Procedures for Handling Retaliation Complaints Under Section 402 of the FDA Food Safety Modernization Act, 22530-22544 [2016-08724]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 81, Number 74 (Monday, April 18, 2016)]
[Rules and Regulations]
[Pages 22530-22544]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-08724]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1987

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


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

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Final rule.

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

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

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

SUPPLEMENTARY INFORMATION: 

I. Background

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

[[Page 22531]]

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

II. Summary of Statutory Procedures

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

III. Summary and Discussion of Regulatory Provisions

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

[[Page 22532]]

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

General Comments

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

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

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

[[Page 22533]]

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

[[Page 22534]]

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

[[Page 22535]]

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

Subpart B--Litigation

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

[[Page 22536]]

preponderance of the evidence.''). If the employee demonstrates that 
the alleged protected activity was a contributing factor in the adverse 
action, the employer, to escape liability, must demonstrate by ``clear 
and convincing evidence'' that it would have taken the same action in 
the absence of the protected activity. See 21 U.S.C. 399d(b)(2)(C).
    Paragraph (c) of this section further provides that OSHA's 
determination to dismiss the complaint without an investigation or 
without a complete investigation under section 1987.104 is not subject 
to review. Thus, section 1987.109(c) clarifies that OSHA's 
determinations on whether to proceed with an investigation under FSMA 
and whether to make particular investigative findings are discretionary 
decisions not subject to review by the ALJ. The ALJ hears cases de novo 
and, therefore, as a general matter, may not remand cases to OSHA to 
conduct an investigation or make further factual findings.
    Paragraph (d) notes the remedies that the ALJ may order under FSMA 
and, as discussed under section 1987.105 above, provides that interest 
on back pay will be calculated using the interest rate applicable to 
underpayment of taxes under 26 U.S.C. 6621 and will be compounded 
daily, and that the respondent will be required to submit appropriate 
documentation to the SSA allocating any back pay award to the 
appropriate calendar quarters. Paragraph (e) requires that the ALJ's 
decision be served on all parties to the proceeding, OSHA, and the U.S. 
Department of Labor's Associate Solicitor for Fair Labor Standards. 
Paragraph (e) also provides that any ALJ decision requiring 
reinstatement or lifting an order of reinstatement by the Assistant 
Secretary will be effective immediately upon receipt of the decision by 
the respondent. All other portions of the ALJ's order will be effective 
14 days after the date of the decision unless a timely petition for 
review has been filed with the ARB. If no timely petition for review is 
filed with the ARB, the decision of the ALJ becomes the final decision 
of the Secretary and is not subject to judicial review.
    No comments were received on this section, and no changes were made 
to it.
Section 1987.110 Decision and Orders of the Administrative Review Board
    Upon the issuance of the ALJ's decision, the parties have 14 days 
within which to petition the ARB for review of that decision. The date 
of the postmark, facsimile transmittal, or electronic communication 
transmittal is considered the date of filing of the petition; if the 
petition is filed in person, by hand delivery or other means, the 
petition is considered filed upon receipt.
    The appeal provisions in this part provide that an appeal to the 
ARB is not a matter of right but is accepted at the discretion of the 
ARB. The parties should identify in their petitions for review the 
legal conclusions or orders to which they object, or the objections may 
