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the Administrator finds necessary for
safety in air commerce. This regulation
is within the scope of that authority
because it addresses an unsafe condition
that is likely to exist or develop on
products identified in this rulemaking
action.
Regulatory Findings
This AD will not have federalism
implications under Executive Order
13132. This AD will not have a
substantial direct effect on the States, on
the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government.
For the reasons discussed above, I
certify that this AD:
(1) Is not a ‘‘significant regulatory
action’’ under Executive Order 12866,
(2) Is not a ‘‘significant rule’’ under
DOT Regulatory Policies and Procedures
(44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation
in Alaska to the extent that it justifies
making a regulatory distinction, and
(4) Will not have a significant
economic impact, positive or negative,
on a substantial number of small entities
under the criteria of the Regulatory
Flexibility Act.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation
safety, Incorporation by reference,
Safety.
Adoption of the Amendment
Accordingly, under the authority
delegated to me by the Administrator,
the FAA amends part 39 of the Federal
Aviation Regulations (14 CFR part 39) as
follows:
PART 39—AIRWORTHINESS
DIRECTIVES
1. The authority citation for part 39
continues to read as follows:

■

Authority: 49 U.S.C. 106(g), 40113, 44701.
§ 39.13

[Amended]

2. The FAA amends § 39.13 by
removing airworthiness directive (AD)
2012–26–14, Amendment 39–17309 (78
FR 2195, January 10, 2013) and adding
the following new AD:

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■

2014–07–02 Rolls-Royce Deutschland Ltd &
Co KG (Type Certificate previously held
by Rolls-Royce Deutschland GmbH and
BMW Rolls-Royce Aero Engines):
Amendment 39–17816; Docket No.
FAA–2012–1202; Directorate Identifier
2012–NE–38–AD.
(a) Effective Date
This AD is effective May 8, 2014.

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(b) Affected ADs
This AD supersedes AD 2012–26–14,
Amendment 39–17309 (78 FR 2195, January
10, 2013).
(c) Applicability
This AD applies to all Rolls-Royce
Deutschland Ltd & Co KG (RRD) BR700–
715A1–30, BR700–715B1–30, and BR700–
715C1–30 turbofan engines with highpressure (HP) compressor stages 1 to 6 rotor
disc assemblies that were ever installed using
nuts, part number (P/N) AS44862 or P/N
AS64367.
(d) Unsafe Condition
This AD was prompted by a report of silver
chloride-induced stress corrosion cracking of
the HP compressor stages 1 to 6 rotor disc
assembly. We are issuing this AD to prevent
failure of the HP compressor stages 1 to 6
rotor disc assembly, which could lead to an
uncontained engine failure and damage to
the airplane.
(e) Compliance
Comply with this AD within the
compliance times specified, unless already
done.
(1) For BR700–715A1–30 turbofan engines
operated under the Hawaiian Flight Mission
only, remove the HP compressor stages 1 to
6 rotor disc assembly from service before
exceeding 16,000 flight cycles since new
(CSN) or before further flight after the
effective date of this AD, whichever occurs
later.
(2) For BR700–715A1–30, BR700–715B1–
30, and BR700–715C1–30 turbofan engines
(all flight missions except Hawaiian Flight
Mission), remove the HP compressor stages 1
to 6 rotor disc assembly from service before
exceeding 14,000 flight CSN or before further
flight after the effective date of this AD,
whichever occurs later.
(f) Prohibition Statement
After the effective date of this AD, do not
install an HP compressor stages 1 to 6 rotor
disk assembly into an engine, or an engine
with an HP compressor stage 1 to 6 rotor disk
assembly onto an aircraft, if the HP
compressor stages 1 to 6 rotor disk assembly
has ever been operated with nuts, P/N
AS44862 or P/N AS64367, and has more CSN
than specified in the applicable portion of
the compliance section of this AD.
(g) Definition
For the purpose of this AD, flight cycles are
defined as the total flight CSN on the HP
compressor stages 1 to 6 rotor disc assembly,
without any pro-rated calculations applied
for different flight missions.
(h) Alternative Methods of Compliance
(AMOCs)
The Manager, Engine Certification Office,
may approve AMOCs for this AD. Use the
procedures found in 14 CFR 39.19 to make
your request.
(i) Related Information
(1) For more information about this AD,
contact Robert Morlath, Aerospace Engineer,
Engine Certification Office, FAA, Engine &
Propeller Directorate, 12 New England

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Executive Park, Burlington, MA 01803;
phone: (781) 238–7154; fax: (781) 238–7199;
email: [email protected].
(2) Refer to MCAI European Aviation
Safety Agency AD 2012–0230, Initial Issue,
dated October 30, 2012, for more
information. You may examine the MCAI in
the AD docket on the Internet at http://
www.regulations.gov/
#!documentDetail;D=FAA-2012-1202-0005.
(j) Material Incorporated by Reference
None.
Issued in Burlington, Massachusetts, on
March 27, 2014.
Robert J. Ganley,
Acting Assistant Directorate Manager, Engine
& Propeller Directorate, Aircraft Certification
Service.
[FR Doc. 2014–07444 Filed 4–2–14; 8:45 am]
BILLING CODE 4910–13–P

DEPARTMENT OF LABOR
Occupational Safety and Health
Administration
29 CFR Part 1985
[Docket Number: OSHA–2011–0540]
RIN 1218–AC58

Procedures for Handling Retaliation
Complaints Under the Employee
Protection Provision of the Consumer
Financial Protection Act of 2010
Occupational Safety and Health
Administration, Labor.
ACTION: Interim Final Rule; request for
comments.
AGENCY:

This document provides the
interim final text of regulations
governing the employee protection (or
whistleblower) provisions of the
Consumer Financial Protection Act of
2010, Section 1057 of the Dodd-Frank
Wall Street Reform and Consumer
Protection Act of 2010 (CFPA). This rule
establishes procedures and time frames
for the handling of retaliation
complaints under CFPA, including
procedures and time frames for
employee complaints to the
Occupational Safety and Health
Administration (OSHA), investigations
by OSHA, appeals of OSHA
determinations to an administrative law
judge (ALJ) for a hearing de novo,
hearings by ALJs, review of ALJ
decisions by the Administrative Review
Board (ARB) (acting on behalf of the
Secretary of Labor) and judicial review
of the Secretary’s final decision.
DATES: This interim final rule is
effective on April 3, 2014. Comments
and additional materials must be
SUMMARY:

