Food Safety Modernization Act IFR, 29 CFR 1987.103

Federal Register / Vol. 79, No. 30 / Thursday, February 13, 2014 / Rules and Regulations
Counsel, (202) 336–8400, or
[email protected].
The
amendment of Part 713 clarifies that the
Touhy regulations must be complied
with prior to the serving of a subpoena.
OPIC published a proposed rule on
December 4, 2013 in 78 FR 72850 and
invited interested parties to submit
comments. OPIC received no comments
and therefore submits the revisions to
Part 713 as a final rule.

SUPPLEMENTARY INFORMATION:

Regulatory Flexibility Act (5 U.S.C. 601
et seq.)
Pursuant to the Regulatory Flexibility
Act, 5 U.S.C. 601 et seq., the head of
OPIC has certified that this final rule
will not have a significant economic
impact on a substantial number of small
entities. The rule amends regulations
governing the procedures for a third
party to request government records and
testimony in litigation, and does not
economically impact Federal
Government relations with the private
sector. Further, under these regulations,
OPIC may only charge the actual cost for
records, based upon FOIA regulations in
Part 706, and the fees set by the court
for witness testimony. OPIC is
authorized to charge actual costs for its
services based on 31 U.S.C. 9701.

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Executive Order 12866
OPIC is exempted from the
requirements of this Executive Order
per the Office of Management and
Budget’s October 12, 1993
memorandum. Accordingly, OMB did
not review this final rule. However this
rule was generally composed with the
principles stated in section 1(b) of the
Executive Order in mind.
Unfunded Mandates Reform Act of
1995 (2 U.S.C. 202–05)
This final rule will not result in the
expenditure by State, local, and tribal
governments in the aggregate, or by the
private sector, of $100,000,000 or more
in any one year, and it will not
significantly or uniquely affect small
governments. Therefore, no actions were
deemed necessary under the provisions
of the Unfunded Mandates Reform Act
of 1995. Small Business Regulatory
Enforcement Fairness Act of 1996 (5
U.S.C. 801 et seq.)
This final rule is not a major rule as
defined by section 804 of the Small
Business Regulatory Enforcement
Fairness Act of 1996. This regulation
will not result in an annual effect on the
economy of $100,000,000 or more; a
major increase in costs or prices; or
significant adverse effects on
competition, employment, investment,
productivity, innovation, or on the

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ability of United State based companies
to compete with foreign-based
companies in domestic and export
markets.
List of Subjects in 22 CFR Part 713
Administrative practice and
procedure, Courts, Government
Employees, Subpoenas.
For the reasons stated in the preamble
the Overseas Private Investment
Corporation amends 22 CFR part 713 as
follows:
PART 713—PRODUCTION OF
NONPUBLIC RECORDS AND
TESTIMONY OF OPIC EMPLOYEES IN
LEGAL PROCEEDINGS

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requesting the testimony of an OPIC
employee, OPIC expects you to
anticipate your need for the testimony
in sufficient time to obtain it by
deposition. The Vice-President/General
Counsel may well deny a request for
testimony at a legal proceeding unless
you explain why you could not have
used deposition testimony instead. The
Vice-President/General Counsel will
determine the location of a deposition,
taking into consideration OPIC’s interest
in minimizing the disruption for an
OPIC employee’s work schedule and the
costs and convenience of other persons
attending the deposition.
■ 5. Revise the section heading of
§ 713.10 to read as follows:

1. The authority citation for part 713
continues to read as follows:

§ 713.10

Authority: 5 U.S.C. 301; 5 U.S.C. 552; 5
U.S.C. 552a; 5 U.S.C. 702, 18 U.S.C. 207; 18
U.S.C. 641; 22 U.S.C. 2199(d); 28 U.S.C.
1821.

Dated: January 28, 2014.
Nichole Cadiente,
Administrative Counsel, Department of Legal
Affairs.

■

■

2. Revise § 713.2 to read as follows:

§ 713.2

When does this part apply?

This part applies if you want to obtain
nonpublic records or testimony of an
OPIC employee for a legal proceeding. It
does not apply to records that OPIC is
required to release, records which OPIC
discretionarily releases under the
Freedom of Information Act (FOIA),
records that OPIC releases to federal or
state investigatory agencies, records that
OPIC is required to release pursuant to
the Privacy Act, 5 U.S.C. 552a, or
records that OPIC releases under any
other applicable authority.
■ 3. Revise § 713.3 to read as follows:
§ 713.3 How do I request nonpublic
records or testimony?

To request nonpublic records or the
testimony of an OPIC employee, you
must submit a written request as
described in § 713.4 to the VicePresident/General Counsel of OPIC. If
you serve a subpoena on OPIC or an
OPIC employee before submitting a
written request and receiving a final
determination, OPIC will oppose the
subpoena on the grounds that you failed
to follow the requirements of this part.
■ 4. Revise § 713.5 to read as follows:
§ 713.5

When should I make my request?

Submit your request at least 45 days
before the date you need the records or
testimony. If you want your request
processed in a shorter time, you must
explain why you could not submit the
request earlier and why you need such
expedited processing. OPIC retains full
discretion to grant, deny, or propose a
new completion date on any request for
expedited processing. If you are

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*

Definitions.

