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(5) Labeling must include the
following:
(i) The labeling must clearly state that
these devices are intended for use in a
hospital environment and under the
supervision of a clinician trained in
their use;
(ii) Connector terminals should be
clearly, unambiguously marked on the
outside of the EPPG device. The
markings should identify positive (+)
and negative (¥) polarities. Dual
chamber devices should clearly identify
atrial and ventricular terminals;
(iii) The labeling must list all pacing
modes available in the device;
(iv) Labeling must include a detailed
description of any special capabilities
(e.g., overdrive pacing or automatic
mode switching); and
(v) Appropriate electromagnetic
compatibility information must be
included.
■ 3. In Subpart D, add § 870.3605 to
read as follows:

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§ 870.3605

Pacing system analyzer.

(a) Identification. A pacing system
analyzer (PSA) is a prescription device
that combines the functionality of a
pacemaker electrode function tester
(§ 870.3720) and an external pacemaker
pulse generator (EPPG) (§ 870.3600). It is
connected to a pacemaker lead and uses
a power supply and electronic circuits
to supply an accurately calibrated,
variable pacing pulse for measuring the
patient’s pacing threshold and
intracardiac R-wave potential. A PSA
may be a single, dual, or triple chamber
system and can simultaneously deliver
pacing therapy while testing one or
more implanted pacing leads.
(b) Classification. Class II (special
controls). The special controls for this
device are:
(1) Appropriate analysis/testing must
validate electromagnetic compatibility
(EMC) within a hospital environment.
(2) Electrical bench testing must
demonstrate device safety during
intended use. This must include testing
with the specific power source (i.e.,
battery power, AC mains connections,
or both).
(3) Non-clinical performance testing
data must demonstrate the performance
characteristics of the device. Testing
must include the following:
(i) Testing must demonstrate the
accuracy of monitoring functions,
alarms, measurement features,
therapeutic features, and all adjustable
or programmable parameters as
identified in labeling;
(ii) Mechanical bench testing of
material strength must demonstrate that
the device and connection cables will

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withstand forces or conditions
encountered during use;
(iii) Simulated use analysis/testing
must demonstrate adequate user
interface for adjustable parameters,
performance of alarms, display screens,
interface with external devices (e.g. data
storage, printing), and indicator(s)
functionality under intended use
conditions; and
(iv) Methods and instructions for
cleaning the pulse generator and
connection cables must be validated.
(4) Appropriate software verification,
validation, and hazard analysis must be
performed.
(5) Labeling must include the
following:
(i) The labeling must clearly state that
these devices are intended for use in a
hospital environment and under the
supervision of a clinician trained in
their use;
(ii) Connector terminals should be
clearly, unambiguously marked on the
outside of the PSA. The markings
should identify positive (+) and negative
(¥) polarities. Dual chamber devices
should clearly identify atrial and
ventricular terminals. Triple chamber
devices should clearly identify atrial,
right ventricular, and left ventricular
terminals;
(iii) The labeling must list all pacing
modes available in the device;
(iv) Labeling must include a detailed
description of any special capabilities
(e.g., overdrive pacing or automatic
mode switching);
(v) Labeling must limit the use of
external pacing to the implant
procedure; and
(vi) Appropriate electromagnetic
compatibility information must be
included.
Dated: April 12, 2016.
Leslie Kux,
Associate Commissioner for Policy.
[FR Doc. 2016–08898 Filed 4–15–16; 8:45 am]
BILLING CODE 4164–01–P

ACTION:

Final rule.

This document provides the
final text of regulations governing the
employee protection (retaliation or
whistleblower) provision found at
section 402 of the FDA Food Safety
Modernization Act (FSMA), which
added section 1012 to the Federal Food,
Drug, and Cosmetic Act. An interim
final rule governing these provisions
and requesting public comment was
published in the Federal Register on
February 13, 2014. Two comments were
received that were responsive to the
rule. This rule responds to those
comments and establishes the final
procedures and time frames for the
handling of retaliation complaints under
FSMA, including procedures and time
frames for employee complaints to the
Occupational Safety and Health
Administration (OSHA), investigations
by OSHA, appeals of OSHA
determinations to an administrative law
judge (ALJ) for a hearing de novo,
hearings by ALJs, review of ALJ
decisions by the Administrative Review
Board (ARB) (acting on behalf of the
Secretary of Labor), and judicial review
of the Secretary’s final decision.
DATES: This final rule is effective on
April 18, 2016.
FOR FURTHER INFORMATION CONTACT:
Cleveland Fairchild, Program Analyst,
Directorate of Whistleblower Protection
Programs, Occupational Safety and
Health Administration, U.S. Department
of Labor, Room N–4618, 200
Constitution Avenue NW., Washington,
DC 20210; telephone (202) 693–2199.
This is not a toll-free number. Email:
[email protected]. 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:
SUMMARY:

I. Background
DEPARTMENT OF LABOR
Occupational Safety and Health
Administration
29 CFR Part 1987
[Docket Number: OSHA–2011–0859]
RIN 1218–AC58

Procedures for Handling Retaliation
Complaints Under Section 402 of the
FDA Food Safety Modernization Act
Occupational Safety and Health
Administration, Labor.

AGENCY:

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

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Federal Government, or the attorney
general of a State information relating to
any violation of, or any act or omission
the employee reasonably believes to be
a violation of, any provision of the
FD&C or any order, rule, regulation,
standard, or ban under the FD&C;
testified or are about to testify in a
proceeding concerning such violation;
assisted or participated, or are about to
assist or participate, in such a
proceeding; or objected to, or refused to
participate in, any activity, policy,
practice, or assigned task that the
employee reasonably believed to be in
violation of any provision of the FD&C
or any order, rule, regulation, standard,
or ban under the FD&C.
Section 1012 became effective upon
enactment on January 4, 2011. Although
the Food and Drug Administration of
the U.S. Department of Health and
Human Services (FDA) generally
administers the FD&C, the Secretary of
Labor is responsible for enforcing the
employee protection provision set forth
in section 1012 of the FD&C. These rules
establish procedures for the handling of
whistleblower complaints under section
1012 of the FD&C. Throughout this rule,
FSMA refers to section 402 of the FDA
Food Safety Modernization Act,
codified as section 1012 of the Federal
Food, Drug and Cosmetic Act. See 21
U.S.C. 399d.
II. Summary of Statutory Procedures
FSMA’s whistleblower provisions
include procedures that allow a covered
employee to file, within 180 days of the
alleged retaliation, a complaint with the
Secretary of Labor (Secretary). Upon
receipt of the complaint, the Secretary
must provide written notice to the
person or persons named in the
complaint alleged to have violated the
FSMA (respondent) of the filing of the
complaint, the allegations contained in
the complaint, the substance of the
evidence supporting the complaint, and
the rights afforded the respondent
throughout the investigation. The
Secretary must then, within 60 days of
receipt of the complaint, afford the
complainant and respondent an
opportunity to submit a response and
meet with the investigator to present
statements from witnesses, and conduct
an investigation.
The statute provides that the
Secretary may conduct an investigation
only if the complainant has made a
prima facie showing that the protected
activity was a contributing factor in the
adverse action alleged in the complaint
and the respondent has not
demonstrated, through clear and
convincing evidence, that it would have
taken the same adverse action in the

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absence of that activity (see section
1987.104 for a summary of the
investigation process). OSHA interprets
the prima facie case requirement as
allowing the complainant to meet this
burden through the complaint as
supplemented by interviews of the
complainant.
After investigating a complaint, the
Secretary will issue written findings. If,
as a result of the investigation, the
Secretary finds there is reasonable cause
to believe that retaliation has occurred,
the Secretary must notify the
respondent of those findings, along with
a preliminary order that requires the
respondent to, where appropriate: Take
affirmative action to abate the violation;
reinstate the complainant to his or her
former position together with the
compensation of that position
(including back pay) and restore the
terms, conditions, and privileges
associated with his or her employment;
and provide compensatory damages to
the complainant, as well as all costs and
expenses (including attorney fees and
expert witness fees) reasonably incurred
by the complainant for, or in connection
with, the bringing of the complaint
upon which the order was issued.
The complainant and the respondent
then have 30 days after the date of the
Secretary’s notification in which to file
objections to the findings and/or
preliminary order and request a hearing
before an administrative law judge (ALJ)
at the Department of Labor. The filing of
objections under FSMA will stay any
remedy in the preliminary order except
for preliminary reinstatement. If a
hearing before an ALJ is not requested
within 30 days, the preliminary order
becomes final and is not subject to
judicial review.
If a hearing is held, the statute
requires the hearing to be conducted
‘‘expeditiously.’’ The Secretary then has
120 days after the conclusion of any
hearing in which to issue a final order,
which may provide appropriate relief or
deny the complaint. Until the
Secretary’s final order is issued, the
Secretary, the complainant, and the
respondent may enter into a settlement
agreement that terminates the
proceeding. Where the Secretary has
determined that a violation has
occurred, the Secretary, where
appropriate, will assess against the
respondent a sum equal to the total
amount of all costs and expenses,
including attorney and expert witness
fees, reasonably incurred by the
complainant for, or in connection with,
the bringing of the complaint upon
which the Secretary issued the order.
The Secretary also may award a
prevailing employer reasonable attorney

