[Federal Register Volume 81, Number 74 (Monday, April 18, 2016)]
[Rules and Regulations]
[Pages 22530-22544]
[FR Doc No: 2016-08724]

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1987

[Docket Number: OSHA-2011-0859]
RIN 1218-AC58

Procedures for Handling Retaliation Complaints Under Section 402
of the FDA Food Safety Modernization Act

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Final rule.

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SUMMARY: This document provides the final text of regulations governing
the employee protection (retaliation or whistleblower) provision found
at section 402 of the FDA Food Safety Modernization Act (FSMA), which
added section 1012 to the Federal Food, Drug, and Cosmetic Act. An
interim final rule governing these provisions and requesting public
comment was published in the Federal Register on February 13, 2014. Two
comments were received that were responsive to the rule. This rule
responds to those comments and establishes the final procedures and
time frames for the handling of retaliation complaints under FSMA,
including procedures and time frames for employee complaints to the
Occupational Safety and Health Administration (OSHA), investigations by
OSHA, appeals of OSHA determinations to an administrative law judge
(ALJ) for a hearing de novo, hearings by ALJs, review of ALJ decisions
by the Administrative Review Board (ARB) (acting on behalf of the
Secretary of Labor), and judicial review of the Secretary's final
decision.

DATES: This final rule is effective on April 18, 2016.

FOR FURTHER INFORMATION CONTACT: Cleveland Fairchild, Program Analyst,
Directorate of Whistleblower Protection Programs, Occupational Safety
and Health Administration, U.S. Department of Labor, Room N-4618, 200
Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-
2199. This is not a toll-free number. Email<EMAIL_ADDRESS>This
Federal Register publication is available in alternative formats. The
alternative formats available are: Large print, electronic file on
computer disk (Word Perfect, ASCII, Mates with Duxbury Braille System),
and audiotape.

SUPPLEMENTARY INFORMATION:

I. Background

    The FDA Food Safety Modernization Act (Pub. L. 111-353, 124 Stat.
3885), was signed into law on January 4, 2011. Section 402 of the FDA
Food Safety Modernization Act amended the Federal Food, Drug, and
Cosmetic Act (FD&C) to add section 1012, 21 U.S.C. 399d, which provides
protection to employees against retaliation by an entity engaged in the
manufacture, processing, packing, transporting, distribution,
reception, holding, or importation of food for engaging in certain
protected activities. Section 1012 protects employees against
retaliation because they provided or are about to provide to their
employer, the

Federal Government, or the attorney general of a State information
relating to any violation of, or any act or omission the employee
reasonably believes to be a violation of, any provision of the FD&C or
any order, rule, regulation, standard, or ban under the FD&C testified
or are about to testify in a proceeding concerning such violation;
assisted or participated, or are about to assist or participate, in
such a proceeding; or objected to, or refused to participate in, any
activity, policy, practice, or assigned task that the employee
reasonably believed to be in violation of any provision of the FD&C or
any order, rule, regulation, standard, or ban under the FD&C.
    Section 1012 became effective upon enactment on January 4, 2011.
Although the Food and Drug Administration of the U.S. Department of
Health and Human Services (FDA) generally administers the FD&C, the
Secretary of Labor is responsible for enforcing the employee protection
provision set forth in section 1012 of the FD&C. These rules establish
procedures for the handling of whistleblower complaints under section
1012 of the FD&C. Throughout this rule, FSMA refers to section 402 of
the FDA Food Safety Modernization Act, codified as section 1012 of the
Federal Food, Drug and Cosmetic Act. See 21 U.S.C. 399d.

II. Summary of Statutory Procedures

    FSMA's whistleblower provisions include procedures that allow a
covered employee to file, within 180 days of the alleged retaliation, a
complaint with the Secretary of Labor (Secretary). Upon receipt of the
complaint, the Secretary must provide written notice to the person or
persons named in the complaint alleged to have violated the FSMA
(respondent) of the filing of the complaint, the allegations contained
in the complaint, the substance of the evidence supporting the
complaint, and the rights afforded the respondent throughout the
investigation. The Secretary must then, within 60 days of receipt of
the complaint, afford the complainant and respondent an opportunity to
submit a response and meet with the investigator to present statements
from witnesses, and conduct an investigation.
    The statute provides that the Secretary may conduct an
investigation only if the complainant has made a prima facie showing
that the protected activity was a contributing factor in the adverse
action alleged in the complaint and the respondent has not
demonstrated, through clear and convincing evidence, that it would have
taken the same adverse action in the absence of that activity (see
section 1987.104 for a summary of the investigation process). OSHA
interprets the prima facie case requirement as allowing the complainant
to meet this burden through the complaint as supplemented by interviews
of the complainant.
    After investigating a complaint, the Secretary will issue written
findings. If, as a result of the investigation, the Secretary finds
there is reasonable cause to believe that retaliation has occurred, the
Secretary must notify the respondent of those findings, along with a
preliminary order that requires the respondent to, where appropriate:
Take affirmative action to abate the violation; reinstate the
complainant to his or her former position together with the
compensation of that position (including back pay) and restore the
terms, conditions, and privileges associated with his or her
employment; and provide compensatory damages to the complainant, as
well as all costs and expenses (including attorney fees and expert
witness fees) reasonably incurred by the complainant for, or in
connection with, the bringing of the complaint upon which the order was
issued.
    The complainant and the respondent then have 30 days after the date
of the Secretary's notification in which to file objections to the
findings and/or preliminary order and request a hearing before an
administrative law judge (ALJ) at the Department of Labor. The filing
of objections under FSMA will stay any remedy in the preliminary order
except for preliminary reinstatement. If a hearing before an ALJ is not
requested within 30 days, the preliminary order becomes final and is
not subject to judicial review.
    If a hearing is held, the statute requires the hearing to be
conducted ``expeditiously.'' The Secretary then has 120 days after the
conclusion of any hearing in which to issue a final order, which may
provide appropriate relief or deny the complaint. Until the Secretary's
final order is issued, the Secretary, the complainant, and the
respondent may enter into a settlement agreement that terminates the
proceeding. Where the Secretary has determined that a violation has
occurred, the Secretary, where appropriate, will assess against the
respondent a sum equal to the total amount of all costs and expenses,
including attorney and expert witness fees, reasonably incurred by the
complainant for, or in connection with, the bringing of the complaint
upon which the Secretary issued the order. The Secretary also may award
a prevailing employer reasonable attorney fees, not exceeding $1,000,
if the Secretary finds that the complaint is frivolous or has been
brought in bad faith.
    Within 60 days of the issuance of the final order, any person
adversely affected or aggrieved by the Secretary's final order may file
an appeal with the United States Court of Appeals for the circuit in
which the violation allegedly occurred or the circuit where the
complainant resided on the date of the violation.
    FSMA permits the employee to seek de novo review of the complaint
by a United States district court in the event that the Secretary has
not issued a final decision within 210 days after the filing of the
complaint, or within 90 days after receiving a written determination.
The court will have jurisdiction over the action without regard to the
amount in controversy, and the case will be tried before a jury at the
request of either party.
    FSMA also provides that nothing therein preempts or diminishes any
other safeguards against discrimination, demotion, discharge,
suspension, threats, harassment, reprimand, retaliation, or any other
manner of discrimination provided by Federal or State law. Finally,
FSMA states that nothing therein shall be deemed to diminish the
rights, privileges, or remedies of any employee under any Federal or
State law or under any collective bargaining agreement, and the rights
and remedies in FSMA may not be waived by any agreement, policy, form,
or condition of employment.

