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assessments are the main source of
funding for the SIPC Fund. The
Commission determined that because
Forms SIPC–3, SIPC–6, and SIPC–7 are
used solely by SIPC for purposes of
levying its assessments, SIPC should
prescribe by rule the form and content
of the SIPC supplemental report. Rule
600 prescribes the form and content of
the report, in accordance with
paragraph (e)(4) of Rule 17a–5. Second,
Rule 600 is modelled on existing
requirements in Rule 17a–5 prescribing
the information that must be included
in, and the format of, the SIPC
supplemental report. Accordingly, the
Commission finds that Rule 600 is in
the public interest and is consistent
with the purposes of SIPA.
It is therefore ordered by the
commission, pursuant to section 3(e)(2)
of SIPA, that the above-mentioned
proposed rule change is approved. In
accordance with section 3(e)(2) of SIPA,
the approved rule change shall be given
the force and effect as if promulgated by
the Commission.
IV. Statutory Authority
Pursuant to SIPA, 15 U.S.C. 78aaa et
seq., and particularly, section 3(e)(15
U.S.C. 78ccc(e), SIPC is adding section
300.600 of Title 17 of the Code of
Federal Regulations in the manner set
forth below.
List of Subjects in 17 CFR Part 300
Brokers, Securities.
Text of the Amendments
In accordance with the foregoing,
Title 17, Chapter II of the Code of
Federal Regulations is amended as
follows:
PART 300—RULES OF THE
SECURITIES INVESTOR PROTECTION
CORPORATION
1. The authority citation for part 300
continues to read as follows:

■

Authority: 15 U.S.C. 78ccc.

2. Add an undesignated center
heading and § 300.600 to read as
follows:

■

Rules Relating to Supplemental Report
on SIPC Membership

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§ 300.600 Rules relating to supplemental
report on SIPC membership.

(a)(1) Who must file the supplemental
report. Except as provided in paragraph
(a)(2) of this section, a broker or dealer
must file with SIPC, within 60 days after
the end of its fiscal year, a supplemental
report on the status of its membership
in SIPC (commonly referred to as the
‘‘Independent Accountants’ Report on

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Applying Agreed-Upon Procedures’’) if
a rule of the Securities and Exchange
Commission (SEC) requires the broker
or dealer to file audited financial
statements annually.
(2) If the broker or dealer is a member
of SIPC, the broker or dealer is not
required to file the supplemental report
for any year in which it reports
$500,000 or less in total revenues in its
annual audited statement of income
filed with the SEC.
(b) Requirements of the supplemental
report. The supplemental report must
cover the SIPC Annual General
Assessment Reconciliation Form (Form
SIPC–7) or the Certification of Exclusion
From Membership Form (Form SIPC–3)
for each year for which an SEC Rule
requires audited financial statements to
be filed. The supplemental report must
include the following:
(1) A copy of the form filed or a
schedule of assessment payments
showing any overpayments applied and
overpayments carried forward,
including payment dates, amounts, and
name of SIPC collection agent to whom
mailed; or
(2) If exclusion from membership was
claimed, a statement that the broker or
dealer qualified for exclusion from
membership under the Securities
Investor Protection Act of 1970, as
amended, and the date the Form SIPC–
3 was filed with SIPC; and
(3) An independent public
accountant’s report. The independent
public accountant, who must be
independent in accordance with the
provisions of 17 CFR 210.2–01, must be
engaged to perform the following
agreed-upon procedures in accordance
with standards of the Public Company
Accounting Oversight Board (PCAOB):
(i) Compare assessment payments
made in accordance with the General
Assessment Payment Form (Form SIPC–
6) and applied to the General
Assessment calculation on the Form
SIPC–7 with respective cash
disbursements record entries;
(ii) For all or any portion of a fiscal
year, compare amounts reflected in the
audited financial statements required by
an SEC rule with amounts reported in
the Form SIPC–7;
(iii) Compare adjustments reported in
the Form SIPC–7 with supporting
schedules and working papers
supporting the adjustments;
(iv) Verify the arithmetical accuracy
of the calculations reflected in the Form
SIPC–7 and in the schedules and
working papers supporting any
adjustments; and
(v) Compare the amount of any
overpayment applied with the Form
SIPC–7 on which it was computed; or

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(vi) If exclusion from membership is
claimed, compare the income or loss
reported in the audited financial
statements required by an SEC rule with
the Form SIPC–3.
By the Commission.
Dated: March 14, 2016.
Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016–06041 Filed 3–16–16; 8:45 am]
BILLING CODE 8011–01–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: Final rule.
AGENCY:

This document provides the
final text of regulations governing the
employee protection (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). An interim final rule
establishing procedures for these
provisions and requesting public
comment was published in the Federal
Register on April 3, 2014. Two
comments were received. This rule
responds to those comments and
establishes the final procedures and
time frames for the handling of
retaliation complaints under CFPA,
including procedures and timeframes
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 of Labor’s final
decision.
DATES: This final rule is effective on
March 17, 2016.
FOR FURTHER INFORMATION CONTACT: Viet
Ly, Program Analyst, Directorate of
Whistleblower Protection Programs,
Occupational Safety and Health
SUMMARY:

