Interim Rule, Sarbanes-Oxley Act Whistleblower Regulations, 29 CFR Part 1980, 68 Fed. Reg. 31859 (May 28, 2003)

Interim Rule, Sarbanes-Oxley Act Whistleblower Regulations, 29 CFR Part 1980, 68 Fed. Reg. 31859 (May 28, 2003)

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[Federal Register: May 28, 2003 (Volume 68, Number 102)]
[Rules and Regulations]               
[Page 31859-31868]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28my03-18]                         


[[Page 31859]]

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Part VI





Department of Labor





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Occupational Safety and Health Administration



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29 CFR Part 1980



Procedures for the Handling of Discrimination Complaints Under Section 
806 of the Corporate and Criminal Fraud Accountability Act of 2002, 
Title VIII of the Sarbanes-Oxley Act of 2002; Interim Rule


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1980

RIN 1218 AC10

 
Procedures for the Handling of Discrimination Complaints Under 
Section 806 of the Corporate and Criminal Fraud Accountability Act of 
2002, Title VIII of the Sarbanes-Oxley Act of 2002

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Interim final rule; request for comments.

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SUMMARY: This document provides the text of regulations governing the 
employee protection ("whistleblower") provisions of Section 806 of 
the Corporate and Criminal Fraud Accountability Act of 2002, Title VIII 
of the Sarbanes-Oxley Act of 2002 ("Sarbanes-Oxley" or "Act"), 
enacted on July 30, 2002, to protect investors by improving the 
accuracy and reliability of corporate disclosures made pursuant to the 
securities laws. This rule establishes procedures and time frames for 
the handling of discrimination complaints under Title VIII of Sarbanes-
Oxley, 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, appeals of ALJ decisions to the Administrative Review Board 
(acting on behalf of the Secretary) and judicial review of the 
Secretary's final decisions.

DATES: This interim final rule is effective on May 28, 2003. Comments 
on the interim final rule are due on or before July 28, 2003.

ADDRESSES: Submit written comments to: OSHA Docket Office, Docket No. 
C-09, Room N-2625, U.S. Department of Labor--OSHA, 200 Constitution 
Avenue, NW., Washington, DC 20210. Commenters who wish to receive 
notification of receipt of comments are requested to include a self-
addressed, stamped post card or to submit them by certified mail, 
return receipt requested. As a convenience, comments may be transmitted 
by facsimile ("FAX") machine to (202) 693-1648 (not a toll-free 
number) or by electronic means through the Internet at https://www.ecomments.osha.gov.
 All comments should reference docket No. C-09. 
If commenters transmit comments by FAX or through the Internet and also 
submit a hard copy by mail, please indicate on the hard copy that it is 
a duplicate copy of the FAX or Internet transmission.

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

SUPPLEMENTARY INFORMATION: 

I. Background

    The Sarbanes-Oxley Act of 2002 ("Sarbanes-Oxley"), Public Law No. 
107-204, was enacted on July 30, 2002. Title VIII of Sarbanes-Oxley is 
designated as the Corporate and Criminal Fraud Accountability Act of 
2002. Section 806, codified at 18 U.S.C. 1514A, provides protection to 
employees against retaliation by companies with a class of securities 
registered under section 12 of the Securities Exchange Act of 1934 (15 
U.S.C. 78l) and companies required to file reports under section 15(d) 
of the Securities Exchange Act of 1934 (15 U.S.C. 780(d)), or any 
officer, employee, contractor, subcontractor, or agent of such 
companies, because the employee provided information to the employer or 
a Federal agency or Congress relating to alleged violations of 18 
U.S.C. 1341, 1343, 1344, or 1348, or any rule or regulation of the 
Securities and Exchange Commission, or any provision of Federal law 
relating to fraud against shareholders. In addition, employees are 
protected against discrimination when they have filed, testified in, 
participated in, or otherwise assisted in a proceeding filed or about 
to be filed against one of the above companies relating to any such 
violation or alleged violation. These rules establish procedures for 
the handling of discrimination complaints under Title VIII of Sarbanes-
Oxley. In drafting these regulations, consideration has been given to 
the regulations implementing the whistleblower provisions of the 
Wendell H. Ford Aviation Investment and Reform Act for the 21st Century 
("AIR21"), codified at 29 CFR 1979, the Surface Transportation 
Assistance Act ("STAA"), codified at 29 CFR part 1978, and the Energy 
Reorganization Act ("ERA"), codified at 29 CFR part 24, where deemed 
appropriate.