III. Summary and Discussion of Regulatory Provisions

    On February 13, 2014, OSHA published in the Federal Register an
interim final rule (IFR) establishing rules governing the whistleblower
provisions of 402 of the FDA Food Safety Modernization Act. 79 FR 8619.
OSHA provided the public an opportunity to comment on the IFR by April
14, 2014.
    In response, OSHA received comments that were responsive to the
rule from two organizations. Comments were received from the Roll Law
Group (Roll), on behalf of Paramount Farming Company LLC, Paramount
Farms International LLC, Pom Wonderful LLC, and Paramount Citrus
Holdings LLC, and; Kalijarvi, Chuzi, Newman & Fitch, P.C. (Kalijarvi).
OSHA also received one comment that was not responsive to the rule.
    OSHA has reviewed and considered the comments and now adopts this
final rule with minor revisions. The following discussion addresses the

comments and OSHA's responses. The provisions in the IFR are adopted
and continued in this final rule, unless otherwise noted below. The
regulatory provisions in this part have been written and organized to
be consistent with other whistleblower regulations promulgated by OSHA
to the extent possible within the bounds of the statutory language of
FSMA. Responsibility for receiving and investigating complaints under
FSMA has been delegated to the Assistant Secretary for Occupational
Safety and Health (Assistant Secretary). Secretary of Labor's Order No.
1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012). Hearings on
determinations by the Assistant Secretary are conducted by the Office
of Administrative Law Judges, and appeals from decisions by ALJs are
decided by the ARB. Secretary of Labor's Order No. 2-2012 (Oct. 19,
2012), 77 FR 69378 (Nov. 16, 2012).

General Comments

    Roll commented that OSHA should ``ensure that the rules not only
protect employee rights and promote food safety, but uphold equality
and fairly address the concerns of both parties involved in these types
of matters.'' OSHA agrees, and notes that its procedures are designed
to ensure a fair process for both parties.
    Kalijarvi commented that ``Congress passed the FSMA to protect
people from getting sick and dying. When Congress passes a law to
accomplish a remedial purpose, that purpose should be central to
decisions about interpretation and application of the law.'' Kalijarvi
elaborated that decisions under FSMA should be made with an eye towards
furthering the statute's remedial purpose. In addition, Kalijarvi
commented that OSHA's discussion of the reasonable belief doctrine
serves as a helpful reminder that ``a complainant's whistleblower
activity will be protected when it is based on a reasonable belief that
any provision of the FD&C, or any order, rule, regulation, standard, or
ban under the FD&C, has been violated.'' OSHA believes that, generally,
support for the remedial nature of the FSMA is found in the statute
itself.

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

Section 1987.100 Purpose and Scope
    This section describes the purpose of the regulations implementing
FSMA and provides an overview of the procedures covered by these
regulations. No comments were received on this section, and no changes
were made to it.
Section 1987.101 Definitions
    This section includes general definitions from the FD&C, which are
applicable to the whistleblower provisions of FSMA. The FD&C states
that the term ``person'' includes an individual, partnership,
corporation, and association. See 21 U.S.C. 321(e). The FD&C also
defines the term ``food'' as ``(1) articles used for food or drink for
man or other animals, (2) chewing gum, and (3) articles used for
components of any such article.'' See 21 U.S.C. 321(f). No comments
were received on this section, and no changes were made to it.
Section 1987.102 Obligations and Prohibited Acts
    This section describes the activities that are protected under
FSMA, and the conduct that is prohibited in response to any protected
activities. Under FSMA, an entity engaged in the manufacture,
processing, packing, transporting, distribution, reception, holding, or
importation of food may not retaliate against an employee because the
employee ``provided, caused to be provided, or is about to provide or
cause to be provided to the employer, the Federal Government, or the
attorney general of a State information relating to any violation of,
or any act or omission the employee reasonably believes to be a
violation of any provision of this chapter or any order, rule,
regulation, standard, or ban under this chapter.'' 21 U.S.C.
399d(a)(1). FSMA also protects employees who testify, assist or
participate in proceedings concerning such violations. See 21 U.S.C.
399d(a)(2) and (3). Finally, FSMA prohibits retaliation because an
employee ``objected to, or refused to participate in, any activity,
policy, practice, or assigned task that the employee (or other such
person) reasonably believed to be in violation of any provision of this
chapter, or any order, rule, regulation, standard, or ban under this
chapter.'' 21 U.S.C. 399d(a)(4). References to ``this chapter'' refer
to the FD&C, which is chapter 9 of title 21. 21 U.S.C. 301 et seq.
Although an entity must therefore be engaged in the manufacture,
processing, packing, transporting, distribution, reception, holding, or
importation of food in order to be covered by FSMA, a complainant's
whistleblower activity will be protected when it is based on a
reasonable belief that any provision of the FD&C, or any order, rule,
regulation, standard, or ban under the FD&C, has been violated.
    In order to have a ``reasonable belief'' under FSMA, a complainant
must have both a subjective, good faith belief and an objectively
reasonable belief that the complained-of conduct violated the FD&C or
any order, rule, regulation, standard, or ban under the FD&C. See
Sylvester v. Parexel Int'l LLC, ARB No. 07-123, 2011 WL 2165854, at *
11-12 (ARB May 25, 2011) (discussing the reasonable belief standard
under analogous language in the Sarbanes-Oxley Act whistleblower
provision for employees, 18 U.S.C. 1514A). The requirement that the
complainant have a subjective, good faith belief is satisfied so long
as the complainant actually believed that the conduct complained of
violated the relevant law. See id. The objective ``reasonableness'' of
a complainant's belief is typically determined ``based on the knowledge
available to a reasonable person in the same factual circumstances with
the same training and experience as the aggrieved employee.'' Id. at *
12 (internal quotation marks and citation omitted). However, the
complainant need not show that the conduct complained of constituted an
actual violation of law. Pursuant to this standard, an employee's
whistleblower activity is protected where it is based on a reasonable,
but mistaken, belief that a violation of the relevant law has occurred.
Id. at * 13.
    No comments were received on this section, and no changes were made
to it.
Section 1987.103 Filing of Retaliation Complaint
    This section explains the requirements for filing a retaliation
complaint under FSMA. According to section 1012(b)(1) of the FD&C, a
complaint must be filed within 180 days of when the alleged violation
occurs. Under Delaware State College v. Ricks, 449 U.S. 250, 258
(1980), this is considered to be when the retaliatory decision has been
both made and communicated to the complainant. In other words, the
limitations period commences once the employee is aware or reasonably
should be aware of the employer's decision to take an adverse action.
See Equal Emp't Opportunity Comm'n v. United Parcel Serv., Inc., 249
F.3d 557, 561-62 (6th Cir. 2001). 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 to be tolled if a
complainant mistakenly files a complaint with an agency other than OSHA
within 180 days after an alleged adverse action.

