29 CFR part 1989 (IFR) (87 FR 12575 TFA)

Federal Register / Vol. 87, No. 44 / Monday, March 7, 2022 / Rules and Regulations
routine matter that only affects air traffic
procedures an air navigation, it is
certified that this rule, when
promulgated, does not have a significant
economic impact on a substantial
number of small entities under the
criteria of the Regulatory Flexibility Act.

The FAA has determined that this
action qualifies for categorical exclusion
under the National Environmental
Policy Act in accordance with FAA
Order JO 1050.1F, ‘‘Environmental
Impacts: Policies and Procedures,’’
paragraph 5–6.5a. This airspace action
is not expected to cause any potentially
significant environmental impacts, and
no extraordinary circumstances exist
that warrant preparation of an
environmental assessment.
Lists of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference,
Navigation (air).
Adoption of the Amendment
In consideration of the foregoing, the
Federal Aviation Administration
amends 14 CFR part 71 as follows:
PART 71—DESIGNATION OF CLASS A,
B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND
REPORTING POINTS
1. The authority citation for part 71
continues to read as follows:

■

Authority: 49 U.S.C. 106(f), 106(g); 40103,
40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR,
1959–1963 Comp., p. 389.
[Amended]

2. The incorporation by reference in
14 CFR 71.1 of FAA Order JO 7400.11F,
Airspace Designations and Reporting
Points, dated August 10, 2021, and
effective September 15, 2021, is
amended as follows:

■

Paragraph 6005 Class E Airspace Areas
Extending Upward From 700 Feet or More
Above the Surface of the Earth.

*

*

*

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ASO GA E5

*

*

Griffin, GA [Amended]

Griffin-Spalding County Airport, GA
(Lat. 33°13′37″ N, long. 84°16′30″ W)
That airspace extending upward from 700
feet above the surface within a 8.7-mile
radius of the Griffin-Spalding County
Airport, and within 2 miles either side of a
137° bearing from the airport, extending from
the 8.7-mile radius to 10.5 miles southeast of
the airport, and within 2 miles either side of
a 317° bearing from the airport, extending
from the 8.7-mile radius to 10.5 miles
northwest of the airport.

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[FR Doc. 2022–04707 Filed 3–4–22; 8:45 am]
BILLING CODE 4910–13–P

Environmental Review

§ 71.1

Issued in College Park, Georgia, on March
1, 2022.
Andreese C. Davis,
Manager, Airspace & Procedures Team South,
Eastern Service Center, Air Traffic
Organization.

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DEPARTMENT OF LABOR
Occupational Safety and Health
Administration
29 CFR Part 1989
[Docket Number: OSHA–2020–0006]
RIN 1218–AD27

Procedures for the Handling of
Retaliation Complaints Under the
Taxpayer First Act (TFA)
Occupational Safety and Health
Administration, Labor.
ACTION: Interim final rule; request for
comments.
AGENCY:

This document provides the
interim final text of regulations
governing the anti-retaliation (employee
protection or whistleblower) provision
of the Taxpayer First Act (TFA or the
Act). This rule establishes procedures
and timeframes for the handling of
retaliation complaints under TFA,
including procedures and timeframes
for employee complaints to the
Occupational Safety and Health
Administration (OSHA), investigations
by OSHA, appeals of OSHA
determinations to an administrative law
judge (ALJ) for a hearing de novo,
hearings by ALJs, review of ALJ
decisions by the Administrative Review
Board (ARB) (acting on behalf of the
Secretary of Labor), and judicial review
of the Secretary’s final decision. It also
sets forth the Secretary’s interpretations
of the TFA anti-retaliation provision on
certain matters.
DATES:
Effective date: This interim final rule
is effective on March 7, 2022.
Comments due date: Comments and
additional materials must be submitted
(post-marked, sent or received) by May
6, 2022.
ADDRESSES: Submit comments by any of
the following methods:
Electronically: You may submit
comments and attachments
electronically at: https://
www.regulations.gov, which is the
Federal eRulemaking Portal. Follow the
instructions online for submitting
comments.
Docket: To read or download
comments or other material in the
SUMMARY:

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12575

docket, go to http://
www.regulations.gov. 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 website.
All submissions, including copyrighted
material, are available for inspection
through the OSHA Docket Office.
Contact the OSHA Docket Office at (202)
693–2350 (TTY (877) 889–5627) for
assistance in locating docket
submissions.
Instructions: All submissions must
include the agency name and the OSHA
docket number for this Federal Register
notice (OSHA–2020–0006). OSHA will
place comments and requests to speak,
including personal information, in the
public docket, which may be available
online. Therefore, OSHA cautions
interested parties about submitting
personal information such as Social
Security numbers and birthdates. For
further information on submitting
comments, see the ‘‘Public
Participation’’ heading in the section of
this notice titled SUPPLEMENTARY
INFORMATION.
Extension of comment period: Submit
requests for an extension of the
comment period on or before March 22,
2022 to the Directorate of Whistleblower
Protection Programs, Occupational
Safety and Health Administration, U.S.
Department of Labor, 200 Constitution
Avenue NW, Room N–4618,
Washington, DC 20210, or by fax to
(202) 693–2199 or by email to
[email protected].
FOR FURTHER INFORMATION CONTACT: Ms.
Meghan Smith, 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) or email:
[email protected]. This Federal
Register publication is available in
alternative formats.
SUPPLEMENTARY INFORMATION:
I. Background
The Taxpayer First Act (TFA or Act),
Public Law 116–25, 133 Stat. 981, was
enacted on July 1, 2019. Section 1405(b)
of the Act, codified at 26 U.S.C. 7623(d)
and referred to throughout these interim
final rules as the TFA ‘‘anti-retaliation,’’
‘‘employee protection,’’ or
‘‘whistleblower’’ provision, prohibits
retaliation by an employer, or any
officer, employee, contractor,
subcontractor, or agent of such
employer against an employee in the

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terms and conditions of employment in
reprisal for the employee having
engaged in protected activity. Protected
activity under TFA includes any lawful
act done by an employee to provide
information, cause information to be
provided, or otherwise assist in an
investigation regarding underpayment
of tax or conduct which the employee
reasonably believes constitutes a
violation of the internal revenue laws or
any provision of Federal law relating to
tax fraud. To be protected, the
information or assistance must be
provided to one of the persons or
entities listed in the statute, which
include the Internal Revenue Service
(IRS), the Secretary of the Treasury, the
Treasury Inspector General for Tax
Administration, the Comptroller
General of the United States, the
Department of Justice, the United States
Congress, a person with supervisory
authority over the employee, or any
other person working for the employer
who has the authority to investigate,
discover, or terminate misconduct. The
Act also protects employees from
retaliation in reprisal for any lawful act
done to testify, participate in, or
otherwise assist in any administrative or
judicial action taken by the IRS relating
to an alleged underpayment of tax or
any violation of the internal revenue
laws or any provision of Federal law
relating to tax fraud. These interim final
rules establish procedures for the
handling of retaliation complaints under
the Act.
II. Summary of Statutory Procedures
TFA incorporates the rules,
procedures, and burdens of proof set
forth in the Wendell H. Ford Aviation
Investment and Reform Act for the 21st
Century (AIR21), 49 U.S.C. 42121(b),
with some exceptions. Under TFA, a
person who believes that they have 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) and to the
complainant’s employer (which in most
cases will be the 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
conduct an investigation, within 60
days of receipt of the complaint, after
affording the respondent an opportunity

