based upon information obtained
after the complainant's discharge in violation of the Pipeline Safety
Act. In McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 360-
62 (1995), the Supreme Court recognized that reinstatement would not be
an appropriate remedy for discrimination under the Age Discrimination
in Employment Act where, based upon after-acquired evidence, the
employer would have terminated the employee upon lawful grounds.
Finally, in appropriate circumstances, in lieu of preliminary
reinstatement, OSHA may order that the complainant receive the same pay
and benefits that he received prior to his termination, but not
actually return to work. Such ``economic reinstatement'' frequently is
employed in cases arising under section 105(c) of the Federal Mine
Safety and Health Act of 1977. See, e.g., Secretary of Labor on behalf
of York v. BR&D Enters., Inc., 23 FMSHRC 697, 2001 WL 1806020 **1 (June
26, 2001). ``Economic reinstatement'' also might be appropriate on
those occasions in which an employer can establish that sufficient
independent grounds exist for staying an immediate order of preliminary
reinstatement.
Section 1981.106 Objections to the Findings and the Preliminary Order
To be effective, objections to the findings of the Assistant
Secretary must be in writing and must be filed with the Chief
Administrative Law Judge, U.S. Department of Labor, Washington, DC,
within 60 days of receipt of the findings. The date of the postmark,
facsimile transmittal, or e-mail communication is considered the date
of the filing; if the filing of objections is made in person, by hand-
delivery or other means, the date of receipt is considered the date of
the filing.
The filing of objections is also considered a request for a hearing
before an ALJ. This section also provides that a named party seeking
attorney's fees for the filing of a frivolous complaint or a complaint
brought in bad faith should initially make its request for such fees to
the Chief Administrative Law Judge.
Section 1981.107 Hearings
This section adopts the rules of practice of the Office of
Administrative Law Judges at 29 CFR Part 18, Subpart A. In order to
assist in obtaining full development of the facts in whistleblower
proceedings, formal rules of evidence do not apply. The section
specifically provides for consolidation of hearings if both the
complainant and the named person object to the findings and/or order of
the Assistant Secretary.
Section 1981.108 Role of Federal Agencies
The ERA and STAA regulations provide two different models for
agency participation in administrative proceedings. Under STAA, OSHA
ordinarily prosecutes cases where a complaint has been found to be
meritorious. Under ERA and the other environmental whistleblower
statutes, on the other hand, OSHA does not ordinarily appear as a party
in the proceeding. The Department has found that in most environmental
whistleblower cases, parties have been ably represented and OSHA's
participation in the administrative litigation is not a prerequisite
for the protection of the public interest served by these proceedings.
The Department believes this is likely to be the situation in cases
involving allegations of retaliation for providing pipeline safety
information. Therefore, this provision utilizes the approach of the ERA
regulation at 29 CFR 24.6(f)(1). The Assistant Secretary, at his or her
discretion, may participate as a party or amicus curiae at any time in
the administrative litigation. For example, the Assistant Secretary may
exercise his or her discretion to prosecute the case at any stage of
the administrative proceeding; petition for review of a decision of an
administrative law judge, including a decision based on a settlement
agreement between complainant and the named person, regardless of
whether the Assistant Secretary participated before the ALJ; or
participate as amicus curiae before the ALJ or in the Administrative
Review Board proceeding. We anticipate that ordinarily the Assistant
Secretary will not participate in Pipeline Safety Act proceedings,
except to approve settlements as described in 29 CFR 1981.111(d).
However, the Assistant Secretary may choose to do so in appropriate
cases, such as cases involving important or novel legal issues, large
numbers of employees, alleged violations which appear egregious, or
where the interests of justice might require participation by the
Assistant Secretary. The Department of Transportation, at that agency's
discretion, also may participate as amicus curiae at any time in the
proceedings. OSHA believes it is unlikely that its decision ordinarily
not to prosecute meritorious Pipeline Safety Act cases will discourage
employees from making complaints about pipeline safety.
Section 1981.109 Decision of the Administrative Law Judge
This section sets forth the content of the decision and order of
the administrative law judge, and includes the statutory standard for
finding a violation. The section further provides that the Assistant
Secretary's determination as to whether to dismiss the complaint
without an investigation or conduct an investigation pursuant to Sec.
1981.104 is not subject to review by the ALJ, who hears the case de
novo on the merits.