    Complaints filed under FSMA need not be in any particular form.
They may be either oral or in writing. If the complainant is unable to
file the complaint in English, OSHA will accept the complaint in any
language. With the consent of the employee, complaints may be filed by
any person on the employee's behalf.
    OSHA notes that a complaint of retaliation filed with OSHA under
FSMA is not a formal document and need not conform to the pleading
standards for complaints filed in federal district court articulated in
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v.
Iqbal, 556 U.S. 662 (2009). See Sylvester, 2011 WL 2165854, at * 9-10
(holding whistleblower complaints filed with OSHA under analogous
provisions in the Sarbanes-Oxley Act need not conform to federal court
pleading standards). Rather, the complaint filed with OSHA under this
section simply alerts OSHA to the existence of the alleged retaliation
and the complainant's desire that OSHA investigate the complaint. Upon
receipt of the complaint, OSHA is to determine whether the ``complaint,
supplemented as appropriate by interviews of the complainant'' alleges
``the existence of facts and evidence to make a prima facie showing.''
29 CFR 1987.104(e). As explained in section 1987.104(e), if the
complaint, supplemented as appropriate, contains a prima facie
allegation, and the respondent does not show clear and convincing
evidence that it would have taken the same action in the absence of the
alleged protected activity, OSHA conducts an investigation to determine
whether there is reasonable cause to believe that retaliation has
occurred. See 21 U.S.C. 399d(b)(2)(A), 29 CFR 1987.104(e).
    No comments were received on this section, and no changes were made
to it.
Section 1987.104 Investigation
    This section describes the procedures that apply to the
investigation of complaints under FSMA. Paragraph (a) of this section
outlines the procedures for notifying the parties and the FDA of the
complaint and notifying the respondent of its rights under these
regulations. Paragraph (b) describes the procedures for the respondent
to submit its response to the complaint. Paragraph (c) describes OSHA's
procedures for sharing a party's submissions during a whistleblower
investigation with the other parties to the investigation. Paragraph
(d) of this section discusses confidentiality of information provided
during investigations.
    Paragraph (e) of this section sets forth the applicable burdens of
proof. FSMA requires that a complainant make an initial prima facie
showing that protected activity was ``a contributing factor'' in the
adverse action alleged in the complaint, i.e., that the protected
activity, alone or in combination with other factors, affected in some
way the outcome of the employer's decision. 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. The complainant's
burden may be satisfied, for example, if he or she shows that the
adverse action took place within a temporal proximity of 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. See, e.g., Porter v. Cal. Dep't of Corrs., 419 F.3d
885, 895 (9th Cir. 2005) (years between the protected activity and the
retaliatory actions did not defeat a finding of a causal connection
where the defendant did not have the opportunity to retaliate until he
was given responsibility for making personnel decisions).
    If the complainant does not make the required prima facie showing,
the investigation must be discontinued and the complaint dismissed. See
Trimmer v. U.S. Dep't of Labor, 174 F.3d 1098, 1101 (10th Cir. 1999)
(noting that the burden-shifting framework of the Energy Reorganization
Act of 1974 (ERA), which is the same framework now applicable to FSMA,
serves a ``gatekeeping function'' that ``stem[s] frivolous
complaints''). Even in cases where the complainant successfully makes a
prima facie showing, the investigation must be discontinued if the
employer demonstrates, by clear and convincing evidence, that it would
have taken the same adverse action in the absence of the protected
activity. Thus, OSHA must dismiss a complaint under FSMA and not
investigate further if either: (1) The complainant fails to meet the
prima facie showing that protected activity was a contributing factor
in the adverse action; or (2) the employer rebuts that showing by clear
and convincing evidence that it would have taken the same adverse
action absent the protected activity.
    Assuming that an investigation proceeds beyond the gatekeeping
phase, the statute requires OSHA to determine whether there is
reasonable cause to believe that protected activity was a contributing
factor in the alleged adverse action. A contributing factor is ``any
factor which, alone or in connection with other factors, tends to
affect in any way the outcome of the decision.'' Marano v. Dep't of
Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993) (internal quotation marks,
emphasis and citation omitted) (discussing the Whistleblower Protection
Act, 5 U.S.C. 1221(e)(1)); see also Addis v. Dep't of Labor, 575 F.3d
688, 689-91 (7th Cir. 2009) (discussing Marano as applied to analogous
whistleblower provision in the ERA); Clarke v. Navajo Express, Inc.,
ARB No. 09-114, 2011 WL 2614326, at * 3 (ARB June 29, 2011) (discussing
burdens of proof under analogous whistleblower provision in the Surface
Transportation Assistance Act (STAA)). For protected activity to be a
contributing factor in the adverse action, ``a complainant need not
necessarily prove that the respondent's articulated reason was a
pretext in order to prevail,'' because a complainant alternatively can
prevail by showing that the respondent's `` `reason, while true, is
only one of the reasons for its conduct,' '' and that another reason
was the complainant's protected activity. See Klopfenstein v. PCC Flow
Techs. Holdings, Inc., ARB No. 04-149, 2006 WL 3246904, at * 13 (ARB
May 31, 2006) (quoting Rachid v. Jack in the Box, Inc., 376 F.3d 305,
312 (5th Cir. 2004)) (discussing contributing factor test under the
Sarbanes-Oxley whistleblower provision), aff'd sub nom. Klopfenstein v.
Admin. Review Bd., U.S. Dep't of Labor, 402 F. App'x 936, 2010 WL
4746668 (5th Cir. 2010).
    If OSHA finds reasonable cause to believe that the alleged
protected activity was a contributing factor in the adverse action,
OSHA may not order relief if the employer demonstrates by clear and
convincing evidence that it would have taken the same action in the
absence of the protected activity. See 21 U.S.C. 399d(b)(2)(C). The
``clear and convincing evidence'' standard is a higher burden of proof
than a ``preponderance of the evidence'' standard. Clear and convincing
evidence is evidence indicating that the thing to be proved is highly
probable or reasonably certain. Clarke, 2011 WL 2614326, at * 3.
    Paragraph (f) describes the procedures OSHA will follow prior to
the issuance of findings and a preliminary order when OSHA has
reasonable cause to believe that a violation has occurred.
    Roll commented that this section of the IFR did not explicitly
state that the respondent has the right to receive copies of the
substantive evidence provided by the complainant, and Roll states that
it is ``essential that both