be deemed waived. The ARB has 30 days to decide whether to grant the 
petition for review. If the ARB does not grant the petition, the 
decision of the ALJ becomes the final decision of the Secretary. If a 
timely petition for review is filed with the ARB, any relief ordered by 
the ALJ, except for that portion ordering reinstatement, is inoperative 
while the matter is pending before the ARB. If the ARB accepts a 
petition for review, the ALJ's factual determinations will be reviewed 
under the substantial evidence standard.
    Kalijarvi submitted several comments related to this section of the 
rule. Kalijarvi requested the removal of the portion of the rule 
stating that objections not raised in the petition for review to the 
ARB may be considered waived. Instead, Kalijarvi requested that the 
provision be altered to instruct parties to identify in their petitions 
for review the legal conclusions or orders to which they object so that 
the ARB may determine whether the review presents issues worthy of full 
briefing. OSHA declines to revise the rule as Kalijarvi has proposed. 
OSHA notes that the IFR used the phrase ``may'' be deemed waived, 
indicating that the parties are not necessarily barred from 
subsequently raising grounds in addition to those included in the 
initial petition. Further, OSHA's inclusion of this provision is not 
intended to limit the circumstances in which parties can add additional 
grounds for review as a case progresses before the ARB; rather, the 
rules include this provision to put the public on notice of the 
possible consequences of failing to specify the basis of an appeal to 
the ARB. OSHA recognizes that, while the ARB has held in some instances 
that an exception not specifically urged may be deemed waived, the ARB 
also has found that the rules provide for exceptions to this general 
rule.
    Kalijarvi also requested that the deadline for filing a petition 
for review with the ARB be extended past 14 days, and for this section 
to allow explicitly for the parties to file a motion to extend the time 
for submitting a petition for review. Kalijarvi further requested that 
OSHA explain how the current text of the section furthers FSMA's 
remedial purpose. OSHA declines to extend the time limit to petition 
for review because the shorter review period is consistent with the 
practices and procedures followed in OSHA's other whistleblower 
programs. Furthermore, as Kalijarvi acknowledges in its comment, 
parties may file a motion for extension of time to appeal an ALJ's 
decision, and the ARB has discretion to grant such extensions. OSHA 
believes that mentioning a motion for an extension of time in these 
rules, where no other motions are mentioned, could lead the public to 
mistakenly conclude that the 14 day deadline may be waived as a matter 
of right, where such is not the case.
    OSHA believes that this section furthers the remedial purpose of 
FSMA by informing the public of the option of requesting ARB review of 
ALJ decisions as well as the deadlines associated with such review.
    This section also provides that, based on exceptional 
circumstances, the ARB may grant a motion to stay an ALJ's preliminary 
order of reinstatement under FSMA, which otherwise would be effective, 
while review is conducted by the ARB. The Secretary believes that a 
stay of an ALJ's preliminary order of reinstatement under FSMA would be 
appropriate only where the respondent can establish the necessary 
criteria for equitable injunctive relief, i.e., irreparable injury, 
likelihood of success on the merits, a balancing of possible harms to 
the parties, and the public interest favors a stay.
    If the ARB concludes that the respondent has violated the law, it 
will order the respondent to take appropriate affirmative action to 
abate the violation, including reinstatement of the complainant to that 
person's former position, together with the compensation (including 
back pay and interest), terms, conditions, and privileges of 
employment, and compensatory damages. At the request of the 
complainant, the ARB will assess against the respondent all costs and 
expenses (including attorney and expert witness fees) reasonably 
incurred. Interest on back pay will be calculated using the interest 
rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will 
be compounded daily, and the respondent will be required to submit 
appropriate documentation to the Social Security Administration (SSA) 
allocating any back pay award to the appropriate calendar quarters. If 
the ARB determines that the respondent has not violated the law, an 
order will be issued denying the complaint. If, upon

