[Federal Register Volume 81, Number 51 (Wednesday, March 16, 2016)]
[Rules and Regulations]
[Pages 13976-13989]
[FR Doc No: 2016-05414]

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1988

[Docket Number: OSHA-2015-0021]
RIN 1218-AC88

Procedures for Handling Retaliation Complaints Under Section
31307 of the Moving Ahead for Progress in the 21st Century Act (MAP-21)

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Interim final rule; request for comments.

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SUMMARY: This document provides the interim final text of regulations
governing the employee protection (retaliation or whistleblower)
provisions of section 31307 of the Moving Ahead for Progress in the
21st Century Act (MAP-21 or the Act). This rule establishes procedures
and time frames for the handling of retaliation complaints under MAP-
21, 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. It also sets forth the Secretary's interpretations of the
MAP-21 whistleblower provision on certain matters.

DATES: This interim final rule is effective on March 16, 2016. Comments
and additional materials must be submitted (post-marked, sent or
received) by May 16, 2016.

ADDRESSES: You may submit your comments by using one of the following
methods:
    Electronically: You may submit comments and attachments
electronically at http://www.regulations.gov, which is the Federal
eRulemaking Portal. Follow the instructions online for making
electronic submissions.
    Fax: If your submissions, including attachments, do not exceed 10
pages, you may fax them to the OSHA Docket Office at<PHONE_NUMBER>.
    Mail, hand delivery, express mail, messenger or courier service:
You may submit your comments and attachments to the OSHA Docket Office,
Docket No. OSHA-2015-0021, U.S. Department of Labor, Room N-2625, 200
Constitution Avenue NW., Washington, DC 20210. Deliveries (hand,
express mail, messenger and courier service) are accepted during the
Department of Labor's and Docket Office's normal business hours, 8:15
a.m.-4:45 p.m., E.T.
    Instructions: All submissions must include the agency name and the
OSHA docket number for this rulemaking (Docket No. OSHA- 2015-0021).
Submissions, including any personal information you provide, are placed
in the public docket without change and may be made available online at
http://www.regulations.gov. Therefore, OSHA cautions you about
submitting personal information such as social security numbers and
birth dates.
    Docket: To read or download submissions or other material in the
docket, go to http://www.regulations.gov or the OSHA Docket Office at
the address above. All documents in the docket are listed in the http://www.regulations.gov index, however, some information (e.g.,
copyrighted material) is not publicly available to read or download
through the Web site. All submissions, including copyrighted material,
are available for inspection and copying at the OSHA Docket Office.

FOR FURTHER INFORMATION CONTACT: Mr. Anh-Viet Ly, 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 Moving Ahead for Progress in the 21st Century Act (MAP-21 or
Act), Public Law 112-141, 126 Stat. 405, was enacted on July 6, 2012
and, among other things, funded surface transportation programs at over
$105 billion for fiscal years 2013 and 2014. Section 31307 of the Act,
codified at 49 U.S.C. 30171 and referred to throughout these interim
final rules as MAP-21, prohibits motor vehicle manufacturers, parts
suppliers, and dealerships from discharging or otherwise retaliating
against an employee because the employee provided, caused to be
provided or is about to provide information to the employer or the
Secretary of Transportation relating to any motor vehicle defect,
noncompliance, or any violation or alleged violation of any
notification or reporting requirement of Chapter 301 of title 49 of the
U.S. Code (Chapter 301); filed, caused to be filed or is about to file
a proceeding relating to any such defect or violation; testified,
assisted or participated (or is about to testify, assist or
participate) in such a proceeding; or objected to, or refused to
participate in, any activity that the employee reasonably believed to
be in violation of any provision of Chapter 301, or any order, rule,
regulation, standard or ban under such provision. Chapter 301 is the
codification of the National Traffic and Motor Vehicle Safety Act of
1966,

as amended, which grants the National Highway Traffic Safety
Administration (NHTSA) authority to issue vehicle safety standards and
to require manufacturers to recall vehicles that have a safety-related
defect or do not meet federal safety standards. These interim final
rules establish procedures for the handling of whistleblower complaints
under the Act.

II. Summary of Statutory Procedures

    Under MAP-21, a person who believes that he has been discharged or
otherwise retaliated against in violation of the Act (complainant) may
file a complaint with the Secretary of Labor (Secretary) within 180
days of the alleged retaliation. 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 Act (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
respondent an opportunity to submit a response, meet with the
investigator to present statements from witnesses, and conduct an
investigation.
    The Act 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 Sec.
1988.104 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 complainant and 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 receipt 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). The filing of objections under the
Act 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 Act 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.
    The Act 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. The provision provides that the court will
have jurisdiction over the action without regard to the amount in
controversy and that the case will be tried before a jury at the
request of either party.

