81 FR 13976 (March 2016) (MAP-21)

13976

Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations

made pursuant to § 2.105(c), and
decisions terminating a parolee early
from supervision, shall be based on the
vote of one Commissioner, except as
otherwise provided in this subpart.
■ 3. Revise § 2.94 to read as follows:
§ 2.94

Supervision reports to Commission.

A supervision report shall be
submitted by the responsible
supervision officer to the Commission
for each parolee after the completion of
24 months of continuous supervision
and annually thereafter. The
supervision officer shall submit such
additional reports and information
concerning both the parolee, and the
enforcement of the conditions of the
parolee’s supervision, as the
Commission may direct. All reports
shall be submitted according to the
format established by the Commission.
■ 4. Revise § 2.207 to read as follows:
§ 2.207 Supervision reports to
Commission.

A supervision report shall be
submitted by the responsible
supervision officer to the Commission
for each releasee after the completion of
24 months of continuous supervision
and annually thereafter. The
supervision officer shall submit such
additional reports and information
concerning both the releasee, and the
enforcement of the conditions of the
supervised release, as the Commission
may direct. All reports shall be
submitted according to the format
established by the Commission.
Dated: March 4, 2016.
J. Patricia Wilson Smoot,
Chairman, U.S. Parole Commission.
[FR Doc. 2016–05639 Filed 3–15–16; 8:45 am]
BILLING CODE 4410–31–P

DEPARTMENT OF LABOR
Occupational Safety and Health
Administration
29 CFR Part 1988
[Docket Number: OSHA–2015–0021]

mstockstill on DSK4VPTVN1PROD with RULES

RIN 1218–AC88

Procedures for Handling Retaliation
Complaints Under Section 31307 of the
Moving Ahead for Progress in the 21st
Century Act (MAP–21)
Occupational Safety and Health
Administration, Labor.
ACTION: Interim final rule; request for
comments.
AGENCY:

This document provides the
interim final text of regulations

SUMMARY:

VerDate Sep<11>2014

16:07 Mar 15, 2016

Jkt 238001

governing the employee protection
(retaliation or whistleblower) provisions
of section 31307 of the Moving Ahead
for Progress in the 21st Century Act
(MAP–21 or the Act). This rule
establishes procedures and time frames
for the handling of retaliation
complaints under MAP–21, 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. It also
sets forth the Secretary’s interpretations
of the MAP–21 whistleblower provision
on certain matters.
DATES: This interim final rule is
effective on March 16, 2016. Comments
and additional materials must be
submitted (post-marked, sent or
received) by May 16, 2016.
ADDRESSES: You may submit your
comments by using one of the following
methods:
Electronically: You may submit
comments and attachments
electronically at http://
www.regulations.gov, which is the
Federal eRulemaking Portal. Follow the
instructions online for making
electronic submissions.
Fax: If your submissions, including
attachments, do not exceed 10 pages,
you may fax them to the OSHA Docket
Office at (202) 693–1648.
Mail, hand delivery, express mail,
messenger or courier service: You may
submit your comments and attachments
to the OSHA Docket Office, Docket No.
OSHA–2015–0021, U.S. Department of
Labor, Room N–2625, 200 Constitution
Avenue NW., Washington, DC 20210.
Deliveries (hand, express mail,
messenger and courier service) are
accepted during the Department of
Labor’s and Docket Office’s normal
business hours, 8:15 a.m.–4:45 p.m.,
E.T.
Instructions: All submissions must
include the agency name and the OSHA
docket number for this rulemaking
(Docket No. OSHA– 2015–0021).
Submissions, including any personal
information you provide, are placed in
the public docket without change and
may be made available online at
http://www.regulations.gov. Therefore,
OSHA cautions you about submitting
personal information such as social
security numbers and birth dates.

PO 00000

Frm 00010

Fmt 4700

Sfmt 4700

Docket: To read or download
submissions or other material in the
docket, go to http://www.regulations.gov
or the OSHA Docket Office at the
address above. All documents in the
docket are listed in the http://
www.regulations.gov index, however,
some information (e.g., copyrighted
material) is not publicly available to
read or download through the Web site.
All submissions, including copyrighted
material, are available for inspection
and copying at the OSHA Docket Office.
FOR FURTHER INFORMATION CONTACT: Mr.
Anh-Viet Ly, 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:
I. Background
The Moving Ahead for Progress in the
21st Century Act (MAP–21 or Act),
Public Law 112–141, 126 Stat. 405, was
enacted on July 6, 2012 and, among
other things, funded surface
transportation programs at over $105
billion for fiscal years 2013 and 2014.
Section 31307 of the Act, codified at 49
U.S.C. 30171 and referred to throughout
these interim final rules as MAP–21,
prohibits motor vehicle manufacturers,
parts suppliers, and dealerships from
discharging or otherwise retaliating
against an employee because the
employee provided, caused to be
provided or is about to provide
information to the employer or the
Secretary of Transportation relating to
any motor vehicle defect,
noncompliance, or any violation or
alleged violation of any notification or
reporting requirement of Chapter 301 of
title 49 of the U.S. Code (Chapter 301);
filed, caused to be filed or is about to
file a proceeding relating to any such
defect or violation; testified, assisted or
participated (or is about to testify, assist
or participate) in such a proceeding; or
objected to, or refused to participate in,
any activity that the employee
reasonably believed to be in violation of
any provision of Chapter 301, or any
order, rule, regulation, standard or ban
under such provision. Chapter 301 is
the codification of the National Traffic
and Motor Vehicle Safety Act of 1966,

E:\FR\FM\16MRR1.SGM

16MRR1

Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations

mstockstill on DSK4VPTVN1PROD with RULES

as amended, which grants the National
Highway Traffic Safety Administration
(NHTSA) authority to issue vehicle
safety standards and to require
manufacturers to recall vehicles that
have a safety-related defect or do not
meet federal safety standards. These
interim final rules establish procedures
for the handling of whistleblower
complaints under the Act.
II. Summary of Statutory Procedures
Under MAP–21, a person who
believes that he has been discharged or
otherwise retaliated against in violation
of the Act (complainant) may file a
complaint with the Secretary of Labor
(Secretary) within 180 days of the
alleged retaliation. Upon receipt of the
complaint, the Secretary must provide
written notice to the person or persons
named in the complaint alleged to have
violated the Act (respondent) of the
filing of the complaint, the allegations
contained in the complaint, the
substance of the evidence supporting
the complaint, and the rights afforded
the respondent throughout the
investigation. The Secretary must then,
within 60 days of receipt of the
complaint, afford the respondent an
opportunity to submit a response, meet
with the investigator to present
statements from witnesses, and conduct
an investigation.
The Act provides that the Secretary
may conduct an investigation only if the
complainant has made a prima facie
showing that the protected activity was
a contributing factor in the adverse
action alleged in the complaint and the
respondent has not demonstrated,
through clear and convincing evidence,
that it would have taken the same
adverse action in the absence of that
activity. (See § 1988.104 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
complainant and 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

VerDate Sep<11>2014

16:07 Mar 15, 2016

Jkt 238001

damages to the complainant, as well as
all costs and expenses (including
attorney fees and expert witness fees)
reasonably incurred by the complainant
for, or in connection with, the bringing
of the complaint upon which the order
was issued.
The complainant and the respondent
then have 30 days after the date of
receipt of the Secretary’s notification in
which to file objections to the findings
and/or preliminary order and request a
hearing before an Administrative Law
Judge (ALJ). The filing of objections
under the Act 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 Act requires
the hearing to be conducted
‘‘expeditiously.’’ The Secretary then has
120 days after the conclusion of any
hearing in which to issue a final order,
which may provide appropriate relief or
deny the complaint. Until the
Secretary’s final order is issued, the
Secretary, the complainant, and the
respondent may enter into a settlement
agreement that terminates the
proceeding. Where the Secretary has
determined that a violation has
occurred, the Secretary, where
appropriate, will assess against the
respondent a sum equal to the total
amount of all costs and expenses,
including attorney and expert witness
fees, reasonably incurred by the
complainant for, or in connection with,
the bringing of the complaint upon
which the Secretary issued the order.
The Secretary also may award a
prevailing employer reasonable attorney
fees, not exceeding $1,000, if the
Secretary finds that the complaint is
frivolous or has been brought in bad
faith. Within 60 days of the issuance of
the final order, any person adversely
affected or aggrieved by the Secretary’s
final order may file an appeal with the
United States Court of Appeals for the
circuit in which the violation allegedly
occurred or the circuit where the
complainant resided on the date of the
violation.
The Act 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. The provision
provides that the court will have
jurisdiction over the action without
regard to the amount in controversy and
that the case will be tried before a jury
at the request of either party.