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22531

fees, not exceeding $1,000, if the
Secretary finds that the complaint is
frivolous or has been brought in bad
faith.
Within 60 days of the issuance of the
final order, any person adversely
affected or aggrieved by the Secretary’s
final order may file an appeal with the
United States Court of Appeals for the
circuit in which the violation allegedly
occurred or the circuit where the
complainant resided on the date of the
violation.
FSMA permits the employee to seek
de novo review of the complaint by a
United States district court in the event
that the Secretary has not issued a final
decision within 210 days after the filing
of the complaint, or within 90 days after
receiving a written determination. The
court will have jurisdiction over the
action without regard to the amount in
controversy, and the case will be tried
before a jury at the request of either
party.
FSMA also provides that nothing
therein preempts or diminishes any
other safeguards against discrimination,
demotion, discharge, suspension,
threats, harassment, reprimand,
retaliation, or any other manner of
discrimination provided by Federal or
State law. Finally, FSMA states that
nothing therein shall be deemed to
diminish the rights, privileges, or
remedies of any employee under any
Federal or State law or under any
collective bargaining agreement, and the
rights and remedies in FSMA may not
be waived by any agreement, policy,
form, or condition of employment.
III. Summary and Discussion of
Regulatory Provisions
On February 13, 2014, OSHA
published in the Federal Register an
interim final rule (IFR) establishing
rules governing the whistleblower
provisions of 402 of the FDA Food
Safety Modernization Act. 79 FR 8619.
OSHA provided the public an
opportunity to comment on the IFR by
April 14, 2014.
In response, OSHA received
comments that were responsive to the
rule from two organizations. Comments
were received from the Roll Law Group
(Roll), on behalf of Paramount Farming
Company LLC, Paramount Farms
International LLC, Pom Wonderful LLC,
and Paramount Citrus Holdings LLC,
and; Kalijarvi, Chuzi, Newman & Fitch,
P.C. (Kalijarvi). OSHA also received one
comment that was not responsive to the
rule.
OSHA has reviewed and considered
the comments and now adopts this final
rule with minor revisions. The
following discussion addresses the

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

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Roll commented that OSHA should
‘‘ensure that the rules not only protect
employee rights and promote food
safety, but uphold equality and fairly
address the concerns of both parties
involved in these types of matters.’’
OSHA agrees, and notes that its
procedures are designed to ensure a fair
process for both parties.
Kalijarvi commented that ‘‘Congress
passed the FSMA to protect people from
getting sick and dying. When Congress
passes a law to accomplish a remedial
purpose, that purpose should be central
to decisions about interpretation and
application of the law.’’ Kalijarvi
elaborated that decisions under FSMA
should be made with an eye towards
furthering the statute’s remedial
purpose. In addition, Kalijarvi
commented that OSHA’s discussion of
the reasonable belief doctrine serves as
a helpful reminder that ‘‘a
complainant’s whistleblower activity
will be protected when it is based on a
reasonable belief that any provision of
the FD&C, or any order, rule, regulation,
standard, or ban under the FD&C, has
been violated.’’ OSHA believes that,
generally, support for the remedial
nature of the FSMA is found in the
statute itself.
Subpart A—Complaints, Investigations,
Findings and Preliminary Orders
Section 1987.100

Purpose and Scope

This section describes the purpose of
the regulations implementing FSMA
and provides an overview of the
procedures covered by these
regulations. No comments were received

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on this section, and no changes were
made to it.
Section 1987.101

Definitions

This section includes general
definitions from the FD&C, which are
applicable to the whistleblower
provisions of FSMA. The FD&C states
that the term ‘‘person’’ includes an
individual, partnership, corporation,
and association. See 21 U.S.C. 321(e).
The FD&C also defines the term ‘‘food’’
as ‘‘(1) articles used for food or drink for
man or other animals, (2) chewing gum,
and (3) articles used for components of
any such article.’’ See 21 U.S.C. 321(f).
No comments were received on this
section, and no changes were made to
it.
Section 1987.102
Prohibited Acts

Obligations and

This section describes the activities
that are protected under FSMA, and the
conduct that is prohibited in response to
any protected activities. Under FSMA,
an entity engaged in the manufacture,
processing, packing, transporting,
distribution, reception, holding, or
importation of food may not retaliate
against an employee because the
employee ‘‘provided, caused to be
provided, or is about to provide or cause
to be provided to the employer, the
Federal Government, or the attorney
general of a State information relating to
any violation of, or any act or omission
the employee reasonably believes to be
a violation of any provision of this
chapter or any order, rule, regulation,
standard, or ban under this chapter.’’ 21
U.S.C. 399d(a)(1). FSMA also protects
employees who testify, assist or
participate in proceedings concerning
such violations. See 21 U.S.C. 399d(a)(2)
and (3). Finally, FSMA prohibits
retaliation because an employee
‘‘objected to, or refused to participate in,
any activity, policy, practice, or
assigned task that the employee (or
other such person) reasonably believed
to be in violation of any provision of
this chapter, or any order, rule,
regulation, standard, or ban under this
chapter.’’ 21 U.S.C. 399d(a)(4).
References to ‘‘this chapter’’ refer to the
FD&C, which is chapter 9 of title 21. 21
U.S.C. 301 et seq. Although an entity
must therefore be engaged in the
manufacture, processing, packing,
transporting, distribution, reception,
holding, or importation of food in order
to be covered by FSMA, a complainant’s
whistleblower activity will be protected
when it is based on a reasonable belief
that any provision of the FD&C, or any
order, rule, regulation, standard, or ban
under the FD&C, has been violated.

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In order to have a ‘‘reasonable belief’’
under FSMA, a complainant must have
both a subjective, good faith belief and
an objectively reasonable belief that the
complained-of conduct violated the
FD&C or any order, rule, regulation,
standard, or ban under the FD&C. See
Sylvester v. Parexel Int’l LLC, ARB No.
07–123, 2011 WL 2165854, at * 11–12
(ARB May 25, 2011) (discussing the
reasonable belief standard under
analogous language in the SarbanesOxley Act whistleblower provision for
employees, 18 U.S.C. 1514A). The
requirement that the complainant have
a subjective, good faith belief is satisfied
so long as the complainant actually
believed that the conduct complained of
violated the relevant law. See id. The
objective ‘‘reasonableness’’ of a
complainant’s belief is typically
determined ‘‘based on the knowledge
available to a reasonable person in the
same factual circumstances with the
same training and experience as the
aggrieved employee.’’ Id. at * 12
(internal quotation marks and citation
omitted). However, the complainant
need not show that the conduct
complained of constituted an actual
violation of law. Pursuant to this
standard, an employee’s whistleblower
activity is protected where it is based on
a reasonable, but mistaken, belief that a
violation of the relevant law has
occurred. Id. at * 13.
No comments were received on this
section, and no changes were made to
it.
Section 1987.103
Complaint

Filing of Retaliation

This section explains the
requirements for filing a retaliation
complaint under FSMA. According to
section 1012(b)(1) of the FD&C, a
complaint must be filed within 180 days
of when the alleged violation occurs.
Under Delaware State College v. Ricks,
449 U.S. 250, 258 (1980), this is
considered to be when the retaliatory
decision has been both made and
communicated to the complainant. In
other words, the limitations period
commences once the employee is aware
or reasonably should be aware of the
employer’s decision to take an adverse
action. See Equal Emp’t Opportunity
Comm’n v. United Parcel Serv., Inc., 249
F.3d 557, 561–62 (6th Cir. 2001). The
time for filing a complaint may be tolled
for reasons warranted by applicable case
law. For example, OSHA may consider
the time for filing a complaint to be
tolled if a complainant mistakenly files
a complaint with an agency other than
OSHA within 180 days after an alleged
adverse action.

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Complaints filed under FSMA need
not be in any particular form. They may
be either oral or in writing. If the
complainant is unable to file the
complaint in English, OSHA will accept
the complaint in any language. With the
consent of the employee, complaints
may be filed by any person on the
employee’s behalf.
OSHA notes that a complaint of
retaliation filed with OSHA under
FSMA is not a formal document and
need not conform to the pleading
standards for complaints filed in federal
district court articulated in Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007)
and Ashcroft v. Iqbal, 556 U.S. 662
(2009). See Sylvester, 2011 WL 2165854,
at * 9–10 (holding whistleblower
complaints filed with OSHA under
analogous provisions in the SarbanesOxley Act need not conform to federal
court pleading standards). Rather, the
complaint filed with OSHA under this
section simply alerts OSHA to the
existence of the alleged retaliation and
the complainant’s desire that OSHA
investigate the complaint. Upon receipt
of the complaint, OSHA is to determine
whether the ‘‘complaint, supplemented
as appropriate by interviews of the
complainant’’ alleges ‘‘the existence of
facts and evidence to make a prima facie
showing.’’ 29 CFR 1987.104(e). As
explained in section 1987.104(e), if the
complaint, supplemented as
appropriate, contains a prima facie
allegation, and the respondent does not
show clear and convincing evidence
that it would have taken the same action
in the absence of the alleged protected
activity, OSHA conducts an
investigation to determine whether
there is reasonable cause to believe that
retaliation has occurred. See 21 U.S.C.
399d(b)(2)(A), 29 CFR 1987.104(e).
No comments were received on this
section, and no changes were made to
it.

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Section 1987.104

Investigation

This section describes the procedures
that apply to the investigation of
complaints under FSMA. Paragraph (a)
of this section outlines the procedures
for notifying the parties and the FDA of
the complaint and notifying the
respondent of its rights under these
regulations. Paragraph (b) describes the
procedures for the respondent to submit
its response to the complaint. Paragraph
(c) describes OSHA’s procedures for
sharing a party’s submissions during a
whistleblower investigation with the
other parties to the investigation.
Paragraph (d) of this section discusses
confidentiality of information provided
during investigations.