III. Summary and Discussion of Regulatory Provisions

    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 the Act. Responsibility for receiving and
investigating complaints under the Act has been delegated to the
Assistant Secretary for Occupational Safety and Health (Assistant
Secretary) by 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).

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

Section 1988.100 Purpose and Scope
    This section describes the purpose of the regulations implementing
the whistleblower provisions of MAP-21 and provides an overview of the
procedures covered by these regulations.
Section 1988.101 Definitions
    This section includes the general definitions of certain terms used
in section 31307 of MAP-21, 49 U.S.C. 30171, which are applicable to
the Act's whistleblower provision. The term ``dealership'' appears only
in section 30171 and does not appear in any other provision of Chapter
301, which consistently uses the term ``dealer'' to mean ``a person
selling and distributing new motor vehicles or motor vehicle equipment
primarily to purchasers that in good faith purchase the vehicles or
equipment other than for resale.'' See 49 U.S.C. 30102(a)(1).
Accordingly, the Secretary concludes that the term ``dealership'' in
section 30171 refers to any ``dealer'' as that term is defined in
section 30102(a)(1). The term defect ``includes any defect in
performance, construction, a component, or material of a motor vehicle
or motor vehicle equipment.'' See id. at (a)(2). The term manufacturer
means ``a person (A) manufacturing or assembling motor vehicles or
motor vehicle equipment; or (B) importing motor vehicles or motor
vehicle equipment for resale.'' See id. at (a)(5). The term motor
vehicle means ``a vehicle driven or drawn by mechanical power and
manufactured primarily for use on public streets, roads, and highways,
but does not include a vehicle operated only on a rail line.''

