81 FR 22530 - Procedures for Handling Retaliation Complaints Under Section 402 of the FDA Food Safety Modernization Act
DEPARTMENT OF LABOR
Occupational Safety and Health Administration Federal Register Volume 81, Issue 74 (April 18, 2016)
Occupational Safety and Health Administration
Federal Register Volume 81, Issue 74 (April 18, 2016)
| Page Range | 22530-22544 | |
| FR Document | 2016-08724 |
[Federal Register Volume 81, Number 74 (Monday, April 18, 2016)] [Rules and Regulations] [Pages 22530-22544] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-08724] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Part 1987 [Docket Number: OSHA-2011-0859] RIN 1218-AC58 Procedures for Handling Retaliation Complaints Under Section 402 of the FDA Food Safety Modernization Act AGENCY: Occupational Safety and Health Administration, Labor. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: This document provides the final text of regulations governing the employee protection (retaliation or whistleblower) provision found at section 402 of the FDA Food Safety Modernization Act (FSMA), which added section 1012 to the Federal Food, Drug, and Cosmetic Act. An interim final rule governing these provisions and requesting public comment was published in the Federal Register on February 13, 2014. Two comments were received that were responsive to the rule. This rule responds to those comments and establishes the final procedures and time frames for the handling of retaliation complaints under FSMA, including procedures and time frames for employee complaints to the Occupational Safety and Health Administration (OSHA), investigations by OSHA, appeals of OSHA determinations to an administrative law judge (ALJ) for a hearing de novo, hearings by ALJs, review of ALJ decisions by the Administrative Review Board (ARB) (acting on behalf of the Secretary of Labor), and judicial review of the Secretary's final decision. DATES: This final rule is effective on April 18, 2016. FOR FURTHER INFORMATION CONTACT: Cleveland Fairchild, Program Analyst, Directorate of Whistleblower Protection Programs, Occupational Safety and Health Administration, U.S. Department of Labor, Room N-4618, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693- 2199. This is not a toll-free number. Email: [email protected]. This Federal Register publication is available in alternative formats. The alternative formats available are: Large print, electronic file on computer disk (Word Perfect, ASCII, Mates with Duxbury Braille System), and audiotape. SUPPLEMENTARY INFORMATION: I. Background The FDA Food Safety Modernization Act (Pub. L. 111-353, 124 Stat. 3885), was signed into law on January 4, 2011. Section 402 of the FDA Food Safety Modernization Act amended the Federal Food, Drug, and Cosmetic Act (FD&C) to add section 1012, 21 U.S.C. 399d, which provides protection to employees against retaliation by an entity engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food for engaging in certain protected activities. Section 1012 protects employees against retaliation because they provided or are about to provide to their employer, the [[Page 22531]] Federal Government, or the attorney general of a State information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of, any provision of the FD&C or any order, rule, regulation, standard, or ban under the FD&C; testified or are about to testify in a proceeding concerning such violation; assisted or participated, or are about to assist or participate, in such a proceeding; or objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee reasonably believed to be in violation of any provision of the FD&C or any order, rule, regulation, standard, or ban under the FD&C. Section 1012 became effective upon enactment on January 4, 2011. Although the Food and Drug Administration of the U.S. Department of Health and Human Services (FDA) generally administers the FD&C, the Secretary of Labor is responsible for enforcing the employee protection provision set forth in section 1012 of the FD&C. These rules establish procedures for the handling of whistleblower complaints under section 1012 of the FD&C. Throughout this rule, FSMA refers to section 402 of the FDA Food Safety Modernization Act, codified as section 1012 of the Federal Food, Drug and Cosmetic Act. See 21 U.S.C. 399d. II. Summary of Statutory Procedures FSMA's whistleblower provisions include procedures that allow a covered employee to file, within 180 days of the alleged retaliation, a complaint with the Secretary of Labor (Secretary). Upon receipt of the complaint, the Secretary must provide written notice to the person or persons named in the complaint alleged to have violated the FSMA (respondent) of the filing of the complaint, the allegations contained in the complaint, the substance of the evidence supporting the complaint, and the rights afforded the respondent throughout the investigation. The Secretary must then, within 60 days of receipt of the complaint, afford the complainant and respondent an opportunity to submit a response and meet with the investigator to present statements from witnesses, and conduct an investigation. The statute provides that the Secretary may conduct an investigation only if the complainant has made a prima facie showing that the protected activity was a contributing factor in the adverse action alleged in the complaint and the respondent has not demonstrated, through clear and convincing evidence, that it would have taken the same adverse action in the absence of that activity (see section 1987.104 for a summary of the investigation process). OSHA interprets the prima facie case requirement as allowing the complainant to meet this burden through the complaint as supplemented by interviews of the complainant. After investigating a complaint, the Secretary will issue written findings. If, as a result of the investigation, the Secretary finds there is reasonable cause to believe that retaliation has occurred, the Secretary must notify the respondent of those findings, along with a preliminary order that requires the respondent to, where appropriate: Take affirmative action to abate the violation; reinstate the complainant to his or her former position together with the compensation of that position (including back pay) and restore the terms, conditions, and privileges associated with his or her employment; and provide compensatory damages to the complainant, as well as all costs and expenses (including attorney fees and expert witness fees) reasonably incurred by the complainant for, or in connection with, the bringing of the complaint upon which the order was issued. The complainant and the respondent then have 30 days after the date of the Secretary's notification in which to file objections to the findings and/or preliminary order and request a hearing before an administrative law judge (ALJ) at the Department of Labor. The filing of objections under FSMA will stay any remedy in the preliminary order except for preliminary reinstatement. If a hearing before an ALJ is not requested within 30 days, the preliminary order becomes final and is not subject to judicial review. If a hearing is held, the statute requires the hearing to be conducted ``expeditiously.'' The Secretary then has 120 days after the conclusion of any hearing in which to issue a final order, which may provide appropriate relief or deny the complaint. Until the Secretary's final order is issued, the Secretary, the complainant, and the respondent may enter into a settlement agreement that terminates the proceeding. Where the Secretary has determined that a violation has occurred, the Secretary, where appropriate, will assess against the respondent a sum equal to the total amount of all costs and expenses, including attorney and expert witness fees, reasonably incurred by the complainant for, or in connection with, the bringing of the complaint upon which the Secretary issued the order. The Secretary also may award a prevailing employer reasonable attorney fees, not exceeding $1,000, if the Secretary finds that the complaint is frivolous or has been brought in bad faith. Within 60 days of the issuance of the final order, any person adversely affected or aggrieved by the Secretary's final order may file an appeal with the United States Court of Appeals for the circuit in which the violation allegedly occurred or the circuit where the complainant resided on the date of the violation. FSMA permits the employee to seek de novo review of the complaint by a United States district court in the event that the Secretary has not issued a final decision within 210 days after the filing of the complaint, or within 90 days after receiving a written determination. The court will have jurisdiction over the action without regard to the amount in controversy, and the case will be tried before a jury at the request of either party. FSMA also provides that nothing therein preempts or diminishes any other safeguards against discrimination, demotion, discharge, suspension, threats, harassment, reprimand, retaliation, or any other manner of discrimination provided by Federal or State law. Finally, FSMA states that nothing therein shall be deemed to diminish the rights, privileges, or remedies of any employee under any Federal or State law or under any collective bargaining agreement, and the rights and remedies in FSMA may not be waived by any agreement, policy, form, or condition of employment. III. Summary and Discussion of Regulatory Provisions On February 13, 2014, OSHA published in the Federal Register an interim final rule (IFR) establishing rules governing the whistleblower provisions of 402 of the FDA Food Safety Modernization Act. 79 FR 8619. OSHA provided the public an opportunity to comment on the IFR by April 14, 2014. In response, OSHA received comments that were responsive to the rule from two organizations. Comments were received from the Roll Law Group (Roll), on behalf of Paramount Farming Company LLC, Paramount Farms International LLC, Pom Wonderful LLC, and Paramount Citrus Holdings LLC, and; Kalijarvi, Chuzi, Newman & Fitch, P.C. (Kalijarvi). OSHA also received one comment that was not responsive to the rule. OSHA has reviewed and considered the comments and now adopts this final rule with minor revisions. The following discussion addresses the [[Page 22532]] comments and OSHA's responses. The provisions in the IFR are adopted and continued in this final rule, unless otherwise noted below. The regulatory provisions in this part have been written and organized to be consistent with other whistleblower regulations promulgated by OSHA to the extent possible within the bounds of the statutory language of FSMA. Responsibility for receiving and investigating complaints under FSMA has been delegated to the Assistant Secretary for Occupational Safety and Health (Assistant Secretary). Secretary of Labor's Order No. 1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012). Hearings on determinations by the Assistant Secretary are conducted by the Office of Administrative Law Judges, and appeals from decisions by ALJs are decided by the ARB. Secretary of Labor's Order No. 2-2012 (Oct. 19, 2012), 77 FR 69378 (Nov. 16, 2012). General Comments Roll commented that OSHA should ``ensure that the rules not only protect employee rights and promote food safety, but uphold equality and fairly address the concerns of both parties involved in these types of matters.'' OSHA agrees, and notes that its procedures are designed to ensure a fair process for both parties. Kalijarvi commented that ``Congress passed the FSMA to protect people from getting sick and dying. When Congress passes a law to accomplish a remedial purpose, that purpose should be central to decisions about interpretation and application of the law.'' Kalijarvi elaborated that decisions under FSMA should be made with an eye towards furthering the statute's remedial purpose. In addition, Kalijarvi commented that OSHA's discussion of the reasonable belief doctrine serves as a helpful reminder that ``a complainant's whistleblower activity will be protected when it is based on a reasonable belief that any provision of the FD&C, or any order, rule, regulation, standard, or ban under the FD&C, has been violated.'' OSHA believes that, generally, support for the remedial nature of the FSMA is found in the statute itself. Subpart A--Complaints, Investigations, Findings and Preliminary Orders Section 1987.100 Purpose and Scope This section describes the purpose of the regulations implementing FSMA and provides an overview of the procedures covered by these regulations. No comments were received on this section, and no changes were made to it. Section 1987.101 Definitions This section includes general definitions from the FD&C, which are applicable to the whistleblower provisions of FSMA. The FD&C states that the term ``person'' includes an individual, partnership, corporation, and association. See 21 U.S.C. 321(e). The FD&C also defines the term ``food'' as ``(1) articles used for food or drink for man or other animals, (2) chewing gum, and (3) articles used for components of any such article.'' See 21 U.S.C. 321(f). No comments were received on this section, and no changes were made to it. Section 1987.102 Obligations and Prohibited Acts This section describes the activities that are protected under FSMA, and the conduct that is prohibited in response to any protected activities. Under FSMA, an entity engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food may not retaliate against an employee because the employee ``provided, caused to be provided, or is about to provide or cause to be provided to the employer, the Federal Government, or the attorney general of a State information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of any provision of this chapter or any order, rule, regulation, standard, or ban under this chapter.'' 21 U.S.C. 399d(a)(1). FSMA also protects employees who testify, assist or participate in proceedings concerning such violations. See 21 U.S.C. 399d(a)(2) and (3). Finally, FSMA prohibits retaliation because an employee ``objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any provision of this chapter, or any order, rule, regulation, standard, or ban under this chapter.'' 21 U.S.C. 399d(a)(4). References to ``this chapter'' refer to the FD&C, which is chapter 9 of title 21. 21 U.S.C. 301 et seq. Although an entity must therefore be engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food in order to be covered by FSMA, a complainant's whistleblower activity will be protected when it is based on a reasonable belief that any provision of the FD&C, or any order, rule, regulation, standard, or ban under the FD&C, has been violated. In order to have a ``reasonable belief'' under FSMA, a complainant must have both a subjective, good faith belief and an objectively reasonable belief that the complained-of conduct violated the FD&C or any order, rule, regulation, standard, or ban under the FD&C. See Sylvester v. Parexel Int'l LLC, ARB No. 07-123, 2011 WL 2165854, at * 11-12 (ARB May 25, 2011) (discussing the reasonable belief standard under analogous language in the Sarbanes-Oxley Act whistleblower provision for employees, 18 U.S.C. 1514A). The requirement that the complainant have a subjective, good faith belief is satisfied so long as the complainant actually believed that the conduct complained of violated the relevant law. See id. The objective ``reasonableness'' of a complainant's belief is typically determined ``based on the knowledge available to a reasonable person in the same factual circumstances with the same training and experience as the aggrieved employee.'' Id. at * 12 (internal quotation marks and citation omitted). However, the complainant need not show that the conduct complained of constituted an actual violation of law. Pursuant to this standard, an employee's whistleblower activity is protected where it is based on a reasonable, but mistaken, belief that a violation of the relevant law has occurred. Id. at * 13. No comments were received on this section, and no changes were made to it. Section 1987.103 Filing of Retaliation Complaint This section explains the requirements for filing a retaliation complaint under FSMA. According to section 1012(b)(1) of the FD&C, a complaint must be filed within 180 days of when the alleged violation occurs. Under Delaware State College v. Ricks, 449 U.S. 250, 258 (1980), this is considered to be when the retaliatory decision has been both made and communicated to the complainant. In other words, the limitations period commences once the employee is aware or reasonably should be aware of the employer's decision to take an adverse action. See Equal Emp't Opportunity Comm'n v. United Parcel Serv., Inc., 249 F.3d 557, 561-62 (6th Cir. 2001). The time for filing a complaint may be tolled for reasons warranted by applicable case law. For example, OSHA may consider the time for filing a complaint to be tolled if a complainant mistakenly files a complaint with an agency other than OSHA within 180 days after an alleged adverse action. [[Page 22533]] Complaints filed under FSMA need not be in any particular form. They may be either oral or in writing. If the complainant is unable to file the complaint in English, OSHA will accept the complaint in any language. With the consent of the employee, complaints may be filed by any person on the employee's behalf. OSHA notes that a complaint of retaliation filed with OSHA under FSMA is not a formal document and need not conform to the pleading standards for complaints filed in federal district court articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). See Sylvester, 2011 WL 2165854, at * 9-10 (holding whistleblower complaints filed with OSHA under analogous provisions in the Sarbanes-Oxley Act need not conform to federal court pleading standards). Rather, the complaint filed with OSHA under this section simply alerts OSHA to the existence of the alleged retaliation and the complainant's desire that OSHA investigate the complaint. Upon receipt of the complaint, OSHA is to determine whether the ``complaint, supplemented as appropriate by interviews of the complainant'' alleges ``the existence of facts and evidence to make a prima facie showing.'' 