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Paragraph (e) of this section sets forth
the applicable burdens of proof. FSMA
requires that a complainant make an
initial prima facie showing that
protected activity was ‘‘a contributing
factor’’ in the adverse action alleged in
the complaint, i.e., that the protected
activity, alone or in combination with
other factors, affected in some way the
outcome of the employer’s decision. The
complainant will be considered to have
met the required burden if the
complaint on its face, supplemented as
appropriate through interviews of the
complainant, alleges the existence of
facts and either direct or circumstantial
evidence to meet the required showing.
The complainant’s burden may be
satisfied, for example, if he or she shows
that the adverse action took place
within a temporal proximity of the
protected activity, or at the first
opportunity available to the respondent,
giving rise to the inference that it was
a contributing factor in the adverse
action. See, e.g., Porter v. Cal. Dep’t of
Corrs., 419 F.3d 885, 895 (9th Cir. 2005)
(years between the protected activity
and the retaliatory actions did not defeat
a finding of a causal connection where
the defendant did not have the
opportunity to retaliate until he was
given responsibility for making
personnel decisions).
If the complainant does not make the
required prima facie showing, the
investigation must be discontinued and
the complaint dismissed. See Trimmer
v. U.S. Dep’t of Labor, 174 F.3d 1098,
1101 (10th Cir. 1999) (noting that the
burden-shifting framework of the Energy
Reorganization Act of 1974 (ERA),
which is the same framework now
applicable to FSMA, serves a
‘‘gatekeeping function’’ that ‘‘stem[s]
frivolous complaints’’). Even in cases
where the complainant successfully
makes a prima facie showing, the
investigation must be discontinued if
the employer demonstrates, by clear and
convincing evidence, that it would have
taken the same adverse action in the
absence of the protected activity. Thus,
OSHA must dismiss a complaint under
FSMA and not investigate further if
either: (1) The complainant fails to meet
the prima facie showing that protected
activity was a contributing factor in the
adverse action; or (2) the employer
rebuts that showing by clear and
convincing evidence that it would have
taken the same adverse action absent the
protected activity.
Assuming that an investigation
proceeds beyond the gatekeeping phase,
the statute requires OSHA to determine
whether there is reasonable cause to
believe that protected activity was a
contributing factor in the alleged

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22533

adverse action. A contributing factor is
‘‘any factor which, alone or in
connection with other factors, tends to
affect in any way the outcome of the
decision.’’ Marano v. Dep’t of Justice, 2
F.3d 1137, 1140 (Fed. Cir. 1993)
(internal quotation marks, emphasis and
citation omitted) (discussing the
Whistleblower Protection Act, 5 U.S.C.
1221(e)(1)); see also Addis v. Dep’t of
Labor, 575 F.3d 688, 689–91 (7th Cir.
2009) (discussing Marano as applied to
analogous whistleblower provision in
the ERA); Clarke v. Navajo Express, Inc.,
ARB No. 09–114, 2011 WL 2614326, at
* 3 (ARB June 29, 2011) (discussing
burdens of proof under analogous
whistleblower provision in the Surface
Transportation Assistance Act (STAA)).
For protected activity to be a
contributing factor in the adverse action,
‘‘a complainant need not necessarily
prove that the respondent’s articulated
reason was a pretext in order to
prevail,’’ because a complainant
alternatively can prevail by showing
that the respondent’s ‘‘ ‘reason, while
true, is only one of the reasons for its
conduct,’ ’’ and that another reason was
the complainant’s protected activity.
See Klopfenstein v. PCC Flow Techs.
Holdings, Inc., ARB No. 04–149, 2006
WL 3246904, at * 13 (ARB May 31,
2006) (quoting Rachid v. Jack in the
Box, Inc., 376 F.3d 305, 312 (5th Cir.
2004)) (discussing contributing factor
test under the Sarbanes-Oxley
whistleblower provision), aff’d sub
nom. Klopfenstein v. Admin. Review
Bd., U.S. Dep’t of Labor, 402 F. App’x
936, 2010 WL 4746668 (5th Cir. 2010).
If OSHA finds reasonable cause to
believe that the alleged protected
activity was a contributing factor in the
adverse action, OSHA may not order
relief if the employer demonstrates by
clear and convincing evidence that it
would have taken the same action in the
absence of the protected activity. See 21
U.S.C. 399d(b)(2)(C). The ‘‘clear and
convincing evidence’’ standard is a
higher burden of proof than a
‘‘preponderance of the evidence’’
standard. Clear and convincing
evidence is evidence indicating that the
thing to be proved is highly probable or
reasonably certain. Clarke, 2011 WL
2614326, at * 3.
Paragraph (f) describes the procedures
OSHA will follow prior to the issuance
of findings and a preliminary order
when OSHA has reasonable cause to
believe that a violation has occurred.
Roll commented that this section of
the IFR did not explicitly state that the
respondent has the right to receive
copies of the substantive evidence
provided by the complainant, and Roll
states that it is ‘‘essential that both

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parties receive equal access to all
documents throughout the entire
matter.’’ OSHA agrees that the input of
both parties in the investigation is
important to ensure that OSHA reaches
the proper outcome during its
investigation. In fact, OSHA’s current
policy is to request that each party
provide the other parties with a copy of
all submissions to OSHA that are
pertinent to the whistleblower
complaint. Where the parties do not
provide each other such submissions,
OSHA will ensure that each party is
provided with such information after
redacting the submissions as
appropriate. OSHA has revised
paragraph (c) to clarify these policies
regarding information sharing during
the course of an investigation. Further
information regarding OSHA’s
nonpublic disclosure and information
sharing policies also may be found in
the Whistleblower Investigations
Manual, available at, http://www.whistle
blowers.gov/regulations_page.html.
Roll also commented that the IFR did
not provide the complainant and the
respondent equal opportunity to
respond to the each other’s submissions
to OSHA. OSHA has revised paragraph
(c) to clarify that OSHA will ensure that
each party is provided with an
opportunity to respond to the other
party’s submissions.
Apart from the changes to paragraph
(c) described above, OSHA has
reworded paragraphs (a) and (f) slightly
to clarify the paragraphs without
changing their meaning.
Section 1987.105 Issuance of Findings
and Preliminary Orders
This section provides that, on the
basis of information obtained in the
investigation, the Assistant Secretary
will issue, within 60 days of the filing
of a complaint, written findings
regarding whether or not there is
reasonable cause to believe that the
complaint has merit. If the findings are
that there is reasonable cause to believe
that the complaint has merit, the
Assistant Secretary will order
appropriate relief, including
preliminary reinstatement, affirmative
action to abate the violation, back pay
with interest, and compensatory
damages. The findings and, where
appropriate, preliminary order, advise
the parties of their right to file
objections to the findings of the
Assistant Secretary and to request a
hearing. The findings and, where
appropriate, preliminary order, also
advise the respondent of the right to
request an award of attorney fees not
exceeding $1,000 from the ALJ,
regardless of whether the respondent

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has filed objections, if the respondent
alleges that the complaint was frivolous
or brought in bad faith. If no objections
are filed within 30 days of receipt of the
findings, the findings and any
preliminary order of the Assistant
Secretary become the final decision and
order of the Secretary. If objections are
timely filed, any order of preliminary
reinstatement will take effect, but the
remaining provisions of the order will
not take effect until administrative
proceedings are completed.
As explained in the IFR, in ordering
interest on back pay under FSMA, the
Secretary has determined that interest
due will be computed by compounding
daily the Internal Revenue Service
interest rate for the underpayment of
taxes, which under 26 U.S.C. 6621 is
generally the Federal short-term rate
plus three percentage points. 79 FR
8623. The Secretary has long applied
the interest rate in 26 U.S.C. 6621 to
calculate interest on backpay in
whistleblower cases. Doyle v. Hydro
Nuclear Servs., ARB Nos. 99–041, 99–
042, 00–012, 2000 WL 694384, at *14–
15, 17 (ARB May 17, 2000); see also
Cefalu v. Roadway Express, Inc., ARB
No. 09–070, 2011 WL 1247212, at *2
(ARB Mar. 17, 2011); Pollock v. Cont’l
Express, ARB Nos. 07–073, 08–051,
2010 WL 1776974, at *8 (ARB Apr. 10,
2010); Murray v. Air Ride, Inc., ARB No.
00–045, slip op. at 9 (ARB Dec. 29,
2000). Section 6621 provides the
appropriate measure of compensation
under FSMA and other 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, 283

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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
unlawful retaliation in violation of
FSMA. 79 FR 8623.
As explained in the IFR, in ordering
back pay, OSHA will require the
respondent to submit the appropriate
documentation to the Social Security
Administration (SSA) allocating the
back pay to the appropriate calendar
quarters. Requiring the reporting of back
pay allocation to the SSA serves the
remedial purposes of FSMA by ensuring
that employees subjected to retaliation
are truly made whole. See 79 FR 8623;
see also Don Chavas, LLC d/b/a Tortillas
Don Chavas, 361 NLRB No. 10, 2014 WL
3897178, at *4–5 (NLRB Aug. 8, 2014).
Finally, as noted in the IFR, in limited
circumstances, in lieu of preliminary
reinstatement, OSHA may order that the
complainant receive the same pay and
benefits that he or she received prior to
termination, but not actually return to
work. See 79 FR 8623. Such ‘‘economic
reinstatement’’ is akin to an order for
front pay and frequently is employed in
cases arising under section 105(c) of the
Federal Mine Safety and Health Act of
1977, which protects miners from
retaliation. 30 U.S.C. 815(c); see, e.g.,
Sec’y of Labor ex rel. York v. BR&D
Enters., Inc., 23 FMSHRC 697, 2001 WL
1806020, at *1 (ALJ June 26, 2001).
Front pay has been recognized as a
possible remedy in cases under the
whistleblower statutes enforced by
OSHA in limited circumstances where
reinstatement would not be appropriate.
See, e.g., Luder v. Cont’l Airlines, Inc.,
ARB No. 10–026, 2012 WL 376755, at
*11 (ARB Jan. 31, 2012), aff’d, Cont’l
Airlines, Inc. v. Admin. Rev. Bd., No.
15–60012, slip op. at 8, 2016 WL 97461,
at *4 (5th Cir. Jan. 7, 2016)
(unpublished) (under Wendell H. Ford
Aviation Investment and Reform Act for
the 21st Century, ‘‘front-pay is available
when reinstatement is not possible’’);
Moder v. Vill. of Jackson, ARB Nos. 01–
095, 02–039, 2003 WL 21499864, at *10
(ARB June 30, 2003) (under
environmental whistleblower statutes,
‘‘front pay may be an appropriate
substitute when the parties prove the
impossibility of a productive and
amicable working relationship, or the
company no longer has a position for
which the complainant is qualified’’).
Roll commented on the discussion in
the IFR of ‘‘economic reinstatement’’

