Vermont

Sections 1901, 1902. Repealed.

1977, No. 109, § 33(d), eff. July 3, 1977.

Sections 1701-1710. Repealed.

1973, No. 111, § 2.

Sections 1001-1023. Repealed.

1999, No. 41, § 8(a)(1).

Sections 501-513a. Repealed.

1973, No. 213 (Adj. Sess.), § 3, eff. April 3, 1974.

Authority: 6 U.S.C. 1142 and 49 U.S.C. 20109; Secretary of Labor’s Order No. 5–2007, 72 FR 31160 (June 5, 2007); Secretary of Labor’s Order No. 1–2010 (Jan. 15, 2010), 75 FR 3924–01 (Jan. 25, 2010).

Part 1982. Procedures for the Handling of Retaliation Complaints Under the National Transit Systems Security Act of 2007, Enacted as Section 1413 of the Implementing Recommendations of the 9/11 Commission Act of 2007, and The Federal Railroad Safety Act, as Amended by Section 1521 of the Implementing Recommendations of the 9/11 Commission Act of 2007

1982 Subpart A - Complaints, Investigations, Findings and Preliminary Orders

1982.100 - Purpose and scope.

1982.100(a)

This part implements procedures of NTSSA, 6 U.S.C. 1142, and FRSA, 49 U.S.C. 20109, as amended. NTSSA provides for employee protection from retaliation because the employee has engaged in protected activity pertaining to public transportation safety orsecurity (or, in circumstances covered by the statutes, the employee is perceived to have engaged or to be about to engage in protected activity). FRSA provides for employee protection from retaliation because the employee has engaged in protected activity pertaining to railroad safety or security (or, in circumstances covered by the statutes, the employee is perceived to have engaged or to be about to engage in protected activity), has requested medical or first aid treatment, or has followed orders or a treatment plan of a treating physician.

1982.100(b)

This part establishes procedures pursuant to NTSSA and FRSA for the expeditious handling of retaliation complaints filed by employees, or by persons acting on their behalf. These rules, together with those codified at 29 CFR part 18, set forth the procedures for submission of complaints under NTSSA or FRSA, 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.

[75 FR 53527, August 31, 2010]

1982.101 - Definitions.

1982.101(a)

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 NTSSA or FRSA.

1982.101(b)

Business days means days other than Saturdays, Sundays, and Federal holidays.

1982.101(c)

Complainant means the employee who filed a NTSSA or FRSA complaint or on whose behalf a complaint was filed.

1982.101(d)

Employee means an individual presently or formerly working for, an individual applying to work for, or an individual whose employment could be affected by a public transportation agency or a railroad carrier, or a contractor or subcontractor of a public transportation agency or a railroad carrier.

1982.101(e)

FRSA means Section 1521 of the Implementing Recommendations of the 9/11 Commission Act of 2007, Public Law 110-053, August 3, 2007, as further amended by Public Law 110-432, October, 16, 2008, codified at 49 U.S.C. 20109.

1982.101(f)

NTSSA means Section 1413 of the Implementing Recommendations of the 9/11 Commission Act of 2007, Public Law 110-053, August 3, 2007, codified at 6 U.S.C. 1142.

1982.101(g)

OSHA means the Occupational Safety and Health Administration of the United States Department of Labor.

1982.101(h)

Public transportation means transportation by a conveyance that provides regular and continuous general or special transportation to the public, but does not include school buses, charter, or intercity bus transportation or intercity passenger rail transportation provided by Amtrak.

1982.101(i)

Public transportation agency means a publicly owned operator of public transportation eligible to receive Federal assistance under 49 U.S.C. chapter 53.

1982.101(j)

Railroad means any form of nonhighway ground transportation that runs on rails or electromagnetic guideways, including commuter or other short-haul railroad passenger service in a metropolitan or suburban area and commuter railroad service that was operated by the Consolidated Rail Corporation on January 1, 1979 and high speed ground transportation systems that connect metropolitan areas, without regard to whether those systems use new technologies not associated with traditional railroads, but does not include rapid transit operations in an urban area that are not connected to the general railroad system of transportation.

1982.101(k)

Railroad carrier means a person providing railroad transportation.

1982.101(l)

Respondent means the person alleged to have violated NTSSA or FRSA.

1982.101(m)

Secretary means the Secretary of Labor or person to whom authority under NTSSA or FRSA has been delegated.

1982.101(n)

Any future statutory amendments that affect the definition of a term or terms listed in this section will apply in lieu of the definition stated herein.

[75 FR 53528, August 31, 2010]

1982.102 - Obligations and prohibited acts.

1982.102(a)

National Transit Systems Security Act.

1982.102(a)(1)

A public transportation agency, contractor, or subcontractor of such agency, or officer or employee of such agency shall not discharge, demote, suspend, reprimand, or in any other way discriminate against, including but not limited to intimidating, threatening, restraining, coercing, blacklisting, or disciplining an employee if such discrimination is due, in whole or in part, to the employee's lawful, good faith act done, or perceived by the employer to have been done or about to be done --

1982.102(a)(1)(i)

To provide information, directly cause information to be provided, or otherwise directly assist in any investigation regarding any conduct which the employee reasonably believes constitutes a violation of any Federal law, rule, or regulation relating to public transportation safety or security, or fraud, waste, or abuse of Federal grants or other public funds intended to be used for public transportation safety or security, if the information or assistance is provided to, or an investigation stemming from the provided information is conducted by --

1982.102(a)(1)(i)(A)

A Federal, State or local regulatory or law enforcement agency (including an office of the Inspector General under the Inspector General Act of 1978 (5 U.S.C. App.; Pub. L. 95-452));

1982.102(a)(1)(i)(B)

Any Member of Congress, any Committee of Congress, or the Government Accountability Office; or

1982.102(a)(1)(i)(C)

A person with supervisory authority over the employee or such other person who has the authority to investigate, discover, or terminate the misconduct;

1982.102(a)(1)(ii)

To refuse to violate or assist in the violation of any Federal law, rule, or regulation relating to public transportation safety or security;

1982.102(a)(1)(iii)

To file a complaint or directly cause to be brought a proceeding related to the enforcement of this section or to testify in that proceeding;

1982.102(a)(1)(iv)

To cooperate with a safety or security investigation by the Secretary of Transportation, the Secretary of Homeland Security, or the National Transportation Safety Board; or

1982.102(a)(1)(v)

To furnish information to the Secretary of Transportation, the Secretary of Homeland Security, the National Transportation Safety Board, or any Federal, State, or local regulatory or law enforcement agency as to the facts relating to any accident or incident resulting in injury or death to an individual or damage to property occurring in connection with public transportation.