29 CFR 1987.104(e). As explained in section 1987.104(e), if the complaint, supplemented as appropriate, contains a prima facie allegation, and the respondent does not show clear and convincing evidence that it would have taken the same action in the absence of the alleged protected activity, OSHA conducts an investigation to determine whether there is reasonable cause to believe that retaliation has occurred. See 21 U.S.C. 399d(b)(2)(A), 29 CFR 1987.104(e). No comments were received on this section, and no changes were made to it. Section 1987.104 Investigation This section describes the procedures that apply to the investigation of complaints under FSMA. Paragraph (a) of this section outlines the procedures for notifying the parties and the FDA of the complaint and notifying the respondent of its rights under these regulations. Paragraph (b) describes the procedures for the respondent to submit its response to the complaint. Paragraph (c) describes OSHA's procedures for sharing a party's submissions during a whistleblower investigation with the other parties to the investigation. Paragraph (d) of this section discusses confidentiality of information provided during investigations. Paragraph (e) of this section sets forth the applicable burdens of proof. FSMA requires that a complainant make an initial prima facie showing that protected activity was ``a contributing factor'' in the adverse action alleged in the complaint, i.e., that the protected activity, alone or in combination with other factors, affected in some way the outcome of the employer's decision. The complainant will be considered to have met the required burden if the complaint on its face, supplemented as appropriate through interviews of the complainant, alleges the existence of facts and either direct or circumstantial evidence to meet the required showing. The complainant's burden may be satisfied, for example, if he or she shows that the adverse action took place within a temporal proximity of the protected activity, or at the first opportunity available to the respondent, giving rise to the inference that it was a contributing factor in the adverse action. See, e.g., Porter v. Cal. Dep't of Corrs., 419 F.3d 885, 895 (9th Cir. 2005) (years between the protected activity and the retaliatory actions did not defeat a finding of a causal connection where the defendant did not have the opportunity to retaliate until he was given responsibility for making personnel decisions). If the complainant does not make the required prima facie showing, the investigation must be discontinued and the complaint dismissed. See Trimmer v. U.S. Dep't of Labor, 174 F.3d 1098, 1101 (10th Cir. 1999) (noting that the burden-shifting framework of the Energy Reorganization Act of 1974 (ERA), which is the same framework now applicable to FSMA, serves a ``gatekeeping function'' that ``stem[s] frivolous complaints''). Even in cases where the complainant successfully makes a prima facie showing, the investigation must be discontinued if the employer demonstrates, by clear and convincing evidence, that it would have taken the same adverse action in the absence of the protected activity. Thus, OSHA must dismiss a complaint under FSMA and not investigate further if either: (1) The complainant fails to meet the prima facie showing that protected activity was a contributing factor in the adverse action; or (2) the employer rebuts that showing by clear and convincing evidence that it would have taken the same adverse action absent the protected activity. Assuming that an investigation proceeds beyond the gatekeeping phase, the statute requires OSHA to determine whether there is reasonable cause to believe that protected activity was a contributing factor in the alleged adverse action. A contributing factor is ``any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision.'' Marano v. Dep't of Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993) (internal quotation marks, emphasis and citation omitted) (discussing the Whistleblower Protection Act, 5 U.S.C. 1221(e)(1)); see also Addis v. Dep't of Labor, 575 F.3d 688, 689-91 (7th Cir. 2009) (discussing Marano as applied to analogous whistleblower provision in the ERA); Clarke v. Navajo Express, Inc., ARB No. 09-114, 2011 WL 2614326, at * 3 (ARB June 29, 2011) (discussing burdens of proof under analogous whistleblower provision in the Surface Transportation Assistance Act (STAA)). For protected activity to be a contributing factor in the adverse action, ``a complainant need not necessarily prove that the respondent's articulated reason was a pretext in order to prevail,'' because a complainant alternatively can prevail by showing that the respondent's `` `reason, while true, is only one of the reasons for its conduct,' '' and that another reason was the complainant's protected activity. See Klopfenstein v. PCC Flow Techs. Holdings, Inc., ARB No. 04-149, 2006 WL 3246904, at * 13 (ARB May 31, 2006) (quoting Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)) (discussing contributing factor test under the Sarbanes-Oxley whistleblower provision), aff'd sub nom. Klopfenstein v. Admin. Review Bd., U.S. Dep't of Labor, 402 F. App'x 936, 2010 WL 4746668 (5th Cir. 2010). If OSHA finds reasonable cause to believe that the alleged protected activity was a contributing factor in the adverse action, OSHA may not order relief if the employer demonstrates by clear and convincing evidence that it would have taken the same action in the absence of the protected activity. See 21 U.S.C. 399d(b)(2)(C). The ``clear and convincing evidence'' standard is a higher burden of proof than a ``preponderance of the evidence'' standard. Clear and convincing evidence is evidence indicating that the thing to be proved is highly probable or reasonably certain. Clarke, 2011 WL 2614326, at * 3. Paragraph (f) describes the procedures OSHA will follow prior to the issuance of findings and a preliminary order when OSHA has reasonable cause to believe that a violation has occurred. Roll commented that this section of the IFR did not explicitly state that the respondent has the right to receive copies of the substantive evidence provided by the complainant, and Roll states that it is ``essential that both [[Page 22534]] parties receive equal access to all documents throughout the entire matter.'' OSHA agrees that the input of both parties in the investigation is important to ensure that OSHA reaches the proper outcome during its investigation. In fact, OSHA's current policy is to request that each party provide the other parties with a copy of all submissions to OSHA that are pertinent to the whistleblower complaint. Where the parties do not provide each other such submissions, OSHA will ensure that each party is provided with such information after redacting the submissions as appropriate. OSHA has revised paragraph (c) to clarify these policies regarding information sharing during the course of an investigation. Further information regarding OSHA's nonpublic disclosure and information sharing policies also may be found in the Whistleblower Investigations Manual, available at, http://www.whistleblowers.gov/regulations_page.html. Roll also commented that the IFR did not provide the complainant and the respondent equal opportunity to respond to the each other's submissions to OSHA. OSHA has revised paragraph (c) to clarify that OSHA will ensure that each party is provided with an opportunity to respond to the other party's submissions. Apart from the changes to paragraph (c) described above, OSHA has reworded paragraphs (a) and (f) slightly to clarify the paragraphs without changing their meaning. Section 1987.105 Issuance of Findings and Preliminary Orders This section provides that, on the basis of information obtained in the investigation, the Assistant Secretary will issue, within 60 days of the filing of a complaint, written findings regarding whether or not there is reasonable cause to believe that the complaint has merit. If the findings are that there is reasonable cause to believe that the complaint has merit, the Assistant Secretary will order appropriate relief, including preliminary reinstatement, affirmative action to abate the violation, back pay with interest, and compensatory damages. The findings and, where appropriate, preliminary order, advise the parties of their right to file objections to the findings of the Assistant Secretary and to request a hearing. The findings and, where appropriate, preliminary order, also advise the respondent of the right to request an award of attorney fees not exceeding $1,000 from the ALJ, regardless of whether the respondent has filed objections, if the respondent alleges that the complaint was frivolous or brought in bad faith. If no objections are filed within 30 days of receipt of the findings, the findings and any preliminary order of the Assistant Secretary become the final decision and order of the Secretary. If objections are timely filed, any order of preliminary reinstatement will take effect, but the remaining provisions of the order will not take effect until administrative proceedings are completed. As explained in the IFR, in ordering interest on back pay under FSMA, the Secretary has determined that interest due will be computed by compounding daily the Internal Revenue Service interest rate for the underpayment of taxes, which under 26 U.S.C. 6621 is generally the Federal short-term rate plus three percentage points. 79 FR 8623. The Secretary has long applied the interest rate in 26 U.S.C. 6621 to calculate interest on backpay in whistleblower cases. Doyle v. Hydro Nuclear Servs., ARB Nos. 99-041, 99-042, 00-012, 2000 WL 694384, at *14-15, 17 (ARB May 17, 2000); see also Cefalu v. Roadway Express, Inc., ARB No. 09-070, 2011 WL 1247212, at *2 (ARB Mar. 17, 2011); Pollock v. Cont'l Express, ARB Nos. 07-073, 08-051, 2010 WL 1776974, at *8 (ARB Apr. 10, 2010); Murray v. Air Ride, Inc., ARB No. 00-045, slip op. at 9 (ARB Dec. 29, 2000). Section 6621 provides the appropriate measure of compensation under FSMA and other DOL-administered whistleblower statutes because it ensures the complainant will be placed in the same position he or she would have been in if no unlawful retaliation occurred. See Ass't Sec'y v. Double R. Trucking, Inc., ARB No. 99-061, slip op. at 5 (ARB July 16, 1999) (interest awards pursuant to Sec. 6621 are mandatory elements of complainant's make-whole remedy). Section 6621 provides a reasonably accurate prediction of market outcomes (which represents the loss of investment opportunity by the complainant and the employer's benefit from use of the withheld money) and thus provides the complainant with appropriate make-whole relief. See EEOC v. Erie Cnty., 751 F.2d 79, 82 (2d Cir. 1984) (``[s]ince the goal of a suit under the [Fair Labor Standards Act] and the Equal Pay Act is to make whole the victims of the unlawful underpayment of wages, and since [Sec. 6621] has been adopted as a good indicator of the value of the use of money, it was well within'' the district court's discretion to calculate prejudgment interest under Sec. 6621); New Horizons for the Retarded, 283 N.L.R.B. No. 181, 1987 WL 89652, at *2 (NLRB May 28, 1987) (observing that ``the short-term Federal rate [used by Sec. 6621] is based on average market yields on marketable Federal obligations and is influenced by private economic market forces''). Similarly, as explained in the IFR, daily compounding of the interest award ensures that complainants are made whole for unlawful retaliation in violation of FSMA. 79 FR 8623. As explained in the IFR, in ordering back pay, OSHA will require the respondent to submit the appropriate documentation to the Social Security Administration (SSA) allocating the back pay to the appropriate calendar quarters. Requiring the reporting of back pay allocation to the SSA serves the remedial purposes of FSMA by ensuring that employees subjected to retaliation are truly made whole. See 79 FR 8623; see also Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10, 2014 WL 3897178, at *4-5 (NLRB Aug. 8, 2014). Finally, as noted in the IFR, in limited circumstances, in lieu of preliminary reinstatement, OSHA may order that the complainant receive the same pay and benefits that he or she received prior to termination, but not actually return to work. See 79 FR 8623. Such ``economic reinstatement'' is akin to an order for front pay and frequently is employed in cases arising under section 105(c) of the Federal Mine Safety and Health Act of 1977, which protects miners from retaliation. 30 U.S.C. 815(c); see, e.g., Sec'y of Labor ex rel. York v. BR&D Enters., Inc., 23 FMSHRC 697, 2001 WL 1806020, at *1 (ALJ June 26, 2001). Front pay has been recognized as a possible remedy in cases under the whistleblower statutes enforced by OSHA in limited circumstances where reinstatement would not be appropriate. See, e.g., Luder v. Cont'l Airlines, Inc., ARB No. 10-026, 2012 WL 376755, at *11 (ARB Jan. 31, 2012), aff'd, Cont'l Airlines, Inc. v. Admin. Rev. Bd., No. 15-60012, slip op. at 8, 2016 WL 97461, at *4 (5th Cir. Jan. 7, 2016) (unpublished) (under Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, ``front-pay is available when reinstatement is not possible''); Moder v. Vill. of Jackson, ARB Nos. 01-095, 02-039, 2003 WL 21499864, at *10 (ARB June 30, 2003) (under environmental whistleblower statutes, ``front pay may be an appropriate substitute when the parties prove the impossibility of a productive and amicable working relationship, or the company no longer has a position for which the complainant is qualified''). Roll commented on the discussion in the IFR of ``economic reinstatement'' [[Page 22535]] and front pay and suggested that OSHA should include specific guidelines pertaining to front pay awards. Roll noted that the IFR provided examples of situations where front pay might be appropriate, but the rules themselves do not explicitly state that front pay is an available remedy, which could be ``misleading.'' Further, Roll questioned whether OSHA has authority to order front pay as a remedy. OSHA declines to adopt specific guidelines pertaining to front pay awards in these rules. As explained in the IFR, the appropriateness of ``economic reinstatement'' or front pay as an alternative to the default statutory remedy of reinstatement has long been recognized. OSHA believes that relevant case law more appropriately addresses the parameters for issuing an award of front pay in lieu of reinstatement. See, e.g., Luder, ARB No. 10-026, slip op. at *11. (holding that front pay must be awarded according to reasonable parameters such as the amount of the proposed award, the length of time the complainant expects to be out of work, and the applicable discount rate) (internal quotation marks and citations omitted), front pay award modified, Luder v. Cont'l Airlines, Inc., ARB No. 13-009, 2014 WL 6850012 (ARB Nov. 2014), aff'd, Cont'l Airlines, Inc. v. Admin. Review Bd., No. 15-60012, slip op. at 8, 2016 WL 97461, at *4 (5th Cir. Jan. 7, 2016) (unpublished). Kalijarvi requested that the rule include a reference to Blackburn v. Martin, 982 F.2d 125 (4th Cir. 1992) to inform the public