[[Page 22537]]

the request of the respondent, the ARB determines that a complaint was 
frivolous or was brought in bad faith, the ARB may award to the 
respondent a reasonable attorney fee, not exceeding $1,000, to be paid 
by the complainant.
    No changes were made to this section, and other than the comments 
discussed above, no additional comments were received on this section.

Subpart C--Miscellaneous Provisions

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

[[Page 22538]]

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

IV. Paperwork Reduction Act

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

V. Administrative Procedure Act

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

[[Page 22539]]

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

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

VII. Regulatory Flexibility Analysis

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

List of Subjects in 29 CFR Part 1987

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

Authority and Signature

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

    Signed at Washington, DC, on April 11, 2016.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.

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

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

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

    Authority: 21 U.S.C. 399d; Secretary of Labor's Order No. 1-2012 
(Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012); Secretary of Labor's 
Order No. 2-2012 (Oct. 19, 2012), 77 FR 69378 (Nov. 16, 2012).

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


Sec.  1987.100  Purpose and scope.

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


Sec.  1987.101  Definitions.

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

[[Page 22540]]

    (g) FDA means the Food and Drug Administration of the United States 
Department of Health and Human Services.
    (h) Food means articles used for food or drink for man or other 
animals, chewing gum, and articles used for components of any such 
article.
    (i) FSMA means section 402 of the FDA Food Safety Modernization 
Act, Public Law 111-353, 124 Stat. 3885 (Jan. 4, 2011) (codified at 21 
U.S.C. 399d).
    (j) OSHA means the Occupational Safety and Health Administration of 
the United States Department of Labor.
    (k) Person includes an individual, partnership, corporation, and 
association.
    (l) Respondent means the employer named in the complaint who is 
alleged to have violated the FSMA.
    (m) Secretary means the Secretary of Labor or person to whom 
authority under the FSMA has been delegated.
    (n) Any future statutory amendments that affect the definition of a 
term or terms listed in this section will apply in lieu of the 
definition stated herein.


Sec.  1987.102  Obligations and prohibited acts.

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


Sec.  1987.103  Filing of retaliation complaint.

    (a) Who may file. An employee who believes that he or she has been 
retaliated against in violation of FSMA may file, or have filed by any 
person on the employee's behalf, a complaint alleging such retaliation.
    (b) Nature of filing. No particular form of complaint is required. 
A complaint may be filed orally or in writing. Oral complaints will be 
reduced to writing by OSHA. If the complainant is unable to file the 
complaint in English, OSHA will accept the complaint in any language.
    (c) Place of filing. The complaint should be filed with the OSHA 
office responsible for enforcement activities in the geographical area 
where the employee resides or was employed, but may be filed with any 
OSHA officer or employee. Addresses and telephone numbers for these 
officials are set forth in local directories and at the following 
Internet address: https://www.osha.gov.
    (d) Time for filing. Within 180 days after an alleged violation of 
FSMA occurs, any employee who believes that he or she has been 
retaliated against in violation of that section may file, or have filed 
by any person on the employee's behalf, a complaint alleging such 
retaliation. The date of the postmark, facsimile transmittal, 
electronic communication transmittal, telephone call, hand-delivery, 
delivery to a third-party commercial carrier, or in-person filing at an 
OSHA office will be considered the date of filing. The time for filing 
a complaint may be tolled for reasons warranted by applicable case law. 
For example, OSHA may consider the time for filing a complaint to be 
tolled if a complainant mistakenly files a complaint with an agency 
other than OSHA within 180 days after an alleged adverse action.


Sec.  1987.104  Investigation.

    (a) Upon receipt of a complaint in the investigating office, OSHA 
will notify the respondent of the filing of the complaint, of the 
allegations contained in the complaint, and of the substance of the 
evidence supporting the complaint. Such materials will be redacted, if 
necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and 
other applicable confidentiality laws. OSHA will also notify the 
respondent of its rights under paragraphs (b) and (f) of this section 
and Sec.  1987.110(e). OSHA will provide an unredacted copy of these 
same materials to the complainant (or the complainant's legal counsel 
if complainant is represented by counsel) and to the FDA.
    (b) Within 20 days of receipt of the notice of the filing of the 
complaint provided under paragraph (a) of this section, the respondent 
and the complainant each may submit to OSHA a written statement and any 
affidavits or documents substantiating its position. Within the same 20 
days, the respondent and the complainant each may request a meeting 
with OSHA to present its position.
    (c) During the investigation, OSHA will request that each party 
provide the other parties to the whistleblower complaint with a copy of 
submissions to OSHA that are pertinent to the whistleblower complaint. 
Alternatively, if a party does not provide its submissions to OSHA to 
the other party, OSHA will provide them to the other party (or the 
party's legal counsel if the party is represented by counsel) at a time 
permitting the other party an opportunity to respond. Before providing 
such materials to the other party, OSHA will redact them, if necessary, 
consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other 
applicable confidentiality laws. OSHA will also provide each party with 
an opportunity to respond to the other party's submissions.
    (d) Investigations will be conducted in a manner that protects the 
confidentiality of any person who provides information on a 
confidential basis, other than the complainant, in accordance with part 
70 of this title.
    (e)(1) A complaint will be dismissed unless the complainant has 
made a prima facie showing (i.e., a non-frivolous allegation) that a 
protected activity was a contributing factor in the adverse action 
alleged in the complaint.
    (2) The complaint, supplemented as appropriate by interviews of the 
complainant, must allege the existence of facts and evidence to make a 
prima facie showing as follows:
    (i) The employee engaged in a protected activity;
    (ii) The respondent knew or suspected that the employee engaged in 
the protected activity;
    (iii) The employee suffered an adverse action; and
    (iv) The circumstances were sufficient to raise the inference that 
the protected activity was a contributing factor in the adverse action.
    (3) For purposes of determining whether to investigate, the 
complainant will be considered to have met the required burden if the 
complaint on its