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to submit a written response and to
meet with the investigator to present
statements from witnesses.
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 § 1989.104 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, and issue a preliminary order
providing all relief necessary to make
the complainant whole, including,
where appropriate: Reinstatement with
the same seniority status that the
complainant would have had but for the
retaliation; the sum of 200 percent of the
amount of back pay and 100 percent of
all lost benefits, with interest; and
compensation for any special damages
sustained as a result of the retaliation,
including litigation costs, expert witness
fees, and reasonable attorney fees.
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 will
not stay any reinstatement order.
However, under OSHA’s regulations,
the filing of objections will stay any
other remedy in the preliminary order.
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 be conducted
‘‘expeditiously.’’ The Secretary then has
120 days after the conclusion of any
hearing 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
will order all relief necessary to make

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the complainant whole, including,
where appropriate, reinstatement with
the same seniority status that the
complainant would have had, but for
the retaliation; the sum of 200 percent
of the amount of back pay and 100
percent of all lost benefits, with interest;
and compensation for any special
damages sustained as a result of the
retaliation, including litigation costs,
expert witness fees, and reasonable
attorney fees. 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
bring an action for de novo review of a
TFA retaliation claim in the appropriate
United States district court in the event
that the Secretary has not issued a final
decision within 180 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 either party is entitled to request a
trial by jury. The Act also states that the
rights and remedies provided in the
TFA anti-retaliation provision may not
be waived by any agreement, policy
form, or condition of employment,
including by a predispute arbitration
agreement. No predispute arbitration
agreement is valid or enforceable, if the
agreement requires arbitration of a
dispute arising under the TFA antiretaliation provision. Finally, under the
Act, nothing in the TFA anti-retaliation
provision shall be deemed to diminish
the rights, privileges, or remedies of any
employee under any Federal or State
law, or under any collective bargaining
agreement.
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. 08–2020
(May 15, 2020), 85 FR 58393 (September

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Federal Register / Vol. 87, No. 44 / Monday, March 7, 2022 / Rules and Regulations
18, 2020). 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. See
Secretary of Labor’s Order 01–2020
(Feb. 21, 2020), 85 FR 13024–01 (Mar.
6, 2020) (Delegation of Authority and
Assignment of Responsibility to the
Administrative Review Board).
Subpart A—Complaints, Investigations,
Findings, and Preliminary Orders

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Section 1989.100 Purpose and Scope
This section describes the purpose of
the regulations implementing the antiretaliation provisions of TFA and
provides an overview of the procedures
covered by these regulations.
Section 1989.101 Definitions
This section includes the general
definitions of certain terms used in
§ 1405(b) of TFA, 26 U.S.C. 7623(d),
which are applicable to the Act’s antiretaliation provision. Consistent with
the approach that OSHA has taken in
implementing other whistleblower
protection provisions and with
applicable ARB case law, the interim
final rule defines ‘‘employee’’ as ‘‘an
individual presently or formerly
working for, an individual applying to
work for, or an individual whose
employment could be affected by,
another person.’’ See, e.g., 29 CFR
1979.101 (AIR21 definition of
employee); 29 CFR 1980.101(g)
(Sarbanes-Oxley Act of 2002 (SOX)
definition of employee). In OSHA’s
view, consistent with TFA’s language
protecting employees from retaliation
for providing information regarding
‘‘any conduct which the employee
reasonably believes constitutes a
violation of the internal revenue laws,’’
the definition of ‘‘employee’’ in the
interim final rule encompasses
individuals who allege that they are
employees, can show some evidence
that the respondent exercises control
over the terms and conditions of their
employment or other factors tending to
demonstrate that an employer-employee
relationship exists, and allege that they
have suffered retaliation for having
reported that their employers have
violated tax laws by failing or refusing
to make required withholdings,
deductions, and/or contributions on
their behalf. See Green v. OPCON, Inc.,
ARB Case No. 2018–0007, 2020 WL
2319031, at *3 (Apr. 9, 2020)
(explaining the ARB’s case law applying
a ‘‘right-to-control’’ test and the
common law test in Nationwide Mutual
Insurance Co. v. Darden, 503 U.S. 318,
322–23 (1992)).

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The interim final rule defines
‘‘person’’ as ‘‘an individual, partnership,
company, corporation, association
(incorporated or unincorporated), trust,
or estate,’’ based on the definition found
in the Internal Revenue Code. See 26
U.S.C. 7701(a)(1).
Section 1989.102 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
prohibits an employer, or any officer,
employee, contractor, subcontractor, or
agent of such employer from
discharging, demoting, suspending,
threatening, harassing or in any other
manner retaliating against an employee
in the terms and conditions of
employment in reprisal for the
employee having engaged in protected
activity. Protected activity under TFA
includes any lawful act by an employee
to provide information, cause
information to be provided, or otherwise
assist in an investigation regarding
underpayment of tax or conduct which
the employee reasonably believes
constitutes a violation of the internal
revenue laws or any provision of
Federal law relating to tax fraud. To be
protected, the information or assistance
must be provided to one of the persons
or entities listed in the statute, which
include the IRS, the Secretary of the
Treasury, the Treasury Inspector
General for Tax Administration, the
Comptroller General of the United
States, the Department of Justice, the
United States Congress, a person with
supervisory authority over the
employee, or any other person working
for the employer who has the authority
to investigate, discover, or terminate
misconduct. The Act also protects
employees from discharge or other
actions in reprisal for any lawful act
done to testify, participate in, or
otherwise assist in any administrative or
judicial action taken by the IRS relating
to an alleged underpayment of tax or
any violation of the internal revenue
laws or any provision of Federal law
relating to tax fraud. More information
regarding Federal tax laws and the IRS’s
regulations can be found at
www.IRS.gov.
Under the Act, an employee who
provides information, causes
information to be provided, or assists in
an investigation is protected as long as
the employee reasonably believes that
the conduct at issue violates internal
revenue laws or any provision of
Federal law relating to tax fraud. To
have a reasonable belief that there is a
violation of relevant law, the employee

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must subjectively believe that the
conduct is a violation and that belief
must be objectively reasonable. See, e.g.,
Rhinehimer v. U.S. Bancorp. Invs., Inc.,
787 F.3d 797, 811 (6th Cir. 2015)
(discussing the reasonable belief
standard under analogous language in
the SOX whistleblower provision, 18
U.S.C. 1514A) (citations omitted); Harp
v. Charter Commc’ns, Inc., 558 F.3d
722, 723 (7th Cir. 2009) (agreeing with
First, Fourth, Fifth, and Ninth Circuits
that determining reasonable belief under
the SOX whistleblower provision
requires analysis of the complainant’s
subjective belief and the objective
reasonableness of that belief); Sylvester
v. Parexel Int’l LLC, ARB No. 07–123,
2011 WL 2165854, at *11–12 (ARB May
25, 2011) (same). The requirement that
the complainant have a subjective, good
faith belief is satisfied so long as the
complainant actually believed that the
conduct at issue violated the relevant
law or regulation. See Sylvester, 2011
WL 2165854, at *11–12 (citing Harp,
558 F.3d at 723; Day v. Staples, Inc., 555
F.3d 42, 54 n.10 (1st Cir. 2009)). 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.’’ Harp, 558 F.3d at
723 (quoting Allen v. Admin. Review
Bd., 514 F.3d 468, 477 (5th Cir. 2008)).
However, the complainant need not
show the conduct constituted an actual
violation of law. Pursuant to this
standard, an employee’s whistleblower
activity is protected when it is based on
a reasonable, but mistaken, belief that a
violation of the relevant law has
occurred. See Van Asdale v. Int’l Game
Techs., 577 F.3d 989, 1001 (9th Cir.
2009); Allen, 514 F.3d at 477.
Section 1989.103 Filing of Retaliation
Complaint
This section explains the
requirements for filing a retaliation
complaint under TFA. 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. EEOC v. United Parcel Serv.,
Inc., 249 F.3d 557, 561–62 (6th Cir.
2001). The time for filing a complaint
under TFA may be tolled for reasons
warranted by applicable case law. For