1982.102(a)(2)(i)

A public transportation agency, contractor, or subcontractor of such agency, or officer or employee of such agency shall not discharge, demote, suspend, reprimand, or in any other way discriminate against, including but not limited to intimidating, threatening, restraining, coercing, blacklisting, or disciplining an employee for --

1982.102(a)(2)(i)(A)

Reporting a hazardous safety or security condition;

1982.102(a)(2)(i)(B)

Refusing to work when confronted by a hazardous safety or security condition related to the performance of the employee's duties, if the conditions described in paragraph (a)(2)(ii) of this section exist; or

1982.102(a)(2)(i)(C)

Refusing to authorize the use of any safety- or security-related equipment, track, or structures, if the employee is responsible for the inspection or repair of the equipment, track, or structures, when the employee believes that the equipment, track, or structures are in a hazardous safety or security condition, if the conditions described in paragraph (a)(2)(ii) of this section exist.

1982.102(a)(2)(ii)

A refusal is protected under paragraph (a)(2)(i)(B) and (C) of this section if --

1982.102(a)(2)(ii)(A)

The refusal is made in good faith and no reasonable alternative to the refusal is available to the employee;

1982.102(a)(2)(ii)(B)

A reasonable individual in the circumstances then confronting the employee would conclude that --

1982.102(a)(2)(ii)(B)(1)

The hazardous condition presents an imminent danger of death or serious injury; and

1982.102(a)(2)(ii)(B)(2)

The urgency of the situation does not allow sufficient time to eliminate the danger without such refusal; and

1982.102(a)(2)(ii)(C)

The employee, where possible, has notified the public transportation agency of the existence of the hazardous condition and the intention not to perform further work, or not to authorize the use of the hazardous equipment, track, or structures, unless the condition is corrected immediately or the equipment, track, or structures are repaired properly or replaced.

1982.102(a)(2)(iii)

In paragraph (a)(2)(ii) of this section, only paragraph (a)(2)(ii)(A) shall apply to security personnel, including transit police, employed or utilized by a public transportation agency to protect riders, equipment, assets, or facilities.

1982.102(b)

Federal Railroad Safety Act.

1982.102(b)(1)

A railroad carrier engaged in interstate or foreign commerce, a contractor or a subcontractor of such a railroad carrier, or an officer or employee of such a railroad carrier, may not discharge, demote, suspend, reprimand, or in any other way discriminate against, including but not limited to intimidating, threatening, restraining, coercing, blacklisting, or disciplining an employee if such discrimination is due, in whole or in part, to the employee's lawful, good faith act done, or perceived by the employer to have been done or about to be done --

1982.102(b)(1)(i)

To provide information, directly cause information to be provided, or otherwise directly assist in any investigation regarding any conduct which the employee reasonably believes constitutes a violation of any Federal law, rule, or regulation relating to railroad safety or security, or gross fraud, waste, or abuse of Federal grants or other public funds intended to be used for railroad safety or security, if the information or assistance is provided to or an investigation stemming from the provided information is conducted by --

1982.102(b)(1)(i)(A)

A Federal, State, or local regulatory or law enforcement agency (including an office of the Inspector General under the Inspector General Act of 1978 (5 U.S.C. App.; Pub. L. 95-452));

1982.102(b)(1)(i)(B)

Any Member of Congress, any committee of Congress, or the Government Accountability Office; or

1982.102(b)(1)(i)(C)

A person with supervisory authority over the employee or such other person who has the authority to investigate, discover, or terminate the misconduct;

1982.102(b)(1)(ii)

To refuse to violate or assist in the violation of any Federal law, rule, or regulation relating to railroad safety or security;

1982.102(b)(1)(iii)

To file a complaint, or directly cause to be brought a proceeding related to the enforcement of 49 U.S.C. part A of subtitle V or, as applicable to railroad safety or security, 49 U.S.C. chapter 51 or 57, or to testify in that proceeding;

1982.102(b)(1)(iv)

To notify, or attempt to notify, the railroad carrier or the Secretary of Transportation of a work-related personal injury or work-related illness of an employee;

1982.102(b)(1)(v)

To cooperate with a safety or security investigation by the Secretary of Transportation, the Secretary of Homeland Security, or the National Transportation Safety Board;

1982.102(b)(1)(vi)

To furnish information to the Secretary of Transportation, the Secretary of Homeland Security, the National Transportation Safety Board, or any Federal, State, or local regulatory or law enforcement agency as to the facts relating to any accident or incident resulting in injury or death to an individual or damage to property occurring in connection with railroad transportation; or

1982.102(b)(1)(vii)

To accurately report hours on duty pursuant to 49 U.S.C. chapter 211.

1982.102(b)(2)(i)

A railroad carrier engaged in interstate or foreign commerce, or an officer or employee of such a railroad carrier, shall not discharge, demote, suspend, reprimand, or in any other way discriminate against, including but not limited to intimidating, threatening, restraining, coercing, blacklisting, or disciplining an employee for --

1982.102(b)(2)(i)(A)

Reporting, in good faith, a hazardous safety or security condition;

1982.102(b)(2)(i)(B)

Refusing to work when confronted by a hazardous safety or security condition related to the performance of the employee's duties, if the conditions described in paragraph (b)(2)(ii) of this section exist; or

1982.102(b)(2)(i)(C)

Refusing to authorize the use of any safety-related equipment, track, or structures, if the employee is responsible for the inspection or repair of the equipment, track, or structures, when the employee believes that the equipment, track, or structures are in a hazardous safety or security condition, if the conditions described in paragraph (b)(2)(ii) of this section exist.

1982.102(b)(2)(ii)

A refusal is protected under paragraphs (b)(2)(i)(B) and (C) of this section if --

1982.102(b)(2)(ii)(A)

The refusal is made in good faith and no reasonable alternative to the refusal is available to the employee;

1982.102(b)(2)(ii)(B)

A reasonable individual in the circumstances then confronting the employee would conclude that --

1982.102(b)(2)(ii)(B)(1)

The hazardous condition presents an imminent danger of death or serious injury; and

1982.102(b)(2)(ii)(B)(2)

The urgency of the situation does not allow sufficient time to eliminate the danger without such refusal; and

1982.102(b)(2)(ii)(C)

The employee, where possible, has notified the railroad carrier of the existence of the hazardous condition and the intention not to perform further work, or not to authorize the use of the hazardous equipment, track, or structures, unless the condition is corrected immediately or the equipment, track, or structures are repaired properly or replaced.

1982.102(b)(2)(iii)

In paragraph (b)(2)(ii) of this section, only paragraph (b)(2)(ii)(A) shall apply to security personnel employed by a railroad carrier to protect individuals and property transported by railroad.