[[Page 22541]]

face, supplemented as appropriate through interviews of the 
complainant, alleges the existence of facts and either direct or 
circumstantial evidence to meet the required showing, i.e., to give 
rise to an inference that the respondent knew or suspected that the 
employee engaged in protected activity and that the protected activity 
was a contributing factor in the adverse action. The burden may be 
satisfied, for example, if the complaint shows that the adverse action 
took place within a temporal proximity of the protected activity, or at 
the first opportunity available to the respondent, giving rise to the 
inference that it was a contributing factor in the adverse action. If 
the required showing has not been made, the complainant (or the 
complainant's legal counsel if complainant is represented by counsel) 
will be so notified and the investigation will not commence.
    (4) Notwithstanding a finding that a complainant has made a prima 
facie showing, as required by this section, further investigation of 
the complaint will not be conducted if the respondent demonstrates by 
clear and convincing evidence that it would have taken the same adverse 
action in the absence of the complainant's protected activity.
    (5) If the respondent fails to make a timely response or fails to 
satisfy the burden set forth in paragraph (e)(4) of this section, OSHA 
will proceed with the investigation. The investigation will proceed 
whenever it is necessary or appropriate to confirm or verify the 
information provided by the respondent.
    (f) Prior to the issuance of findings and a preliminary order as 
provided for in Sec.  1987.105, if OSHA has reasonable cause, on the 
basis of information gathered under the procedures of this part, to 
believe that the respondent has violated FSMA and that preliminary 
reinstatement is warranted, OSHA will contact the respondent (or the 
respondent's legal counsel if respondent is represented by counsel) to 
give notice of the substance of the relevant evidence supporting the 
complainant's allegations as developed during the course of the 
investigation. This evidence includes any witness statements, which 
will be redacted to protect the identity of confidential informants 
where statements were given in confidence; if the statements cannot be 
redacted without revealing the identity of confidential informants, 
summaries of their contents will be provided. The complainant will also 
receive a copy of the materials that must be provided to the respondent 
under this paragraph. Before providing such materials, OSHA will redact 
them, if necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 
552a, and other applicable confidentiality laws. The respondent will be 
given the opportunity to submit a written response, to meet with the 
investigators, to present statements from witnesses in support of its 
position, and to present legal and factual arguments. The respondent 
must present this evidence within 10 business days of OSHA's 
notification pursuant to this paragraph, or as soon thereafter as OSHA 
and the respondent can agree, if the interests of justice so require.


Sec.  1987.105  Issuance of findings and preliminary orders.