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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. Xanthopoulos v. U.S.
Dep’t of Labor, 991 F.3d 823, 832 (7th
Cir. 2021) (affirming ARB’s refusal to
toll the statute of limitations under SOX
and explaining the limited
circumstances in which tolling is
appropriate for a timely filing in the
wrong forum).
Complaints filed under TFA 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.
Section 1989.104 Investigation
This section describes the procedures
that apply to the investigation of TFA
complaints. Paragraph (a) of this section
outlines the procedures for notifying the
respondent, the employer (if different
from the respondent), and the IRS of the
complaint and notifying the respondent
of the rights under these regulations.
Paragraph (b) describes the procedures
for the respondent to submit the
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 generally 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. TFA
incorporates the burdens of proof in
AIR21. Thus, in order for OSHA to
conduct an investigation, TFA 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 for OSHA to
commence an investigation if the
complaint on its face, supplemented as
appropriate through interviews of the

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complainant, alleges the existence of
facts and either direct or circumstantial
evidence to meet the required showing.
The complainant’s burden at this stage
may be satisfied, for example, if the
complainant shows that the adverse
action took place shortly after the
protected activity.
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, as
amended, (ERA) which is the same as
that under TFA, serves a ‘‘gatekeeping
function’’ intended to ‘‘stem [ ] frivolous
complaints’’). Even in cases where the
complainant successfully makes a prima
facie showing, TFA requires that 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 the complaint and
not investigate further if either: (1) The
complainant fails to make 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.’’ Wiest v. Tyco Elec. Corp., 812
F.3d 319, 330 (3d Cir. 2016) (discussing
‘‘contributing factor standard’’ under
SOX); Feldman v. Law Enforcement
Assocs. Corp., 752 F.3d 339, 348 (4th
Cir. 2014) (same); Lockheed Martin
Corp. v. Admin. Review Bd., 717 F.3d
1121, 1136 (10th Cir. 2013) (same). A
conclusion that protected activity was a
contributing factor in an adverse action
can be based on direct evidence or
circumstantial evidence ‘‘such as the
temporal proximity between the
protected activity and the adverse
action, indications of pretext such as
inconsistent application of policies and
shifting explanations, antagonism or
hostility toward protected activity, the
relation between the discipline and the
protected activity, and the presence [or
absence] of intervening events that
independently justify’’ the adverse

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action. Hess v. Union Pac. R.R. Co., 898
F.3d 852, 858 (8th Cir. 2018) (quoted
source omitted) (discussing the
contributing factor standard under the
Federal Railroad Safety Act).
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. 42121(b)(2)(B)(iv). 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 and
reinstatement is required. 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 1989.105 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 all relief
necessary to make the employee whole,
including reinstatement with the same
seniority status that the complainant
would have had, but for the retaliation;
the sum of 200 percent of the amount
of back pay and 100 percent of all lost
benefits, with interest; and
compensation for any special damages
sustained as a result of the retaliation,
including litigation costs, expert witness
fees, and reasonable attorney fees. The
findings and, where appropriate,
preliminary order, will also advise the
parties of their right to file objections to
the findings of the Assistant Secretary
and to request a hearing. The findings

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and, where appropriate, the preliminary
order, will also advise the respondent of
the right to request an award of attorney
fees not exceeding a total of $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 TFA
aim to make the complainant whole by
restoring the complainant to the
position that the complainant would
have occupied absent the retaliation and
to counteract the chilling effect of
retaliation on protected whistleblowing
in the complainant’s workplace. The
back pay, benefits, and other remedies
appropriate in each case will depend on
the individual facts of the case and the
evidence submitted, and the
complainant’s interim earnings must be
taken into account in determining the
appropriate back pay award. When there
is evidence to determine these figures,
a back pay award under TFA might
include, for example, amounts that the
complainant would have earned in
commissions, bonuses, overtime, or
raises had the complainant not been
discharged in retaliation for engaging in
protected activity under TFA. A benefits
award under TFA might include
amounts that the employer would have
contributed to a 401(k) plan, insurance
plan, profit-sharing plan, or retirement
plan on the complainant’s behalf had
the complainant not been discharged in
retaliation for engaging in protected
activity under TFA. Other damages,
including non-pecuniary damages, such
as damages for emotional distress due to
the retaliation, are also available under
TFA. See, e.g., Jones v. Southpeak
Interactive Corp. of Del., 777 F.3d 658,
670–71 (4th Cir. 2015) (holding that
emotional distress damages are available
under identical remedial provision in
SOX); Halliburton, Inc. v. Admin.
Review Bd., 771 F.3d 254, 264–66 (5th
Cir. 2014) (same). Consistent with the
rules under other whistleblower statutes
enforced by the Department of Labor, in
ordering interest on back pay under
TFA, OSHA will compute interest due
by compounding daily the Internal
Revenue Service interest rate for the
underpayment of taxes, which under 26
U.S.C. 6621(a)(2) is the Federal short-

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term rate plus three percentage points,
against back pay. See, e.g., 29 CFR
1980.105(a) (SOX); 29 CFR 1982.105(a)
(Federal Railroad Safety Act (FRSA)); 29
CFR 1988.105(a) (Moving Ahead for
Progress in the 21st Century Act (MAP–
21)).
Consistent with the rules governing
other Department of Labor-enforced
whistleblower protection statutes,
where appropriate, 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 periods.
See, e.g., 29 CFR 1980.105(a) (SOX); 29
CFR 1982.105(a) (FRSA); 29 CFR
1988.105(a) (MAP–21)).
The statute permits OSHA to
preliminarily reinstate employees to
their positions if OSHA finds reasonable
cause to believe that they were
discharged in violation of TFA. See 49
U.S.C. 42121(b)(2)(A). When a violation
is found, the norm is for OSHA to order
immediate preliminary reinstatement. In
appropriate circumstances, in lieu of
preliminary reinstatement, OSHA may
order that the complainant receive the
same pay and benefits that the
complainant received prior to
termination but not actually return to
work. Such ‘‘economic reinstatement’’ is
akin to an order of front pay and is
sometimes employed in cases arising
under § 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,
MSHA v. North Fork Coal Corp., 33
FMSHRC 589, 2011 WL 1455831, at *4
(FMSHRC Mar. 25, 2011) (explaining
economic reinstatement in lieu of
temporary reinstatement in the context
of § 105(c)). Front pay has been
recognized as an appropriate remedy in
cases under the whistleblower statutes
enforced by OSHA in circumstances
where reinstatement would not be
appropriate. See, e.g., Deltek, Inc. v.
Dep’t of Labor, Admin. Rev Bd., 649
Fed. App’x. 320, 333 (4th Cir. 2016)
(affirming award of front pay in SOX
case due to ‘‘pronounced animosity
between the parties;’’ explaining that
‘‘front pay ‘is designed to place the
complainant in the identical financial
position’ that she would have occupied
had she remained employed or been
reinstated.’’); Continental Airlines, Inc.
v. Admin. Review Bd., 638 Fed. App’x.
283, 289–90 at *4 (5th Cir. 2016)
(affirming front pay award under AIR21,
and explaining that ‘‘front-pay is
available when reinstatement is not
possible’’), aff’g Luder v. Cont’l Airlines,
Inc., ARB No. 10–026, 2012 WL 376755,
at *11 (ARB Jan. 31, 2012); see also