parties receive equal access to all documents throughout the entire
matter.'' OSHA agrees that the input of both parties in the
investigation is important to ensure that OSHA reaches the proper
outcome during its investigation. In fact, OSHA's current policy is to
request that each party provide the other parties with a copy of all
submissions to OSHA that are pertinent to the whistleblower complaint.
Where the parties do not provide each other such submissions, OSHA will
ensure that each party is provided with such information after
redacting the submissions as appropriate. OSHA has revised paragraph
(c) to clarify these policies regarding information sharing during the
course of an investigation. Further information regarding OSHA's
nonpublic disclosure and information sharing policies also may be found
in the Whistleblower Investigations Manual, available at, http://www.whistleblowers.gov/regulations_page.html.
    Roll also commented that the IFR did not provide the complainant
and the respondent equal opportunity to respond to the each other's
submissions to OSHA. OSHA has revised paragraph (c) to clarify that
OSHA will ensure that each party is provided with an opportunity to
respond to the other party's submissions.
    Apart from the changes to paragraph (c) described above, OSHA has
reworded paragraphs (a) and (f) slightly to clarify the paragraphs
without changing their meaning.
Section 1987.105 Issuance of Findings and Preliminary Orders
    This section provides that, on the basis of information obtained in
the investigation, the Assistant Secretary will issue, within 60 days
of the filing of a complaint, written findings regarding whether or not
there is reasonable cause to believe that the complaint has merit. If
the findings are that there is reasonable cause to believe that the
complaint has merit, the Assistant Secretary will order appropriate
relief, including preliminary reinstatement, affirmative action to
abate the violation, back pay with interest, and compensatory damages.
The findings and, where appropriate, preliminary order, advise the
parties of their right to file objections to the findings of the
Assistant Secretary and to request a hearing. The findings and, where
appropriate, preliminary order, also advise the respondent of the right
to request an award of attorney fees not exceeding $1,000 from the ALJ,
regardless of whether the respondent has filed objections, if the
respondent alleges that the complaint was frivolous or brought in bad
faith. If no objections are filed within 30 days of receipt of the
findings, the findings and any preliminary order of the Assistant
Secretary become the final decision and order of the Secretary. If
objections are timely filed, any order of preliminary reinstatement
will take effect, but the remaining provisions of the order will not
take effect until administrative proceedings are completed.
    As explained in the IFR, in ordering interest on back pay under
FSMA, the Secretary has determined that interest due will be computed
by compounding daily the Internal Revenue Service interest rate for the
underpayment of taxes, which under 26 U.S.C. 6621 is generally the
Federal short-term rate plus three percentage points. 79 FR 8623. The
Secretary has long applied the interest rate in 26 U.S.C. 6621 to
calculate interest on backpay in whistleblower cases. Doyle v. Hydro
Nuclear Servs., ARB Nos. 99-041, 99-042, 00-012, 2000 WL 694384, at
*14-15, 17 (ARB May 17, 2000); see also Cefalu v. Roadway Express,
Inc., ARB No. 09-070, 2011 WL 1247212, at *2 (ARB Mar. 17, 2011);
Pollock v. Cont'l Express, ARB Nos. 07-073, 08-051, 2010 WL 1776974, at
*8 (ARB Apr. 10, 2010); Murray v. Air Ride, Inc., ARB No. 00-045, slip
op. at 9 (ARB Dec. 29, 2000). Section 6621 provides the appropriate
measure of compensation under FSMA and other DOL-administered
whistleblower statutes because it ensures the complainant will be
placed in the same position he or she would have been in if no unlawful
retaliation occurred. See Ass't Sec'y v. Double R. Trucking, Inc., ARB
No. 99-061, slip op. at 5 (ARB July 16, 1999) (interest awards pursuant
to Sec.  6621 are mandatory elements of complainant's make-whole
remedy). Section 6621 provides a reasonably accurate prediction of
market outcomes (which represents the loss of investment opportunity by
the complainant and the employer's benefit from use of the withheld
money) and thus provides the complainant with appropriate make-whole
relief. See EEOC v. Erie Cnty., 751 F.2d 79, 82 (2d Cir. 1984)
(``[s]ince the goal of a suit under the [Fair Labor Standards Act] and
the Equal Pay Act is to make whole the victims of the unlawful
underpayment of wages, and since [Sec.  6621] has been adopted as a
good indicator of the value of the use of money, it was well within''
the district court's discretion to calculate prejudgment interest under
Sec.  6621); New Horizons for the Retarded, 283 N.L.R.B. No. 181, 1987
WL 89652, at *2 (NLRB May 28, 1987) (observing that ``the short-term
Federal rate [used by Sec.  6621] is based on average market yields on
marketable Federal obligations and is influenced by private economic
market forces''). Similarly, as explained in the IFR, daily compounding
of the interest award ensures that complainants are made whole for
unlawful retaliation in violation of FSMA. 79 FR 8623.
    As explained in the IFR, in ordering back pay, OSHA will require
the respondent to submit the appropriate documentation to the Social
Security Administration (SSA) allocating the back pay to the
appropriate calendar quarters. Requiring the reporting of back pay
allocation to the SSA serves the remedial purposes of FSMA by ensuring
that employees subjected to retaliation are truly made whole. See 79 FR
8623; see also Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No.
10, 2014 WL 3897178, at *4-5 (NLRB Aug. 8, 2014).
    Finally, as noted in the IFR, in limited circumstances, in lieu of
preliminary reinstatement, OSHA may order that the complainant receive
the same pay and benefits that he or she received prior to termination,
but not actually return to work. See 79 FR 8623. Such ``economic
reinstatement'' is akin to an order for front pay and frequently is
employed in cases arising under section 105(c) of the Federal Mine
Safety and Health Act of 1977, which protects miners from retaliation.
30 U.S.C. 815(c); see, e.g., Sec'y of Labor ex rel. York v. BR&D
Enters., Inc., 23 FMSHRC 697, 2001 WL 1806020, at *1 (ALJ June 26,
2001). Front pay has been recognized as a possible remedy in cases
under the whistleblower statutes enforced by OSHA in limited
circumstances where reinstatement would not be appropriate. See, e.g.,
Luder v. Cont'l Airlines, Inc., ARB No. 10-026, 2012 WL 376755, at *11
(ARB Jan. 31, 2012), aff'd, Cont'l Airlines, Inc. v. Admin. Rev. Bd.,
No. 15-60012, slip op. at 8, 2016 WL 97461, at *4 (5th Cir. Jan. 7,
2016) (unpublished) (under Wendell H. Ford Aviation Investment and
Reform Act for the 21st Century, ``front-pay is available when
reinstatement is not possible''); Moder v. Vill. of Jackson, ARB Nos.
01-095, 02-039, 2003 WL 21499864, at *10 (ARB June 30, 2003) (under
environmental whistleblower statutes, ``front pay may be an appropriate
substitute when the parties prove the impossibility of a productive and
amicable working relationship, or the company no longer has a position
for which the complainant is qualified'').
    Roll commented on the discussion in the IFR of ``economic
reinstatement''

and front pay and suggested that OSHA should include specific
guidelines pertaining to front pay awards. Roll noted that the IFR
provided examples of situations where front pay might be appropriate,
but the rules themselves do not explicitly state that front pay is an
available remedy, which could be ``misleading.'' Further, Roll
questioned whether OSHA has authority to order front pay as a remedy.
    OSHA declines to adopt specific guidelines pertaining to front pay
awards in these rules. As explained in the IFR, the appropriateness of
``economic reinstatement'' or front pay as an alternative to the
default statutory remedy of reinstatement has long been recognized.
OSHA believes that relevant case law more appropriately addresses the
parameters for issuing an award of front pay in lieu of reinstatement.
See, e.g., Luder, ARB No. 10-026, slip op. at *11. (holding that front
pay must be awarded according to reasonable parameters such as the
amount of the proposed award, the length of time the complainant
expects to be out of work, and the applicable discount rate) (internal
quotation marks and citations omitted), front pay award modified, Luder
v. Cont'l Airlines, Inc., ARB No. 13-009, 2014 WL 6850012 (ARB Nov.
2014), aff'd, Cont'l Airlines, Inc. v. Admin. Review Bd., No. 15-60012,
slip op. at 8, 2016 WL 97461, at *4 (5th Cir. Jan. 7, 2016)
(unpublished).
    Kalijarvi requested that the rule include a reference to Blackburn
v. Martin, 982 F.2d 125 (4th Cir. 1992) to inform the public that
emotional distress damages may be awarded without the testimony of
expert witnesses. A number of ARB decisions have awarded such damages
without the testimony of expert witnesses in appropriate circumstances.
See e.g., Lockheed Martin Corp. v. Admin. Review Bd., 717 F.3d 1121,
1138 (10th Cir. 2013) (upholding an award of $75,000 for emotional pain
and suffering without requiring the testimony of expert witnesses);
Menendez v. Halliburton, Inc., ARB Nos 09-002, 09-003 2013 WL 1282255,
at *11-12 (ARB Mar. 15, 2013) (upholding award of $30,000 for emotional
distress and reputational harm without requiring expert testimony)
aff'd sub nom. Halliburton, Inc. v. Admin. Review Bd., 771 F.3d 254
(5th Cir. 2014). OSHA believes that these cases adequately serve to
notify the public that emotional distress damages may be awarded
without the testimony of expert witnesses.
    For these reasons, OSHA has made no changes to the text of this
section.

Subpart B--Litigation

Section 1987.106 Objections to the Findings and the Preliminary Order
and Requests for a Hearing
    To be effective, objections to the findings of the Assistant
Secretary must be in writing and must be filed with the Chief
Administrative Law Judge, U.S. Department of Labor, within 30 days of
receipt of the findings. The date of the postmark, facsimile
transmittal, or electronic communication transmittal is considered the
date of the filing; if the objection is filed in person, by hand-
delivery or other means, the objection is filed upon receipt. The
filing of objections also is considered a request for a hearing before
an ALJ. Although the parties are directed to serve a copy of their
objections on the other parties of record, as well as the OSHA official
who issued the findings and order, the Assistant Secretary, and the
U.S. Department of Labor's Associate Solicitor for Fair Labor
Standards, the failure to serve copies of the objections on the other
parties of record does not affect the ALJ's jurisdiction to hear and
decide the merits of the case. See Shirani v. Calvert Cliffs Nuclear
Power Plant, Inc., ARB No. 04-101, 2005 WL 2865915, at *7 (ARB Oct. 31,
2005).
    The timely filing of objections stays all provisions of the
preliminary order, except for the portion requiring reinstatement. A
respondent may file a motion to stay the Assistant Secretary's
preliminary order of reinstatement with the Office of Administrative
Law Judges. However, such a motion will be granted only based on
exceptional circumstances. The Secretary believes that a stay of the
Assistant Secretary's preliminary order of reinstatement under FSMA
would be appropriate only where the respondent can establish the
necessary criteria for equitable injunctive relief, i.e., irreparable
injury, likelihood of success on the merits, a balancing of possible
harms to the parties, and the public interest favors a stay. If no
timely objection to the Assistant Secretary's findings and/or
preliminary order is filed, then the Assistant Secretary's findings
and/or preliminary order become the final decision of the Secretary not
subject to judicial review.
    No comments were received on this section, and no changes were made
to it.
Section 1987.107 Hearings
    This section adopts the rules of practice and procedure for
administrative hearings before the Office of Administrative Law Judges
as set forth in 29 CFR part 18 subpart A. This section provides that
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. As noted in this section, 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.
    No comments were received on this section, and no changes were made
to it.
Section 1987.108 Role of Federal Agencies
    The Assistant Secretary, at his or her discretion, may participate
as a party or amicus curiae at any time in the administrative
proceedings under FSMA. For example, the Assistant Secretary may
exercise his or her discretion to prosecute the case in the
administrative proceeding before an ALJ; petition for review of a
decision of an ALJ, including a decision based on a settlement
agreement between the complainant and the respondent, regardless of
whether the Assistant Secretary participated before the ALJ; or
participate as amicus curiae before the ALJ or in the ARB proceeding.
Although OSHA anticipates that ordinarily the Assistant Secretary will
not participate, the Assistant Secretary may choose to do so in
appropriate cases, such as cases involving important or novel legal
issues, multiple employees, alleged violations that appear egregious,
or where the interests of justice might require participation by the
Assistant Secretary. The FDA, if interested in a proceeding, also may
participate as amicus curiae at any time in the proceedings.
    No comments were received on this section, though minor changes
were made as needed to clarify the provision without changing its
meaning.
Section 1987.109 Decision and Orders of the Administrative Law Judge
    This section sets forth the requirements for the content of the
decision and order of the ALJ, and includes the standard for finding a
violation under FSMA. Specifically, the complainant must demonstrate
(i.e., prove by a preponderance of the evidence) that the protected
activity was a ``contributing factor'' in the adverse action. See,
e.g., Allen v. Admin. Review Bd., 514 F.3d 468, 475 n.1 (5th Cir. 2008)
(``The term `demonstrates' [under identical burden-shifting scheme in
the Sarbanes-Oxley whistleblower provision] means to prove by a