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Federal Register / Vol. 81, No. 52 / Thursday, March 17, 2016 / Rules and Regulations
Administration, U.S. Department of
Labor, Room N–4618, 200 Constitution
Avenue NW., Washington, DC 20210;
telephone (202) 693–2199. This is not a
toll-free number. Email: OSHA.DWPP@
dol.gov. This Federal Register
publication is available in alternative
formats. The alternative formats
available are large print, electronic file
on computer disk (Word Perfect, ASCII,
Mates with Duxbury Braille System) and
audiotape.
SUPPLEMENTARY INFORMATION:

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I. Background
The Consumer Financial Protection
Act of 2010 was enacted as Title X of
the Dodd-Frank Wall Street Reform and
Consumer Protection Act of 2010 (DoddFrank Act), Pub. L. 111–203, 124 Stat.
1376, on July 21, 2010. The Act
established the Consumer Financial
Protection Bureau (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 generally include, among
others, the Consumer Financial
Protection Act of 2010, the Consumer
Leasing Act of 1976 (15 U.S.C. 1667 et
seq.), the Electronic Fund Transfer Act
(15 U.S.C. 1693 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 Fair Credit Reporting Act
(15 U.S.C. 1681 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

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Inherited Regulations, 76 FR 75825
(Dec. 5, 2011); Fall 2014 Unified
Regulatory Agenda and Regulatory Plan,
Consumer Financial Protection Bureau
Statement of Regulatory Priorities,
available at http://www.reginfo.gov/
public/jsp/eAgenda/StaticContent/
201410/Statement_3170.html.
The Bureau also has authority to issue
new rules, orders, and guidance, as may
be necessary or appropriate to enable
the Bureau to administer and carry out
the purposes and objectives of the
Federal consumer financial laws, and to
prevent evasions thereof.
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 this final rule 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. The section applies to covered
persons and service providers.
Examples of these include, but are not
limited to, providers of the following
financial products or services: (1)
residential mortgage loan origination,
brokerage, and servicing, modification
and foreclosure relief services; (2)
student loans; (3) payday loans; (4) debt
collection; (5) credit reporting; (6)
finance companies, lending, and loan
servicing and brokerage; (7) money
transmitting and check cashing services;

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(8) prepaid card services; (9) debt life
services, and (10) certain service
providers and certain affiliates related to
such an entity.
This final rule establishes procedures
for the handling of whistleblower
complaints under CFPA.
II. Summary of Statutory Procedures
CFPA’s whistleblower provisions
include procedures that allow a covered
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

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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) at the Department of Labor.
The filing of objections under CFPA will
stay any remedy in the preliminary
order except for preliminary
reinstatement. If a hearing before an ALJ
is not requested within 30 days, the
preliminary order becomes final and is
not subject to judicial review.
If a hearing is held, 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

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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.

Subpart A—Complaints, Investigations,
Findings and Preliminary Orders

III. Summary and Discussion of
Rulemaking Proceedings and
Regulatory Provisions

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).
In the IFR, OSHA defined ‘‘Bureau’’
as ‘‘the Bureau of Consumer Financial
Protection.’’ This definition was used in
the CFPA. However, when the Bureau
came into existence, it was named the
Consumer Financial Protection Bureau.
The definition of ‘‘Bureau’’ has been
changed to reflect the current name of
the agency.
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, and
certain financial products or services
that are delivered, offered, or provided
in connection with a consumer financial
product or service. See 12 U.S.C.
5481(5), (15). Examples of these include,
but are not limited to, residential
mortgage origination, lending, brokerage
and servicing, and related products and
services such as mortgage loan
modification and foreclosure relief;
student loans; payday loans; and other
financial services such as debt
collection, credit reporting, credit cards
and related activities, money
transmitting, check cashing and related
activities, prepaid cards, and debt relief
services.
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

On April 3, 2014, OSHA published in
the Federal Register an interim final
rule (IFR), promulgating rules governing
the employee protection (whistleblower)
provisions of CFPA. 79 FR 18630. In
addition to promulgating the IFR,
OSHA’s publication included a request
for public comment on the IFR by June
2, 2014. OSHA received two comments:
One from an individual, Chris
Strickling, and one from an
organization, International Bancshares
Corporation (IBC). Mr. Strickling
expressed general support for protecting
whistleblowers, but his comment did
not address any particular provision of
the IFR. IBC criticized several
provisions of the IFR, however its
criticisms all related to statutory
requirements in CFPA itself, rather than
the regulatory choices that OSHA has
made in these procedural rules.
Accordingly, no changes were made to
the rule based on public comments.
Several small changes were made,
however, to clarify the final rule and to
make the final rule consistent with
OSHA’s other, recently promulgated
whistleblower rules. These changes and
OSHA’s response to each of IBC’s
comments is discussed below.
The regulatory provisions in this part
have been written and organized to be
consistent with other whistleblower
regulations promulgated by OSHA to
the extent possible within the bounds of
the statutory language of 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).

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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. This
section has been reworded slightly for
consistency with other whistleblower
procedural rules.

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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
certain 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
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. OSHA
received no comments on this section of
the IFR. In addition to the change in the
Bureau’s official name noted above,
OSHA moved the rule of construction
that a person that is a service provider
shall be 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
from the definition of ‘‘covered person’’
in paragraph (j) to the definition of
‘‘service provider’’ in paragraph (p) to
better mirror the statutory definitions in
12 U.S.C. 5481.