1982.102(b)(3)

A railroad carrier engaged in interstate or foreign commerce, a contractor or a subcontractor of such a railroad carrier, or an officer or employee of such a railroad carrier may not discipline, or threaten discipline to, an employee for requesting medical or first aid treatment, or for following orders or a treatment plan of a treating physician, except that --

1982.102(b)(3)(i)

A railroad carrier's refusal to permit an employee to return to work following medical treatment shall not be considered a violation of FRSA if the refusal is pursuant to Federal Railroad Administration medical standards for fitness of duty or, if there are no pertinent Federal Railroad Administration standards, a carrier's medical standards for fitness for duty.

1982.102(b)(3)(ii)

For purposes of this paragraph, the term "discipline" means to bring charges against a person in a disciplinary proceeding, suspend, terminate, place on probation, or make note of reprimand on an employee's record.

[75 FR 53528, August 31, 2010]

1982.103 - Filing of retaliation complaints.

1982.103(a)

Who may file. An employee who believes that he or she has been retaliated against by an employer in violation of NTSSA or FRSA may file, or have filed by any person on the employee's behalf, a complaint alleging such retaliation.

1982.103(b)

Nature of filing. No particular form of complaint is required. A complaint may be filed orally or in writing. Oral complaints will be reduced to writing by OSHA. If a complainant is unable to file the complaint in English, OSHA will accept the complaint in any language.

1982.103(c)

Place of filing. The complaint should be filed with the OSHA Area Director responsible for enforcement activities in the geographical area where the employee resides or was employed, but may be filed with any OSHA officer or employee. Addresses and telephone numbers for these officials are set forth in local directories and at the following Internet address: http://www.osha.gov.

1982.103(d)

Time for Filing. Within 180 days after an alleged violation of NTSSA or FRSA occurs, an employee who believes that he or she has been retaliated against in violation of NTSSA or FRSA may file, or have filed by any person on the employee's behalf, a complaint alleging such retaliation. The date of the postmark, facsimile transmittal, e-mail communication, telephone call, hand-delivery, delivery to a third-party commercial carrier, or in-person filing at an OSHA office will be considered the date of filing. The time for filing a complaint may be tolled for reasons warranted by applicable case law.

[75 FR 53529, August 31, 2010]

1982.104 - Investigation.

1982.104(a)

Upon receipt of a complaint in the investigating office, the Assistant Secretary will notify the respondent of the filing of the complaint by providing a copy of the complaint, redacted, if necessary, in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, et seq., and other applicable confidentiality laws, and will also notify the respondent of its rights under paragraphs (b) and (f) of this section and paragraph (e) of § 1982.110. The Assistant Secretary will provide a copy of the unredacted complaint to the complainant (or to the complainant's legal counsel, if complainant is represented by counsel), and to the Federal Railroad Administration, the Federal Transit Administration, or the Transportation Security Administration as appropriate.

1982.104(b)

Within 20 days of receipt of the notice of the filing of the complaint provided under paragraph (a) of this section, the respondent may submit to the Assistant Secretary a written statement and any affidavits or documents substantiating its position. Within the same 20 days, the respondent may request a meeting with the Assistant Secretary to present its position.

1982.104(c)

Throughout the investigation, the agency will provide to the complainant (or the complainant's legal counsel if complainant is represented by counsel) a copy of all of respondent's submissions to the agency that are responsive to the complainant's whistleblower complaint. Before providing such materials to the complainant, the agency will redact them, if necessary, in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, et seq., and other applicable confidentiality laws.

1982.104(d)

Investigations will be conducted in a manner that protects the confidentiality of any person who provides information on a confidential basis, other than the complainant, in accordance with part 70 of title 29 of the Code of Federal Regulations.

1982.104(e)(1)

A complaint of alleged violation will be dismissed unless the complainant has made a prima facie showing that protected activity was a contributing factor in the adverse action alleged in the complaint.

1982.104(e)(2)

The complaint, supplemented as appropriate by interviews of the complainant, must allege the existence of facts and evidence to make a prima facie showing as follows:

1982.104(e)(2)(i)

The employee engaged in a protected activity (or, in circumstances covered by the statutes, was perceived to have engaged or to be about to engage in protected activity);

1982.104(e)(2)(ii)

The respondent knew or suspected, actually or constructively, that the employee engaged in the protected activity (or, in circumstances covered by the statutes, perceived the employee to have engaged or to be about to engage in protected activity);

1982.104(e)(2)(iii)

The employee suffered an adverse action; and

1982.104(e)(2)(iv)

The circumstances were sufficient to raise the inference that the protected activity (or perception thereof) was a contributing factor in the adverse action.

1982.104(e)(3)

For purposes of determining whether to investigate, the complainant will be considered to have met the required burden if the complaint on its face, supplemented as appropriate through interviews of the complainant, alleges the existence of facts and either direct or circumstantial evidence to meet the required showing, i.e., to give rise to an inference that the respondent knew or suspected that the employee engaged in protected activity (or, in circumstances covered by the statutes, perceived the employee to have engaged or to be about to engage in protected activity), and that the protected activity (or perception thereof) was a contributing factor in the adverse action. The burden may be satisfied, for example, if the complaint shows that the adverse action took place shortly after the protected activity, giving rise to the inference that it was a contributing factor in the adverse action. If the required showing has not been made, the complainant (or the complainant's legal counsel if complainant is represented by counsel) will be so notified and the investigation will not commence.

1982.104(e)(4)

Notwithstanding a finding that a complainant has made a prima facie showing, as required by this section, an investigation of the complaint will not be conducted or will be discontinued if the respondent, pursuant to the procedures provided in this paragraph, demonstrates by clear and convincing evidence that it would have taken the same adverse action in the absence of the complainant's protected activity.

1982.104(e)(5)

If the respondent fails to make a timely response or fails to satisfy the burden set for in the prior paragraph, the Assistant Secretary will proceed with the investigation. The investigation will proceed whenever it is necessary or appropriate to confirm or verify the information provided by the respondent.

1982.104(f)

Prior to the issuance of findings and a preliminary order as provided for in § 1982.105, if the Assistant Secretary has reasonable cause, on the basis of information gathered under the procedures of this part, to believe that the respondent has violated NTSSA or FRSA and that preliminary reinstatement is warranted, the Assistant Secretary will again contact the respondent (or the respondent's legal counsel if respondent is represented by counsel) to give notice of the substance of the relevant evidence supporting the complainant's allegations as developed during the course of the investigation. This evidence includes any witness statements, which will be redacted to protect the identity of confidential informants where statements were given in confidence; if the statements cannot be redacted without revealing the identity of confidential informants, summaries of their contents will be provided. The respondent 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 respondent will present this evidence within 10 business days of the Assistant Secretary's notification pursuant to this paragraph, or as soon thereafter as the Assistant Secretary and the respondent can agree, if the interests of justice so require.