Section 1981.110 Decision of the Administrative Review Board
The decision of the ALJ is the final decision of the Secretary
unless a timely petition for review is filed with the Administrative
Review Board. Appeals to the Board are not a matter of right, but
rather petitions for review are accepted at the discretion of the
Board. Upon the issuance of the ALJ's decision, the parties have 10
business days within which to petition the Board for review of that
decision. The parties must specifically identify the findings and
conclusions to which they take exception, or the exceptions are deemed
waived by the parties. The Board has 30 days to decide whether to grant
the petition for review. If the Board does not grant the petition, the
decision of the ALJ becomes the final decision of the Secretary. If the
Board grants the petition, the Act requires the Board to issue a
decision not later than 90 days after the date of the conclusion of the
hearing before the ALJ. The conclusion of the hearing for this purpose
is deemed to be the conclusion of all proceedings before the
administrative law judge--i.e., 10 days after the date of the decision
of the administrative law judge unless a motion for reconsideration has
been filed in the interim. If a timely petition for review is filed
with the Board, any relief ordered by the ALJ, except for a preliminary
order of reinstatement, is inoperative while the matter is pending
before the Board. This section further provides that, when the Board
accepts a petition for review, its review of factual determinations
will be conducted under the substantial evidence standard. This
standard also is applied to Board review of ALJ decisions under the
whistleblower provisions of STAA and the Wendell H. Ford Aviation
Investment and Reform Act for the 21st Century. See 29 CFR
1978.109(b)(3) and 1979.110(b).
As with Sec. 1981.106(b)(1), Sec. 1981.110(b) of this rule
provides that in the exceptional case, the Board may grant a motion to
stay a preliminary order of reinstatement that otherwise will be
effective while review is conducted by the Board. As explained above,
however, OSHA believes that a stay of a preliminary reinstatement order
would only be appropriate where the named person can establish the
necessary criteria for equitable injunctive relief, i.e., irreparable
injury, likelihood of success on the merits, and a balancing of
possible harms to the parties and the public.
Section 1981.111 Withdrawal of Complaints, Objections, and Findings;
Settlement
This section provides for the procedures and time periods for
withdrawal of complaints, the withdrawal of findings by the Assistant
Secretary, and the withdrawal of objections to findings. It also
provides for approval of settlements at the investigative and
adjudicative stages of the case.
Section 1981.112 Judicial Review
This section describes the statutory provisions for judicial review
of decisions of the Secretary and requires, in cases where judicial
review is sought, the Administrative Review Board to submit the record
of proceedings to the appropriate court pursuant to the rules of such court.
Section 1981.113 Judicial Enforcement
This section describes the Secretary's power under the statute to
obtain judicial enforcement of orders and the terms of a settlement
agreement. It also provides for enforcement of orders of the Secretary
by the person on whose behalf the order was issued.
Section 1981.114 Special Circumstances; Waiver of Rules
This section provides that in circumstances not contemplated by
these rules or for good cause the Secretary may, upon application and
notice to the parties, waive any rule as justice or the administration
of the Act requires.
IV. Paperwork Reduction Act
This rule contains a reporting provision (filing a discrimination
complaint, Sec. 1981.103) which was previously reviewed and approved
for use by the Office of Management and Budget (``OMB'') under 29 CFR
24.3 and assigned OMB control number 1218-0236 under the provisions of
the Paperwork Reduction Act of 1995 (Pub. L. 104-13).
V. Administrative Procedure Act
This rule is a rule of agency procedure and practice within the
meaning of Section 553 of the Administrative Procedure Act (``APA''), 5
U.S.C. 553(b)(A). Therefore, publication in the Federal Register of a
notice of proposed rulemaking and request for comments was not required
for these regulations, which provide procedures for the handling of
discrimination complaints. Although this rule was not subject to the
notice and comment procedures of the APA, the Assistant Secretary
provided the public with an opportunity to submit comments on the
interim rule. No substantive comments on the rule were received.
Furthermore, because this rule is procedural rather than
substantive, the normal requirement of 5 U.S.C. 553(d) that a rule be
effective 30 days after publication in the Federal Register is
inapplicable. The Assistant Secretary also finds good cause to provide
an immediate effective date for this final rule. It is unnecessary to
delay the effective date of the final rule because no changes have been
made to the interim final rule, which already has been in effect since
April 5, 2004.