PO 00000

Frm 00011

Fmt 4700

Sfmt 4700

13977

III. Summary and Discussion of
Regulatory Provisions
The regulatory provisions in this part
have been written and organized to be
consistent with other whistleblower
regulations promulgated by OSHA to
the extent possible within the bounds of
the statutory language of the Act.
Responsibility for receiving and
investigating complaints under the Act
has been delegated to the Assistant
Secretary for Occupational Safety and
Health (Assistant Secretary) by
Secretary of Labor’s Order No. 1–2012
(Jan. 18, 2012), 77 FR 3912 (Jan. 25,
2012). Hearings on determinations by
the Assistant Secretary are conducted by
the Office of Administrative Law Judges,
and appeals from decisions by ALJs are
decided by the ARB. Secretary of
Labor’s Order No. 2–2012 (Oct. 19,
2012), 77 FR 69378 (Nov. 16, 2012).
Subpart A—Complaints, Investigations,
Findings and Preliminary Orders
Section 1988.100 Purpose and Scope
This section describes the purpose of
the regulations implementing the
whistleblower provisions of MAP–21
and provides an overview of the
procedures covered by these
regulations.
Section 1988.101 Definitions
This section includes the general
definitions of certain terms used in
section 31307 of MAP–21, 49 U.S.C.
30171, which are applicable to the Act’s
whistleblower provision. The term
‘‘dealership’’ appears only in section
30171 and does not appear in any other
provision of Chapter 301, which
consistently uses the term ‘‘dealer’’ to
mean ‘‘a person selling and distributing
new motor vehicles or motor vehicle
equipment primarily to purchasers that
in good faith purchase the vehicles or
equipment other than for resale.’’ See 49
U.S.C. 30102(a)(1). Accordingly, the
Secretary concludes that the term
‘‘dealership’’ in section 30171 refers to
any ‘‘dealer’’ as that term is defined in
section 30102(a)(1). The term defect
‘‘includes any defect in performance,
construction, a component, or material
of a motor vehicle or motor vehicle
equipment.’’ See id. at (a)(2). The term
manufacturer means ‘‘a person (A)
manufacturing or assembling motor
vehicles or motor vehicle equipment; or
(B) importing motor vehicles or motor
vehicle equipment for resale.’’ See id. at
(a)(5). The term motor vehicle means ‘‘a
vehicle driven or drawn by mechanical
power and manufactured primarily for
use on public streets, roads, and
highways, but does not include a
vehicle operated only on a rail line.’’

E:\FR\FM\16MRR1.SGM

16MRR1

13978

Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations

mstockstill on DSK4VPTVN1PROD with RULES

See id. at (a)(6). The term motor vehicle
equipment means ‘‘(A) any system, part,
or component of a motor vehicle as
originally manufactured; (B) any similar
part or component manufactured or sold
for replacement or improvement of a
system, part, or component, or as an
accessory or addition to a motor vehicle;
or (C) any device or an article or
apparel, including a motorcycle helmet
and excluding medicine or eyeglasses
prescribed by a licensed practitioner,
that (i) is not a system, part, or
component of a motor vehicle; and (ii)
is manufactured, sold, delivered, or
offered to be sold for use on public
streets, roads, and highways with the
apparent purpose of safeguarding users
of motor vehicles against risk of
accident, injury, or death.’’ See id. at
(a)(7).
Section 1988.102 Obligations and
Prohibited Acts
This section describes the activities
that are protected under the Act and the
conduct that is prohibited in response to
any protected activities. The Act
protects individuals who provide
information to the employer or to the
Secretary of Transportation relating to
any motor vehicle defect,
noncompliance, or any violation or
alleged violation of any notification or
reporting requirement of Chapter 301.
The Act also protects individuals who
file, testify, assist, or participate in
proceedings concerning motor vehicle
defects, noncompliance, or violations or
alleged violations of any notification or
reporting requirement of Chapter 301.
Finally, the Act protects individuals
who objected to, or refused to
participate in, any activity that the
employee reasonably believed to be in
violation of any provision of Chapter
301 or any order, rule, regulation,
standard, or ban under that Chapter.
More information regarding Chapter 301
and NHTSA’s regulations can be found
at www.nhtsa.gov.
Under the Act, an employee who
provides information, files a proceeding,
or objects to or refuses to participate in
any activity is protected so long as the
employee’s belief of a defect,
noncompliance or violation is
subjectively and objectively reasonable.
See, e.g., Benjamin v. CitationShares
Management. L.L.C., ARB No. 12–029,
2013 WL 6385831, at *4 (ARB Nov. 5,
2013) (noting that, as a matter of law, an
employee is protected under the
aviation whistleblower protections of 49
U.S.C. 42121 when he provides or
attempts to provide information
regarding conduct he reasonably
believes violates FAA regulations)
(citations omitted); Sylvester v. Parexel

VerDate Sep<11>2014

16:07 Mar 15, 2016

Jkt 238001

Int’l LLC, ARB No. 07–123, 2011 WL
2165854, at *11–12 (ARB May 25, 2011)
(discussing the reasonable belief
standard under analogous language in
the Sarbanes-Oxley Act whistleblower
provision, 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 objected to
violated the relevant law or regulation.
See Sylvester, 2011 WL 2165854, at
*11–12. 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
constituted an actual violation of law.
Pursuant to this standard, an employee’s
whistleblower activity is protected
where it is based on a reasonable, but
mistaken, belief that a violation of the
relevant law has occurred. Id. at *13.
Section 1988.103 Filing of Retaliation
Complaint
This section explains the
requirements for filing a retaliation
complaint under MAP–21. To be timely,
a complaint must be filed within 180
days of when the alleged violation
occurs. Under Delaware State College v.
Ricks, 449 U.S. 250, 258 (1980), an
alleged violation occurs when the
retaliatory decision has been both made
and communicated to the complainant.
In other words, the limitations period
commences once the employee is aware
or reasonably should be aware of the
employer’s decision to take an adverse
action. Equal Emp’t Opportunity
Comm’n v. United Parcel Serv., Inc., 249
F.3d 557, 561–62 (6th Cir. 2001). The
time for filing a complaint under MAP–
21 may be tolled for reasons warranted
by applicable case law. For example,
OSHA may consider the time for filing
a complaint to be tolled if a complainant
mistakenly files a complaint with an
agency other than OSHA within 180
days after an alleged adverse action.
Complaints filed under MAP–21 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
MAP–21 is not a formal document and
need not conform to the pleading

PO 00000

Frm 00012

Fmt 4700

Sfmt 4700

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 that 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.
Section 1988.104 Investigation
This section describes the procedures
that apply to the investigation of MAP–
21 complaints. Paragraph (a) of this
section outlines the procedures for
notifying the parties and the NHTSA of
the complaint and notifying the
respondent of its rights under these
regulations. Paragraph (b) describes the
procedures for the respondent to submit
its response to the complaint. Paragraph
(c) specifies that OSHA will request that
the parties provide each other with
copies of their submissions to OSHA
during the investigation and that, if a
party does not provide such copies,
OSHA will do so at a time permitting
the other party an opportunity to
respond to those submissions. Before
providing such materials, OSHA will
redact them consistent with the Privacy
Act of 1974, 5 U.S.C. 552a and other
applicable confidentiality laws.
Paragraph (d) of this section discusses
confidentiality of information provided
during investigations.
Paragraph (e) of this section sets forth
the applicable burdens of proof. MAP–
21 requires that a complainant make an
initial prima facie showing that a
protected activity was ‘‘a contributing
factor’’ in the adverse action alleged in
the complaint, i.e., that the protected
activity, alone or in combination with
other factors, affected in some way the
outcome of the employer’s decision. The
complainant will be considered to have
met the required burden if the
complaint on its face, supplemented as
appropriate through interviews of the
complainant, alleges the existence of
facts and either direct or circumstantial
evidence to meet the required showing.
The complainant’s burden may be
satisfied, for example, if he or she shows
that the adverse action took place
within a temporal proximity of the
protected activity, or at the first
opportunity available to the respondent,
giving rise to the inference that it was
a contributing factor in the adverse
action. See, e.g. Porter v. Cal. Dep’t of
Corrs., 419 F.3d 885, 895 (9th Cir. 2005)

E:\FR\FM\16MRR1.SGM

16MRR1

mstockstill on DSK4VPTVN1PROD with RULES

Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations
(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, which is the
same as that under MAP–21, 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
MAP–21 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
alleged adverse action; or (2) the
employer rebuts that showing by clear
and convincing evidence that it would
have taken the same adverse action
absent the protected activity.
Assuming that an investigation
proceeds beyond the gatekeeping phase,
the statute requires OSHA to determine
whether there is reasonable cause to
believe that protected activity was a
contributing factor in the alleged
adverse action. A contributing factor is
‘‘any factor which, alone or in
connection with other factors, tends to
affect in any way the outcome of the
decision.’’ Marano v. Dep’t of Justice, 2
F.3d 1137, 1140 (Fed. Cir. 1993)
(internal quotation marks, emphasis and
citation omitted) (discussing the
Whistleblower Protection Act, 5 U.S.C.
1221(e)(1)); see also Lockheed Martin
Corp. v. Admin. Rev. Bd., 717 F.3d
1121, 1136 (10th Cir. 2013) (discussing
Marano as applied to analogous
whistleblower provision in the
Sarbanes-Oxley Act); Araujo v. New
Jersey Transit Rail Ops., Inc., 708 F.3d
152, 158 (3d Cir. 2013) (discussing
Marano as applied to analogous
whistleblower provision in the Federal
Railroad Safety Act). 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