[75 FR 53530, August 31, 2010]

1982.105 - Issuance of findings and preliminary orders.

1982.105(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 respondent has retaliated against the complainant in violation of NTSSA or FRSA.

1982.105(a)(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, where appropriate: a requirement that the respondent 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; payment of compensatory damages, including, at the request of the complainant, the aggregate amount of all costs and expenses (including attorney's and expert witness fees) reasonably incurred. It may also include payment of punitive damages up to $250,000.

1982.105(a)(2)

If the Assistant Secretary concludes that a violation has not occurred, the Assistant Secretary will notify the parties of that finding.

1982.105(b)

The findings and the preliminary order will be sent by certified mail, return receipt requested, to all parties of record (and each party's legal counsel if the party is represented by counsel). The findings and, where appropriate, the preliminary order will inform the parties of the right to object to the findings and/or order and to request a hearing, and of the right of the respondent under NTSSA to request attorney's fees not exceeding $1,000 from the administrative law judge ("ALJ") regardless of whether the respondent has filed objections, if the respondent alleges that the complaint was frivolous or brought in bad faith, and will also 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/or order.

1982.105(c)

The findings and the preliminary order will be effective 30 days after receipt by the respondent (or the respondent's legal counsel if the respondent is represented by counsel) or on the compliance date set forth in the preliminary order, whichever is later, unless an objection and/or a request for a hearing has been timely filed as provided at § 1982.106. However, the portion of any preliminary order requiring reinstatement will be effective immediately upon the respondent's receipt of the findings and preliminary order, regardless of any objections to the findings and/or order.

[75 FR 53531, August 31, 2010]

1982 Subpart B - Litigation

1982.106 - Objections to the findings and the preliminary order and request for a hearing.

1982.106(a)

Any party who desires review, including judicial review, of the findings and preliminary order, or a respondent alleging that the complaint was frivolous or brought in bad faith who seeks an award of attorney's fees up to $1,000 under NTSSA, must file any objections and/or a request for a hearing on the record within 30 days of receipt of the findings and preliminary order pursuant to paragraph (b) of § 1982.105. The objections, request for a hearing, and/or request for attorney's fees must in writing and state whether the objections are 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, the Assistant Secretary, and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor.

1982.106(b)

If a timely objection is filed, all provisions of the preliminary order will be stayed, except for the portion requiring preliminary reinstatement, which will not be automatically stayed. The portion of the preliminary order requiring reinstatement will be effective immediately upon the respondent's receipt of the findings and preliminary order, regardless of any objections to the order. The respondent may file a motion with the Office of Administrative Judges for a stay of the Assistant Secretary's preliminary order of reinstatement. If no timely objection is filed with respect to either the findings or the preliminary order, the findings or preliminary order will become the final decision of the Secretary, not subject to judicial review.

[75 FR 53531, August 31, 2010]

1982.107 - Hearings.

1982.107(a)

Except as provided in this part, proceedings will be conducted in accordance with the rules of practice and procedure, and the rules of evidence, for administrative hearings before the Office of Administrative Law Judges, codified at part 18 of title 29 of the Code of Federal Regulations.

1982.107(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 and on the record.

1982.107(c)

If both the complainant and the respondent object to the findings and/or order, the objections will be consolidated and a single hearing will be conducted.

[75 FR 53531, August 31, 2010]

1982.108 - Role of Federal agencies.

1982.108(a)(1)

The complainant and the respondent 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 proceeding. This right to participate includes, but is not limited to, the right to petition for review of a decision of an ALJ, including a decision approving or rejecting a settlement agreement between the complainant and the respondent.

1982.108(a)(2)

Copies of documents 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, as well as all other parties.

1982.108(b)

The Department of Homeland Security or the Department of Transportation, if interested in a proceeding, may participate as amicus curiae at any time in the proceeding, at the agency's discretion. At the request of the interested Federal agency, copies of all pleadings in a case must be sent to the Federal agency, whether or not the agency is participating in the proceeding.

[75 FR 53531, August 31, 2010]

1982.109 - Decision and orders of the administrative law judge.

1982.109(a)

The decision of the ALJ will contain appropriate findings, conclusions, and an order pertaining to the remedies provided in paragraph (d) of this section, as appropriate. A determination that a violation has occurred may be made only if the complainant has demonstrated by a preponderance of the evidence that protected activity was a contributing factor in the adverse action alleged in the complaint.

1982.109(b)

If the complainant has satisfied the burden set forth in the prior paragraph, relief may not be ordered if the respondent demonstrates by clear and convincing evidence that it would have taken the same adverse action in the absence of any protected behavior.

1982.109(c)

Neither the Assistant Secretary's determination to dismiss a complaint without completing an investigation pursuant to § 1982.104(e) nor the Assistant Secretary's determination to proceed with an investigation is subject to review by the ALJ, and a complaint may not be remanded for the completion of an investigation or for additional findings on the basis that a determination to dismiss was made in error. Rather, if there otherwise is jurisdiction, the ALJ will hear the case on the merits or dispose of the matter without a hearing if the facts and circumstances warrant.

1982.109(d)(1)

If the ALJ concludes that the respondent has violated the law, the order will direct the respondent to take appropriate affirmative action to make the employee whole, including, where appropriate: a requirement that the respondent abate the violation; reinstatement with the same seniority status that the employee would have had but for the retaliation; back pay with interest; and compensation for any special damages sustained as a result of the retaliation, including litigation costs, expert witness fees, and reasonable attorney's fees. The order may also include payment of punitive damages up to $250,000.

1982.109(d)(2)

If the ALJ determines that the respondent has not violated the law, an order will be issued denying the complaint. If, upon the request of the respondent, the ALJ determines that a complaint filed under NTSSA was frivolous or was brought in bad faith, the ALJ may award to the respondent a reasonable attorney's fee, not exceeding $1,000.

1982.109(e)

The decision will be served upon all parties to the proceeding, the Assistant Secretary, and the Associate Solicitor, Division of Fair Labor Standards. Any ALJ's decision requiring reinstatement or lifting an order of reinstatement by the Assistant Secretary will be effective immediately upon receipt of the decision by the respondent. All other portions of the ALJ'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 ("ARB").

[75 FR 53531, August 31, 2010]

1982.110 - Decision and orders of the Administrative Review Board.

