requirements are also exempt from the Regulatory Flexibility Act (RFA).
See SBA Office of Advocacy, A Guide for Government Agencies: How to
Comply with the Regulatory Flexibility Act, at 9; also found at https://www.sba.gov/advocacy/guide-government-agencies-how-comply-regulatory-flexibility-act. This is a rule of agency procedure, practice, and
interpretation within the meaning of 5 U.S.C. 553; and therefore the
rule is exempt from both the notice and comment rulemaking procedures
of the APA and the requirements under the RFA.
    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 1982

    Administrative practice and procedure, Employment, Homeland
security, Investigations, Mass transportation, Reporting and
recordkeeping requirements, Public transportation, Railroads, Safety,
Transportation, Whistleblowing.

Authority and Signature

    This document was prepared under the direction and control of David
Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational
Safety and Health.

    Signed at Washington, DC, on October 28, 2015.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.

    Accordingly, for the reasons set out in the preamble, 29 CFR part
1982 is revised to read as follows:

PART 1982--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS
UNDER THE NATIONAL TRANSIT SYSTEMS SECURITY ACT AND THE FEDERAL
RAILROAD SAFETY ACT

Subpart A--Complaints, Investigations, Findings and Preliminary Orders
Sec.
1982.100 Purpose and scope.
1982.101 Definitions.
1982.102 Obligations and prohibited acts.
1982.103 Filing of retaliation complaints.
1982.104 Investigation.
1982.105 Issuance of findings and preliminary orders.
Subpart B--Litigation
1982.106 Objections to the findings and the preliminary order and
requests for a hearing.
1982.107 Hearings.
1982.108 Role of Federal agencies.
1982.109 Decision and orders of the administrative law judge.
1982.110 Decision and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
1982.111 Withdrawal of complaints, findings, objections, and
petitions for review; settlement.
1982.112 Judicial review.
1982.113 Judicial enforcement.
1982.114 District court jurisdiction of retaliation complaints.
1982.115 Special circumstances; waiver of rules.

    Authority:  6 U.S.C. 1142 and 49 U.S.C. 20109; Secretary of
Labor's Order 01-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012);
Secretary of Labor's Order No. 2-2012 (Oct. 19, 2012), 77 FR 69378
(Nov. 16, 2012).

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

Sec.  1982.100  Purpose and scope.

    (a) This part implements procedures of the National Transit Systems
Security Act (NTSSA), 6 U.S.C. 1142, and the Federal Railroad Safety
Act (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 or
security (or, in circumstances covered by the statute, 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
statute, 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. It also protects an employee against delay, denial or
interference with first aid or medical treatment for a workplace
injury.
    (b) This part establishes procedures under NTSSA and FRSA for the
expeditious handling of retaliation complaints filed by employees, or
by persons acting on their behalf, and sets forth the Secretary's
interpretations of NTSSA and FRSA on certain statutory issues. These
rules, together with those codified at 29 CFR part 18, set forth the
procedures under NTSSA or FRSA for submission of complaints,
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.  1982.101  Definitions.

    As used in this part:
    (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.
    (b) Business days means days other than Saturdays, Sundays, and
Federal holidays.
    (c) Complainant means the employee who filed a NTSSA or FRSA
complaint or on whose behalf a complaint was filed.
    (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.
    (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.
    (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.
    (g) OSHA means the Occupational Safety and Health Administration of
the United States Department of Labor.
    (h) Public transportation means regular, continuing shared-ride
surface transportation services that are open to the general public or
open to a segment of the general public defined by age, disability, or
low income; and does not include: Intercity passenger rail
transportation provided by the entity described in chapter 243 (or a
successor to such entity); intercity bus service; charter bus service;
school bus service; sightseeing service; courtesy shuttle service for
patrons of one or more specific establishments; or intra-terminal or
intra-facility shuttle services.
    (i) Public transportation agency means a publicly owned operator of
public transportation eligible to receive federal assistance under 49
U.S.C. chapter 53.
    (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.
    (k) Railroad carrier means a person providing railroad
transportation, except that, upon petition by a group of commonly
controlled railroad carriers that the Secretary of Transportation
determines is operating within the United States as a single,
integrated rail system, the Secretary of Transportation may by order
treat the group of railroad carriers as a single railroad carrier for

purposes of one or more provisions of part A, subtitle V of title 49
and implementing regulations and order, subject to any appropriate
conditions that the Secretary of Transportation may impose.
    (l) Respondent means the person alleged to have violated NTSSA or
FRSA.
    (m) Secretary means the Secretary of Labor or person to whom
authority under NTSSA or FRSA has been delegated.
    (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.

Sec.  1982.102  Obligations and prohibited acts.