II. Summary of Statutory Provisions

    The Sarbanes-Oxley whistleblower provisions provide that a covered 
employee may file, within 90 days of the alleged discrimination, a 
complaint with the Secretary of Labor ("the Secretary").\1\ The 
statute requires the Secretary to notify the person named in the 
complaint and the employer of the filing of the complaint. The statute 
further provides that proceedings under Sarbanes-Oxley will be governed 
by the rules and procedures and burdens of proof of AIR21, 49 U.S.C. 
42121(b). These rules and procedures are described below in Section 
III.
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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 (Oct. 22, 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. Secretary's Order 1-2002, 67 FR 64272 (Oct. 17, 2002).
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    Sarbanes-Oxley authorizes an award to a prevailing employee of 
make-whole relief, including reinstatement with the same seniority 
status that the employee would have had but for the discrimination, 
back pay with interest, and compensation for any special damages 
sustained, including litigation costs, expert witness fees and 
reasonable attorney's fees. 18 U.S.C. 1514A(c)(2). If the Secretary has 
not issued a final decision within 180 days of the filing of the 
complaint and there is no showing that there has been delay due to the 
bad faith of the claimant, the claimant may bring an action at law or 
equity for de novo review in the appropriate district court of the 
United States, which will have jurisdiction over such action without 
regard to the amount in controversy.

III. Summary of Procedures

    These rules and procedures provide that upon receipt of a 
complaint, the Secretary must give written notice to both the person 
named in the complaint who is alleged to have violated the Act and the 
employer (if the complainant did not allege that the employer violated 
the Act) of the allegations contained in the complaint, the substance 
of the evidence submitted with the complaint, and the rights of the 
named person throughout the investigation. The person named in the 
complaint and the employer are defined collectively in the regulations 
and referred to collectively throughout this preamble as "the named 
person." The Secretary must then, within 60 days of receipt of the 
complaint, afford the named person an opportunity to submit a response 
and

[[Page 31861]]

meet with the investigator to present statements from witnesses, 
conduct an investigation, and make a determination of reasonable cause. 
However, the Secretary may conduct an investigation only if the 
complainant has made a prima facie showing that the alleged protected 
activity 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 it would have taken the 
same unfavorable personnel action in the absence of the protected 
activity. This provision is similar to the 1992 amendments to the ERA, 
codified at 42 U.S.C. 5851.
    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 and issue a preliminary order providing 
appropriate make whole relief. The complainant and the named person 
then have 30 days after receipt of the Secretary's notification in 
which to file objections to the findings and/or preliminary order and 
request a hearing on the record before an administrative law judge 
("ALJ"). The filing of objections will stay any remedy in the 
preliminary order except for preliminary reinstatement. If a hearing 
before an administrative law judge is not requested within 30 days, the 
preliminary order becomes final and is not subject to judicial review.
    If a hearing is held, it must be conducted "expeditiously" by the 
ALJ. The Secretary then has 120 days after the "conclusion of a 
hearing" in which to issue a final order, which may provide 
appropriate relief or deny the complaint. Until the Secretary's final 
order is issued, the Secretary, complainant and the named person may 
enter into a settlement agreement, which terminates this proceeding. If 
the Secretary finds that a violation has occurred, the Secretary will 
order appropriate make whole relief. If the Secretary finds that the 
complaint is frivolous or has been brought in bad faith, the Secretary 
may award each prevailing named person a reasonable attorney's fee not 
exceeding $1,000. 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.