that emotional distress damages may be awarded without the testimony of expert witnesses. A number of ARB decisions have awarded such damages without the testimony of expert witnesses in appropriate circumstances. See e.g., Lockheed Martin Corp. v. Admin. Review Bd., 717 F.3d 1121, 1138 (10th Cir. 2013) (upholding an award of $75,000 for emotional pain and suffering without requiring the testimony of expert witnesses); Menendez v. Halliburton, Inc., ARB Nos 09-002, 09-003 2013 WL 1282255, at *11-12 (ARB Mar. 15, 2013) (upholding award of $30,000 for emotional distress and reputational harm without requiring expert testimony) aff'd sub nom. Halliburton, Inc. v. Admin. Review Bd., 771 F.3d 254 (5th Cir. 2014). OSHA believes that these cases adequately serve to notify the public that emotional distress damages may be awarded without the testimony of expert witnesses. For these reasons, OSHA has made no changes to the text of this section. Subpart B--Litigation Section 1987.106 Objections to the Findings and the Preliminary Order and Requests for a Hearing To be effective, objections to the findings of the Assistant Secretary must be in writing and must be filed with the Chief Administrative Law Judge, U.S. Department of Labor, within 30 days of receipt of the findings. The date of the postmark, facsimile transmittal, or electronic communication transmittal is considered the date of the filing; if the objection is filed in person, by 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 the OSHA official who issued the findings and order, the Assistant Secretary, and the U.S. Department of Labor's Associate Solicitor for Fair Labor Standards, the failure to serve copies of the objections on the other parties of record does not affect the ALJ's jurisdiction to hear and decide the merits of the case. See Shirani v. Calvert Cliffs Nuclear Power Plant, Inc., ARB No. 04-101, 2005 WL 2865915, at *7 (ARB Oct. 31, 2005). The timely filing of objections stays all provisions of the preliminary order, except for the portion requiring reinstatement. A respondent may file a motion to stay the Assistant Secretary's preliminary order of reinstatement with the Office of Administrative Law Judges. However, such a motion will be granted only based on exceptional circumstances. The Secretary believes that a stay of the Assistant Secretary's preliminary order of reinstatement under FSMA would be appropriate only where the respondent can establish the necessary criteria for equitable injunctive relief, i.e., irreparable injury, likelihood of success on the merits, a balancing of possible harms to the parties, and the public interest favors a stay. If no timely objection to the Assistant Secretary's findings and/or preliminary order is filed, then the Assistant Secretary's findings and/or preliminary order become the final decision of the Secretary not subject to judicial review. No comments were received on this section, and no changes were made to it. Section 1987.107 Hearings This section adopts the rules of practice and procedure for administrative hearings before the Office of Administrative Law Judges as set forth in 29 CFR part 18 subpart A. This section provides that the hearing is to commence expeditiously, except upon a showing of good cause or unless otherwise agreed to by the parties. Hearings will be conducted de novo, on the record. As noted in this section, formal rules of evidence will not apply, but rules or principles designed to assure production of the most probative evidence will be applied. The ALJ may exclude evidence that is immaterial, irrelevant, or unduly repetitious. No comments were received on this section, and no changes were made to it. Section 1987.108 Role of Federal Agencies The Assistant Secretary, at his or her discretion, may participate as a party or amicus curiae at any time in the administrative proceedings under FSMA. For example, the Assistant Secretary may exercise his or her discretion to prosecute the case in the administrative proceeding before an ALJ; petition for review of a decision of an ALJ, including a decision based on a settlement agreement between the complainant and the respondent, regardless of whether the Assistant Secretary participated before the ALJ; or participate as amicus curiae before the ALJ or in the ARB proceeding. Although OSHA anticipates that ordinarily the Assistant Secretary will not participate, the Assistant Secretary may choose to do so in appropriate cases, such as cases involving important or novel legal issues, multiple employees, alleged violations that appear egregious, or where the interests of justice might require participation by the Assistant Secretary. The FDA, if interested in a proceeding, also may participate as amicus curiae at any time in the proceedings. No comments were received on this section, though minor changes were made as needed to clarify the provision without changing its meaning. Section 1987.109 Decision and Orders of the Administrative Law Judge This section sets forth the requirements for the content of the decision and order of the ALJ, and includes the standard for finding a violation under FSMA. Specifically, the complainant must demonstrate (i.e., prove by a preponderance of the evidence) that the protected activity was a ``contributing factor'' in the adverse action. See, e.g., Allen v. Admin. Review Bd., 514 F.3d 468, 475 n.1 (5th Cir. 2008) (``The term `demonstrates' [under identical burden-shifting scheme in the Sarbanes-Oxley whistleblower provision] means to prove by a [[Page 22536]] preponderance of the evidence.''). If the employee demonstrates that the alleged protected activity was a contributing factor in the adverse action, the employer, to escape liability, must demonstrate by ``clear and convincing evidence'' that it would have taken the same action in the absence of the protected activity. See 21 U.S.C. 399d(b)(2)(C). Paragraph (c) of this section further provides that OSHA's determination to dismiss the complaint without an investigation or without a complete investigation under section 1987.104 is not subject to review. Thus, section 1987.109(c) clarifies that OSHA's determinations on whether to proceed with an investigation under FSMA and whether to make particular investigative findings are discretionary decisions not subject to review by the ALJ. The ALJ hears cases de novo and, therefore, as a general matter, may not remand cases to OSHA to conduct an investigation or make further factual findings. Paragraph (d) notes the remedies that the ALJ may order under FSMA and, as discussed under section 1987.105 above, provides that interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily, and that the respondent will be required to submit appropriate documentation to the SSA allocating any back pay award to the appropriate calendar quarters. Paragraph (e) requires that the ALJ's decision be served on all parties to the proceeding, OSHA, and the U.S. Department of Labor's Associate Solicitor for Fair Labor Standards. Paragraph (e) also provides that any ALJ decision requiring reinstatement or lifting an order of reinstatement by the Assistant Secretary will be effective immediately upon receipt of the decision by the respondent. All other portions of the ALJ's order will be effective 14 days after the date of the decision unless a timely petition for review has been filed with the ARB. If no timely petition for review is filed with the ARB, the decision of the ALJ becomes the final decision of the Secretary and is not subject to judicial review. No comments were received on this section, and no changes were made to it. Section 1987.110 Decision and Orders of the Administrative Review Board Upon the issuance of the ALJ's decision, the parties have 14 days within which to petition the ARB for review of that decision. The date of the postmark, facsimile transmittal, or electronic communication transmittal is considered the date of filing of the petition; if the petition is filed in person, by hand delivery or other means, the petition is considered filed upon receipt. The appeal provisions in this part provide that an appeal to the ARB is not a matter of right but is accepted at the discretion of the ARB. The parties should identify in their petitions for review the legal conclusions or orders to which they object, or the objections may be deemed waived. The ARB has 30 days to decide whether to grant the petition for review. If the ARB does not grant the petition, the decision of the ALJ becomes the final decision of the Secretary. If a timely petition for review is filed with the ARB, any relief ordered by the ALJ, except for that portion ordering reinstatement, is inoperative while the matter is pending before the ARB. If the ARB accepts a petition for review, the ALJ's factual determinations will be reviewed under the substantial evidence standard. Kalijarvi submitted several comments related to this section of the rule. Kalijarvi requested the removal of the portion of the rule stating that objections not raised in the petition for review to the ARB may be considered waived. Instead, Kalijarvi requested that the provision be altered to instruct parties to identify in their petitions for review the legal conclusions or orders to which they object so that the ARB may determine whether the review presents issues worthy of full briefing. OSHA declines to revise the rule as Kalijarvi has proposed. OSHA notes that the IFR used the phrase ``may'' be deemed waived, indicating that the parties are not necessarily barred from subsequently raising grounds in addition to those included in the initial petition. Further, OSHA's inclusion of this provision is not intended to limit the circumstances in which parties can add additional grounds for review as a case progresses before the ARB; rather, the rules include this provision to put the public on notice of the possible consequences of failing to specify the basis of an appeal to the ARB. OSHA recognizes that, while the ARB has held in some instances that an exception not specifically urged may be deemed waived, the ARB also has found that the rules provide for exceptions to this general rule. Kalijarvi also requested that the deadline for filing a petition for review with the ARB be extended past 14 days, and for this section to allow explicitly for the parties to file a motion to extend the time for submitting a petition for review. Kalijarvi further requested that OSHA explain how the current text of the section furthers FSMA's remedial purpose. OSHA declines to extend the time limit to petition for review because the shorter review period is consistent with the practices and procedures followed in OSHA's other whistleblower programs. Furthermore, as Kalijarvi acknowledges in its comment, parties may file a motion for extension of time to appeal an ALJ's decision, and the ARB has discretion to grant such extensions. OSHA believes that mentioning a motion for an extension of time in these rules, where no other motions are mentioned, could lead the public to mistakenly conclude that the 14 day deadline may be waived as a matter of right, where such is not the case. OSHA believes that this section furthers the remedial purpose of FSMA by informing the public of the option of requesting ARB review of ALJ decisions as well as the deadlines associated with such review. This section also provides that, based on exceptional circumstances, the ARB may grant a motion to stay an ALJ's preliminary order of reinstatement under FSMA, which otherwise would be effective, while review is conducted by the ARB. The Secretary believes that a stay of an ALJ's preliminary order of reinstatement under FSMA would be appropriate only where the respondent can establish the necessary criteria for equitable injunctive relief, i.e., irreparable injury, likelihood of success on the merits, a balancing of possible harms to the parties, and the public interest favors a stay. If the ARB concludes that the respondent has violated the law, it will order the respondent to take appropriate affirmative action to abate the violation, including reinstatement of the complainant to that person's former position, together with the compensation (including back pay and interest), terms, conditions, and privileges of employment, and compensatory damages. At the request of the complainant, the ARB will assess against the respondent all costs and expenses (including attorney and expert witness fees) reasonably incurred. Interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily, and the respondent will be required to submit appropriate documentation to the Social Security Administration (SSA) allocating any back pay award to the appropriate calendar quarters. If the ARB determines that the respondent has not violated the law, an order will be issued denying the complaint. If, upon [[Page 22537]] the request of the respondent, the ARB determines that a complaint was frivolous or was brought in bad faith, the ARB may award to the respondent a reasonable attorney fee, not exceeding $1,000, to be paid by the complainant. No changes were made to this section, and other than the comments discussed above, no additional comments were received on this section. Subpart C--Miscellaneous Provisions Section 1987.111 Withdrawal of Complaints, Findings, Objections, and Petitions for Review; Settlement This section provides the procedures and time periods for withdrawal of complaints, the withdrawal of findings and/or preliminary orders by the Assistant Secretary, and the withdrawal of objections to findings and/or orders. It permits complainants to withdraw their complaints orally and provides that, in such circumstances, OSHA will confirm a complainant's desire to withdraw in writing. It also provides for approval of settlements at the investigative and adjudicative stages of the case. Roll commented that this provision should state explicitly that settlements may be conducted in a confidential manner and outside of the administrative proceedings. Because the IFR did not plainly provide such assurances, Roll expressed concern that ``the lack of confidentiality will work as a disincentive for both parties . . . [and] will ultimately lead to fewer out-of-court settlements. . . .'' Roll further commented that this section should include guidelines regarding when the Secretary will approve or disapprove a settlement agreement, as well as an explanation regarding the settlement options that are available to the parties. OSHA is not making any changes to the rule in response to this comment. This section implements FSMA's statutory provision that ``[a]t any time before issuance of a final order, a proceeding under this subsection may be terminated on the basis of a settlement agreement entered into by the Secretary, the complainant, and the person alleged to have committed the violation.'' 