    (a) National Transit Systems Security Act. (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 retaliate against, including
but not limited to intimidating, threatening, restraining, coercing,
blacklisting, or disciplining, an employee if such retaliation 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--
    (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--
    (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));
    (B) Any Member of Congress, any Committee of Congress, or the
Government Accountability Office; or
    (C) A person with supervisory authority over the employee or such
other person who has the authority to investigate, discover, or
terminate the misconduct;
    (ii) To refuse to violate or assist in the violation of any Federal
law, rule, or regulation relating to public transportation safety or
security;
    (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;
    (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
    (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.
    (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 retaliate
against, including but not limited to intimidating, threatening,
restraining, coercing, blacklisting, or disciplining, an employee for--
    (A) Reporting a hazardous safety or security condition;
    (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
    (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.
    (ii) A refusal is protected under paragraph (a)(2)(i)(B) and (C) of
this section if--
    (A) The refusal is made in good faith and no reasonable alternative
to the refusal is available to the employee;
    (B) A reasonable individual in the circumstances then confronting
the employee would conclude that--
    (1) The hazardous condition presents an imminent danger of death or
serious injury; and
    (2) The urgency of the situation does not allow sufficient time to
eliminate the danger without such refusal; and
    (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.
    (iii) In this paragraph (a)(2), only paragraph (a)(2)(i)(A) shall
apply to security personnel, including transit police, employed or
utilized by a public transportation agency to protect riders,
equipment, assets, or facilities.
    (b) Federal Railroad Safety Act. (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 retaliate against, including but not limited to intimidating,
threatening, restraining, coercing, blacklisting, or disciplining, an
employee if such retaliation 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--
    (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--
    (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.; Public Law 95-452));
    (B) Any Member of Congress, any committee of Congress, or the
Government Accountability Office; or
    (C) A person with supervisory authority over the employee or such
other person who has the authority to investigate, discover, or
terminate the misconduct;
    (ii) To refuse to violate or assist in the violation of any Federal
law, rule, or regulation relating to railroad safety or security;
    (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;
    (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;
    (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;
    (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
    (vii) To accurately report hours on duty pursuant to 49 U.S.C.
chapter 211.
    (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
retaliate against, including but not limited to intimidating,
threatening, restraining, coercing, blacklisting, or disciplining, an
employee for--
    (A) Reporting, in good faith, a hazardous safety or security
condition;
    (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
    (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.
    (ii) A refusal is protected under paragraph (b)(2)(i)(B) and (C) of
this section if--
    (A) The refusal is made in good faith and no reasonable alternative
to the refusal is available to the employee;
    (B) A reasonable individual in the circumstances then confronting
the employee would conclude that--
    (1) The hazardous condition presents an imminent danger of death or
serious injury; and
    (2) The urgency of the situation does not allow sufficient time to
eliminate the danger without such refusal; and
    (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.
    (iii) In this paragraph (b)(2), only paragraph (b)(2)(i)(A) shall
apply to security personnel employed by a railroad carrier to protect
individuals and property transported by railroad.
    (3) A railroad carrier or person covered under this section may
not:
    (i) Deny, delay, or interfere with the medical or first aid
treatment of an employee who is injured during the course of
employment. If transportation to a hospital is requested by an employee
injured during the course of employment, the railroad shall promptly
arrange to have the injured employee transported to the nearest
hospital where the employee can receive safe and appropriate medical
care.
    (ii) 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--
    (A) 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.
    (B) 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.

Sec.  1982.103  Filing of retaliation complaints.

    (a) Who may file. 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.
    (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 the complainant is unable to file the
complaint in English, OSHA will accept the complaint in any language.
    (c) Place of filing. The complaint should be filed with the OSHA
office responsible for enforcement activities in the geographical area
where the employee resides or was employed, but may be filed with any
OSHA officer or employee. Addresses and telephone numbers for these
officials are set forth in local directories and at the following
Internet address: http://www.osha.gov.
    (d) Time for Filing. Within 180 days after an alleged violation of
NTSSA or FRSA occurs, any 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,
electronic communication transmittal, 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.
For example, OSHA may consider the time for filing a complaint
equitably tolled if a complainant mistakenly files a complaint with
another agency instead of OSHA within 180 days after becoming aware of
the alleged violation.

Sec.  1982.104  Investigation.

    (a) Upon receipt of a complaint in the investigating office, OSHA
will notify the respondent of the filing of the complaint, of the
allegations contained in the complaint, and of the substance of the
evidence supporting the complaint. Such materials will be redacted, if
necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and
other applicable confidentiality laws. OSHA will also notify the
respondent of its rights under paragraphs (b) and (f) of this section
and Sec.  1982.110(e). OSHA will provide an unredacted copy of these
same materials to the complainant (or 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.
    (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 OSHA a written statement and any affidavits or documents
substantiating its position. Within the same 20 days, the respondent
may request a meeting with OSHA to present its position.
    (c) During the investigation, OSHA will request that each party
provide the other parties to the whistleblower complaint with a copy of
submissions to OSHA that are pertinent to the whistleblower complaint.
Alternatively, if a party does not provide its submissions to OSHA to
the other party, OSHA will provide them to the other party (or the
party's legal counsel if the party is represented by counsel) at a time
permitting the other party an opportunity to respond. Before providing
such materials to the other party, OSHA will redact them, if

necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and
other applicable confidentiality laws. OSHA will also provide each
party with an opportunity to respond to the other party's submissions.
    (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 this title.
    (e)(1) A complaint 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.
    (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:
    (i) The employee engaged in a protected activity (or, in
circumstances covered by NTSSA and FRSA, was perceived to have engaged
or to be about to engage in protected activity);
    (ii) The respondent knew or suspected that the employee engaged in
the protected activity (or, in circumstances covered by NTSSA and FRSA,
perceived the employee to have engaged or to be about to engage in
protected activity);
    (iii) The employee suffered an adverse action; and
    (iv) The circumstances were sufficient to raise the inference that
the protected activity (or perception thereof) was a contributing
factor in the adverse action.
    (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
NTSSA and FRSA, 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, or
at the first opportunity available to the respondent, 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.
    (4) Notwithstanding a finding that a complainant has made a prima
facie showing, as required by this section, further investigation of
the complaint will not be conducted if the respondent demonstrates by
clear and convincing evidence that it would have taken the same adverse
action in the absence of the complainant's protected activity.
    (5) If the respondent fails to make a timely response or fails to
satisfy the burden set forth in the prior paragraph, OSHA 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.
    (f) Prior to the issuance of findings and a preliminary order as
provided for in Sec.  1982.105, if OSHA 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, OSHA will 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 complainant will also receive a copy of the materials that must be
provided to the respondent under this paragraph. Before providing such
materials, OSHA will redact them, if necessary, consistent with the
Privacy Act of 1974, 5 U.S.C. 552a, and other applicable
confidentiality laws. 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 must present this evidence
within 10 business days of OSHA's notification pursuant to this
paragraph, or as soon afterwards as OSHA and the respondent can agree,
if the interests of justice so require.