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Federal Register / Vol. 81, No. 74 / Monday, April 18, 2016 / Rules and Regulations
and front pay and suggested that OSHA
should include specific guidelines
pertaining to front pay awards. Roll
noted that the IFR provided examples of
situations where front pay might be
appropriate, but the rules themselves do
not explicitly state that front pay is an
available remedy, which could be
‘‘misleading.’’ Further, Roll questioned
whether OSHA has authority to order
front pay as a remedy.
OSHA declines to adopt specific
guidelines pertaining to front pay
awards in these rules. As explained in
the IFR, the appropriateness of
‘‘economic reinstatement’’ or front pay
as an alternative to the default statutory
remedy of reinstatement has long been
recognized. OSHA believes that relevant
case law more appropriately addresses
the parameters for issuing an award of
front pay in lieu of reinstatement. See,
e.g., Luder, ARB No. 10–026, slip op. at
*11. (holding that front pay must be
awarded according to reasonable
parameters such as the amount of the
proposed award, the length of time the
complainant expects to be out of work,
and the applicable discount rate)
(internal quotation marks and citations
omitted), front pay award modified,
Luder v. Cont’l Airlines, Inc., ARB No.
13–009, 2014 WL 6850012 (ARB Nov.
2014), aff’d, Cont’l Airlines, Inc. v.
Admin. Review Bd., No. 15–60012, slip
op. at 8, 2016 WL 97461, at *4 (5th Cir.
Jan. 7, 2016) (unpublished).
Kalijarvi requested that the rule
include a reference to Blackburn v.
Martin, 982 F.2d 125 (4th Cir. 1992) to
inform the public that emotional
distress damages may be awarded
without the testimony of expert
witnesses. A number of ARB decisions
have awarded such damages without the
testimony of expert witnesses in
appropriate circumstances. See e.g.,
Lockheed Martin Corp. v. Admin.
Review Bd., 717 F.3d 1121, 1138 (10th
Cir. 2013) (upholding an award of
$75,000 for emotional pain and
suffering without requiring the
testimony of expert witnesses);
Menendez v. Halliburton, Inc., ARB Nos
09–002, 09–003 2013 WL 1282255, at
*11–12 (ARB Mar. 15, 2013) (upholding
award of $30,000 for emotional distress
and reputational harm without requiring
expert testimony) aff’d sub nom.
Halliburton, Inc. v. Admin. Review Bd.,
771 F.3d 254 (5th Cir. 2014). OSHA
believes that these cases adequately
serve to notify the public that emotional
distress damages may be awarded
without the testimony of expert
witnesses.
For these reasons, OSHA has made no
changes to the text of this section.

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Subpart B—Litigation
Section 1987.106 Objections to the
Findings and the Preliminary Order and
Requests for a Hearing
To be effective, objections to the
findings of the Assistant Secretary must
be in writing and must be filed with the
Chief Administrative Law Judge, U.S.
Department of Labor, within 30 days of
receipt of the findings. The date of the
postmark, facsimile transmittal, or
electronic communication transmittal is
considered the date of the filing; if the
objection is filed in person, by handdelivery or other means, the objection is
filed upon receipt. The filing of
objections also is considered a request
for a hearing before an ALJ. Although
the parties are directed to serve a copy
of their objections on the other parties
of record, as well as the OSHA official
who issued the findings and order, the
Assistant Secretary, and the U.S.
Department of Labor’s Associate
Solicitor for Fair Labor Standards, the
failure to serve copies of the objections
on the other parties of record does not
affect the ALJ’s jurisdiction to hear and
decide the merits of the case. See
Shirani v. Calvert Cliffs Nuclear Power
Plant, Inc., ARB No. 04–101, 2005 WL
2865915, at *7 (ARB Oct. 31, 2005).
The timely filing of objections stays
all provisions of the preliminary order,
except for the portion requiring
reinstatement. A respondent may file a
motion to stay the Assistant Secretary’s
preliminary order of reinstatement with
the Office of Administrative Law Judges.
However, such a motion will be granted
only based on exceptional
circumstances. The Secretary believes
that a stay of the Assistant Secretary’s
preliminary order of reinstatement
under FSMA would be appropriate only
where the respondent can establish the
necessary criteria for equitable
injunctive relief, i.e., irreparable injury,
likelihood of success on the merits, a
balancing of possible harms to the
parties, and the public interest favors a
stay. If no timely objection to the
Assistant Secretary’s findings and/or
preliminary order is filed, then the
Assistant Secretary’s findings and/or
preliminary order become the final
decision of the Secretary not subject to
judicial review.
No comments were received on this
section, and no changes were made to
it.
Section 1987.107 Hearings
This section adopts the rules of
practice and procedure for
administrative hearings before the
Office of Administrative Law Judges as
set forth in 29 CFR part 18 subpart A.

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This section provides that the hearing is
to commence expeditiously, except
upon a showing of good cause or unless
otherwise agreed to by the parties.
Hearings will be conducted de novo, on
the record. As noted in this section,
formal rules of evidence will not apply,
but rules or principles designed to
assure production of the most probative
evidence will be applied. The ALJ may
exclude evidence that is immaterial,
irrelevant, or unduly repetitious.
No comments were received on this
section, and no changes were made to
it.
Section 1987.108 Role of Federal
Agencies
The Assistant Secretary, at his or her
discretion, may participate as a party or
amicus curiae at any time in the
administrative proceedings under
FSMA. For example, the Assistant
Secretary may exercise his or her
discretion to prosecute the case in the
administrative proceeding before an
ALJ; petition for review of a decision of
an ALJ, including a decision based on
a settlement agreement between the
complainant and the respondent,
regardless of whether the Assistant
Secretary participated before the ALJ; or
participate as amicus curiae before the
ALJ or in the ARB proceeding. Although
OSHA anticipates that ordinarily the
Assistant Secretary will not participate,
the Assistant Secretary may choose to
do so in appropriate cases, such as cases
involving important or novel legal
issues, multiple employees, alleged
violations that appear egregious, or
where the interests of justice might
require participation by the Assistant
Secretary. The FDA, if interested in a
proceeding, also may participate as
amicus curiae at any time in the
proceedings.
No comments were received on this
section, though minor changes were
made as needed to clarify the provision
without changing its meaning.
Section 1987.109 Decision and Orders
of the Administrative Law Judge
This section sets forth the
requirements for the content of the
decision and order of the ALJ, and
includes the standard for finding a
violation under FSMA. Specifically, the
complainant must demonstrate (i.e.,
prove by a preponderance of the
evidence) that the protected activity was
a ‘‘contributing factor’’ in the adverse
action. See, e.g., Allen v. Admin. Review
Bd., 514 F.3d 468, 475 n.1 (5th Cir.
2008) (‘‘The term ‘demonstrates’ [under
identical burden-shifting scheme in the
Sarbanes-Oxley whistleblower
provision] means to prove by a

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preponderance of the evidence.’’). If the
employee demonstrates that the alleged
protected activity was a contributing
factor in the adverse action, the
employer, to escape liability, must
demonstrate by ‘‘clear and convincing
evidence’’ that it would have taken the
same action in the absence of the
protected activity. See 21 U.S.C.
399d(b)(2)(C).
Paragraph (c) of this section further
provides that OSHA’s determination to
dismiss the complaint without an
investigation or without a complete
investigation under section 1987.104 is
not subject to review. Thus, section
1987.109(c) clarifies that OSHA’s
determinations on whether to proceed
with an investigation under FSMA and
whether to make particular investigative
findings are discretionary decisions not
subject to review by the ALJ. The ALJ
hears cases de novo and, therefore, as a
general matter, may not remand cases to
OSHA to conduct an investigation or
make further factual findings.
Paragraph (d) notes the remedies that
the ALJ may order under FSMA and, as
discussed under section 1987.105
above, provides that interest on back
pay will be calculated using the interest
rate applicable to underpayment of
taxes under 26 U.S.C. 6621 and will be
compounded daily, and that the
respondent will be required to submit
appropriate documentation to the SSA
allocating any back pay award to the
appropriate calendar quarters.
Paragraph (e) requires that the ALJ’s
decision be served on all parties to the
proceeding, OSHA, and the U.S.
Department of Labor’s Associate
Solicitor for Fair Labor Standards.
Paragraph (e) also provides that any ALJ
decision requiring reinstatement or
lifting an order of reinstatement by the
Assistant Secretary will be effective
immediately upon receipt of the
decision by the respondent. All other
portions of the ALJ’s order will be
effective 14 days after the date of the
decision unless a timely petition for
review has been filed with the ARB. If
no timely petition for review is filed
with the ARB, the decision of the ALJ
becomes the final decision of the
Secretary and is not subject to judicial
review.
No comments were received on this
section, and no changes were made to
it.
Section 1987.110 Decision and Orders
of the Administrative Review Board
Upon the issuance of the ALJ’s
decision, the parties have 14 days
within which to petition the ARB for
review of that decision. The date of the
postmark, facsimile transmittal, or