21 U.S.C. 399(b)(3)(A). However, OSHA notes that the Secretary has always recognized that parties may efficiently resolve cases in negotiations between themselves. The Secretary's policy is to approve privately negotiated settlements, provided that each settlement is reviewed by the Secretary to ensure that the terms are fair, adequate, reasonable, and consistent with the purpose and intent of the relevant whistleblower statute and the public interest. See, e.g., Macktal v. Sec'y of Labor, 923 F.2d 1150, 1154 (5th Cir. 1991) (agreeing that the Secretary may ``enter into'' a settlement by approving a settlement negotiated and agreed to by the parties); see also OSHA's Whistleblower Investigations Manual, pp. 6-18 to 6-21 (Apr. 21, 2015) available at http://www.whistleblowers.gov/regulations_page.html. OSHA believes that paragraphs (d)(1) and (2) adequately explain that a settlement agreement reached between the parties will settle a pending whistleblower case so long as the agreement is reviewed and approved by OSHA, an ALJ, or the ARB. The resources listed above provide more detailed guidance on when OSHA, an ALJ or the ARB will approve or disprove a settlement agreement, and OSHA thus believes it unnecessary to add such additional details to the regulatory text. As to Roll's confidentiality concerns, OSHA, an ALJ or the ARB will not approve an agreement that states or implies that any of these entities, or DOL more generally, is party to a confidentiality agreement. Moreover, as noted in paragraph (e) of this section, any settlement approved by OSHA, the ALJ, or the ARB will constitute the final order of the Secretary, and as such, an approved agreement is an official government record that is subject to applicable public disclosure rules. See, e.g., Gonzalez v. J.C. Penny Corp., Inc., ARB No. 10-148, 2012 WL 4753923, at *6 (ARB Sept. 28, 2012) (describing the public interest supporting the Secretary's review of settlement agreements); McGuire v. B.P. Prods. N. Am., Inc., 2014-TSC-0001, slip op. at 6-11 (ALJ Jan. 17, 2014) (describing public disclosure interests relating to whistleblower settlements and some of the provisions that the Secretary may not approve in a whistleblower settlement). Thus, for example, while parties may negotiate the terms of a settlement agreement in confidence and may indicate to OSHA, an ALJ or the ARB that they believe a settlement contains information exempt from disclosure under the Freedom of Information Act (FOIA) and that they should receive pre-disclosure notification of a request for disclosure, the Secretary must make his own determination of whether the contents of a settlement may be withheld in response to a request from a member of the public. See, e.g., Vannoy v. Celanese Corp., ARB No. 09-118, 2013 WL 5872048, at *2 (ARB Sept. 27, 2013) (describing the application of FOIA to a whistleblower settlement). Section 1987.112 Judicial Review This section describes the statutory provisions for judicial review of decisions of the Secretary and requires, in cases where judicial review is sought, the ALJ or the ARB to submit the record of proceedings to the appropriate court pursuant to the rules of such court. No comments were received on this section, and no changes were made to it. Section 1987.113 Judicial Enforcement This section describes the Secretary's power under FSMA to obtain judicial enforcement of orders and the terms of settlement agreements. FSMA expressly authorizes district courts to enforce orders, including preliminary orders of reinstatement, issued by the Secretary. See 21 U.S.C. 399d(b)(6) (``Whenever any person has failed to comply with an order issued under paragraph (3), the Secretary may file a civil action in the United States district court for the district in which the violation was found to occur, or in the United States district court for the District of Columbia, to enforce such order.''). Specifically, reinstatement orders issued at the close of OSHA's investigation are immediately enforceable in district court pursuant to 21 U.S.C. 399d(b)(6) and (7). FSMA provides that the Secretary shall order the person who has committed a violation to reinstate the complainant to his or her former position. See 21 U.S.C. 399d(b)(3)(B)(ii). FSMA also provides that the Secretary shall accompany any reasonable cause finding that a violation occurred with a preliminary order containing the relief prescribed by subsection (b)(3)(B), which includes reinstatement where appropriate, and that any preliminary order of reinstatement shall not be stayed upon the filing of objections. See 21 U.S.C. 399d(b)(2)(B) (``The filing of such objections shall not operate to stay any reinstatement remedy contained in the preliminary order.''). Thus, under FSMA, enforceable orders include preliminary orders that contain the relief of reinstatement prescribed by 21 U.S.C. 399d(b)(3)(B). This statutory interpretation is consistent with the Secretary's interpretation of similar language in the whistleblower provisions of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, 49 U.S.C. 42121, and Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act of 2002, 18 U.S.C. 1514A. See Brief for the Intervenor/Plaintiff-Appellee Secretary of Labor, Solis v. Tenn. Commerce Bancorp, Inc., No. 10-5602 [[Page 22538]] (6th Cir. 2010); Solis v. Tenn. Commerce Bancorp, Inc., 713 F. Supp. 2d 701 (M.D. Tenn. 2010); but see Bechtel v. Competitive Techs., Inc., 448 F.3d 469 (2d Cir. 2006); Welch v. Cardinal Bankshares Corp., 454 F. Supp. 2d 552 (W.D. Va. 2006) (decision vacated, appeal dismissed, No. 06-2295 (4th Cir. Feb. 20, 2008)). FSMA also permits the person on whose behalf the order was issued to obtain judicial enforcement of the order. See 21 U.S.C. 399d(b)(7). No comments were received on this section. OSHA has revised this section slightly to more closely parallel the provisions of the statute regarding the proper venue for an enforcement action. Section 1987.114 District Court Jurisdiction of Retaliation Complaints This section sets forth provisions that allow a complainant to bring an original de novo action in district court, alleging the same allegations contained in the complaint filed with OSHA, under certain circumstances. FSMA permits a complainant to file an action for de novo review in the appropriate district court if there has been no final decision of the Secretary within 210 days of the filing of the complaint, or within 90 days after receiving a written determination. ``Written determination'' refers to the Assistant Secretary's written findings issued at the close of OSHA's investigation under section 1987.105(a). See 21 U.S.C. 399d(b)(4). The Secretary's final decision is generally the decision of the ARB issued under section 1987.110. In other words, a complainant may file an action for de novo review in the appropriate district court in either of the following two circumstances: (1) A complainant may file a de novo action in district court within 90 days of receiving the Assistant Secretary's written findings issued under section 1987.105(a), or (2) a complainant may file a de novo action in district court if more than 210 days have passed since the filing of the complaint and the Secretary has not issued a final decision. The plain language of 21 U.S.C. 399d(b)(4), by distinguishing between actions that can be brought if the Secretary has not issued a ``final decision'' within 210 days and actions that can be brought within 90 days after a ``written determination,'' supports allowing de novo actions in district court under either of the circumstances described above. However, the Secretary believes that FSMA does not permit complainants to initiate an action in federal court after the Secretary issues a final decision, even if the date of the final decision is more than 210 days after the filing of the complaint or within 90 days of the complainant's receipt of the Assistant Secretary's written findings. The purpose of the ``kick-out'' provision is to aid the complainant in receiving a prompt decision. That goal is not implicated in a situation where the complainant already has received a final decision from the Secretary. In addition, permitting the complainant to file a new case in district court in such circumstances conflicts with the parties' right to seek judicial review of the Secretary's final decision in the court of appeals. See 21 U.S.C. 399d(b)(5)(B) (providing that an order with respect to which review could have been obtained in the court of appeals shall not be subject to judicial review in any criminal or other civil proceeding). Under FSMA, the Assistant Secretary's written findings become the final order of the Secretary, not subject to judicial review, if no objection is filed within 30 days. See 21 U.S.C. 399d(b)(2)(B). Thus, a complainant may need to file timely objections to the Assistant Secretary's findings, as provided for in Sec. 1987.106, in order to preserve the right to file an action in district court. This section also requires that, within seven days after filing a complaint in district court, a complainant must provide a file-stamped copy of the complaint to OSHA, the ALJ, or the ARB, depending on where the proceeding is pending. In all cases, a copy of the complaint also must be provided to the OSHA official who issued the findings and/or preliminary order, the Assistant Secretary, and the U.S. Department of Labor's Associate Solicitor for Fair Labor Standards. This provision is necessary to notify the agency that the complainant has opted to file a complaint in district court. This provision is not a substitute for the complainant's compliance with the requirements for service of process of the district court complaint contained in the Federal Rules of Civil Procedure and the local rules of the district court where the complaint is filed. This section also incorporates the statutory provisions which allow for a jury trial at the request of either party in a district court action, and which specify the remedies and burdens of proof in a district court action. In response to the IFR preamble's statement that the purpose of the ``kick-out'' provision is to ``aid the complainant in receiving a prompt decision,'' Kalijarvi commented that the kick-out provision offers additional benefits to complainants, such as an opportunity to receive a jury determination of damages. Indeed, Paragraph (a) of this section provides that an action brought under this section is entitled to trial by jury. OSHA appreciates Kalijarvi's comment, but has left the text of the rule unchanged. Section 1987.115 Special Circumstances; Waiver of Rules This section provides that in circumstances not contemplated by these rules or for good cause the ALJ or the ARB may, upon application and notice to the parties, waive any rule as justice or the administration of FSMA requires. No comments were received on this section, and no changes were made to it. IV. Paperwork Reduction Act This rule contains a reporting provision (filing a retaliation complaint, Section 1987.103) which was previously reviewed and approved for use by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13). The assigned OMB control number is 1218-0236. V. Administrative Procedure Act The notice and comment rulemaking procedures of section 553 of the Administrative Procedure Act (APA) do not apply ``to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.'' 5 U.S.C. 553(b)(A). This is a rule of agency procedure, practice, and interpretation within the meaning of that section, since it provides procedures for the Department's handling of retaliation complaints. Therefore, publication in the Federal Register of a notice of proposed rulemaking and request for comments are not required for these regulations. Although this rule is not subject to the notice and comment procedures of the APA, the Assistant Secretary sought and considered comments to enable the agency to improve the rules by taking into account the concerns of interested persons. Furthermore, because this rule is procedural and interpretative rather than substantive, the normal requirement of 5 U.S.C. 553(d) that a rule is effective 30 days after publication in the Federal Register is inapplicable. The Assistant Secretary also finds good cause to provide an immediate effective date for this rule. It is in the public interest that the rule be effective immediately so both parties may know what procedures are applicable to pending cases. [[Page 22539]] VI. Executive Orders 12866 and 13563; Unfunded Mandates Reform Act of 1995; Executive Order 13132 The Department has concluded that this rule is not a ``significant regulatory action'' within the meaning of section 3(f)(4) of Executive Order 12866, as reaffirmed by Executive Order 13563, because it is not likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in Executive Order 12866. Therefore, no regulatory impact analysis under Section 6(a)(3)(C) of Executive Order 12866 has been prepared. For this reason, and because no notice of proposed rulemaking has been published, no statement is required under Section 202 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531 et seq. Finally, this rule does not have ``federalism implications.'' The rule does not have ``substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government'' and therefore is not subject to Executive Order 13132 (Federalism). VII. Regulatory Flexibility Analysis The notice and comment rulemaking procedures of Section 553 of the APA do not apply ``to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.'' 5 U.S.C. 553(b)(A). Rules that are exempt from APA notice and comment requirements are also exempt from the Regulatory Flexibility Act (RFA). See SBA Office of Advocacy, A Guide for Government Agencies: How to Comply with the Regulatory Flexibility Act 9 (May 2012); also found at: http://www.sba.gov/sites/default/files/rfaguide_0512_0.pdf. This is a rule of agency procedure, practice, and interpretation within the meaning of that section; therefore, the rule is exempt from both the notice and comment rulemaking procedures of the APA and the requirements under the RFA. List of Subjects in 29 CFR Part 1987 Administrative practice and procedure, Employment, Food safety, Investigations, Reporting and recordkeeping requirements, Whistleblower. Authority and Signature This document was prepared under the direction and control of David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health. Signed at Washington, DC, on April 11, 2016. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health. Accordingly, for the reasons set out in the preamble, 29 CFR part 1987 is revised to read as follows: PART 1987--PROCEDURES FOR HANDLING RETALIATION COMPLAINTS UNDER SECTION 402 OF THE FDA FOOD SAFETY MODERNIZATION ACT Subpart A--Complaints, Investigations, Findings and Preliminary Orders 1987.100 Purpose and scope. 1987.101 Definitions. 1987.102 Obligations and prohibited acts. 1987.103 Filing of retaliation complaint. 1987.104 Investigation. 1987.105 Issuance of findings and preliminary orders. Subpart B--Litigation 1987.106 Objections to the findings and the preliminary order and requests for a hearing. 1987.107 Hearings. 1987.108 Role of Federal agencies. 1987.109 Decision and orders of the administrative law judge. 1987.110 Decision and orders of the Administrative Review Board. Subpart C--Miscellaneous Provisions 1987.111 Withdrawal of complaints, findings, objections, and petitions for review; settlement. 1987.112 Judicial review. 1987.113 Judicial enforcement. 1987.114 District court jurisdiction of retaliation complaints. 1987.115 Special circumstances; waiver of rules. Authority: 21 U.S.C. 399d; Secretary of Labor's Order No. 1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012); Secretary of Labor's Order No. 2-2012 (Oct. 19, 2012), 77 FR 69378 (Nov. 16, 2012). Subpart A--Complaints, Investigations, Findings and Preliminary Orders Sec. 1987.100 Purpose and scope. (a) This part sets forth the procedures for, and interpretations of, section 402 of the FDA Food Safety Modernization Act (FSMA), Public Law 111-353, 124 Stat. 3885, which was signed into law on January 4, 2011. Section 402 of the FDA Food Safety Modernization Act amended the Federal Food, Drug, and Cosmetic Act (FD&C), 21 U.S.C. 301 et seq., by adding new section 1012. See 21 U.S.C. 399d. Section 1012 of the FD&C provides protection for an employee from retaliation because the employee has engaged in protected activity pertaining to a violation or alleged violation of the FD&C, or any order, rule, regulation, standard, or ban under the FD&C. (b) This part establishes procedures under section 1012 of the FD&C for the expeditious handling of retaliation complaints filed by employees, or by persons acting on their behalf. The rules in this part, together with those codified at 29 CFR part 18, set forth the procedures under section 1012 of the FD&C for submission of complaints, investigations, issuance of findings and preliminary orders, objections to findings and orders, litigation before administrative law judges, post-hearing administrative review, and withdrawals and settlements. In addition, the rules in this part provide the Secretary's interpretations on certain statutory issues. Sec. 1987.101 Definitions. As used in this part: (a) Assistant Secretary means the Assistant Secretary of Labor for Occupational Safety and Health or the person or persons to whom he or she delegates authority under FSMA. (b) Business days means days other than Saturdays, Sundays, and Federal holidays. (c) Complainant means the employee who filed a complaint under FSMA or on whose behalf a complaint was filed. (d) Covered entity means an entity engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food. (e) Employee means an individual presently or formerly working for a covered entity, an individual applying to work for a covered entity, or an individual whose employment could be affected by a covered entity. (f) FD&C means the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 301 et seq., which is chapter 9 of title 21. [[Page 22540]] (g) FDA means the Food and Drug Administration of the United States Department of Health and Human Services. (h) Food means articles used for food or drink for man or other animals, chewing gum, and articles used for components of any such article. (i) FSMA means section 402 of the FDA Food Safety Modernization Act, Public Law 111-353, 124 Stat. 3885 (Jan. 4, 2011) (codified at 21 U.S.C. 399d). (j) OSHA means the Occupational Safety and Health Administration of the United States Department of Labor. (k) Person