1982.110(a)

Any party desiring to seek review, including judicial review, of a decision of the ALJ, or a respondent alleging that the complaint under NTSSA was frivolous or brought in bad faith who seeks an award of attorney's fees up to $1,000, must file a written petition for review with the ARB, U.S. Department of Labor (200 Constitution Avenue, NW., Washington, DC 20210), which has been delegated the authority to act for the Secretary and issue final decisions under this part. The decision of the ALJ will become the final order of the Secretary unless, pursuant to this section, a petition for review is timely filed with the ARB and the ARB accepts the petition for review. The parties should identify in their petitions for review the legal conclusions or orders to which they object, or the objections will ordinarily be deemed waived. A petition must be filed within 10 business days of the date of the decision of the ALJ. 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 ARB. Copies of the petition for review and all briefs must be served on the Assistant Secretary, and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor.

1982.110(b)

If a timely petition for review is filed pursuant to paragraph (a) of this section, the decision of the ALJ will become the final order of the Secretary unless the ARB, within 30 days of the filing of the petition, issues an order notifying the parties that the case has been accepted for review. If a case is accepted for review, the decision of the ALJ will be inoperative unless and until the ARB issues an order adopting the decision, except that a preliminary order of reinstatement will be effective while review is conducted by the ARB, unless the ARB grants a motion by the respondent to stay that order based on exceptional circumstances. The ARB will specify the terms under which any briefs are to be filed. The ARB will review the factual determinations of the ALJ under the substantial evidence standard. If no timely petition for review is filed, or the ARB denies review, the decision of the ALJ will become the final order of the Secretary. If no timely petition for review is filed, the resulting final order is not subject to judicial review.

1982.110(c)

The final decision of the ARB will be issued within 120 days of the conclusion of the hearing, which will be deemed to be 10 business days after the date of the decision of the ALJ unless a motion for reconsideration has been filed with the ALJ in the interim, in which case the conclusion of the hearing is the date the motion for reconsideration is denied or ten business days after a new decision is issued. The ARB's final decision will be served upon all parties and the Chief Administrative Law Judge by mail. The final decision also will be served on the Assistant Secretary, and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, even if the Assistant Secretary is not a party.

1982.110(d)

If the ARB concludes that the respondent has violated the law, the final order will order the respondent to take appropriate affirmative action to make the employee whole, including, where appropriate: a requirement that the respondent abate the violation; reinstatement with the same seniority status that the employee would have had but for the retaliation; back pay with interest; and compensation for any special damages sustained as a result of the retaliation, including litigation costs, expert witness fees, and reasonable attorney's fees. The order also may include payment of punitive damages up to $250,000.

1982.110(e)

If the ARB determines that the respondent has not violated the law, an order will be issued denying the complaint. If, upon the request of the respondent, the ARB determines that a complaint under NTSSA was frivolous or was brought in bad faith, the ARB may award to the respondent a reasonable attorney's fee, not exceeding $1,000.

[75 FR 53532, August 31, 2010]

1982 Subpart C - Miscellaneous Provisions

1982.111 - Withdrawal of complaints, objections, and petitions for review; settlement.

1982.111(a)

At any time prior to the filing of objections to the Assistant Secretary's findings and/or preliminary order, a complainant may withdraw his or her complaint under NTSSA or FRSA by filing a written withdrawal with the Assistant Secretary. The Assistant Secretary then will determine whether to approve the withdrawal. The Assistant Secretary will notify the respondent (or the respondent's legal counsel if respondent is represented by counsel) of the approval of any withdrawal. If the complaint is withdrawn because of settlement, the settlement must be submitted for approval in accordance with paragraph (d) of this section. A complainant may not withdraw his or her complaint after the filing of objections to the Assistant Secretary's findings and preliminary order.

1982.111(b)

The Assistant Secretary may withdraw his or her findings and/or a preliminary order at any time before the expiration of the 30-day objection period described in Sec. 1982.106, provided that no objection yet has been filed, and substitute new findings and/or a preliminary order. The date of the receipt of the substituted findings or order will begin a new 30-day objection period.

1982.111(c)

At any time before the Assistant Secretary's findings and/or order become final, a party may withdraw its objections to the Assistant Secretary's findings and/or order by filing a written withdrawal with the ALJ. If a case is on review with the ARB, a party may withdraw its petition for review of an ALJ's decision at any time before that decision becomes final by filing a written withdrawal with the ARB. The ALJ or the ARB, as the case may be, will determine whether to approve the withdrawal of the objections or the petition for review. If the ALJ approves a request to withdraw objections to the Assistant Secretary's findings and/or order, and there are no other pending objections, the Assistant Secretary's findings and/or order will become the final order of the Secretary. If the ARB approves a request to withdraw a petition for review of an ALJ decision, and there are no other pending petitions for review of that decision, the ALJ's decision will become the final order of the Secretary. If objections or a petition for review are withdrawn because of settlement, the settlement must be submitted for approval in accordance with paragraph (d) of this section.

1982.111(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 respondent agree to a settlement. The Assistant Secretary's approval of a settlement reached by the respondent and the complainant demonstrates his or her consent and achieves the consent of all three parties.

1982.111(d)(2)

Adjudicatory settlements. At any time after the filing of objections to the Assistant Secretary's findings and/or order, the case may be settled if the participating parties agree to a settlement and the settlement is approved by the ALJ if the case is before the ALJ, or by the ARB if the ARB has accepted the case for review. A copy of the settlement will be filed with the ALJ or the ARB, as the case may be.

1982.111(e)

Any settlement approved by the Assistant Secretary, the ALJ, or the ARB will constitute the final order of the Secretary and may be enforced pursuant to § 1982.113.

[75 FR 53532, August 31, 2010]

1982.112 - Judicial review.

1982.112(a)

Within 60 days after the issuance of a final order under §§ 1982.109 and 1982.110, 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.

1982.112(b)

A final order of the ARB is not subject to judicial review in any criminal or other civil proceeding.

1982.112(c)

If a timely petition for review is filed, the record of a case, including the record of proceedings before the ALJ, will be transmitted by the ARB to the appropriate court pursuant to the Federal Rules of Appellate Procedure and the local rules of the court.

[75 FR 53533, August 31, 2010]

1982.113 - Judicial enforcement.

Whenever any person has failed to comply with a preliminary order of reinstatement, or a final order, including one approving a settlement agreement, issued under NTSSA, 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. Whenever a person has failed to comply with a preliminary order of reinstatement, or a final order, including one approving a settlement agreement, issued under FRSA, the Secretary may file a civil action seeking enforcement of the order in the United States district court for the district in which the violation was found to have occurred. In such civil actions under NTSSA and FRSA, the district court will have jurisdiction to grant all appropriate relief, including, but not limited to, injunctive relief and compensatory damages, including:

(1) Reinstatement with the same seniority status that the employee would have had, but for the retaliation;

(2) The amount of back pay, with interest; and

(3) Compensation for any special damages sustained as a result of the retaliation, including litigation costs, expert witness fees, and reasonable attorney's fees.