*

*

*

*

[FR Doc. 2014–03037 Filed 2–12–14; 8:45 am]
BILLING CODE 3195–01–P

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
Occupational Safety and Health
Administration, Labor.
ACTION: Interim final rule.
AGENCY:

This document provides the
interim final regulations governing the
employee protection (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. This interim rule establishes
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.

SUMMARY:

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Federal Register / Vol. 79, No. 30 / Thursday, February 13, 2014 / Rules and Regulations

This interim final rule is
effective on February 13, 2014.
Comments and additional materials
must be submitted (post-marked, sent or
received) by April 14, 2014.
ADDRESSES: You may submit your
comments by using one of the following
methods:
Electronically: You may submit
comments and attachments
electronically at http://
www.regulations.gov, which is the
Federal eRulemaking Portal. Follow the
instructions online for making
electronic submissions.
Fax: If your submissions, including
attachments, do not exceed 10 pages,
you may fax them to the OSHA Docket
Office at (202) 693–1648.
Mail, hand delivery, express mail,
messenger, or courier service: You may
submit your comments and attachments
to the OSHA Docket Office, Docket No.
OSHA–2011–0859, U.S. Department of
Labor, Room N–2625, 200 Constitution
Avenue NW., Washington, DC 20210.
Deliveries (hand, express mail,
messenger, and courier service) are
accepted during the Department of
Labor’s and Docket Office’s normal
business hours, 8:15 a.m.–4:45 p.m., ET.
Instructions: All submissions must
include the agency name and the OSHA
docket number for this rulemaking
(Docket No. OSHA–2011–0859).
Submissions, including any personal
information provided, are placed in the
public docket without change and may
be made available online at http://
www.regulations.gov. Therefore, OSHA
cautions against submitting personal
information such as social security
numbers and birth dates.
Docket: To read or download
submissions or other material in the
docket, go to http://www.regulations.gov
or the OSHA Docket Office at the
address above. All documents in the
docket are listed in the http://
www.regulations.gov index, however,
some information (e.g., copyrighted
material) is not publicly available to
read or download through the Web site.
All submissions, including copyrighted
material, are available for inspection
and copying at the OSHA Docket Office.
FOR FURTHER INFORMATION CONTACT:
Katelyn Wendell, Program Analyst,
Directorate of Whistleblower Protection
Programs, Occupational Safety and
Health Administration, U.S. Department
of Labor, Room N–4624, 200
Constitution Avenue NW., Washington,
DC 20210; telephone (202) 693–2199.
This is not a toll-free number. Email:
[email protected]. This Federal
Register publication is available in
alternative formats. The alternative

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DATES:

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formats available are large print,
electronic file on computer disk (Word
Perfect, ASCII, Mates with Duxbury
Braille System) and audiotape.
SUPPLEMENTARY INFORMATION:
I. Background
The FDA Food Safety Modernization
Act (Pub. L. 111–353, 124 Stat. 3885),
was signed into law on January 4, 2011.
Section 402 of the FDA Food Safety
Modernization Act amended the Federal
Food, Drug, and Cosmetic Act (FD&C) to
add section 1012, 21 U.S.C. 399d, which
provides protection to employees
against retaliation by an entity engaged
in the manufacture, processing, packing,
transporting, distribution, reception,
holding, or importation of food for
engaging in certain protected activities.
Section 1012 protects employees against
retaliation because they provided or are
about to provide to their employer, the
Federal Government, or the attorney
general of a State information relating to
any violation of, or any act or omission
the employee reasonably believes to be
a violation of, any provision of the
FD&C or any order, rule, regulation,
standard, or ban under the FD&C;
testified or are about to testify in a
proceeding concerning such violation;
assisted or participated, or are about to
assist or participate, in such a
proceeding; or objected to, or refused to
participate in, any activity, policy,
practice, or assigned task that the
employee reasonably believed to be in
violation of any provision of the FD&C
or any order, rule, regulation, standard,
or ban under the FD&C.
Section 1012 became effective upon
enactment on January 4, 2011. Although
the Food and Drug Administration of
the U.S. Department of Health and
Human Services (FDA) generally
administers the FD&C, the Secretary of
Labor is responsible for enforcing the
employee protection provision set forth
in section 1012 of the FD&C. These
interim rules establish procedures for
the handling of whistleblower
complaints under section 1012 of the
FD&C. Throughout this interim final
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

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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 ALJ. 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.

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Federal Register / Vol. 79, No. 30 / Thursday, February 13, 2014 / Rules and Regulations
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.

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III. Summary and Discussion of
Regulatory Provisions
The regulatory provisions in this part
have been written and organized to be
consistent with other whistleblower
regulations promulgated by OSHA to
the extent possible within the bounds of
the statutory language of 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).
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.
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).
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.’’
Section 1012(a)(1), 21 U.S.C. 399d(a)(1).