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electronic communication transmittal is
considered the date of filing of the
petition; if the petition is filed in
person, by hand delivery or other
means, the petition is considered filed
upon receipt.
The appeal provisions in this part
provide that an appeal to the ARB is not
a matter of right but is accepted at the
discretion of the ARB. The parties
should identify in their petitions for
review the legal conclusions or orders to
which they object, or the objections may
be deemed waived. The ARB has 30
days to decide whether to grant the
petition for review. If the ARB does not
grant the petition, the decision of the
ALJ becomes the final decision of the
Secretary. If a timely petition for review
is filed with the ARB, any relief ordered
by the ALJ, except for that portion
ordering reinstatement, is inoperative
while the matter is pending before the
ARB. If the ARB accepts a petition for
review, the ALJ’s factual determinations
will be reviewed under the substantial
evidence standard.
Kalijarvi submitted several comments
related to this section of the rule.
Kalijarvi requested the removal of the
portion of the rule stating that
objections not raised in the petition for
review to the ARB may be considered
waived. Instead, Kalijarvi requested that
the provision be altered to instruct
parties to identify in their petitions for
review the legal conclusions or orders to
which they object so that the ARB may
determine whether the review presents
issues worthy of full briefing. OSHA
declines to revise the rule as Kalijarvi
has proposed. OSHA notes that the IFR
used the phrase ‘‘may’’ be deemed
waived, indicating that the parties are
not necessarily barred from
subsequently raising grounds in
addition to those included in the initial
petition. Further, OSHA’s inclusion of
this provision is not intended to limit
the circumstances in which parties can
add additional grounds for review as a
case progresses before the ARB; rather,
the rules include this provision to put
the public on notice of the possible
consequences of failing to specify the
basis of an appeal to the ARB. OSHA
recognizes that, while the ARB has held
in some instances that an exception not
specifically urged may be deemed
waived, the ARB also has found that the
rules provide for exceptions to this
general rule.
Kalijarvi also requested that the
deadline for filing a petition for review
with the ARB be extended past 14 days,
and for this section to allow explicitly
for the parties to file a motion to extend
the time for submitting a petition for
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OSHA explain how the current text of
the section furthers FSMA’s remedial
purpose. OSHA declines to extend the
time limit to petition for review because
the shorter review period is consistent
with the practices and procedures
followed in OSHA’s other
whistleblower programs. Furthermore,
as Kalijarvi acknowledges in its
comment, parties may file a motion for
extension of time to appeal an ALJ’s
decision, and the ARB has discretion to
grant such extensions. OSHA believes
that mentioning a motion for an
extension of time in these rules, where
no other motions are mentioned, could
lead the public to mistakenly conclude
that the 14 day deadline may be waived
as a matter of right, where such is not
the case.
OSHA believes that this section
furthers the remedial purpose of FSMA
by informing the public of the option of
requesting ARB review of ALJ decisions
as well as the deadlines associated with
such review.
This section also provides that, based
on exceptional circumstances, the ARB
may grant a motion to stay an ALJ’s
preliminary order of reinstatement
under FSMA, which otherwise would
be effective, while review is conducted
by the ARB. The Secretary believes that
a stay of an ALJ’s preliminary order of
reinstatement under FSMA would be
appropriate only where the respondent
can establish the necessary criteria for
equitable injunctive relief, i.e.,
irreparable injury, likelihood of success
on the merits, a balancing of possible
harms to the parties, and the public
interest favors a stay.
If the ARB concludes that the
respondent has violated the law, it will
order the respondent to take appropriate
affirmative action to abate the violation,
including reinstatement of the
complainant to that person’s former
position, together with the
compensation (including back pay and
interest), terms, conditions, and
privileges of employment, and
compensatory damages. At the request
of the complainant, the ARB will assess
against the respondent all costs and
expenses (including attorney and expert
witness fees) reasonably incurred.
Interest on back pay will be calculated
using the interest rate applicable to
underpayment of taxes under 26 U.S.C.
6621 and will be compounded daily,
and the respondent will be required to
submit appropriate documentation to
the Social Security Administration
(SSA) allocating any back pay award to
the appropriate calendar quarters. If the
ARB determines that the respondent has
not violated the law, an order will be
issued denying the complaint. If, upon

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

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Subpart C—Miscellaneous Provisions
Section 1987.111 Withdrawal of
Complaints, Findings, Objections, and
Petitions for Review; Settlement
This section provides the procedures
and time periods for withdrawal of
complaints, the withdrawal of findings
and/or preliminary orders by the
Assistant Secretary, and the withdrawal
of objections to findings and/or orders.
It permits complainants to withdraw
their complaints orally and provides
that, in such circumstances, OSHA will
confirm a complainant’s desire to
withdraw in writing. It also provides for
approval of settlements at the
investigative and adjudicative stages of
the case.
Roll commented that this provision
should state explicitly that settlements
may be conducted in a confidential
manner and outside of the
administrative proceedings. Because the
IFR did not plainly provide such
assurances, Roll expressed concern that
‘‘the lack of confidentiality will work as
a disincentive for both parties . . . [and]
will ultimately lead to fewer out-ofcourt settlements. . . .’’ Roll further
commented that this section should
include guidelines regarding when the
Secretary will approve or disapprove a
settlement agreement, as well as an
explanation regarding the settlement
options that are available to the parties.
OSHA is not making any changes to
the rule in response to this comment.
This section implements FSMA’s
statutory provision that ‘‘[a]t any time
before issuance of a final order, a
proceeding under this subsection may
be terminated on the basis of a
settlement agreement entered into by
the Secretary, the complainant, and the
person alleged to have committed the
violation.’’ 21 U.S.C. 399(b)(3)(A).
However, OSHA notes that the Secretary
has always recognized that parties may
efficiently resolve cases in negotiations
between themselves. The Secretary’s
policy is to approve privately negotiated
settlements, provided that each
settlement is reviewed by the Secretary
to ensure that the terms are fair,
adequate, reasonable, and consistent
with the purpose and intent of the
relevant whistleblower statute and the

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public interest. See, e.g., Macktal v.
Sec’y of Labor, 923 F.2d 1150, 1154 (5th
Cir. 1991) (agreeing that the Secretary
may ‘‘enter into’’ a settlement by
approving a settlement negotiated and
agreed to by the parties); see also
OSHA’s Whistleblower Investigations
Manual, pp. 6–18 to 6–21 (Apr. 21,
2015) available at http://www.whistle
blowers.gov/regulations_page.html.
OSHA believes that paragraphs (d)(1)
and (2) adequately explain that a
settlement agreement reached between
the parties will settle a pending
whistleblower case so long as the
agreement is reviewed and approved by
OSHA, an ALJ, or the ARB. The
resources listed above provide more
detailed guidance on when OSHA, an
ALJ or the ARB will approve or disprove
a settlement agreement, and OSHA thus
believes it unnecessary to add such
additional details to the regulatory text.
As to Roll’s confidentiality concerns,
OSHA, an ALJ or the ARB will not
approve an agreement that states or
implies that any of these entities, or
DOL more generally, is party to a
confidentiality agreement. Moreover, as
noted in paragraph (e) of this section,
any settlement approved by OSHA, the
ALJ, or the ARB will constitute the final
order of the Secretary, and as such, an
approved agreement is an official
government record that is subject to
applicable public disclosure rules. See,
e.g., Gonzalez v. J.C. Penny Corp., Inc.,
ARB No. 10–148, 2012 WL 4753923, at
*6 (ARB Sept. 28, 2012) (describing the
public interest supporting the
Secretary’s review of settlement
agreements); McGuire v. B.P. Prods. N.
Am., Inc., 2014–TSC–0001, slip op. at
6–11 (ALJ Jan. 17, 2014) (describing
public disclosure interests relating to
whistleblower settlements and some of
the provisions that the Secretary may
not approve in a whistleblower
settlement). Thus, for example, while
parties may negotiate the terms of a
settlement agreement in confidence and
may indicate to OSHA, an ALJ or the
ARB that they believe a settlement
contains information exempt from
disclosure under the Freedom of
Information Act (FOIA) and that they
should receive pre-disclosure
notification of a request for disclosure,
the Secretary must make his own
determination of whether the contents
of a settlement may be withheld in
response to a request from a member of
the public. See, e.g., Vannoy v. Celanese
Corp., ARB No. 09–118, 2013 WL
5872048, at *2 (ARB Sept. 27, 2013)
(describing the application of FOIA to a
whistleblower settlement).