Sec.  1982.105  Issuance of findings and preliminary orders.

    (a) After considering all the relevant information collected during
the investigation, the Assistant Secretary will issue, within 60 days
of filing of the complaint, written findings as to whether or not there
is reasonable cause to believe that the respondent has retaliated
against the complainant in violation of NTSSA or FRSA.
    (1) If the Assistant Secretary concludes that there is reasonable
cause to believe that a violation has occurred, the Assistant Secretary
will accompany the findings with a preliminary order providing relief
to the complainant. The preliminary order will include, where
appropriate: Affirmative action to abate the violation; reinstatement
with the same seniority status that the employee would have had, but
for the retaliation; any back pay with interest; and payment of
compensatory damages, including compensation for any special damages
sustained as a result of the retaliation, including litigation costs,
expert witness fees, and reasonable attorney fees. Interest on back pay
will be calculated using the interest rate applicable to underpayment
of taxes under 26 U.S.C. 6621 and will be compounded daily. The
preliminary order will also require the respondent to submit
documentation to the Social Security Administration or the Railroad
Retirement Board, as appropriate, allocating any back pay award to the
appropriate months or calendar quarters. The preliminary order may also
require the respondent to pay punitive damages up to $250,000.
    (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, where appropriate, 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 award of attorney 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. The findings and, where appropriate,
the preliminary order also will give the address of the Chief
Administrative Law Judge, U.S. Department of Labor. At the same time,
the Assistant Secretary will file with the Chief Administrative Law
Judge a copy of the original complaint and a copy of the findings and/
or order.
    (c) The findings and any 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
Sec.  1982.106. However, the portion of any preliminary order requiring
reinstatement will be effective immediately upon the respondent's
receipt of the findings and of the preliminary order, regardless of any
objections to the findings and/or the order.

Subpart B--Litigation

Sec.  1982.106  Objections to the findings and the preliminary order
and requests for a hearing.

    (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 fees 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 Sec.  1982.105. The objections,
request for a hearing, and/or request for attorney fees must be in
writing and state whether the objections are to the findings, the
preliminary order, and/or whether there should be an award of attorney
fees. The date of the postmark, facsimile transmittal, or electronic
communication transmittal is considered 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, 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.
    (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 Law
Judges for a stay of the Assistant Secretary's preliminary order of
reinstatement, which shall be granted only based on exceptional
circumstances. If no timely objection is filed with respect to either
the findings and/or the preliminary order, the findings or preliminary
order will become the final decision of the Secretary, not subject to
judicial review.

Sec.  1982.107  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 of part 18 of this title.
    (b) Upon receipt of an objection and request for hearing, the Chief
Administrative Law Judge will promptly assign the case to an ALJ 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 respondent 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 ALJ may exclude evidence that is immaterial,
irrelevant, or unduly repetitious.

Sec.  1982.108  Role of Federal agencies.

    (a)(1) The complainant and the respondent will be parties in every
proceeding and must be served with copies of all documents in the case.
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.
    (2) Parties must send copies of documents to OSHA and to the
Associate Solicitor, Division of Fair Labor Standards, U.S. Department
of Labor, only upon request of OSHA, or when OSHA is participating in
the proceeding, or when service on OSHA and the Associate Solicitor is
otherwise required by these rules.
    (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 those agencies'
discretion. At the request of the interested federal agency, copies of
all documents in a case must be sent to the federal agency, whether or
not the agency is participating in the proceeding.

Sec.  1982.109  Decision and orders of the administrative law judge.

    (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.
    (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 activity.
    (c) Neither OSHA's determination to dismiss a complaint without
completing an investigation pursuant to Sec.  1982.104(e) nor OSHA'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.
    (d)(1) If the ALJ concludes that the respondent has violated the
law, the ALJ will issue an order that will include, where appropriate:
Affirmative action to abate the violation; reinstatement with the same
seniority status that the employee would have had, but for the
retaliation; any back pay with interest; and payment of compensatory
damages, including compensation for any special damages sustained as a
result of the retaliation, including litigation costs, expert witness
fees, and reasonable attorney fees. Interest on back pay will be
calculated using the interest rate applicable to underpayment of taxes
under 26 U.S.C. 6621 and will be compounded daily. The order will also
require the respondent to submit documentation to the Social Security
Administration or the Railroad Retirement Board, as appropriate,
allocating any back pay award to the

appropriate months or calendar quarters. The order may also require the
respondent to pay punitive damages up to $250,000.
    (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 fee, not exceeding
$1,000.
    (e) The decision will be served upon all parties to the proceeding,
the Assistant Secretary, and the Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of Labor. 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
14 days after the date of the decision unless a timely petition for
review has been filed with the Administrative Review Board (ARB), U.S.
Department of Labor. The decision of the ALJ will become the final
order of the Secretary unless a petition for review is timely filed
with the ARB and the ARB accepts the petition for review.

Sec.  1982.110  Decision and orders of the Administrative Review Board.