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Federal Register / Vol. 79, No. 64 / Thursday, April 3, 2014 / Rules and Regulations
submitted (post-marked, sent or
received) by June 2, 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–2011–0540, U.S. Department of
Labor, Room N–2625, 200 Constitution
Avenue NW., Washington, DC 20210.
Deliveries (hand, express mail,
messenger and courier service) are
accepted during the Department of
Labor’s and Docket Office’s normal
business hours, 8:15 a.m.–4:45 p.m.,
E.T.
Instructions: All submissions must
include the agency name and the OSHA
docket number for this rulemaking
(Docket No. OSHA–2011–0540).
Submissions, including any personal
information you provide, are placed in
the public docket without change and
may be made available online at
http://www.regulations.gov. Therefore,
OSHA cautions you about submitting
personal information such as social
security numbers and birth dates.
Docket: To read or download
submissions or other material in the
docket, go to http://www.regulations.gov
or the OSHA Docket Office at the
address above. All documents in the
docket are listed in the http://
www.regulations.gov index, however,
some information (e.g., copyrighted
material) is not publicly available to
read or download through the Web site.
All submissions, including copyrighted
material, are available for inspection
and copying at the OSHA Docket Office.
FOR FURTHER INFORMATION CONTACT:
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
formats available are: Large print,
electronic file on computer disk (Word

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Perfect, ASCII, Mates with Duxbury
Braille System) and audiotape.
SUPPLEMENTARY INFORMATION:
I. Background
The Consumer Financial Protection
Act of 2010 (CFPA or the Act), was
enacted as Title X of the Dodd-Frank
Wall Street Reform and Consumer
Protection Act of 2010 (Dodd-Frank
Act), Public Law 111–203, 124 Stat.
1376, on July 21, 2010. The Act
established the Bureau of Consumer
Financial Protection (Bureau) as an
independent bureau within the Federal
Reserve System and gave the Bureau the
power to regulate the offering and
provision of consumer financial
products or services under more than a
dozen Federal consumer financial laws.
The laws subject to the Bureau’s
jurisdiction include, among others,
CFPA, the Consumer Leasing Act of
1976 (15 U.S.C. 1667 et seq.), the Equal
Credit Opportunity Act (15 U.S.C. 1691
et seq.), the Fair Credit Billing Act (15
U.S.C. 1666 et seq.), the Fair Debt
Collection Practices Act (15 U.S.C. 1692
et seq.), the Home Mortgage Disclosure
Act of 1975 (12 U.S.C. 2801 et seq.), the
Real Estate Settlement Procedures Act of
1974 (12 U.S.C. 2601 et seq.), and the
Truth in Lending Act (15 U.S.C. 1601 et
seq.). The regulations to be enforced by
the Bureau include certain regulations
issued by seven ‘‘transferor agencies,’’
including the Board of Governors of the
Federal Reserve System, the Federal
Deposit Insurance Corporation, the
Federal Trade Commission, the National
Credit Union Administration, the Office
of the Comptroller of the Currency, the
Office of Thrift Supervision, and the
Department of Housing and Urban
Development. The Bureau also has
concurrent authority to enforce the
Telemarketing Sales Rule issued by the
Federal Trade Commission. The Bureau
published an initial list of such rules
and regulations. See 76 FR 43569–71
(July 21, 2011). It has also revised and
republished many of these regulations,
and announced its intention to continue
doing so. See, e.g., Streamlining
Inherited Regulations, 76 FR 75825
(Dec. 5, 2011); Final Rule, Disclosure
and Delivery Requirements for Copies of
Appraisals and Other Written
Valuations Under the Equal Credit
Opportunity Act (Regulation B), 78 FR
7216, 7218–7219 (Jan. 31, 2013) (noting
Bureau’s issuance of five new
regulations governing the mortgage
industry).
The Bureau also has authority to issue
and enforce new rules, orders, standards
and prohibitions which will apply to
banks and other covered persons who

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provide consumer financial products
and services as defined in the CFPA, in
addition to the existing Federal
consumer financial protection laws and
regulations listed above. These include,
but are not limited to, providers of the
following consumer financial products
or services: (1) Residential mortgage
loan origination, brokerage, and
servicing, modification and foreclosure
relief services; (2) private education
loans; (3) payday loans; (4) consumer
debt collection; (5) consumer credit
reporting; (6) finance companies,
consumer lending, and loan servicing
and brokerage; (7) money transmitting
and check cashing services; (8) prepaid
card services; (9) debt relief services,
and (10) any service provider or affiliate
which is related to such an entity.
More information about the Bureau,
its jurisdiction, and the laws and
regulations it enforces is available at its
Web site, http://
www.consumerfinance.gov/the-bureau.
Section 1057 of the Dodd-Frank Act,
codified at 12 U.S.C. 5567 and referred
to throughout these interim final rules
as CFPA, provides protection to covered
employees, and authorized
representatives of such employees,
against retaliation because they
provided information to their employer,
to the Bureau, or to any other Federal,
State, or local government authority or
law enforcement agency relating to any
violation of (or any act or omission that
the employee reasonably believes to be
a violation of) any provision of the Act
or any other provision of law that is
subject to the jurisdiction of the Bureau,
or any rule, order, standard, or
prohibition prescribed by the Bureau;
testified or will testify in any
proceeding resulting from the
administration or enforcement of any
provision of the Act or any other
provision of law that is subject to the
jurisdiction of the Bureau, or any rule,
order, standard, or prohibition
prescribed by the Bureau; filed,
instituted, or caused to be filed or
instituted any proceeding under any
Federal consumer financial law; or
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 law, rule, order,
standard, or prohibition, subject to the
jurisdiction of, or enforceable by, the
Bureau.
These interim final rules establish
procedures for the handling of
whistleblower complaints under CFPA.
II. Summary of Statutory Procedures
CFPA’s whistleblower provisions
include procedures that allow a covered

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employee to file a complaint with the
Secretary of Labor (Secretary) within
180 days of the alleged retaliation. Upon
receipt of the complaint, the Secretary
must provide written notice to the
person or persons named in the
complaint alleged to have violated the
Act (respondent) of the filing of the
complaint, the allegations contained in
the complaint, the substance of the
evidence supporting the complaint, and
the rights afforded the respondent
throughout the investigation. The
Secretary must then, within 60 days of
receipt of the complaint, afford the
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
1985.104 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
receipt of the Secretary’s notification in
which to file objections to the findings
and/or preliminary order and request a
hearing before an administrative law
judge (ALJ). The filing of objections
under CFPA will stay any remedy in the

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preliminary order except for
preliminary reinstatement. If a hearing
before an ALJ is not requested within 30
days, the preliminary order becomes
final and is not subject to judicial
review.
If a hearing is held, CFPA 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 occurred
or the circuit where the complainant
resided on the date of the violation.
CFPA 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
the date of receipt of a written
determination. The provision provides
that the court will have jurisdiction over
the action without regard to the amount
in controversy and that the case will be
tried before a jury at the request of
either party.
Finally, CFPA provides that except in
very limited circumstances, and
notwithstanding any other provision of
law, the rights and remedies provided
for in the CFPA whistleblower provision
may not be waived by any agreement,
policy, form, or condition of
employment, including by any
predispute arbitration agreement, and
no predispute arbitration agreement
shall be valid or enforceable to the
extent that it requires arbitration of a
dispute arising under CFPA’s
whistleblower provision.