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FSMA also protects employees who
testify, assist or participate in
proceedings concerning such violations.
See Sections 1012(a)(2) and (3), 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.’’ Section 1012(a)(4),
21 U.S.C. 399d(a)(4). References to ‘‘this
chapter’’ in section 1012(a)(1) and (4)
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 SarbanesOxley Act whistleblower provision, 18
U.S.C. 1514A). The requirement that the
complainant have a subjective, good
faith belief is satisfied so long as the
complainant actually believed that the
conduct 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.
Section 1987.103 Filing of Retaliation
Complaint
This section explains the
requirements for filing a retaliation
complaint under FSMA. To be timely, a

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complaint must be filed within 180 days
of when the alleged violation occurs.
Under Delaware State College v. Ricks,
449 U.S. 250, 258 (1980), this is
considered to be when the retaliatory
decision has been both made and
communicated to the complainant. In
other words, the limitations period
commences once the employee is aware
or reasonably should be aware of the
employer’s decision to take an adverse
action. See Equal Emp’t Opportunity
Comm’n v. United Parcel Serv., Inc., 249
F.3d 557, 561–62 (6th Cir. 2001). The
time for filing a complaint may be tolled
for reasons warranted by applicable case
law. For example, OSHA may consider
the time for filing a complaint to be
tolled if a complainant mistakenly files
a complaint with an agency other than
OSHA within 180 days after an alleged
adverse action.
Complaints filed under FSMA need
not be in any particular form. They may
be either oral or in writing. If the
complainant is unable to file the
complaint in English, OSHA will accept
the complaint in any language. With the
consent of the employee, complaints
may be filed by any person on the
employee’s behalf.
OSHA notes that a complaint of
retaliation filed with OSHA under
FSMA is not a formal document and
need not conform to the pleading
standards for complaints filed in federal
district court articulated in Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007)
and Ashcroft v. Iqbal, 556 U.S. 662
(2009). See Sylvester, 2011 WL 2165854,
at *9–10 (holding whistleblower
complaints filed with OSHA under
analogous provisions in the SarbanesOxley 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).

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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) specifies that OSHA will provide to
the complainant (or the complainant’s
legal counsel if the complainant is
represented by counsel) a copy of
respondent’s submissions to OSHA that
are responsive to the complainant’s
whistleblower complaint at a time
permitting the complainant an
opportunity to respond to those
submissions. Before providing such
materials to the complainant, OSHA
will redact them in accordance with the
Privacy Act of 1974, 5 U.S.C. 552a, and
other applicable confidentiality laws.
Paragraph (d) of this section discusses
confidentiality of information provided
during investigations.
Paragraph (e) of this section sets forth
the applicable burdens of proof. 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
Corr., 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 by raising
a non-frivolous allegation of retaliation,
the investigation must be discontinued
and the complaint dismissed. See
Trimmer v. U.S. Dep’t of Labor, 174

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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

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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.
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.
In ordering interest on back pay under
FSMA, the Secretary has determined

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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. The Secretary believes that daily
compounding of interest achieves the
make-whole purpose of a back pay
award. Daily compounding of interest
has become the norm in private lending
and was found to be the most
appropriate method of calculating
interest on back pay by the National
Labor Relations Board. See Jackson
Hosp. Corp. v. United Steel, Paper &
Forestry, Rubber, Mfg., Energy, Allied
Indus. & Serv. Workers Int’l Union, 356
NLRB No. 8, 2010 WL 4318371, at
*3–4 (NLRB Oct. 22, 2010).
Additionally, interest on tax
underpayments under the Internal
Revenue Code, 26 U.S.C. 6621, is
compounded daily pursuant to 26
U.S.C. 6622(a).
In ordering back pay, OSHA will
require the respondent to submit the
appropriate documentation to the Social
Security Administration (SSA)
allocating the back pay to the
appropriate calendar quarters. Requiring
the reporting of back pay allocation to
the SSA better serves the remedial
purposes of FSMA by ensuring that
employees subjected to discrimination
are truly made whole. See Latino
Express, Inc., et al, 359 NLRB No. 44,
2012 WL 6641632 (NLRB Dec. 18, 2012).
As the NLRB explained, when back pay
is not properly allocated to the years
covered by the award, a complainant
may be disadvantaged in several ways.
First, improper allocation may interfere
with a complainant’s ability to qualify
for any old-age Social Security benefit.
Id. at *2 (‘‘Unless a [complainant’s]
multiyear backpay award is allocated to
the appropriate years, she will not
receive appropriate credit for the entire
period covered by the award, and could
therefore fail to qualify for any old-age
Social Security benefit.’’). Second,
improper allocation may reduce the
complainant’s eventual monthly benefit.
Id. As the NLRB explained, ‘‘[i]f a
backpay award covering a multi-year
period is posted as income for one year,
it may result in SSA treating the
[complainant] as having received wages
in that year in excess of the annual
contribution and benefit base.’’ Id.
Wages above this base are not subject to
Social Security taxes, which reduces the
amount paid on the employee’s behalf.
‘‘As a result, the [complainant’s]
eventual monthly benefit will be
reduced, because participants receive a
greater benefit when they have paid