    (a) After considering all the relevant information collected during 
the investigation, the Assistant Secretary will issue, within 60 days 
of the filing of the complaint, written findings as to whether or not 
there is reasonable cause to believe that the respondent has retaliated 
against the complainant in violation of FSMA.
    (1) If the Assistant Secretary concludes that there is reasonable 
cause to believe that a violation has occurred, the Assistant Secretary 
will accompany the findings with a preliminary order providing relief 
to the complainant. The preliminary order will require, where 
appropriate: Affirmative action to abate the violation; reinstatement 
of the complainant to his or her former position, together with the 
compensation (including back pay and interest), terms, conditions and 
privileges of the complainant's employment; and payment of compensatory 
damages, including, at the request of the complainant, the aggregate 
amount of all costs and expenses (including attorney and expert witness 
fees) reasonably incurred. Interest on back pay will be calculated 
using the interest rate applicable to underpayment of taxes under 26 
U.S.C. 6621 and will be compounded daily. The preliminary order will 
also require the respondent to submit appropriate documentation to the 
Social Security Administration allocating any back pay award to the 
appropriate calendar quarters.
    (2) If the Assistant Secretary concludes that a violation has not 
occurred, the Assistant Secretary will notify the parties of that 
finding.
    (b) The findings and, where appropriate, the preliminary order will 
be sent by certified mail, return receipt requested (or other means 
that allow OSHA to confirm receipt), to all parties of record (and each 
party's legal counsel if the party is represented by counsel). The 
findings and, where appropriate, the preliminary order will inform the 
parties of the right to object to the findings and/or order and to 
request a hearing, and of the right of the respondent to request an 
award of attorney fees not exceeding $1,000 from the administrative law 
judge (ALJ), regardless of whether the respondent has filed objections, 
if the respondent alleges that the complaint was frivolous or brought 
in bad faith. The findings and, where appropriate, the preliminary 
order also will give the address of the Chief Administrative Law Judge, 
U.S. Department of Labor. At the same time, the Assistant Secretary 
will file with the Chief Administrative Law Judge a copy of the 
original complaint and a copy of the findings and/or order.
    (c) The findings and any preliminary order will be effective 30 
days after receipt by the respondent (or the respondent's legal counsel 
if the respondent is represented by counsel), or on the compliance date 
set forth in the preliminary order, whichever is later, unless an 
objection and/or a request for hearing has been timely filed as 
provided at Sec.  1987.106. However, the portion of any preliminary 
order requiring reinstatement will be effective immediately upon the 
respondent's receipt of the findings and the preliminary order, 
regardless of any objections to the findings and/or the order.

Subpart B--Litigation


Sec.  1987.106  Objections to the findings and the preliminary order 
and requests for a hearing.

    (a) Any party who desires review, including judicial review, of the 
findings and/or preliminary order, or a respondent alleging that the 
complaint was frivolous or brought in bad faith who seeks an award of 
attorney fees under FSMA, must file any objections and/or a request for 
a hearing on the record within 30 days of receipt of the findings and 
preliminary order pursuant to Sec.  1987.105. The objections, request 
for a hearing, and/or request for attorney fees must be in writing and 
state whether the objections are to the findings, the preliminary 
order, and/or whether there should be an award of attorney fees. The 
date of the postmark, facsimile transmittal, or electronic 
communication transmittal is considered the date of filing; if the 
objection is filed in person, by hand delivery or other means, the 
objection is filed upon receipt. Objections must be filed with the 
Chief Administrative Law Judge, U.S. Department of Labor, and copies of 
the objections must be mailed at the same time to the other parties of

[[Page 22542]]

record, the OSHA official who issued the findings and order, the 
Assistant Secretary, and the Associate Solicitor, Division of Fair 
Labor Standards, U.S. Department of Labor.
    (b) If a timely objection is filed, all provisions of the 
preliminary order will be stayed, except for the portion requiring 
preliminary reinstatement, which will not be automatically stayed. The 
portion of the preliminary order requiring reinstatement will be 
effective immediately upon the respondent's receipt of the findings and 
preliminary order, regardless of any objections to the order. The 
respondent may file a motion with the Office of Administrative Law 
Judges for a stay of the Assistant Secretary's preliminary order of 
reinstatement, which shall be granted only based on exceptional 
circumstances. If no timely objection is filed with respect to either 
the findings or the preliminary order, the findings and/or the 
preliminary order will become the final decision of the Secretary, not 
subject to judicial review.


Sec.  1987.107  Hearings.

    (a) Except as provided in this part, proceedings will be conducted 
in accordance with the rules of practice and procedure for 
administrative hearings before the Office of Administrative Law Judges, 
codified at subpart A of part 18 of this title.
    (b) Upon receipt of an objection and request for hearing, the Chief 
Administrative Law Judge will promptly assign the case to an ALJ who 
will notify the parties, by certified mail, of the day, time, and place 
of hearing. The hearing is to commence expeditiously, except upon a 
showing of good cause or unless otherwise agreed to by the parties. 
Hearings will be conducted de novo on the record. ALJs have broad 
discretion to limit discovery in order to expedite the hearing.
    (c) If both the complainant and the respondent object to the 
findings and/or order, the objections will be consolidated and a single 
hearing will be conducted.
    (d) Formal rules of evidence will not apply, but rules or 
principles designed to assure production of the most probative evidence 
will be applied. The ALJ may exclude evidence that is immaterial, 
irrelevant, or unduly repetitious.