preponderance of the evidence.''). If the employee demonstrates that
the alleged protected activity was a contributing factor in the adverse
action, the employer, to escape liability, must demonstrate by ``clear
and convincing evidence'' that it would have taken the same action in
the absence of the protected activity. See 21 U.S.C. 399d(b)(2)(C).
    Paragraph (c) of this section further provides that OSHA's
determination to dismiss the complaint without an investigation or
without a complete investigation under section 1987.104 is not subject
to review. Thus, section 1987.109(c) clarifies that OSHA's
determinations on whether to proceed with an investigation under FSMA
and whether to make particular investigative findings are discretionary
decisions not subject to review by the ALJ. The ALJ hears cases de novo
and, therefore, as a general matter, may not remand cases to OSHA to
conduct an investigation or make further factual findings.
    Paragraph (d) notes the remedies that the ALJ may order under FSMA
and, as discussed under section 1987.105 above, provides that 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, and that the respondent will be required to submit appropriate
documentation to the SSA allocating any back pay award to the
appropriate calendar quarters. Paragraph (e) requires that the ALJ's
decision be served on all parties to the proceeding, OSHA, and the U.S.
Department of Labor's Associate Solicitor for Fair Labor Standards.
Paragraph (e) also provides that any ALJ 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 ARB. If no timely petition for review is
filed with the ARB, the decision of the ALJ becomes the final decision
of the Secretary and is not subject to judicial review.
    No comments were received on this section, and no changes were made
to it.
Section 1987.110 Decision and Orders of the Administrative Review Board
    Upon the issuance of the ALJ's decision, the parties have 14 days
within which to petition the ARB for review of that decision. The date
of the postmark, facsimile transmittal, or electronic communication
transmittal is considered the date of filing of the petition; if the
petition is filed in person, by hand delivery or other means, the
petition is considered filed upon receipt.
    The appeal provisions in this part provide that an appeal to the
ARB is not a matter of right but is accepted at the discretion of the
ARB. 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. The ARB has 30 days to decide whether to grant the
petition for review. If the ARB does not grant the petition, the
decision of the ALJ becomes the final decision of the Secretary. If a
timely petition for review is filed with the ARB, any relief ordered by
the ALJ, except for that portion ordering reinstatement, is inoperative
while the matter is pending before the ARB. If the ARB accepts a
petition for review, the ALJ's factual determinations will be reviewed
under the substantial evidence standard.
    Kalijarvi submitted several comments related to this section of the
rule. Kalijarvi requested the removal of the portion of the rule
stating that objections not raised in the petition for review to the
ARB may be considered waived. Instead, Kalijarvi requested that the
provision be altered to instruct parties to identify in their petitions
for review the legal conclusions or orders to which they object so that
the ARB may determine whether the review presents issues worthy of full
briefing. OSHA declines to revise the rule as Kalijarvi has proposed.
OSHA notes that the IFR used the phrase ``may'' be deemed waived,
indicating that the parties are not necessarily barred from
subsequently raising grounds in addition to those included in the
initial petition. Further, OSHA's inclusion of this provision is not
intended to limit the circumstances in which parties can add additional
grounds for review as a case progresses before the ARB; rather, the
rules include this provision to put the public on notice of the
possible consequences of failing to specify the basis of an appeal to
the ARB. OSHA recognizes that, while the ARB has held in some instances
that an exception not specifically urged may be deemed waived, the ARB
also has found that the rules provide for exceptions to this general
rule.
    Kalijarvi also requested that the deadline for filing a petition
for review with the ARB be extended past 14 days, and for this section
to allow explicitly for the parties to file a motion to extend the time
for submitting a petition for review. Kalijarvi further requested that
OSHA explain how the current text of the section furthers FSMA's
remedial purpose. OSHA declines to extend the time limit to petition
for review because the shorter review period is consistent with the
practices and procedures followed in OSHA's other whistleblower
programs. Furthermore, as Kalijarvi acknowledges in its comment,
parties may file a motion for extension of time to appeal an ALJ's
decision, and the ARB has discretion to grant such extensions. OSHA
believes that mentioning a motion for an extension of time in these
rules, where no other motions are mentioned, could lead the public to
mistakenly conclude that the 14 day deadline may be waived as a matter
of right, where such is not the case.
    OSHA believes that this section furthers the remedial purpose of
FSMA by informing the public of the option of requesting ARB review of
ALJ decisions as well as the deadlines associated with such review.
    This section also provides that, based on exceptional
circumstances, the ARB may grant a motion to stay an ALJ's preliminary
order of reinstatement under FSMA, which otherwise would be effective,
while review is conducted by the ARB. The Secretary believes that a
stay of an ALJ's preliminary order of reinstatement under FSMA would be
appropriate only where the respondent can establish the necessary
criteria for equitable injunctive relief, i.e., irreparable injury,
likelihood of success on the merits, a balancing of possible harms to
the parties, and the public interest favors a stay.
    If the ARB concludes that the respondent has violated the law, it
will order the respondent to take appropriate affirmative action to
abate the violation, including reinstatement of the complainant to that
person's former position, together with the compensation (including
back pay and interest), terms, conditions, and privileges of
employment, and compensatory damages. At the request of the
complainant, the ARB will assess against the respondent all costs and
expenses (including attorney and expert witness fees) reasonably
incurred. 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, and the respondent will be required to submit
appropriate documentation to the Social Security Administration (SSA)
allocating any back pay award to the appropriate calendar quarters. 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 was
frivolous or was brought in bad faith, the ARB may award to the
respondent a reasonable attorney fee, not exceeding $1,000, to be paid
by the complainant.
    No changes were made to this section, and other than the comments
discussed above, no additional comments were received on this section.