VI. Executive Order 12866; Unfunded Mandates Reform Act of 1995; Small
Business Regulatory Enforcement Fairness Act of 1996; Executive Order
13132
The Department has concluded that this rule should be treated as a
``significant regulatory action'' within the meaning of Section 3(f)(4)
of Executive Order 12866 because the Pipeline Safety whistleblower
provision is a new program and because of the importance to the
Department of Transportation's pipeline safety program that
``whistleblowers'' be protected from retaliation. Executive Order 12866
requires a full economic impact analysis only for ``economically
significant'' rules, which are defined in Section 3(f)(1) as rules that
may ``have an annual effect on the economy of $100 million or more, or
adversely affect in a material way the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, or tribal governments or communities.'' Because the rule is
procedural in nature, it is not expected to have a significant economic
impact; therefore no economic impact analysis has been prepared. For
the same reason, the rule does not require a Section 202 statement
under the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531 et seq.).
Furthermore, because this is a rule of agency procedure or practice, it
is not a ``rule'' within the meaning of the Small Business Regulatory
Enforcement Fairness Act of 1996 (5 U.S.C. 804(3)(C)), and does not
require Congressional review. Finally, this rule does not have
``federalism implications.'' The rule does not have ``substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government'' and therefore
is not subject to Executive Order 13132 (Federalism).
VII. Regulatory Flexibility Analysis
The Department has determined that the regulation will not have a
significant economic impact on a substantial number of small entities.
The regulation simply implements procedures necessitated by enactment
of the Pipeline Safety Act, in order to allow resolution of
whistleblower complaints. Furthermore, no certification to this effect
is required and no regulatory flexibility analysis is required because
no proposed rule has been issued.
Document Preparation: This document was prepared under the
direction and control of the Acting Assistant Secretary, Occupational
Safety and Health Administration, U.S. Department of Labor.
List of Subjects in 29 CFR Part 1981
Administrative practice and procedure, Employment, Investigations,
Pipelines, Pipeline safety, Reporting and Record keeping requirements,
Safety, Transportation, Whistleblowing.
Signed at Washington, DC this 30th day of March, 2005.
Jonathan L. Snare,
Acting Assistant Secretary for Occupational Safety and Health.
0
Accordingly, for the reasons set out in the preamble, 29 CFR part 1981,
which was published as an interim rule at 69 FR 17587, April 5, 2004,
is adopted as final and republished without change as follows:
PART 1981-PROCEDURES FOR THE HANDLING OF DISCRIMINATION COMPLAINTS
UNDER SECTION 6 OF THE PIPELINE SAFETY IMPROVEMENT ACT OF 2002
Subpart A--Complaints, Investigations, Findings and Preliminary Orders
Sec.
1981.100 Purpose and scope.
1981.101 Definitions.
1981.102 Obligations and prohibited acts.
1981.103 Filing of discrimination complaint.
1981.104 Investigation.
1981.105 Issuance of findings and preliminary orders.
Subpart B--Litigation
1981.106 Objections to the findings and the preliminary order and
request for a hearing.
1981.107 Hearings.
1981.108 Role of Federal agencies.
1981.109 Decision and orders of the administrative law judge.
1981.110 Decision and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
1981.111 Withdrawal of complaints, objections, and findings;
settlement.
1981.112 Judicial review.
1981.113 Judicial enforcement.
1981.114 Special circumstances; waiver of rules.
Authority: 49 U.S.C. 60129; Secretary of Labor's Order 5-2002,
67 FR 65008 (October 22, 2002).
Subpart A--Complaints, Investigations, Findings and Preliminary
Orders
Sec. 1981.100 Purpose and scope.
(a) This part implements procedures under section 6 of the Pipeline
Safety Improvement Act of 2002, 49 U.S.C. 60129 (``the Pipeline Safety
Act''), which provides for employee protection from discrimination by a
person owning or operating a pipeline facility or a contractor or
subcontractor of such person because the employee has engaged in protected
activity pertaining to a violation or alleged violation of any order,
regulation, or standard under chapter 601, subtitle VIII of title 49
of the United States Code or any other provision of Federal law relating
to pipeline safety.
(b) This part establishes procedures pursuant to the Pipeline
Safety Act for the expeditious handling of discrimination complaints
made by employees, or by persons acting on their behalf. These rules,
together with those rules codified at 29 CFR part 18, set forth the
procedures for submission of complaints under the Pipeline Safety Act,
investigations, issuance of findings and preliminary orders, objections
to findings and orders, litigation before administrative law judges,
post-hearing administrative review, and withdrawals and settlements.