See id. at (a)(6). The term motor vehicle equipment means ``(A) any
system, part, or component of a motor vehicle as originally
manufactured; (B) any similar part or component manufactured or sold
for replacement or improvement of a system, part, or component, or as
an accessory or addition to a motor vehicle; or (C) any device or an
article or apparel, including a motorcycle helmet and excluding
medicine or eyeglasses prescribed by a licensed practitioner, that (i)
is not a system, part, or component of a motor vehicle; and (ii) is
manufactured, sold, delivered, or offered to be sold for use on public
streets, roads, and highways with the apparent purpose of safeguarding
users of motor vehicles against risk of accident, injury, or death.''
See id. at (a)(7).
Section 1988.102 Obligations and Prohibited Acts
    This section describes the activities that are protected under the
Act and the conduct that is prohibited in response to any protected
activities. The Act protects individuals who provide information to the
employer or to the Secretary of Transportation relating to any motor
vehicle defect, noncompliance, or any violation or alleged violation of
any notification or reporting requirement of Chapter 301. The Act also
protects individuals who file, testify, assist, or participate in
proceedings concerning motor vehicle defects, noncompliance, or
violations or alleged violations of any notification or reporting
requirement of Chapter 301. Finally, the Act protects individuals who
objected to, or refused to participate in, any activity that the
employee reasonably believed to be in violation of any provision of
Chapter 301 or any order, rule, regulation, standard, or ban under that
Chapter. More information regarding Chapter 301 and NHTSA's regulations
can be found at www.nhtsa.gov.
    Under the Act, an employee who provides information, files a
proceeding, or objects to or refuses to participate in any activity is
protected so long as the employee's belief of a defect, noncompliance
or violation is subjectively and objectively reasonable. See, e.g.,
Benjamin v. CitationShares Management. L.L.C., ARB No. 12-029, 2013 WL
6385831, at *4 (ARB Nov. 5, 2013) (noting that, as a matter of law, an
employee is protected under the aviation whistleblower protections of
49 U.S.C. 42121 when he provides or attempts to provide information
regarding conduct he reasonably believes violates FAA regulations)
(citations omitted); 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, 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 objected
to violated the relevant law or regulation. See Sylvester, 2011 WL
2165854, at *11-12. 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 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.
Section 1988.103 Filing of Retaliation Complaint
    This section explains the requirements for filing a retaliation
complaint under MAP-21. To be timely, a complaint must be filed within
180 days of when the alleged violation occurs. Under Delaware State
College v. Ricks, 449 U.S. 250, 258 (1980), an alleged violation occurs
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. 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 under MAP-21 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 MAP-21 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
MAP-21 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 that 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.
Section 1988.104 Investigation
    This section describes the procedures that apply to the
investigation of MAP-21 complaints. Paragraph (a) of this section
outlines the procedures for notifying the parties and the NHTSA 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) specifies that
OSHA will request that the parties provide each other with copies of
their submissions to OSHA during the investigation and that, if a party
does not provide such copies, OSHA will do so at a time permitting the
other party an opportunity to respond to those submissions. Before
providing such materials, OSHA will redact them consistent with the
Privacy Act of 1974, 5 U.S.C. 552a and other applicable confidentiality
laws. Paragraph (d) of this section discusses confidentiality of
information provided during investigations.
    Paragraph (e) of this section sets forth the applicable burdens of
proof. MAP-21 requires that a complainant make an initial prima facie
showing that a 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, which is the same as that under MAP-21, 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 MAP-21 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
alleged 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 Lockheed Martin Corp. v. Admin.
Rev. Bd., 717 F.3d 1121, 1136 (10th Cir. 2013) (discussing Marano as
applied to analogous whistleblower provision in the Sarbanes-Oxley
Act); Araujo v. New Jersey Transit Rail Ops., Inc., 708 F.3d 152, 158
(3d Cir. 2013) (discussing Marano as applied to analogous whistleblower
provision in the Federal Railroad Safety Act). 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 Act whistleblower provision), aff'd sub nom. Klopfenstein v.
Admin. Rev. Bd., 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 49 U.S.C. 30171(b)(2)(B). 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 v. Navajo Express, ARB No. 09-
114, 2011 WL 2614326, at *3 (ARB June 29, 2011).
    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. Its purpose
is to ensure compliance with the Due Process Clause of the Fifth
Amendment, as interpreted by the Supreme Court in Brock v. Roadway
Express, Inc., 481 U.S. 252 (1987) (requiring OSHA to give a Surface
Transportation Assistance Act respondent the opportunity to review the
substance of the evidence and respond, prior to ordering preliminary
reinstatement).
Section 1988.105 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, compensatory damages,
attorney and expert witness fees, and costs. 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, the 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.
    The remedies provided under MAP-21 aim to make the complainant
whole by restoring the complainant to the position that he or she would
have occupied absent the retaliation and to counteract the chilling
effect of retaliation on protected whistleblowing in complainant's
workplace. The back pay and other remedies appropriate in each case
will depend on the individual facts of the case and the complainant's
interim earnings must be taken into account in determining the
appropriate back pay award. However, OSHA notes that a back pay award
under MAP-21 includes not only wages but also may include other
compensation that the complainant would have received from the employer
absent the retaliation, such as lost bonuses, overtime, benefits,
raises and promotions when there is evidence to determine these
figures. Thus, for example, a back pay award under MAP-21 might include
amounts that the complainant would have earned in commissions or
amounts that the employer would have contributed to a 401(k) plan on
the complainant's behalf had the complainant not been discharged in
retaliation for engaging in protected activity under MAP-21.
    In ordering interest on back pay under MAP-21, 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, against back pay. In the Secretary's
view, 26 U.S.C. 6621 provides the appropriate rate of interest to
ensure that victims of unlawful retaliation under MAP-21 are made
whole. The Secretary has long applied the interest rate in 26 U.S.C.
6621 to calculate interest on back pay 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 MAP-21 and other Department of Labor
(DOL)-administered whistleblower statutes because it ensures that 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 section 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 [section 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 NLRB No.
181, 1987 WL 89652, at *2 (NLRB May 28, 1987) (observing that ``the
short-term Federal rate [used by section 6621] is based on average
market yields on marketable Federal obligations and is influenced by
private economic market forces'').
    The Secretary further believes that daily compounding of interest
achieves the make-whole purpose of a back pay award. Daily compounding
of interest has become the norm in private lending and was found to be
the most appropriate method of calculating interest on back pay by the
National Labor Relations Board (NLRB). See Jackson Hosp. Corp. v.
United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. &
Serv. Workers Int'l Union, 356 NLRB No. 8, 2010 WL 4318371, at *3-4
(NLRB Oct. 22, 2010). Additionally, interest on tax underpayments under
the Internal Revenue Code, 26 U.S.C. 6621, is compounded daily pursuant
to 26 U.S.C. 6622(a).
    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 MAP-21 by ensuring that employees subjected to
retaliation are truly made whole. See Don Chavas, LLC d/b/a Tortillas
Don Chavas, 361 NLRB No. 10, 2014 WL 3897178, at *4-5 (NLRB Aug. 8,
2014). As the NLRB has explained, when back pay is not properly
allocated to the years covered by the award, a complainant may be
disadvantaged in several ways. First, improper allocation may interfere
with a complainant's ability to qualify for any old-age Social Security
benefit. Id. at *4 (``Unless a [complainant's] multiyear backpay award
is allocated to the appropriate years, she will not receive appropriate
credit for the entire period covered by the award, and could therefore
fail to qualify for any old-age social security benefit.''). Second,
improper allocation may reduce the complainant's eventual monthly
benefit. Id. ``[I]f a backpay award covering a multi-year period is
posted as income for 1 year, it may result in SSA treating the
[complainant] as having received wages in that year in excess of the
annual contribution and benefit base.'' Id. Wages above this base are
not subject to Social Security taxes, which reduces the amount paid on
the employee's behalf. ``As a result, the [complainant's] eventual
monthly benefit will be reduced because participants receive a greater
benefit when they have paid more into the system.'' Id. Finally,
``social security benefits are calculated using a progressive formula:
Although a participant receives more in benefits when she pays more
into the system, the rate of return diminishes at higher annual
incomes.'' Therefore, a complainant may ``receive a smaller monthly
benefit when a multiyear award is posted to 1 year rather than being
allocated to the appropriate periods, even if social security taxes
were paid on the entire amount.'' Id. The purpose of a make-whole
remedy such as back pay is to put the complainant in the same position
the complainant would have been absent the prohibited retaliation. That
purpose is not achieved when the complainant suffers the disadvantages
described above. The Secretary believes that requiring proper SSA
allocation is necessary to achieve the make-whole purpose of a back pay
award.
    In appropriate 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. Such ``economic reinstatement'' is akin to an order of 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 circumstances
where reinstatement would not be appropriate. See, e.g., Brown v.
Lockheed Martin Corp., ALJ No. 2008-SOX-00049, 2010 WL 2054426, at *55-
56 (ALJ Jan. 15, 2010) (noting that while reinstatement is the
``presumptive remedy'' under Sarbanes-Oxley, front pay may be awarded
as a substitute when reinstatement is inappropriate); 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''); see also 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''); Hobby v. Georgia Power Co.,
ARB Nos. 98-166, 98-169 (ARB Feb. 9, 2001), aff'd sub nom. Hobby v.
U.S. Dep't of Labor, No. 01-10916 (11th Cir. Sept. 30, 2002)
(unpublished) (noting circumstances where front pay may be available in
lieu of reinstatement but ordering reinstatement). Congress intended
that employees be preliminarily reinstated to their positions if OSHA
finds reasonable cause to believe that they were discharged in
violation of MAP-21. When a violation is found, the norm is for OSHA to
order immediate preliminary reinstatement. Neither an employer nor an
employee has a statutory right to choose economic