IV. Summary and Discussion of Regulatory Provisions

Section 1980.100 Purpose and Scope

    This section describes the purpose of the regulations implementing 
Sarbanes-Oxley and provides an overview of the procedures covered by 
these new regulations.

Section 1980.101 Definitions

    In addition to the general definitions, the regulations define 
"company" and "company representative" to together include all 
entities and individuals covered by Sarbanes-Oxley. The definition of 
"named person" includes the employer as well as the company and 
company representative who the complainant alleges in the complaint to 
have violated the Act. Thus, the definition of "named person" will 
implement Sarbanes-Oxley's unique statutory provisions that identify 
individuals as well as the employer as potentially liable for 
discriminatory action. We anticipate, however, that in most cases the 
named person likely will be the employer.

Section 1980.102 Obligations and Prohibited Acts

    This section describes the whistleblower activity which is 
protected under the Act and the type of conduct which is prohibited in 
response to any protected activity. Complaints to an individual member 
of Congress are protected, even if such member is not conducting an 
ongoing Committee investigation within the jurisdiction of a particular 
Congressional committee, provided that the complaint relates to conduct 
that the employee reasonably believes to be a violation of one of the 
enumerated laws or regulations.

Section 1980.103 Filing of Discrimination Complaint

    This section explains the requirements for filing a discrimination 
complaint under Sarbanes-Oxley. To be timely, a complaint must be filed 
within 90 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 need to 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 1980.104 Investigation

    Sarbanes-Oxley follows the AIR21 requirement that a complaint will 
be dismissed if it 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 AIR21 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 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 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 ten business days, to provide written 
evidence in response to the allegation of the violation, meet with the 
investigators, and present legal and factual arguments why preliminary 
relief is not warranted. This section provides due process procedures 
in accordance with the Supreme Court decision under STAA in Brock v. 
Roadway Express, Inc., 481 U.S. 252 (1987).

Section 1980.105 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 
regarding whether or not the complaint has merit. If the finding is 
that the complaint has merit, the Assistant Secretary will order 
appropriate preliminary relief. The

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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 30 days of receipt of the findings, the findings and any 
preliminary order of the Assistant Secretary become the final findings 
and order of the Secretary. If objections are timely filed, any order 
of preliminary reinstatement will take effect, but the remaining 
provisions of the order will not take effect until administrative 
proceedings are completed.
    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, as 
under AIR21, 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 
Sarbanes-Oxley. See McKennon v. Nashville Banner Publishing Co., 513 
U.S. 352, 360-62 (1995), in which 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).

Section 1980.106 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, D.C. 
within 30 days of receipt of the findings. The date of the postmark, 
facsimile transmittal or e-mail communication is considered the date of 
the filing; if the 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.

Section 1980.107 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. In order for hearings to be conducted as 
expeditiously as possible, and particularly in light of the unique 
provision in Sarbanes-Oxley allowing complainants to seek a de novo 
hearing in Federal court if the Secretary has not issued a final 
decision within 180 days of the filing of the complaint, this section 
provides that the ALJ has broad authority to limit discovery. For 
example, an ALJ may limit the number of interrogatories, requests for 
production of documents, or depositions allowed. An ALJ also may 
exercise discretion to limit discovery unless the complainant agrees to 
delay filing a complaint in Federal court for some definite period of 
time beyond the 180-day point. If a complainant seeks excessive or 
burdensome discovery or fails to adhere to an agreement to delay filing 
a complaint in Federal court, a district court considering a request 
for de novo review might conclude that such conduct resulted in delay 
due to the claimant's bad faith.