Sec. 1981.101 Definitions.
Act or Pipeline Safety Act means section 6 of the Pipeline Safety
Improvement Act of 2002, Public Law 107-355, December 17, 2002, 49
U.S.C. 60129.
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.
Complainant means the employee who filed a complaint under the Act
or on whose behalf a complaint was filed.
Employee means an individual presently or formerly working for a
person owning or operating a pipeline facility or a contractor or
subcontractor of such a person, an individual applying to work for a
person owning or operating a pipeline facility or a contractor or
subcontractor of such a person, or an individual whose employment could
be affected by a person owning or operating a pipeline facility or a
contractor or subcontractor of such a person.
Employer means a person owning or operating a pipeline facility or
a contractor or subcontractor of such a person.
Gas pipeline facility includes a pipeline, a right of way, a
facility, a building, or equipment used in transporting gas or treating
gas during its transportation.
Hazardous liquid pipeline facility includes a pipeline, a right of
way, a facility, a building, or equipment used or intended to be used
in transporting hazardous liquid.
Named person means the person alleged to have violated the Act.
OSHA means the Occupational Safety and Health Administration of the
United States Department of Labor.
Person means a corporation, company, association, firm,
partnership, joint stock company, an individual, a State, a
municipality, and a trustee, receiver, assignee, or personal
representative of a person.
Pipeline facility means a gas pipeline facility and a hazardous
liquid pipeline facility.
Secretary means the Secretary of Labor or persons to whom authority
under the Act has been delegated.
Sec. 1981.102 Obligations and prohibited acts.
(a) No employer may discharge any employee or otherwise
discriminate against any employee with respect to the employee's
compensation, terms, conditions, or privileges of employment because
the employee, or any person acting pursuant to the employee's request,
engaged in any of the activities specified in paragraphs (b)(1) through
(5) of this section.
(b) It is a violation of the Act for any employer to intimidate,
threaten, restrain, coerce, blacklist, discharge or in any other manner
discriminate against any employee because the employee has:
(1) Provided, caused to be provided, or is about to provide or
cause to be provided to the employer or the Federal Government,
information relating to any violation or alleged violation of any
order, regulation, or standard under chapter 601, subtitle VIII of
title 49 of the United States Code or any other Federal law relating to
pipeline safety;
(2) Refused to engage in any practice made unlawful by chapter 601,
in subtitle VIII of title 49 of the United States Code or any other
Federal law relating to pipeline safety, if the employee has identified
the alleged illegality to the employer;
(3) Provided, caused to be provided, or is about to provide or
cause to be provided, testimony before Congress or at any Federal or
State proceeding regarding any provision (or proposed provision) of
chapter 601, subtitle VIII of title 49 of the United States Code or any
other Federal law relating to pipeline safety, or testimony in any
proceeding under chapter 601, subtitle VIII of title 49 of the United
States Code or any other Federal law relating to pipeline safety, or a
proceeding for the administration or enforcement of any requirement
imposed under chapter 601, subtitle VIII of title 49 of the United
States Code or any other Federal law relating to pipeline safety;
(4) Commenced, caused to be commenced, or is about to commence or
cause to be commenced a proceeding under chapter 601, subtitle VIII of
title 49 of the United States Code or any other Federal law relating to
pipeline safety, or a proceeding for the administration or enforcement
of any requirement imposed under chapter 601, subtitle VIII of title 49
of the United States Code or any other Federal law relating to pipeline
safety; or
(5) Assisted or participated or is about to assist or participate
in any manner in such a proceeding or in any other action to carry out
the purposes of chapter 601, subtitle VIII of title 49 of the United
States Code or any other Federal law relating to pipeline safety.
(c) This part shall have no application to any employee of an
employer who, acting without direction from the employer (or such
employer's agent), deliberately causes a violation of any requirement
relating to pipeline safety under chapter 601, subtitle VIII of title
49 of the United States Code or any other Federal law.
Sec. 1981.103 Filing of discrimination complaint.
(a) Who may file. An employee who believes that he or she has been
discriminated against by an employer in violation of the Act may file,
or have filed by any person on the employee's behalf, a complaint
alleging such discrimination.