[75 FR 53533, August 31, 2010]

1982.114 - District Court jurisdiction of retaliation complaints.

1982.114(a)

If there is no final order of the Secretary, 210 days have passed since the filing of the complaint, and there is no showing that there has been delay due to the bad faith of the complainant, the complainant may bring an action at law or equity for de novo review in the appropriate district court of the United States, which will have jurisdiction over such an action without regard to the amount in controversy.

1982.114(b)

Fifteen days in advance of filing a complaint in Federal court, a complainant must file with the Assistant Secretary, the ALJ, or the ARB, depending upon where the proceeding is pending, a notice of his or her intention to file such complaint. The notice must be served on all parties to the proceeding. A copy of the notice must be served on the Regional Administrator, the Assistant Secretary, Occupational Safety and Health Administration, and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor. The complainant shall file and serve a copy of the district court complaint on the above as soon as possible after the district court complaint has been filed with the court.

[75 FR 53533, August 31, 2010]

1982.115 - Special circumstances; waiver of rules.

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

[75 FR 53533, August 31, 2010]

AUTHORITY: Sec. 3(f), Privacy Act of 1974 (5 U.S.C. 552a(f), 88

Stat. 1896, 1900), and 5 U.S.C. 553.

SOURCE: 44 FR 3968, Jan. 19, 1979, unless otherwise noted.

2400.1 - Purpose and scope.

The purpose of the provisions of this part is to provide procedures to implement the Privacy Act of 1974 (5 U.S.C. 552a). The following provisions are applicable only to such items of information as relate to the agency or are within its custody. The Commission's custody encompasses all information which is kept by an agent by contract with the agency. They are not applicable to the rights of parties appearing in adversary proceedings before the Commission to obtain discovery from an adverse party. Such matters are governed by the Commission's Rules of Procedure which are published at 29 CFR 2200.1 et seq. This part is intended to protect individual privacy, and affects all personal information collection and usage activity of the agency.

2400.2 - Description of agency.

The Occupational Safety and Health Review Commission (OSHRC) adjudicates contested enforcement actions under the Occupational Safety and Health Act of 1970 (29 U.S.C. 651-677). Decisions of the Commission on such actions are issued only after the parties to the case are afforded an opportunity for a hearing in accordance with section 554 of title 5, United States Code. All such hearings are conducted by an OSHRC Administrative Law Judge at a place convenient to the parties and are open to the public. Each Commission member has the authority to direct that a decision of a Judge be reviewed by the full Commission before becoming a final order.

2400.3 - Delegation of authority.

2400.3(a)

The Executive Director shall insure agency-wide compliance with this policy.

2400.3(b)

Custodians are responsible for adherence to this part within their respective units and in particular for their collection, use and disclosure of personal information, and for affording individuals the right to inspect, obtain copies of and correct records concerning them. They are responsible for reporting the existence of personal records systems, changes to the contents of those systems and changes of routine use to the Executive Director, and also for establishing the relevancy of information within those systems.

2400.4 - Collection and disclosure of personal information.

2400.4(a)

The following rules govern the collection of personal information throughout OSHRC operations:

2400.4(a)(1)

The OSHRC shall:

2400.4(a)(1)(i)

Solicit, collect and maintain only such personal information as is relevant and necessary to accomplish a purpose required by statute or executive order.

2400.4(a)(1)(ii)

Collect information, to the greatest extent practicable, directly from the subject individual when such information may result in adverse determinations about an individual's right, benefits or privileges.

2400.4(a)(1)(iii)

Inform any individual requested to disclose personal information whether that disclosure is mandatory or voluntary, by what authority it is solicited, the principal purposes for which it is intended to be used, the routine uses which may be made of it, and any penalties or consequences known to the OSHRC which shall result to the individual from such non-disclosure.

2400.4(a)(2)

OSHRC shall not discriminate against any individual who fails to provide personal information unless that information is required or necessary for the conduct of the system or program in which the individual desires to participate. See Sec. 2400.4(a)(1)(i).

2400.4(a)(3)

No information shall be collected or maintained which describes how individuals exercise rights guaranteed by the First Amendment unless the Commission specifically determines that such information is relevant and necessary to carry out a statutory purpose of the OSHRC, and the collection is expressly authorized by statute or by the individual about whom the record is maintained.

2400.4(a)(4)

OSHRC shall not require disclosure of any individual's Social Security account number or deny a right, privilege or benefit because of the individual's refusal to disclose the number unless disclosure is required by Federal law.

2400.4(b)

"Disclosures."

2400.4(b)(1)

Limitations. OSHRC shall not disseminate personal information unless reasonable efforts have been made to assure that the information is accurate, complete, timely and relevant and

2400.4(b)(1)(i)

The individual to whom the record pertains has requested in writing that the information be disseminated, or

2400.4(b)(1)(ii)

It has obtained the prior written consent of the individual to whom the record pertains, or

2400.4(b)(1)(iii)

The dissemination is in accordance with paragraph (b)(2) of this section.

2400.4(b)(2)

Dissemination of personal information may be made:

2400.4(b)(2)(i)

To a person pursuant to a requirement of the Freedom of Information Act (5 U.S.C. 552);

2400.4(b)(2)(ii)

To those officers and employees of OSHRC who have a need for such information in the performance of their duties;

2400.4(b)(2)(iii)

For a routine use as contained in the system notices published in the FEDERAL REGISTER;

2400.4(b)(2)(iv)

To a recipient who has provided adequate advance written assurance that the information shall be used solely as a statistical reporting or research record, and to whom the information is transferred in a form that is not individually identifiable;

2400.4(b)(2)(v)

To the Bureau of the Census for purposes of planning or carrying out a census or survey or related activity pursuant to the provisions of title 13 U.S. Code;

2400.4(b)(2)(vi)

To the National Archives of the United States as a record which has sufficient historical or other value to warrant its continued preservation by the United States Government, or for evaluation by the Administrator of General Services or his designee to determine whether the record has such value;

2400.4(b)(2)(vii)

To a person pursuant to a showing of compelling circumstances affecting the health or safety of an individual, if upon such disclosure notification is transmitted to the last known address of such individual;

2400.4(b)(2)(viii)

To a Federal agency or an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity, if such activity is authorized by law and if the head of the agency or instrumentality has made a written request to the OSHRC specifying the particular portion of the record desired and the law enforcement activity for which the record is sought;

2400.4(b)(2)(ix)

To either House of Congress or its committees or subcommittees to the extent of matter within their jurisdiction;

2400.4(b)(2)(x)

To the Comptroller General or any of his authorized representatives in the course of the performance of the duties of the General Accounting Office;

2400.4(b)(2)(xi)

Pursuant to the order of a court of competent jurisdiction;

2400.4(b)(2)(xii)

To a congressional office from the record of an individual in response to an inquiry from the congressional office made at the written request of that individual. The consent implied from such a written request applies only to congressional inquiries.