includes an individual, partnership, corporation, and association. (l) Respondent means the employer named in the complaint who is alleged to have violated the FSMA. (m) Secretary means the Secretary of Labor or person to whom authority under the FSMA has been delegated. (n) Any future statutory amendments that affect the definition of a term or terms listed in this section will apply in lieu of the definition stated herein. Sec. 1987.102 Obligations and prohibited acts. (a) No covered entity may discharge or otherwise retaliate against, including, but not limited to, intimidating, threatening, restraining, coercing, blacklisting or disciplining, any employee with respect to the employee's compensation, terms, conditions, or privileges of employment because the employee, whether at the employee's initiative or in the ordinary course of the employee's duties (or any person acting pursuant to a request of the employee), has engaged in any of the activities specified in paragraphs (b)(1) through (4) of this section. (b) An employee is protected against retaliation because the employee (or any person acting pursuant to a request of the employee) has: (1) Provided, caused to be provided, or is about to provide or cause to be provided to the employer, the Federal Government, or the attorney general of a State information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of any provision of the FD&C or any order, rule, regulation, standard, or ban under the FD&C; (2) Testified or is about to testify in a proceeding concerning such violation; (3) Assisted or participated or is about to assist or participate in such a proceeding; or (4) Objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any provision of the FD&C, or any order, rule, regulation, standard, or ban under the FD&C. Sec. 1987.103 Filing of retaliation complaint. (a) Who may file. An employee who believes that he or she has been retaliated against in violation of FSMA may file, or have filed by any person on the employee's behalf, a complaint alleging such retaliation. (b) Nature of filing. No particular form of complaint is required. A complaint may be filed orally or in writing. Oral complaints will be reduced to writing by OSHA. If the complainant is unable to file the complaint in English, OSHA will accept the complaint in any language. (c) Place of filing. The complaint should be filed with the OSHA office responsible for enforcement activities in the geographical area where the employee resides or was employed, but may be filed with any OSHA officer or employee. Addresses and telephone numbers for these officials are set forth in local directories and at the following Internet address: http://www.osha.gov. (d) Time for filing. Within 180 days after an alleged violation of FSMA occurs, any employee who believes that he or she has been retaliated against in violation of that section may file, or have filed by any person on the employee's behalf, a complaint alleging such retaliation. The date of the postmark, facsimile transmittal, electronic communication transmittal, telephone call, hand-delivery, delivery to a third-party commercial carrier, or in-person filing at an OSHA office will be considered the date of filing. The time for filing a complaint may be tolled for reasons warranted by applicable case law. For example, OSHA may consider the time for filing a complaint to be tolled if a complainant mistakenly files a complaint with an agency other than OSHA within 180 days after an alleged adverse action. Sec. 1987.104 Investigation. (a) Upon receipt of a complaint in the investigating office, OSHA will notify the respondent of the filing of the complaint, of the allegations contained in the complaint, and of the substance of the evidence supporting the complaint. Such materials will be redacted, if necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. OSHA will also notify the respondent of its rights under paragraphs (b) and (f) of this section and Sec. 1987.110(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 FDA. (b) Within 20 days of receipt of the notice of the filing of the complaint provided under paragraph (a) of this section, the respondent and the complainant each may submit to OSHA a written statement and any affidavits or documents substantiating its position. Within the same 20 days, the respondent and the complainant each may request a meeting with OSHA to present its position. (c) During the investigation, OSHA will request that each party provide the other parties to the whistleblower complaint with a copy of submissions to OSHA that are pertinent to the whistleblower complaint. Alternatively, if a party does not provide its submissions to OSHA to the other party, OSHA will provide them to the other party (or the party's legal counsel if the party is represented by counsel) at a time permitting the other party an opportunity to respond. Before providing such materials to the other party, OSHA will redact them, if necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. OSHA will also provide each party with an opportunity to respond to the other party's submissions. (d) Investigations will be conducted in a manner that protects the confidentiality of any person who provides information on a confidential basis, other than the complainant, in accordance with part 70 of this title. (e)(1) A complaint will be dismissed unless the complainant has made a prima facie showing (i.e., a non-frivolous allegation) that a protected activity was a contributing factor in the adverse action alleged in the complaint. (2) The complaint, supplemented as appropriate by interviews of the complainant, must allege the existence 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 [[Page 22541]] face, supplemented as appropriate through interviews of the complainant, alleges the existence of facts and either direct or circumstantial evidence to meet the required showing, i.e., to give rise to an inference that the respondent knew or suspected that the employee engaged in protected activity and that the protected activity was a contributing factor in the adverse action. The burden may be satisfied, for example, if the complaint shows that the adverse action took place within a temporal proximity of the protected activity, or at the first opportunity available to the respondent, giving rise to the inference that it was a contributing factor in the adverse action. If the required showing has not been made, the complainant (or the complainant's legal counsel if complainant is represented by counsel) will be so notified and the investigation will not commence. (4) Notwithstanding a finding that a complainant has made a prima facie showing, as required by this section, further investigation of the complaint will not be conducted if the respondent demonstrates by clear and convincing evidence that it would have taken the same adverse action in the absence of the complainant's protected activity. (5) If the respondent fails to make a timely response or fails to satisfy the burden set forth in paragraph (e)(4) of this section, OSHA will proceed with the investigation. The investigation will proceed whenever it is necessary or appropriate to confirm or verify the information provided by the respondent. (f) Prior to the issuance of findings and a preliminary order as provided for in Sec. 1987.105, if OSHA has reasonable cause, on the basis of information gathered under the procedures of this part, to believe that the respondent has violated FSMA and that preliminary reinstatement is warranted, OSHA will contact the respondent (or the respondent's legal counsel if respondent is represented by counsel) to give notice of the substance of the relevant evidence supporting the complainant's allegations as developed during the course of the investigation. This evidence includes any witness statements, which will be redacted to protect the identity of confidential informants where statements were given in confidence; if the statements cannot be redacted without revealing the identity of confidential informants, summaries of their contents will be provided. The complainant will also receive a copy of the materials that must be provided to the respondent under this paragraph. Before providing such materials, OSHA will redact them, if necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. The respondent will be given the opportunity to submit a written response, to meet with the investigators, to present statements from witnesses in support of its position, and to present legal and factual arguments. The respondent must present this evidence within 10 business days of OSHA's notification pursuant to this paragraph, or as soon thereafter as OSHA and the respondent can agree, if the interests of justice so require. Sec. 1987.105 Issuance of findings and preliminary orders. (a) After considering all the relevant information collected during the investigation, the Assistant Secretary will issue, within 60 days of the filing of the complaint, written findings as to whether or not there is reasonable cause to believe that the respondent has retaliated against the complainant in violation of FSMA. (1) If the Assistant Secretary concludes that there is reasonable cause to believe that a violation has occurred, the Assistant Secretary will accompany the findings with a preliminary order providing relief to the complainant. The preliminary order will require, where appropriate: Affirmative action to abate the violation; reinstatement of the complainant to his or her former position, together with the compensation (including back pay and interest), terms, conditions and privileges of the complainant's employment; and payment of compensatory damages, including, at the request of the complainant, the aggregate amount of all costs and expenses (including attorney and expert witness fees) reasonably incurred. Interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily. The preliminary order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate calendar quarters. (2) If the Assistant Secretary concludes that a violation has not occurred, the Assistant Secretary will notify the parties of that finding. (b) The findings and, where appropriate, the preliminary order will be sent by certified mail, return receipt requested (or other means that allow OSHA to confirm receipt), to all parties of record (and each party's legal counsel if the party is represented by counsel). The findings and, where appropriate, the preliminary order will inform the parties of the right to object to the findings and/or order and to request a hearing, and of the right of the respondent to request an award of attorney fees not exceeding $1,000 from the administrative law judge (ALJ), regardless of whether the respondent has filed objections, if the respondent alleges that the complaint was frivolous or brought in bad faith. The findings and, where appropriate, the preliminary order also will give the address of the Chief Administrative Law Judge, U.S. Department of Labor. At the same time, the Assistant Secretary will file with the Chief Administrative Law Judge a copy of the original complaint and a copy of the findings and/or order. (c) The findings and any preliminary order will be effective 30 days after receipt by the respondent (or the respondent's legal counsel if the respondent is represented by counsel), or on the compliance date set forth in the preliminary order, whichever is later, unless an objection and/or a request for hearing has been timely filed as provided at Sec. 1987.106. However, the portion of any preliminary order requiring reinstatement will be effective immediately upon the respondent's receipt of the findings and the preliminary order, regardless of any objections to the findings and/or the order. Subpart B--Litigation Sec. 1987.106 Objections to the findings and the preliminary order and requests for a hearing. (a) Any party who desires review, including judicial review, of the findings and/or preliminary order, or a respondent alleging that the complaint was frivolous or brought in bad faith who seeks an award of attorney fees under FSMA, must file any objections and/or a request for a hearing on the record within 30 days of receipt of the findings and preliminary order pursuant to Sec. 1987.105. The objections, request for a hearing, and/or request for attorney fees must be in writing and state whether the objections are to the findings, the preliminary order, and/or whether there should be an award of attorney fees. The date of the postmark, facsimile transmittal, or electronic communication transmittal is considered the date of filing; if the objection is filed in person, by hand delivery or other means, the objection is filed upon receipt. Objections must be filed with the Chief Administrative Law Judge, U.S. Department of Labor, and copies of the objections must be mailed at the same time to the other parties of [[Page 22542]] record, the OSHA official who issued the findings and order, the Assistant Secretary, and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor. (b) If a timely objection is filed, all provisions of the preliminary order will be stayed, except for the portion requiring preliminary reinstatement, which will not be automatically stayed. The portion of the preliminary order requiring reinstatement will be effective immediately upon the respondent's receipt of the findings and preliminary order, regardless of any objections to the order. The respondent may file a motion with the Office of Administrative Law Judges for a stay of the Assistant Secretary's preliminary order of reinstatement, which shall be granted only based on exceptional circumstances. If no timely objection is filed with respect to either the findings or the preliminary order, the findings and/or the preliminary order will become the final decision of the Secretary, not subject to judicial review. Sec. 1987.107 Hearings. (a) Except as provided in this part, proceedings will be conducted in accordance with the rules of practice and procedure for administrative hearings before the Office of Administrative Law Judges, codified at subpart A of part 18 of this title. (b) Upon receipt of an objection and request for hearing, the Chief Administrative Law Judge will promptly assign the case to an ALJ who will notify the parties, by certified mail, of the day, time, and place of hearing. The hearing is to commence expeditiously, except upon a showing of good cause or unless otherwise agreed to by the parties. Hearings will be conducted de novo on the record. ALJs have broad discretion to limit discovery in order to expedite the hearing. (c) If both the complainant and the respondent object to the findings and/or order, the objections will be consolidated and a single hearing will be conducted. (d) Formal rules of evidence will not apply, but rules or principles designed to assure production of the most probative evidence will be applied. The ALJ may exclude evidence that is immaterial, irrelevant, or unduly repetitious. Sec. 1987.108 Role of Federal agencies. (a)(1) The complainant and the respondent will be parties in every proceeding and must be served with copies of all documents in the case. At the Assistant Secretary's discretion, the Assistant Secretary may participate as a party or as amicus curiae at any time at any stage of the proceeding. This right to participate includes, but is not limited to, the right to petition for review of a decision of an ALJ, including a decision approving or rejecting a settlement agreement between the complainant and the respondent. (2) Parties must send copies of documents to OSHA and to the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, only upon request of OSHA, or when OSHA is participating in the proceeding, or when service on OSHA and the Associate Solicitor is otherwise required by the rules in this part. (b) The FDA, if interested in a proceeding, may participate as amicus curiae at any time in the proceeding, at the FDA's discretion. At the request of the FDA, copies of all documents in a case must be sent to the FDA, whether or not the FDA is participating in the proceeding. Sec. 1987.109 Decision and orders of the administrative law judge. (a) The decision of the ALJ will contain appropriate findings, conclusions, and an order pertaining to the remedies provided in paragraph (d) of this section, as appropriate. A determination that a violation has occurred may be made only if the complainant has demonstrated by a preponderance of the evidence that protected activity was a contributing factor in the adverse action alleged in the complaint. (b) If the complainant has satisfied the burden set forth in the prior paragraph, relief may