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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 SOX
whistleblower provision, front pay may
be awarded as a substitute when
reinstatement is inappropriate), aff’d
Lockheed Martin Corp. v. Admin.
Review Bd., 717 F.3d 1121, 1138 (10th
Cir. 2013) (noting availability of all
relief necessary to make the employee
whole in SOX case but remanding for
DOL to quantify remedies); Indiana
Michigan Power Co. v. U.S. Dep’t of
Labor, 278 Fed. Appx. 597, 606 (6th Cir.
2008) (affirming front pay award under
ERA). Neither an employer nor an
employee has a statutory right to choose
economic reinstatement. Rather,
economic reinstatement is designed to
accommodate situations in which
evidence establishes to OSHA’s
satisfaction that immediate
reinstatement is inadvisable for some
reason, notwithstanding the employer’s
retaliatory discharge of the employee.
Subpart B—Litigation
Section 1989.106 Objections to the
Findings and the Preliminary Order and
Requests for a Hearing
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, in accordance
with 29 CFR part 18, as applicable,
within 30 days of the receipt of the
findings. The date of the postmark,
facsimile transmittal, or electronic
transmittal is considered the date of the
filing; if the objection is filed in person,
by hand-delivery 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 on the
OSHA official who issued the findings
and order, the Assistant Secretary, and
the U.S. Department of Labor’s
Associate Solicitor for Fair Labor
Standards, the failure to serve copies of
the objections on the other parties of
record does not affect the ALJ’s
jurisdiction to hear and decide the
merits of the case. See Shirani v. Calvert
Cliffs Nuclear Power Plant, Inc., ARB
No. 04–101, 2005 WL 2865915, at *7
(ARB Oct. 31, 2005). OSHA and the
Associate Solicitor for Fair Labor
Standards may specify the means,
including electronic means, to serve
them with copies of objections to
OSHA’s findings.

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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 TFA 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 that 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.

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Section 1989.107 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 1989.108 Role of Federal
Agencies
The Assistant Secretary may
participate as a party or amicus curiae
at any time in the administrative
proceedings under TFA. For example,
the Assistant Secretary may exercise
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 the ARB. 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

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violations that appear egregious, or
where the interests of justice might
require participation by the Assistant
Secretary. The IRS, if interested in a
proceeding, also may participate as
amicus curiae at any time in the
proceedings.
Section 1989.109 Decisions and
Orders of the Administrative Law Judge
This section sets forth the
requirements for the content of the
decisions and orders of the ALJ, and
includes the standard for finding a
violation under TFA. Specifically,
because TFA incorporates the burdens
of proof in AIR21, 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 49
U.S.C. 42121(b)(2)(B)(iii); see, e.g.,
Allen, 514 F.3d at 475 n.1 (‘‘The term
‘demonstrates’ [under identical burdenshifting scheme in the SOX
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, then the employer 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.
42121(b)(2)(B)(iv).
Paragraph (c) of this section further
provides that OSHA’s determination to
dismiss the complaint without an
investigation or without a complete
investigation under § 1989.104 is not
subject to review. Thus, § 1989.109(c)
clarifies that OSHA’s determinations on
whether to proceed with an
investigation under TFA 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 TFA and, as discussed
under § 1989.105 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(a)(2) 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
periods. 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.
OSHA and the Associate Solicitor for

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Fair Labor Standards may specify the
means, including electronic means, for
service of the ALJ’s decision on them.
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 30 days after the date of the
decision unless a timely petition for
review has been filed with the ARB. If
a timely petition for review is not filed
with the ARB, the decision of the ALJ
becomes the final decision of the
Secretary and is not subject to judicial
review.
Section 1989.110 Decisions and
Orders of the Administrative Review
Board
Upon the issuance of the ALJ’s
decision, the parties have 30 days
within which to petition the ARB for
review of that decision. The date of the
postmark, facsimile transmittal, or
electronic 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
only 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 TFA (which otherwise would be
effective immediately), while the ARB
reviews the order. The Secretary
believes that a stay of an ALJ’s
preliminary order of reinstatement
under TFA 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

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parties, and that the public interest
favors a stay.
If the ARB concludes that the
respondent has violated the law, it will
issue an order providing all relief
necessary to make the complainant
whole. The order will require, where
appropriate: Reinstatement with the
same seniority status that the
complainant would have had, but for
the retaliation; the sum of 200 percent
of the amount of back pay and 100
percent of all lost benefits, with interest;
and compensation for any special
damages sustained as a result of the
retaliation, including litigation costs,
expert witness fees, and reasonable
attorney fees. Interest on back pay will
be calculated using the interest rate
applicable to underpayment of taxes
pursuant to 26 U.S.C. 6621(a)(2) 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 periods. 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
a total of $1,000. The decision of the
ARB is subject to discretionary review
by the Secretary of Labor. See Secretary
of Labor’s Order, 01–2020 (Feb. 21,
2020), 85 FR 13024–01 (Mar. 6, 2020).
As provided in that Secretary’s Order,
a party may petition the ARB to refer a
decision to the Secretary for further
review, after which the Secretary may
accept review, decline review, or take
no action. If no such petition is filed,
the ARB’s decision shall become the
final action of the Department 28
calendar days after the date on which
the decision was issued. If such a
petition is filed and the ARB declines to
refer the case to the Secretary, the ARB’s
decision shall become final 28 calendar
days after the date on which the petition
for review was filed. If the ARB refers
a decision to the Secretary for further
review, and the Secretary takes no
action in response to the ARB’s referral,
or declines to accept the case for review,
the ARB’s decision shall become final
either 28 calendar days from the date of
the referral, or on the date on which the
Secretary declines review, whichever
comes first.
In the alternative, under the
Secretary’s Order, at any point during
the first 28 calendar days after the date
on which an ARB decision was issued,
the Secretary may direct the ARB to
refer the decision to the Secretary for