VerDate Sep<11>2014

16:07 Mar 15, 2016

Jkt 238001

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 Act
whistleblower provision), aff’d sub
nom. Klopfenstein v. Admin. Rev. Bd.,
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 49
U.S.C. 30171(b)(2)(B). 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 v. Navajo
Express, ARB No. 09–114, 2011 WL
2614326, at *3 (ARB June 29, 2011).
Paragraph (f) describes the procedures
OSHA will follow prior to the issuance
of findings and a preliminary order
when OSHA has reasonable cause to
believe that a violation has occurred. Its
purpose is to ensure compliance with
the Due Process Clause of the Fifth
Amendment, as interpreted by the
Supreme Court in Brock v. Roadway
Express, Inc., 481 U.S. 252 (1987)
(requiring OSHA to give a Surface
Transportation Assistance Act
respondent the opportunity to review
the substance of the evidence and
respond, prior to ordering preliminary
reinstatement).
Section 1988.105 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, compensatory damages,
attorney and expert witness fees, and
costs. The findings and, where
appropriate, preliminary order, advise
the parties of their right to file

PO 00000

Frm 00013

Fmt 4700

Sfmt 4700

13979

objections to the findings of the
Assistant Secretary and to request a
hearing. The findings and, where
appropriate, the preliminary order, also
advise the respondent of the right to
request an award of attorney fees not
exceeding $1,000 from the ALJ,
regardless of whether the respondent
has filed objections, if the respondent
alleges that the complaint was frivolous
or brought in bad faith. If no objections
are filed within 30 days of receipt of the
findings, the findings and any
preliminary order of the Assistant
Secretary become the final decision and
order of the Secretary. If objections are
timely filed, any order of preliminary
reinstatement will take effect, but the
remaining provisions of the order will
not take effect until administrative
proceedings are completed.
The remedies provided under MAP–
21 aim to make the complainant whole
by restoring the complainant to the
position that he or she would have
occupied absent the retaliation and to
counteract the chilling effect of
retaliation on protected whistleblowing
in complainant’s workplace. The back
pay and other remedies appropriate in
each case will depend on the individual
facts of the case and the complainant’s
interim earnings must be taken into
account in determining the appropriate
back pay award. However, OSHA notes
that a back pay award under MAP–21
includes not only wages but also may
include other compensation that the
complainant would have received from
the employer absent the retaliation,
such as lost bonuses, overtime, benefits,
raises and promotions when there is
evidence to determine these figures.
Thus, for example, a back pay award
under MAP–21 might include amounts
that the complainant would have earned
in commissions or amounts that the
employer would have contributed to a
401(k) plan on the complainant’s behalf
had the complainant not been
discharged in retaliation for engaging in
protected activity under MAP–21.
In ordering interest on back pay under
MAP–21, 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, against back pay. In the
Secretary’s view, 26 U.S.C. 6621
provides the appropriate rate of interest
to ensure that victims of unlawful
retaliation under MAP–21 are made
whole. The Secretary has long applied
the interest rate in 26 U.S.C. 6621 to
calculate interest on back pay in
whistleblower cases. Doyle v. Hydro

E:\FR\FM\16MRR1.SGM

16MRR1

mstockstill on DSK4VPTVN1PROD with RULES

13980

Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations

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 MAP–21 and other Department of
Labor (DOL)-administered
whistleblower statutes because it
ensures that 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 section
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 [section 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
NLRB No. 181, 1987 WL 89652, at *2
(NLRB May 28, 1987) (observing that
‘‘the short-term Federal rate [used by
section 6621] is based on average market
yields on marketable Federal obligations
and is influenced by private economic
market forces’’).
The Secretary further believes that
daily compounding of interest achieves
the make-whole purpose of a back pay
award. Daily compounding of interest
has become the norm in private lending
and was found to be the most
appropriate method of calculating
interest on back pay by the National
Labor Relations Board (NLRB). See
Jackson Hosp. Corp. v. United Steel,
Paper & Forestry, Rubber, Mfg., Energy,
Allied Indus. & Serv. Workers Int’l
Union, 356 NLRB No. 8, 2010 WL
4318371, at *3–4 (NLRB Oct. 22, 2010).
Additionally, interest on tax
underpayments under the Internal
Revenue Code, 26 U.S.C. 6621, is

VerDate Sep<11>2014

16:07 Mar 15, 2016

Jkt 238001

compounded daily pursuant to 26
U.S.C. 6622(a).
In ordering back pay, OSHA will
require the respondent to submit the
appropriate documentation to the Social
Security Administration (SSA)
allocating the back pay to the
appropriate calendar quarters. Requiring
the reporting of back pay allocation to
the SSA serves the remedial purposes of
MAP–21 by ensuring that employees
subjected to retaliation are truly made
whole. See Don Chavas, LLC d/b/a
Tortillas Don Chavas, 361 NLRB No. 10,
2014 WL 3897178, at *4–5 (NLRB Aug.
8, 2014). As the NLRB has explained,
when back pay is not properly allocated
to the years covered by the award, a
complainant may be disadvantaged in
several ways. First, improper allocation
may interfere with a complainant’s
ability to qualify for any old-age Social
Security benefit. Id. at *4 (‘‘Unless a
[complainant’s] multiyear backpay
award is allocated to the appropriate
years, she will not receive appropriate
credit for the entire period covered by
the award, and could therefore fail to
qualify for any old-age social security
benefit.’’). Second, improper allocation
may reduce the complainant’s eventual
monthly benefit. Id. ‘‘[I]f a backpay
award covering a multi-year period is
posted as income for 1 year, it may
result in SSA treating the [complainant]
as having received wages in that year in
excess of the annual contribution and
benefit base.’’ Id. Wages above this base
are not subject to Social Security taxes,
which reduces the amount paid on the
employee’s behalf. ‘‘As a result, the
[complainant’s] eventual monthly
benefit will be reduced because
participants receive a greater benefit
when they have paid more into the
system.’’ Id. Finally, ‘‘social security
benefits are calculated using a
progressive formula: Although a
participant receives more in benefits
when she pays more into the system, the
rate of return diminishes at higher
annual incomes.’’ Therefore, a
complainant may ‘‘receive a smaller
monthly benefit when a multiyear
award is posted to 1 year rather than
being allocated to the appropriate
periods, even if social security taxes
were paid on the entire amount.’’ Id.
The purpose of a make-whole remedy
such as back pay is to put the
complainant in the same position the
complainant would have been absent
the prohibited retaliation. That purpose
is not achieved when the complainant
suffers the disadvantages described
above. The Secretary believes that
requiring proper SSA allocation is

PO 00000

Frm 00014

Fmt 4700

Sfmt 4700

necessary to achieve the make-whole
purpose of a back pay award.
In appropriate circumstances, in lieu
of preliminary reinstatement, OSHA
may order that the complainant receive
the same pay and benefits that he or she
received prior to termination but not
actually return to work. Such
‘‘economic reinstatement’’ is akin to an
order of front pay and frequently is
employed in cases arising under section
105(c) of the Federal Mine Safety and
Health Act of 1977, which protects
miners from retaliation. 30 U.S.C.
815(c); see, e.g., Sec’y of Labor ex rel.
York v. BR&D Enters., Inc., 23 FMSHRC
697, 2001 WL 1806020, at *1 (ALJ June
26, 2001). Front pay has been
recognized as a possible remedy in cases
under the whistleblower statutes
enforced by OSHA in circumstances
where reinstatement would not be
appropriate. See, e.g., Brown v.
Lockheed Martin Corp., ALJ No. 2008–
SOX–00049, 2010 WL 2054426, at *55–
56 (ALJ Jan. 15, 2010) (noting that while
reinstatement is the ‘‘presumptive
remedy’’ under Sarbanes-Oxley, front
pay may be awarded as a substitute
when reinstatement is inappropriate);
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’’);
see also Moder v. Vill. of Jackson, ARB
Nos. 01–095, 02–039, 2003 WL
21499864, at *10 (ARB June 30, 2003)
(under environmental whistleblower
statutes, ‘‘front pay may be an
appropriate substitute when the parties
prove the impossibility of a productive
and amicable working relationship, or
the company no longer has a position
for which the complainant is
qualified’’); Hobby v. Georgia Power Co.,
ARB Nos. 98–166, 98–169 (ARB Feb. 9,
2001), aff’d sub nom. Hobby v. U.S.
Dep’t of Labor, No. 01–10916 (11th Cir.
Sept. 30, 2002) (unpublished) (noting
circumstances where front pay may be
available in lieu of reinstatement but
ordering reinstatement). Congress
intended that employees be
preliminarily reinstated to their
positions if OSHA finds reasonable
cause to believe that they were
discharged in violation of MAP–21.
When a violation is found, the norm is
for OSHA to order immediate
preliminary reinstatement. Neither an
employer nor an employee has a
statutory right to choose economic