reinstatement. Rather, economic reinstatement is designed to
accommodate situations in which evidence establishes to OSHA's
satisfaction that immediate reinstatement is inadvisable for some
reason, notwithstanding the employer's retaliatory discharge of the
employee. In such situations, actual reinstatement might be delayed
until after the administrative adjudication is completed as long as the
employee continues to receive his or her pay and benefits and is not
otherwise disadvantaged by a delay in reinstatement. There is no
statutory basis for allowing the employer to recover the costs of
economically reinstating an employee should the employer ultimately
prevail in the whistleblower adjudication.

Subpart B--Litigation

Section 1988.106 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, OSHA, 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 MAP-21
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.
Section 1988.107 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.
Section 1988.108 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 MAP-21. 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 NHTSA, if interested in a proceeding, also may
participate as amicus curiae at any time in the proceedings.
Section 1988.109 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 MAP-21. 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. Rev. 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 49 U.S.C. 30171(b)(2)(B).
    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 1988.104 is not subject
to review. Thus, section 1988.109(c) clarifies that OSHA's
determinations on whether to proceed with an investigation under MAP-21
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 MAP-21 and, as
discussed under section 1988.105 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.
Section 1988.110 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. When the ARB accepts a
petition for review, the ALJ's factual determinations will be reviewed
under the substantial evidence standard.
    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 MAP-21, 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 MAP-21
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 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 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
pursuant to 26 U.S.C. 6621 and will be compounded daily, and the
respondent will be required to submit appropriate documentation to the
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.