Subpart C--Miscellaneous Provisions

Section 1987.111 Withdrawal of Complaints, Findings, Objections, and
Petitions for Review; Settlement
    This section provides the procedures and time periods for
withdrawal of complaints, the withdrawal of findings and/or preliminary
orders by the Assistant Secretary, and the withdrawal of objections to
findings and/or orders. It permits complainants to withdraw their
complaints orally and provides that, in such circumstances, OSHA will
confirm a complainant's desire to withdraw in writing. It also provides
for approval of settlements at the investigative and adjudicative
stages of the case.
    Roll commented that this provision should state explicitly that
settlements may be conducted in a confidential manner and outside of
the administrative proceedings. Because the IFR did not plainly provide
such assurances, Roll expressed concern that ``the lack of
confidentiality will work as a disincentive for both parties . . .
[and] will ultimately lead to fewer out-of-court settlements. . . .''
Roll further commented that this section should include guidelines
regarding when the Secretary will approve or disapprove a settlement
agreement, as well as an explanation regarding the settlement options
that are available to the parties.
    OSHA is not making any changes to the rule in response to this
comment. This section implements FSMA's statutory provision that ``[a]t
any time before issuance of a final order, a proceeding under this
subsection may be terminated on the basis of a settlement agreement
entered into by the Secretary, the complainant, and the person alleged
to have committed the violation.'' 21 U.S.C. 399(b)(3)(A). However,
OSHA notes that the Secretary has always recognized that parties may
efficiently resolve cases in negotiations between themselves. The
Secretary's policy is to approve privately negotiated settlements,
provided that each settlement is reviewed by the Secretary to ensure
that the terms are fair, adequate, reasonable, and consistent with the
purpose and intent of the relevant whistleblower statute and the public
interest. See, e.g., Macktal v. Sec'y of Labor, 923 F.2d 1150, 1154
(5th Cir. 1991) (agreeing that the Secretary may ``enter into'' a
settlement by approving a settlement negotiated and agreed to by the
parties); see also OSHA's Whistleblower Investigations Manual, pp. 6-18
to 6-21 (Apr. 21, 2015) available at http://www.whistleblowers.gov/regulations_page.html. OSHA believes that paragraphs (d)(1) and (2)
adequately explain that a settlement agreement reached between the
parties will settle a pending whistleblower case so long as the
agreement is reviewed and approved by OSHA, an ALJ, or the ARB. The
resources listed above provide more detailed guidance on when OSHA, an
ALJ or the ARB will approve or disprove a settlement agreement, and
OSHA thus believes it unnecessary to add such additional details to the
regulatory text.
    As to Roll's confidentiality concerns, OSHA, an ALJ or the ARB will
not approve an agreement that states or implies that any of these
entities, or DOL more generally, is party to a confidentiality
agreement. Moreover, as noted in paragraph (e) of this section, any
settlement approved by OSHA, the ALJ, or the ARB will constitute the
final order of the Secretary, and as such, an approved agreement is an
official government record that is subject to applicable public
disclosure rules. See, e.g., Gonzalez v. J.C. Penny Corp., Inc., ARB
No. 10-148, 2012 WL 4753923, at *6 (ARB Sept. 28, 2012) (describing the
public interest supporting the Secretary's review of settlement
agreements); McGuire v. B.P. Prods. N. Am., Inc., 2014-TSC-0001, slip
op. at 6-11 (ALJ Jan. 17, 2014) (describing public disclosure interests
relating to whistleblower settlements and some of the provisions that
the Secretary may not approve in a whistleblower settlement). Thus, for
example, while parties may negotiate the terms of a settlement
agreement in confidence and may indicate to OSHA, an ALJ or the ARB
that they believe a settlement contains information exempt from
disclosure under the Freedom of Information Act (FOIA) and that they
should receive pre-disclosure notification of a request for disclosure,
the Secretary must make his own determination of whether the contents
of a settlement may be withheld in response to a request from a member
of the public. See, e.g., Vannoy v. Celanese Corp., ARB No. 09-118,
2013 WL 5872048, at *2 (ARB Sept. 27, 2013) (describing the application
of FOIA to a whistleblower settlement).
Section 1987.112 Judicial Review
    This section describes the statutory provisions for judicial review
of decisions of the Secretary and requires, in cases where judicial
review is sought, the ALJ or the ARB to submit the record of
proceedings to the appropriate court pursuant to the rules of such
court. No comments were received on this section, and no changes were
made to it.
Section 1987.113 Judicial Enforcement
    This section describes the Secretary's power under FSMA to obtain
judicial enforcement of orders and the terms of settlement agreements.
FSMA expressly authorizes district courts to enforce orders, including
preliminary orders of reinstatement, issued by the Secretary. See 21
U.S.C. 399d(b)(6) (``Whenever any person has failed to comply with an
order issued under paragraph (3), the Secretary may file a civil action
in the United States district court for the district in which the
violation was found to occur, or in the United States district court
for the District of Columbia, to enforce such order.''). Specifically,
reinstatement orders issued at the close of OSHA's investigation are
immediately enforceable in district court pursuant to 21 U.S.C.
399d(b)(6) and (7). FSMA provides that the Secretary shall order the
person who has committed a violation to reinstate the complainant to
his or her former position. See 21 U.S.C. 399d(b)(3)(B)(ii). FSMA also
provides that the Secretary shall accompany any reasonable cause
finding that a violation occurred with a preliminary order containing
the relief prescribed by subsection (b)(3)(B), which includes
reinstatement where appropriate, and that any preliminary order of
reinstatement shall not be stayed upon the filing of objections. See 21
U.S.C. 399d(b)(2)(B) (``The filing of such objections shall not operate
to stay any reinstatement remedy contained in the preliminary
order.''). Thus, under FSMA, enforceable orders include preliminary
orders that contain the relief of reinstatement prescribed by 21 U.S.C.
399d(b)(3)(B). This statutory interpretation is consistent with the
Secretary's interpretation of similar language in the whistleblower
provisions of the Wendell H. Ford Aviation Investment and Reform Act
for the 21st Century, 49 U.S.C. 42121, and Section 806 of the Corporate
and Criminal Fraud Accountability Act of 2002, Title VIII of the
Sarbanes-Oxley Act of 2002, 18 U.S.C. 1514A. See Brief for the
Intervenor/Plaintiff-Appellee Secretary of Labor, Solis v. Tenn.
Commerce Bancorp, Inc., No. 10-5602