not be ordered if the respondent demonstrates by clear and convincing evidence that it would have taken the same adverse action in the absence of any protected activity. (c) Neither OSHA's determination to dismiss a complaint without completing an investigation pursuant to Sec. 1987.104(e) nor OSHA's determination to proceed with an investigation is subject to review by the ALJ, and a complaint may not be remanded for the completion of an investigation or for additional findings on the basis that a determination to dismiss was made in error. Rather, if there otherwise is jurisdiction, the ALJ will hear the case on the merits or dispose of the matter without a hearing if the facts and circumstances warrant. (d)(1) If the ALJ concludes that the respondent has violated the law, the ALJ will issue an order that will require, where appropriate: Affirmative action to abate the violation; reinstatement of the complainant to his or her former position, together with the compensation (including back pay and interest), terms, conditions, and privileges of the complainant's employment; and payment of compensatory damages, including, at the request of the complainant, the aggregate amount of all costs and expenses (including attorney and expert witness fees) reasonably incurred. Interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily. The order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate calendar quarters. (2) If the ALJ determines that the respondent has not violated the law, an order will be issued denying the complaint. If, upon the request of the respondent, the ALJ determines that a complaint was frivolous or was brought in bad faith, the ALJ may award to the respondent a reasonable attorney fee, not exceeding $1,000. (e) The decision will be served upon all parties to the proceeding, the Assistant Secretary, and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor. Any ALJ's decision requiring reinstatement or lifting an order of reinstatement by the Assistant Secretary will be effective immediately upon receipt of the decision by the respondent. All other portions of the ALJ's order will be effective 14 days after the date of the decision unless a timely petition for review has been filed with the Administrative Review Board (ARB), U.S. Department of Labor. The decision of the ALJ will become the final order of the Secretary unless a petition for review is timely filed with the ARB and the ARB accepts the petition for review. Sec. 1987.110 Decision and orders of the Administrative Review Board. (a) Any party desiring to seek review, including judicial review, of a decision of the ALJ, or a respondent alleging that the complaint was frivolous or brought in bad faith who seeks an award of attorney fees, must file a written petition for review with the ARB, which has been delegated the authority to act for the Secretary and issue final decisions under this part. The parties should identify in their petitions for review the legal conclusions or orders to which they object, or the objections may be deemed waived. A petition must be filed within 14 days of the date of the decision of the ALJ. The date of the [[Page 22543]] postmark, facsimile transmittal, or electronic communication transmittal will be considered to be the date of filing; if the petition is filed in person, by hand delivery or other means, the petition is considered filed upon receipt. The petition must be served on all parties and on the Chief Administrative Law Judge at the time it is filed with the ARB. Copies of the petition for review must be served on the Assistant Secretary and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor. (b) If a timely petition for review is filed pursuant to paragraph (a) of this section, the decision of the ALJ will become the final order of the Secretary unless the ARB, within 30 days of the filing of the petition, issues an order notifying the parties that the case has been accepted for review. If a case is accepted for review, the decision of the ALJ will be inoperative unless and until the ARB issues an order adopting the decision, except that any order of reinstatement will be effective while review is conducted by the ARB, unless the ARB grants a motion by the respondent to stay that order based on exceptional circumstances. The ARB will specify the terms under which any briefs are to be filed. The ARB will review the factual determinations of the ALJ under the substantial evidence standard. If no timely petition for review is filed, or the ARB denies review, the decision of the ALJ will become the final order of the Secretary. If no timely petition for review is filed, the resulting final order is not subject to judicial review. (c) The final decision of the ARB will be issued within 120 days of the conclusion of the hearing, which will be deemed to be 14 days after the date of the decision of the ALJ, unless a motion for reconsideration has been filed with the ALJ in the interim. In such case the conclusion of the hearing is the date the motion for reconsideration is denied or 14 days after a new decision is issued. The ARB's final decision will be served upon all parties and the Chief Administrative Law Judge by mail. The final decision will also be served on the Assistant Secretary and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, even if the Assistant Secretary is not a party. (d) If the ARB concludes that the respondent has violated the law, the ARB will issue a final order providing relief to the complainant. The final order will require, where appropriate: Affirmative action to abate the violation; reinstatement of the complainant to his or her former position, together with the compensation (including back pay and interest), terms, conditions, and privileges of the complainant's employment; and payment of compensatory damages, including, at the request of the complainant, the aggregate amount of all costs and expenses (including attorney and expert witness fees) reasonably incurred. Interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily. The order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate calendar quarters. (e) If the ARB determines that the respondent has not violated the law, an order will be issued denying the complaint. If, upon the request of the respondent, the ARB determines that a complaint was frivolous or was brought in bad faith, the ARB may award to the respondent a reasonable attorney fee, not exceeding $1,000. Subpart C--Miscellaneous Provisions Sec. 1987.111 Withdrawal of complaints, findings, objections, and petitions for review; settlement. (a) At any time prior to the filing of objections to the Assistant Secretary's findings and/or preliminary order, a complainant may withdraw his or her complaint by notifying OSHA, orally or in writing, of his or her withdrawal. OSHA then will confirm in writing the complainant's desire to withdraw and determine whether to approve the withdrawal. OSHA will notify the parties (and each party's legal counsel if the party is represented by counsel) of the approval of any withdrawal. If the complaint is withdrawn because of settlement, the settlement must be submitted for approval in accordance with paragraph (d) of this section. A complainant may not withdraw his or her complaint after the filing of objections to the Assistant Secretary's findings and/or preliminary order. (b) The Assistant Secretary may withdraw the findings and/or preliminary order at any time before the expiration of the 30-day objection period described in Sec. 1987.106, provided that no objection has been filed yet, and substitute new findings and/or a new preliminary order. The date of the receipt of the substituted findings or order will begin a new 30-day objection period. (c) At any time before the Assistant Secretary's findings and/or order become final, a party may withdraw objections to the Assistant Secretary's findings and/or order by filing a written withdrawal with the ALJ. If the case is on review with the ARB, a party may withdraw a petition for review of an ALJ's decision at any time before that decision becomes final by filing a written withdrawal with the ARB. The ALJ or the ARB, as the case may be, will determine whether to approve the withdrawal of the objections or the petition for review. If the ALJ approves a request to withdraw objections to the Assistant Secretary's findings and/or order, and there are no other pending objections, the Assistant Secretary's findings and/or order will become the final order of the Secretary. If the ARB approves a request to withdraw a petition for review of an ALJ decision, and there are no other pending petitions for review of that decision, the ALJ's decision will become the final order of the Secretary. If objections or a petition for review are withdrawn because of settlement, the settlement must be submitted for approval in accordance with paragraph (d) of this section. (d)(1) Investigative settlements. At any time after the filing of a complaint, but before the findings and/or order are objected to or become a final order by operation of law, the case may be settled if OSHA, the complainant, and the respondent agree to a settlement. OSHA's approval of a settlement reached by the respondent and the complainant demonstrates OSHA's consent and achieves the consent of all three parties. (2) Adjudicatory settlements. At any time after the filing of objections to the Assistant Secretary's findings and/or order, the case may be settled if the participating parties agree to a settlement and the settlement is approved by the ALJ if the case is before the ALJ, or by the ARB if the ARB has accepted the case for review. A copy of the settlement will be filed with the ALJ or the ARB, as appropriate. (e) Any settlement approved by OSHA, the ALJ, or the ARB will constitute the final order of the Secretary and may be enforced in United States district court pursuant to Sec. 1987.113. Sec. 1987.112 Judicial review. (a) Within 60 days after the issuance of a final order under Sec. Sec. 1987.109 and 1987.110, any person adversely affected or aggrieved by the order may file a petition for review of the order in the United States Court of Appeals for the circuit in which the violation allegedly occurred or the circuit in which the [[Page 22544]] complainant resided on the date of the violation. (b) A final order is not subject to judicial review in any criminal or other civil proceeding. (c) If a timely petition for review is filed, the record of a case, including the record of proceedings before the ALJ, will be transmitted by the ARB or the ALJ, as the case may be, to the appropriate court pursuant to the Federal Rules of Appellate Procedure and the local rules of such court. Sec. 1987.113 Judicial enforcement. Whenever any person has failed to comply with a preliminary order of reinstatement, or a final order, including one approving a settlement agreement, issued under FSMA, the Secretary may file a civil action seeking enforcement of the order in the United States district court for the district in which the violation was found to have occurred or in the United States district court for the District of Columbia. Whenever any person has failed to comply with a preliminary order of reinstatement, or a final order, including one approving a settlement agreement, issued under FSMA, a person on whose behalf the order was issued may file a civil action seeking enforcement of the order in the appropriate United States district court. Sec. 1987.114 District court jurisdiction of retaliation complaints. (a) The complainant may bring an action at law or equity for de novo review in the appropriate district court of the United States, which will have jurisdiction over such an action without regard to the amount in controversy, either: (1) Within 90 days after receiving a written determination under Sec. 1987.105(a) provided that there has been no final decision of the Secretary; or (2) If there has been no final decision of the Secretary within 210 days of the filing of the complaint. (b) At the request of either party, the action shall be tried by the court with a jury. (c) A proceeding under paragraph (a) of this section shall be governed by the same legal burdens of proof specified in Sec. 1987.109. The court shall have jurisdiction to grant all relief necessary to make the employee whole, including injunctive relief and compensatory damages, including: (1) Reinstatement with the same seniority status that the employee would have had, but for the discharge or discrimination; (2) The amount of back pay, with interest; (3) Compensation for any special damages sustained as a result of the discharge or discrimination; and (4) Litigation costs, expert witness fees, and reasonable attorney fees. (d) Within seven days after filing a complaint in federal court, a complainant must file with OSHA, the ALJ, or the ARB, depending on where the proceeding is pending, a copy of the file-stamped complaint. In all cases, a copy of the complaint also must be served on the OSHA official who issued the findings and/or preliminary order, the Assistant Secretary, and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor. Sec. 1987.115 Special circumstances; waiver of rules. In special circumstances not contemplated by the provisions of the rules in this part, or for good cause shown, the ALJ or the ARB on review may, upon application, after three days notice to all parties, waive any rule or issue such orders that justice or the administration of FSMA requires. [FR Doc. 2016-08724 Filed 4-15-16; 8:45 am] BILLING CODE 4510-26-P
![22530 Federal Register / Vol. 81, No. 74 / Monday, April 18, 2016 / Rules and Regulations
(5) Labeling must include the withstand forces or conditions ACTION: Final rule.
following: encountered during use;
(i) The labeling must clearly state that (iii) Simulated use analysis/testing SUMMARY: This document provides the
these devices are intended for use in a must demonstrate adequate user final text of regulations governing the
hospital environment and under the interface for adjustable parameters, employee protection (retaliation or
supervision of a clinician trained in performance of alarms, display screens, whistleblower) provision found at
their use; interface with external devices (e.g. data section 402 of the FDA Food Safety
(ii) Connector terminals should be storage, printing), and indicator(s) Modernization Act (FSMA), which
clearly, unambiguously marked on the functionality under intended use added section 1012 to the Federal Food,
outside of the EPPG device. The conditions; and Drug, and Cosmetic Act. An interim
markings should identify positive (+) (iv) Methods and instructions for final rule governing these provisions
and negative (¥) polarities. Dual cleaning the pulse generator and and requesting public comment was
chamber devices should clearly identify connection cables must be validated. published in the Federal Register on
atrial and ventricular terminals; (4) Appropriate software verification, February 13, 2014. Two comments were
(iii) The labeling must list all pacing validation, and hazard analysis must be received that were responsive to the
modes available in the device; performed. rule. This rule responds to those
(iv) Labeling must include a detailed (5) Labeling must include the comments and establishes the final
description of any special capabilities following: procedures and time frames for the
(e.g., overdrive pacing or automatic (i) The labeling must clearly state that handling of retaliation complaints under
mode switching); and these devices are intended for use in a FSMA, including procedures and time
(v) Appropriate electromagnetic hospital environment and under the frames for employee complaints to the
compatibility information must be supervision of a clinician trained in Occupational Safety and Health
included. their use; Administration (OSHA), investigations
(ii) Connector terminals should be by OSHA, appeals of OSHA
■ 3. In Subpart D, add § 870.3605 to
clearly, unambiguously marked on the determinations to an administrative law
read as follows: judge (ALJ) for a hearing de novo,
outside of the PSA. The markings
§ 870.3605 Pacing system analyzer. should identify positive (+) and negative hearings by ALJs, review of ALJ
(a) Identification. A pacing system (¥) polarities. Dual chamber devices decisions by the Administrative Review
analyzer (PSA) is a prescription device should clearly identify atrial and Board (ARB) (acting on behalf of the
that combines the functionality of a ventricular terminals. Triple chamber Secretary of Labor), and judicial review
pacemaker electrode function tester devices should clearly identify atrial, of the Secretary’s final decision.