Section 1980.108 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 the public 
interest has not required OSHA's participation. The Department believes 
this is even more likely to be the situation in cases involving 
allegations of corporate fraud. Therefore, as in the AIR21 regulations, 
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 proceedings. For example, the Assistant Secretary may 
exercise his or her discretion to prosecute the case in the 
administrative proceeding before an administrative law judge; 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. Although we 
anticipate that ordinarily the Assistant Secretary will not participate 
in Sarbanes-Oxley proceedings, 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 Securities and Exchange 
Commission ("SEC"), at that agency's discretion, also may participate 
as amicus curiae at any time in the proceedings. OSHA believes it is 
unlikely that its preliminary decision ordinarily not to prosecute 
meritorious Sarbanes-Oxley cases will discourage employees from making 
complaints about corporate fraud.
    The Department seeks comment regarding its preliminary decision 
that the Assistant Secretary should not ordinarily participate in 
Sarbanes-Oxley proceedings, but should participate in appropriate 
cases, or whether instead the Department should follow the STAA model 
under which it ordinarily participates where a complaint is found to 
have merit. The Department will consider these comments, as well as its 
experience under this program in the interim, in issuance of the final 
rule.

Section 1980.109 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.  
1980.104 is not subject to review by the ALJ, who hears the case on the 
merits.

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Section 1980.110 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 ten 
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 120 days after the date of the conclusion of 
the hearing before the ALJ. The conclusion of the hearing is deemed to 
be the conclusion of all proceedings before the administrative law 
judge--i.e., ten 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 
provision of STAA. 29 CFR 1978.109(b)(3).

Section 1980.111 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 1980.112 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 1980.113 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 1980.114 District Court Jurisdiction of Discrimination 
Complaints.

    This section sets forth the Sarbanes-Oxley provision allowing 
complainants to bring an action in district court for de novo review if 
there has been no final decision of the Secretary within 180 days of 
the filing of the complaint and there is no delay due to the 
complainant's bad faith. It provides that complainants will provide 
notice 15 days in advance of their intent to file a Federal court 
complaint. This provision authorizing a Federal court complaint is 
unique among the whistleblower statutes administered by the Secretary. 
This statutory structure creates the possibility that a complainant 
will have litigated a claim before the agency, will receive a decision 
from an administrative law judge, and will then file a complaint in 
Federal court while the case is pending on review by the Board. The Act 
might even be interpreted to allow a complainant to bring an action in 
Federal court after receiving a final decision from the Board, if that 
decision was issued more than 180 days after the filing of the 
complaint. The Secretary believes that it would be a waste of the 
resources of the parties, the Department, and the courts for 
complainants to pursue duplicative litigation. The Secretary notes that 
the courts have recognized that, when a party has had a full and fair 
opportunity to litigate a claim, an adversary should be protected from 
the expense and vexation of multiple lawsuits and that the public 
interest is served by preserving judicial resources by prohibiting 
subsequent suits involving the same parties making the same claims. 
ontana v. United States, 440 U.S. 147, 153 (1979). When an 
administrative agency acts in a judicial capacity and resolves disputed 
issues of fact properly before it that the parties have had an adequate 
opportunity to litigate, the courts have not hesitated to apply the 
principles of issue preclusion (collateral estoppel) or claim 
preclusion (res judicata) on the basis of that administrative decision. 
University of Tennessee v. Elliott, 478 U.S. 788, 799 (1986), citing 
United States v. Utah Construction and Mining Co., 384 U.S. 394, 422 
(1966). Therefore, the Secretary anticipates that Federal courts will 
apply such principles if a complainant brings a new action in Federal 
court following extensive litigation before the Department that has 
resulted in a decision by an administrative law judge or the Secretary. 
Where an administrative hearing has been completed and a matter is 
pending before an administrative law judge or the Board for a decision, 
a Federal court also might treat a complaint as a petition for mandamus 
and order the Department to issue a decision under appropriate time 
frames.

Section 1980.115 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.