(6th Cir. 2010); Solis v. Tenn. Commerce Bancorp, Inc., 713 F. Supp. 2d
701 (M.D. Tenn. 2010); but see Bechtel v. Competitive Techs., Inc., 448
F.3d 469 (2d Cir. 2006); Welch v. Cardinal Bankshares Corp., 454 F.
Supp. 2d 552 (W.D. Va. 2006) (decision vacated, appeal dismissed, No.
06-2295 (4th Cir. Feb. 20, 2008)). FSMA also permits the person on
whose behalf the order was issued to obtain judicial enforcement of the
order. See 21 U.S.C. 399d(b)(7).
    No comments were received on this section. OSHA has revised this
section slightly to more closely parallel the provisions of the statute
regarding the proper venue for an enforcement action.
Section 1987.114 District Court Jurisdiction of Retaliation Complaints
    This section sets forth provisions that allow a complainant to
bring an original de novo action in district court, alleging the same
allegations contained in the complaint filed with OSHA, under certain
circumstances. FSMA permits a complainant to file an action for de novo
review in the appropriate district court if there has been no final
decision of the Secretary within 210 days of the filing of the
complaint, or within 90 days after receiving a written determination.
``Written determination'' refers to the Assistant Secretary's written
findings issued at the close of OSHA's investigation under section
1987.105(a). See 21 U.S.C. 399d(b)(4). The Secretary's final decision
is generally the decision of the ARB issued under section 1987.110. In
other words, a complainant may file an action for de novo review in the
appropriate district court in either of the following two
circumstances: (1) A complainant may file a de novo action in district
court within 90 days of receiving the Assistant Secretary's written
findings issued under section 1987.105(a), or (2) a complainant may
file a de novo action in district court if more than 210 days have
passed since the filing of the complaint and the Secretary has not
issued a final decision. The plain language of 21 U.S.C. 399d(b)(4), by
distinguishing between actions that can be brought if the Secretary has
not issued a ``final decision'' within 210 days and actions that can be
brought within 90 days after a ``written determination,'' supports
allowing de novo actions in district court under either of the
circumstances described above.
    However, the Secretary believes that FSMA does not permit
complainants to initiate an action in federal court after the Secretary
issues a final decision, even if the date of the final decision is more
than 210 days after the filing of the complaint or within 90 days of
the complainant's receipt of the Assistant Secretary's written
findings. The purpose of the ``kick-out'' provision is to aid the
complainant in receiving a prompt decision. That goal is not implicated
in a situation where the complainant already has received a final
decision from the Secretary. In addition, permitting the complainant to
file a new case in district court in such circumstances conflicts with
the parties' right to seek judicial review of the Secretary's final
decision in the court of appeals. See 21 U.S.C. 399d(b)(5)(B)
(providing that an order with respect to which review could have been
obtained in the court of appeals shall not be subject to judicial
review in any criminal or other civil proceeding).
    Under FSMA, the Assistant Secretary's written findings become the
final order of the Secretary, not subject to judicial review, if no
objection is filed within 30 days. See 21 U.S.C. 399d(b)(2)(B). Thus, a
complainant may need to file timely objections to the Assistant
Secretary's findings, as provided for in Sec.  1987.106, in order to
preserve the right to file an action in district court.
    This section also requires that, within seven days after filing a
complaint in district court, a complainant must provide a file-stamped
copy of the complaint to OSHA, the ALJ, or the ARB, depending on where
the proceeding is pending. In all cases, a copy of the complaint also
must be provided to the OSHA official who issued the findings and/or
preliminary order, the Assistant Secretary, and the U.S. Department of
Labor's Associate Solicitor for Fair Labor Standards. This provision is
necessary to notify the agency that the complainant has opted to file a
complaint in district court. This provision is not a substitute for the
complainant's compliance with the requirements for service of process
of the district court complaint contained in the Federal Rules of Civil
Procedure and the local rules of the district court where the complaint
is filed. This section also incorporates the statutory provisions which
allow for a jury trial at the request of either party in a district
court action, and which specify the remedies and burdens of proof in a
district court action.
    In response to the IFR preamble's statement that the purpose of the
``kick-out'' provision is to ``aid the complainant in receiving a
prompt decision,'' Kalijarvi commented that the kick-out provision
offers additional benefits to complainants, such as an opportunity to
receive a jury determination of damages. Indeed, Paragraph (a) of this
section provides that an action brought under this section is entitled
to trial by jury. OSHA appreciates Kalijarvi's comment, but has left
the text of the rule unchanged.
Section 1987.115 Special Circumstances; Waiver of Rules
    This section provides that in circumstances not contemplated by
these rules or for good cause the ALJ or the ARB may, upon application
and notice to the parties, waive any rule as justice or the
administration of FSMA requires. No comments were received on this
section, and no changes were made to it.

IV. Paperwork Reduction Act

    This rule contains a reporting provision (filing a retaliation
complaint, Section 1987.103) which was previously reviewed and approved
for use by the Office of Management and Budget (OMB) under the
provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13). The
assigned OMB control number is 1218-0236.

V. Administrative Procedure Act

    The notice and comment rulemaking procedures of section 553 of the
Administrative Procedure Act (APA) do not apply ``to interpretative
rules, general statements of policy, or rules of agency organization,
procedure, or practice.'' 5 U.S.C. 553(b)(A). This is a rule of agency
procedure, practice, and interpretation within the meaning of that
section, since it provides procedures for the Department's handling of
retaliation complaints. Therefore, publication in the Federal Register
of a notice of proposed rulemaking and request for comments are not
required for these regulations. Although this rule is not subject to
the notice and comment procedures of the APA, the Assistant Secretary
sought and considered comments to enable the agency to improve the
rules by taking into account the concerns of interested persons.
    Furthermore, because this rule is procedural and interpretative
rather than substantive, the normal requirement of 5 U.S.C. 553(d) that
a rule is effective 30 days after publication in the Federal Register
is inapplicable. The Assistant Secretary also finds good cause to
provide an immediate effective date for this rule. It is in the public
interest that the rule be effective immediately so both parties may
know what procedures are applicable to pending cases.

VI. Executive Orders 12866 and 13563; Unfunded Mandates Reform Act of
1995; Executive Order 13132

    The Department has concluded that this rule is not a ``significant
regulatory action'' within the meaning of section 3(f)(4) of Executive
Order 12866, as reaffirmed by Executive Order 13563, because it is not
likely to result in a rule that may: (1) Have an annual effect on the
economy of $100 million or more or adversely affect in a material way
the economy, a sector of the economy, productivity, competition, jobs,
the environment, public health or safety, or State, local, or tribal
governments or communities; (2) create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
Executive Order 12866. Therefore, no regulatory impact analysis under
Section 6(a)(3)(C) of Executive Order 12866 has been prepared.
    For this reason, and because no notice of proposed rulemaking has
been published, no statement is required under Section 202 of the
Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531 et seq. Finally,
this rule does not have ``federalism implications.'' The rule does not
have ``substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government''
and therefore is not subject to Executive Order 13132 (Federalism).

VII. Regulatory Flexibility Analysis

    The notice and comment rulemaking procedures of Section 553 of the
APA do not apply ``to interpretative rules, general statements of
policy, or rules of agency organization, procedure, or practice.'' 5
U.S.C. 553(b)(A). Rules that are exempt from APA notice and comment
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 9 (May 2012); also found at:
http://www.sba.gov/sites/default/files/rfaguide_0512_0.pdf. This is a
rule of agency procedure, practice, and interpretation within the
meaning of that section; therefore, the rule is exempt from both the
notice and comment rulemaking procedures of the APA and the
requirements under the RFA.

List of Subjects in 29 CFR Part 1987

    Administrative practice and procedure, Employment, Food safety,
Investigations, Reporting and recordkeeping requirements,
Whistleblower.

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 April 11, 2016.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.

    Accordingly, for the reasons set out in the preamble, 29 CFR part
1987 is revised to read as follows:

PART 1987--PROCEDURES FOR HANDLING RETALIATION COMPLAINTS UNDER
SECTION 402 OF THE FDA FOOD SAFETY MODERNIZATION ACT

Subpart A--Complaints, Investigations, Findings and Preliminary Orders
1987.100 Purpose and scope.
1987.101 Definitions.
1987.102 Obligations and prohibited acts.
1987.103 Filing of retaliation complaint.
1987.104 Investigation.
1987.105 Issuance of findings and preliminary orders.
Subpart B--Litigation
1987.106 Objections to the findings and the preliminary order and
requests for a hearing.
1987.107 Hearings.
1987.108 Role of Federal agencies.
1987.109 Decision and orders of the administrative law judge.
1987.110 Decision and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
1987.111 Withdrawal of complaints, findings, objections, and
petitions for review; settlement.
1987.112 Judicial review.
1987.113 Judicial enforcement.
1987.114 District court jurisdiction of retaliation complaints.
1987.115 Special circumstances; waiver of rules.

    Authority: 21 U.S.C. 399d; Secretary of Labor's Order No. 1-2012
(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.  1987.100  Purpose and scope.

    (a) This part sets forth the procedures for, and interpretations
of, section 402 of the FDA Food Safety Modernization Act (FSMA), Public
Law 111-353, 124 Stat. 3885, which was signed into law on January 4,
2011. Section 402 of the FDA Food Safety Modernization Act amended the
Federal Food, Drug, and Cosmetic Act (FD&C), 21 U.S.C. 301 et seq., by
adding new section 1012. See 21 U.S.C. 399d. Section 1012 of the FD&C
provides protection for an employee from retaliation because the
employee has engaged in protected activity pertaining to a violation or
alleged violation of the FD&C, or any order, rule, regulation,
standard, or ban under the FD&C.
    (b) This part establishes procedures under section 1012 of the FD&C
for the expeditious handling of retaliation complaints filed by
employees, or by persons acting on their behalf. The rules in this
part, together with those codified at 29 CFR part 18, set forth the
procedures under section 1012 of the FD&C 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. In
addition, the rules in this part provide the Secretary's
interpretations on certain statutory issues.