(b) Nature of filing. No particular form of complaint is required,
except that a complaint must be in writing and should include a full
statement of the acts and omissions, with pertinent dates, which are
believed to constitute the violations.
(c) Place of filing. The complaint should be filed with the OSHA
Area Director responsible for enforcement activities in the
geographical area where the employee resides or was employed, but may
be filed with any OSHA officer or employee. Addresses and telephone
numbers for these officials are set forth in local directories and at
the following Internet address: http://www.osha.gov.
(d) Time for filing. Within 180 days after an alleged violation of
the Act occurs (i.e., when the discriminatory decision has been both
made and communicated to the complainant), an employee who believes
that he or she has been discriminated against in violation of the Act
may file, or have filed by any person on the employee's behalf, a
complaint alleging such discrimination. The date of the postmark,
facsimile transmittal, or e-mail communication will be considered to be
the date of filing; if the complaint is filed in person, by hand-delivery
or other means, the complaint is filed upon receipt.
(e) Relationship to section 11(c) complaints. A complaint filed
under the Pipeline Safety Act that alleges facts which would constitute
a violation of section 11(c) of the Occupational Safety and Health Act,
29 U.S.C. 660(c), will be deemed to be a complaint filed under both the
Pipeline Safety Act and section 11(c). Similarly, a complaint filed
under section 11(c) that alleges facts that would constitute a
violation of the Pipeline Safety Act will be deemed to be a complaint
filed under both the Pipeline Safety Act and section 11(c). Normal
procedures and timeliness requirements for investigations under the
respective laws and regulations will be followed.
Sec. 1981.104 Investigation.
(a) Upon receipt of a complaint in the investigating office, the
Assistant Secretary will notify the named person of the filing of the
complaint, of the allegations contained in the complaint, and of the
substance of the evidence supporting the complaint (redacted to protect
the identity of any confidential informants). The Assistant Secretary
will also notify the named person of his or her rights under paragraphs
(b) and (c) of this section and paragraph (e) of Sec. 1981.110. A copy
of the notice to the named person will also be provided to the
Department of Transportation.
(b) A complaint of alleged violation shall be dismissed unless the
complainant has made a prima facie showing that protected behavior or
conduct was a contributing factor in the unfavorable personnel action
alleged in the complaint.
(1) The complaint, supplemented as appropriate by interviews of the
complainant, must allege the existence of facts and evidence to make a
prima facie showing as follows:
(i) The employee engaged in a protected activity or conduct;
(ii) The named person knew or suspected, actually or
constructively, that the employee engaged in the protected activity;
(iii) The employee suffered an unfavorable personnel action; and
(iv) The circumstances were sufficient to raise the inference that
the protected activity was a contributing factor in the unfavorable
action.
(2) 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 named person knew or suspected that the
employee engaged in protected activity and that the protected activity
was a contributing factor in the unfavorable personnel action. Normally
the burden is satisfied, for example, if the complaint shows that the
adverse personnel action took place shortly after the protected
activity, giving rise to the inference that it was a factor in the
adverse action. If the required showing has not been made, the
complainant will be so advised and the investigation will not commence.
(c) Notwithstanding a finding that a complainant has made a prima
facie showing, as required by this section, an investigation of the
complaint shall not be conducted if the named person, pursuant to the
procedures provided in this paragraph, demonstrates by clear and
convincing evidence that it would have taken the same unfavorable
personnel action in the absence of the complainant's protected behavior
or conduct. Within 20 days of receipt of the notice of the filing of
the complaint, the named person may submit to the Assistant Secretary a
written statement and any affidavits or documents substantiating his or
her position. Within the same 20 days, the named person may request a
meeting with the Assistant Secretary to present his or her position.
(d) If the named person fails to demonstrate by clear and
convincing evidence that it would have taken the same unfavorable
personnel action in the absence of the behavior protected by the Act,
the Assistant Secretary will conduct an investigation. Investigations
will be conducted in a manner that protects the confidentiality of any
person who provides information on a confidential basis, other than the
complainant, in accordance with part 70 of title 29 of the Code of
Federal Regulations.