    (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 fees, must file a written petition for review with the ARB,
which has been delegated the authority to act for the Secretary and
issue final decisions under this part. The parties should identify in
their petitions for review the legal conclusions or orders to which
they object, or the objections may be deemed waived. A petition must be
filed within 14 days of the date of the decision of the ALJ. The date
of the postmark, facsimile transmittal, or electronic communication
transmittal 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 must be served
on the Assistant Secretary, and on the Associate Solicitor, Division of
Fair Labor Standards, U.S. Department of Labor.
    (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 any 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.
    (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 14 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 such
case, the conclusion of the hearing is the date the motion for
reconsideration is denied or 14 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.
    (d) If the ARB concludes that the respondent has violated the law,
the ARB will issue a final order providing relief to the complainant.
The final order will include, where appropriate: Affirmative action to
abate the violation; reinstatement with the same seniority status that
the employee would have had, but for the retaliation; any back pay with
interest; and payment of compensatory damages, including compensation
for any special damages sustained as a result of the retaliation,
including litigation costs, expert witness fees, and reasonable
attorney fees. Interest on back pay will be calculated using the
interest rate applicable to underpayment of taxes under 26 U.S.C. 6621
and will be compounded daily. The order will also require the
respondent to submit documentation to the Social Security
Administration or the Railroad Retirement Board, as appropriate,
allocating any back pay award to the appropriate months or calendar
quarters. The order may also require the respondent to pay punitive
damages up to $250,000.
    (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 reasonable attorney fees, not exceeding $1,000.

Subpart C--Miscellaneous Provisions

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

    (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 by notifying OSHA, orally or in writing,
of his or her withdrawal. OSHA then will confirm in writing the
complainant's desire to withdraw and determine whether to approve the
withdrawal. OSHA will notify the parties (or each party's legal counsel
if the party 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/or preliminary order.
    (b) The Assistant Secretary may withdraw the findings and/or
preliminary order at any time before the expiration of the 30-day
objection period described in Sec.  1982.106, provided that no
objection has been filed yet, and substitute new findings and/or a new
preliminary order. The date of the receipt of the substituted findings
or order will begin a new 30-day objection period.
    (c) At any time before the 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 the 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.
    (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
OSHA, the complainant, and the respondent agree to a settlement. OSHA's
approval of a settlement reached by the respondent and the complainant
demonstrates OSHA's consent and achieves the consent of all three
parties.
    (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.
    (e) Any settlement approved by OSHA, the ALJ, or the ARB will
constitute the final order of the Secretary and may be enforced in
United States district court pursuant to Sec.  1982.113.

Sec.  1982.112  Judicial review.

    (a) Within 60 days after the issuance of a final order under
Sec. Sec.  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.
    (b) A final order is not subject to judicial review in any criminal
or other civil proceeding.
    (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 or the ALJ, as the case may be, to the appropriate court
pursuant to the Federal Rules of Appellate Procedure and the local
rules of such court.

Sec.  1982.113  Judicial enforcement.

    (a) 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 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 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, a person on whose
behalf the order was issued may file a civil action seeking enforcement
of the order in the appropriate United States district court.
    (b) 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.

Sec.  1982.114  District court jurisdiction of retaliation complaints.

    (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. At the request of either party, the action shall be tried
by the court with a jury.
    (b) A proceeding under paragraph (a) of this section shall be
governed by the same legal burdens of proof specified in Sec.
1982.109. An employee prevailing in a proceeding under paragraph (a)
shall be entitled to all relief necessary to make the employee whole,
including, where appropriate: Reinstatement with the same seniority
status that the employee would have had, but for the retaliation; any
back pay with interest; and payment of compensatory damages, including
compensation for any special damages sustained as a result of the
retaliation, including litigation costs, expert witness fees, and
reasonable attorney fees. The court may also order punitive damages in
an amount not to exceed $250,000.
    (c) Within 7 days after 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 copy of the
file-stamped complaint. In all cases, a copy of the complaint must also
be served on the OSHA official who issued the findings and/or
preliminary order, the Assistant Secretary, and the Associate
Solicitor, Division of Fair Labor Standards, U.S. Department of Labor.

Sec.  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.

[FR Doc. 2015-28040 Filed 11-6-15; 8:45 am]
BILLING CODE 4510-26-P


[Federal Register Volume 77, Number 98 (Monday, May 21, 2012)]
[Proposed Rules]
[Pages 29929-29932]
[FR Doc No: 2012-12259]

-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2012-0293]
RIN 1625-AA00

Safety Zone; Town of Cape Charles Fireworks, Cape Charles Harbor,
Cape Charles, VA

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is proposing to establish a temporary safety
zone on the waters of Cape Charles City Harbor in Cape Charles, VA in
support of the Fourth of July Fireworks event. This action is intended
to restrict vessel traffic movement to protect mariners from the
hazards associated with firework displays.

DATES: Comments and related material must be received by the Coast
Guard on or before June 20, 2012.

ADDRESSES: You may submit comments identified by docket number USCG-
2012-0293 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax:<PHONE_NUMBER>.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of
Transportation, West Building Ground

Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-
0001.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. The telephone
number is<PHONE_NUMBER>.
    To avoid duplication, please use only one of these four methods.
See the ``Public Participation and Request for Comments'' portion of
the SUPPLEMENTARY INFORMATION section below for instructions on
submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed
rule, call or email LCDR Hector Cintron, Waterways Management Division
Chief, Sector Hampton Roads, Coast Guard; telephone<PHONE_NUMBER>, email
<EMAIL_ADDRESS>If you have questions on viewing or
submitting material to the docket, call Renee V. Wright, Program
Manager, Docket Operations, telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: The Coast Guard anticipates that this
proposed rule, when finalized, will be effective on July 4th and 5th,
2012.

Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting
comments and related materials. All comments received will be posted
without change to http://www.regulations.gov and will include any
personal information you have provided.