Sec.  1987.101  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 FSMA.
    (b) Business days means days other than Saturdays, Sundays, and
Federal holidays.
    (c) Complainant means the employee who filed a complaint under FSMA
or on whose behalf a complaint was filed.
    (d) Covered entity means an entity engaged in the manufacture,
processing, packing, transporting, distribution, reception, holding, or
importation of food.
    (e) Employee means an individual presently or formerly working for
a covered entity, an individual applying to work for a covered entity,
or an individual whose employment could be affected by a covered
entity.
    (f) FD&C means the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.
301 et seq., which is chapter 9 of title 21.

    (g) FDA means the Food and Drug Administration of the United States
Department of Health and Human Services.
    (h) Food means articles used for food or drink for man or other
animals, chewing gum, and articles used for components of any such
article.
    (i) FSMA means section 402 of the FDA Food Safety Modernization
Act, Public Law 111-353, 124 Stat. 3885 (Jan. 4, 2011) (codified at 21
U.S.C. 399d).
    (j) OSHA means the Occupational Safety and Health Administration of
the United States Department of Labor.
    (k) Person includes an individual, partnership, corporation, and
association.
    (l) Respondent means the employer named in the complaint who is
alleged to have violated the FSMA.
    (m) Secretary means the Secretary of Labor or person to whom
authority under the FSMA 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.  1987.102  Obligations and prohibited acts.

    (a) No covered entity may discharge or otherwise retaliate against,
including, but not limited to, intimidating, threatening, restraining,
coercing, blacklisting or disciplining, any employee with respect to
the employee's compensation, terms, conditions, or privileges of
employment because the employee, whether at the employee's initiative
or in the ordinary course of the employee's duties (or any person
acting pursuant to a request of the employee), has engaged in any of
the activities specified in paragraphs (b)(1) through (4) of this
section.
    (b) An employee is protected against retaliation because the
employee (or any person acting pursuant to a request of the employee)
has:
    (1) Provided, caused to be provided, or is about to provide or
cause to be provided to the employer, the Federal Government, or the
attorney general of a State information relating to any violation of,
or any act or omission the employee reasonably believes to be a
violation of any provision of the FD&C or any order, rule, regulation,
standard, or ban under the FD&C
    (2) Testified or is about to testify in a proceeding concerning
such violation;
    (3) Assisted or participated or is about to assist or participate
in such a proceeding; or
    (4) Objected to, or refused to participate in, any activity,
policy, practice, or assigned task that the employee (or other such
person) reasonably believed to be in violation of any provision of the
FD&C, or any order, rule, regulation, standard, or ban under the FD&C.

Sec.  1987.103  Filing of retaliation complaint.

    (a) Who may file. An employee who believes that he or she has been
retaliated against in violation of FSMA 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
FSMA occurs, any employee who believes that he or she has been
retaliated against in violation of that section 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 to be
tolled if a complainant mistakenly files a complaint with an agency
other than OSHA within 180 days after an alleged adverse action.

Sec.  1987.104  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.  1987.110(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 FDA.
    (b) Within 20 days of receipt of the notice of the filing of the
complaint provided under paragraph (a) of this section, the respondent
and the complainant each may submit to OSHA a written statement and any
affidavits or documents substantiating its position. Within the same 20
days, the respondent and the complainant each 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 (i.e., a non-frivolous allegation) that a
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;
    (ii) The respondent knew or suspected that the employee engaged in
the protected activity;
    (iii) The employee suffered an adverse action; and
    (iv) The circumstances were sufficient to raise the inference that
the protected activity 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 and that the protected activity
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 within a temporal proximity of 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 paragraph (e)(4) of this section, 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.  1987.105, if OSHA has reasonable cause, on the
basis of information gathered under the procedures of this part, to
believe that the respondent has violated FSMA 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 thereafter as OSHA
and the respondent can agree, if the interests of justice so require.

Sec.  1987.105  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 the 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 FSMA.
    (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 require, where
appropriate: Affirmative action to abate the violation; reinstatement
of the complainant to his or her former position, together with the
compensation (including back pay and interest), terms, conditions and
privileges of the complainant's employment; and payment of compensatory
damages, including, at the request of the complainant, the aggregate
amount of all costs and expenses (including attorney and expert witness
fees) reasonably incurred. 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 appropriate documentation to the
Social Security Administration allocating any back pay award to the
appropriate calendar quarters.
    (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 (or other means
that allow OSHA to confirm receipt), 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 to request an
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 hearing has been timely filed as
provided at Sec.  1987.106. However, the portion of any preliminary
order requiring reinstatement will be effective immediately upon the
respondent's receipt of the findings and the preliminary order,
regardless of any objections to the findings and/or the order.

Subpart B--Litigation

Sec.  1987.106  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/or preliminary order, or a respondent alleging that the
complaint was frivolous or brought in bad faith who seeks an award of
attorney fees under FSMA, 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.  1987.105. 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 or the preliminary order, the findings and/or the
preliminary order will become the final decision of the Secretary, not
subject to judicial review.

Sec.  1987.107  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. ALJs 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.  1987.108  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 the rules in this part.
    (b) The FDA, if interested in a proceeding, may participate as
amicus curiae at any time in the proceeding, at the FDA's discretion.
At the request of the FDA, copies of all documents in a case must be
sent to the FDA, whether or not the FDA is participating in the
proceeding.

Sec.  1987.109  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.  1987.104(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 require, where appropriate:
Affirmative action to abate the violation; reinstatement of the
complainant to his or her former position, together with the
compensation (including back pay and interest), terms, conditions, and
privileges of the complainant's employment; and payment of compensatory
damages, including, at the request of the complainant, the aggregate
amount of all costs and expenses (including attorney and expert witness
fees) reasonably incurred. 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 appropriate documentation to the Social
Security Administration allocating any back pay award to the
appropriate calendar quarters.
    (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 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.  1987.110  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
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 will also 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 require, where appropriate: Affirmative action to
abate the violation; reinstatement of the complainant to his or her
former position, together with the compensation (including back pay and
interest), terms, conditions, and privileges of the complainant's
employment; and payment of compensatory damages, including, at the
request of the complainant, the aggregate amount of all costs and
expenses (including attorney and expert witness fees) reasonably
incurred. 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 appropriate documentation to the Social Security Administration
allocating any back pay award to the appropriate calendar quarters.
    (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 was
frivolous or was brought in bad faith, the ARB may award to the
respondent a reasonable attorney fee, not exceeding $1,000.

Subpart C--Miscellaneous Provisions

Sec.  1987.111  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 (and 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.  1987.106, 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 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 a
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, but 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 appropriate.
    (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.  1987.113.

Sec.  1987.112  Judicial review.

    (a) Within 60 days after the issuance of a final order under
Sec. Sec.  1987.109 and 1987.110, 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.  1987.113  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 FSMA, 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 or in the United States district court for the District of
Columbia. 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 FSMA, 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.

Sec.  1987.114  District court jurisdiction of retaliation complaints.

    (a) 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, either:
    (1) Within 90 days after receiving a written determination under
Sec.  1987.105(a) provided that there has been no final decision of the
Secretary; or
    (2) If there has been no final decision of the Secretary within 210
days of the filing of the complaint.
    (b) At the request of either party, the action shall be tried by
the court with a jury.
    (c) A proceeding under paragraph (a) of this section shall be
governed by the same legal burdens of proof specified in Sec.
1987.109. The court shall have jurisdiction to grant all relief
necessary to make the employee whole, including injunctive relief and
compensatory damages, including:
    (1) Reinstatement with the same seniority status that the employee
would have had, but for the discharge or discrimination;
    (2) The amount of back pay, with interest;
    (3) Compensation for any special damages sustained as a result of
the discharge or discrimination; and
    (4) Litigation costs, expert witness fees, and reasonable attorney
fees.
    (d) Within seven days after filing a complaint in federal court, a
complainant must file with OSHA, the ALJ, or the ARB, depending on
where the proceeding is pending, a copy of the file-stamped complaint.
In all cases, a copy of the complaint also must 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.  1987.115  Special circumstances; waiver of rules.

    In special circumstances not contemplated by the provisions of the
rules in this part, 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 FSMA requires.

[FR Doc. 2016-08724 Filed 4-15-16; 8:45 am]
BILLING CODE 4510-26-P