E:\FR\FM\16MRR1.SGM

16MRR1

Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations
reinstatement. Rather, economic
reinstatement is designed to
accommodate situations in which
evidence establishes to OSHA’s
satisfaction that immediate
reinstatement is inadvisable for some
reason, notwithstanding the employer’s
retaliatory discharge of the employee. In
such situations, actual reinstatement
might be delayed until after the
administrative adjudication is
completed as long as the employee
continues to receive his or her pay and
benefits and is not otherwise
disadvantaged by a delay in
reinstatement. There is no statutory
basis for allowing the employer to
recover the costs of economically
reinstating an employee should the
employer ultimately prevail in the
whistleblower adjudication.

mstockstill on DSK4VPTVN1PROD with RULES

Subpart B—Litigation
Section 1988.106 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,
OSHA, 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 MAP–21 would be appropriate
only where the respondent can establish

VerDate Sep<11>2014

16:07 Mar 15, 2016

Jkt 238001

the necessary criteria for equitable
injunctive relief, i.e., irreparable injury,
likelihood of success on the merits, a
balancing of possible harms to the
parties, and the public interest favors a
stay. If no timely objection to the
Assistant Secretary’s findings and/or
preliminary order is filed, then the
Assistant Secretary’s findings and/or
preliminary order become the final
decision of the Secretary not subject to
judicial review.
Section 1988.107 Hearings
This section adopts the rules of
practice and procedure for
administrative hearings before the
Office of Administrative Law Judges, as
set forth in 29 CFR part 18 subpart A.
This section provides that the hearing is
to commence expeditiously, except
upon a showing of good cause or unless
otherwise agreed to by the parties.
Hearings will be conducted de novo, on
the record. As noted in this section,
formal rules of evidence will not apply,
but rules or principles designed to
assure production of the most probative
evidence will be applied. The ALJ may
exclude evidence that is immaterial,
irrelevant, or unduly repetitious.
Section 1988.108 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 MAP–
21. 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 NHTSA, if interested in
a proceeding, also may participate as
amicus curiae at any time in the
proceedings.
Section 1988.109 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

PO 00000

Frm 00015

Fmt 4700

Sfmt 4700

13981

includes the standard for finding a
violation under MAP–21. Specifically,
the complainant must demonstrate (i.e.
prove by a preponderance of the
evidence) that the protected activity was
a ‘‘contributing factor’’ in the adverse
action. See, e.g., Allen v. Admin. Rev.
Bd., 514 F.3d 468, 475 n.1 (5th Cir.
2008) (‘‘The term ‘demonstrates’ [under
identical burden-shifting scheme in the
Sarbanes-Oxley whistleblower
provision] means to prove by a
preponderance of the evidence.’’). If the
employee demonstrates that the alleged
protected activity was a contributing
factor in the adverse action, the
employer, to escape liability, must
demonstrate by ‘‘clear and convincing
evidence’’ that it would have taken the
same action in the absence of the
protected activity. See 49 U.S.C.
30171(b)(2)(B).
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 1988.104 is
not subject to review. Thus, section
1988.109(c) clarifies that OSHA’s
determinations on whether to proceed
with an investigation under MAP–21
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
MAP–21 and, as discussed under
section 1988.105 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

E:\FR\FM\16MRR1.SGM

16MRR1

13982

Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations

mstockstill on DSK4VPTVN1PROD with RULES

Secretary and is not subject to judicial
review.
Section 1988.110 Decision and Orders
of the Administrative Review Board
Upon the issuance of the ALJ’s
decision, the parties have 14 days
within which to petition the ARB for
review of that decision. The date of the
postmark, facsimile transmittal, or
electronic communication transmittal is
considered the date of filing of the
petition; if the petition is filed in
person, by hand delivery or other
means, the petition is considered filed
upon receipt.
The appeal provisions in this part
provide that an appeal to the ARB is not
a matter of right but is accepted at the
discretion of the ARB. The parties
should identify in their petitions for
review the legal conclusions or orders to
which they object, or the objections may
be deemed waived. The ARB has 30
days to decide whether to grant the
petition for review. If the ARB does not
grant the petition, the decision of the
ALJ becomes the final decision of the
Secretary. If a timely petition for review
is filed with the ARB, any relief ordered
by the ALJ, except for that portion
ordering reinstatement, is inoperative
while the matter is pending before the
ARB. When the ARB accepts a petition
for review, the ALJ’s factual
determinations will be reviewed under
the substantial evidence standard.
This section also provides that, based
on exceptional circumstances, the ARB
may grant a motion to stay an ALJ’s
preliminary order of reinstatement
under MAP–21, 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 MAP–21 would be
appropriate only where the respondent
can establish the necessary criteria for
equitable injunctive relief, i.e.,
irreparable injury, likelihood of success
on the merits, a balancing of possible
harms to the parties, and the public
interest favors a stay.
If the ARB concludes that the
respondent has violated the law, it will
issue a final order providing relief to the
complainant. The final order will
require, where appropriate: Affirmative
action to abate the violation;
reinstatement of the complainant to his
or her former position, together with the
compensation (including back pay and
interest), terms, conditions, and
privileges of employment; and payment
of compensatory damages, including, at
the request of the complainant, the
aggregate amount of all costs and
expenses (including attorney and expert
witness fees) reasonably incurred.

VerDate Sep<11>2014

16:07 Mar 15, 2016

Jkt 238001

Interest on back pay will be calculated
using the interest rate applicable to
underpayment of taxes pursuant to 26
U.S.C. 6621 and will be compounded
daily, and the respondent will be
required to submit appropriate
documentation to the SSA allocating
any back pay award to the appropriate
calendar quarters. If the ARB determines
that the respondent has not violated the
law, an order will be issued denying the
complaint. If, upon the request of the
respondent, the ARB determines that a
complaint was frivolous or was brought
in bad faith, the ARB may award to the
respondent a reasonable attorney fee,
not exceeding $1,000.
Subpart C—Miscellaneous Provisions
Section 1988.111 Withdrawal of
Complaints, Findings, Objections, and
Petitions for Review; Settlement
This section provides the procedures
and time periods for withdrawal of
complaints, the withdrawal of findings
and/or preliminary orders by the
Assistant Secretary, and the withdrawal
of objections to findings and/or orders.
It permits complainants to withdraw
their complaints orally, and provides
that, in such circumstances, OSHA will
confirm a complainant’s desire to
withdraw in writing. It also provides for
approval of settlements at the
investigative and adjudicative stages of
the case.
Section 1988.112

Judicial Review

This section describes the statutory
provisions for judicial review of
decisions of the Secretary and requires,
in cases where judicial review is sought,
the ARB or the ALJ to submit the record
of proceedings to the appropriate court
pursuant to the rules of such court.
Section 1988.113

Judicial Enforcement

This section describes the Secretary’s
authority under MAP–21 to obtain
judicial enforcement of orders and terms
of settlement agreements. MAP–21
expressly authorizes district courts to
enforce orders issued by the Secretary
under 49 U.S.C. 30171. Specifically, the
statute provides that ‘‘[w]henever any
person fails to comply with an order
issued under paragraph (3), the
Secretary [of Labor] may file a civil
action in the United States district court
for the district in which the violation
was found to occur to enforce such
order. In actions brought under this
paragraph, the district courts shall have
jurisdiction to grant all appropriate
relief, including injunctive relief and
compensatory damages.’’ 49 U.S.C.
30171(b)(5).

PO 00000

Frm 00016

Fmt 4700

Sfmt 4700

All orders issued by the Secretary
under 49 U.S.C. 30171 may also be
enforced by any person on whose behalf
an order was issued in district court,
under 49 U.S.C. 30171(b)(6). The
Secretary interprets these provisions to
grant the district court authority to
enforce preliminary orders of
reinstatement. Subsection (b)(3)
provides that the Secretary shall order
the person who has committed a
violation to reinstate the complainant to
his or her former position, (49 U.S.C.
30171(b)(3)(B)(ii)). Subsection (b)(2) also
instructs the Secretary to accompany
any reasonable cause finding that a
violation has occurred with a
preliminary order containing the relief
prescribed by paragraph (b)(3)(B), which
includes reinstatement, (see 49 U.S.C.
30171(b)(3)(B)). Subsection (b)(2)(A)
declares that any reinstatement remedy
contained in a preliminary order is not
stayed upon the filing of objections. 49
U.S.C. 30171(b)(2)(A) (‘‘The filing of
such objections shall not operate to stay
any reinstatement remedy contained in
the preliminary order.’’). Thus, under
the statute, enforceable orders under
paragraph (b)(3) include both
preliminary orders issued under
subsection (b)(2)(A) and final orders
issued under subsection (b)(3), both of
which may contain the relief of
reinstatement as prescribed by
subsection (b)(3)(B).
This statutory interpretation is
consistent with the Secretary’s
interpretation of similar language in the
Wendell H. Ford Aviation Investment
and Reform Act for the 21st Century, 49
U.S.C. 42121, and Section 806 of the
Corporate and Criminal Fraud
Accountability Act of 2002, Title VIII of
the Sarbanes-Oxley Act of 2002, 18
U.S.C. 1514A. See Brief for the
Intervenor/Plaintiff-Appellee Secretary
of Labor, Solis v. Tenn. Commerce
Bancorp, Inc., No. 10–5602 (6th Cir.
2010); Solis v. Tenn. Commerce
Bancorp, Inc., 713 F. Supp. 2d 701
(M.D. Tenn. 2010); but see Bechtel v.
Competitive Techs., Inc., 448 F.3d 469
(2d Cir. 2006); Welch v. Cardinal
Bankshares Corp., 454 F. Supp. 2d 552
(W.D. Va. 2006), (decision vacated,
appeal dismissed, No. 06–2295 (4th Cir.
Feb. 20, 2008)).
Section 1988.114 District Court
Jurisdiction of Retaliation Complaints
This section sets forth MAP–21’s
provisions allowing a complainant to
bring an original de novo action in
district court, alleging the same
allegations contained in the complaint
filed with OSHA, if there has been no
final decision of the Secretary within
210 days after the date of the filing of