Sec.  1987.108  Role of Federal agencies.

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


Sec.  1987.109  Decision and orders of the administrative law judge.

    (a) The decision of the ALJ will contain appropriate findings, 
conclusions, and an order pertaining to the remedies provided in 
paragraph (d) of this section, as appropriate. A determination that a 
violation has occurred may be made only if the complainant has 
demonstrated by a preponderance of the evidence that protected activity 
was a contributing factor in the adverse action alleged in the 
complaint.
    (b) If the complainant has satisfied the burden set forth in the 
prior paragraph, relief may not be ordered if the respondent 
demonstrates by clear and convincing evidence that it would have taken 
the same adverse action in the absence of any protected activity.
    (c) Neither OSHA's determination to dismiss a complaint without 
completing an investigation pursuant to Sec.  1987.104(e) nor OSHA's 
determination to proceed with an investigation is subject to review by 
the ALJ, and a complaint may not be remanded for the completion of an 
investigation or for additional findings on the basis that a 
determination to dismiss was made in error. Rather, if there otherwise 
is jurisdiction, the ALJ will hear the case on the merits or dispose of 
the matter without a hearing if the facts and circumstances warrant.
    (d)(1) If the ALJ concludes that the respondent has violated the 
law, the ALJ will issue an order that will require, where appropriate: 
Affirmative action to abate the violation; reinstatement of the 
complainant to his or her former position, together with the 
compensation (including back pay and interest), terms, conditions, and 
privileges of the complainant's employment; and payment of compensatory 
damages, including, at the request of the complainant, the aggregate 
amount of all costs and expenses (including attorney and expert witness 
fees) reasonably incurred. Interest on back pay will be calculated 
using the interest rate applicable to underpayment of taxes under 26 
U.S.C. 6621 and will be compounded daily. The order will also require 
the respondent to submit appropriate documentation to the Social 
Security Administration allocating any back pay award to the 
appropriate calendar quarters.
    (2) If the ALJ determines that the respondent has not violated the 
law, an order will be issued denying the complaint. If, upon the 
request of the respondent, the ALJ determines that a complaint was 
frivolous or was brought in bad faith, the ALJ may award to the 
respondent a reasonable attorney fee, not exceeding $1,000.
    (e) The decision will be served upon all parties to the proceeding, 
the Assistant Secretary, and the Associate Solicitor, Division of Fair 
Labor Standards, U.S. Department of Labor. Any ALJ's decision requiring 
reinstatement or lifting an order of reinstatement by the Assistant 
Secretary will be effective immediately upon receipt of the decision by 
the respondent. All other portions of the ALJ's order will be effective 
14 days after the date of the decision unless a timely petition for 
review has been filed with the Administrative Review Board (ARB), U.S. 
Department of Labor. The decision of the ALJ will become the final 
order of the Secretary unless a petition for review is timely filed 
with the ARB and the ARB accepts the petition for review.


Sec.  1987.110  Decision and orders of the Administrative Review Board.

    (a) Any party desiring to seek review, including judicial review, 
of a decision of the ALJ, or a respondent alleging that the complaint 
was frivolous or brought in bad faith who seeks an award of attorney 
fees, must file a written petition for review with the ARB, which has 
been delegated the authority to act for the Secretary and issue final 
decisions under this part. The parties should identify in their 
petitions for review the legal conclusions or orders to which they 
object, or the objections may be deemed waived. A petition must be 
filed within 14 days of the date of the decision of the ALJ. The date 
of the