Subpart C--Miscellaneous Provisions

Section 1988.111 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.
Section 1988.112 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 ARB or the ALJ to submit the record of
proceedings to the appropriate court pursuant to the rules of such
court.
Section 1988.113 Judicial Enforcement
    This section describes the Secretary's authority under MAP-21 to
obtain judicial enforcement of orders and terms of settlement
agreements. MAP-21 expressly authorizes district courts to enforce
orders issued by the Secretary under 49 U.S.C. 30171. Specifically, the
statute provides that ``[w]henever any person fails to comply with an
order issued under paragraph (3), the Secretary [of Labor] may file a
civil action in the United States district court for the district in
which the violation was found to occur to enforce such order. In
actions brought under this paragraph, the district courts shall have
jurisdiction to grant all appropriate relief, including injunctive
relief and compensatory damages.'' 49 U.S.C. 30171(b)(5).
    All orders issued by the Secretary under 49 U.S.C. 30171 may also
be enforced by any person on whose behalf an order was issued in
district court, under 49 U.S.C. 30171(b)(6). The Secretary interprets
these provisions to grant the district court authority to enforce
preliminary orders of reinstatement. Subsection (b)(3) provides that
the Secretary shall order the person who has committed a violation to
reinstate the complainant to his or her former position, (49 U.S.C.
30171(b)(3)(B)(ii)). Subsection (b)(2) also instructs the Secretary to
accompany any reasonable cause finding that a violation has occurred
with a preliminary order containing the relief prescribed by paragraph
(b)(3)(B), which includes reinstatement, (see 49 U.S.C.
30171(b)(3)(B)). Subsection (b)(2)(A) declares that any reinstatement
remedy contained in a preliminary order is not stayed upon the filing
of objections. 49 U.S.C. 30171(b)(2)(A) (``The filing of such
objections shall not operate to stay any reinstatement remedy contained
in the preliminary order.''). Thus, under the statute, enforceable
orders under paragraph (b)(3) include both preliminary orders issued
under subsection (b)(2)(A) and final orders issued under subsection
(b)(3), both of which may contain the relief of reinstatement as
prescribed by subsection (b)(3)(B).
    This statutory interpretation is consistent with the Secretary's
interpretation of similar language in 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)).
Section 1988.114 District Court Jurisdiction of Retaliation Complaints
    This section sets forth MAP-21's provisions allowing a complainant
to bring an original de novo action in district court, alleging the
same allegations contained in the complaint filed with OSHA, if there
has been no final decision of the Secretary within 210 days after the
date of the filing of

the complaint. See 49 U.S.C. 30171(b)(3)(E). This section also
incorporates the statutory provisions that allow for a jury trial at
the request of either party in a district court action and that specify
the burdens of proof in a district court action.
    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. A copy of the district court 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.
    Finally, the Secretary notes that although a complainant may file
an action in district court if the Secretary has not issued a final
decision within 210 days of the filing of the complaint with OSHA, it
is the Secretary's position that complainants may not 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. Thus, for example, after the ARB has issued a
final decision denying a whistleblower complaint, the complainant no
longer may file an action for de novo review in federal district court.
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 could conflict with the
parties' rights to seek judicial review of the Secretary's final
decision in the court of appeals. See 49 U.S.C. 30171(b)(4)(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).
Section 1988.115 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 MAP-21 requires.

IV. Paperwork Reduction Act

    This rule contains a reporting provision (filing a retaliation
complaint, section 1988.103) which was previously reviewed as a
statutory requirement of MAP-21 and approved for use by the Office of
Management and Budget (OMB), as part of the Information Collection
Request (ICR) assigned OMB control number 1218-0236 under the
provisions of the Paperwork Reduction Act of 1995 (PRA). See Public Law
104-13, 109 Stat. 163 (1995). An ICR has been submitted to OMB to
include the regulatory citation.
    OSHA has a particular interest in comments on the following issues:
     Whether the proposed information collection requirements
are necessary for the proper performance of the Agency's functions,
including whether the information is useful;
     The accuracy of OSHA's estimate of the burden (time and
costs) of the information collection requirements, including the
validity of the methodology and assumptions used;
     Enhancing the quality, utility, and clarity of the
information collected; and
     Minimizing the burden on employees who must comply; for
example, by using automated or other technological information
collection and transmission techniques.
    In addition to having an opportunity to file comments with the
Department, the PRA provides that an interested party may file comments
on the information collection requirements contained in an interim
final rule directly with OMB by mail: Office of Information and
Regulatory Affairs, Attn: OMB Desk Officer for DOL-OSHA, Office of
Management and Budget, Room 10235, 725 17th Street NW., Washington, DC
20503; by Fax:<PHONE_NUMBER> (this is not a toll-free number); or by
email<EMAIL_ADDRESS>Commenters are encouraged, but not
required, to send a courtesy copy of any comments to the Department.
See ADDRESSES section of the preamble. OMB will consider all written
comments that the agency receives within thirty (30) days of
publication of this Interim Final Rule in the Federal Register. In
order to help ensure appropriate consideration, comments should mention
OMB control number 1218-0236. Comments submitted in response to this
rule are public records; therefore, OSHA cautions commenters about
submitting personal information such as Social Security numbers and
date of birth.
    To access the complete electronic copy of the related ICR,
containing the Supporting Statement with attachments describing the
paperwork requirement and determinations of the ICR in detail, visit
the Web page, http://www.reginfo.gov/public/do/PRAMain, select
``Department of Labor'' under the ``Currently under Review'' to view
all DOL ICRs currently under OMB consideration, including the ICR
related to this rulemaking.
    OSHA notes that a federal agency cannot conduct or sponsor a
collection of information unless it is approved by OMB under the PRA
and displays a currently valid OMB control number, and the public is
not required to respond to a collection of information unless the
collection of information displays a currently valid OMB control
number. Also, notwithstanding any other provision of law, no person
shall be subject to penalty for failing to comply with a collection of
information if the collection of information does not display a
currently valid OMB control number.