Submitting Comments

    If you submit a comment, please include the docket number for this
rulemaking (USCG-2012-0293), indicate the specific section of this
document to which each comment applies, and provide a reason for each
suggestion or recommendation. You may submit your comments and material
online (via http://www.regulations.gov) or by fax, mail, or hand
delivery, but please use only one of these means. If you submit a
comment online via www.regulations.gov, it will be considered received
by the Coast Guard when you successfully transmit the comment. If you
fax, hand deliver, or mail your comment, it will be considered as
having been received by the Coast Guard when it is received at the
Docket Management Facility. We recommend that you include your name and
a mailing address, an email address, or a telephone number in the body
of your document so that we can contact you if we have questions
regarding your submission.
    To submit your comment online, go to http://www.regulations.gov,
click on the ``submit a comment'' box, and insert ``USCG-2012-0293'' in
the ``Keyword'' box, then click ``Search.'' If you submit your comments
by mail or hand delivery, submit them in an unbound format, no larger
than 8\1/2\ by 11 inches, suitable for copying and electronic filing.
If you submit comments by mail and would like to know that they reached
the Facility, please enclose a stamped, self-addressed postcard or
envelope. We will consider all comments and material received during
the comment period and may change the rule based on your comments.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to http://www.regulations.gov,
click on the ``Keyword'' box and insert ``USCG-2012-0293'' and click
``Search.'' Click the ``Open Docket Folder'' in the ``Actions'' column.
You may also visit the Docket Management Facility in Room W12-140 on
the ground floor of the Department of Transportation West Building,
1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. We have an
agreement with the Department of Transportation to use the Docket
Management Facility.

Privacy Act

    Anyone can search the electronic form of comments received into any
of our dockets by the name of the individual submitting the comment (or
signing the comment, if submitted on behalf of an association,
business, labor union, etc.). You may review a Privacy Act notice
regarding our public dockets in the January 17, 2008, issue of the
Federal Register (73 FR 3316).

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a
request for one using one of the four methods specified under
ADDRESSES. Please explain why you believe a public meeting would be
beneficial. If we determine that one would aid this rulemaking, we will
hold one at a time and place announced by a later notice in the Federal
Register.
    For information on facilities or services for individuals with
disabilities or to request special assistance at the public meeting,
contact LCDR Hector Cintron at the telephone number or email address
indicated under the FOR FURTHER INFORMATION CONTACT section of this
notice.

Basis and Purpose

    On July 4, 2012 the Town of Cape Charles will sponsor a fireworks
display on the shoreline of the navigable waters of Cape Charles City
Harbor centered on position 37[deg]15'46.5'' N/076[deg]01'30'' W (NAD
1983). Due to the need to protect mariners and spectators from the
hazards associated with the fireworks display, such as the accidental
discharge of fireworks, dangerous projectiles, and falling hot embers
or other debris, vessel traffic will be temporarily restricted within
420 feet of the fireworks launch site.

Discussion of Proposed Rule

    The Captain of the Port Hampton Roads proposes to establish a
safety zone on specified waters of the Cape Charles City Harbor within
the area bounded by a 420-foot radius circle centered on position
37[deg]15'46.5'' N/076[deg]01'30'' W (NAD 1983). This safety zone would
be established in the vicinity of Cape Charles, VA from 9 p.m. to 10
p.m. on July 4, 2012, with a rain date of July 5, 2012 from 9 p.m.
until 10 p.m.. In the interest of public safety, general navigation
within the safety zone will be restricted during the specified date and
times. Except for participants and vessels authorized by the Coast
Guard Captain of the Port or his representative, no person or vessel
may enter or remain in the regulated area.

Regulatory Analyses

    We developed this proposed rule after considering numerous statutes
and executive orders related to rulemaking. Below we summarize our
analyses based on 13 of these statutes or executive orders.

Regulatory Planning and Review

    This proposed rule is not a significant regulatory action under
section 3(f) of Executive Order 12866, Regulatory Planning and Review,
and does not require an assessment of potential costs and benefits
under section 6(a)(3) of that Order. The Office of Management and
Budget has not reviewed it under that Order.
    We expect the economic impact of this proposed rule to be so
minimal that a full Regulatory Evaluation is unnecessary. Although this
proposed regulation restricts access to the safety zone, the effect of
this rule will not be significant because: (i) The safety zone will be
in effect for a limited duration; (ii) the zone is of limited size; and
(iii) the Coast Guard will make notifications

via maritime advisories so mariners can adjust their plans accordingly.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this proposed rule would have a significant economic
impact on a substantial number of small entities. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000.
    The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed
rule would not have a significant economic impact on a substantial
number of small entities because the zone will only be in place for a
limited duration and maritime advisories will be issued allowing the
mariners to adjust their plans accordingly.
    This proposed rule would affect the following entities, some of
which might be small entities: the owners and operators of vessels
intending to transit or anchor in that portion of the Cape Charles
Harbor from 9 p.m. to 10:00 p.m. on July 4, 2012, with a rain date of
July 5, 2012 from 9 p.m. until 10 p.m..
    This safety zone would not have a significant economic impact on a
substantial number of small entities for the following reasons. This
safety zone would be activated, and thus subject to enforcement, for
only one-half hour in the evening, when vessel traffic is low. Although
the safety zone would apply to the entirety of Broad Bay, traffic would
be allowed to pass through the zone with the permission of the Captain
of the Port Before the activation of the zone, we would issue maritime
advisories widely available to users of the river.
    If you think that your business, organization, or governmental
jurisdiction qualifies as a small entity and that this rule would have
a significant economic impact on it, please submit a comment (see
ADDRESSES) explaining why you think it qualifies and how and to what
degree this rule would economically affect it.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this proposed rule so that they can better
evaluate its effects on them and participate in the rulemaking. If the
rule would affect your small business, organization, or governmental
jurisdiction and you have questions concerning its provisions or
options for compliance, please contact LCDR Hector Cintron, Waterways
Management Division Chief, Sector Hampton Roads, Coast Guard; telephone
757-668-5581, email<EMAIL_ADDRESS>The Coast Guard will not
retaliate against small entities that question or complain about this
proposed rule or any policy or action of the Coast Guard.