2400.4(b)(3)

Employee credit references. The Personal Office shall verify the following information provided by an employee to a credit bureau or commercial firm from which an employee is seeking credit: length of service, job title, grade, salary, tenure of employment, and Civil service status.

2400.4(b)(4)

Employee job references. Prospective employers of an OSHRC employee or a former OSHRC employee may be furnished the information in Sec. 2400.4(b)(3) above, in addition to the date and reason for separation if applicable, upon the request of the employee or former employee.

2400.4(c)

"Correction disclosure." Any person or other agency to which a personal record has been or is to be disclosed shall be informed of any corrections or be provide copies of statements of dispute, and notifications specifying the portions of the record relating thereto affecting the accuracy, timeliness or relevance of that personal record.

2400.4(d)

"Record of disclosure."

2400.4(d)(1)

An accurate accounting of each disclosure shall be kept in all instances except those in which disclosure is made to OSHRC employees in the performance of their duties or is required by the Freedom of Information Act (5 U.S.C. 552), in conformance with Section 552a(c) of the Privacy Act.

2400.4(d)(2)

The accounting shall be maintained for at least five (5) years or the life of the record, whichever is longer.

2400.4(d)(3)

The accounting shall be made available to the individual named in the record upon inquiry, except for disclosures made pursuant to provision paragraph (b)(2)(viii) of this section relating to law enforcement activities.

2400.5 - Notification.

2400.5(a)

"Notification of systems." The following procedures permit individuals to determine the types of personal records systems maintained by OSHRC.

2400.5(a)(1)

Upon written request, OSHRC shall notify any individual whether a specific system named by him contains a record pertaining to him. See Sec. 2400.6 for suggested form of request.

2400.5(a)(2)

OSHRC shall publish annually in the FEDERAL REGISTER a notice of existence and character of all personal systems of records. This notice shall contain the following information:

2400.5(a)(2)(i)

Name and location of the system,

2400.5(a)(2)(ii)

Nature and purposes of the system,

2400.5(a)(2)(iii)

Categories of individuals on whom records are maintained and categories of records generally maintained in the system.

2400.5(a)(2)(iv)

Confidentiality requirements and the extent to which access controls apply to such information,

..2400.5(a)(2)(v)

2400.5(a)(2)(v)

OSHRC policies and standards regarding the safeguarding and disclosure of information, retrievability of information, information storage, duration of retention of information, and disposal of such information from the system,

2400.5(a)(2)(vi)

Each routine use made by OSHRC of the personal information contained in the system, including the categories of users and the purpose of the use,

2400.5(a)(2)(vii)

Title and official address of the custodian,

2400.5(a)(2)(viii)

Procedures by which an individual can be informed if a system contains personal information pertaining to himself, gain access to such information, and contest the content, accuracy, completeness, timeliness, relevance and necessity for retention of the information,

2400.5(a)(2)(ix)

Categories of sources of such personal information,

2400.5(a)(2)(x)

System status -- either developmental or operational.

2400.5(b)

"Notification of disclosure." OSHRC shall make reasonable efforts to serve notice on an individual before any personal information is made available to any person under compulsory legal process when such process becomes a matter of public record.

(Also see Sec. 2400.4(b)(1)(ii) and (2)(vii).)

2400.5(c)

"Notification of amendment." (See Sec. 2400.7 relating to amendment of records upon request.)

2400.5(d)

"Notification of new use." Any new or revised use of personal information maintained by OSHRC shall be published in the FEDERAL REGISTER thirty (30) days before such use becomes operational. Public views may then be submitted to the Executive Director.

2400.5(e)

"Notification of exemptions." OSHRC shall publish in the FEDERAL REGISTER its intent to exempt any system of records and shall specify the nature and purpose of that system.

2400.6 - Procedures for requesting records.

The purpose of this section is to provide procedures by which an individual may have access to personal information within a comprehensive format.

2400.6(a)

"Submission of requests for access" --

2400.6(a)(1)

"Manner." An individual seeking information regarding the contents of records systems or access to records should present a written request to that effect either in person or by mail to the Executive Director, OSHRC, One Lafayette Centre, 1120-20th Street NW., 9th Floor, Washington, DC 20036-3419. Access to OSHRC records maintained in National Archives and Records Service Centers may be obtained in accordance with the regulations issued by the General Services Administration.

2400.6(a)(2)

"Specification of records sought." Requests for access to records shall describe the nature of the record sought, the approximate dates covered by the record, and the system in which the record is thought to be included as described in the "Notification" for that system as published in the FEDERAL REGISTER. The requester should also indicate whether he wishes to review the record in person or obtain a copy by mail. If the information supplied is insufficient to locate or identify the record, the requester shall be notified promptly and, if necessary, informed of additional information required. Upon request, OSHRC also shall disclose to the individual an accounting of any disclosures made from the individual's record.

2400.6(a)(3)

"Period for response." Upon receipt of an inquiry the Executive Director shall respond promptly to the request and no later than 10 days from receipt of such inquiry.

2400.6(b)

"Verification of identity." The following standards are applicable to any individual who requests records concerning himself.

2400.6(b)(1)

An individual seeking access to records about himself in person may establish his identity by the presentation of a single document bearing a photograph (such as a passport, employee identification card, or valid driver's license) or by the presentation of two items of identification which do not bear a photograph but do bear both a name and address (such as a valid driver's license, or credit card).

2400.6(b)(2)

An individual seeking access to records about himself by mail shall establish his identity by a signature, address, date of birth, place of birth, employee identification number, if any, and one other identifier such as a photocopy of an identifying document.

2400.6(b)(3)

An individual seeking access to records about himself by mail or in person who cannot provide the necessary documentation of identification may provide a notarized statement swearing or affirming to his identity and to the fact that he understands the penalties for false statements pursuant to 18 U.S.C. 1001. Forms for such notarized statements may be obtained on request from the Executive Director.