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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.
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
where it is based on a reasonable, but
mistaken, belief that a violation of the
relevant law has occurred. Id. at *13.
IBC raised concerns that the scope of
protected activity under this section had
the potential to be so broad as to be
practically unworkable. In particular,
IBC was concerned that under 29 CFR
1985.102(b) covered employees are

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protected from reporting alleged
violations of not only the federal
consumer protection laws that were
transferred, in whole or in part, to the
Bureau, but also for violations of any
law subject to the jurisdiction of, or
enforceable by the Bureau, which
includes the Bureau’s ‘‘wide-ranging
catchall authority to regulate ‘unfair,
deceptive, or abusive practices’ . . .
related to the provision of consumer
financial products or services.’’ The text
of 29 CFR 1985.102(b) parallels the
statutory text in 12 U.S.C. 5567(a).
OSHA believes the provision accurately
reflects the scope of protected activity in
the statute and has made no changes in
response to this comment.
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

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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
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).
IBC commented that whistleblowers
generally should be required to use
employer-sponsored reporting programs
as a condition of being entitled to a
whistleblower award. IBC further
expressed the concern that ‘‘the interim
final rules do not require
whistleblowers to first report internally
before filing a complaint and thus, . . .
many employees will bypass established
internal procedures and take their
concerns directly and exclusively to the
DOL/OSHA.’’ IBC further noted that
many financial institutions have
developed strong internal compliance
procedures to encourage employees,
agents, and other company insiders to
report suspected violations of applicable
law, and to protect those who make
such reports. These mechanisms assist
financial institutions in promptly
addressing violations of law and
company policy. OSHA agrees with IBC
that internal reporting mechanisms,
particularly those that include
protections of an employee’s
confidentiality and safeguards against
retaliation, can play a constructive role
in ensuring that a provider of consumer
financial products and services fully
complies with consumer financial
protection laws and regulations. These
policies can foster a culture of
compliance by helping to ensure that
employees feel free to come forward
with concerns regarding potential
violations of the law. However, CFPA
protects employees regardless of
whether they report internally or to a
government agency. See 12 U.S.C.
5567(a) (listing activities protected
under CFPA). The statute, moreover,

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requires employees who believe they
have suffered retaliation for engaging in
protected whistleblowing, to file a
complaint with the Secretary of Labor
within 180 days of the retaliation. See
12 U.S.C. 5567(c)(1). OSHA does not
have authority to impose an internal
reporting requirement as a prerequisite
to filing a retaliation complaint with
OSHA. Accordingly, OSHA has made
no changes to this section.
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)
describes OSHA’s procedures for
sharing a party’s submissions during a
whistleblower investigation with the
other parties to the investigation. It has
been revised to encourage the parties to
provide documents to each other during
the investigation and to clarify the
opportunities for each party to provide
information to OSHA during the
investigation. Paragraph (d) of this
section discusses confidentiality of
information provided during
investigations.
Paragraph (e) of this section sets forth
the applicable burdens of proof. 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
qualifier ‘‘(i.e. a non-frivolous
allegation)’’ has been removed from
paragraph (e)(1) in order to make it
consistent with other whistleblower
regulations. The complainant will be
considered to have met the required
burden if the complaint on its face,
supplemented as appropriate through
interviews of the complainant, alleges
the existence of facts and either direct
or circumstantial evidence to meet the
required showing. The complainant’s
burden may be satisfied, for example, if
he or she shows that the adverse action
took place within a temporal proximity
of the protected activity, or at the first
opportunity available to the respondent,
giving rise to the inference that it was
a contributing factor in the adverse
action. See, e.g. Porter v. Cal. Dep’t of
Corrs., 419 F.3d 885, 895 (9th Cir. 2005)
(years between the protected activity
and the retaliatory actions did not defeat

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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, 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 an analogous
whistleblower provision in the Surface
Transportation Assistance Act (STAA)).
For protected activity to be a
contributing factor in the adverse action,
‘‘ ‘a complainant need not necessarily
prove that the respondent’s articulated
reason was a pretext in order to
prevail,’ ’’ because a complainant,
alternatively, can prevail by showing
that the respondent’s ‘‘ ‘reason, while
true, is only one of the reasons for its
conduct,’ ’’ and that another reason was

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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). The phrase, ‘‘Before
providing such materials, OSHA will
redact them, if necessary, in accordance
with the Privacy Act of 1974’’ has been
changed to ‘‘Before providing such
materials, OSHA will redact them, if
necessary, consistent with the Privacy
Act of 1974’’ to be consistent with
OSHA’s practices under other
whistleblower statutes.
IBC commented on this section,
noting that OSHA interprets the prima
facie case requirement as allowing the
complainant to meet its burden through
the complaint supplemented by
interviews of the complainant whereas
the respondent must meet the more
difficult ‘‘clear and convincing’’
standard. In IBC’s view, this burden
shifting regime is unfair and presents an
unequal playing field placing the
employer at a significant disadvantage.
However, as explained herein, the
requirement that the complainant make
a prima facie showing based on the
complaint and interviews of the

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complainant is a threshold requirement
for OSHA to conduct an investigation.
The purpose of this threshold
requirement is to stem frivolous
complaints. Once an investigation
commences, the statute requires OSHA
to determine, based on all evidence
submitted or developed by OSHA,
whether there is reasonable cause to
believe that the complaint has merit. 12
U.S.C. 5567(2)(A). In addition, even
when OSHA has reasonable cause to
believe that protected whistleblowing
contributed to action taken against an
employee, the statute states that the
Secretary 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
protected whistleblowing. 12 U.S.C.
5567(c)(3)(C). OSHA believes its
regulations accurately reflect these
statutory requirements. Apart from the
changes to paragraphs (c) and (e)
described above, OSHA has reworded
paragraphs (a) and (f) slightly to clarify
the paragraphs without changing their
meaning.
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
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