V. Paperwork Reduction Act

    This rule contains a reporting requirement (Sec.  1980.103) which 
was previously reviewed and approved for use by the Office of 
anagement 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). The estimated reporting 
activity under OMB control number 1218-0236 has been revised to reflect 
the projected reporting under this interim rule.

VI. Administrative Procedure Act

    This 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 is not required for 
these regulations, which provide procedures for the handling of 
discrimination complaints. Although this rule is not subject to the 
notice and comment procedures of the APA, persons interested in this 
interim final rule may submit comments within 60 days. A final rule 
will be published after the agency receives and reviews the public's 
comments.
    Furthermore, because this rule is procedural rather than 
substantive, the normal requirement of 5 U.S.C. 553(d) that a rule be 
effective 30 days after publication in the Federal Register is 
inapplicable. The Assistant Secretary also finds good cause to provide 
an immediate effective date for this rule. It

[[Page 31864]]

is in the public interest that the rule be effective immediately so 
that parties may know what procedures are applicable to pending cases.

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

    The Department has concluded that this rule should be treated as a 
"significant regulatory action" within the meaning of Section 3(f)(4) 
of Executive Order 12866 because Sarbanes-Oxley is a new program and 
because of the importance to investors that "whistleblowers" be 
protected from retaliation. E.O. 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. 801 et seq.), 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).

VIII. Regulatory Flexibility Analysis

    The Department has determined that the regulation will not have a 
significant economic impact on a substantial number of small entities. 
The regulation simply implements procedures necessitated by enactment 
of Sarbanes-Oxley, 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 Assistant Secretary, Occupational Safety 
and Health Administration, U.S. Department of Labor.

List of Subjects in 29 CFR Part 1980

    Administrative practice and procedure, Corporate fraud, Employment, 
Investigations, Reporting and recordkeeping requirements, 
Whistleblowing.

    Signed at Washington, DC this 20th day of May, 2003.
John L. Henshaw,
Assistant Secretary for Occupational Safety and Health.

0
Accordingly, for the reasons set out in the preamble part 1980 of title 
29 of the Code of Federal Regulations is added as follows:

PART 1980--PROCEDURES FOR THE HANDLING OF DISCRIMINATION COMPLAINTS 
UNDER SECTION 806 OF THE CORPORATE AND CRIMINAL FRAUD 
ACCOUNTABILITY ACT OF 2002, TITLE VIII OF THE SARBANES-OXLEY ACT OF 
2002

Subpart A--Complaints, Investigations, Findings and Preliminary Orders
Sec.
1980.100 Purpose and scope.
1980.101 Definitions.
1980.102 Obligations and prohibited acts.
1980.103 Filing of discrimination complaint.
1980.104 Investigation.
1980.105 Issuance of findings and preliminary orders.
Subpart B--Litigation
1980.106 Objections to the findings and the preliminary order and 
request for a hearing.
1980.107 Hearings.
1980.108 Role of Federal agencies.
1980.109 Decision and orders of the administrative law judge.
1980.110 Decision and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
1980.111 Withdrawal of complaints, objections, and findings; 
settlement.
1980.112 Judicial review.
1980.113 Judicial enforcement.
1980.114 District Court jurisdiction of discrimination complaints.
1980.115 Special circumstances; waiver of rules.

    Authority: 18 U.S.C. 1514A; Secretary of Labor's Order No. 5-
2002, 67 FR 65008 (October 22, 2002).

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


Sec.  1980.100  Purpose and scope.

    (a) This part implements procedures under section 806 of the 
Corporate and Criminal Fraud Accountability Act of 2002, Title VIII of 
the Sarbanes-Oxley Act of 2002 ("Sarbanes-Oxley" or "Act"), enacted 
into law July 30, 2002. Sarbanes-Oxley provides for employee protection 
from discrimination by companies and representatives of companies 
because the employee has engaged in protected activity pertaining to a 
violation or alleged violation of 18 U.S.C. 1341, 1343, 1344, or 1348, 
or any rule or regulation of the Securities and Exchange Commission, or 
any provision of Federal law relating to fraud against shareholders.
    (b) This part establishes procedures pursuant to Sarbanes-Oxley 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 Sarbanes-Oxley, 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.  1980.101  Definitions.