..2400.6(c)

2400.6(c)

"Verification of guardianship." The parent or guardian of a minor or a person judicially determined to be incompetent and seeking to act on behalf of such minor or incompetent shall, in addition to establishing his own identity, establish the identity of the minor or other person he represents as required in paragraph (b) of this section and establish his own parentage or guardianship of the subject of the record by furnishing either a copy of a birth certificate showing parentage or a court order establishing the guardianship.

2400.6(d)

"Accompanying persons." An individual seeking to review records about himself may be accompanied by another individual of his own choosing. Both the individual seeking access and the individual accompanying him shall be required to sign the required form indicating that OSHRC is authorized to discuss the contents of the subject record in the presence of both individuals.

2400.6(e)

"Special rules for medical records." Medical records shall be disclosed to the requester to whom they pertain unless the Executive Director, in consultation with a medical doctor named by the requesting individual, determines that access to such record could have an adverse effect upon such individual. In such a case, the Executive Director shall transmit such information to the named medical doctor.

2400.6(f)

"When compliance is possible."

2400.6(f)(1)

The Executive Director shall inform the requester of the determination to grant the request and shall make the record available to the individual in the manner requested, that is, either by forwarding a copy of the information to him or by making it available for review, unless:

..2400.6(f)(1)(i)

2400.6(f)(1)(i)

It is impracticable to provide the requester with a copy of a record, in which case the requester shall be so notified, and, in addition, be informed of the procedures set forth in paragraph (b)(2) of this section, or

2400.6(f)(1)(ii)

the responsible official has reason to believe that the cost of a copy of a record is considerably more expensive than anticipated by the requester, in which case he shall notify the requester of the estimated cost, and ascertain whether the requester still wishes to be provided with a copy of the information.

2400.6(f)(2)

Where a record is to be reviewed by the requester in person, the disclosure officer shall inform the requester in writing of:

2400.6(f)(2)(i)

The date on which the record shall become available for review, the location at which it may be reviewed, and the hours for inspection;

2400.6(f)(2)(ii)

the type of identification that shall be required in order for him to review the record;

2400.6(f)(2)(iii)

such person's right to have a person of his own choosing accompany him to review the record; and

2400.6(f)(2)(iv)

such person's right to have a person other than himself review the record.

..2400.6(f)(3)

2400.6(f)(3)

If the requester seeks to inspect the record without receiving a copy, he shall not leave OSHRC premises with the record and shall sign a statement indicating he has reviewed a specific record or category of record.

2400.6(g)

Response when compliance is not possible. A reply denying a written request to review a record shall be in writing signed by the Executive Director or other appropriate official and shall be made only if such a record does not exist or does not contain personal information relating to the requester, or is exempt. This reply shall include a statement regarding the determining factors of denial, and the right to obtain judicial review in a district court of the United States.

[44 FR 3968, Jan. 19, 1979, as amended at 58 FR 26066, Apr. 30, 1993]

2400.7 - Procedures for requesting amendment.

2400.7(a)

"Submission of requests for amendment." Upon review of an individual's personal record, that individual may submit a request to amend such record. This request shall be submitted in writing to the Executive Director and shall include a statement of the amendment requested and the reasons therefore, e.g., relevance, accuracy, timeliness or completeness of the record.

2400.7(b)

"Action to be taken by the Executive Director." Upon receiving an amendment request, he or she shall promptly:

2400.7(b)(1)

Acknowledge in writing within ten (10) working days the receipt of the request.

2400.7(b)(2)

Make such inquiry as is necessary to determine whether the amendment is appropriate, and

2400.7(b)(3)

Correct or eliminate any information that is found to be incomplete, inaccurate, not relevant to a statutory purpose of OSHRC, or not timely and notify the requester when this action is complete, or

..2400.7(b)(4)

2400.7(b)(4)

Notify the requester of a determination not to amend and of the individual's right to appeal not later than thirty (30) working days after receipt of a request to amend.

2400.7(c)

"Appeal procedure."

2400.7(c)(1)

If a request to inspect, copy or amend a record is denied, in whole or in part, or if no determination is made within the period prescribed by this part, the requester may appeal to the Chairman, OSHRC, One Lafayette Centre, 1120-20th Street NW., 9th Floor, Washington, DC 20036-3419.

2400.7(c)(2)

The requester shall submit his appeal in writing within thirty (30) days of the date of denial, or within ninety (90) days of such request if the appeal is from a failure of the Executive Director to make a determination. The letter of appeal should include, as applicable:

2400.7(c)(2)(i)

Reasonable identification of the record to which access was sought or the amendment of which was requested.

2400.7(c)(2)(ii)

A statement of the OSHRC action or failure to act being appealed and the relief sought

2400.7(c)(2)(iii)

A copy of the request, the notification of denial and of any other related correspondence.

2400.7(c)(3)

The Chairman shall make his final determination not later than thirty (30) days from the date of the request, unless he extends the time for good cause to be shown by him but not to exceed ninety (90) days from the date of the request. Any record found on appeal to be not complete, accurate, relevant, or timely, shall within thirty (30) working days of the date of such findings be appropriately amended.

2400.7(c)(4)

The decision of the Chairman constitutes the final decision of OSHRC on the right of the requester to inspect, copy, change or update a record. The decision on the appeal shall be in writing and, in the event of a denial, shall set forth the reasons for such denial and state the individual's right to obtain judicial review in a district court. An indexed file of the agency decisions on appeal shall be maintained by the Executive Director.

2400.7(d)

"Submission of statement of disagreement." If the final decision does not satisfy the requester, any statement of reasonable length, provided by the individual, setting forth a position regarding the disputed information, shall be accepted and included in the relevant personal record.

2400.7(e)

"Availability of assistance in exercising rights." The Executive Director is available to provide an individual with assistance in exercising rights pursuant to this part.

[44 FR 3968, Jan. 19, 1979, as amended at 58 FR 26066, Apr. 30, 1993]

2400.8 - Schedule of fees.

2400.8(a)

"Policy." The purpose of this section is to establish fair and equitable fees to permit reproduction of records for concerned individuals.

2400.8(b)

"Reproduction."

2400.8(b)(1)

For reproducing any paper or micrographic record or publication, the fee is $.10 per page. No charge shall be made if the total fee authorized by this part in compliance with a request or series of related requests is less than $3.00.

2400.8(b)(2)

OSHRC shall not normally furnish more than one copy of any record.

2400.8(c)

"Limitations." No fee shall be charged to any individual for the process of retrieving, or amending records.

2400.9 - Exemptions.

2400.9(a)

Subsections 552a (j) and (k) of title 5, United States Code, empower the Chairman to exempt systems of records meeting certain criteria from various other subsections of section 552a. With respect to systems of records so exempted, nothing in this part shall require compliance with any provisions hereof implementing any subsections of section 552a from which those systems may properly be and have been exempted.