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not take effect until administrative
proceedings are completed.
As explained in the IFR, 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. 79 FR
18635. The Secretary has long applied
the interest rate in 26 U.S.C. 6621 to
calculate interest on backpay in
whistleblower cases. Doyle v. Hydro
Nuclear Servs., ARB Nos. 99–041, 99–
042, 00–012, 2000 WL 694384, at * 14–
15, 17 (ARB May 17, 2000); see also
Cefalu v. Roadway Express, Inc., ARB
No. 09–070, 2011 WL 1247212, at * 2
(ARB Mar. 17, 2011); Pollock v. Cont’l
Express, ARB Nos. 07–073, 08–051,
2010 WL 1776974, at * 8 (ARB Apr. 10,
2010); Murray v. Air Ride, Inc., ARB No.
00–045, slip op. at 9 (ARB Dec. 29,
2000). Section 6621 provides the
appropriate measure of compensation
under CFPA and other DOLadministered whistleblower statutes
because it ensures the complainant will
be placed in the same position he or she
would have been in if no unlawful
retaliation occurred. See Ass’t Sec’y v.
Double R. Trucking, Inc., ARB No. 99–
061, slip op. at 5 (ARB July 16, 1999)
(interest awards pursuant to § 6621 are
mandatory elements of complainant’s
make-whole remedy). Section 6621
provides a reasonably accurate
prediction of market outcomes (which
represents the loss of investment
opportunity by the complainant and the
employer’s benefit from use of the
withheld money) and thus provides the
complainant with appropriate makewhole relief. See EEOC v. Erie Cnty.,
751 F.2d 79, 82 (2d Cir. 1984) (‘‘[s]ince
the goal of a suit under the [Fair Labor
Standards Act] and the Equal Pay Act is
to make whole the victims of the
unlawful underpayment of wages, and
since [§ 6621] has been adopted as a
good indicator of the value of the use of
money, it was well within’’ the district
court’s discretion to calculate
prejudgment interest under § 6621);
New Horizons for the Retarded, Inc., 283
N.L.R.B. No. 181, 1987 WL 89652, at * 2
(NLRB May 28, 1987) (observing that
‘‘the short-term Federal rate [used by
§ 6621] is based on average market
yields on marketable Federal obligations
and is influenced by private economic
market forces’’). Similarly, as explained
in the IFR, daily compounding of the
interest award ensures that
complainants are made whole for

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unlawful retaliation in violation of
CFPA. 79 FR 18635.
As explained in the IFR, in ordering
back pay, OSHA will require the
respondent to submit the appropriate
documentation to the Social Security
Administration allocating the back pay
to the appropriate calendar quarters.
Requiring the reporting of back pay
allocation to the SSA serves the
remedial purposes of CFPA by ensuring
that employees subjected to retaliation
are truly made whole. See 79 FR 18635;
see also Don Chavas, LLC d/b/a Tortillas
Don Chavas, 361 NLRB No. 10, 2014 WL
3897178, at * 4–5 (NLRB Aug. 8, 2014).
Finally, as noted in the IFR, in limited
circumstances, in lieu of preliminary
reinstatement, OSHA may order that the
complainant receive the same pay and
benefits that he or she received prior to
termination, but not actually return to
work. See 79 FR 18636. Such ‘‘economic
reinstatement’’ is akin to an order for
front pay and frequently is employed in
cases arising under section 105(c) of the
Federal Mine Safety and Health Act of
1977, which protects miners from
retaliation. 30 U.S.C. 815(c); see, e.g.,
Sec’y of Labor ex rel. York v. BR&D
Enters., Inc., 23 FMSHRC 697, 2001 WL
1806020, at * 1 (ALJ June 26, 2001).
Front pay has been recognized as a
possible remedy in cases under the
whistleblower statutes enforced by
OSHA in limited circumstances where
reinstatement would not be appropriate.
See, e.g., Luder v. Cont’l Airlines, Inc.,
ARB No. 10–026, 2012 WL 376755, at
* 11 (ARB Jan. 31, 2012), aff’d, Cont’l
Airlines, Inc. v. Admin. Rev. Bd., No.
15–60012, slip op. at 8, 2016 WL 97461,
at * 4 (5th Cir. Jan. 7, 2016)
(unpublished) (under Wendell H. Ford
Aviation Investment and Reform Act for
the 21st Century, ‘‘front-pay is available
when reinstatement is not possible’’);
Moder v. Vill. of Jackson, ARB Nos. 01–
095, 02–039, 2003 WL 21499864, at * 10
(ARB June 30, 2003) (under
environmental whistleblower statutes,
‘‘front pay may be an appropriate
substitute when the parties prove the
impossibility of a productive and
amicable working relationship, or the
company no longer has a position for
which the complainant is qualified’’).
IBC made two comments on this
section of the rule. First, IBC expressed
the view that 60 days is too short a time
for OSHA to complete an investigation,
and suggested that 120 days would be
more appropriate. OSHA notes that the
60-day time frame for an investigation is
provided for in the CFPA statute. See 12
U.S.C. 5567(2)(A). However, 60 days is
often not enough time for the agency to
complete a whistleblower investigation
that gives the parties adequate