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review. If the Secretary directs the ARB
to refer a case to the Secretary, or
notifies the parties that the case has
been accepted for review, the ARB’s
decision shall not become the final
action of the Department and shall have
no legal force or effect, unless and until
the Secretary adopts the ARB’s decision.
Under the Secretary’s Order, any final
decision made by the Secretary shall be
made solely based on the administrative
record, the petition and briefs filed with
the ARB, and any amicus briefs
permitted by the Secretary. The decision
shall be in writing and shall be
transmitted to the ARB, who will
publish the decision and transmit it to
the parties to the case. The Secretary’s
decision shall constitute final action by
the Department and shall serve as
binding precedent in all Department
proceedings involving the same issue or
issues.
Subpart C—Miscellaneous Provisions
Section 1989.111 Withdrawal of
Complaints, Findings, Objections, and
Petitions for Review; Settlement
This section provides the procedures
and time periods for withdrawal of
complaints, withdrawal of findings and/
or preliminary orders by the Assistant
Secretary, and 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
adjudicatory stages of the case.
Section 1989.112

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 1989.113

Judicial Enforcement

This section describes the ability of
the Secretary, the complainant, and the
respondent under TFA to obtain judicial
enforcement of orders and terms of
settlement agreements. Through the
incorporation of the rules and
procedures in AIR21, TFA authorizes
district courts to enforce orders issued
by the Secretary under the provisions of
49 U.S.C. 42121(b). Specifically, 49
U.S.C. 42121(b)(5) provides that
‘‘[w]henever any person has failed 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

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12581

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. 42121(b)(5). Similarly, 49 U.S.C.
42121(b)(6), provides that a person on
whose behalf an order was issued ‘‘may
commence a civil action against the
person to whom such order was issued
to required compliance with such
order’’ in the appropriate United States
district court, which will have
jurisdiction without regard to the
amount in controversy or the
citizenship of the parties, to enforce
such order. The Secretary views these
provisions as permitting district courts
to enforce both final orders of the
Secretary and preliminary orders of
reinstatement for the same reasons that
the Secretary has expressed with regard
to SOX, which incorporates the rules
and procedures of AIR21 using identical
language to that in TFA. See Procedures
for the Handling of Retaliation
Complaints Under § 806 of the
Sarbanes-Oxley Act of 2002, as
Amended, Final Rule, 80 FR 11865–02,
11,877 (Mar. 5, 2015) (discussing
district court enforcement of
preliminary reinstatement orders under
SOX); see also 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 1989.114 District Court
Jurisdiction of Retaliation Complaints
This section sets forth TFA’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
180 days after the date of the filing of
the complaint. See 26 U.S.C.
7623(d)(2)(A)(ii). 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. 26 U.S.C.
7623(d)(2)(B)(iii), (v).
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

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ARB, depending on where the
proceeding is pending. If the ARB has
issued a decision that has not yet
become final under Secretary of Labor’s
Order 01–2020, the case is regarded as
pending before the ARB for purposes of
this section and a copy of any district
court complaint should be sent to the
ARB. 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, it should be noted that
although a complainant may file an
action in district court if the Secretary
has not issued a final decision within
180 days of the filing of the complaint
with OSHA, it is the Department of
Labor’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 180 days after the
filing of the complaint. Thus, for
example, after the ARB has issued a
decision that has become final denying
a whistleblower complaint, the
complainant no longer may file an
action for de novo review in federal
district court. See Soo Line R.R., Inc. v.
Admin. Review Bd., 990 F.3d 596, 598
n.1 (8th Cir. 2021). The purpose of the
‘‘kick-out’’ provision is to aid the
complainant in receiving a prompt
decision. That goal is not implicated in
a situation where the complainant
already has received a final decision
from the Secretary. In addition,
permitting the complainant to file a new
case in district court in such
circumstances could conflict with the
parties’ rights to seek judicial review of
the Secretary’s final decision in the
court of appeals. See 49 U.S.C.
42121(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 1989.115 Special
Circumstances; Waiver of Rules
This section provides that, in
circumstances not contemplated by
these rules or for good cause, the ALJ or

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the ARB may, upon application and
notice to the parties, waive any rule as
justice or the administration of TFA
requires.
IV. Paperwork Reduction Act
This rule contains a reporting
provision (filing a retaliation complaint,
section 1989.103) which was previously
reviewed as a statutory requirement of
TFA 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). A non-material change has
been submitted to OMB to include the
regulatory citation.
V. Administrative Procedure Act
The notice and comment rulemaking
procedures of § 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, because it provides the
procedures for the handling of
retaliation complaints. Therefore,
publication in the Federal Register of a
notice of proposed rulemaking and
request for comments are not required
for this rule. Although this is a
procedural and interpretative 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.
VI. Executive Orders 12866, 13563, and
13771; Unfunded Mandates Reform Act
of 1995; Executive Order 13132
The Office of Information and
Regulatory Affairs 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:

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(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 § 6(a)(3)(C) of Executive Order
12866 has been prepared.
This rule is not an Executive Order
13771 regulatory action because this
rule is not significant under Executive
Order 12866.
Also, because this rule is not
significant under Executive Order
12866, and because no notice of
proposed rulemaking has been
published, no statement is required
under § 202 of the Unfunded Mandates
Reform Act of 1995, 2 U.S.C. 1532. In
any event, this rulemaking is procedural
and interpretative 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 § 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-government-agencies-howcomply-regulatory-flexibility-act. This is
a rule of agency procedure, practice, and
interpretation 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

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Federal Register / Vol. 87, No. 44 / Monday, March 7, 2022 / Rules and Regulations
APA and the requirements under the
RFA.
List of Subjects in 29 CFR Part 1989
Administrative practice and
procedure, Employment, Taxation,
Whistleblower.
Authority and Signature
This document was prepared under
the direction and control of Douglas L.
Parker, Assistant Secretary of Labor for
Occupational Safety and Health.
Signed at Washington, DC.
Douglas L. Parker,
Assistant Secretary of Labor for Occupational
Safety and Health.

Accordingly, for the reasons set out in
the preamble, 29 CFR part 1989 is added
to read as follows:

■

PART 1989—PROCEDURES FOR THE
HANDLING OF RETAILIATION
COMPAINTS UNDER THE TAXPAYER
FIRST ACT (TFA)
Subpart A—Complaints, Investigations,
Findings, and Preliminary Orders
Sec.
1989.100 Purpose and scope.
1989.101 Definitions.
1989.102 Obligations and prohibited acts.
1989.103 Filing of retaliation complaint.
1989.104 Investigation.
1989.105 Issuance of findings and
preliminary orders.
Subpart B—Litigation
1989.106 Objections to the findings and the
preliminary order and requests for a
hearing.
1989.107 Hearings.
1989.108 Role of Federal agencies.
1989.109 Decisions and orders of the
administrative law judge.
1989.110 Decisions and orders of the
Administrative Review Board.
Subpart C—Miscellaneous Provisions
1989.111 Withdrawal of complaints,
findings, objections, and petitions for
review; settlement.
1989.112 Judicial review.
1989.113 Judicial enforcement.
1989.114 District court jurisdiction of
retaliation complaints.
1989.115 Special circumstances; waiver of
rules.

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Authority: 26 U.S.C. 7623(d); Secretary of
Labor’s Order 08–2020 (May 15, 2020), 85 FR
58393 (September 18, 2020); Secretary of
Labor’s Order 01–2020 (Feb. 21, 2020), 85 FR
13024–01 (Mar. 6, 2020).

Subpart A—Complaints,
Investigations, Findings, and
Preliminary Orders
§ 1989.100

Purpose and scope.