(e) Prior to the issuance of findings and a preliminary order as
provided for in Sec. 1981.105, if the Assistant Secretary has
reasonable cause, on the basis of information gathered under the
procedures of this part, to believe that the named person has violated
the Act and that preliminary reinstatement is warranted, the Assistant
Secretary will again contact the named person 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 named person will be given the
opportunity to submit a written response, to meet with the
investigators to present statements from witnesses in support of his or
her position, and to present legal and factual arguments. The named
person will present this evidence within 10 business days of the
Assistant Secretary's notification pursuant to this paragraph, or as
soon afterwards as the Assistant Secretary and the named person can
agree, if the interests of justice so require.
Sec. 1981.105 Issuance of findings and preliminary orders.
(a) After considering all the relevant information collected during
the investigation, the Assistant Secretary shall issue, within 60 days
of filing of the complaint, written findings as to whether or not there
is reasonable cause to believe that the named person has discriminated
against the complainant in violation of the Act.
(1) If the Assistant Secretary concludes that there is reasonable
cause to believe that a violation has occurred, he or she shall
accompany the findings with a preliminary order providing relief to the
complainant. The preliminary order shall include, where appropriate, a
requirement that the named person abate the violation; reinstatement of
the complainant to his or her former position, together with the
compensation (including back pay), terms, conditions and privileges of
the complainant's employment; and payment of compensatory damages.
Where the named person establishes that the complainant is a security
risk (whether or not the information is obtained after the
complainant's discharge), a preliminary order of reinstatement would
not be appropriate. At the complainant's request the order shall also
assess against the named person the complainant's costs and expenses
(including attorney's and expert witness fees) reasonably incurred in
connection with the filing of the complaint.
(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 the preliminary order will be sent by
certified mail, return receipt requested, to all parties of record. The
letter accompanying the findings and order will inform the parties of
their right to file objections and to request a hearing, and of the right
of the named person to request attorney's fees from the administrative law judge,
regardless of whether the named person has filed objections, if the
named person alleges that the complaint was frivolous or brought in bad
faith. The letter also will give the address of the Chief
Administrative Law Judge. At the same time, the Assistant Secretary
will file with the Chief Administrative Law Judge, U.S. Department of
Labor, a copy of the original complaint and a copy of the findings and
order.
(c) The findings and the preliminary order will be effective 60
days after receipt by the named person pursuant to paragraph (b) of
this section, unless an objection and a request for a hearing has been
filed as provided at Sec. 1981.106. However, the portion of any
preliminary order requiring reinstatement will be effective immediately
upon receipt of the findings and preliminary order.
Subpart B--Litigation
Sec. 1981.106 Objections to the findings and the preliminary order
and request for a hearing.
(a) Any party who desires review, including judicial review, of the
findings and preliminary order, or a named person alleging that the
complaint was frivolous or brought in bad faith who seeks an award of
attorney's fees, must file any objections and/or a request for a
hearing on the record within 60 days of receipt of the findings and
preliminary order pursuant to paragraph (b) of Sec. 1981.105. The
objection or request for attorney's fees and request for a hearing must
be in writing and state whether the objection is to the findings, the
preliminary order, and/or whether there should be an award of
attorney's fees. The date of the postmark, facsimile transmittal, or e-
mail communication will be considered to be 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, Washington,
DC 20001 and copies of the objections must be mailed at the same time
to the other parties of record, the OSHA official who issued the
findings and order, and the Associate Solicitor, Division of Fair Labor
Standards, U.S. Department of Labor, Washington, DC 20210.
(b)(1) If a timely objection is filed, all provisions of the
preliminary order will be stayed, except for the portion requiring
preliminary reinstatement, which shall not be automatically stayed. The
portion of the preliminary order requiring reinstatement will be
effective immediately upon the named person's receipt of the findings
and preliminary order, regardless of any objections to the order. The
named person may file a motion with the Office of Administrative Law
Judges for stay of the Assistant Secretary's preliminary order.
(2) If no timely objection is filed with respect to either the
findings or the preliminary order, the findings or preliminary order,
as the case may be, shall become the final decision of the Secretary,
not subject to judicial review.
Sec. 1981.107 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, part 18 of title 29 of the Code of Federal
Regulations.
(b) Upon receipt of an objection and request for hearing, the Chief
Administrative Law Judge will promptly assign the case to a judge 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 named person 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 administrative law judge may exclude evidence that
is immaterial, irrelevant, or unduly repetitious.
Sec. 1981.108 Role of Federal agencies.