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more into the system.’’ Id. Finally,
‘‘Social Security benefits are calculated
using a progressive formula: Although a
participant receives more in benefits
when she pays more into the system, the
rate of return diminishes at higher
annual incomes.’’ Therefore, a
complainant may ‘‘receive a smaller
monthly benefit when a multi-year
award is posted to one year rather than
being allocated to the appropriate
periods, even if Social Security taxes
were paid on the entire amount.’’ Id.
The purpose of a make-whole remedy
such as back pay is to put the
complainant in the same position she
would have been absent the prohibited
retaliation. Should a complainant be
required to suffer the above
disadvantages, she would not truly be in
the same position she would have been
had she not been subjected to
retaliation. As such, the Secretary agrees
that requiring proper SSA allocation
better achieves the make-whole purpose
of a back pay award.
In appropriate circumstances, in lieu
of preliminary reinstatement, OSHA
may order that the complainant receive
the same pay and benefits that he or she
received prior to termination, but not
actually return to work. Such
‘‘economic reinstatement’’ is akin to an
order 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 circumstances
where reinstatement would not be
appropriate. See, e.g., Moder v. Vill. of
Jackson, ARB Nos. 01–095, 02–039,
2003 WL 21499864, at *10 (ARB June
30, 2003) (under environmental
whistleblower statutes, ‘‘front pay may
be an appropriate substitute when the
parties prove the impossibility of a
productive and amicable working
relationship, or the company no longer
has a position for which the
complainant is qualified’’); Hobby v.
Georgia Power Co., ARB Nos. 98–166,
98–169 (ARB Feb. 9, 2001), aff’d sub
nom. Hobby v. U.S. Dep’t of Labor, No.
01–10916 (11th Cir. Sept. 30, 2002)
(unpublished) (noting circumstances
where front pay may be available in lieu
of reinstatement but ordering
reinstatement); Doyle v. Hydro Nuclear
Servs., ARB Nos. 99–041, 99–042, 00–
012, 1996 WL 518592, at *6 (ARB Sept.
6, 1996) (under ERA, front pay

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appropriate where employer had
eliminated the employee’s position);
Michaud v. BSP Transport, Inc., ARB
No. 97–113, 1997 WL 626849, at *4
(ARB Oct. 9, 1997) (under STAA, front
pay appropriate where employee was
unable to work due to major depression
resulting from the retaliation); Brown v.
Lockheed Martin Corp., ALJ No. 2008–
SOX–00049, 2010 WL 2054426, at *55–
56 (ALJ Jan. 15, 2010) (noting that while
reinstatement is the ‘‘presumptive
remedy’’ under Sarbanes-Oxley, front
pay may be awarded as a substitute
when reinstatement is inappropriate).
Congress intended that employees be
preliminarily reinstated to their
positions if OSHA finds reasonable
cause to believe that they were
discharged in violation of FSMA. When
a violation is found, the norm is for
OSHA to order immediate preliminary
reinstatement. Neither an employer nor
an employee has a statutory right to
choose economic reinstatement. Rather,
economic reinstatement is designed to
accommodate situations in which
evidence establishes to OSHA’s
satisfaction that immediate
reinstatement is inadvisable for some
reason, notwithstanding the employer’s
retaliatory discharge of the employee. In
such situations, actual reinstatement
might be delayed until after the
administrative adjudication is
completed as long as the employee
continues to receive his or her pay and
benefits and is not otherwise
disadvantaged by a delay in
reinstatement. There is no statutory
basis for allowing the employer to
recover the costs of economically
reinstating an employee should the
employer ultimately prevail in the
whistleblower adjudication.

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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 handdelivery 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

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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.
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.
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

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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.
Section 1987.109 Decision and Orders
of the Administrative Law Judge
This section sets forth the
requirements for the content of the
decision and order of the ALJ, and
includes the standard for finding a
violation under FSMA. Specifically, the
complainant must demonstrate (i.e.,
prove by a preponderance of the
evidence) that the protected activity was
a ‘‘contributing factor’’ in the adverse
action. See, e.g., Allen v. Admin. Review
Bd., 514 F.3d 468, 475 n.1 (5th Cir.
2008) (‘‘The term ‘demonstrates’ [under
identical burden-shifting scheme in the
Sarbanes-Oxley whistleblower
provision] means to prove by a
preponderance of the evidence.’’). If the
employee demonstrates that the alleged
protected activity was a contributing
factor in the adverse action, the
employer, to escape liability, must
demonstrate by ‘‘clear and convincing
evidence’’ that it would have taken the
same action in the absence of the
protected activity. See 21 U.S.C.
399d(b)(2)(C).
Paragraph (c) of this section further
provides that OSHA’s determination to
dismiss the complaint without an
investigation or without a complete
investigation under section 1987.104 is
not subject to review. Thus, section
1987.109(c) clarifies that OSHA’s
determinations on whether to proceed
with an investigation under FSMA and
whether to make particular investigative
findings are discretionary decisions not
subject to review by the ALJ. The ALJ
hears cases de novo and, therefore, as a
general matter, may not remand cases to
OSHA to conduct an investigation or
make further factual findings. Paragraph
(d) notes the remedies that the ALJ may
order under FSMA and, as discussed
under section 1987.105 above, provides
that interest on back pay will be
calculated using the interest rate
applicable to underpayment of taxes
under 26 U.S.C. 6621 and will be

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compounded daily, and that 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.
Paragraph (e) requires that the ALJ’s
decision be served on all parties to the
proceeding, OSHA, and the U.S.
Department of Labor’s Associate
Solicitor for Fair Labor Standards.
Paragraph (e) also provides that any ALJ
decision requiring reinstatement or
lifting an order of reinstatement by the
Assistant Secretary will be effective
immediately upon receipt of the
decision by the respondent. All other
portions of the ALJ’s order will be
effective 14 days after the date of the
decision unless a timely petition for
review has been filed with the ARB. If
no timely petition for review is filed
with the ARB, the decision of the ALJ
becomes the final decision of the
Secretary and is not subject to judicial
review.
Section 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.
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