    Act means section 806 of the Corporate and Criminal Fraud 
Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act of 
2002, Public Law No. 107-204, July 30, 2002, codified at 18 U.S.C. 
1514A.
    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.
    Company means any company with a class of securities registered 
under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. 78l) 
and any company required to file reports under section 15(d) of the 
Securities Exchange Act of 1934 (15 U.S.C. 78o(d)).
    Company representative means any officer, employee, contractor, 
subcontractor, or agent of a company.
    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 
company or company representative, an individual applying to work for a 
company or company representative, or an individual whose employment 
could

[[Page 31865]]

be affected by a company or company representative.
    Named person means the employer and/or the company or company 
representative named in the complaint who is alleged to have violated 
the Act.
    OSHA means the Occupational Safety and Health Administration of the 
United States Department of Labor.
    Person means one or more individuals, partnerships, associations, 
corporations, business trusts, legal representatives or any group of 
persons.
    Secretary means the Secretary of Labor or persons to whom authority 
under the Act has been delegated.


Sec.  1980.102  Obligations and prohibited acts.

    (a) No company or company representative may discharge, demote, 
suspend, threaten, harass or in any other manner 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 (2) of this section.
    (b) A company or company representative is deemed to have violated 
the Act if it intimidates, threatens, restrains, coerces, blacklists, 
or in any other manner discriminates against an employee in the terms 
and conditions of employment because of any lawful act done by the 
employee:
    (1) To provide information, cause information to be provided, or 
otherwise assist in an investigation regarding any conduct which the 
employee reasonably believes constitutes a violation of 18 U.S.C. 1341, 
1343, 1344, or 1348, any rule or regulation of the Securities and 
Exchange Commission, or any provision of Federal law relating to fraud 
against shareholders, when the information or assistance is provided to 
or the investigation is conducted by--
    (i) A Federal regulatory or law enforcement agency;
    (ii) Any Member of Congress or any committee of Congress; or
    (iii) A person with supervisory authority over the employee (or 
such other person working for the employer who has the authority to 
investigate, discover, or terminate misconduct); or
    (2) To file, cause to be filed, testify, participate in, or 
otherwise assist in a proceeding filed or about to be filed (with any 
knowledge of the employer) relating to an alleged violation of 18 
U.S.C. 1341, 1343, 1344, or 1348, any rule or regulation of the 
Securities and Exchange Commission, or any provision of Federal law 
relating to fraud against shareholders.


Sec.  1980.103  Filing of discrimination complaint.

    (a) Who may file. An employee who believes that he or she has been 
discriminated against by a company or company representative 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: https://www.osha.gov.
    (d) Time for filing. Within 90 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.


Sec.  1980.104  Investigation.

    (a) Upon receipt of a complaint in the investigating office, the 
Assistant Secretary will notify the named person (or named persons) 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 also will notify the named person 
of its right under paragraphs (b) and (c) of this section and paragraph 
(e) of Sec.  1980.110. A copy of the notice to the named person will 
also be provided to the Securities and Exchange Commission.
    (b) A complaint of alleged violation will 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 will 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 its 
position. Within the same 20 days, the named person may request a 
meeting with the Assistant Secretary to present its 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

[[Page 31866]]

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 this title.
    (e) Prior to the issuance of findings and a preliminary order as 
provided for in Sec.  1980.105, 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 its 
position, and to present legal and factual arguments. The named person 
will be directed to present this evidence within ten 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.  1980.105  Issuance of findings and preliminary orders.