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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 CFPA.
Responsibility for receiving and
investigating complaints under CFPA
has been delegated to the Assistant
Secretary for Occupational Safety and
Health (Assistant Secretary) by
Secretary’s Order 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, 77 FR 69378 (Nov. 16, 2012).
Subpart A—Complaints, Investigations,
Findings and Preliminary Orders
Section 1985.100 Purpose and Scope
This section describes the purpose of
the regulations implementing CFPA and
provides an overview of the procedures
covered by these regulations.
Section 1985.101 Definitions
This section includes the general
definitions from Section 1002 of the
Dodd-Frank Act, 12 U.S.C. 5481, which
are applicable to CFPA’s whistleblower
provisions. The Act defines the term
‘‘affiliate’’ as ‘‘any person that controls,
is controlled by, or is under common
control with another person.’’ 12 U.S.C.
5481(1). It defines the term ‘‘consumer’’
as ‘‘an individual or an agent, trustee, or
representative acting on behalf of an
individual.’’ 12 U.S.C. 5481(4).
The Act defines a ‘‘consumer
financial product or service’’ to include
a wide variety of financial products or
services offered or provided for use by
consumers primarily for personal,
family, or household purposes. See 12
U.S.C. 5481(5), (15). Included within the
definition of consumer financial
product or services are residential
mortgage origination, lending, brokerage
and servicing, and related products and
services such as mortgage loan
modification and foreclosure relief;
private student loans; payday loans; and
certain other financial services such as
consumer debt collection, consumer
credit reporting, credit cards and related
activities, money transmitting, check
cashing and related activities, prepaid
cards, and debt relief services. See, e.g.,
Notice and Request for Comment,
Defining Larger Participants in Certain
Consumer Financial Products and
Services Markets, 76 FR 38059–62 (June
29, 2011) (Bureau request for comment

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on exercise of jurisdiction over
consumer debt collection, consumer
credit reporting, consumer credit and
related activities, money transmitting,
check cashing and related activities,
prepaid cards, and debt relief services).
More information about the Bureau is
available at its Web site, http://
www.consumerfinance.gov/the-bureau.
The Act defines ‘‘covered person’’ as
‘‘any person that engages in offering or
providing a consumer financial product
or service’’ and ‘‘any affiliate of [such]
a person . . . if [the] affiliate acts as a
service provider to such person.’’ 12
U.S.C. 5481(6). It defines the term
‘‘person’’ as ‘‘an individual, partnership,
company, corporation, association
(incorporated or unincorporated), trust,
estate, cooperative organization, or other
entity.’’ 12 U.S.C. 5481(19). The law
defines ‘‘service provider’’ as ‘‘any
person that provides a material service
to a covered person in connection with
the offering or provision by such
covered person of a consumer financial
product or service, including a person
that—(i) participates in designing,
operating, or maintaining the consumer
financial product or service; or (ii)
processes transactions relating to the
consumer financial product or service
. . . .’’ 12 U.S.C. 5481(26)(A). The term
‘‘service provider’’ does not include a
person who solely offers or provides
general business support services or
advertising services. 12 U.S.C.
5481(26)(B). Anyone who is a ‘‘service
provider’’ is also ‘‘deemed to be a
covered person to the extent that such
person engages in the offering or
provision of its own consumer financial
product or service.’’ 12 U.S.C.
5481(26)(C).
CFPA defines ‘‘covered employee’’ as
‘‘any individual performing tasks
related to the offering or provision of a
consumer financial product or service.’’
12 U.S.C. 5567(b). Consistent with the
other whistleblower protection
provisions administered by OSHA,
OSHA interprets the term ‘‘covered
employee’’ to also include individuals
presently or formerly working for,
individuals applying to work for, and
individuals whose employment could
be affected by a covered person or
service provider where such individual
was performing tasks related to the
offering or provision of a consumer
financial product or service at the time
that the individual engaged in protected
activity under CFPA. See, e.g., 29 CFR
1979.101; 29 CFR 1980.101(g); 29 CFR
1981.101; 29 CFR 1982.101(d); 29 CFR
1983.101(h). OSHA believes this
interpretation of the term ‘‘covered
employee’’ best implements the broad
statutory protections of CFPA, which

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aim to protect individuals who perform
tasks related to the offering or provision
of a consumer financial product or
service from termination or any other
form of retaliation resulting from their
protected activity under CFPA.
Section 1985.102 Obligations and
Prohibited Acts
This section describes the activities
that are protected under CFPA and the
conduct that is prohibited in response to
any protected activities. As described
above, CFPA protects individuals who
provide information to their employer,
to the Bureau, or to any other Federal,
State, or local government authority or
law enforcement agency relating to any
violation of (or any act or omission that
the employee reasonably believes to be
a violation of) any provision of the Act
or any other provision of law that is
subject to the jurisdiction of the Bureau,
or any rule, order, standard, or
prohibition prescribed by the Bureau.
CFPA also protects individuals who
object to, or refuse to participate in, any
activity, policy, practice, or assigned
task that the employee (or other such
person) reasonably believes to be in
violation of any law, rule, order,
standard, or prohibition, subject to the
jurisdiction of, or enforceable by, the
Bureau. More information about the
Bureau is available at its Web site,
http://www.consumerfinance.gov/thebureau.
In order to have a ‘‘reasonable belief’’
under CFPA, a complainant must have
both a subjective, good faith belief and
an objectively reasonable belief that the
complained-of conduct violates one of
the listed categories of law. 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, rule, order, standard, or
prohibition. 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

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where it is based on a reasonable, but
mistaken, belief that a violation of the
relevant law has occurred. Id. at *13.
Section 1985.103 Filing of Retaliation
Complaint
This section explains the
requirements for filing a retaliation
complaint under CFPA. To be timely, a
complaint must be filed within 180 days
of when the alleged violation occurs.
Under Delaware State College v. Ricks,
449 U.S. 250, 258 (1980), 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. Equal Emp’t Opportunity
Comm’n v. United Parcel Serv., Inc., 249
F.3d 557, 561–62 (6th Cir. 2001). The
time for filing a complaint under CFPA
may be tolled for reasons warranted by
applicable case law. For example,
OSHA may consider the time for filing
a complaint equitably tolled if a
complainant mistakenly files a
complaint with an agency other than
OSHA within 180 days after an alleged
adverse action.
Complaints filed under CFPA 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 CFPA
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 v. Parexel Int’l, Inc., ARB
No. 07–123, 2011 WL 2165854, at *9–
10 (ARB May 25, 2011) (holding that
whistleblower complaints filed with
OSHA under analogous provisions in
the Sarbanes-Oxley Act need not
conform to federal court pleading
standards). Rather, the complaint filed
with OSHA under this section simply
alerts OSHA to the existence of the
alleged retaliation and the
complainant’s desire that OSHA
investigate the complaint. 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 1985.104(e). As
explained in section 1985.104(e), if the