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reinstatement under FSMA would be
appropriate only where the respondent
can establish the necessary criteria for
equitable injunctive relief, i.e.,
irreparable injury, likelihood of success
on the merits, a balancing of possible
harms to the parties, and the public
interest favors a stay.
If the ARB concludes that the
respondent has violated the law, it will
order the respondent to take appropriate
affirmative action to abate the violation,
including reinstatement of the
complainant to that person’s former
position, together with the
compensation (including back pay and
interest), terms, conditions, and
privileges of employment, and
compensatory damages. At the request
of the complainant, the ARB will assess
against the respondent all costs and
expenses (including attorney and expert
witness fees) reasonably incurred.
Interest on back pay will be calculated
using the interest rate applicable to
underpayment of taxes under 26 U.S.C.
6621 and will be compounded daily,
and the respondent will be required to
submit appropriate documentation to
the Social Security Administration
(SSA) allocating any back pay award to
the appropriate calendar quarters. If the
ARB determines that the respondent has
not violated the law, an order will be
issued denying the complaint. If, upon
the request of the respondent, the ARB
determines that a complaint was
frivolous or was brought in bad faith,
the ARB may award to the respondent
a reasonable attorney fee, not exceeding
$1,000, to be paid by the complainant.
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.
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

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of proceedings to the appropriate court
pursuant to the rules of such court.
Section 1987.113 Judicial Enforcement
This section describes the Secretary’s
power under FSMA to obtain judicial
enforcement of orders and the terms of
settlement agreements. FSMA expressly
authorizes district courts to enforce
orders, including preliminary orders of
reinstatement, issued by the Secretary.
See 21 U.S.C. 399d(b)(6) (‘‘Whenever
any person has failed to comply with an
order issued under paragraph (3), the
Secretary may file a civil action in the
United States district court for the
district in which the violation was
found to occur, or in the United States
district court for the District of
Columbia, to enforce such order.’’).
Specifically, reinstatement orders issued
at the close of OSHA’s investigation are
immediately enforceable in district
court pursuant to 21 U.S.C. 399d(b)(6)
and (7). FSMA provides that the
Secretary shall order the person who
has committed a violation to reinstate
the complainant to his or her former
position. See 21 U.S.C. 399d(b)(3)(B)(ii).
FSMA also provides that the Secretary
shall accompany any reasonable cause
finding that a violation occurred with a
preliminary order containing the relief
prescribed by subsection (b)(3)(B),
which includes reinstatement where
appropriate, and that any preliminary
order of reinstatement shall not be
stayed upon the filing of objections. See
21 U.S.C. 399d(b)(2)(B) (‘‘The filing of
such objections shall not operate to stay
any reinstatement remedy contained in
the preliminary order.’’). Thus, under
FSMA, enforceable orders include
preliminary orders that contain the
relief of reinstatement prescribed by 21
U.S.C. 399d(b)(3)(B). This statutory
interpretation is consistent with the
Secretary’s interpretation of similar
language in the whistleblower
provisions of the Wendell H. Ford
Aviation Investment and Reform Act for
the 21st Century, 49 U.S.C. 42121, and
Section 806 of the Corporate and
Criminal Fraud Accountability Act of
2002, Title VIII of the Sarbanes-Oxley
Act of 2002, 18 U.S.C. 1514A. See Brief
for the Intervenor/Plaintiff-Appellee
Secretary of Labor, Solis v. Tenn.
Commerce Bancorp, Inc., No. 10–5602
(6th Cir. 2010); Solis v. Tenn. Commerce
Bancorp, Inc., 713 F. Supp. 2d 701
(M.D. Tenn. 2010); but see Bechtel v.
Competitive Techs., Inc., 448 F.3d 469
(2d Cir. 2006); Welch v. Cardinal
Bankshares Corp., 454 F. Supp. 2d 552
(W.D. Va. 2006) (decision vacated,
appeal dismissed, No. 06–2295 (4th Cir.
Feb. 20, 2008)). FSMA also permits the
person on whose behalf the order was

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issued to obtain judicial enforcement of
the order. See 21 U.S.C. 399d(b)(7).
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, it is the Secretary’s position
that complainants may not initiate an
action in federal court after the
Secretary issues a final decision, even if
the date of the final decision is more
than 210 days after the filing of the
complaint 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 could conflict with the
parties’ rights to seek judicial review of
the Secretary’s final decision in the
court of appeals. See 21 U.S.C.

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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 § 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. 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.
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.
IV. Paperwork Reduction Act
This rule contains a reporting
provision (filing a retaliation complaint,
section 1987.103) which was previously
reviewed as a statutory requirement of
FSMA and approved for use by the
Office of Management and Budget
(OMB), and was assigned OMB control
number 1218–0236 under the provisions
of the Paperwork Reduction Act of 1995.
See Public Law 104–13, 109 Stat. 163
(1995). A non-material change has been

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submitted to OMB to include the
regulatory citation.
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 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 is a
procedural rule not subject to the notice
and comment procedures of the APA,
OSHA is providing persons interested in
this interim final rule 60 days to submit
comments. A final rule will be
published after the agency receives and
reviews the public’s comments.
Furthermore, because this rule is
procedural and interpretative rather
than substantive, the normal
requirement of 5 U.S.C. 553(d) that a
rule be effective 30 days after
publication in the Federal Register is
inapplicable. The Assistant Secretary
also finds good cause to provide an
immediate effective date for this interim
final rule. It is in the public interest that
the rule be effective immediately so that
parties may know what procedures are
applicable to pending cases.
VI. Executive Orders 12866 and 13563;
Unfunded Mandates Reform Act of
1995; Executive Order 13132
The Department has concluded that
this rule is not a ‘‘significant regulatory
action’’ within the meaning of 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.