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Section 1987.112 Judicial Review
This section describes the statutory
provisions for judicial review of
decisions of the Secretary and requires,
in cases where judicial review is sought,
the ALJ or the ARB to submit the record
of proceedings to the appropriate court
pursuant to the rules of such court. No
comments were received on this section,
and no changes were made to it.
Section 1987.113 Judicial
Enforcement
This section describes the Secretary’s
power under FSMA to obtain judicial
enforcement of orders and the terms of
settlement agreements. FSMA expressly
authorizes district courts to enforce
orders, including preliminary orders of
reinstatement, issued by the Secretary.
See 21 U.S.C. 399d(b)(6) (‘‘Whenever
any person has failed to comply with an
order issued under paragraph (3), the
Secretary may file a civil action in the
United States district court for the
district in which the violation was
found to occur, or in the United States
district court for the District of
Columbia, to enforce such order.’’).
Specifically, reinstatement orders issued
at the close of OSHA’s investigation are
immediately enforceable in district
court pursuant to 21 U.S.C. 399d(b)(6)
and (7). FSMA provides that the
Secretary shall order the person who
has committed a violation to reinstate
the complainant to his or her former
position. See 21 U.S.C. 399d(b)(3)(B)(ii).
FSMA also provides that the Secretary
shall accompany any reasonable cause
finding that a violation occurred with a
preliminary order containing the relief
prescribed by subsection (b)(3)(B),
which includes reinstatement where
appropriate, and that any preliminary
order of reinstatement shall not be
stayed upon the filing of objections. See
21 U.S.C. 399d(b)(2)(B) (‘‘The filing of
such objections shall not operate to stay
any reinstatement remedy contained in
the preliminary order.’’). Thus, under
FSMA, enforceable orders include
preliminary orders that contain the
relief of reinstatement prescribed by 21
U.S.C. 399d(b)(3)(B). This statutory
interpretation is consistent with the
Secretary’s interpretation of similar
language in the whistleblower
provisions of the Wendell H. Ford
Aviation Investment and Reform Act for
the 21st Century, 49 U.S.C. 42121, and
Section 806 of the Corporate and
Criminal Fraud Accountability Act of
2002, Title VIII of the Sarbanes-Oxley
Act of 2002, 18 U.S.C. 1514A. See Brief
for the Intervenor/Plaintiff-Appellee
Secretary of Labor, Solis v. Tenn.
Commerce Bancorp, Inc., No. 10–5602

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(6th Cir. 2010); Solis v. Tenn. Commerce
Bancorp, Inc., 713 F. Supp. 2d 701
(M.D. Tenn. 2010); but see Bechtel v.
Competitive Techs., Inc., 448 F.3d 469
(2d Cir. 2006); Welch v. Cardinal
Bankshares Corp., 454 F. Supp. 2d 552
(W.D. Va. 2006) (decision vacated,
appeal dismissed, No. 06–2295 (4th Cir.
Feb. 20, 2008)). FSMA also permits the
person on whose behalf the order was
issued to obtain judicial enforcement of
the order. See 21 U.S.C. 399d(b)(7).
No comments were received on this
section. OSHA has revised this section
slightly to more closely parallel the
provisions of the statute regarding the
proper venue for an enforcement action.
Section 1987.114 District Court
Jurisdiction of Retaliation Complaints
This section sets forth provisions that
allow a complainant to bring an original
de novo action in district court, alleging
the same allegations contained in the
complaint filed with OSHA, under
certain circumstances. FSMA permits a
complainant to file an action for de
novo review in the appropriate district
court if there has been no final decision
of the Secretary within 210 days of the
filing of the complaint, or within 90
days after receiving a written
determination. ‘‘Written determination’’
refers to the Assistant Secretary’s
written findings issued at the close of
OSHA’s investigation under section
1987.105(a). See 21 U.S.C. 399d(b)(4).
The Secretary’s final decision is
generally the decision of the ARB issued
under section 1987.110. In other words,
a complainant may file an action for de
novo review in the appropriate district
court in either of the following two
circumstances: (1) A complainant may
file a de novo action in district court
within 90 days of receiving the
Assistant Secretary’s written findings
issued under section 1987.105(a), or (2)
a complainant may file a de novo action
in district court if more than 210 days
have passed since the filing of the
complaint and the Secretary has not
issued a final decision. The plain
language of 21 U.S.C. 399d(b)(4), by
distinguishing between actions that can
be brought if the Secretary has not
issued a ‘‘final decision’’ within 210
days and actions that can be brought
within 90 days after a ‘‘written
determination,’’ supports allowing de
novo actions in district court under
either of the circumstances described
above.
However, the Secretary believes that
FSMA does not permit complainants to
initiate an action in federal court after
the Secretary issues a final decision,
even if the date of the final decision is
more than 210 days after the filing of the

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complaint or within 90 days of the
complainant’s receipt of the Assistant
Secretary’s written findings. The
purpose of the ‘‘kick-out’’ provision is to
aid the complainant in receiving a
prompt decision. That goal is not
implicated in a situation where the
complainant already has received a final
decision from the Secretary. In addition,
permitting the complainant to file a new
case in district court in such
circumstances conflicts with the parties’
right to seek judicial review of the
Secretary’s final decision in the court of
appeals. See 21 U.S.C. 399d(b)(5)(B)
(providing that an order with respect to
which review could have been obtained
in the court of appeals shall not be
subject to judicial review in any
criminal or other civil proceeding).
Under FSMA, the Assistant
Secretary’s written findings become the
final order of the Secretary, not subject
to judicial review, if no objection is filed
within 30 days. See 21 U.S.C.
399d(b)(2)(B). Thus, a complainant may
need to file timely objections to the
Assistant Secretary’s findings, as
provided for in § 1987.106, in order to
preserve the right to file an action in
district court.
This section also requires that, within
seven days after filing a complaint in
district court, a complainant must
provide a file-stamped copy of the
complaint to OSHA, the ALJ, or the
ARB, depending on where the
proceeding is pending. In all cases, a
copy of the complaint also must be
provided to the OSHA official who
issued the findings and/or preliminary
order, the Assistant Secretary, and the
U.S. Department of Labor’s Associate
Solicitor for Fair Labor Standards. This
provision is necessary to notify the
agency that the complainant has opted
to file a complaint in district court. This
provision is not a substitute for the
complainant’s compliance with the
requirements for service of process of
the district court complaint contained in
the Federal Rules of Civil Procedure and
the local rules of the district court
where the complaint is filed. This
section also incorporates the statutory
provisions which allow for a jury trial
at the request of either party in a district
court action, and which specify the
remedies and burdens of proof in a
district court action.
In response to the IFR preamble’s
statement that the purpose of the ‘‘kickout’’ provision is to ‘‘aid the
complainant in receiving a prompt
decision,’’ Kalijarvi commented that the
kick-out provision offers additional
benefits to complainants, such as an
opportunity to receive a jury
determination of damages. Indeed,

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Paragraph (a) of this section provides
that an action brought under this section
is entitled to trial by jury. OSHA
appreciates Kalijarvi’s comment, but has
left the text of the rule unchanged.
Section 1987.115 Special
Circumstances; Waiver of Rules
This section provides that in
circumstances not contemplated by
these rules or for good cause the ALJ or
the ARB may, upon application and
notice to the parties, waive any rule as
justice or the administration of FSMA
requires. No comments were received
on this section, and no changes were
made to it.
IV. Paperwork Reduction Act
This rule contains a reporting
provision (filing a retaliation complaint,
Section 1987.103) which was previously
reviewed and approved for use by the
Office of Management and Budget
(OMB) under the provisions of the
Paperwork Reduction Act of 1995 (Pub.
L. 104–13). The assigned OMB control
number is 1218–0236.
V. Administrative Procedure Act
The notice and comment rulemaking
procedures of section 553 of the
Administrative Procedure Act (APA) do
not apply ‘‘to interpretative rules,
general statements of policy, or rules of
agency organization, procedure, or
practice.’’ 5 U.S.C. 553(b)(A). This is a
rule of agency procedure, practice, and
interpretation within the meaning of
that section, since it provides
procedures for the Department’s
handling of retaliation complaints.
Therefore, publication in the Federal
Register of a notice of proposed
rulemaking and request for comments
are not required for these regulations.
Although this rule is not subject to the
notice and comment procedures of the
APA, the Assistant Secretary sought and
considered comments to enable the
agency to improve the rules by taking
into account the concerns of interested
persons.
Furthermore, because this rule is
procedural and interpretative rather
than substantive, the normal
requirement of 5 U.S.C. 553(d) that a
rule is effective 30 days after
publication in the Federal Register is
inapplicable. The Assistant Secretary
also finds good cause to provide an
immediate effective date for this rule. It
is in the public interest that the rule be
effective immediately so both parties
may know what procedures are
applicable to pending cases.

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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).

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

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APA and the requirements under the
RFA.
List of Subjects in 29 CFR Part 1987
Administrative practice and
procedure, Employment, Food safety,
Investigations, Reporting and
recordkeeping requirements,
Whistleblower.
Authority and Signature
This document was prepared under
the direction and control of David
Michaels, Ph.D., MPH, Assistant
Secretary of Labor for Occupational
Safety and Health.
Signed at Washington, DC, on April 11,
2016.
David Michaels,
Assistant Secretary of Labor for Occupational
Safety and Health.

Accordingly, for the reasons set out in
the preamble, 29 CFR part 1987 is
revised to read as follows:
PART 1987—PROCEDURES FOR
HANDLING RETALIATION
COMPLAINTS UNDER SECTION 402
OF THE FDA FOOD SAFETY
MODERNIZATION ACT
Subpart A—Complaints, Investigations,
Findings and Preliminary Orders
1987.100 Purpose and scope.
1987.101 Definitions.
1987.102 Obligations and prohibited acts.
1987.103 Filing of retaliation complaint.
1987.104 Investigation.
1987.105 Issuance of findings and
preliminary orders.
Subpart B—Litigation
1987.106 Objections to the findings and the
preliminary order and requests for a
hearing.
1987.107 Hearings.
1987.108 Role of Federal agencies.
1987.109 Decision and orders of the
administrative law judge.
1987.110 Decision and orders of the
Administrative Review Board.
Subpart C—Miscellaneous Provisions
1987.111 Withdrawal of complaints,
findings, objections, and petitions for
review; settlement.
1987.112 Judicial review.
1987.113 Judicial enforcement.
1987.114 District court jurisdiction of
retaliation complaints.
1987.115 Special circumstances; waiver of
rules.
Authority: 21 U.S.C. 399d; Secretary of
Labor’s Order No. 1–2012 (Jan. 18, 2012), 77
FR 3912 (Jan. 25, 2012); Secretary of Labor’s
Order No. 2–2012 (Oct. 19, 2012), 77 FR
69378 (Nov. 16, 2012).

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Subpart A—Complaints,
Investigations, Findings and
Preliminary Orders
§ 1987.100

Purpose and scope.