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opportunity to present their evidence to
OSHA. The fact that an investigation
extends beyond 60 days will not deprive
OSHA of jurisdiction to complete the
investigation. Cf., Roadway Express, Inc.
v. Dole, 929 F.2d 1060, 1066 (5th Cir.
1991) (finding Secretary does not lose
jurisdiction over whistleblower
complaint when a final decision is not
issued within 120 days of completion of
the hearing).
IBC also stated that the potential
$1,000 penalty against complainants
who submit frivolous whistleblower
complaints is de minimis and will not
deter such claims. In IBC’s view, the
rules did not provide much protection
against frivolous complaints. OSHA
notes that, as a protection against
frivolous complaints, under 12 U.S.C.
5567(c)(3), OSHA must dismiss
complaints that do not meet the prima
facie allegation requirement without
investigation. The $1,000 potential
penalty for frivolous complaints is
capped by the statute, and OSHA does
not have authority to increase this
penalty. See 12 U.S.C. 5567(c)(4)(C).
Accordingly, OSHA has made no
changes to this section in response to
IBC’s comments. OSHA has omitted an
unnecessary abbreviation in paragraph
(a)(1).
Subpart B—Litigation
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,

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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. OSHA received no
comments on this section, and no
changes were made to it.
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
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. OSHA
received no comments on this section,
and no changes were made to it.
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

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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. OSHA received no
comments on this section. However,
OSHA has revised section (a)(2) slightly
to clarify that documents must be
provided to the Assistant Secretary and
the Associate Solicitor for Fair Labor
Standards during the litigation only
upon request of OSHA, or when OSHA
is participating in the proceeding, or
when service on OSHA and the
Associate Solicitor is otherwise required
by these rules.
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. Rev.
Bd., 514 F.3d 468, 475 n.1 (5th Cir.
2008) (‘‘The term ‘demonstrates’ [under
identical burden-shifting scheme in the
Sarbanes-Oxley whistleblower
provision] means to prove by a
preponderance of the evidence.’’). If the
employee demonstrates that the alleged
protected activity was a contributing
factor in the adverse action, the
employer, to escape liability, must
demonstrate by ‘‘clear and convincing
evidence’’ that it would have taken the
same action in the absence of the
protected activity. See 12 U.S.C.
5567(c)(3)(C).
Paragraph (c) of this section further
provides that OSHA’s determination to
dismiss the complaint without an
investigation or without a complete
investigation under section 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

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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 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. OSHA
received no comments on this section.
OSHA omitted an unnecessary
abbreviation from this section but has
made no other changes to it.
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
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

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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
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. OSHA received no comments on
this section. OSHA has removed an
unnecessary abbreviation from this
section, but has made no other changes
to it.
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

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approval of settlements at the
investigative and adjudicative stages of
the case. OSHA received no comments
on this section and has made no
changes to it.

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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.
OSHA received no comments on this
section and has made no changes to it.
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
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

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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)). OSHA received no
comments on this section. OSHA has
revised this section slightly to more
closely parallel the provisions of the
statute regarding the proper venue for
an enforcement action.
Section 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
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

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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 the Secretary believes that
CFPA does not permit complainants to
initiate an action in federal court after
the Secretary issues a final decision,
even if the date of the final decision is
more than 210 days after the filing of the
complaint or within 90 days of the
complainant’s receipt of the Assistant
Secretary’s written findings. 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 conflicts 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. In all cases, a
copy of the district court complaint also
must be provided to the OSHA official
who issued the findings and/or
preliminary order, the Assistant
Secretary, and the U.S. Department of
Labor’s Associate Solicitor for Fair
Labor Standards. This provision is
necessary to notify OSHA that the
complainant has opted to file a

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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 specify the remedies
and burdens of proof in a district court
action. OSHA received no comments on
this section and has made no changes to
it.
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. OSHA received no comments
on this section and has made no
changes to it.

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IV. Paperwork Reduction Act
This rule contains a reporting
provision (filing a retaliation complaint,
Section 1985.103) which was previously
reviewed and approved for use by the
Office of Management and Budget
(OMB) under the provisions of the
Paperwork Reduction Act of 1995 (Pub.
L. 104–13). The assigned OMB control
number is 1218–0236.
V. Administrative Procedure Act
The notice and comment rulemaking
procedures of Section 553 of the
Administrative Procedure Act (APA) do
not apply ‘‘to interpretative rules,
general statements of policy, or rules of
agency organization, procedure, or
practice.’’ 5 U.S.C. 553(b)(A). This is a
rule of agency procedure, practice, and
interpretation within the meaning of
that section. 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. The Assistant
Secretary, however, sought and
considered comments to enable the
agency to improve the rules by taking
into account the concerns of interested
persons.
Furthermore, because this rule is
procedural and interpretative rather
than substantive, the normal
requirement of 5 U.S.C. 553(d) that a
rule is effective 30 days after
publication in the Federal Register is
inapplicable. The Assistant Secretary