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Therefore, no regulatory impact analysis
has been prepared.
The rule is procedural and
interpretative in nature, and it is
expected to have a negligible economic
impact. For this reason, and the fact that
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 Department has determined that
the regulation will not have a significant
economic impact on a substantial
number of small entities. The regulation
simply implements procedures
necessitated by enactment of FSMA.
Furthermore, no certification to this
effect is required and no regulatory
flexibility analysis is required because
no proposed rule has been issued.
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 February 7,
2014.
David Michaels,
Assistant Secretary of Labor for Occupational
Safety and Health.

emcdonald on DSK67QTVN1PROD with RULES

Accordingly, for the reasons set out in
the preamble, 29 CFR part 1987 is added
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
Sec.
1987.100 Purpose and scope.
1987.101 Definitions.
1987.102 Obligations and prohibited acts.
1987.103 Filing of retaliation complaint.

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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
§ 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.

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§ 1987.101

8627

Definitions.

As used in this part:
(a) Assistant Secretary means the
Assistant Secretary of Labor for
Occupational Safety and Health or the
person or persons to whom he or she
delegates authority under FSMA.
(b) Business days means days other
than Saturdays, Sundays, and Federal
holidays.
(c) Complainant means the employee
who filed a complaint under FSMA or
on whose behalf a complaint was filed.
(d) Covered entity means an entity
engaged in the manufacture, processing,
packing, transporting, distribution,
reception, holding, or importation of
food.
(e) Employee means an individual
presently or formerly working for a
covered entity, an individual applying
to work for a covered entity, or an
individual whose employment could be
affected by a covered entity.
(f) FD&C means the Federal Food,
Drug, and Cosmetic Act, 21 U.S.C. 301
et seq., which is chapter 9 of title 21.
(g) FDA means the Food and Drug
Administration of the United States
Department of Health and Human
Services.
(h) Food means articles used for food
or drink for man or other animals,
chewing gum, and articles used for
components of any such article.
(i) FSMA means section 402 of the
FDA Food Safety Modernization Act,
Public Law 111–353, 124 Stat. 3885
(Jan. 4, 2011) (codified at 21 U.S.C.
399d).
(j) OSHA means the Occupational
Safety and Health Administration of the
United States Department of Labor.
(k) Person includes an individual,
partnership, corporation, and
association.
(l) Respondent means the employer
named in the complaint who is alleged
to have violated the FSMA.
(m) Secretary means the Secretary of
Labor or person to whom authority
under the FSMA has been delegated.
(n) Any future statutory amendments
that affect the definition of a term or
terms listed in this section will apply in
lieu of the definition stated herein.
§ 1987.102
acts.

Obligations and prohibited

(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

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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.

emcdonald on DSK67QTVN1PROD with RULES

§ 1987.103

Filing of retaliation complaint.

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

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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.
§ 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, in accordance
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
§ 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) OSHA will provide to the
complainant (or the complainant’s legal
counsel if complainant is represented by
counsel) a copy of all of respondent’s
submissions to OSHA that are
responsive to the complainant’s
whistleblower complaint at a time
permitting the complainant an
opportunity to respond. Before
providing such materials to the
complainant, OSHA will redact them, if
necessary, in accordance with the
Privacy Act of 1974, 5 U.S.C. 552a, and
other applicable confidentiality laws.
OSHA will also provide the
complainant with an opportunity to
respond to such 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

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allegation) that a protected activity was
a contributing factor in the adverse
action alleged in the complaint.
(2) The complaint, supplemented as
appropriate by interviews of the
complainant, must allege the existence
of facts and evidence to make a prima
facie showing as follows:
(i) The employee engaged in a
protected activity;
(ii) The respondent knew or suspected
that the employee engaged in the
protected activity;
(iii) The employee suffered an adverse
action; and
(iv) The circumstances were sufficient
to raise the inference that the protected
activity was a contributing factor in the
adverse action.
(3) For purposes of determining
whether to investigate, the complainant
will be considered to have met the
required burden if the complaint on its
face, supplemented as appropriate
through interviews of the complainant,
alleges the existence of facts and either
direct or circumstantial evidence to
meet the required showing, i.e., to give
rise to an inference that the respondent
knew or suspected that the employee
engaged in protected activity and that
the protected activity was a contributing
factor in the adverse action. The burden
may be satisfied, for example, if the
complaint shows that the adverse action
took place within a temporal proximity
of the protected activity, or at the first
opportunity available to the respondent,
giving rise to the inference that it was
a contributing factor in the adverse
action. If the required showing has not
been made, the complainant (or the
complainant’s legal counsel if
complainant is represented by counsel)
will be so notified and the investigation
will not commence.
(4) Notwithstanding a finding that a
complainant has made a prima facie
showing, as required by this section,
further investigation of the complaint
will not be conducted if the respondent
demonstrates by clear and convincing
evidence that it would have taken the
same adverse action in the absence of
the complainant’s protected activity.
(5) If the respondent fails to make a
timely response or fails to satisfy the
burden set forth in paragraph (e)(4) of
this section, OSHA will proceed with
the investigation. The investigation will
proceed whenever it is necessary or
appropriate to confirm or verify the
information provided by the
respondent.
(f) Prior to the issuance of findings
and a preliminary order as provided for
in § 1987.105, if OSHA has reasonable
cause, on the basis of information
gathered under the procedures of this