E:\FR\FM\16MRR1.SGM

16MRR1

mstockstill on DSK4VPTVN1PROD with RULES

Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations
the complaint. See 49 U.S.C.
30171(b)(3)(E). This section also
incorporates the statutory provisions
that allow for a jury trial at the request
of either party in a district court action
and that specify the burdens of proof in
a district court action.
This section also requires that, within
seven days after filing a complaint in
district court, a complainant must
provide a file-stamped copy of the
complaint to OSHA, the ALJ, or the
ARB, depending on where the
proceeding is pending. A copy of the
district court complaint also must be
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.
Finally, the Secretary notes that
although a complainant may file an
action in district court if the Secretary
has not issued a final decision within
210 days of the filing of the complaint
with OSHA, it is the Secretary’s position
that complainants may not initiate an
action in federal court after the
Secretary issues a final decision, even if
the date of the final decision is more
than 210 days after the filing of the
complaint. Thus, for example, after the
ARB has issued a final decision denying
a whistleblower complaint, the
complainant no longer may file an
action for de novo review in federal
district court. The purpose of the ‘‘kickout’’ provision is to aid the complainant
in receiving a prompt decision. That
goal is not implicated in a situation
where the complainant already has
received a final decision from the
Secretary. In addition, permitting the
complainant to file a new case in
district court in such circumstances
could conflict with the parties’ rights to
seek judicial review of the Secretary’s
final decision in the court of appeals.
See 49 U.S.C. 30171(b)(4)(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).
Section 1988.115 Special
Circumstances; Waiver of Rules
This section provides that, in
circumstances not contemplated by

VerDate Sep<11>2014

16:07 Mar 15, 2016

Jkt 238001

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 MAP–21
requires.
IV. Paperwork Reduction Act
This rule contains a reporting
provision (filing a retaliation complaint,
section 1988.103) which was previously
reviewed as a statutory requirement of
MAP–21 and approved for use by the
Office of Management and Budget
(OMB), as part of the Information
Collection Request (ICR) assigned OMB
control number 1218–0236 under the
provisions of the Paperwork Reduction
Act of 1995 (PRA). See Public Law 104–
13, 109 Stat. 163 (1995). An ICR has
been submitted to OMB to include the
regulatory citation.
OSHA has a particular interest in
comments on the following issues:
• Whether the proposed information
collection requirements are necessary
for the proper performance of the
Agency’s functions, including whether
the information is useful;
• The accuracy of OSHA’s estimate of
the burden (time and costs) of the
information collection requirements,
including the validity of the
methodology and assumptions used;
• Enhancing the quality, utility, and
clarity of the information collected; and
• Minimizing the burden on
employees who must comply; for
example, by using automated or other
technological information collection
and transmission techniques.
In addition to having an opportunity
to file comments with the Department,
the PRA provides that an interested
party may file comments on the
information collection requirements
contained in an interim final rule
directly with OMB by mail: Office of
Information and Regulatory Affairs,
Attn: OMB Desk Officer for DOL–OSHA,
Office of Management and Budget,
Room 10235, 725 17th Street NW.,
Washington, DC 20503; by Fax: 202–
395–5806 (this is not a toll-free
number); or by email: OIRA_
[email protected]. Commenters
are encouraged, but not required, to
send a courtesy copy of any comments
to the Department. See ADDRESSES
section of the preamble. OMB will
consider all written comments that the
agency receives within thirty (30) days
of publication of this Interim Final Rule
in the Federal Register. In order to help
ensure appropriate consideration,
comments should mention OMB control
number 1218–0236. Comments
submitted in response to this rule are
public records; therefore, OSHA
cautions commenters about submitting

PO 00000

Frm 00017

Fmt 4700

Sfmt 4700

13983

personal information such as Social
Security numbers and date of birth.
To access the complete electronic
copy of the related ICR, containing the
Supporting Statement with attachments
describing the paperwork requirement
and determinations of the ICR in detail,
visit the Web page, http://www.reginfo.
gov/public/do/PRAMain, select
‘‘Department of Labor’’ under the
‘‘Currently under Review’’ to view all
DOL ICRs currently under OMB
consideration, including the ICR related
to this rulemaking.
OSHA notes that a federal agency
cannot conduct or sponsor a collection
of information unless it is approved by
OMB under the PRA and displays a
currently valid OMB control number,
and the public is not required to
respond to a collection of information
unless the collection of information
displays a currently valid OMB control
number. Also, notwithstanding any
other provision of law, no person shall
be subject to penalty for failing to
comply with a collection of information
if the collection of information does not
display a currently valid OMB control
number.
V. Administrative Procedure Act
The notice and comment rulemaking
procedures of Section 553 of the
Administrative Procedure Act (APA) do
not apply ‘‘to interpretative rules,
general statements of policy, or rules of
agency organization, procedure, or
practice.’’ 5 U.S.C. 553(b)(A). This is a
rule of agency procedure, practice, and
interpretation within the meaning of
that section. Therefore, publication in
the Federal Register of a notice of
proposed rulemaking and request for
comments are not required for this rule,
which provides the procedures for the
handling of retaliation complaints.
Although this is a procedural and
interpretive rule not subject to the
notice and comment procedures of the
APA, OSHA is providing persons
interested in this interim final rule 60
days to submit comments. A final rule
will be published after OSHA receives
and reviews the public’s comments.
Furthermore, because this rule is
procedural and interpretative rather
than substantive, the normal
requirement of 5 U.S.C. 553(d) that a
rule be effective 30 days after
publication in the Federal Register is
inapplicable. OSHA also finds good
cause to provide an immediate effective
date for this interim final rule. It is in
the public interest that the rule be
effective immediately so that parties
may know what procedures are
applicable to pending cases.

E:\FR\FM\16MRR1.SGM

16MRR1

13984

Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations

mstockstill on DSK4VPTVN1PROD with RULES

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 Executive
Order 12866, reaffirmed by Executive
Order 13563, because it is not likely to:
(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 economic impact analysis
under Section 6(a)(3)(C) of Executive
Order 12866 has been prepared. For the
same 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.
1532. In any event, this rulemaking is
procedural and interpretive in nature
and is thus not expected to have a
significant economic impact. Finally,
this rule does not have ‘‘federalism
implications.’’ The rule does not have
‘‘substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government’’ and therefore is
not subject to Executive Order 13132
(Federalism).
VII. Regulatory Flexibility Analysis
The notice and comment rulemaking
procedures of Section 553 of the APA
do not apply ‘‘to interpretative rules,
general statements of policy, or rules of
agency organization, procedure, or
practice.’’ 5 U.S.C. 553(b)(A). Rules that
are exempt from APA notice and
comment requirements are also exempt
from the Regulatory Flexibility Act
(RFA). See Small Business
Administration Office of Advocacy, A
Guide for Government Agencies: How to
Comply with the Regulatory Flexibility
Act, at 9; also found at https://www.sba.
gov/advocacy/guide-governmentagencies-how-comply-regulatoryflexibility-act. This is a rule of agency
procedure, practice, and interpretation

VerDate Sep<11>2014

16:07 Mar 15, 2016

Jkt 238001

within the meaning of 5 U.S.C. 553; and,
therefore, the rule is exempt from both
the notice and comment rulemaking
procedures of the APA and the
requirements under the RFA.
List of Subjects in 29 CFR Part 1988
Administrative practice and
procedure, Automobile dealers,
Employment, Investigations, Motor
vehicle defects, Motor vehicle
manufacturers, Part supplies, Reporting
and recordkeeping requirements,
Whistleblower.
Authority and Signature
This document was prepared under
the direction and control of David
Michaels, Ph.D., MPH, Assistant
Secretary of Labor for Occupational
Safety and Health.
Signed at Washington, DC, on February 25,
2016.
David Michaels,
Assistant Secretary of Labor for Occupational
Safety and Health.