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also finds good cause to provide an
immediate effective date for this final
rule. It is in the public interest that the
rule be effective immediately so both
parties may know what procedures are
applicable to pending cases.
VI. Executive Orders 12866 and 13563;
Unfunded Mandates Reform Act of
1995; Executive Order 13132
The Department has concluded that
this rule is not a ‘‘significant regulatory
action’’ within the meaning of section
3(f)(4) of Executive Order 12866, as
reaffirmed by Executive Order 13563,
because it is not likely to result in a rule
that may: (1) Have an annual effect on
the economy of $100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal governments or
communities; (2) create a serious
inconsistency or otherwise interfere
with an action taken or planned by
another agency; (3) materially alter the
budgetary impact of entitlements,
grants, user fees, or loan programs or the
rights and obligations of recipients
thereof; or (4) raise novel legal or policy
issues arising out of legal mandates, the
President’s priorities, or the principles
set forth in Executive Order 12866.
Therefore, no regulatory impact analysis
under Section 6(a)(3)(C) of Executive
Order 12866 has been prepared.
For this reason, and because no notice
of proposed rulemaking has been
published, no statement is required
under Section 202 of the Unfunded
Mandates Reform Act of 1995, 2 U.S.C.
1531 et seq. Finally, this rule does not
have ‘‘federalism implications.’’ The
rule does not have ‘‘substantial direct
effects on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government’’ and
therefore is not subject to Executive
Order 13132 (Federalism).
VII. Regulatory Flexibility Analysis
The notice and comment rulemaking
procedures of Section 553 of the
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). 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/

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14383

rfaguide_0512_0.pdf. This is a rule of
agency procedure, practice, and
interpretation within the meaning of
that section; therefore, the rule is
exempt from both the notice and
comment rulemaking procedures of the
APA and the requirements under the
RFA.
List of Subjects in 29 CFR Part 1985
Administrative practice and
procedure, Employment, Consumer
financial protection, Investigations,
Reporting and recordkeeping
requirements, Whistleblower.
Authority and Signature
This document was prepared under
the direction and control of David
Michaels, Ph.D., MPH, Assistant
Secretary of Labor for Occupational
Safety and Health.
Signed at Washington, DC, on February 25,
2016.
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
revised 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
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.
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.
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.
Authority: 12 U.S.C. 5567; Secretary of
Labor’s Order No. 1–2012 (Jan. 18, 2012), 77

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FR 3912 (Jan. 25, 2012); Secretary of Labor’s
Order No. 2–2012, 77 FR 69378 (Nov. 16,
2012).

Subpart A—Complaints,
Investigations, Findings and
Preliminary Orders
§ 1985.100

Purpose and scope.

(a) This Part sets forth procedures for,
and interpretations 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), Pub. L.
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. 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. In
addition, these rules provide the
Secretary’s interpretations on certain
statutory issues.

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§ 1985.101

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 Consumer
Financial Protection Bureau.
(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, Pub.
L. 111–203, 124 Stat. 1376, 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:

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(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
subparagraph (1).
(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
(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
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);

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(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.
(4) A person that is a service provider
shall be 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.
(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.
§ 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, Pub. L. 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;
(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, Pub. L. 111–203,
124 Stat. 1376, 1955 (July 21, 2010), or

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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.

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§ 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
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

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complaint, of the allegations contained
in the complaint, and of the substance
of the evidence supporting the
complaint. Such materials will be
redacted, if necessary, consistent with
the Privacy Act of 1974, 5 U.S.C. 552a,
and other applicable confidentiality
laws. OSHA will also notify the
respondent of its rights under
paragraphs (b) and (f) of this section and
paragraph (e) of § 1985.110. OSHA will
provide an unredacted copy of these
same materials to the complainant (or
the complainant’s legal counsel if
complainant is represented by counsel)
and to the 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) During the investigation, OSHA
will request that each party provide the
other parties to the whistleblower
complaint with a copy of submissions to
OSHA that are pertinent to the
whistleblower complaint. Alternatively,
if a party does not provide its
submissions to OSHA to the other party,
OSHA will provide them to the other
party (or the party’s legal counsel if the
party is represented by counsel) at a
time permitting the other party an
opportunity to respond. Before
providing such materials to the other
party, OSHA will redact them, if
necessary, consistent with the Privacy
Act of 1974, 5 U.S.C. 552a, and other
applicable confidentiality laws. OSHA
will also provide each party with an
opportunity to respond to the other
party’s submissions.
(d) Investigations will be conducted
in a manner that protects the
confidentiality of any person who
provides information on a confidential
basis, other than the complainant, in
accordance with part 70 of this title.
(e)(1) A complaint will be dismissed
unless the complainant has made a
prima facie showing that protected
activity was a contributing factor in the
adverse action alleged in the complaint.
(2) The complaint, supplemented as
appropriate by interviews of the
complainant, must allege the existence
of facts and evidence to make a prima
facie showing as follows:
(i) The employee engaged in a
protected activity;
(ii) The respondent knew or suspected
that the employee engaged in the
protected activity;

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14385

(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
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

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informants where statements were given
in confidence; if the statements cannot
be redacted without revealing the
identity of confidential informants,
summaries of their contents will be
provided. The complainant will also
receive a copy of the materials that must
be provided to the respondent under
this paragraph. Before providing such
materials, OSHA will redact them, if
necessary, consistent with the Privacy
Act of 1974, 5 U.S.C. 552a, and other
applicable confidentiality laws. The
respondent will be given the
opportunity to submit a written
response, to meet with the investigators,
to present statements from witnesses in
support of its position, and to present
legal and factual arguments. The
respondent must present this evidence
within 10 business days of OSHA’s
notification pursuant to this paragraph,
or as soon thereafter as OSHA and the
respondent can agree, if the interests of
justice so require.