(a) This part sets forth procedures for,
and interpretations of, section 1405(b) of
the Taxpayer First Act (TFA), Public

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Law 116–25, 133 Stat. 981 (July 1, 2019)
(codified at 26 U.S.C. 7623(d)). TFA
provides for employee protection from
retaliation because the employee has
engaged in protected activity pertaining
to underpayment of tax or any conduct
which the employee reasonably believes
constitutes a violation of the internal
revenue laws or any provision of
Federal law relating to tax fraud.
(b) This part establishes procedures
under TFA 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 TFA for submission of
complaints, investigations, issuance of
findings and preliminary orders,
objections to findings and orders,
litigation before administrative law
judges (ALJs), post-hearing
administrative review, and withdrawals
and settlements. In addition, these rules
provide the Secretary’s interpretations
on certain statutory issues.
§ 1989.101

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 the
Assistant Secretary delegates authority
under TFA.
Business days means days other than
Saturdays, Sundays, and Federal
holidays.
Complainant means the person who
filed a TFA complaint or on whose
behalf a complaint was filed.
Employee means an individual
presently or formerly working for, an
individual applying to work for, or an
individual whose employment could be
affected by, another person.
IRS means the Internal Revenue
Service of the United States Department
of the Treasury.
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, or estate.
Respondent means the person named
in the complaint who is alleged to have
violated TFA.
Secretary means the Secretary of
Labor.
TFA means section 1405(b) of the
Taxpayer First Act (TFA), Public Law
116–25, 133 Stat. 981 (July 1, 2019)
(codified at 26 U.S.C. 7623(d)).
§ 1989.102
acts.

Obligations and prohibited

(a) No employer or any officer,
employee, contractor, subcontractor, or

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agent of such employer may discharge,
demote, suspend, threaten, harass, or in
any other manner retaliate against,
including, but not limited to,
intimidating, restraining, coercing,
blacklisting, or disciplining, an
employee in the terms and conditions of
employment in reprisal for the
employee having engaged in any of the
activities specified in paragraphs (b)(1)
and (2) of this section.
(b) An employee is protected against
retaliation (as described in paragraph (a)
of this section) by an employer or any
officer, employee, contractor,
subcontractor, or agent of such
employer in reprisal for any lawful act
done by the employee:
(1) To provide information, cause
information to be provided, or otherwise
assist in an investigation regarding
underpayment of tax or any conduct
which the employee reasonably believes
constitutes a violation of the internal
revenue laws or any provision of
Federal law relating to tax fraud, when
the information or assistance is
provided to the Internal Revenue
Service, the Secretary of the Treasury,
the Treasury Inspector General for Tax
Administration, the Comptroller
General of the United States, the
Department of Justice, the United States
Congress, a person with supervisory
authority over the employee, or any
other person working for the employer
who has the authority to investigate,
discover, or terminate misconduct; or
(2) To testify, participate in, or
otherwise assist in any administrative or
judicial action taken by the Internal
Revenue Service relating to an alleged
underpayment of tax or any violation of
the internal revenue laws or any
provision of Federal law relating to tax
fraud.
§ 1989.103

Filing of retaliation complaint.

(a) Who may file. A person who
believes that they have been discharged
or otherwise retaliated against by any
person in violation of TFA may file, or
have filed by any person on their 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

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numbers for these officials are set forth
in local directories and at the following
internet address: http://www.osha.gov.
Complaints may also be filed online at
https://www.osha.gov/whistleblower/
WBComplaint.html.
(d) Time for filing. Within 180 days
after an alleged violation of TFA occurs,
any person who believes that they have
been retaliated against in violation of
TFA may file, or have filed by any
person on their behalf, a complaint
alleging such retaliation. The date of the
postmark, facsimile transmittal,
electronic filing or transmittal,
telephone call, hand-delivery, delivery
to a third-party commercial carrier, or
in-person filing at an OSHA office will
be considered the date of filing. The
time for filing a complaint may be tolled
for reasons warranted by applicable case
law. For example, OSHA may consider
the time for filing a complaint to be
tolled if a complainant mistakenly files
a complaint with an agency other than
OSHA within 180 days after an alleged
adverse action.

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§ 1989.104

Investigation.

(a) Upon receipt of a complaint in the
investigating office, OSHA will notify
the respondent and the complainant’s
employer (if different) 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
§ 1989.110(e). OSHA will provide an
unredacted copy of these same materials
to the complainant (or the
complainant’s legal counsel if
complainant is represented by counsel)
and to the IRS.
(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 generally will provide them to
the other party (or the party’s legal
counsel if the party is represented by

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counsel) at a time permitting the other
party an opportunity to respond. Before
providing such materials to the other
party, OSHA will redact them, if
necessary, consistent with the Privacy
Act of 1974, 5 U.S.C. 552a, and other
applicable confidentiality laws. OSHA
will also provide each party with an
opportunity to respond to the other
party’s submissions.
(d) Investigations will be conducted
in a manner that protects the
confidentiality of any person who
provides information on a confidential
basis, other than the complainant, in
accordance with part 70 of this title.
(e)(1) A complaint will be dismissed
unless the complainant has made a
prima facie showing that 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
complainant shows that the adverse
action took place shortly after the
protected activity. 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.

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(5) If the respondent fails to make a
timely response or fails to satisfy its
burden set forth in the prior paragraph,
OSHA will proceed with the
investigation. The investigation will
proceed whenever it is necessary or
appropriate to confirm or verify the
information provided by the
respondent.
(f) Prior to the issuance of findings
and a preliminary order as provided for
in § 1989.105, if OSHA has reasonable
cause, on the basis of information
gathered under the procedures of this
part, to believe that the respondent has
violated TFA 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.
§ 1989.105 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 TFA.
(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

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providing relief to the complainant. The
preliminary order will include all relief
necessary to make the complainant
whole including, where appropriate:
Reinstatement with the same seniority
status that the complainant would have
had, but for the retaliation; the sum of
200 percent of the amount of back pay
and 100 percent of all lost benefits, with
interest; and compensation for any
special damages sustained as a result of
the retaliation, including litigation
costs, expert witness fees, and
reasonable attorney fees. Interest on
back pay will be calculated using the
interest rate applicable to underpayment
of taxes under 26 U.S.C. 6621(a)(2) and
will be compounded daily. Where
appropriate, 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
periods.
(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 physical or electronic means
that allow OSHA to confirm delivery to
all parties of record (or 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, or
appropriate information regarding filing
objections electronically with the Office
of Administrative Law Judges if
electronic filing is available. The
findings also may specify the means,
including electronic means, for serving
OSHA and the Associate Solicitor for
Fair Labor Standards with documents in
the administrative litigation as required
under this Part. 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

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the preliminary order, whichever is
later, unless an objection and/or a
request for hearing has been timely filed
as provided at § 1989.106. However, the
portion of any preliminary order
requiring reinstatement will be effective
immediately upon the respondent’s
receipt of the findings and the
preliminary order, regardless of any
objections to the findings and/or the
order.
Subpart B—Litigation
§ 1989.106 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 TFA, 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 § 1989.105. The objections and
request for hearing and/or request for
attorney fees must be in writing and
must state whether the objections are to
the findings, the preliminary order, or
both, and/or whether there should be an
award of attorney fees. The date of the
postmark, facsimile transmittal, or
electronic 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, in accordance
with 29 CFR part 18, and copies of the
objections must be served at the same
time on 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. OSHA and the Associate
Solicitor for Fair Labor Standards may
specify the means, including electronic
means, for serving then with copies of
the objections.
(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

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12585

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.
§ 1989.107

Hearings.