Accordingly, for the reasons set out in
the preamble, 29 CFR part 1988 is added
to read as follows:

■

PART 1988—PROCEDURES FOR
HANDLING RETALIATION
COMPLAINTS UNDER SECTION 31307
OF THE MOVING AHEAD FOR
PROGRESS IN THE 21ST CENTURY
ACT (MAP–21)
Subpart A—Complaints, Investigations,
Findings and Preliminary Orders
Sec.
1988.100 Purpose and scope.
1988.101 Definitions.
1988.102 Obligations and prohibited acts.
1988.103 Filing of retaliation complaint.
1988.104 Investigation.
1988.105 Issuance of findings and
preliminary orders.
Subpart B—Litigation
1988.106 Objections to the findings and the
preliminary order and requests for a
hearing.
1988.107 Hearings.
1988.108 Role of Federal agencies.
1988.109 Decision and orders of the
administrative law judge.
1988.110 Decision and orders of the
Administrative Review Board.
Subpart C—Miscellaneous Provisions
1988.111 Withdrawal of complaints,
findings, objections, and petitions for
review; settlement.
1988.112 Judicial review.
1988.113 Judicial enforcement.
1988.114 District court jurisdiction of
retaliation complaints.
1988.115 Special circumstances; waiver of
rules.
Authority: 49 U.S.C. 30171; Secretary of
Labor’s Order No. 1–2012 (Jan. 18, 2012), 77

PO 00000

Frm 00018

Fmt 4700

Sfmt 4700

FR 3912 (Jan. 25, 2012); Secretary of Labor’s
Order No. 2–2012 (Oct. 19, 2012), 77 FR
69378 (Nov. 16, 2012).

Subpart A—Complaints,
Investigations, Findings and
Preliminary Orders
§ 1988.100

Purpose and scope.

(a) This part sets forth procedures for,
and interpretations of, section 31307 of
the Moving Ahead for Progress in the
21st Century Act (MAP–21), Public Law
112–141, 126 Stat. 405, 765 (July 6,
2012) (codified at 49 U.S.C. 30171).
MAP–21 provides for employee
protection from retaliation because the
employee has engaged in protected
activity pertaining to the manufacture or
sale of motor vehicles and motor vehicle
equipment.
(b) This part establishes procedures
under MAP–21 for the expeditious
handling of retaliation complaints filed
by employees, or by persons acting on
their behalf. These rules, together with
those codified at 29 CFR part 18, set
forth the procedures under MAP–21 for
submission of complaints,
investigations, issuance of findings and
preliminary orders, objections to
findings and orders, litigation before
administrative law judges (ALJs), posthearing administrative review, and
withdrawals and settlements. In
addition, these rules provide the
Secretary’s interpretations on certain
statutory issues.
§ 1988.101

Definitions.

As used in this part:
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 MAP–21.
Business days means days other than
Saturdays, Sundays, and Federal
holidays.
Complainant means the person who
filed a MAP–21 complaint or on whose
behalf a complaint was filed.
Dealer or Dealership means a person
selling and distributing new motor
vehicles or motor vehicle equipment
primarily to purchasers that in good
faith purchase the vehicles or
equipment other than for resale.
Defect includes any defect in
performance, construction, a
component, or material of a motor
vehicle or motor vehicle equipment.
Employee means an individual
presently or formerly working for, an
individual applying to work for, or an
individual whose employment could be
affected by a motor vehicle
manufacturer, dealer, part supplier, or
dealership.
Manufacturer means a person:

E:\FR\FM\16MRR1.SGM

16MRR1

Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations
(1) Manufacturing or assembling
motor vehicles or motor vehicle
equipment; or
(2) Importing motor vehicles or motor
vehicles equipment for resale.
MAP–21 means Section 31307 of the
Moving Ahead for Progress in the 21st
Century Act of 2012, Pub. L. 112–141,
126 Stat. 405, 765 (July 6, 2012)
(codified at 49 U.S.C. 30171).
Motor vehicle means a vehicle driven
or drawn by mechanical power and
manufactured primarily for use on
public streets, roads, and highways, but
does not include a vehicle operated only
on a rail line.
Motor vehicle equipment means—
(1) Any system, part, or component of
a motor vehicle as originally
manufactured;
(2) Any similar part or component
manufactured or sold for replacement or
improvement of a system, part, or
component, or as an accessory or
addition to a motor vehicle; or
(3) Any device or an article or
apparel, including a motorcycle helmet
and excluding medicine or eyeglasses
prescribed by a licensed practitioner,
that—
(i) Is not a system, part or component
of a motor vehicle; and
(ii) Is manufactured, sold, delivered,
or offered to be sold for use on public
streets, roads, and highways with the
apparent purpose of safeguarding users
of motor vehicles against risk of
accident, injury, or death.
NHTSA means the National Highway
Traffic Safety Administration of the
United States Department of
Transportation.
OSHA means the Occupational Safety
and Health Administration of the
United States Department of Labor.
Person means an individual,
partnership, company, corporation,
association (incorporated or
unincorporated), trust, estate,
cooperative organization, or other
entity.
Respondent means the person named
in the complaint who is alleged to have
violated MAP–21.
Secretary means the Secretary of
Labor.

mstockstill on DSK4VPTVN1PROD with RULES

§ 1988.102
acts.

Obligations and prohibited

(a) No motor vehicle manufacturer,
part supplier, or dealership may
discharge or otherwise retaliate against,
including, but not limited to,
intimidating, threatening, restraining,
coercing, blacklisting or disciplining, an
employee with respect to the
employee’s compensation, terms,
conditions, or privileges of employment
because the employee, or any person

VerDate Sep<11>2014

16:07 Mar 15, 2016

Jkt 238001

acting pursuant to the employee’s
request, has engaged in any of the
activities specified in paragraphs (b)(1)
through (5) of this section.
(b) An employee is protected against
retaliation (as described in paragraph (a)
of this section) by a motor vehicle
manufacturer, part supplier, or
dealership because he or she:
(1) Provided, caused to be provided,
or is about to provide (with any
knowledge of the employer) or cause to
be provided to the employer or the
Secretary of Transportation, information
relating to any motor vehicle defect,
noncompliance, or any violation or
alleged violation of any notification or
reporting requirement of Chapter 301 of
Title 49 of the United States Code;
(2) Filed, or caused to be filed, or is
about to file (with any knowledge of the
employer) or cause to be filed a
proceeding relating to any motor vehicle
defect, noncompliance, or any violation
or alleged violation of any notification
or reporting requirement of Chapter 301
of Title 49 of the United States Code;
(3) Testified or is about to testify in
such a proceeding;
(4) Assisted or participated or is about
to assist or participate in such a
proceeding; or
(5) Objected to, or refused to
participate in, any activity that the
employee reasonably believed to be in
violation of any provision of Chapter
301 of Title 49 of the United States
Code, or any order, rule, regulation,
standard, or ban under such provision.
§ 1988.103

Filing of retaliation complaint.

(a) Who may file. A person who
believes that he or she has been
discharged or otherwise retaliated
against by any person in violation of
MAP–21 may file, or have filed by any
person on his or her behalf, a complaint
alleging such retaliation.
(b) Nature of filing. No particular form
of complaint is required. A complaint
may be filed orally or in writing. Oral
complaints will be reduced to writing
by OSHA. If the complainant is unable
to file the complaint in English, OSHA
will accept the complaint in any
language.
(c) Place of filing. The complaint
should be filed with the OSHA office
responsible for enforcement activities in
the geographical area where the
complainant resides or was employed,
but may be filed with any OSHA officer
or employee. Addresses and telephone
numbers for these officials are set forth
in local directories and at the following
Internet address: http://www.osha.gov.
(d) Time for filing. Within 180 days
after an alleged violation of MAP–21
occurs, any person who believes that he

PO 00000

Frm 00019

Fmt 4700

Sfmt 4700

13985

or she has been retaliated against in
violation of the MAP–21 may file, or
have filed by any person on his or her
behalf, a complaint alleging such
retaliation. The date of the postmark,
facsimile transmittal, electronic
communication transmittal, telephone
call, hand-delivery, delivery to a thirdparty 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.
§ 1988.104

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
paragraph (e) of § 1988.110. OSHA will
provide an unredacted copy of these
same materials to the complainant (or
the complainant’s legal counsel if
complainant is represented by counsel)
and to the NHTSA.
(b) Within 20 days of receipt of the
notice of the filing of the complaint
provided under paragraph (a) of this
section, the respondent may submit to
OSHA a written statement and any
affidavits or documents substantiating
its position. Within the same 20 days,
the respondent 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

