Interim Final Rule, Pipeline Safety Improvement Act Whistleblower, 29 CFR Part 1981, 69 Fed. Reg. 17587 (Apr. 5, 2004)

Interim Final Rule, Pipeline Safety Improvement Act Whistleblower, 29 CFR Part 1981, 69 Fed. Reg. 17587 (Apr. 5, 2004)

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[Federal Register: April 5, 2004 (Volume 69, Number 65)]
[Rules and Regulations]               
[Page 17587-17595]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05ap04-4]                         

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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: 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 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 interim final rule is effective on April 5, 2004. Comments 
on the interim final rule are due on or before June 4, 2004.

ADDRESSES: Submit written comments to: OSHA Docket Office, Docket No. 
C11, Room N2625, 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 www.ecomments.osha.gov. 
All comments should reference Docket No. C11. 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: Thomas Marple, Director, Office of 
Investigative Assistance, Occupational Safety and Health 
Administration, U.S. Department of Labor, Room N-3610, 200 Constitution 
Avenue NW., Washington, DC 20210; telephone (202) 693-2199. This is not 
a toll-free number. The alternative formats available are large print, 
electronic file on computer disk (Word Perfect, ASCII, Mates with 
Duxbury Braille System) and audiotape.

SUPPLEMENTARY INFORMATION:

I. Background

    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. 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 part 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 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. This 
provision is similar to the whistleblower provisions of AIR21, codified 
at 49 U.S.C. 42121, which were incorporated by reference into the 
whistleblower provisions of the Sarbanes-Oxley Act, codified at 18 
U.S.C. 1514A; and the 1992 amendments to the ERA, codified at 42 U.S.C. 
5851.
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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

[[Page 17588]]

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. 
This provision for preliminary reinstatement after the investigation is 
similar to the employee protection provision of AIR21, 49 U.S.C. 42121, 
the Sarbanes-Oxley Act, 18 U.S.C. 1514A, and STAA, 49 U.S.C. 31105. 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

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 new 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 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. 42 U.S.C. 5851(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 (D.C. 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 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 1981.104 Investigation

    The Pipeline Safety Act contains the statutory requirement that a 
complaint shall 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 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. As under AIR21 and Sarbanes-Oxley, 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

[[Page 17589]]

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 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. OSHA notes legislative history under the Pipeline Safety Act 
indicating 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).
    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 
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.

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.
    The Department seeks comment regarding whether the protection of 
the public interest in protecting pipeline safety whistleblowers 
against retaliation by their employers requires the Assistant Secretary 
to participate in Pipeline Safety Act proceedings routinely or only in 
appropriate cases. The Department will consider these comments, as well 
as its experience under this program in the interim, in issuance of the 
final rule.

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

[[Page 17590]]

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 AIR21. See 29 CFR 1978.109(b)(3) 
and 1979.110(b).

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 requirement (Sec.  1981.103) 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).

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

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

    The Department has concluded that this rule should be treated as a 
"significant regulatory action" within the meaning of Section 3(f)(4) 
of Executive Order 12866 because the 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. 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).

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.

[[Page 17591]]

    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 1981

    Administrative practice and procedure, Employment, Investigations, 
Pipelines, Pipeline safety, Reporting and recordkeeping requirements, 
Safety, Transportation, Whistleblowing.

    Signed at Washington, DC this 29th day of March, 2004.
John L. Henshaw,
Assistant Secretary for Occupational Safety and Health.

0
Accordingly, for the reasons set out in the preamble, part 1981 of 
title 29 of the Code of Federal Regulations is promulgated 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 No. 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

[[Page 17592]]

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: 
https://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leaving
FR.html&log=linklog&to=https://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

[[Page 17593]]

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.

[[Page 17594]]

    (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

[[Page 17595]]

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. 04-7612 Filed 4-2-04; 8:45 am]

BILLING CODE 4510-26-P