(a) This part sets forth the procedures
for, and interpretations of, section 402
of the FDA Food Safety Modernization
Act (FSMA), Public Law 111–353, 124
Stat. 3885, which was signed into law
on January 4, 2011. Section 402 of the
FDA Food Safety Modernization Act
amended the Federal Food, Drug, and
Cosmetic Act (FD&C), 21 U.S.C. 301 et
seq., by adding new section 1012. See
21 U.S.C. 399d. Section 1012 of the
FD&C provides protection for an
employee from retaliation because the
employee has engaged in protected
activity pertaining to a violation or
alleged violation of the FD&C, or any
order, rule, regulation, standard, or ban
under the FD&C.
(b) This part establishes procedures
under section 1012 of the FD&C for the
expeditious handling of retaliation
complaints filed by employees, or by
persons acting on their behalf. The rules
in this part, together with those codified
at 29 CFR part 18, set forth the
procedures under section 1012 of the
FD&C for submission of complaints,
investigations, issuance of findings and
preliminary orders, objections to
findings and orders, litigation before
administrative law judges, post-hearing
administrative review, and withdrawals
and settlements. In addition, the rules in
this part provide the Secretary’s
interpretations on certain statutory
issues.
§ 1987.101

Definitions.

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

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

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§ 1987.102
acts.

Obligations and prohibited

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

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employee (or other such person)
reasonably believed to be in violation of
any provision of the FD&C, or any order,
rule, regulation, standard, or ban under
the FD&C.
§ 1987.103

Filing of retaliation complaint.

(a) Who may file. An employee who
believes that he or she has been
retaliated against in violation of FSMA
may file, or have filed by any person on
the employee’s behalf, a complaint
alleging such retaliation.
(b) Nature of filing. No particular form
of complaint is required. A complaint
may be filed orally or in writing. Oral
complaints will be reduced to writing
by OSHA. If the complainant is unable
to file the complaint in English, OSHA
will accept the complaint in any
language.
(c) Place of filing. The complaint
should be filed with the OSHA office
responsible for enforcement activities in
the geographical area where the
employee resides or was employed, but
may be filed with any OSHA officer or
employee. Addresses and telephone
numbers for these officials are set forth
in local directories and at the following
Internet address: http://www.osha.gov.
(d) Time for filing. Within 180 days
after an alleged violation of FSMA
occurs, any employee who believes that
he or she has been retaliated against in
violation of that section may file, or
have filed by any person on the
employee’s behalf, a complaint alleging
such retaliation. The date of the
postmark, facsimile transmittal,
electronic communication transmittal,
telephone call, hand-delivery, delivery
to a third-party commercial carrier, or
in-person filing at an OSHA office will
be considered the date of filing. The
time for filing a complaint may be tolled
for reasons warranted by applicable case
law. For example, OSHA may consider
the time for filing a complaint to be
tolled if a complainant mistakenly files
a complaint with an agency other than
OSHA within 180 days after an alleged
adverse action.
§ 1987.104

Investigation.

(a) Upon receipt of a complaint in the
investigating office, OSHA will notify
the respondent of the filing of the
complaint, of the allegations contained
in the complaint, and of the substance
of the evidence supporting the
complaint. Such materials will be
redacted, if necessary, 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
§ 1987.110(e). OSHA will provide an

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

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

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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.
§ 1987.105 Issuance of findings and
preliminary orders.

(a) After considering all the relevant
information collected during the
investigation, the Assistant Secretary
will issue, within 60 days of the filing
of the complaint, written findings as to
whether or not there is reasonable cause
to believe that the respondent has
retaliated against the complainant in
violation of FSMA.
(1) If the Assistant Secretary
concludes that there is reasonable cause
to believe that a violation has occurred,
the Assistant Secretary will accompany
the findings with a preliminary order
providing relief to the complainant. The
preliminary order will require, where
appropriate: Affirmative action to abate
the violation; reinstatement of the
complainant to his or her former
position, together with the
compensation (including back pay and
interest), terms, conditions and
privileges of the complainant’s
employment; and payment of
compensatory damages, including, at
the request of the complainant, the
aggregate amount of all costs and
expenses (including attorney and expert
witness fees) reasonably incurred.
Interest on back pay will be calculated
using the interest rate applicable to
underpayment of taxes under 26 U.S.C.
6621 and will be compounded daily.
The preliminary order will also require
the respondent to submit appropriate
documentation to the Social Security
Administration allocating any back pay
award to the appropriate calendar
quarters.
(2) If the Assistant Secretary
concludes that a violation has not
occurred, the Assistant Secretary will
notify the parties of that finding.
(b) The findings and, where
appropriate, the preliminary order will
be sent by certified mail, return receipt
requested (or other means that allow
OSHA to confirm receipt), to all parties
of record (and each party’s legal counsel
if the party is represented by counsel).
The findings and, where appropriate,

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22541

the preliminary order will inform the
parties of the right to object to the
findings and/or order and to request a
hearing, and of the right of the
respondent to request an award of
attorney fees not exceeding $1,000 from
the administrative law judge (ALJ),
regardless of whether the respondent
has filed objections, if the respondent
alleges that the complaint was frivolous
or brought in bad faith. The findings
and, where appropriate, the preliminary
order also will give the address of the
Chief Administrative Law Judge, U.S.
Department of Labor. At the same time,
the Assistant Secretary will file with the
Chief Administrative Law Judge a copy
of the original complaint and a copy of
the findings and/or order.
(c) The findings and any preliminary
order will be effective 30 days after
receipt by the respondent (or the
respondent’s legal counsel if the
respondent is represented by counsel),
or on the compliance date set forth in
the preliminary order, whichever is
later, unless an objection and/or a
request for hearing has been timely filed
as provided at § 1987.106. However, the
portion of any preliminary order
requiring reinstatement will be effective
immediately upon the respondent’s
receipt of the findings and the
preliminary order, regardless of any
objections to the findings and/or the
order.
Subpart B—Litigation
§ 1987.106 Objections to the findings and
the preliminary order and requests for a
hearing.

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

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record, the OSHA official who issued
the findings and order, the Assistant
Secretary, and the Associate Solicitor,
Division of Fair Labor Standards, U.S.
Department of Labor.
(b) If a timely objection is filed, all
provisions of the preliminary order will
be stayed, except for the portion
requiring preliminary reinstatement,
which will not be automatically stayed.
The portion of the preliminary order
requiring reinstatement will be effective
immediately upon the respondent’s
receipt of the findings and preliminary
order, regardless of any objections to the
order. The respondent may file a motion
with the Office of Administrative Law
Judges for a stay of the Assistant
Secretary’s preliminary order of
reinstatement, which shall be granted
only based on exceptional
circumstances. If no timely objection is
filed with respect to either the findings
or the preliminary order, the findings
and/or the preliminary order will
become the final decision of the
Secretary, not subject to judicial review.
§ 1987.107

Hearings.

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(a) Except as provided in this part,
proceedings will be conducted in
accordance with the rules of practice
and procedure for administrative
hearings before the Office of
Administrative Law Judges, codified at
subpart A of part 18 of this title.
(b) Upon receipt of an objection and
request for hearing, the Chief
Administrative Law Judge will promptly
assign the case to an ALJ who will
notify the parties, by certified mail, of
the day, time, and place of hearing. The
hearing is to commence expeditiously,
except upon a showing of good cause or
unless otherwise agreed to by the
parties. Hearings will be conducted de
novo on the record. ALJs have broad
discretion to limit discovery in order to
expedite the hearing.
(c) If both the complainant and the
respondent object to the findings and/or
order, the objections will be
consolidated and a single hearing will
be conducted.
(d) Formal rules of evidence will not
apply, but rules or principles designed
to assure production of the most
probative evidence will be applied. The
ALJ may exclude evidence that is
immaterial, irrelevant, or unduly
repetitious.
§ 1987.108

Role of Federal agencies.

(a)(1) The complainant and the
respondent will be parties in every
proceeding and must be served with
copies of all documents in the case. At
the Assistant Secretary’s discretion, the
Assistant Secretary may participate as a

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party or as amicus curiae at any time at
any stage of the proceeding. This right
to participate includes, but is not
limited to, the right to petition for
review of a decision of an ALJ,
including a decision approving or
rejecting a settlement agreement
between the complainant and the
respondent.
(2) Parties must send copies of
documents to OSHA and to the
Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of
Labor, only upon request of OSHA, or
when OSHA is participating in the
proceeding, or when service on OSHA
and the Associate Solicitor is otherwise
required by the rules in this part.
(b) The FDA, if interested in a
proceeding, may participate as amicus
curiae at any time in the proceeding, at
the FDA’s discretion. At the request of
the FDA, copies of all documents in a
case must be sent to the FDA, whether
or not the FDA is participating in the
proceeding.
§ 1987.109 Decision and orders of the
administrative law judge.