E:\FR\FM\16MRR1.SGM

16MRR1

mstockstill on DSK4VPTVN1PROD with RULES

13986

Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations

opportunity to respond to the other
party’s submissions.
(d) Investigations will be conducted
in a manner that protects the
confidentiality of any person who
provides information on a confidential
basis, other than the complainant, in
accordance with part 70 of this title.
(e)(1) A complaint will be dismissed
unless the complainant has made a
prima facie showing that a protected
activity was a contributing factor in the
adverse action alleged in the complaint.
(2) The complaint, supplemented as
appropriate by interviews of the
complainant, must allege the existence
of facts and evidence to make a prima
facie showing as follows:
(i) The employee engaged in a
protected activity;
(ii) The respondent knew or suspected
that the employee engaged in the
protected activity;
(iii) The employee suffered an adverse
action; and
(iv) The circumstances were sufficient
to raise the inference that the protected
activity was a contributing factor in the
adverse action.
(3) For purposes of determining
whether to investigate, the complainant
will be considered to have met the
required burden if the complaint on its
face, supplemented as appropriate
through interviews of the complainant,
alleges the existence of facts and either
direct or circumstantial evidence to
meet the required showing, i.e., to give
rise to an inference that the respondent
knew or suspected that the employee
engaged in protected activity and that
the protected activity was a contributing
factor in the adverse action. The burden
may be satisfied, for example, if the
complaint shows that the adverse action
took place within a temporal proximity
of the protected activity, or at the first
opportunity available to the respondent,
giving rise to the inference that it was
a contributing factor in the adverse
action. If the required showing has not
been made, the complainant (or the
complainant’s legal counsel if
complainant is represented by counsel)
will be so notified and the investigation
will not commence.
(4) Notwithstanding a finding that a
complainant has made a prima facie
showing, as required by this section,
further investigation of the complaint
will not be conducted if the respondent
demonstrates by clear and convincing
evidence that it would have taken the
same adverse action in the absence of
the complainant’s protected activity.
(5) If the respondent fails to make a
timely response or fails to satisfy the
burden set forth in the prior paragraph,
OSHA will proceed with the

VerDate Sep<11>2014

16:07 Mar 15, 2016

Jkt 238001

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 § 1988.105, if OSHA has reasonable
cause, on the basis of information
gathered under the procedures of this
part, to believe that the respondent has
violated MAP–21 and that preliminary
reinstatement is warranted, OSHA will
contact the respondent (or the
respondent’s legal counsel if respondent
is represented by counsel) to give notice
of the substance of the relevant evidence
supporting the complainant’s
allegations as developed during the
course of the investigation. This
evidence includes any witness
statements, which will be redacted to
protect the identity of confidential
informants where statements were given
in confidence; if the statements cannot
be redacted without revealing the
identity of confidential informants,
summaries of their contents will be
provided. The complainant will also
receive a copy of the materials that must
be provided to the respondent under
this paragraph. Before providing such
materials, OSHA will redact them, if
necessary, consistent with the Privacy
Act of 1974, 5 U.S.C. 552a, and other
applicable confidentiality laws. The
respondent will be given the
opportunity to submit a written
response, to meet with the investigator,
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.
§ 1988.105 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 MAP–21.
(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

PO 00000

Frm 00020

Fmt 4700

Sfmt 4700

complainant to his or her former
position, together with the
compensation (including back pay and
interest), terms, conditions and
privileges of the complainant’s
employment; and payment of
compensatory damages, including, at
the request of the complainant, the
aggregate amount of all costs and
expenses (including attorney and expert
witness fees) reasonably incurred.
Interest on back pay will be calculated
using the interest rate applicable to
underpayment of taxes under 26 U.S.C.
6621 and will be compounded daily.
The preliminary order will also require
the respondent to submit appropriate
documentation to the Social Security
Administration allocating any back pay
award to the appropriate calendar
quarters.
(2) If the Assistant Secretary
concludes that a violation has not
occurred, the Assistant Secretary will
notify the parties of that finding.
(b) The findings and, where
appropriate, the preliminary order will
be sent by certified mail, return receipt
requested (or other means that allow
OSHA to confirm receipt), to all parties
of record (and each party’s legal counsel
if the party is represented by counsel).
The findings and, where appropriate,
the preliminary order will inform the
parties of the right to object to the
findings and/or order and to request a
hearing, and of the right of the
respondent to request an award of
attorney fees not exceeding $1,000 from
the 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 § 1988.106. 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.

E:\FR\FM\16MRR1.SGM

16MRR1

Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations
Subpart B—Litigation
§ 1988.106 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 MAP–21, 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 § 1988.105. The objections, request
for a hearing, and/or request for attorney
fees must be in writing and state
whether the objections are to the
findings, the preliminary order, and/or
whether there should be an award of
attorney fees. The date of the postmark,
facsimile transmittal, or electronic
communication transmittal is
considered the date of filing; if the
objection is filed in person, by hand
delivery or other means, the objection is
filed upon receipt. Objections must be
filed with the Chief Administrative Law
Judge, U.S. Department of Labor, and
copies of the objections must be mailed
at the same time to the other parties of
record, the OSHA official who issued
the findings and order, the Assistant
Secretary, and the Associate Solicitor,
Division of Fair Labor Standards, U.S.
Department of Labor.
(b) If a timely objection is filed, all
provisions of the preliminary order will
be stayed, except for the portion
requiring preliminary reinstatement,
which will not be automatically stayed.
The portion of the preliminary order
requiring reinstatement will be effective
immediately upon the respondent’s
receipt of the findings and preliminary
order, regardless of any objections to the
order. The respondent may file a motion
with the Office of Administrative Law
Judges for a stay of the Assistant
Secretary’s preliminary order of
reinstatement, which shall be granted
only based on exceptional
circumstances. If no timely objection is
filed with respect to either the findings
or the preliminary order, the findings
and/or the preliminary order will
become the final decision of the
Secretary, not subject to judicial review.
mstockstill on DSK4VPTVN1PROD with RULES

§ 1988.107

16:07 Mar 15, 2016

§ 1988.108

Role of Federal agencies.

(a)(1) The complainant and the
respondent will be parties in every
proceeding and must be served with
copies of all documents in the case. At
the Assistant Secretary’s discretion, the
Assistant Secretary may participate as a
party or as amicus curiae at any time at
any stage of the proceeding. This right
to participate includes, but is not
limited to, the right to petition for
review of a decision of an ALJ,
including a decision approving or
rejecting a settlement agreement
between the complainant and the
respondent.
(2) Parties must send copies of
documents to OSHA and to the
Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of
Labor, only upon request of OSHA, or
when OSHA is participating in the
proceeding, or when service on OSHA
and the Associate Solicitor is otherwise
required by these rules.
(b) The NHTSA, if interested in a
proceeding, may participate as amicus
curiae at any time in the proceeding, at
NHTSA’s discretion. At the request of
NHTSA, copies of all documents in a
case must be sent to NHTSA, whether
or not it is participating in the
proceeding.
§ 1988.109 Decision and orders of the
administrative law judge.

Hearings.

(a) Except as provided in this part,
proceedings will be conducted in
accordance with the rules of practice
and procedure for administrative
hearings before the Office of
Administrative Law Judges, codified at
subpart A of part 18 of this title.

VerDate Sep<11>2014

(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.

Jkt 238001

(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

PO 00000

Frm 00021

Fmt 4700

Sfmt 4700

13987

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
§ 1988.104(e) nor OSHA’s determination
to proceed with an investigation is
subject to review by the ALJ, and a
complaint may not be remanded for the
completion of an investigation or for
additional findings on the basis that a
determination to dismiss was made in
error. Rather, if there otherwise is
jurisdiction, the ALJ will hear the case
on the merits or dispose of the matter
without a hearing if the facts and
circumstances warrant.
(d)(1) If the ALJ concludes that the
respondent has violated the law, the ALJ
will issue an order that will require,
where appropriate: Affirmative action to
abate the violation; reinstatement of the
complainant to his or her former
position, together with the
compensation (including back pay and
interest), terms, conditions, and
privileges of the complainant’s
employment; and payment of
compensatory damages, including, at
the request of the complainant, the
aggregate amount of all costs and
expenses (including attorney and expert
witness fees) reasonably incurred.
Interest on back pay will be calculated
using the interest rate applicable to
underpayment of taxes under 26 U.S.C.
6621 and will be compounded daily.
The order will also require the
respondent to submit appropriate
documentation to the Social Security
Administration allocating any back pay
award to the appropriate calendar
quarters.
(2) If the ALJ determines that the
respondent has not violated the law, an
order will be issued denying the
complaint. If, upon the request of the
respondent, the ALJ determines that a
complaint was frivolous or was brought
in bad faith, the ALJ may award to the
respondent a reasonable attorney fee,
not exceeding $1,000.
(e) The decision will be served upon
all parties to the proceeding, the
Assistant Secretary, and the Associate
Solicitor, Division of Fair Labor
Standards, U.S. Department of Labor.
Any ALJ’s decision requiring
reinstatement or lifting an order of

E:\FR\FM\16MRR1.SGM

16MRR1

13988

Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations

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.

mstockstill on DSK4VPTVN1PROD with RULES

§ 1988.110 Decision and orders of the
Administrative Review Board.