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§ 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
the respondent to submit appropriate
documentation to the Social Security
Administration allocating any back pay
award to the appropriate calendar
quarters.
(2) If the Assistant Secretary
concludes that a violation has not

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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
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

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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.
§ 1985.107

Hearings.

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

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immaterial, irrelevant, or unduly
repetitious.
§ 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) Parties must send copies of
documents to OSHA and to the
Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of
Labor, only upon request of OSHA, or
when OSHA is participating in the
proceeding, or when service on OSHA
and the Associate Solicitor is otherwise
required by these rules.
(b) The 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.

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§ 1985.109 Decision and orders of the
administrative law judge.

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

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jurisdiction, the ALJ will hear the case
on the merits or dispose of the matter
without a hearing if the facts and
circumstances warrant.
(d)(1) If the ALJ concludes that the
respondent has violated the law, the ALJ
will issue an order that will require,
where appropriate: Affirmative action to
abate the violation; reinstatement of the
complainant to his or her former
position, together with the
compensation (including back pay and
interest), terms, conditions, and
privileges of the complainant’s
employment; and payment of
compensatory damages, including, at
the request of the complainant, the
aggregate amount of all costs and
expenses (including attorney and expert
witness fees) reasonably incurred.
Interest on back pay will be calculated
using the interest rate applicable to
underpayment of taxes under 26 U.S.C.
6621 and will be compounded daily.
The order will also require the
respondent to submit appropriate
documentation to the Social Security
Administration allocating any back pay
award to the appropriate calendar
quarters.
(2) If the ALJ determines that the
respondent has not violated the law, an
order will be issued denying the
complaint. If, upon the request of the
respondent, the ALJ determines that a
complaint was frivolous or was brought
in bad faith, the ALJ may award to the
respondent 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.
§ 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

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

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Standards, U.S. Department of Labor,
even if the Assistant Secretary is not a
party.
(d) If the ARB concludes that the
respondent has violated the law, the
ARB will issue a final order providing
relief to the complainant. The final
order will require, where appropriate:
Affirmative action to abate the violation;
reinstatement of the complainant to his
or her former position, together with the
compensation (including back pay and
interest), terms, conditions, and
privileges of the complainant’s
employment; and payment of
compensatory damages, including, at
the request of the complainant, the
aggregate amount of all costs and
expenses (including attorney and expert
witness fees) reasonably incurred.
Interest on back pay will be calculated
using the interest rate applicable to
underpayment of taxes under 26 U.S.C.
6621 and will be compounded daily.
The order will also require the
respondent to submit appropriate
documentation to the Social Security
Administration allocating any back pay
award to the appropriate calendar
quarters.
(e) If the ARB determines that the
respondent has not violated the law, an
order will be issued denying the
complaint. If, upon the request of the
respondent, the ARB determines that a
complaint was frivolous or was brought
in bad faith, the ARB may award to the
respondent a reasonable attorney fee,
not exceeding $1,000.
Subpart C—Miscellaneous Provisions

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§ 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
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

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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
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.

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§ 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 may
file a civil action seeking enforcement of
the order in the United States district
court for the district in which the
violation was found to have occurred or
in the United States district court for the
District of Columbia. Whenever any
person has failed to comply with a
preliminary order of reinstatement, or a
final order, including one approving a
settlement agreement, issued under
CFPA, the person on whose behalf the
order was issued may file a civil action
seeking enforcement of the order in the
appropriate United States district court.
§ 1985.114 District court jurisdiction of
retaliation complaints.

(a) The complainant may bring an
action at law or equity for de novo
review in the appropriate district court
of the United States, which will have
jurisdiction over such an action without
regard to the amount in controversy,
either:
(1) Within 90 days after receiving a
written determination under
§ 1985.105(a) provided that there has
been no final decision of the Secretary;
or
(2) If there has been no final decision
of the Secretary within 210 days of the
filing of the complaint.
(b) At the request of either party, the
action shall be tried by the court with
a jury.
(c) A proceeding under paragraph (a)
of this section shall be governed by the
same legal burdens of proof specified in
§ 1985.109. The court shall have
jurisdiction to grant all relief necessary
to make the employee whole, including

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injunctive relief and compensatory
damages, including:
(1) Reinstatement with the same
seniority status that the employee
would have had, but for the discharge
or discrimination;
(2) The amount of back pay, with
interest;
(3) Compensation for any special
damages sustained as a result of the
discharge or discrimination; and
(4) Litigation costs, expert witness
fees, and reasonable attorney fees.
(d) Within seven days after filing a
complaint in federal court, a
complainant must file with OSHA, the
ALJ, or the ARB, depending on where
the proceeding is pending, a copy of the
file-stamped complaint. In all cases, a
copy of the complaint also must be
served on the OSHA official who issued
the findings and/or preliminary order,
the Assistant Secretary, and the
Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of
Labor.
§ 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. 2016–05415 Filed 3–16–16; 8:45 am]
BILLING CODE 4510–26–P

DEPARTMENT OF THE TREASURY
Financial Crimes Enforcement Network
31 CFR Part 1010
RIN 1506–AB19