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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 12 U.S.C.
5567(c)(2)(B), 29 CFR 1985.104(e).
Section 1985.104 Investigation
This section describes the procedures
that apply to the investigation of CFPA
complaints. Paragraph (a) of this section
outlines the procedures for notifying the
parties and the Bureau 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 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 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. CFPA
requires that a complainant make an
initial prima facie showing that a
protected activity was ‘‘a contributing
factor’’ in the adverse action alleged in
the complaint, i.e., that the protected
activity, alone or in combination with
other factors, affected in some way the
outcome of the employer’s decision. The
complainant will be considered to have
met the required burden if the
complaint on its face, supplemented as
appropriate through interviews of the
complainant, alleges the existence of
facts and either direct or circumstantial
evidence to meet the required showing.
The complainant’s burden may be
satisfied, for example, if he or she shows
that the adverse action took place
within a temporal proximity of the
protected activity, or at the first
opportunity available to the respondent,
giving rise to the inference that it was
a contributing factor in the adverse
action. See, e.g. Porter v. Cal. Dep’t of
Corr, 419 F.3d 885, 895 (9th Cir. 2005)
(years between the protected activity
and the retaliatory actions did not defeat

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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
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 as that under
CFPA, 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 CFPA
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

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conduct,’ ’’ and that another reason was
the complainant’s protected activity.
See Klopfenstein v. PCC Flow Techs.
Holdings, Inc., ARB No. 04–149, 2006
WL 3246904, at *13 (ARB May 31, 2006)
(quoting Rachid v. Jack in the Box, Inc.,
376 F.3d 305, 312 (5th Cir. 2004))
(discussing contributing factor test
under the Sarbanes-Oxley Act of 2002
whistleblower provision), aff’d sub
nom. Klopfenstein v. Admin. Review
Bd., U.S. Dep’t of Labor, 402 F. App’x
936, 2010 WL 4746668 (5th Cir. 2010).
If OSHA finds reasonable cause to
believe that the alleged protected
activity was a contributing factor in the
adverse action, OSHA may not order
relief if the employer demonstrates by
‘‘clear and convincing evidence’’ that it
would have taken the same action in the
absence of the protected activity. See 12
U.S.C. 5567(c)(3)(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. Its
purpose is to ensure compliance with
the Due Process Clause of the Fifth
Amendment, as interpreted by the
Supreme Court in Brock v. Roadway
Express, Inc., 481 U.S. 252 (1987)
(requiring OSHA to give a STAA
respondent the opportunity to review
the substance of the evidence and
respond, prior to ordering preliminary
reinstatement).
Section 1985.105 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

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appropriate, the preliminary order, also
advise the respondent of the right to
request an award of attorney fees not
exceeding $1,000 from the ALJ,
regardless of whether the respondent
has filed objections, if the respondent
alleges that the complaint was frivolous
or brought in bad faith. If no objections
are filed within 30 days of receipt of the
findings, the findings and any
preliminary order of the Assistant
Secretary become the final decision and
order of the Secretary. If objections are
timely filed, any order of preliminary
reinstatement will take effect, but the
remaining provisions of the order will
not take effect until administrative
proceedings are completed.
In ordering interest on back pay under
CFPA, the Secretary has determined that
interest due will be computed by
compounding daily the Internal
Revenue Service interest rate for the
underpayment of taxes, which under 26
U.S.C. 6621 is generally the Federal
short-term rate plus three percentage
points. 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 recently was found to be the most
appropriate method of calculating
interest on back pay by the National
Labor Relations Board (NLRB). See
Jackson Hosp. Corp. v. United Steel,
Paper & Forestry, Rubber, Mfg., Energy,
Allied Indus. & Serv. Workers Int’l
Union, 356 NLRB No. 8, 2010 WL
4318371, at *3–4 (NLRB Oct. 22, 2010).
Additionally, interest on tax
underpayments under the Internal
Revenue Code, 26 U.S.C. 6621, is
compounded daily pursuant to 26
U.S.C. 6622(a).
In ordering back pay, OSHA will
require the respondent to submit the
appropriate documentation to the Social
Security Administration (SSA)
allocating the back pay to the
appropriate calendar quarters. Requiring
the reporting of back pay allocation to
the SSA better serves the remedial
purposes of CFPA 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

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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
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 be 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 of front pay and frequently is
employed in cases arising under Section
105(c) of the Federal Mine Safety and
Health Act of 1977, which protects
miners from retaliation. 30 U.S.C.
815(c); see, e.g., Sec’y of Labor ex rel.
York v. BR&D Enters., Inc., 23 FMSHRC
697, 2001 WL 1806020, at *1 (ALJ June
26, 2001). Front pay has been
recognized as a possible remedy in cases
under the whistleblower statutes
enforced by OSHA in circumstances
where reinstatement would not be
appropriate. See, e.g., Moder v. Vill. of
Jackson, ARB Nos. 01–095, 02–039,
2003 WL 21499864, at *10 (ARB June

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18635

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); Michaud v. BSP
Transport, Inc., ARB Nos. 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); 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
appropriate where employer had
eliminated the employee’s position);
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 SarbanesOxley, 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 CFPA. 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

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Section 1985.106 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
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 CFPA 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 1985.107 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

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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 1985.108 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
CFPA. For example, the Assistant
Secretary may exercise his or her
discretion to prosecute the case in the
administrative proceeding before an
ALJ; petition for review of a decision of
an ALJ, including a decision based on
a settlement agreement between the
complainant and the respondent,
regardless of whether the Assistant
Secretary participated before the ALJ; or
participate as amicus curiae before the
ALJ or in the ARB proceeding. Although
OSHA anticipates that ordinarily the
Assistant Secretary will not participate,
the Assistant Secretary may choose to
do so in appropriate cases, such as cases
involving important or novel legal
issues, multiple employees, alleged
violations that appear egregious, or
where the interests of justice might
require participation by the Assistant
Secretary. The Bureau, if interested in a
proceeding, also may participate as
amicus curiae at any time in the
proceedings.
Section 1985.109 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 CFPA. 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 12 U.S.C.
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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 1985.104 is
not subject to review. Thus, section
1985.109(c) clarifies that OSHA’s
determinations on whether to proceed
with an investigation under CFPA 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 CFPA and, as discussed
under section 1985.105 above, provides
that interest on back pay will be
calculated using the interest rate
applicable to underpayment of taxes
under 26 U.S.C. 6621 and will be
compounded daily, and that the
respondent will be required to submit
appropriate documentation to the 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 1985.110 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

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which they object, or the objections may
be deemed waived. The ARB has 30
days to decide whether to grant the
petition for review. If the ARB does not
grant the petition, the decision of the
ALJ becomes the final decision of the
Secretary. If a timely petition for review
is filed with the ARB, any relief ordered
by the ALJ, except for that portion
ordering reinstatement, is inoperative
while the matter is pending before the
ARB. When the ARB accepts a petition
for review, the ALJ’s factual
determinations will be reviewed under
the substantial evidence standard.
This section also provides that, based
on exceptional circumstances, the ARB
may grant a motion to stay an ALJ’s
preliminary order of reinstatement
under CFPA, which otherwise would be
effective, while review is conducted by
the ARB. The Secretary believes that a
stay of an ALJ’s preliminary order of
reinstatement under CFPA would be
appropriate only where the respondent
can establish the necessary criteria for
equitable injunctive relief, i.e.,
irreparable injury, likelihood of success
on the merits, a balancing of possible
harms to the parties, and the public
interest favors a stay.
If the ARB concludes that the
respondent has violated the law, it will
issue a final order providing relief to the
complainant. The final order will
require, where appropriate: Affirmative
action to abate the violation;
reinstatement of the complainant to his
or her former position, together with the
compensation (including back pay and
interest), terms, conditions, and
privileges of employment; and payment
of compensatory damages, including, at
the request of the complainant, the
aggregate amount of all costs and
expenses (including attorney and expert
witness fees) reasonably incurred.
Interest on back pay will be calculated
using the interest rate applicable to
underpayment of taxes 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
reasonable attorney fees, not exceeding
$1,000.