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. Therefore, publication in the Federal Register of a notice of
proposed rulemaking and request for comments are not required for this
rule, which provides the procedures for the handling of retaliation
complaints. Although this is a procedural and interpretive rule not
subject to the notice and comment procedures of the APA, OSHA is
providing persons interested in this interim final rule 60 days to
submit comments. A final rule will be published after OSHA receives and
reviews the public's comments.
    Furthermore, because this rule is procedural and interpretative
rather than substantive, the normal requirement of 5 U.S.C. 553(d) that
a rule be effective 30 days after publication in the Federal Register
is inapplicable. OSHA also finds good cause to provide an immediate
effective date for this interim final rule. It is in the public
interest that the rule be effective immediately so that parties may
know what procedures are applicable to pending cases.

VI. Executive 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 Executive Order 12866,
reaffirmed by Executive Order 13563, because it is not likely to: (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 economic impact analysis under Section 6(a)(3)(C)
of Executive Order 12866 has been prepared. For the same 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. 1532. In any event, this rulemaking is procedural
and interpretive in nature and is thus not expected to have a
significant economic impact. 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 Small Business Administration Office of Advocacy, A Guide for
Government Agencies: How to Comply with the Regulatory Flexibility Act,
at 9; also found at https://www.sba.gov/advocacy/guide-government-agencies-how-comply-regulatory-flexibility-act. This is a rule of
agency procedure, practice, and interpretation within the meaning of 5
U.S.C. 553; and, therefore, the rule is exempt from both the notice and
comment rulemaking procedures of the APA and the requirements under the
RFA.

List of Subjects in 29 CFR Part 1988

    Administrative practice and procedure, Automobile dealers,
Employment, Investigations, Motor vehicle defects, Motor vehicle
manufacturers, Part supplies, 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 February 25, 2016.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.

0
Accordingly, for the reasons set out in the preamble, 29 CFR part 1988
is added to read as follows:

PART 1988--PROCEDURES FOR HANDLING RETALIATION COMPLAINTS UNDER
SECTION 31307 OF THE MOVING AHEAD FOR PROGRESS IN THE 21ST CENTURY
ACT (MAP-21)

Subpart A--Complaints, Investigations, Findings and Preliminary Orders
Sec.
1988.100 Purpose and scope.
1988.101 Definitions.
1988.102 Obligations and prohibited acts.
1988.103 Filing of retaliation complaint.
1988.104 Investigation.
1988.105 Issuance of findings and preliminary orders.
Subpart B--Litigation
1988.106 Objections to the findings and the preliminary order and
requests for a hearing.
1988.107 Hearings.
1988.108 Role of Federal agencies.
1988.109 Decision and orders of the administrative law judge.
1988.110 Decision and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
1988.111 Withdrawal of complaints, findings, objections, and
petitions for review; settlement.
1988.112 Judicial review.
1988.113 Judicial enforcement.
1988.114 District court jurisdiction of retaliation complaints.
1988.115 Special circumstances; waiver of rules.

    Authority: 49 U.S.C. 30171; 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.  1988.100  Purpose and scope.

