The request is signed by the Complainant, Steven J. Greenwald, and the attorneys for both the Complainant and the Respondent. The submission is treated as a request by the Complainant that his objections to the Findings and Order of the Area Director be withdrawn as authorized by 29 C.F.R. § 1979.111(c).

   The Sarbanes-Oxley Act of 2002 was passed on July 30, 2002. Proposed regulations for the implementation of the Act have only recently been sent to the Office of Management and Budget for approval and final issuance. The legislative history of the Sarbanes-Oxley Act provides that it is to be governed by the same procedures and burdens of proof now applicable to whistleblower cases in the aviation industry. 148 Cong. Rec. H2673 (July 26, 2002) page S7420. That reference was to the Wendell H. Ford Aviation Investment and Reform Act for the Twenty-First Century (hereinafter AIR21). Final rule regulations governing that Act were issued on March 21, 2003 and I find those regulations to be applicable to this Sarbanes-Oxley matter. See 29 C.F.R. Part 1979. The AIR21 regulations provide procedural guidelines but also incorporate by reference the procedural rules of this office outlined at 29 C.F.R. Part 18.

    The AIR21 regulations provide instruction as to the procedure to be followed where a Complainant requests withdrawal of his complaint and his objections to the Acting Director's Findings. That provision reads as follows:

At any time before the findings or order become final, a party may withdraw his or her objections to the withdrawal with the administrative law judge or, if the case is on review, with the Board. The judge or the Board, as the case may be, will determine whether the withdrawal will be approved. If the objections are withdrawn because of settlement, the settlement shall be approved in accordance with paragraph (d) of this section.

Twenty-Nine C.F.R. § 1911(c). Since no final disposition has been made of the complaint in this matter, the request for withdrawal is timely. The Summary of Regulations and Rule-Making Proceedings which accompanied the final rule for the AIR21 regulations provide that the provisions of § 1979.111 as interpreted by the Occupational Safety and Health Administration permit a Complainant to freely withdraw his or her complaint without prejudice. Federal Register/Vol. 68, No. 55/March 21, 2003 pg. 14111.)

   The AIR21 regulatory provision dealing with the withdrawal of complaints was essentially patterned after and parallels closely the language of a similar provision appearing in the regulations supporting the Surface Transportation Assistance Act. See 29 C.F.R. § 1978.111(c).

   Little guidance exists from the Administrative Review Board concerning the method for approval of a Complainant withdrawal request under the AIR21 statute. However, interpretative authority does exist under the Surface Transportation Assistance Act. Twenty-nine C.F.R. § 1978.111(c) permits a party to withdraw objections to the Secretary's Preliminary Findings or Preliminary Order at any time before the Findings or Order become final. Creech v. Salem Carriers, Inc., 88-STA-29(Sec'y Sept. 27, 1988). Fed. R. Civ. P. 41(a)(1) is not applicable since it permits a dismissal without prejudice only at a time before an Answer to the Complaint has been filed. In this case, the Secretary's Findings were issued on November 26, 2002 and the Complainant filed his objections and requested a hearing by letter dated and mailed December 23, 2002. The objections coupled with his request for hearing constitute an Answer and therefore render Rule 41 inapplicable. Sharp v. James Helwig & Son, Inc., 90-STA-30 (Sec'y Jan. 18, 1991). I will treat the Complainant's Request for Withdrawal of Appeal as constituting a withdrawal of his objections to the Secretary's Findings. Snow v. TTNT Red Star Express, Inc., 91-STA-44 (Sec'y March 13, 1992).

   In view of the above, IT IS RECOMMENDED that the Complainant's Request for Withdrawal of Appeal be GRANTED pursuant to authority conferred by 29 C.F.R. § 1979.111(c), §1978.111(c) and the written statement signed by Complainant and counsel for both parties. It is also RECOMMENDED that the Request be GRANTED without costs or attorney fees to either party and that the matter be dismissed without prejudice. Accordingly, the November 26, 2002 Findings of the Area Director, Occupational Safety and Health Administration, should be affirmed and reinstated.

   In view of this recommendation, the hearing scheduled for April 22, 2003 is hereby cancelled.

       Rudolf L. Jansen
       Administrative Law Judge

Notice: Review of this Recommended Decision and Order is by the Administrative Review Board pursuant to ¶¶ 4.c.(43) of Secretary's Order 1-2002, 67 Fed. Reg. 64272 (Oct. 17, 2002). Regulations, however, have not yet been promulgated by the Department of Labor detailing the process for review by the Administrative Review Board of decisions by Administrative Law Judges under the employee protection provision of the Sarbanes-Oxley Act. Accordingly, this Recommended Decision and Order and the administrative file in this matter will be forwarded for review by the Administrative Review Board, U.S. Department of Labor, Room S-4309, 200 Constitution Ave, NW, Washington DC 20210. See generally 5 U.S.C. §§ 557(b).