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Subpart C—Miscellaneous Provisions
Section 1985.111 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 1985.112 Judicial Review
This section describes the statutory
provisions for judicial review of
decisions of the Secretary and requires,
in cases where judicial review is sought,
the ARB or the ALJ to submit the record
of proceedings to the appropriate court
pursuant to the rules of such court.
Section 1985.113 Judicial Enforcement
This section describes the Secretary’s
authority under CFPA to obtain judicial
enforcement of orders and terms of
settlement agreements. CFPA expressly
authorizes district courts to enforce
orders issued by the Secretary under 12
U.S.C. 5567. Specifically, the statute
provides that ‘‘[i]f any person has failed
to comply with a final order issued
under paragraph (4), the Secretary of
Labor may file a civil action in the
United States district court for the
district in which the violation was
found to have occurred, or in the United
States district court for the District of
Columbia, to enforce such order. In
actions brought under this paragraph,
the district courts shall have jurisdiction
to grant all appropriate relief including
injunctive relief and compensatory
damages.’’ 12 U.S.C. 5567(c)(5)(A).
All orders issued by the Secretary
under 12 U.S.C. 5567 may also be
enforced by any person on whose behalf
an order was issued in district court,
under 12 U.S.C. 5567(c)(5)(B). The
Secretary interprets these provisions to
grant the district court authority to
enforce preliminary orders of
reinstatement. Subsection (c)(2)(B)
provides that the Secretary shall order
the person who has committed a
violation to reinstate the complainant to
his or her former position (12 U.S.C.
5567(c)(2)(B)). Subsection (c)(2)(B) also
instructs the Secretary to accompany
any reasonable cause finding that a
violation has occurred with a
preliminary order containing the relief

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prescribed by paragraph (4)(B), which
includes reinstatement, (see 12 U.S.C.
5567(c)(2)(B)). Subsection (c)(2)(C)
declares that any reinstatement remedy
contained in a preliminary order is not
stayed upon the filing of objections. 12
U.S.C. 5567(c)(2)(C) (‘‘The filing of such
objections shall not operate to stay any
reinstatement remedy contained in the
preliminary order.’’). Thus, under the
statute, enforceable orders under
paragraph (c)(5) include both
preliminary orders issued under
subsection (c)(2)(B), and final orders
issued under subsection (c)(4)(A), both
of which may contain the relief of
reinstatement as prescribed by
subsection (c)(4)(B).
This statutory interpretation is
consistent with the Secretary’s
interpretation of similar language in the
Wendell H. Ford Aviation Investment
and Reform Act for the 21st Century, 49
U.S.C. 42121, and Section 806 of the
Corporate and Criminal Fraud
Accountability Act of 2002, Title VIII of
the Sarbanes-Oxley Act of 2002, 18
U.S.C. 1514A. See Brief for the
Intervenor/Plaintiff-Appellee Secretary
of Labor, Solis v. Tenn. Commerce
Bancorp, Inc., No. 10–5602 (6th Cir.
2010); Solis v. Tenn. Commerce
Bancorp, Inc., 713 F. Supp. 2d 701
(M.D. Tenn. 2010); but see Bechtel v.
Competitive Techs., Inc., 448 F.3d 469
(2d Cir. 2006); Welch v. Cardinal
Bankshares Corp., 454 F. Supp. 2d 552
(W.D. Va. 2006), (decision vacated,
appeal dismissed, No. 06–2295 (4th Cir.
Feb. 20, 2008)).
Section 1985.114 District Court
Jurisdiction of Retaliation Complaints
This section sets forth CFPA’s
provisions allowing a complainant to
bring an original de novo action in
district court, alleging the same
allegations contained in the complaint
filed with OSHA, under certain
circumstances. CFPA 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 after
the date of the filing of the complaint,
or within 90 days after the date of
receipt of a written determination. 12
U.S.C. 5567(c)(4)(D)(i). ‘‘Written
determination’’ refers to the Assistant
Secretary’s written findings issued at
the close of OSHA’s investigation under
section 1985.105(a). See 12 U.S.C.
5567(c)(2)(A)(ii). The Secretary’s final
decision is generally the decision of the
ARB issued under section 1985.110. 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

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complainant may file a de novo action
in district court within 90 days of
receiving the Assistant Secretary’s
written findings issued under section
1985.105(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 12
U.S.C. 5567(c)(4)(D)(i), 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. Thus, for
example, after the ARB has issued a
final decision denying a whistleblower
complaint, the complainant no longer
may file an action for de novo review in
federal district court. The purpose of the
‘‘kick-out’’ provision is to aid the
complainant in receiving a prompt
decision. That goal is not implicated in
a situation where the complainant
already has received a final decision
from the Secretary. In addition,
permitting the complainant to file a new
case in district court in such
circumstances could conflict with the
parties’ rights to seek judicial review of
the Secretary’s final decision in the
court of appeals. See 12 U.S.C.
5567(c)(4)(E) (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 CFPA, 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 12 U.S.C. 5567(c)(2)(C). Thus,
a complainant may need to file timely
objections to the Assistant Secretary’s
findings 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
District Court complaint also must be

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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 OSHA
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. The
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 1985.115 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 CFPA
requires.
IV. Paperwork Reduction Act
This rule contains a reporting
provision (filing a retaliation complaint,
section 1985.103) which was previously
reviewed as a statutory requirement of
CFPA 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,
Public Law 104–13, 109 Stat. 163
(1995). A non-material change has been
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. Therefore, publication in
the Federal Register of a notice of
proposed rulemaking and request for
comments are not required for these
regulations, which provide the
procedures for the handling of
retaliation complaints. 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