    (a) This part sets forth procedures for, and interpretations of,
section 31307 of the Moving Ahead for Progress in the 21st Century Act
(MAP-21), Public Law 112-141, 126 Stat. 405, 765 (July 6, 2012)
(codified at 49 U.S.C. 30171). MAP-21 provides for employee protection
from retaliation because the employee has engaged in protected activity
pertaining to the manufacture or sale of motor vehicles and motor
vehicle equipment.
    (b) This part establishes procedures under MAP-21 for the
expeditious handling of retaliation complaints filed by employees, or
by persons acting on their behalf. These rules, together with those
codified at 29 CFR part 18, set forth the procedures under MAP-21 for
submission of complaints, investigations, issuance of findings and
preliminary orders, objections to findings and orders, litigation
before administrative law judges (ALJs), post-hearing administrative
review, and withdrawals and settlements. In addition, these rules
provide the Secretary's interpretations on certain statutory issues.

Sec.  1988.101  Definitions.

    As used in this part:
    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 MAP-21.
    Business days means days other than Saturdays, Sundays, and Federal
holidays.
    Complainant means the person who filed a MAP-21 complaint or on
whose behalf a complaint was filed.
    Dealer or Dealership means a person selling and distributing new
motor vehicles or motor vehicle equipment primarily to purchasers that
in good faith purchase the vehicles or equipment other than for resale.
    Defect includes any defect in performance, construction, a
component, or material of a motor vehicle or motor vehicle equipment.
    Employee means an individual presently or formerly working for, an
individual applying to work for, or an individual whose employment
could be affected by a motor vehicle manufacturer, dealer, part
supplier, or dealership.
    Manufacturer means a person:

    (1) Manufacturing or assembling motor vehicles or motor vehicle
equipment; or
    (2) Importing motor vehicles or motor vehicles equipment for
resale.
    MAP-21 means Section 31307 of the Moving Ahead for Progress in the
21st Century Act of 2012, Pub. L. 112-141, 126 Stat. 405, 765 (July 6,
2012) (codified at 49 U.S.C. 30171).
    Motor vehicle means a vehicle driven or drawn by mechanical power
and manufactured primarily for use on public streets, roads, and
highways, but does not include a vehicle operated only on a rail line.
    Motor vehicle equipment means--
    (1) Any system, part, or component of a motor vehicle as originally
manufactured;
    (2) Any similar part or component manufactured or sold for
replacement or improvement of a system, part, or component, or as an
accessory or addition to a motor vehicle; or
    (3) Any device or an article or apparel, including a motorcycle
helmet and excluding medicine or eyeglasses prescribed by a licensed
practitioner, that--
    (i) Is not a system, part or component of a motor vehicle; and
    (ii) Is manufactured, sold, delivered, or offered to be sold for
use on public streets, roads, and highways with the apparent purpose of
safeguarding users of motor vehicles against risk of accident, injury,
or death.
    NHTSA means the National Highway Traffic Safety Administration of
the United States Department of Transportation.
    OSHA means the Occupational Safety and Health Administration of the
United States Department of Labor.
    Person means an individual, partnership, company, corporation,
association (incorporated or unincorporated), trust, estate,
cooperative organization, or other entity.
    Respondent means the person named in the complaint who is alleged
to have violated MAP-21.
    Secretary means the Secretary of Labor.

Sec.  1988.102  Obligations and prohibited acts.

    (a) No motor vehicle manufacturer, part supplier, or dealership may
discharge or otherwise retaliate against, including, but not limited
to, intimidating, threatening, restraining, coercing, blacklisting or
disciplining, an employee with respect to the employee's compensation,
terms, conditions, or privileges of employment because the employee, or
any person acting pursuant to the employee's request, has engaged in
any of the activities specified in paragraphs (b)(1) through (5) of
this section.
    (b) An employee is protected against retaliation (as described in
paragraph (a) of this section) by a motor vehicle manufacturer, part
supplier, or dealership because he or she:
    (1) Provided, caused to be provided, or is about to provide (with
any knowledge of the employer) or cause to be provided to the employer
or the Secretary of Transportation, information relating to any motor
vehicle defect, noncompliance, or any violation or alleged violation of
any notification or reporting requirement of Chapter 301 of Title 49 of
the United States Code;
    (2) Filed, or caused to be filed, or is about to file (with any
knowledge of the employer) or cause to be filed a proceeding relating
to any motor vehicle defect, noncompliance, or any violation or alleged
violation of any notification or reporting requirement of Chapter 301
of Title 49 of the United States Code;
    (3) Testified or is about to testify in such a proceeding;
    (4) Assisted or participated or is about to assist or participate
in such a proceeding; or
    (5) Objected to, or refused to participate in, any activity that
the employee reasonably believed to be in violation of any provision of
Chapter 301 of Title 49 of the United States Code, or any order, rule,
regulation, standard, or ban under such provision.

Sec.  1988.103  Filing of retaliation complaint.