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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, in accordance 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.

emcdonald on DSK67QTVN1PROD with RULES

§ 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

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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 (SSA) 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 § 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
§ 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

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8629

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 § 1987.105. The objections, request
for a hearing, and/or request for attorney
fees must be in writing and state
whether the objections are to the
findings, the preliminary order, and/or
whether there should be an award of
attorney fees. The date of the postmark,
facsimile transmittal, or electronic
communication transmittal is
considered the date of filing; if the
objection is filed in person, by hand
delivery or other means, the objection is
filed upon receipt. Objections must be
filed with the Chief Administrative Law
Judge, U.S. Department of Labor, and
copies of the objections must be mailed
at the same time to the other parties of
record, the OSHA official who issued
the findings and order, the Assistant
Secretary, and the Associate Solicitor,
Division of Fair Labor Standards, U.S.
Department of Labor.
(b) If a timely objection is filed, all
provisions of the preliminary order will
be stayed, except for the portion
requiring preliminary reinstatement,
which will not be automatically stayed.
The portion of the preliminary order
requiring reinstatement will be effective
immediately upon the respondent’s
receipt of the findings and preliminary
order, regardless of any objections to the
order. The respondent may file a motion
with the Office of Administrative Law
Judges for a stay of the Assistant
Secretary’s preliminary order of
reinstatement, which shall be granted
only based on exceptional
circumstances. If no timely objection is
filed with respect to either the findings
or the preliminary order, the findings
and/or the preliminary order will
become the final decision of the
Secretary, not subject to judicial review.
§ 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

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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.
§ 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) Copies of documents must be sent
to OSHA and to the Associate Solicitor,
Division of Fair Labor Standards, U.S.
Department of Labor, only upon request
of OSHA, or where the Assistant
Secretary is participating in the
proceeding, or where 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.

emcdonald on DSK67QTVN1PROD with RULES

§ 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

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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
§ 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 (SSA) 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

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final order of the Secretary unless a
petition for review is timely filed with
the ARB and the ARB accepts the
petition for review.
§ 1987.110 Decision and orders of the
Administrative Review Board.

(a) Any party desiring to seek review,
including judicial review, of a decision
of the ALJ, or a respondent alleging that
the complaint was frivolous or brought
in bad faith who seeks an award of
attorney fees, must file a written
petition for review with the ARB, which
has been delegated the authority to act
for the Secretary and issue final
decisions under this part. The parties
should identify in their petitions for
review the legal conclusions or orders to
which they object, or the objections may
be deemed waived. A petition must be
filed within 14 days of the date of the
decision of the ALJ. The date of the
postmark, facsimile transmittal, or
electronic communication transmittal
will be considered to be the date of
filing; if the petition is filed in person,
by hand delivery or other means, the
petition is considered filed upon
receipt. The petition must be served on
all parties and on the Chief
Administrative Law Judge at the time it
is filed with the ARB. Copies of the
petition for review must be served on
the Assistant Secretary and on the
Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of
Labor.
(b) If a timely petition for review is
filed pursuant to paragraph (a) of this
section, the decision of the ALJ will
become the final order of the Secretary
unless the ARB, within 30 days of the
filing of the petition, issues an order
notifying the parties that the case has
been accepted for review. If a case is
accepted for review, the decision of the
ALJ will be inoperative unless and until
the ARB issues an order adopting the
decision, except that any order of
reinstatement will be effective while
review is conducted by the ARB, unless
the ARB grants a motion by the
respondent to stay that order based on
exceptional circumstances. The ARB
will specify the terms under which any
briefs are to be filed. The ARB will
review the factual determinations of the
ALJ under the substantial evidence
standard. If no timely petition for
review is filed, or the ARB denies
review, the decision of the ALJ will
become the final order of the Secretary.
If no timely petition for review is filed,
the resulting final order is not subject to
judicial review.
(c) The final decision of the ARB will
be issued within 120 days of the
conclusion of the hearing, which will be

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Federal Register / Vol. 79, No. 30 / Thursday, February 13, 2014 / Rules and Regulations
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 (SSA) 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

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§ 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

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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 § 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 30day 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

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8631

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
§ 1987.113.
§ 1987.112

Judicial review.

(a) Within 60 days after the issuance
of a final order under §§ 1987.109 and
1987.110, any person adversely affected
or aggrieved by the order may file a
petition for review of the order in the
United States Court of Appeals for the
circuit in which the violation allegedly
occurred or the circuit in which the
complainant resided on the date of the
violation.
(b) A final order is not subject to
judicial review in any criminal or other
civil proceeding.
(c) If a timely petition for review is
filed, the record of a case, including the
record of proceedings before the ALJ,
will be transmitted by the ARB or the
ALJ, as the case may be, to the
appropriate court pursuant to the
Federal Rules of Appellate Procedure
and the local rules of such court.
§ 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 or a
person on whose behalf the order was
issued 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. The Secretary also may file a
civil action seeking enforcement of the
order in the United States district court
for the District of Columbia.
§ 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
§ 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.