(§ 870.3720) and an external pacemaker right ventricular, and left ventricular DATES: This final rule is effective on
pulse generator (EPPG) (§ 870.3600). It is terminals; April 18, 2016.
connected to a pacemaker lead and uses (iii) The labeling must list all pacing FOR FURTHER INFORMATION CONTACT:
a power supply and electronic circuits modes available in the device; Cleveland Fairchild, Program Analyst,
to supply an accurately calibrated, (iv) Labeling must include a detailed Directorate of Whistleblower Protection
variable pacing pulse for measuring the description of any special capabilities Programs, Occupational Safety and
patient’s pacing threshold and (e.g., overdrive pacing or automatic Health Administration, U.S. Department
intracardiac R-wave potential. A PSA mode switching); of Labor, Room N–4618, 200
may be a single, dual, or triple chamber (v) Labeling must limit the use of Constitution Avenue NW., Washington,
system and can simultaneously deliver external pacing to the implant DC 20210; telephone (202) 693–2199.
pacing therapy while testing one or procedure; and This is not a toll-free number. Email:
more implanted pacing leads. (vi) Appropriate electromagnetic OSHA.DWPP@dol.gov. This Federal
(b) Classification. Class II (special compatibility information must be Register publication is available in
controls). The special controls for this included. alternative formats. The alternative
device are: Dated: April 12, 2016. formats available are: Large print,
(1) Appropriate analysis/testing must Leslie Kux, electronic file on computer disk (Word
validate electromagnetic compatibility Associate Commissioner for Policy.
Perfect, ASCII, Mates with Duxbury
(EMC) within a hospital environment. Braille System), and audiotape.
[FR Doc. 2016–08898 Filed 4–15–16; 8:45 am]
(2) Electrical bench testing must SUPPLEMENTARY INFORMATION:
BILLING CODE 4164–01–P
demonstrate device safety during
intended use. This must include testing I. Background
with the specific power source (i.e., The FDA Food Safety Modernization
battery power, AC mains connections, DEPARTMENT OF LABOR Act (Pub. L. 111–353, 124 Stat. 3885),
or both). was signed into law on January 4, 2011.
Occupational Safety and Health
(3) Non-clinical performance testing Section 402 of the FDA Food Safety
Administration
data must demonstrate the performance Modernization Act amended the Federal
characteristics of the device. Testing Food, Drug, and Cosmetic Act (FD&C) to
29 CFR Part 1987
must include the following: add section 1012, 21 U.S.C. 399d, which
(i) Testing must demonstrate the [Docket Number: OSHA–2011–0859] provides protection to employees
accuracy of monitoring functions, against retaliation by an entity engaged
mstockstill on DSK4VPTVN1PROD with RULES
alarms, measurement features, RIN 1218–AC58
in the manufacture, processing, packing,
therapeutic features, and all adjustable Procedures for Handling Retaliation transporting, distribution, reception,
or programmable parameters as Complaints Under Section 402 of the holding, or importation of food for
identified in labeling; FDA Food Safety Modernization Act engaging in certain protected activities.
(ii) Mechanical bench testing of Section 1012 protects employees against
material strength must demonstrate that AGENCY:Occupational Safety and Health retaliation because they provided or are
the device and connection cables will Administration, Labor. about to provide to their employer, the
VerDate Sep<11>2014 16:20 Apr 15, 2016 Jkt 238001 PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 E:\FR\FM\18APR1.SGM 18APR1](https://thefederalregister.org/doc/81_FR_22604/page/1.svg)
![Federal Register / Vol. 81, No. 74 / Monday, April 18, 2016 / Rules and Regulations 22533
Complaints filed under FSMA need Paragraph (e) of this section sets forth adverse action. A contributing factor is
not be in any particular form. They may the applicable burdens of proof. FSMA ‘‘any factor which, alone or in
be either oral or in writing. If the requires that a complainant make an connection with other factors, tends to
complainant is unable to file the initial prima facie showing that affect in any way the outcome of the
complaint in English, OSHA will accept protected activity was ‘‘a contributing decision.’’ Marano v. Dep’t of Justice, 2
the complaint in any language. With the factor’’ in the adverse action alleged in F.3d 1137, 1140 (Fed. Cir. 1993)
consent of the employee, complaints the complaint, i.e., that the protected (internal quotation marks, emphasis and
may be filed by any person on the activity, alone or in combination with citation omitted) (discussing the
employee’s behalf. other factors, affected in some way the Whistleblower Protection Act, 5 U.S.C.
OSHA notes that a complaint of outcome of the employer’s decision. The 1221(e)(1)); see also Addis v. Dep’t of
retaliation filed with OSHA under complainant will be considered to have Labor, 575 F.3d 688, 689–91 (7th Cir.
FSMA is not a formal document and met the required burden if the 2009) (discussing Marano as applied to
need not conform to the pleading complaint on its face, supplemented as analogous whistleblower provision in
standards for complaints filed in federal appropriate through interviews of the the ERA); Clarke v. Navajo Express, Inc.,
district court articulated in Bell Atlantic complainant, alleges the existence of ARB No. 09–114, 2011 WL 2614326, at
Corp. v. Twombly, 550 U.S. 544 (2007) facts and either direct or circumstantial * 3 (ARB June 29, 2011) (discussing
and Ashcroft v. Iqbal, 556 U.S. 662 evidence to meet the required showing. burdens of proof under analogous
(2009). See Sylvester, 2011 WL 2165854, The complainant’s burden may be whistleblower provision in the Surface
at * 9–10 (holding whistleblower satisfied, for example, if he or she shows Transportation Assistance Act (STAA)).
complaints filed with OSHA under that the adverse action took place For protected activity to be a
analogous provisions in the Sarbanes- within a temporal proximity of the contributing factor in the adverse action,
Oxley Act need not conform to federal protected activity, or at the first ‘‘a complainant need not necessarily
court pleading standards). Rather, the opportunity available to the respondent, prove that the respondent’s articulated
complaint filed with OSHA under this giving rise to the inference that it was reason was a pretext in order to
section simply alerts OSHA to the a contributing factor in the adverse prevail,’’ because a complainant
existence of the alleged retaliation and action. See, e.g., Porter v. Cal. Dep’t of alternatively can prevail by showing
the complainant’s desire that OSHA Corrs., 419 F.3d 885, 895 (9th Cir. 2005) that the respondent’s ‘‘ ‘reason, while
investigate the complaint. Upon receipt (years between the protected activity true, is only one of the reasons for its
of the complaint, OSHA is to determine and the retaliatory actions did not defeat conduct,’ ’’ and that another reason was
whether the ‘‘complaint, supplemented a finding of a causal connection where the complainant’s protected activity.
as appropriate by interviews of the the defendant did not have the See Klopfenstein v. PCC Flow Techs.
complainant’’ alleges ‘‘the existence of opportunity to retaliate until he was Holdings, Inc., ARB No. 04–149, 2006
facts and evidence to make a prima facie given responsibility for making WL 3246904, at * 13 (ARB May 31,
showing.’’ 29 CFR 1987.104(e). As personnel decisions). 2006) (quoting Rachid v. Jack in the
If the complainant does not make the Box, Inc., 376 F.3d 305, 312 (5th Cir.
explained in section 1987.104(e), if the
required prima facie showing, the 2004)) (discussing contributing factor
complaint, supplemented as
investigation must be discontinued and test under the Sarbanes-Oxley
appropriate, contains a prima facie
the complaint dismissed. See Trimmer whistleblower provision), aff’d sub
allegation, and the respondent does not v. U.S. Dep’t of Labor, 174 F.3d 1098, nom. Klopfenstein v. Admin. Review
show clear and convincing evidence 1101 (10th Cir. 1999) (noting that the Bd., U.S. Dep’t of Labor, 402 F. App’x
that it would have taken the same action burden-shifting framework of the Energy 936, 2010 WL 4746668 (5th Cir. 2010).
in the absence of the alleged protected Reorganization Act of 1974 (ERA), If OSHA finds reasonable cause to
activity, OSHA conducts an which is the same framework now believe that the alleged protected
investigation to determine whether applicable to FSMA, serves a activity was a contributing factor in the
there is reasonable cause to believe that ‘‘gatekeeping function’’ that ‘‘stem[s] adverse action, OSHA may not order
retaliation has occurred. See 21 U.S.C. frivolous complaints’’). Even in cases relief if the employer demonstrates by
399d(b)(2)(A), 29 CFR 1987.104(e). where the complainant successfully clear and convincing evidence that it
No comments were received on this makes a prima facie showing, the would have taken the same action in the
section, and no changes were made to investigation must be discontinued if absence of the protected activity. See 21
it. the employer demonstrates, by clear and U.S.C. 399d(b)(2)(C). The ‘‘clear and
Section 1987.104 Investigation convincing evidence, that it would have convincing evidence’’ standard is a
taken the same adverse action in the higher burden of proof than a
This section describes the procedures absence of the protected activity. Thus, ‘‘preponderance of the evidence’’
that apply to the investigation of OSHA must dismiss a complaint under standard. Clear and convincing
complaints under FSMA. Paragraph (a) FSMA and not investigate further if evidence is evidence indicating that the
of this section outlines the procedures either: (1) The complainant fails to meet thing to be proved is highly probable or
for notifying the parties and the FDA of the prima facie showing that protected reasonably certain. Clarke, 2011 WL
the complaint and notifying the activity was a contributing factor in the 2614326, at * 3.
respondent of its rights under these adverse action; or (2) the employer Paragraph (f) describes the procedures
regulations. Paragraph (b) describes the rebuts that showing by clear and OSHA will follow prior to the issuance
procedures for the respondent to submit convincing evidence that it would have of findings and a preliminary order
its response to the complaint. Paragraph taken the same adverse action absent the when OSHA has reasonable cause to
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(c) describes OSHA’s procedures for protected activity. believe that a violation has occurred.
sharing a party’s submissions during a Assuming that an investigation Roll commented that this section of
whistleblower investigation with the proceeds beyond the gatekeeping phase, the IFR did not explicitly state that the
other parties to the investigation. the statute requires OSHA to determine respondent has the right to receive
Paragraph (d) of this section discusses whether there is reasonable cause to copies of the substantive evidence
confidentiality of information provided believe that protected activity was a provided by the complainant, and Roll
during investigations. contributing factor in the alleged states that it is ‘‘essential that both
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![22534 Federal Register / Vol. 81, No. 74 / Monday, April 18, 2016 / Rules and Regulations
parties receive equal access to all has filed objections, if the respondent N.L.R.B. No. 181, 1987 WL 89652, at *2
documents throughout the entire alleges that the complaint was frivolous (NLRB May 28, 1987) (observing that
matter.’’ OSHA agrees that the input of or brought in bad faith. If no objections ‘‘the short-term Federal rate [used by
both parties in the investigation is are filed within 30 days of receipt of the § 6621] is based on average market
important to ensure that OSHA reaches findings, the findings and any yields on marketable Federal obligations
the proper outcome during its preliminary order of the Assistant and is influenced by private economic
investigation. In fact, OSHA’s current Secretary become the final decision and market forces’’). Similarly, as explained
policy is to request that each party order of the Secretary. If objections are in the IFR, daily compounding of the
provide the other parties with a copy of timely filed, any order of preliminary interest award ensures that
all submissions to OSHA that are reinstatement will take effect, but the complainants are made whole for
pertinent to the whistleblower remaining provisions of the order will unlawful retaliation in violation of
complaint. Where the parties do not not take effect until administrative FSMA. 79 FR 8623.
provide each other such submissions, proceedings are completed. As explained in the IFR, in ordering
OSHA will ensure that each party is As explained in the IFR, in ordering back pay, OSHA will require the
provided with such information after interest on back pay under FSMA, the respondent to submit the appropriate
redacting the submissions as Secretary has determined that interest documentation to the Social Security
appropriate. OSHA has revised due will be computed by compounding Administration (SSA) allocating the
paragraph (c) to clarify these policies daily the Internal Revenue Service back pay to the appropriate calendar
regarding information sharing during quarters. Requiring the reporting of back
interest rate for the underpayment of
the course of an investigation. Further pay allocation to the SSA serves the
taxes, which under 26 U.S.C. 6621 is
information regarding OSHA’s remedial purposes of FSMA by ensuring
generally the Federal short-term rate
nonpublic disclosure and information that employees subjected to retaliation
plus three percentage points. 79 FR
sharing policies also may be found in are truly made whole. See 79 FR 8623;
8623. The Secretary has long applied
the Whistleblower Investigations see also Don Chavas, LLC d/b/a Tortillas
the interest rate in 26 U.S.C. 6621 to
Manual, available at, http://www.whistle Don Chavas, 361 NLRB No. 10, 2014 WL
calculate interest on backpay in
blowers.gov/regulations_page.html. 3897178, at *4–5 (NLRB Aug. 8, 2014).