    (a) Who may file. A person who believes that he or she has been
discharged or otherwise retaliated against by any person in violation
of MAP-21 may file, or have filed by any person on his or her 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 complainant 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
MAP-21 occurs, any person who believes that he or she has been
retaliated against in violation of the MAP-21 may file, or have filed
by any person on his or her 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.  1988.104  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 paragraph (e) of Sec.  1988.110. 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
NHTSA.
    (b) Within 20 days of receipt of the notice of the filing of the
complaint provided under paragraph (a) of this section, the respondent
may submit to OSHA a written statement and any affidavits or documents
substantiating its position. Within the same 20 days, the respondent
may request a meeting with OSHA to present its position.
    (c) During the investigation, OSHA will request that each party
provide the other parties to the whistleblower complaint with a copy of
submissions to OSHA that are pertinent to the whistleblower complaint.
Alternatively, if a party does not provide its submissions to OSHA to
the other party, OSHA will provide them to the other party (or the
party's legal counsel if the party is represented by counsel) at a time
permitting the other party an opportunity to respond. Before providing
such materials to the other party, OSHA will redact them, if necessary,
consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other
applicable confidentiality laws. OSHA will also provide each party with
an

opportunity to respond to the other party's submissions.
    (d) Investigations will be conducted in a manner that protects the
confidentiality of any person who provides information on a
confidential basis, other than the complainant, in accordance with part
70 of this title.
    (e)(1) A complaint will be dismissed unless the complainant has
made a prima facie showing that 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 the prior paragraph, OSHA will proceed
with the investigation. The investigation will proceed whenever it is
necessary or appropriate to confirm or verify the information provided
by the respondent.
    (f) Prior to the issuance of findings and a preliminary order as
provided for in Sec.  1988.105, if OSHA has reasonable cause, on the
basis of information gathered under the procedures of this part, to
believe that the respondent has violated MAP-21 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
investigator, 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.  1988.105  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 MAP-21.
    (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 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.  1988.106. 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.  1988.106  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 MAP-21, 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.  1988.105. 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.  1988.107  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.  1988.108  Role of Federal agencies.

    (a)(1) The complainant and the respondent will be parties in every
proceeding and must be served with copies of all documents in the case.
At the Assistant Secretary's discretion, the Assistant Secretary may
participate as a party or as amicus curiae at any time at any stage of
the proceeding. This right to participate includes, but is not limited
to, the right to petition for review of a decision of an ALJ, including
a decision approving or rejecting a settlement agreement between the
complainant and the respondent.
    (2) Parties must send copies of documents to OSHA and to the
Associate Solicitor, Division of Fair Labor Standards, U.S. Department
of Labor, only upon request of OSHA, or when OSHA is participating in
the proceeding, or when service on OSHA and the Associate Solicitor is
otherwise required by these rules.
    (b) The NHTSA, if interested in a proceeding, may participate as
amicus curiae at any time in the proceeding, at NHTSA's discretion. At
the request of NHTSA, copies of all documents in a case must be sent to
NHTSA, whether or not it is participating in the proceeding.

Sec.  1988.109  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.  1988.104(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.  1988.110  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 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 ruled upon 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.  1988.111  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.  1988.106, 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.  1988.113.

Sec.  1988.112  Judicial review.

    (a) Within 60 days after the issuance of a final order under
Sec. Sec.  1988.109 and 1988.110, 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.  1988.113  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 MAP-21, the Secretary may file a
civil action seeking enforcement of the order in the United States
district court for the district in which the violation was found to
have occurred. Whenever any person has failed to comply with a
preliminary order of reinstatement, or a final order, including one
approving a settlement agreement, issued under MAP-21, 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.  1988.114  District court jurisdiction of retaliation complaints.

    (a) If the Secretary has not issued a final decision with 210 days
of the filing of the complaint, and there is no showing that there has
been delay due to the bad faith of the complainant, the complainant may
bring an action at law or equity for de novo review in the appropriate
district court of the United States, which will have jurisdiction over
such an action without regard to the amount in controversy. At the
request of either party, the action shall be tried by the court with a
jury.
    (b) A proceeding under paragraph (a) of this section shall be
governed by the same legal burdens of proof specified in Sec.
1988.109.
    (c) 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.
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.  1988.115  Special circumstances; waiver of rules.

    In special circumstances not contemplated by the provisions of
these rules, or for good cause shown, the ALJ or the ARB on review may,
upon application, after three-days' notice to all parties, waive any
rule or issue such orders that justice or the administration of MAP-21
requires.

[FR Doc. 2016-05414 Filed 3-15-16; 8:45 am]
BILLING CODE 4510-26-P