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Federal Register / Vol. 79, No. 30 / Thursday, February 13, 2014 / Rules and Regulations

(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
§ 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. 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.
§ 1987.115
of rules.

Special circumstances; waiver

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. 2014–03164 Filed 2–12–14; 8:45 am]
BILLING CODE 4510–26–P

ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52

emcdonald on DSK67QTVN1PROD with RULES

[EPA–R08–OAR–2013–0552, FRL–9903–94Region 8]

Approval and Promulgation of Air
Quality Implementation Plans;
Colorado; Construction Permit
Program Fee Increases; Construction
Permit Regulation of PM2.5;
Regulation 3

Implementation Plan (SIP) revision
packages submitted by the State of
Colorado on June 18, 2009 and May 25,
2011. EPA approves the June 18, 2009
submittal revisions, which supersede
revisions submitted on June 11, 2008, to
Regulation 3, Part A, Section VI.D.1.,
regarding construction permit
processing fees. EPA approves
Colorado’s May 25, 2011 submittal,
which addresses regulation of fine
particulate matter (PM2.5) under
Colorado’s construction permit program.
EPA also approves minor editorial
changes to Regulation 3, Parts A, B, and
D in the May 25, 2011 submittal. This
action is being taken under section 110
of the Clean Air Act (CAA).
DATES: This rule is effective March 17,
2014.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R08–OAR–2013–0552. All
documents in the docket are listed on
the www.regulations.gov Web site.
Although listed in the index, some
information is not publicly available,
e.g., Confidential Business Information
(CBI) or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either electronically through
www.regulations.gov or in hard copy at
the Air Program, Environmental
Protection Agency (EPA), Region 8,
1595 Wynkoop Street, Denver, Colorado
80202–1129. EPA requests that if at all
possible, you contact the individual
listed in the FOR FURTHER INFORMATION
CONTACT section to view the hard copy
of the docket. You may view the hard
copy of the docket Monday through
Friday, 8:00 a.m. to 4:00 p.m., excluding
Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Mark Komp, Air Program, U.S.
Environmental Protection Agency
(EPA), Region 8, Mail Code 8P–AR,
1595 Wynkoop Street, Denver, Colorado
80202–1129, (303) 312–6022,
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents

AGENCY:

I. Background Information
II. Response to Comments
III. EPA’s Evaluation of Part D Revisions to
Regulation Number 3
IV. Final Action
V. Statutory and Executive Orders Review

The Environmental Protection
Agency (EPA) is approving two State

Definitions
For the purpose of this document, we
are giving meaning to certain words or
initials as follows:

Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY:

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(i) The words or initials Act or CAA
mean or refer to the Clean Air Act,
unless the context indicates otherwise.
(ii) The words or initials APEN mean
or refer to Air Pollution Emission
Notice.
(iii) The words EPA, we, us or our
mean or refer to the United States
Environmental Protection Agency.
(iv) The initials SIP mean or refer to
State Implementation Plan.
(v) The words State or Colorado mean
the State of Colorado, unless the context
indicates otherwise.
(vi) The initials NAAQS mean or refer
to national ambient air quality
standards.
(vii) The initials NSR mean or refer to
New Source Review.
(viii) The initials PM mean or refer to
particulate matter.
(ix) The initials PM2.5 mean or refer to
particulate matter with an aerodynamic
diameter of less than 2.5 micrometers
(fine particulate matter).
(x) The initials PSD mean or refer to
Prevention of Significant Deterioration.
(xi) The initials SIP mean or refer to
State Implementation Plan.
(xii) The initials tpy mean or refer to
tons per year.
I. Background Information
On September 6, 2013, 78 FR 76781,
EPA published a notice of proposed
rulemaking (NPR) for action on certain
SIP submittals by the State of Colorado.
The NPR proposed approval of revisions
to Regulation 3, Part A, Section VI.D.1.
to the extent the revisions reflect
changes to construction permit
processing fees as set forth in Colorado
Revised Statute Section 27–7–114.7.
In addition, the NPR proposed to
approve revisions to Parts A of
Regulation 3 to add PM2.5 to the
definitions of ‘‘air pollutant’’ and
‘‘criteria pollutant,’’ and to approve
revisions to Part B of Regulation 3 to
regulate PM2.5 in the State’s
construction permit program, including
PM2.5 thresholds. We also proposed to
approve Colorado’s reinstatement of
volatile organic compound (VOC)
sources to reasonably available control
technology (RACT) requirements in Part
B. Finally, minor editorial changes
made throughout Regulation 3, Parts A,
B, and D were proposed for approval.
The formal SIP revisions were
submitted by the State of Colorado on
June 11, 2008, June 18, 2009 and May
25, 2011. The State’s June 11, 2008 and
June 18, 2009 submittals contained
permitting fee increases in Part A,
Section VI.D.1. of Regulation 3. The
State increased its fees with the 2008
submittal to $17.97 per ton for regulated
pollutants and $119.96 per ton for

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