Collection of Information

    This proposed rule would call for no new collection of information
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

Federalism

    A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them. We have analyzed this proposed rule
under that Order and have determined that it does not have implications
for federalism.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any one year. Though this proposed rule would not
result in such an expenditure, we do discuss the effects of this rule
elsewhere in this preamble.

Taking of Private Property

    This proposed rule would not cause a taking of private property or
otherwise have taking implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights.

Civil Justice Reform

    This proposed rule meets applicable standards in sections 3(a) and
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize
litigation, eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this proposed rule under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. This rule is not an economically significant rule and would not
create an environmental risk to health or risk to safety that might
disproportionately affect children.

Indian Tribal Governments

    This proposed rule does not have tribal implications under
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it would not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes.

Energy Effects

    We have analyzed this proposed rule under Executive Order 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order because it is not a ``significant
regulatory action'' under Executive Order 12866 and is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through the Office of Management and Budget, with an explanation of why
using these standards would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., specifications of materials, performance, design, or
operation; test methods; sampling procedures; and related management
systems practices) that are developed or adopted by voluntary consensus
standards bodies.
    This proposed rule does not use technical standards. Therefore, we
did not consider the use of voluntary consensus standards.

Environment

    We have analyzed this proposed rule under Department of Homeland
Security Management Directive 023-01 and Commandant Instruction
M16475.lD, which guide the Coast Guard in complying with the National
Environmental Policy Act of 1969

(NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary
determination that this action is one of a category of actions which do
not individually or cumulatively have a significant effect on the human
environment. This rule is categorically excluded, under figure 2-1,
paragraph (34)(g) of the Instruction because it involves the
establishment of a temporary safety zone. An environmental analysis
checklist and a categorical exclusion determination will be available
in the docket where indicated under ADDRESSES. In accordance with the
Coastal Zone Management Act, National Environmental Policy Act, and the
Endangered Species Act an environmental consultation has been initiated
with Virginia Department of Environmental Quality, Army Corps of
Engineers, Virginia Marine Resource Commission, and The Department of
Conservation and Recreation. We seek any comments or information that
may lead to the discovery of a significant environmental impact from
this proposed rule.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard proposes
to amend 33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

    1. The authority citation for part 165 continues to read as
follows:

    Authority: 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50
U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-
295, 116 Stat. 2064; Department of Homeland Security Delegation No.
0170.1.
    2. Add Sec.  165.T05-0293 to read as follows:

Sec.  165.T05-0293  Safety Zone; Cape Charles Fireworks, Cape Charles
Harbor, Cape Charles, VA.

    (a) Regulated area. The following area is a safety zone: specified
waters of the Captain of the Port Sector Hampton Roads zone, as defined
in 33 CFR 3.25-10, in the vicinity of Cape Charles Harbor in Cape
Charles, VA and within 420 feet of position 37[deg]15'46.5'' N/
076[deg]01'30'' W (NAD 1983).
    (b) Definition. For the purposes of this part, Captain of the Port
Representative means any U.S. Coast Guard commissioned, warrant or
petty officer who has been authorized by the Captain of the Port,
Hampton Roads, Virginia to act on his behalf.
    (c) Regulations. (1) In accordance with the general regulations in
Sec.  165.23 of this part, entry into this zone is prohibited unless
authorized by the Captain of the Port, Hampton Roads or his designated
representatives.
    (2) The operator of any vessel in the immediate vicinity of this
safety zone shall:
    (i) Stop the vessel immediately upon being directed to do so by any
commissioned, warrant or petty officer on shore or on board a vessel
that is displaying a U.S. Coast Guard Ensign.
    (ii) Proceed as directed by any commissioned, warrant or petty
officer on shore or on board a vessel that is displaying a U.S. Coast
Guard Ensign.
    (3) The Captain of the Port, Hampton Roads can be reached through
the Sector Duty Officer at Sector Hampton Roads in Portsmouth, Virginia
at telephone Number<PHONE_NUMBER>.
    (4) The Coast Guard Representatives enforcing the safety zone can
be contacted on VHF-FM marine band radio channel 13 (165.65 Mhz) and
channel 16 (156.8 Mhz).
    (d) Enforcement period. This regulation will be enforced from 9
p.m. until 10 p.m. on July 4, 2012, with a rain date of July 5, 2012,
from 9 p.m. until 10 p.m.

    Dated: May 3, 2012.
Mark S. Ogle,
Captain, U.S. Coast Guard, Captain of the Port Hampton Roads.
[FR Doc. 2012-12259 Filed 5-18-12; 8:45 am]
BILLING CODE 9110-04-P


[Federal Register: August 18, 2010 (Volume 75, Number 159)]
[Rules and Regulations]
[Page 50856-50858]
[DOCID:fr18au10-7]

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2010-0763; Directorate Identifier 2009-NM-253-AD]
Amendment 39-16394; AD 2010-17-04]
RIN 2120-AA64

Airworthiness Directives; Airbus Model A380-800 Series Airplanes

AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).

ACTION: Final rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: We are adopting a new airworthiness directive (AD) for the
products listed above. This AD results from mandatory continuing
airworthiness information (MCAI) originated by an aviation authority of
another country to identify and correct an unsafe condition on an
aviation product. The MCAI describes the unsafe condition as:

    A crack has been found on the Droop Nose (DN) 1 master sidestay
bracket on the inboard leading edge of an Airbus A380 flight test
aeroplane.
    In case of failure of the master bracket, the sub-master bracket
would be able to sustain limit loads but not ultimate loads.
    This condition, if not detected and corrected, could lead to a
DN failure which would affect the structural integrity of that wing
area.
* * * * *

This AD requires actions that are intended to address the unsafe
condition described in the MCAI.

DATES: This AD becomes effective September 2, 2010.
    The Director of the Federal Register approved the incorporation by
reference of a certain publication listed in the AD as of September 2,
2010.
    We must receive comments on this AD by October 4, 2010.