(a) Any party desiring to seek review,
including judicial review, of a decision
of the ALJ, or a respondent alleging that
the complaint was frivolous or brought
in bad faith who seeks an award of
attorney fees, must file a written
petition for review with the ARB, which
has been delegated the authority to act
for the Secretary and issue final
decisions under this part. The parties
should identify in their petitions for
review the legal conclusions or orders to
which they object, or the objections may
be deemed waived. A petition must be
filed within 14 days of the date of the
decision of the ALJ. The date of the
postmark, facsimile transmittal, or
electronic communication transmittal
will be considered to be the date of
filing; if the petition is filed in person,
by hand delivery or other means, the
petition is considered filed upon
receipt. The petition must be served on
all parties and on the Chief
Administrative Law Judge at the time it
is filed with the ARB. Copies of the
petition for review must be served on
the Assistant Secretary and on the
Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of
Labor.
(b) If a timely petition for review is
filed pursuant to paragraph (a) of this
section, the decision of the ALJ will
become the final order of the Secretary
unless the ARB, within 30 days of the
filing of the petition, issues an order
notifying the parties that the case has
been accepted for review. If a case is
accepted for review, the decision of the
ALJ will be inoperative unless and until
the ARB issues an order adopting the
decision, except that any order of
reinstatement will be effective while
review is conducted by the ARB, unless
the ARB grants a motion by the
respondent to stay that order based on
exceptional circumstances. The ARB
will specify the terms under which any
briefs are to be filed. The ARB will
review the factual determinations of the
ALJ under the substantial evidence

VerDate Sep<11>2014

16:07 Mar 15, 2016

Jkt 238001

standard. If no timely petition for
review is filed, or the ARB denies
review, the decision of the ALJ will
become the final order of the Secretary.
If no timely petition for review is filed,
the resulting final order is not subject to
judicial review.
(c) The final decision of the ARB will
be issued within 120 days of the
conclusion of the hearing, which will be
deemed to be 14 days after the decision
of the ALJ, unless a motion for
reconsideration has been filed with the
ALJ in the interim. In such case, the
conclusion of the hearing is the date the
motion for reconsideration is ruled
upon or 14 days after a new decision is
issued. The ARB’s final decision will be
served upon all parties and the Chief
Administrative Law Judge by mail. The
final decision will also be served on the
Assistant Secretary and on the Associate
Solicitor, Division of Fair Labor
Standards, U.S. Department of Labor,
even if the Assistant Secretary is not a
party.
(d) If the ARB concludes that the
respondent has violated the law, the
ARB will issue a final order providing
relief to the complainant. The final
order will require, where appropriate:
Affirmative action to abate the violation;
reinstatement of the complainant to his
or her former position, together with the
compensation (including back pay and
interest), terms, conditions, and
privileges of the complainant’s
employment; and payment of
compensatory damages, including, at
the request of the complainant, the
aggregate amount of all costs and
expenses (including attorney and expert
witness fees) reasonably incurred.
Interest on back pay will be calculated
using the interest rate applicable to
underpayment of taxes under 26 U.S.C.
6621 and will be compounded daily.
The order will also require the
respondent to submit appropriate
documentation to the Social Security
Administration allocating any back pay
award to the appropriate calendar
quarters.
(e) If the ARB determines that the
respondent has not violated the law, an
order will be issued denying the
complaint. If, upon the request of the
respondent, the ARB determines that a
complaint was frivolous or was brought
in bad faith, the ARB may award to the
respondent a reasonable attorney fee,
not exceeding $1,000.

PO 00000

Frm 00022

Fmt 4700

Sfmt 4700

Subpart C—Miscellaneous Provisions
§ 1988.111 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 § 1988.106,
provided that no objection has been
filed yet, and substitute new findings
and/or a new preliminary order. The
date of the receipt of the substituted
findings or order will begin a new 30day objection period.
(c) At any time before the Assistant
Secretary’s findings and/or order
become final, a party may withdraw
objections to the Assistant Secretary’s
findings and/or order by filing a written
withdrawal with the ALJ. If the case is
on review with the ARB, a party may
withdraw a petition for review of an
ALJ’s decision at any time before that
decision becomes final by filing a
written withdrawal with the ARB. The
ALJ or the ARB, as the case may be, will
determine whether to approve the
withdrawal of the objections or the
petition for review. If the ALJ approves
a request to withdraw objections to the
Assistant Secretary’s findings and/or
order, and there are no other pending
objections, the Assistant Secretary’s
findings and/or order will become the
final order of the Secretary. If the ARB
approves a request to withdraw a
petition for review of an ALJ decision,
and there are no other pending petitions
for review of that decision, the ALJ’s
decision will become the final order of
the Secretary. If objections or a petition
for review are withdrawn because of
settlement, the settlement must be
submitted for approval in accordance
with paragraph (d) of this section.

E:\FR\FM\16MRR1.SGM

16MRR1

Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations
(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
§ 1988.113.
§ 1988.112

Judicial review.

(a) Within 60 days after the issuance
of a final order under §§ 1988.109 and
1988.110, any person adversely affected
or aggrieved by the order may file a
petition for review of the order in the
United States Court of Appeals for the
circuit in which the violation allegedly
occurred or the circuit in which the
complainant resided on the date of the
violation.
(b) A final order is not subject to
judicial review in any criminal or other
civil proceeding.
(c) If a timely petition for review is
filed, the record of a case, including the
record of proceedings before the ALJ,
will be transmitted by the ARB or the
ALJ, as the case may be, to the
appropriate court pursuant to the
Federal Rules of Appellate Procedure
and the local rules of such court.

mstockstill on DSK4VPTVN1PROD with RULES

§ 1988.113

§ 1988.114 District court jurisdiction of
retaliation complaints.

(a) If the Secretary has not issued a
final decision with 210 days of the filing
of the complaint, and there is no
showing that there has been delay due
to the bad faith of the complainant, 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. At the request of
either party, the action shall be tried by
the court with a jury.
(b) A proceeding under paragraph (a)
of this section shall be governed by the
same legal burdens of proof specified in
§ 1988.109.
(c) Within seven days after filing a
complaint in federal court, a
complainant must file with OSHA, the
ALJ, or the ARB, depending on where
the proceeding is pending, a copy of the
file-stamped complaint. A copy of the
complaint also must be served on the
OSHA official who issued the findings
and/or preliminary order, the Assistant
Secretary, and the Associate Solicitor,
Division of Fair Labor Standards, U.S.
Department of Labor.
§ 1988.115
of rules.

Special circumstances; waiver

In special circumstances not
contemplated by the provisions of these
rules, or for good cause shown, the ALJ
or the ARB on review may, upon
application, after three-days’ notice to
all parties, waive any rule or issue such
orders that justice or the administration
of MAP–21 requires.
[FR Doc. 2016–05414 Filed 3–15–16; 8:45 am]
BILLING CODE 4510–26–P

DEPARTMENT OF THE TREASURY
Office of Foreign Assets Control

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 MAP–21, 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. 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 MAP–21, a
person on whose behalf the order was

VerDate Sep<11>2014

issued may file a civil action seeking
enforcement of the order in the
appropriate United States district court.

16:07 Mar 15, 2016

Jkt 238001

31 CFR Part 515
Cuban Assets Control Regulations
Office of Foreign Assets
Control, Treasury.
ACTION: Final rule.
AGENCY:

The Department of the
Treasury’s Office of Foreign Assets
Control (OFAC) is amending the Cuban
Assets Control Regulations to further
implement elements of the policy
announced by the President on
December 17, 2014 to engage and
empower the Cuban people. Among

SUMMARY:

PO 00000

Frm 00023

Fmt 4700

Sfmt 4700

13989

other things, these amendments further
facilitate travel to Cuba for authorized
purposes, expand the range of
authorized financial transactions, and
authorize additional business and
physical presence in Cuba. These
amendments also implement certain
technical and conforming changes.
DATES: Effective: March 16, 2016.
FOR FURTHER INFORMATION CONTACT: The
Department of the Treasury’s Office of
Foreign Assets Control: Assistant
Director for Licensing, tel.: 202–622–
2480, Assistant Director for Regulatory
Affairs, tel.: 202–622–4855, Assistant
Director for Sanctions Compliance &
Evaluation, tel.: 202–622–2490; or the
Department of the Treasury’s Office of
the Chief Counsel (Foreign Assets
Control), Office of the General Counsel,
tel.: 202–622–2410.
SUPPLEMENTARY INFORMATION:
Electronic and Facsimile Availability
This document and additional
information concerning OFAC are
available from OFAC’s Web site
(www.treasury.gov/ofac). Certain general
information pertaining to OFAC’s
sanctions programs also is available via
facsimile through a 24-hour fax-ondemand service, tel.: 202–622–0077.
Background
The Department of the Treasury
issued the Cuban Assets Control
Regulations, 31 CFR part 515 (the
‘‘Regulations’’), on July 8, 1963, under
the Trading With the Enemy Act (50
U.S.C. 4301–4341). OFAC has amended
the Regulations on numerous occasions.
Most recently, on January 16, June 15,
and September 21, 2015, and January
27, 2016, OFAC amended the
Regulations, in coordinated actions with
the Department of Commerce, to
implement certain policy measures
announced by the President on
December 17, 2014 to further engage
and empower the Cuban people. Today,
OFAC and the Department of Commerce
are taking additional coordinated
actions in support of the President’s
Cuba policy.
OFAC is making additional
amendments to the Regulations with
respect to travel and related
transactions, financial transactions,
business and physical presence, and
certain other activities, as set forth
below.
Travel and Related Transactions
Individual people-to-people
educational travel. OFAC is amending
section 515.565(b) to remove the
requirement that people-to-people
educational travel be conducted under

E:\FR\FM\16MRR1.SGM

16MRR1