(a)(1) The complainant and the named person will be parties in
every proceeding. At the Assistant Secretary's discretion, the
Assistant Secretary may participate as a party or as amicus curiae at
any time at any stage of the proceedings. This right to participate
includes, but is not limited to, the right to petition for review of a
decision of an administrative law judge, including a decision approving
or rejecting a settlement agreement between the complainant and the
named person.
(2) Copies of pleadings in all cases, whether or not the Assistant
Secretary is participating in the proceeding, must be sent to the
Assistant Secretary, Occupational Safety and Health Administration, and
to the Associate Solicitor, Division of Fair Labor Standards, U.S.
Department of Labor, Washington, DC 20210.
(b) The Secretary of Transportation may participate as amicus
curiae at any time in the proceedings, at the Secretary of
Transportation's discretion. At the request of the Secretary of
Transportation, copies of all pleadings in a case must be sent to the
Secretary of Transportation, whether or not the Secretary of
Transportation is participating in the proceeding.
Sec. 1981.109 Decision and orders of the administrative law judge.
(a) The decision of the administrative law judge will contain
appropriate findings, conclusions, and an order pertaining to the
remedies provided in paragraph (b) of this section, as appropriate. A
determination that a violation has occurred may only be made if the
complainant has demonstrated that protected behavior or conduct was a
contributing factor in the unfavorable personnel action alleged in the
complaint. Relief may not be ordered if the named person demonstrates
by clear and convincing evidence that it would have taken the same
unfavorable personnel action in the absence of any protected behavior.
Neither the Assistant Secretary's determination to dismiss a complaint
without completing an investigation pursuant to Sec. 1981.104(b) nor
the Assistant Secretary's determination to proceed with an
investigation is subject to review by the administrative law judge, 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
administrative law judge will hear the case on the merits.
(b) If the administrative law judge concludes that the party
charged has violated the law, the order shall direct the party charged
to take appropriate affirmative action to abate the violation,
including, where appropriate, reinstatement of the complainant to that
person's former position, together with the compensation (including
back pay), terms, conditions, and privileges of that employment, and
compensatory damages. At the request of the complainant, the
administrative law judge shall assess against the named person all
costs and expenses (including attorney and expert witness fees) reasonably
incurred. If, upon the request of the named person, the administrative law
judge determines that a complaint was frivolous or was brought in bad faith,
the judge may award to the named person a reasonable attorney's fee, not
exceeding $1,000.
(c) The decision will be served upon all parties to the proceeding.
Any administrative law judge'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 named person,
and will not be stayed by the filing of a timely petition for review
with the Administrative Review Board. All other portions of the judge's
order will be effective 10 business days after the date of the decision
unless a timely petition for review has been filed with the
Administrative Review Board.
Sec. 1981.110 Decision and orders of the Administrative Review Board.
(a) Any party desiring to seek review, including judicial review,
of a decision of the administrative law judge, or a named person
alleging that the complaint was frivolous or brought in bad faith who
seeks an award of attorney's fees, must file a written petition for
review with the Administrative Review Board (``the Board''), which has
been delegated the authority to act for the Secretary and issue final
decisions under this part. The decision of the administrative law judge
will become the final order of the Secretary unless, pursuant to this
section, a petition for review is timely filed with the Board. The
petition for review must specifically identify the findings,
conclusions or orders to which exception is taken. Any exception not
specifically urged ordinarily will be deemed to have been waived by the
parties. To be effective, a petition must be filed within 10 business
days of the date of the decision of the administrative law judge. The
date of the postmark, facsimile transmittal, or e-mail communication
will be considered to be the date of filing; if the petition is filed
in person, by hand-delivery or other means, the petition is considered
filed upon receipt. The petition must be served on all parties and on
the Chief Administrative Law Judge at the time it is filed with the
Board. Copies of the petition for review and all briefs must be served
on the Assistant Secretary, Occupational Safety and Health
Administration, and on the Associate Solicitor, Division of Fair Labor
Standards, U.S. Department of Labor, Washington, DC 20210.
(b) If a timely petition for review is filed pursuant to paragraph
(a) of this section, the decision of the administrative law judge will
become the final order of the Secretary unless the Board, 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 administrative law judge will
be inoperative unless and until the Board issues an order adopting the
decision, except that a preliminary order of reinstatement will be
effective while review is conducted by the Board, unless the Board
grants a motion to stay the order. The Board will specify the terms
under which any briefs are to be filed. The Board will review the
factual determinations of the administrative law judge under the
substantial evidence standard.