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will be published after OSHA receives
and reviews the public’s comments.
Furthermore, because this rule is
procedural and interpretative rather
than substantive, the normal
requirement of 5 U.S.C. 553(d) that a
rule be effective 30 days after
publication in the Federal Register is
inapplicable. OSHA also finds good
cause to provide an immediate effective
date for this interim final rule. It is in
the public interest that the rule be
effective immediately so that parties
may know what procedures are
applicable to pending cases.
VI. Executive Orders 12866 and 13563;
Unfunded Mandates Reform Act of
1995; Executive Order 13132
The Office of Management and Budget
has concluded that this rule is a
‘‘significant regulatory action’’ within
the meaning of Section 3(f)(4) of
Executive Order 12866. Executive Order
12866, reaffirmed by Executive Order
13563, requires a full economic impact
analysis only for ‘‘economically
significant’’ rules, which are defined in
Section 3(f)(1) of Executive Order 12866
as rules that may ‘‘[h]ave 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.’’ The rule
is procedural and interpretative in
nature. Because it simply implements
procedures necessitated by enactment of
CFPA, the rule is expected to have a
negligible economic impact. Therefore,
no economic impact analysis under
Section 6(a)(3)(C) of Executive Order
12866 has been prepared. For the same
reason, and the fact that no notice of
proposed rulemaking has been
published, the rule does not require a
Section 202 statement under the
Unfunded Mandates Reform Act of
1995. 2 U.S.C. 1531 et seq. Finally, this
rule does not have ‘‘federalism
implications,’’ in that it does not have
‘‘substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government’’ and therefore is
not subject to Executive Order 13132
(Federalism).
VII. Regulatory Flexibility Analysis
The notice and comment rulemaking
procedures of Section 553 of the
Administrative Procedure Act (APA) do
not apply ‘‘to interpretative rules,
general statements of policy, or rules of
agency organization, procedure, or

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practice.’’ 5 U.S.C. 553(b)(A). Rules that
are exempt from APA notice and
comment requirements are also exempt
from the Regulatory Flexibility Act
(RFA). See SBA Office of Advocacy, A
Guide for Government Agencies: How to
Comply with the Regulatory Flexibility
Act 9 (May 2012); also found at:
http://www.sba.gov/sites/default/files/
rfaguide_0512_0.pdf. This is a rule of
agency procedure, practice, and
interpretation within the meaning of
that section; and therefore the rule is
exempt from both the notice and
comment rulemaking procedures of the
APA and the requirements under the
RFA.
List of Subjects in 29 CFR Part 1985

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 March 21,
2014.
David Michaels,
Assistant Secretary of Labor for Occupational
Safety and Health.

Accordingly, for the reasons set out in
the preamble, 29 CFR part 1985 is added
to read as follows:

■

PART 1985—PROCEDURES FOR
HANDLING RETALIATION
COMPLAINTS UNDER THE EMPLOYEE
PROTECTION PROVISION OF THE
CONSUMER FINANCIAL PROTECTION
ACT OF 2010
Subpart A—Complaints, Investigations,
Findings, and Preliminary Orders

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Subpart B—Litigation
1985.106 Objections to the findings and the
preliminary order and requests for a
hearing.
1985.107 Hearings.
1985.108 Role of Federal agencies.
1985.109 Decision and orders of the
administrative law judge.
1985.110 Decision and orders of the
Administrative Review Board.

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Subpart A—Complaints,
Investigations, Findings, and
Preliminary Orders
Purpose and scope.

(a) This part implements procedures
of the employee protection provision of
the Consumer Financial Protection Act
of 2010, Section 1057 of the Dodd-Frank
Wall Street Reform and Consumer
Protection Act of 2010 (CFPA or the
Act), Public Law 111–203, 124 Stat.
1376, 1955 (July 21, 2010) (codified at
12 U.S.C. 5567). CFPA provides for
employee protection from retaliation
because the employee has engaged in
protected activity pertaining to the
offering or provision of consumer
financial products or services.
(b) This part establishes procedures
under CFPA for the expeditious
handling of retaliation complaints filed
by employees, or by persons acting on
their behalf, and sets forth OSHA’s
interpretations of CFPA. These rules,
together with those codified at 29 CFR
part 18, set forth the procedures under
CFPA for submission of complaints,
investigations, issuance of findings and
preliminary orders, objections to
findings and orders, litigation before
administrative law judges (ALJs), posthearing administrative review, and
withdrawals and settlements.
§ 1985.101

Sec.
1985.100 Purpose and scope.
1985.101 Definitions.
1985.102 Obligations and prohibited acts.
1985.103 Filing of retaliation complaint.
1985.104 Investigation.
1985.105 Issuance of findings and
preliminary orders.

13:29 Apr 02, 2014

Authority: 12 U.S.C. 5567; 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, 77 Fed. Reg. 69378 (Nov.
16, 2012).

§ 1985.100

Administrative practice and
procedure, Employment, Consumer
financial protection, Investigations,
Reporting and recordkeeping
requirements, Whistleblower.

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Subpart C—Miscellaneous Provisions
1985.111 Withdrawal of complaints,
findings, objections, and petitions for
review; settlement.
1985.112 Judicial review.
1985.113 Judicial enforcement.
1985.114 District court jurisdiction of
retaliation complaints.
1985.115 Special circumstances; waiver of
rules.

Definitions.

As used in this part:
(a) Affiliate means any person that
controls, is controlled by, or is under
common control with another person.
(b) 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 CFPA.
(c) Bureau means the Bureau of
Consumer Financial Protection.
(d) Business days means days other
than Saturdays, Sundays, and Federal
holidays.
(e) CFPA means Section 1057 of the
Dodd-Frank Wall Street Reform and
Consumer Protection Act of 2010,
Public Law 111–203, 124 Stat. 1376,

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1955 (July 21, 2010) (codified at 12
U.S.C. 5567).
(f) Complainant means the person
who filed a CFPA complaint or on
whose behalf a complaint was filed.
(g) Consumer means an individual or
an agent, trustee, or representative
acting on behalf of an individual.
(h) Consumer financial product or
service means any financial product or
service that is:
(1) Described in one or more
categories in 12 U.S.C. 5481(15) and is
offered or provided for use by
consumers primarily for personal,
family, or household purposes; or
(2) Described in clause (i), (iii), (ix), or
(x) of 12 U.S.C. 5481(15)(A), and is
delivered, offered, or provided in
connection with a consumer financial
product or service referred to in
paragraph (h)(1) of this section.
(i) Covered employee means any
individual performing tasks related to
the offering or provision of a consumer
financial product or service. The term
‘‘covered employee’’ includes an
individual presently or formerly
working for, an individual applying to
work for, or an individual whose
employment could be affected by a
covered person or service provider
where such individual was performing
tasks related to the offering or provision
of a consumer financial product or
service at the time that the individual
engaged in protected activity under
CFPA.
(j) Covered person means—
(1) Any person that engages in
offering or providing a consumer
financial product or service, or
(2) Any affiliate of such a person if
such affiliate acts as a service provider
to such person, or
(3) Any service provider to the extent
that such person engages in the offering
or provision of its own consumer
financial product or service.
(k) Federal consumer financial law
means any law described in 12 U.S.C.
5481(14).
(l) OSHA means the Occupational
Safety and Health Administration of the
United States Department of Labor.
(m) Person means an individual,
partnership, company, corporation,
association (incorporated or
unincorporated), trust, estate,
cooperative organization, or other
entity.
(n) Respondent means the person
named in the complaint who is alleged
to have violated the Act.
(o) Secretary means the Secretary of
Labor or person to whom authority
under CFPA has been delegated.
(p) Service provider means any person
that provides a material service to a

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covered person in connection with the
offering or provision by such covered
person of a consumer financial product
or service, including a person that—
(1) Participates in designing,
operating, or maintaining the consumer
financial product or service; or
(2) Processes transactions relating to
the consumer financial product or
service (other than unknowingly or
incidentally transmitting or processing
financial data in a manner that such
data is undifferentiated from other types
of data of the same form as the person
transmits or processes);
(3) The term ‘‘service provider’’ does
not include a person solely by virtue of
such person offering or providing to a
covered person:
(i) A support service of a type
provided to businesses generally or a
similar ministerial service; or
(ii) Time or space for an
advertisement for a consumer financial
product or service through print,
newspaper, or electronic media.
(q) 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.