[[Page 22543]]

postmark, facsimile transmittal, or electronic communication 
transmittal will be considered to be the date of filing; if the 
petition is filed in person, by hand delivery or other means, the 
petition is considered filed upon receipt. The petition must be served 
on all parties and on the Chief Administrative Law Judge at the time it 
is filed with the ARB. Copies of the petition for review must be served 
on the Assistant Secretary and on the Associate Solicitor, Division of 
Fair Labor Standards, U.S. Department of Labor.
    (b) If a timely petition for review is filed pursuant to paragraph 
(a) of this section, the decision of the ALJ will become the final 
order of the Secretary unless the ARB, within 30 days of the filing of 
the petition, issues an order notifying the parties that the case has 
been accepted for review. If a case is accepted for review, the 
decision of the ALJ will be inoperative unless and until the ARB issues 
an order adopting the decision, except that any order of reinstatement 
will be effective while review is conducted by the ARB, unless the ARB 
grants a motion by the respondent to stay that order based on 
exceptional circumstances. The ARB will specify the terms under which 
any briefs are to be filed. The ARB will review the factual 
determinations of the ALJ under the substantial evidence standard. If 
no timely petition for review is filed, or the ARB denies review, the 
decision of the ALJ will become the final order of the Secretary. If no 
timely petition for review is filed, the resulting final order is not 
subject to judicial review.
    (c) The final decision of the ARB will be issued within 120 days of 
the conclusion of the hearing, which will be deemed to be 14 days after 
the date of the decision of the ALJ, unless a motion for 
reconsideration has been filed with the ALJ in the interim. In such 
case the conclusion of the hearing is the date the motion for 
reconsideration is denied or 14 days after a new decision is issued. 
The ARB's final decision will be served upon all parties and the Chief 
Administrative Law Judge by mail. The final decision will also be 
served on the Assistant Secretary and on the Associate Solicitor, 
Division of Fair Labor Standards, U.S. Department of Labor, even if the 
Assistant Secretary is not a party.
    (d) If the ARB concludes that the respondent has violated the law, 
the ARB will issue a final order providing relief to the complainant. 
The final order will require, where appropriate: Affirmative action to 
abate the violation; reinstatement of the complainant to his or her 
former position, together with the compensation (including back pay and 
interest), terms, conditions, and privileges of the complainant's 
employment; and payment of compensatory damages, including, at the 
request of the complainant, the aggregate amount of all costs and 
expenses (including attorney and expert witness fees) reasonably 
incurred. Interest on back pay will be calculated using the interest 
rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will 
be compounded daily. The order will also require the respondent to 
submit appropriate documentation to the Social Security Administration 
allocating any back pay award to the appropriate calendar quarters.
    (e) If the ARB determines that the respondent has not violated the 
law, an order will be issued denying the complaint. If, upon the 
request of the respondent, the ARB determines that a complaint was 
frivolous or was brought in bad faith, the ARB may award to the 
respondent a reasonable attorney fee, not exceeding $1,000.

Subpart C--Miscellaneous Provisions


Sec.  1987.111  Withdrawal of complaints, findings, objections, and 
petitions for review; settlement.

    (a) At any time prior to the filing of objections to the Assistant 
Secretary's findings and/or preliminary order, a complainant may 
withdraw his or her complaint by notifying OSHA, orally or in writing, 
of his or her withdrawal. OSHA then will confirm in writing the 
complainant's desire to withdraw and determine whether to approve the 
withdrawal. OSHA will notify the parties (and each party's legal 
counsel if the party is represented by counsel) of the approval of any 
withdrawal. If the complaint is withdrawn because of settlement, the 
settlement must be submitted for approval in accordance with paragraph 
(d) of this section. A complainant may not withdraw his or her 
complaint after the filing of objections to the Assistant Secretary's 
findings and/or preliminary order.
    (b) The Assistant Secretary may withdraw the findings and/or 
preliminary order at any time before the expiration of the 30-day 
objection period described in Sec.  1987.106, provided that no 
objection has been filed yet, and substitute new findings and/or a new 
preliminary order. The date of the receipt of the substituted findings 
or order will begin a new 30-day objection period.
    (c) At any time before the Assistant Secretary's findings and/or 
order become final, a party may withdraw objections to the Assistant 
Secretary's findings and/or order by filing a written withdrawal with 
the ALJ. If the case is on review with the ARB, a party may withdraw a 
petition for review of an ALJ's decision at any time before that 
decision becomes final by filing a written withdrawal with the ARB. The 
ALJ or the ARB, as the case may be, will determine whether to approve 
the withdrawal of the objections or the petition for review. If the ALJ 
approves a request to withdraw objections to the Assistant Secretary's 
findings and/or order, and there are no other pending objections, the 
Assistant Secretary's findings and/or order will become the final order 
of the Secretary. If the ARB approves a request to withdraw a petition 
for review of an ALJ decision, and there are no other pending petitions 
for review of that decision, the ALJ's decision will become the final 
order of the Secretary. If objections or a petition for review are 
withdrawn because of settlement, the settlement must be submitted for 
approval in accordance with paragraph (d) of this section.
    (d)(1) Investigative settlements. At any time after the filing of a 
complaint, but before the findings and/or order are objected to or 
become a final order by operation of law, the case may be settled if 
OSHA, the complainant, and the respondent agree to a settlement. OSHA's 
approval of a settlement reached by the respondent and the complainant 
demonstrates OSHA's consent and achieves the consent of all three 
parties.
    (2) Adjudicatory settlements. At any time after the filing of 
objections to the Assistant Secretary's findings and/or order, the case 
may be settled if the participating parties agree to a settlement and 
the settlement is approved by the ALJ if the case is before the ALJ, or 
by the ARB if the ARB has accepted the case for review. A copy of the 
settlement will be filed with the ALJ or the ARB, as appropriate.
    (e) Any settlement approved by OSHA, the ALJ, or the ARB will 
constitute the final order of the Secretary and may be enforced in 
United States district court pursuant to Sec.  1987.113.