(c) The final decision of the Board shall be issued within 90 days
of the conclusion of the hearing, which will be deemed to be the
conclusion of all proceedings before the administrative law judge--
i.e., 10 business days after the date of the decision of the
administrative law judge unless a motion for reconsideration has been
filed with the administrative law judge in the interim. The decision
will be served upon all parties and the Chief Administrative Law Judge
by mail to the last known address. The final decision will also be
served on the Assistant Secretary, Occupational Safety and Health
Administration, and on the Associate Solicitor, Division of Fair Labor
Standards, U.S. Department of Labor, Washington, DC 20210, even if the
Assistant Secretary is not a party.
(d) If the Board concludes that the party charged has violated the
law, the final order will order the party charged to take appropriate
affirmative action to abate the violation, including, where
appropriate, reinstatement of the complainant to that person's former
position, together with the compensation (including back pay), terms,
conditions, and privileges of that employment, and compensatory
damages. At the request of the complainant, the Board shall assess
against the named person all costs and expenses (including attorney's
and expert witness fees) reasonably incurred.
(e) If the Board determines that the named person has not violated
the law, an order will be issued denying the complaint. If, upon the
request of the named person, the Board determines that a complaint was
frivolous or was brought in bad faith, the Board may award to the named
person a reasonable attorney's fee, not exceeding $1,000.
Subpart C--Miscellaneous Provisions
Sec. 1981.111 Withdrawal of complaints, objections, and findings;
settlement.
(a) At any time prior to the filing of objections to the findings
or preliminary order, a complainant may withdraw his or her complaint
under the Act by filing a written withdrawal with the Assistant
Secretary. The Assistant Secretary will then determine whether to
approve the withdrawal. The Assistant Secretary will notify the named
person of the approval of any withdrawal. If the complaint is withdrawn
because of settlement, the settlement will be approved in accordance
with paragraph (d) of this section.
(b) The Assistant Secretary may withdraw his or her findings or a
preliminary order at any time before the expiration of the 60-day
objection period described in Sec. 1981.106, provided that no
objection has yet been filed, and substitute new findings or
preliminary order. The date of the receipt of the substituted findings
or order will begin a new 60-day objection period.
(c) At any time before the findings or order become final, a party
may withdraw his or her objections to the findings or order by filing a
written withdrawal with the administrative law judge or, if the case is
on review, with the Board. The judge or the Board, as the case may be,
will determine whether to approve the withdrawal. If the objections are
withdrawn because of settlement, the settlement will be approved in
accordance with paragraph (d) of this section.
(d)(1) Investigative settlements. At any time after the filing of a
complaint, and before the findings and/or order are objected to or
become a final order by operation of law, the case may be settled if
the Assistant Secretary, the complainant and the named person agree to
a settlement.
(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 administrative law judge if the case
is before the judge, or by the Board if a timely petition for review
has been filed with the Board. A copy of the settlement will be filed
with the administrative law judge or the Board, as the case may be.
(e) Any settlement approved by the Assistant Secretary, the
administrative law judge, or the Board will constitute the final order of
the Secretary and may be enforced pursuant to Sec. 1981.113.
Sec. 1981.112 Judicial review.
(a) Within 60 days after the issuance of a final order by the Board
(Secretary) under Sec. 1981.110, any person adversely affected or
aggrieved by the order may file a petition for review of the order in
the United States Court of Appeals for the circuit in which the
violation allegedly occurred or the circuit in which the complainant
resided on the date of the violation. A final order of the Board is not
subject to judicial review in any criminal or other civil proceeding.
(b) If a timely petition for review is filed, the record of a case,
including the record of proceedings before the administrative law
judge, will be transmitted by the Board to the appropriate court
pursuant to the rules of the court.
Sec. 1981.113 Judicial enforcement.
Whenever any person has failed to comply with a preliminary order
of reinstatement or a final order or the terms of a settlement
agreement, the Secretary or a person on whose behalf the order was
issued 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. 1981.114 Special circumstances; waiver of rules.
In special circumstances not contemplated by the provisions of this
part, or for good cause shown, the administrative law judge or the
Board on review may, upon application, after three days notice to all
parties, waive any rule or issue any orders that justice or the
administration of the Act requires.
[FR Doc. 05-6925 Filed 4-7-05; 8:45 am]
BILLING CODE 4510-26-P