(a) The decision of the ALJ will
contain appropriate findings,
conclusions, and an order pertaining to
the remedies provided in paragraph (d)
of this section, as appropriate. A
determination that a violation has
occurred may be made only if the
complainant has demonstrated by a
preponderance of the evidence that
protected activity was a contributing
factor in the adverse action alleged in
the complaint.
(b) If the complainant has satisfied the
burden set forth in the prior paragraph,
relief may not be ordered if the
respondent demonstrates by clear and
convincing evidence that it would have
taken the same adverse action in the
absence of any protected activity.
(c) Neither OSHA’s determination to
dismiss a complaint without completing
an investigation pursuant to
§ 1987.104(e) nor OSHA’s determination
to proceed with an investigation is
subject to review by the ALJ, and a
complaint may not be remanded for the
completion of an investigation or for
additional findings on the basis that a
determination to dismiss was made in
error. Rather, if there otherwise is
jurisdiction, the ALJ will hear the case
on the merits or dispose of the matter
without a hearing if the facts and
circumstances warrant.
(d)(1) If the ALJ concludes that the
respondent has violated the law, the ALJ
will issue an order that will require,
where appropriate: Affirmative action to
abate the violation; reinstatement of the
complainant to his or her former

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position, together with the
compensation (including back pay and
interest), terms, conditions, and
privileges of the complainant’s
employment; and payment of
compensatory damages, including, at
the request of the complainant, the
aggregate amount of all costs and
expenses (including attorney and expert
witness fees) reasonably incurred.
Interest on back pay will be calculated
using the interest rate applicable to
underpayment of taxes under 26 U.S.C.
6621 and will be compounded daily.
The order will also require the
respondent to submit appropriate
documentation to the Social Security
Administration allocating any back pay
award to the appropriate calendar
quarters.
(2) If the ALJ determines that the
respondent has not violated the law, an
order will be issued denying the
complaint. If, upon the request of the
respondent, the ALJ determines that a
complaint was frivolous or was brought
in bad faith, the ALJ may award to the
respondent a reasonable attorney fee,
not exceeding $1,000.
(e) The decision will be served upon
all parties to the proceeding, the
Assistant Secretary, and the Associate
Solicitor, Division of Fair Labor
Standards, U.S. Department of Labor.
Any ALJ’s decision requiring
reinstatement or lifting an order of
reinstatement by the Assistant Secretary
will be effective immediately upon
receipt of the decision by the
respondent. All other portions of the
ALJ’s order will be effective 14 days
after the date of the decision unless a
timely petition for review has been filed
with the Administrative Review Board
(ARB), U.S. Department of Labor. The
decision of the ALJ will become the
final order of the Secretary unless a
petition for review is timely filed with
the ARB and the ARB accepts the
petition for review.
§ 1987.110 Decision and orders of the
Administrative Review Board.

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

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postmark, facsimile transmittal, or
electronic communication transmittal
will be considered to be the date of
filing; if the petition is filed in person,
by hand delivery or other means, the
petition is considered filed upon
receipt. The petition must be served on
all parties and on the Chief
Administrative Law Judge at the time it
is filed with the ARB. Copies of the
petition for review must be served on
the Assistant Secretary and on the
Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of
Labor.
(b) If a timely petition for review is
filed pursuant to paragraph (a) of this
section, the decision of the ALJ will
become the final order of the Secretary
unless the ARB, within 30 days of the
filing of the petition, issues an order
notifying the parties that the case has
been accepted for review. If a case is
accepted for review, the decision of the
ALJ will be inoperative unless and until
the ARB issues an order adopting the
decision, except that any order of
reinstatement will be effective while
review is conducted by the ARB, unless
the ARB grants a motion by the
respondent to stay that order based on
exceptional circumstances. The ARB
will specify the terms under which any
briefs are to be filed. The ARB will
review the factual determinations of the
ALJ under the substantial evidence
standard. If no timely petition for
review is filed, or the ARB denies
review, the decision of the ALJ will
become the final order of the Secretary.
If no timely petition for review is filed,
the resulting final order is not subject to
judicial review.
(c) The final decision of the ARB will
be issued within 120 days of the
conclusion of the hearing, which will be
deemed to be 14 days after the date of
the decision of the ALJ, unless a motion
for reconsideration has been filed with
the ALJ in the interim. In such case the
conclusion of the hearing is the date the
motion for reconsideration is denied or
14 days after a new decision is issued.
The ARB’s final decision will be served
upon all parties and the Chief
Administrative Law Judge by mail. The
final decision will also be served on the
Assistant Secretary and on the Associate
Solicitor, Division of Fair Labor
Standards, U.S. Department of Labor,
even if the Assistant Secretary is not a
party.
(d) If the ARB concludes that the
respondent has violated the law, the
ARB will issue a final order providing
relief to the complainant. The final
order will require, where appropriate:
Affirmative action to abate the violation;
reinstatement of the complainant to his

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

(a) At any time prior to the filing of
objections to the Assistant Secretary’s
findings and/or preliminary order, a
complainant may withdraw his or her
complaint by notifying OSHA, orally or
in writing, of his or her withdrawal.
OSHA then will confirm in writing the
complainant’s desire to withdraw and
determine whether to approve the
withdrawal. OSHA will notify the
parties (and each party’s legal counsel if
the party is represented by counsel) of
the approval of any withdrawal. If the
complaint is withdrawn because of
settlement, the settlement must be
submitted for approval in accordance
with paragraph (d) of this section. A
complainant may not withdraw his or
her complaint after the filing of
objections to the Assistant Secretary’s
findings and/or preliminary order.
(b) The Assistant Secretary may
withdraw the findings and/or
preliminary order at any time before the
expiration of the 30-day objection
period described in § 1987.106,
provided that no objection has been
filed yet, and substitute new findings
and/or a new preliminary order. The
date of the receipt of the substituted
findings or order will begin a new 30day objection period.
(c) At any time before the Assistant
Secretary’s findings and/or order

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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
§ 1987.113.
§ 1987.112

Judicial review.

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

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complainant resided on the date of the
violation.
(b) A final order is not subject to
judicial review in any criminal or other
civil proceeding.
(c) If a timely petition for review is
filed, the record of a case, including the
record of proceedings before the ALJ,
will be transmitted by the ARB or the
ALJ, as the case may be, to the
appropriate court pursuant to the
Federal Rules of Appellate Procedure
and the local rules of such court.
§ 1987.113

Judicial enforcement.

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

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§ 1987.114 District court jurisdiction of
retaliation complaints.

(a) The complainant may bring an
action at law or equity for de novo
review in the appropriate district court
of the United States, which will have
jurisdiction over such an action without
regard to the amount in controversy,
either:
(1) Within 90 days after receiving a
written determination under
§ 1987.105(a) provided that there has
been no final decision of the Secretary;
or
(2) If there has been no final decision
of the Secretary within 210 days of the
filing of the complaint.
(b) At the request of either party, the
action shall be tried by the court with
a jury.
(c) A proceeding under paragraph (a)
of this section shall be governed by the
same legal burdens of proof specified in
§ 1987.109. The court shall have
jurisdiction to grant all relief necessary
to make the employee whole, including
injunctive relief and compensatory
damages, including:
(1) Reinstatement with the same
seniority status that the employee
would have had, but for the discharge
or discrimination;
(2) The amount of back pay, with
interest;

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(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.

will be enforced daily from 8 a.m. to 5
p.m.
ADDRESSES: To view documents
mentioned in this preamble as being
available in the docket, go to http://
www.regulations.gov, type USCG–2015–
1108 in the ‘‘SEARCH’’ box and click
‘‘SEARCH.’’ Click on Open Docket
Folder on the line associated with this
rule.
FOR FURTHER INFORMATION CONTACT: If
you have questions about this
rulemaking, call or email Lieutenant
Allan Storm, Sector Jacksonville,
Waterways Management Division, U.S.
Coast Guard; telephone 904–714–7616,
email [email protected].
SUPPLEMENTARY INFORMATION:

§ 1987.115
of rules.

I. Table of Abbreviations

Special circumstances; waiver

In special circumstances not
contemplated by the provisions of the
rules in this part, or for good cause
shown, the ALJ or the ARB on review
may, upon application, after three days
notice to all parties, waive any rule or
issue such orders that justice or the
administration of FSMA requires.
[FR Doc. 2016–08724 Filed 4–15–16; 8:45 am]
BILLING CODE 4510–26–P

DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 100
[Docket Number USCG–2015–1108]
RIN 1625–AA08

Special Local Regulation, Daytona
Beach Grand Prix of the Seas; Atlantic
Ocean, Daytona Beach, FL
Coast Guard, DHS.
Temporary final rule.

AGENCY:
ACTION:

The Coast Guard is
establishing a special local regulation on
the waters of the Atlantic Ocean east of
Daytona Beach, Florida during the
Daytona Beach Grand Prix of the Seas,
a series of high-speed personal
watercraft boat races. This action is
necessary to provide for the safety of life
on the navigable waters surrounding the
event. This special local regulation will
be enforced daily 8 a.m. to 5 p.m., from
April 22 through April 24, 2016. This
rulemaking prohibits persons and
vessels from being in the regulated area
unless authorized by the Captain of the
Port (COTP) Jacksonville or a designated
representative.
DATES: This rule is effective from April
22, 2016 through April 24, 2016 and
SUMMARY:

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CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
§ Section
U.S.C. United States Code

II. Background Information and
Regulatory History
On December 7, 2015, Powerboat P1–
USA, LLC notified the Coast Guard that
it will conduct a series of high speed
boat races in the Atlantic Ocean,
offshore from Daytona Beach, FL from
April 22 through 24, 2016. In response,
on February 4, 2016, the Coast Guard
published a notice of proposed
rulemaking (NPRM) titled Special Local
Regulation, Daytona Beach Grand Prix
of the Seas; Daytona Beach, FL (81 FR
5967). There we stated why we issued
the NPRM and invited comments on our
proposed regulatory action related to
this boat race. During the comment
period that ended March 7, 2016, we
received 3 comments.
Under good cause provisions in 5
U.S.C. 553(d)(3), we are making this rule
effective less than 30 days after its
publication in the Federal Register. The
Coast Guard finds that good cause exists
for making this rule effective starting
April 22, 2016 because the public was
notified of this event well in advance
through a proposed rule to regulate
waterway activities published on
February 4, 2016 [81 FR 5967].
Designated representatives will be on
scene to assist the public with
compliance during the nine hours per
day that the regulation will be enforced.
III. Legal Authority and Need for Rule
The Coast Guard is issuing this rule
under authority in 33 U.S.C. 1233. The
COTP Jacksonville determined that
potential hazards associated with high
speed boat races necessitate the
establishment of a special local

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