(a) Except as provided in this part,
proceedings will be conducted in
accordance with the rules of practice
and procedure for administrative
hearings before the Office of
Administrative Law Judges, codified at
subpart A of part 18 of this title.
(b) Upon receipt of an objection and
request for hearing, the Chief
Administrative Law Judge will promptly
assign the case to an ALJ who will
notify the parties 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.
§ 1989.108

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, and the right to seek
discretionary review of a decision of the
Administrative Review Board (ARB)
from the Secretary.
(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

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required by these rules. Except as
otherwise provided in rules of practice
and/or procedure before the OALJ or the
ARB, OSHA and the Associate Solicitor
for Fair Labor Standards may specify the
means, including electronic means, for
serving them with documents under this
section.
(b) The IRS, if interested in a
proceeding, may participate as amicus
curiae at any time in the proceeding, at
the IRS’s discretion. At the request of
the IRS, copies of all documents in a
case must be sent to the IRS, whether or
not it is participating in the proceeding.

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§ 1989.109 Decisions and orders of the
administrative law judge.

(a) The decision of the ALJ will
contain appropriate findings,
conclusions, and an order pertaining to
the remedies provided in paragraph (d)
of this section, as appropriate. A
determination that a violation has
occurred may be made only if the
complainant has demonstrated by a
preponderance of the evidence that
protected activity was a contributing
factor in the adverse action alleged in
the complaint.
(b) If the complainant has satisfied the
burden set forth in the prior paragraph,
relief may not be ordered if the
respondent demonstrates by clear and
convincing evidence that it would have
taken the same adverse action in the
absence of any protected activity.
(c) Neither OSHA’s determination to
dismiss a complaint without completing
an investigation pursuant to
§ 1989.104(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 providing all relief
necessary to make the complainant
whole, including, where appropriate:
Reinstatement with the same seniority
status that the complainant would have
had, but for the retaliation; the sum of
200 percent of the amount of back pay
and 100 percent of all lost benefits, with
interest; and compensation for any
special damages sustained as a result of
the retaliation, including litigation
costs, expert witness fees, and
reasonable attorney fees. Interest on
back pay will be calculated using the
interest rate applicable to underpayment

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of taxes under 26 U.S.C. 6621(a)(2) 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 periods.
(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.
OSHA and the Associate Solicitor for
Fair Labor Standards may specify the
means, including electronic means, for
service of decisions on them under this
section. Any ALJ’s decision requiring
reinstatement or lifting an order of
reinstatement by the Assistant Secretary
will be effective immediately upon
receipt of the decision by the
respondent. All other portions of the
ALJ’s order will be effective 30 days
after the date of the decision unless a
timely petition for review has been filed
with the Administrative Review ARB
(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.
§ 1989.110 Decisions 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
Administrative Review Board (ARB or
Board), which has been delegated the
authority to act for the Secretary and
issue decisions under this part subject
to the Secretary’s discretionary review.
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
30 days of the date of the decision of the
ALJ. All petitions and documents
submitted to the ARB must be filed
electronically, in accordance with Part
26, unless another filing method has
been authorized by the ARB for good
cause. The date of the postmark,
facsimile transmittal, or electronic

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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. The petition for
review also must be served on the
Assistant Secretary and on the Associate
Solicitor, Division of Fair Labor
Standards, U.S. Department of Labor.
OSHA and the Associate Solicitor for
Fair Labor Standards may specify the
means, including electronic means, for
service of petitions for review on them
under this section.
(b) If a timely petition for review is
filed pursuant to paragraph (a) of this
section, the decision of the ALJ will
become the final order of the Secretary
unless the ARB, within 30 days of the
filing of the petition, issues an order
notifying the parties that the case has
been accepted for review. If a case is
accepted for review, the decision of the
ALJ will be inoperative unless and until
the ARB issues an order adopting the
decision, except that any order of
reinstatement will be effective while
review is conducted by the ARB, unless
the ARB grants a motion by the
respondent to stay that order based on
exceptional circumstances. The ARB
will specify the terms under which any
briefs are to be filed. The ARB will
review the factual determinations of the
ALJ under the substantial evidence
standard. If a timely petition for review
is not filed, or the ARB denies review,
the decision of the ALJ will become the
final order of the Secretary. If a timely
petition for review is not filed, the
resulting final order is not subject to
judicial review.
(c) The decision of the ARB will be
issued within 120 days of the
conclusion of the hearing, which will be
deemed to be 30 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 30 days after a new decision is
issued. The ARB’s decision will be
served upon all parties and the Chief
Administrative Law Judge. The 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. OSHA
and the Associate Solicitor for Fair
Labor Standards may specify the means,
including electronic means, for service
of ARB decisions on them under this
section.

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(d) If the ARB concludes that the
respondent has violated the law, the
ARB will issue an order providing all
relief necessary to make the
complainant whole. The order will
require, where appropriate:
Reinstatement with the same seniority
status that the complainant would have
had, but for the retaliation; the sum of
200 percent of the amount of back pay
and 100 percent of all lost benefits, with
interest; and compensation for any
special damages sustained as a result of
the retaliation, including litigation
costs, expert witness fees, and
reasonable attorney fees. Interest on
back pay will be calculated using the
interest rate applicable to underpayment
of taxes under 26 U.S.C. 6621(a)(2) 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 periods. Such order is
subject to discretionary review by the
Secretary (as provided in Secretary’s
Order 01–2020 or any successor to that
order).
(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. An order under
this section is subject to discretionary
review by the Secretary (as provided in
Secretary’s Order 01–2020 or any
successor to that order).
Subpart C—Miscellaneous Provisions

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§ 1989.111 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 the
complaint by notifying OSHA, orally or
in writing, of the 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 (or 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 the
complaint after the filing of objections
to the Assistant Secretary’s findings
and/or preliminary order.

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(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 § 1989.106,
provided that no objection has been
filed yet, and substitute new findings
and/or a new preliminary order. The
date of the receipt of the substituted
findings or order will begin a new 30day objection period.
(c) At any time before the Assistant
Secretary’s findings and/or order
become final, a party may withdraw
objections to the Assistant Secretary’s
findings and/or order by filing a written
withdrawal with the ALJ. If the case is
on review with the ARB, a party may
withdraw a petition for review of an
ALJ’s decision at any time before that
decision becomes final by filing a
written withdrawal with the ARB. The
ALJ or the ARB, as the case may be, will
determine whether to approve the
withdrawal of the objections or the
petition for review. If the ALJ approves
a request to withdraw objections to the
Assistant Secretary’s findings and/or
order, and there are no other pending
objections, the Assistant Secretary’s
findings and/or order will become the
final order of the Secretary. If the ARB
approves a request to withdraw a
petition for review of an ALJ decision,
and there are no other pending petitions
for review of that decision, the ALJ’s
decision will become the final order of
the Secretary. If objections or a petition
for review are withdrawn because of
settlement, the settlement must be
submitted for approval in accordance
with paragraph (d) of this section.
(d)(1) Investigative settlements. At any
time after the filing of a complaint, but
before the findings and/or order are
objected to or become a final order by
operation of law, the case may be settled
if OSHA, the complainant, and the
respondent agree to a settlement.
OSHA’s approval of a settlement
reached by the respondent and the
complainant demonstrates OSHA’s
consent and achieves the consent of all
three parties.
(2) Adjudicatory settlements. At any
time after the filing of objections to the
Assistant Secretary’s findings and/or
order, the case may be settled if the
participating parties agree to a
settlement and the settlement is
approved by the ALJ if the case is before
the ALJ, or by the ARB if the ARB has
accepted the case for review. If the
Secretary has accepted the case for
discretionary review, or directed that
the case be referred for discretionary
review, the settlement must be approved
by the Secretary. A copy of the