ADDRESSES: You may send comments by any of the following methods:
     Federal eRulemaking Portal: Go to http://
www.regulations.gov. Follow the instructions for submitting comments.
     Fax:<PHONE_NUMBER>.
     Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590.
     Hand Delivery: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-40, 1200 New
Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.

Examining the AD Docket

    You may examine the AD docket on the Internet at http://
www.regulations.gov; or in person at the Docket Operations office
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays. The AD docket contains this proposed AD, the regulatory
evaluation, any comments received, and other information. The street
address for the Docket Operations office (telephone<PHONE_NUMBER>) is
in the ADDRESSES section. Comments will be available in the AD docket
shortly after receipt.

FOR FURTHER INFORMATION CONTACT: Shahram Daneshmandi, Aerospace
Engineer, International Branch, ANM-116, Transport Airplane
Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356;
telephone<PHONE_NUMBER>; fax<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Discussion

    The European Aviation Safety Agency (EASA), which is the Technical
Agent for the Member States of the European Community, has issued EASA
Airworthiness Directive 2009-0213, dated October 8, 2009 (referred to
after this as ``the MCAI''), to correct an unsafe condition for the
specified products. The MCAI states:

    A crack has been found on the Droop Nose (DN) 1 master sidestay
bracket on the inboard leading edge of an Airbus A380 flight test
aeroplane.
    In case of failure of the master bracket, the sub-master bracket
would be able to sustain limit loads but not ultimate loads.
    This condition, if not detected and corrected, could lead to a
DN failure which would affect the structural integrity of that wing
area.
    This AD requires an inspection programme to detect any crack in
the DN 1 master sidestay bracket and subsequently in the sub-master
bracket, and the accomplishment of the associated corrective
actions, as applicable.

Corrective actions include replacing the cracked DN 1 master sidestay
bracket, performing a detailed visual inspection for cracks of the
associated DN 1 sub-master sidestay bracket, and contacting Airbus if
cracks are found on the DN 1 sub-master sidestay bracket. You may
obtain further information by examining the MCAI in the AD docket.

Relevant Service Information

    Airbus has issued Mandatory Service Bulletin A380-57-8019, dated
August 5, 2009. The actions described in this service information are
intended to correct the unsafe condition identified in the MCAI.

FAA's Determination and Requirements of This Proposed AD

    This product has been approved by the aviation authority of another
country, and is approved for operation in the United States. Pursuant
to our bilateral agreement with the State of Design Authority, we have
been notified of the unsafe condition described in the MCAI and service
information referenced above. We are issuing this AD because we
evaluated all pertinent information and determined the unsafe condition
exists and is likely to exist or develop on other products of the same
type design.
    There are no products of this type currently registered in the
United States. However, this rule is necessary to ensure that the
described unsafe condition is addressed if any of these products are
placed on the U.S. Register in the future.

Differences Between This AD and the MCAI or Service Information

    We have reviewed the MCAI and related service information and, in
general, agree with their substance. But we might have found it
necessary to use different words from those in the MCAI to ensure the
AD is clear for U.S. operators and is enforceable. In making these
changes, we do not intend to differ substantively from the information
provided in the MCAI and related service information.
    We might also have proposed different actions in this AD from those
in the MCAI in order to follow FAA policies. Any such differences are
highlighted in a Note within the proposed AD.

FAA's Determination of the Effective Date

    Since there are currently no domestic operators of this product,
notice and opportunity for public comment before issuing this AD are
unnecessary.

Comments Invited

    This AD is a final rule that involves requirements affecting flight
safety, and we did not precede it by notice and opportunity for public
comment. We invite you to send any written relevant data, views, or
arguments about this AD. Send your comments to an address listed under
the ADDRESSES section. Include ``Docket No. FAA-2010-0763; Directorate
Identifier 2009-NM-253-AD'' at the beginning of your comments. We
specifically invite comments on the overall regulatory, economic,
environmental, and energy aspects of this AD. We will consider all
comments received by the closing date and may amend this AD because of
those comments.
    We will post all comments we receive, without change, to http://
www.regulations.gov, including any personal information you provide. We
will also post a report summarizing each substantive verbal contact we
receive about this AD.

Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to
issue rules on aviation safety. Subtitle I, section 106, describes the
authority of the FAA Administrator. ``Subtitle VII: Aviation
Programs,'' describes in more detail the scope of the Agency's
authority.
    We are issuing this rulemaking under the authority described in
``Subtitle VII, Part A, Subpart III, Section 44701: General
requirements.'' Under that section, Congress charges the FAA with
promoting safe flight of civil aircraft in air commerce by prescribing
regulations for practices, methods, and procedures the Administrator
finds necessary for safety in air commerce. This regulation is within
the scope of that authority because it addresses an unsafe condition
that is likely to exist or develop on products identified in this
rulemaking action.

Regulatory Findings

    We determined that this proposed AD would not have federalism
implications under Executive Order 13132. This proposed AD would not
have a substantial direct effect 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.
    For the reasons discussed above, I certify this proposed
regulation:
    1. Is not a ``significant regulatory action'' under Executive Order
12866;

    2. Is not a ``significant rule'' under the DOT Regulatory Policies
and Procedures (44 FR 11034, February 26, 1979); and
    3. Will not have a significant economic impact, positive or
negative, on a substantial number of small entities under the criteria
of the Regulatory Flexibility Act.
    We prepared a regulatory evaluation of the estimated costs to
comply with this proposed AD and placed it in the AD docket.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.

Adoption of the Amendment

0
Accordingly, under the authority delegated to me by the Administrator,
the FAA amends 14 CFR part 39 as follows:

PART 39--AIRWORTHINESS DIRECTIVES

0
1. The authority citation for part 39 continues to read as follows:

    Authority:  49 U.S.C. 106(g), 40113, 44701.