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§ 1985.102
acts.

Obligations and prohibited

(a) No covered person or service
provider may terminate or in any other
way retaliate against, or cause to be
terminated or retaliated against,
including, but not limited to,
intimidating, threatening, restraining,
coercing, blacklisting or disciplining,
any covered employee or any authorized
representative of covered employees
because such employee or
representative, whether at the
employee’s initiative or in the ordinary
course of the employee’s duties (or any
person acting pursuant to a request of
the employee), engaged in any of the
activities specified in paragraphs (b)(1)
through (4) of this section.
(b) A covered employee or authorized
representative is protected against
retaliation (as described in paragraph (a)
of this section) by a covered person or
service provider because he or she:
(1) Provided, caused to be provided,
or is about to provide or cause to be
provided to the employer, the Bureau,
or any other State, local, or Federal,
government authority or law
enforcement agency, information
relating to any violation of, or any act
or omission that the employee
reasonably believes to be a violation of,
any provision of Title X of the DoddFrank Wall Street Reform and Consumer
Protection Act of 2010, Public Law 111–
203, 124 Stat. 1376, 1955 (July 21,
2010), or any other provision of law that

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is subject to the jurisdiction of the
Bureau, or any rule, order, standard, or
prohibition prescribed by the Bureau;
(2) Testified or will testify in any
proceeding resulting from the
administration or enforcement of any
provision of Title X of the Dodd-Frank
Wall Street Reform and Consumer
Protection Act of 2010, Public Law 111–
203, 124 Stat. 1376, 1955 (July 21,
2010), or any other provision of law that
is subject to the jurisdiction of the
Bureau, or any rule, order, standard, or
prohibition prescribed by the Bureau;
(3) Filed, instituted, or caused to be
filed or instituted any proceeding under
any Federal consumer financial law; 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 law, rule, order, standard, or
prohibition subject to the jurisdiction of,
or enforceable by, the Bureau.
§ 1985.103

Filing of retaliation complaint.

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

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for filing a complaint equitably tolled if
a complainant mistakenly files a
complaint with an agency other than
OSHA within 180 days after an alleged
adverse action.
§ 1985.104

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
§ 1985.110(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 Bureau.
(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
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

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of facts and evidence to make a prima
facie showing as follows:
(i) The employee engaged in a
protected activity;
(ii) The respondent knew or suspected
that the employee engaged in the
protected activity;
(iii) The employee suffered an adverse
action; and
(iv) The circumstances were sufficient
to raise the inference that the protected
activity was a contributing factor in the
adverse action.
(3) For purposes of determining
whether to investigate, the complainant
will be considered to have met the
required burden if the complaint on its
face, supplemented as appropriate
through interviews of the complainant,
alleges the existence of facts and either
direct or circumstantial evidence to
meet the required showing, i.e., to give
rise to an inference that the respondent
knew or suspected that the employee
engaged in protected activity and that
the protected activity was a contributing
factor in the adverse action. The burden
may be satisfied, for example, if the
complaint shows that the adverse action
took place within a temporal proximity
of the protected activity, or at the first
opportunity available to the respondent,
giving rise to the inference that it was
a contributing factor in the adverse
action. If the required showing has not
been made, the complainant (or the
complainant’s legal counsel if
complainant is represented by counsel)
will be so notified and the investigation
will not commence.
(4) Notwithstanding a finding that a
complainant has made a prima facie
showing, as required by this section,
further investigation of the complaint
will not be conducted if the respondent
demonstrates by clear and convincing
evidence that it would have taken the
same adverse action in the absence of
the complainant’s protected activity.
(5) If the respondent fails to make a
timely response or fails to satisfy the
burden set forth in the prior paragraph,
OSHA will proceed with the
investigation. The investigation will
proceed whenever it is necessary or
appropriate to confirm or verify the
information provided by the
respondent.
(f) Prior to the issuance of findings
and a preliminary order as provided for
in § 1985.105, if OSHA has reasonable
cause, on the basis of information
gathered under the procedures of this
part, to believe that the respondent has
violated CFPA 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

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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.
§ 1985.105 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 CFPA.
(1) If the Assistant Secretary
concludes that there is reasonable cause
to believe that a violation has occurred,
the Assistant Secretary will accompany
the findings with a preliminary order
providing relief to the complainant. The
preliminary order will require, where
appropriate: affirmative action to abate
the violation; reinstatement of the
complainant to his or her former
position, together with the
compensation (including back pay and
interest), terms, conditions and
privileges of the complainant’s
employment; and payment of
compensatory damages, including, at
the request of the complainant, the
aggregate amount of all costs and
expenses (including attorney and expert
witness fees) reasonably incurred.
Interest on back pay will be calculated
using the interest rate applicable to
underpayment of taxes under 26 U.S.C.
6621 and will be compounded daily.
The preliminary order will also require

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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 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 § 1985.106. 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
§ 1985.106 Objections to the findings and
the preliminary order and requests for a
hearing.

(a) Any party who desires review,
including judicial review, of the
findings and/or preliminary order, or a
respondent alleging that the complaint
was frivolous or brought in bad faith
who seeks an award of attorney fees
under CFPA, 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 § 1985.105. The objections, request

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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.

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§ 1985.107

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§ 1985.108

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 these rules.
(b) The Bureau, if interested in a
proceeding, may participate as amicus
curiae at any time in the proceeding, at
the Bureau’s discretion. At the request
of the Bureau, copies of all documents
in a case must be sent to the Bureau,
whether or not it is participating in the
proceeding.
§ 1985.109 Decision and orders of the
administrative law judge.

Hearings.

(a) Except as provided in this part,
proceedings will be conducted in
accordance with the rules of practice
and procedure for administrative
hearings before the Office of
Administrative Law Judges, codified at
subpart A of part 18 of this title.
(b) Upon receipt of an objection and
request for hearing, the Chief
Administrative Law Judge will promptly
assign the case to an ALJ who will
notify the parties, by certified mail, of
the day, time, and place of hearing. The
hearing is to commence expeditiously,
except upon a showing of good cause or
unless otherwise agreed to by the
parties. Hearings will be conducted de
novo on the record. ALJs have broad
discretion to limit discovery in order to
expedite the hearing.
(c) If both the complainant and the
respondent object to the findings and/or
order, the objections will be

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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.