Financial Crimes Enforcement
Network; Withdrawal of Finding
Regarding JSC CredexBank
Financial Crimes Enforcement
Network (‘‘FinCEN’’), Treasury.
ACTION: Withdrawal of finding.
AGENCY:

This document withdraws
FinCEN’s finding that JSC CredexBank
(‘‘Credex’’), renamed JSC InterPayBank
(‘‘InterPay’’), is a financial institution of
primary money laundering concern,
pursuant to Section 311 of the USA
PATRIOT Act (‘‘Section 311’’). Because
of material subsequent developments
that have mitigated the money
laundering risks associated with Credex,
FinCEN has determined that Credex is
no longer a primary money laundering
concern that warrants the

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SUMMARY:

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implementation of a special measure
under Section 311. Elsewhere in this
issue of the Federal Register, FinCEN is
publishing a withdrawal of the related
notice of proposed rulemaking that
would have imposed two special
measures against Credex.
DATES: The finding is withdrawn as of
March 17, 2016.
FOR FURTHER INFORMATION CONTACT: The
FinCEN Resource Center at (800) 767–
2825.
SUPPLEMENTARY INFORMATION:
I. Background
On October 26, 2001, the President
signed into law the Uniting and
Strengthening America by Providing
Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001,
Public Law 107–56 (the ‘‘USA PATRIOT
Act,’’ codified at 31 U.S.C. 5318A). Title
III of the USA PATRIOT Act amends the
anti-money laundering provisions of the
Bank Secrecy Act (‘‘BSA’’), codified at
12 U.S.C. 1829b, 12 U.S.C. 1951–1959,
and 31 U.S.C. 5311–5314, 5316–5332, to
promote the prevention, detection, and
prosecution of international money
laundering and the financing of
terrorism. Regulations implementing the
BSA appear at 31 CFR chapter X. The
authority of the Secretary of the
Treasury to administer the BSA and its
implementing regulations has been
delegated to the Director of FinCEN.
Section 311 of the USA PATRIOT Act
(‘‘Section 311’’) grants the Director of
FinCEN the authority, upon finding that
reasonable grounds exist for concluding
that a foreign jurisdiction, foreign
financial institution, class of
transactions, or type of account is of
‘‘primary money laundering concern,’’
to require domestic financial
institutions and financial agencies to
take certain ‘‘special measures’’ to
address the primary money laundering
concern. The special measures
enumerated under Section 311 are
prophylactic safeguards that defend the
U.S. financial system from money
laundering and terrorist financing.
FinCEN may impose one or more of
these special measures in order to
protect the U.S. financial system from
these threats. To that end, special
measures one through four, codified at
31 U.S.C. 5318A(b)(1–4), impose
additional recordkeeping, information
collection, and information reporting
requirements on covered U.S. financial
institutions. The fifth special measure,
codified at 31 U.S.C. 5318A(b)(5),
allows the Director to prohibit or
impose conditions on the opening or
maintaining of correspondent or
payable-through accounts for the

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identified institution by U.S. financial
institutions.
II. The Finding and Notice of Proposed
Rulemaking
A. The Finding and Notice of Proposed
Rulemaking
Based upon review and analysis of
relevant information, consultations with
relevant Federal agencies and
departments, and after consideration of
the factors enumerated in Section 311,
the Director of FinCEN found that
reasonable grounds existed for
concluding that JSC CredexBank
(‘‘Credex’’) was a financial institution of
primary money laundering concern, as
published in the Federal Register on
May 25, 2012.1 FinCEN published a
notice of proposed rulemaking
proposing (‘‘NPRM’’) to impose the first
and fifth special measures on May 30,
2012, pursuant to the authority under 31
U.S.C. 5318A.2
B. Subsequent Developments
Since FinCEN’s finding and related
NPRM regarding Credex, material facts
regarding the circumstances of the
proposed rulemaking have changed. On
May 8, 2015, the National Bank of the
Republic of Belarus (‘‘NBRB’’), the
Belarusian central bank and monetary
authority with control over bank
supervision and regulation, revoked the
banking license of InterPay, the
successor of Credex, and delisted
InterPay from the list of banks
published by the NBRB.3 In late January
2016, InterPay was also listed by the
NBRB as being in the process of
bankruptcy and liquidation.4 Because of
the actions taken by the Belarusian
banking authorities and the ongoing
liquidation of InterPay’s assets, InterPay
no longer operates as a foreign financial
institution.
III. Withdrawal of the Finding
For the reasons set forth above,
FinCEN hereby withdraws its finding
that Credex/InterPay is of primary
1 See
2 See

77 FR 31434 (May 25, 2012).
77 FR 31795 (May 30, 2012) (RIN 1506–

AB19).
3 See Press Release, National Bank of the Republic
of Belarus. About Revocation of the Banking
License from ‘InterPayBank’ Joint Stock Company.
(May 8, 2015). http://www.nbrb.by/Press/
?nId=101&l=en (accessed January 27, 2016); see
also Press Release, National Bank of the Republic
of Belarus. Register of Banking Licenses as at 27
January 2016. (January 27, 2016). http://
www.nbrb.by/engl/system/register.asp (accessed
January 27, 2016).
4 See Press Release, National Bank of the Republic
of Belarus. Information on Banks Under Bankruptcy
or Liquidation in the Republic of Belarus as of
27.01.2016. (January 27, 2016). http://www.nbrb.by/
engl/system/ex-banks.asp (accessed January 27,
2016).

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