    (a) After considering all the relevant information collected during 
the investigation, the Assistant Secretary will issue, within 60 days 
of 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 will 
accompany the findings with a preliminary order providing relief to the 
complainant. The preliminary order will include all relief necessary to 
make the employee whole, including: Where appropriate, reinstatement 
with the same seniority status that the employee would have had but for 
the discrimination; back pay with interest; and compensation for any 
special damages sustained as a result of the discrimination, including 
litigation costs, expert witness fees, and reasonable attorney's fees. 
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.
    (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 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. 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 30 
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.  1980.106. 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.  1980.106  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 
attorneys' fees, must file any objections and a request for a hearing 
on the record within 30 days of receipt of the findings and preliminary 
order pursuant to Sec.  1980.105(b). The objection or request for 
attorneys' 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 attorneys' 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. 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.
    (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, will become the final decision of the Secretary, 
not subject to judicial review.


Sec.  1980.107  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 as hearings de novo, on the record. 
Administrative law judges will have broad discretion to limit discovery 
in order to expedite the hearing.
    (c) If 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.  1980.108  Role of Federal agencies.

    (a)(1) The complainant and the named person will be parties in 
every proceeding. At the Assistant Secretary's

[[Page 31867]]

discretion, the Assistant Secretary may participate as a party or may 
participate as amicus curiae at any time in 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 based on a settlement agreement between complainant and the 
named person, to dismiss a complaint or to issue an order encompassing 
the terms of the settlement.
    (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 Securities and Exchange Commission (SEC) may participate as 
amicus curiae at any time in the proceedings, at the SEC's discretion. 
At the request of the SEC, copies of all pleadings in a case must be 
sent to the SEC, whether or not the SEC is participating in the 
proceeding.


Sec.  1980.109  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.  1980.104(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 will provide all relief 
necessary to make the employee whole, including reinstatement of the 
complainant to that person's former position with the seniority status 
that the complainant would have had but for the discrimination, back 
pay with interest, and compensation for any special damages sustained 
as a result of the discrimination, including litigation costs, expert 
witness fees, and reasonable attorney's fees. 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 may not be stayed. All other portions of the judge's order will be 
effective ten business days after the date of the decision unless a 
timely petition for review has been filed with the Administrative 
Review Board.


Sec.  1980.110  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 ten 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. 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 will be issued within 120 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 provide all relief 
necessary to make the employee whole, including reinstatement of the 
complainant to that person's former position with the seniority status 
that the complainant would have had but for the discrimination, back 
pay with interest, and compensation for any special damages sustained 
as a result of the discrimination, including litigation costs, expert 
witness fees, and reasonable attorneys' fees.
    (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

[[Page 31868]]

brought in bad faith, the Board may award to the named person a 
reasonable attorneys' fee, not exceeding $1,000.

Subpart C--Miscellaneous Provisions


Sec.  1980.111  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 the 
withdrawal will be approved. 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 30-day 
objection period described in Sec.  1980.106, 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 30-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 the withdrawal will be approved. 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.  1980.113.


Sec.  1980.112  Judicial review.

    (a) Within 60 days after the issuance of a final order under Sec.  
1980.110, 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.  1980.113  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.  1980.114  District Court jurisdiction of discrimination 
complaints.

    (a) If the Board has not issued a final decision within 180 days of 
the filing of the complaint, and there is no showing that there has 
been delay due to the bad faith of the complainant, the complainant may 
bring an action at law or equity for de novo review in the appropriate 
district court of the United States, which will have jurisdiction over 
such an action without regard to the amount in controversy.
    (b) Fifteen days in advance of filing a complaint in Federal court, 
a complainant must file with the administrative law judge or the Board, 
depending upon where the proceeding is pending, a notice of his or her 
intention to file such a complaint. The notice must be served upon all 
parties to the proceeding. If the Assistant Secretary is not a party, a 
copy of the notice 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.


Sec.  1980.115  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 and interveners, waive any rule or issue any orders that 
justice or the administration of the Act requires.

[FR Doc. 03-13082 Filed 5-27-03; 8:45 am]

BILLING CODE 4510-26-P