Sec.  39.13  [Amended]

0
2. The FAA amends Sec.  39.13 by adding the following new AD:

2010-17-04 Airbus: Amendment 39-16394. Docket No. FAA-2010-0763;
Directorate Identifier 2009-NM-253-AD.

Effective Date

    (a) This airworthiness directive (AD) becomes effective
September 2, 2010.

Affected ADs

    (b) None.

Applicability

    (c) This AD applies to Airbus Model A380-841, -842, and -861
airplanes, certificated in any category, all serial numbers.

Subject

    (d) Air Transport Association (ATA) of America Code 57: Wings.

Reason

    (e) The mandatory continuing airworthiness information (MCAI)
states:

    A crack has been found on the Droop Nose (DN) 1 master sidestay
bracket on the inboard leading edge of an Airbus A380 flight test
aeroplane.
    In case of failure of the master bracket, the sub-master bracket
would be able to sustain limit loads but not ultimate loads.
    This condition, if not detected and corrected, could lead to a
DN failure which would affect the structural integrity of that wing
area.
* * * * *

Compliance

    (f) You are responsible for having the actions required by this
AD performed within the compliance times specified, unless the
actions have already been done.

Actions

    (g) Before the accumulation of 1,250 total flight cycles or
within 30 days after the effective date of this AD, whichever occurs
later, do a detailed visual inspection (DVI) of the left-hand and
right-hand DN 1 master sidestay brackets to detect cracks, in
accordance with the Accomplishment Instructions of Airbus Mandatory
Service Bulletin A380-57-8019, dated August 5, 2009.
    (1) If no cracks are found, repeat the inspection at intervals
not to exceed 1,250 flight cycles.
    (2) If any crack is found, before further flight, replace the
cracked DN 1 master sidestay bracket and perform a DVI for cracks of
the associated DN 1 sub-master sidestay bracket, in accordance with
the Accomplishment Instructions of Airbus Mandatory Service Bulletin
A380-57-8019, dated August 5, 2009.
    (i) If no crack is found during the inspection specified in
paragraph (g)(2) of this AD, repeat the inspection of the DN 1
master sidestay brackets specified in paragraph (g) of this AD at
intervals not to exceed 1,250 flight cycles.
    (ii) If any crack is found during the inspection specified in
paragraph (g)(2) of this AD, before further flight, contact Airbus
and repair in accordance with a method approved by the Manager,
International Branch, ANM 116, Transport Airplane Directorate, FAA,
or the European Aviation Safety Agency (EASA) (or its delegated
agent).
    (h) Replacement of cracked DN 1 master sidestay brackets, as
specified in paragraph (g)(2) of this AD, is not a terminating
action for the repetitive inspections required by this AD.

FAA AD Differences

    Note 1: This AD differs from the MCAI and/or service information
as follows: No differences.

Other FAA AD Provisions

    (i) The following provisions also apply to this AD:
    (1) Alternative Methods of Compliance (AMOCs): The Manager,
International Branch, ANM-116, Transport Airplane Directorate, FAA,
has the authority to approve AMOCs for this AD, if requested using
the procedures found in 14 CFR 39.19. Send information to ATTN:
Shahram Daneshmandi, Aerospace Engineer, International Branch, ANM-
116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW.,
Renton, Washington 98057-3356; telephone<PHONE_NUMBER>; fax (425)
227-1149. Before using any approved AMOC on any airplane to which
the AMOC applies, notify your principal maintenance inspector (PMI)
or principal avionics inspector (PAI), as appropriate, or lacking a
principal inspector, your local Flight Standards District Office.
The AMOC approval letter must specifically reference this AD.
    (2)  Airworthy Product: For any requirement in this AD to obtain
corrective actions from a manufacturer or other source, use these
actions if they are FAA-approved. Corrective actions are considered
FAA-approved if they are approved by the State of Design Authority
(or their delegated agent). You are required to assure the product
is airworthy before it is returned to service.
    (3) Reporting Requirements: For any reporting requirement in
this AD, under the provisions of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.), the Office of Management and Budget (OMB) has
approved the information collection requirements and has assigned
OMB Control Number 2120-0056.

Related Information

    (j) Refer to MCAI EASA Airworthiness Directive 2009-0213, dated
October 8, 2009; and Airbus Mandatory Service Bulletin A380-57-8019,
dated August 5, 2009; for related information.

Material Incorporated by Reference

    (k) You must use Airbus Mandatory Service Bulletin A380-57-8019,
dated August 5, 2009, as applicable, to do the actions required by
this AD, unless the AD specifies otherwise.
    (1) The Director of the Federal Register approved the
incorporation by reference of this service information under 5
U.S.C. 552(a) and 1 CFR part 51.
    (2) For service information identified in this AD, contact
Airbus SAS--EANA (Airworthiness Office); 1 Rond Point Maurice
Bellonte, 31707 Blagnac Cedex, France; telephone +33 562 110 253;
Fax +33 562 110 307; e-mail<EMAIL_ADDRESS>
Internet http://www.airbus.com.
    (3) You may review copies of the service information at the FAA,
Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton,
Washington. For information on the availability of this material at
the FAA, call<PHONE_NUMBER>.
    (4) You may also review copies of the service information that
is incorporated by reference at the National Archives and Records
Administration (NARA). For information on the availability of this
material at NARA, call<PHONE_NUMBER>, or go to: http://
www.archives.gov/federal_register/code_of_federal_regulations/
ibr_locations.html.

    Issued in Renton, Washington, on July 30, 2010.
Ali Bahrami,
Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 2010-19723 Filed 8-17-10; 8:45 am]
BILLING CODE 4910-13-P