Sec.  1987.112  Judicial review.

    (a) Within 60 days after the issuance of a final order under 
Sec. Sec.  1987.109 and 1987.110, any person adversely affected or 
aggrieved by the order may file a petition for review of the order in 
the United States Court of Appeals for the circuit in which the 
violation allegedly occurred or the circuit in which the

[[Page 22544]]

complainant resided on the date of the violation.
    (b) A final order is not subject to judicial review in any criminal 
or other civil proceeding.
    (c) If a timely petition for review is filed, the record of a case, 
including the record of proceedings before the ALJ, will be transmitted 
by the ARB or the ALJ, as the case may be, to the appropriate court 
pursuant to the Federal Rules of Appellate Procedure and the local 
rules of such court.


Sec.  1987.113  Judicial enforcement.

    Whenever any person has failed to comply with a preliminary order 
of reinstatement, or a final order, including one approving a 
settlement agreement, issued under FSMA, the Secretary may file a civil 
action seeking enforcement of the order in the United States district 
court for the district in which the violation was found to have 
occurred or in the United States district court for the District of 
Columbia. Whenever any person has failed to comply with a preliminary 
order of reinstatement, or a final order, including one approving a 
settlement agreement, issued under FSMA, a person on whose behalf the 
order was issued may file a civil action seeking enforcement of the 
order in the appropriate United States district court.


Sec.  1987.114  District court jurisdiction of retaliation complaints.

    (a) The complainant may bring an action at law or equity for de 
novo review in the appropriate district court of the United States, 
which will have jurisdiction over such an action without regard to the 
amount in controversy, either:
    (1) Within 90 days after receiving a written determination under 
Sec.  1987.105(a) provided that there has been no final decision of the 
Secretary; or
    (2) If there has been no final decision of the Secretary within 210 
days of the filing of the complaint.
    (b) At the request of either party, the action shall be tried by 
the court with a jury.
    (c) A proceeding under paragraph (a) of this section shall be 
governed by the same legal burdens of proof specified in Sec.  
1987.109. The court shall have jurisdiction to grant all relief 
necessary to make the employee whole, including injunctive relief and 
compensatory damages, including:
    (1) Reinstatement with the same seniority status that the employee 
would have had, but for the discharge or discrimination;
    (2) The amount of back pay, with interest;
    (3) Compensation for any special damages sustained as a result of 
the discharge or discrimination; and
    (4) Litigation costs, expert witness fees, and reasonable attorney 
fees.
    (d) Within seven days after filing a complaint in federal court, a 
complainant must file with OSHA, the ALJ, or the ARB, depending on 
where the proceeding is pending, a copy of the file-stamped complaint. 
In all cases, a copy of the complaint also must be served on the OSHA 
official who issued the findings and/or preliminary order, the 
Assistant Secretary, and the Associate Solicitor, Division of Fair 
Labor Standards, U.S. Department of Labor.


Sec.  1987.115  Special circumstances; waiver of rules.

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

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