Jkt 232001

(a) The decision of the ALJ will
contain appropriate findings,
conclusions, and an order pertaining to
the remedies provided in paragraph (d)
of this section, as appropriate. A
determination that a violation has
occurred may be made only if the
complainant has demonstrated by a
preponderance of the evidence that
protected activity was a contributing
factor in the adverse action alleged in
the complaint.
(b) If the complainant has satisfied the
burden set forth in the prior paragraph,
relief may not be ordered if the
respondent demonstrates by clear and
convincing evidence that it would have
taken the same adverse action in the
absence of any protected activity.
(c) Neither OSHA’s determination to
dismiss a complaint without completing
an investigation pursuant to
§ 1985.104(e) nor OSHA’s determination

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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 reasonable attorney fees, not
exceeding $1,000.
(e) The decision will be served upon
all parties to the proceeding, the
Assistant Secretary, and the Associate
Solicitor, Division of Fair Labor
Standards, U.S. Department of Labor.
Any ALJ’s decision requiring
reinstatement or lifting an order of
reinstatement by the Assistant Secretary
will be effective immediately upon
receipt of the decision by the
respondent. All other portions of the
ALJ’s order will be effective 14 days
after the date of the decision unless a
timely petition for review has been filed
with the Administrative Review Board
(ARB), U.S. Department of Labor. The
decision of the ALJ will become the
final order of the Secretary unless a
petition for review is timely filed with
the ARB and the ARB accepts the
petition for review.

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§ 1985.110 Decision and orders of the
Administrative Review Board.

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

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Jkt 232001

motion for reconsideration is ruled
upon or 14 days after a new decision is
issued. The ARB’s final decision will be
served upon all parties and the Chief
Administrative Law Judge by mail. The
final decision will also be served on the
Assistant Secretary and on the Associate
Solicitor, Division of Fair Labor
Standards, U.S. Department of Labor,
even if the Assistant Secretary is not a
party.
(d) If the ARB concludes that the
respondent has violated the law, the
ARB will issue a final order providing
relief to the complainant. The final
order will require, where appropriate:
Affirmative action to abate the violation;
reinstatement of the complainant to his
or her former position, together with the
compensation (including back pay and
interest), terms, conditions, and
privileges of the complainant’s
employment; and payment of
compensatory damages, including, at
the request of the complainant, the
aggregate amount of all costs and
expenses (including attorney and expert
witness fees) reasonably incurred.
Interest on back pay will be calculated
using the interest rate applicable to
underpayment of taxes under 26 U.S.C.
6621 and will be compounded daily.
The order will also require the
respondent to submit appropriate
documentation to the Social Security
Administration (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 reasonable attorney fees, not
exceeding $1,000.
Subpart C—Miscellaneous Provisions
§ 1985.111 Withdrawal of complaints,
findings, objections, and petitions for
review; settlement.

(a) At any time prior to the filing of
objections to the Assistant Secretary’s
findings and/or preliminary order, a
complainant may withdraw his or her
complaint by notifying OSHA, orally or
in writing, of his or her withdrawal.
OSHA then will confirm in writing the
complainant’s desire to withdraw and
determine whether to approve the
withdrawal. OSHA will notify the
parties (and each party’s legal counsel if
the party is represented by counsel) of
the approval of any withdrawal. If the
complaint is withdrawn because of
settlement, the settlement must be
submitted for approval in accordance

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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 § 1985.106,
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
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

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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
§ 1985.113.
§ 1985.112

Judicial review.

(a) Within 60 days after the issuance
of a final order under §§ 1985.109 and
1985.110, 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.
§ 1985.113

Judicial enforcement.

Whenever any person has failed to
comply with a final order, including one
approving a settlement agreement,
issued under CFPA, 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. Whenever
any person has failed to comply with a
preliminary order of reinstatement, the
person on whose behalf the order was
issued may file a civil action seeking
enforcement of the order in the
appropriate district court of the United
States.

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§ 1985.114 District court jurisdiction of
retaliation complaints.

13:29 Apr 02, 2014

Jkt 232001

§ 1985.115
of rules.

Special circumstances; waiver

In special circumstances not
contemplated by the provisions of these
rules, or for good cause shown, the ALJ
or the ARB on review may, upon
application, after three days notice to all
parties, waive any rule or issue such
orders that justice or the administration
of CFPA requires.
[FR Doc. 2014–07380 Filed 4–2–14; 8:45 am]
BILLING CODE 4510–26–P

ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52

(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
§ 1985.105(a) provided that there has
been no final decision of the Secretary;
or

VerDate Mar<15>2010

(2) If there has been no final decision
of the Secretary within 210 days of the
filing of the complaint.
(b) At the request of either party, the
action shall be tried by the court with
a jury.
(c) A proceeding under paragraph (a)
of this section shall be governed by the
same legal burdens of proof specified in
§ 1985.109. 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.

[EPA–R03–OAR–2013–0408; FRL–9909–11–
Region–3]

Approval and Promulgation of Air
Quality Implementation Plans;
Delaware; Infrastructure Requirements
for the 2008 Ozone National Ambient
Air Quality Standards
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:

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The Environmental Protection
Agency (EPA) is approving a State
Implementation Plan (SIP) revision
submitted by the State of Delaware
pursuant to the Clean Air Act (CAA).
Whenever new or revised national
ambient air quality standards (NAAQS)
are promulgated, the CAA requires
states to submit a plan for the
implementation, maintenance, and
enforcement of such NAAQS. The plan
is required to address basic program
elements, including, but not limited to
regulatory structure, monitoring,
modeling, legal authority, and adequate
resources necessary to assure attainment
and maintenance of the standards.
These elements are referred to as
infrastructure requirements. The State of
Delaware has made a submittal
addressing the infrastructure
requirements for the 2008 ozone
NAAQS.

SUMMARY:

This final rule is effective on
May 5, 2014.
ADDRESSES: EPA has established a
docket for this action under Docket ID
Number EPA–R03–OAR–2013–0408. All
documents in the docket are listed in
the www.regulations.gov Web site.
Although listed in the electronic docket,
some information is not publicly
available, i.e., 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 for
public inspection during normal
business hours at the Air Protection
Division, U.S. Environmental Protection
Agency, Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103.
Copies of the State submittal are
available at the Delaware Department of
Natural Resources and Environmental
Control (DNREC), 89 Kings Highway,
P.O. Box 1401, Dover, Delaware 19903.
FOR FURTHER INFORMATION CONTACT: Rose
Quinto, (215) 814–2182, or by email at
[email protected].
SUPPLEMENTARY INFORMATION:
DATES:

I. Background
On August 30, 2013 (78 FR 53709),
EPA published a notice of proposed
rulemaking (NPR) for the State of
Delaware. In the NPR, EPA proposed
approval of Delaware’s submittal that
provides the basic elements specified in
section 110(a)(2) of the CAA, necessary
to implement, maintain, and enforce the
2008 ozone NAAQS.

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