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12587

settlement will be filed with the ALJ or
the ARB, as appropriate.
(e) Any settlement approved by
OSHA, the ALJ, the ARB or the
Secretary will constitute the final order
of the Secretary and may be enforced in
United States district court pursuant to
§ 1989.113.
§ 1989.112

Judicial review.

(a) Within 60 days after the issuance
of a final order for which judicial review
is available (including a decision issued
by the Secretary upon discretionary
review), 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 the 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.
§ 1989.113

Judicial enforcement.

Whenever any person has failed to
comply with a preliminary order of
reinstatement or a final order issued
under TFA, including one approving a
settlement agreement, 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 issued
under TFA, including one approving a
settlement agreement, a person on
whose behalf the order was issued may
file a civil action seeking enforcement of
the order in the appropriate United
States district court.
§ 1989.114 District court jurisdiction of
retaliation complaints.

(a) If the Secretary has not issued a
final decision within 180 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. Either party
shall be entitled to a trial by jury.
(b) A proceeding under paragraph (a)
of this section shall be governed by the

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Federal Register / Vol. 87, No. 44 / Monday, March 7, 2022 / Rules and Regulations

same legal burdens of proof specified in
§ 1989.109.
(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.
§ 1989.115
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, and after three days’ notice
to all parties, waive any rule or issue
such orders that justice or the
administration of TFA requires.
[FR Doc. 2022–04238 Filed 3–4–22; 8:45 am]
BILLING CODE 4510–26–P

DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 100
[Docket Number USCG–2022–0032]
RIN 1625–AA08

Special Local Regulation; Lake
Havasu, Lake Havasu City, AZ
Coast Guard, DHS.
ACTION: Temporary final rule.
AGENCY:

The Coast Guard is
establishing a temporary special local
regulation (SLR) in the navigable waters
of Lake Havasu, Arizona during the
Lake Havasu Triathlon marine event.
This regulation is necessary to provide
for the safety of the participants, crew,
spectators, sponsor vessels, and general
users of the waterway during the event,
which will be held on March 19, 2022.
This special local regulation will
temporarily prohibit persons and
vessels from entering into, transiting
through, anchoring, blocking, or
loitering within the event area unless
authorized by the Captain of the Port
San Diego or a designated
representative.
DATES: This rule is effective from 8 a.m.
to 9 a.m. on March 19, 2022.
ADDRESSES: To view documents
mentioned in this preamble as being
available in the docket, go to https://
www.regulations.gov, type USCG–2022–

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SUMMARY:

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0032 in the search box and click
‘‘Search.’’ Next, in the Document Type
column, select ‘‘Supporting & Related
Material.’’
FOR FURTHER INFORMATION CONTACT: If
you have questions on this rule, call or
email Lieutenant Commander John
Santorum, Waterways Management,
U.S. Coast Guard Sector San Diego, CA;
telephone (619) 278–7656, email
[email protected].
SUPPLEMENTARY INFORMATION:
I. Table of Abbreviations
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
§ Section
U.S.C. United States Code

II. Background Information and
Regulatory History
The Coast Guard is issuing this
temporary rule without prior notice and
opportunity to comment pursuant to
authority under section 4(a) of the
Administrative Procedure Act (APA) (5
U.S.C. 553(b)). This provision
authorizes an agency to issue a rule
without prior notice and opportunity to
comment when the agency for good
cause finds that those procedures are
‘‘impracticable, unnecessary, or contrary
to the public interest.’’ Under 5 U.S.C.
553(b)(B), the Coast Guard finds that
good cause exists for not publishing a
notice of proposed rulemaking (NPRM)
with respect to this rule because it is
impracticable. We must establish this
special local regulation by March 19,
2022. Therefore, it is impracticable to
publish an NPRM because we lack
sufficient time to provide a reasonable
comment period and then consider
those comments before issuing the rule.
This regulation is necessary to ensure
the safety of life on the navigable waters
of Lake Havasu during the marine event.
Under 5 U.S.C. 553(d)(3), the Coast
Guard finds that good cause exists for
making this rule effective less than 30
days after publication in the Federal
Register. Delaying the effective date of
this rule would be contrary to public
interest because action is needed to
ensure the safety of life on the navigable
waters of Lake Havasu during the
marine event on March 19, 2022.
III. Legal Authority and Need for Rule
The Coast Guard is issuing this rule
under authority in 46 U.S.C. 70041
(previously 33 U.S.C. 1236). The
Captain of the Port Sector San Diego
(COTP) has determined that the large
number of swimmers associated with
the Lake Havasu Triathlon marine event
on March 19, 2022, poses a potential

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safety concern in the regulated area.
This rule is needed to protect persons,
vessels, and the marine environment in
the navigable waters of Lake Havasu
during the marine event.
IV. Discussion of Comments, Changes,
and the Rule
This rule establishes a special local
regulation from 8 a.m. to 9 a.m. on
March 19, 2022. This special local
regulation will cover all navigable
waters, from surface to bottom, on a predetermined course within Lake Havasu,
Arizona beginning at the starting point
of the event at Lake Havasu State Park
South Beach and proceeding south to
the southern entrance to the
Bridgewater Channel. The duration of
the temporary special local regulation is
intended to ensure the safety of
participants, vessels, and the marine
environment in these navigable waters
during the scheduled marine event. No
vessel or person will be permitted to
enter the regulated area without
obtaining permission from the COTP or
a designated representative. The
regulatory text provides information on
how to contact the COTP or a
designated representative for permission
to transit the area. When in the
regulated area, persons must comply
with all lawful orders or directions
given to them by the COTP or
designated representative. Additionally,
the COTP will provide notice of the
regulated area through advanced notice
via Local Notice to Mariners or by onscene designated representatives.
V. Regulatory Analyses
We developed this rule after
considering numerous statutes and
Executive orders related to rulemaking.
Below we summarize our analyses
based on a number of these statutes and
Executive orders, and we discuss First
Amendment rights of protestors.
A. Regulatory Planning and Review
Executive Orders 12866 and 13563
direct agencies to assess the costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits.
This rule has not been designated a
‘‘significant regulatory action,’’ under
Executive Order 12866. Accordingly,
this rule has not been reviewed by the
Office of Management and Budget
(OMB).
This regulatory action determination
is based on the size, location, duration,
and time-of-day of the regulated area.
The affected portion of the navigable
waterway in Lake Havasu will be of very
limited duration, and is necessary for

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