whistleblower cases. Doyle v. Hydro Finally, as noted in the IFR, in limited
Roll also commented that the IFR did
Nuclear Servs., ARB Nos. 99–041, 99– circumstances, in lieu of preliminary
not provide the complainant and the
042, 00–012, 2000 WL 694384, at *14– reinstatement, OSHA may order that the
respondent equal opportunity to
respond to the each other’s submissions 15, 17 (ARB May 17, 2000); see also complainant receive the same pay and
to OSHA. OSHA has revised paragraph Cefalu v. Roadway Express, Inc., ARB benefits that he or she received prior to
(c) to clarify that OSHA will ensure that No. 09–070, 2011 WL 1247212, at *2 termination, but not actually return to
each party is provided with an (ARB Mar. 17, 2011); Pollock v. Cont’l work. See 79 FR 8623. Such ‘‘economic
opportunity to respond to the other Express, ARB Nos. 07–073, 08–051, reinstatement’’ is akin to an order for
party’s submissions. 2010 WL 1776974, at *8 (ARB Apr. 10, front pay and frequently is employed in
Apart from the changes to paragraph 2010); Murray v. Air Ride, Inc., ARB No. cases arising under section 105(c) of the
(c) described above, OSHA has 00–045, slip op. at 9 (ARB Dec. 29, Federal Mine Safety and Health Act of
reworded paragraphs (a) and (f) slightly 2000). Section 6621 provides the 1977, which protects miners from
to clarify the paragraphs without appropriate measure of compensation retaliation. 30 U.S.C. 815(c); see, e.g.,
changing their meaning. under FSMA and other DOL- Sec’y of Labor ex rel. York v. BR&D
administered whistleblower statutes Enters., Inc., 23 FMSHRC 697, 2001 WL
Section 1987.105 Issuance of Findings because it ensures the complainant will 1806020, at *1 (ALJ June 26, 2001).
and Preliminary Orders be placed in the same position he or she Front pay has been recognized as a
This section provides that, on the would have been in if no unlawful possible remedy in cases under the
basis of information obtained in the retaliation occurred. See Ass’t Sec’y v. whistleblower statutes enforced by
investigation, the Assistant Secretary Double R. Trucking, Inc., ARB No. 99– OSHA in limited circumstances where
will issue, within 60 days of the filing 061, slip op. at 5 (ARB July 16, 1999) reinstatement would not be appropriate.
of a complaint, written findings (interest awards pursuant to § 6621 are See, e.g., Luder v. Cont’l Airlines, Inc.,
regarding whether or not there is mandatory elements of complainant’s ARB No. 10–026, 2012 WL 376755, at
reasonable cause to believe that the make-whole remedy). Section 6621 *11 (ARB Jan. 31, 2012), aff’d, Cont’l
complaint has merit. If the findings are provides a reasonably accurate Airlines, Inc. v. Admin. Rev. Bd., No.
that there is reasonable cause to believe prediction of market outcomes (which 15–60012, slip op. at 8, 2016 WL 97461,
that the complaint has merit, the represents the loss of investment at *4 (5th Cir. Jan. 7, 2016)
Assistant Secretary will order opportunity by the complainant and the (unpublished) (under Wendell H. Ford
appropriate relief, including employer’s benefit from use of the Aviation Investment and Reform Act for
preliminary reinstatement, affirmative withheld money) and thus provides the the 21st Century, ‘‘front-pay is available
action to abate the violation, back pay complainant with appropriate make- when reinstatement is not possible’’);
with interest, and compensatory whole relief. See EEOC v. Erie Cnty., Moder v. Vill. of Jackson, ARB Nos. 01–
damages. The findings and, where 751 F.2d 79, 82 (2d Cir. 1984) (‘‘[s]ince 095, 02–039, 2003 WL 21499864, at *10
appropriate, preliminary order, advise the goal of a suit under the [Fair Labor (ARB June 30, 2003) (under
the parties of their right to file Standards Act] and the Equal Pay Act is environmental whistleblower statutes,
objections to the findings of the to make whole the victims of the ‘‘front pay may be an appropriate
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Assistant Secretary and to request a unlawful underpayment of wages, and substitute when the parties prove the
hearing. The findings and, where since [§ 6621] has been adopted as a impossibility of a productive and
appropriate, preliminary order, also good indicator of the value of the use of amicable working relationship, or the
advise the respondent of the right to money, it was well within’’ the district company no longer has a position for
request an award of attorney fees not court’s discretion to calculate which the complainant is qualified’’).
exceeding $1,000 from the ALJ, prejudgment interest under § 6621); Roll commented on the discussion in
regardless of whether the respondent New Horizons for the Retarded, 283 the IFR of ‘‘economic reinstatement’’
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![Federal Register / Vol. 81, No. 74 / Monday, April 18, 2016 / Rules and Regulations 22535
and front pay and suggested that OSHA Subpart B—Litigation This section provides that the hearing is
should include specific guidelines to commence expeditiously, except
Section 1987.106 Objections to the
pertaining to front pay awards. Roll upon a showing of good cause or unless
Findings and the Preliminary Order and
noted that the IFR provided examples of otherwise agreed to by the parties.
Requests for a Hearing
situations where front pay might be Hearings will be conducted de novo, on
appropriate, but the rules themselves do To be effective, objections to the the record. As noted in this section,
not explicitly state that front pay is an findings of the Assistant Secretary must formal rules of evidence will not apply,
available remedy, which could be be in writing and must be filed with the but rules or principles designed to
‘‘misleading.’’ Further, Roll questioned Chief Administrative Law Judge, U.S. assure production of the most probative
whether OSHA has authority to order Department of Labor, within 30 days of evidence will be applied. The ALJ may
front pay as a remedy. receipt of the findings. The date of the exclude evidence that is immaterial,
OSHA declines to adopt specific postmark, facsimile transmittal, or irrelevant, or unduly repetitious.
guidelines pertaining to front pay electronic communication transmittal is No comments were received on this
awards in these rules. As explained in considered the date of the filing; if the section, and no changes were made to
the IFR, the appropriateness of objection is filed in person, by hand- it.
‘‘economic reinstatement’’ or front pay delivery or other means, the objection is
filed upon receipt. The filing of Section 1987.108 Role of Federal
as an alternative to the default statutory Agencies
remedy of reinstatement has long been objections also is considered a request
for a hearing before an ALJ. Although The Assistant Secretary, at his or her
recognized. OSHA believes that relevant
the parties are directed to serve a copy discretion, may participate as a party or
case law more appropriately addresses
of their objections on the other parties amicus curiae at any time in the
the parameters for issuing an award of
of record, as well as the OSHA official administrative proceedings under
front pay in lieu of reinstatement. See,
who issued the findings and order, the FSMA. For example, the Assistant
e.g., Luder, ARB No. 10–026, slip op. at
Assistant Secretary, and the U.S. Secretary may exercise his or her
*11. (holding that front pay must be discretion to prosecute the case in the
Department of Labor’s Associate
awarded according to reasonable administrative proceeding before an
Solicitor for Fair Labor Standards, the
parameters such as the amount of the ALJ; petition for review of a decision of
failure to serve copies of the objections
proposed award, the length of time the an ALJ, including a decision based on
on the other parties of record does not
complainant expects to be out of work, a settlement agreement between the
affect the ALJ’s jurisdiction to hear and
and the applicable discount rate) complainant and the respondent,
decide the merits of the case. See
(internal quotation marks and citations regardless of whether the Assistant
Shirani v. Calvert Cliffs Nuclear Power
omitted), front pay award modified, Secretary participated before the ALJ; or
Plant, Inc., ARB No. 04–101, 2005 WL
Luder v. Cont’l Airlines, Inc., ARB No. participate as amicus curiae before the
2865915, at *7 (ARB Oct. 31, 2005).
13–009, 2014 WL 6850012 (ARB Nov. The timely filing of objections stays ALJ or in the ARB proceeding. Although
2014), aff’d, Cont’l Airlines, Inc. v. all provisions of the preliminary order, OSHA anticipates that ordinarily the
Admin. Review Bd., No. 15–60012, slip except for the portion requiring Assistant Secretary will not participate,
op. at 8, 2016 WL 97461, at *4 (5th Cir. reinstatement. A respondent may file a the Assistant Secretary may choose to
Jan. 7, 2016) (unpublished). motion to stay the Assistant Secretary’s do so in appropriate cases, such as cases
Kalijarvi requested that the rule preliminary order of reinstatement with involving important or novel legal
include a reference to Blackburn v. the Office of Administrative Law Judges. issues, multiple employees, alleged
Martin, 982 F.2d 125 (4th Cir. 1992) to However, such a motion will be granted violations that appear egregious, or
inform the public that emotional only based on exceptional where the interests of justice might
distress damages may be awarded circumstances. The Secretary believes require participation by the Assistant
without the testimony of expert that a stay of the Assistant Secretary’s Secretary. The FDA, if interested in a
witnesses. A number of ARB decisions preliminary order of reinstatement proceeding, also may participate as
have awarded such damages without the under FSMA would be appropriate only amicus curiae at any time in the
testimony of expert witnesses in where the respondent can establish the proceedings.
appropriate circumstances. See e.g., necessary criteria for equitable No comments were received on this
Lockheed Martin Corp. v. Admin. injunctive relief, i.e., irreparable injury, section, though minor changes were
Review Bd., 717 F.3d 1121, 1138 (10th likelihood of success on the merits, a made as needed to clarify the provision
Cir. 2013) (upholding an award of balancing of possible harms to the without changing its meaning.
$75,000 for emotional pain and parties, and the public interest favors a
suffering without requiring the Section 1987.109 Decision and Orders
stay. If no timely objection to the of the Administrative Law Judge
testimony of expert witnesses); Assistant Secretary’s findings and/or
Menendez v. Halliburton, Inc., ARB Nos preliminary order is filed, then the This section sets forth the
09–002, 09–003 2013 WL 1282255, at Assistant Secretary’s findings and/or requirements for the content of the
*11–12 (ARB Mar. 15, 2013) (upholding preliminary order become the final decision and order of the ALJ, and
award of $30,000 for emotional distress decision of the Secretary not subject to includes the standard for finding a
and reputational harm without requiring judicial review. violation under FSMA. Specifically, the
expert testimony) aff’d sub nom. No comments were received on this complainant must demonstrate (i.e.,
Halliburton, Inc. v. Admin. Review Bd., section, and no changes were made to prove by a preponderance of the
771 F.3d 254 (5th Cir. 2014). OSHA it. evidence) that the protected activity was
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believes that these cases adequately a ‘‘contributing factor’’ in the adverse
serve to notify the public that emotional Section 1987.107 Hearings action. See, e.g., Allen v. Admin. Review
distress damages may be awarded This section adopts the rules of Bd., 514 F.3d 468, 475 n.1 (5th Cir.
without the testimony of expert practice and procedure for 2008) (‘‘The term ‘demonstrates’ [under
witnesses. administrative hearings before the identical burden-shifting scheme in the
For these reasons, OSHA has made no Office of Administrative Law Judges as Sarbanes-Oxley whistleblower
changes to the text of this section. set forth in 29 CFR part 18 subpart A. provision] means to prove by a
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![Federal Register / Vol. 81, No. 74 / Monday, April 18, 2016 / Rules and Regulations 22537
the request of the respondent, the ARB public interest. See, e.g., Macktal v. Section 1987.112 Judicial Review
determines that a complaint was Sec’y of Labor, 923 F.2d 1150, 1154 (5th This section describes the statutory
frivolous or was brought in bad faith, Cir. 1991) (agreeing that the Secretary provisions for judicial review of
the ARB may award to the respondent may ‘‘enter into’’ a settlement by decisions of the Secretary and requires,
a reasonable attorney fee, not exceeding approving a settlement negotiated and in cases where judicial review is sought,
$1,000, to be paid by the complainant. agreed to by the parties); see also the ALJ or the ARB to submit the record
No changes were made to this section, OSHA’s Whistleblower Investigations of proceedings to the appropriate court
and other than the comments discussed Manual, pp. 6–18 to 6–21 (Apr. 21, pursuant to the rules of such court. No
above, no additional comments were 2015) available at http://www.whistle comments were received on this section,
received on this section. blowers.gov/regulations_page.html. and no changes were made to it.
Subpart C—Miscellaneous Provisions OSHA believes that paragraphs (d)(1)
and (2) adequately explain that a Section 1987.113 Judicial
Section 1987.111 Withdrawal of settlement agreement reached between Enforcement
Complaints, Findings, Objections, and the parties will settle a pending This section describes the Secretary’s
Petitions for Review; Settlement whistleblower case so long as the power under FSMA to obtain judicial
This section provides the procedures agreement is reviewed and approved by enforcement of orders and the terms of
and time periods for withdrawal of OSHA, an ALJ, or the ARB. The settlement agreements. FSMA expressly
complaints, the withdrawal of findings resources listed above provide more authorizes district courts to enforce
and/or preliminary orders by the detailed guidance on when OSHA, an orders, including preliminary orders of
Assistant Secretary, and the withdrawal ALJ or the ARB will approve or disprove reinstatement, issued by the Secretary.
of objections to findings and/or orders. a settlement agreement, and OSHA thus See 21 U.S.C. 399d(b)(6) (‘‘Whenever
It permits complainants to withdraw believes it unnecessary to add such any person has failed to comply with an
their complaints orally and provides additional details to the regulatory text. order issued under paragraph (3), the
that, in such circumstances, OSHA will Secretary may file a civil action in the
As to Roll’s confidentiality concerns, United States district court for the
confirm a complainant’s desire to
OSHA, an ALJ or the ARB will not district in which the violation was
withdraw in writing. It also provides for
approve an agreement that states or found to occur, or in the United States
approval of settlements at the
implies that any of these entities, or district court for the District of
investigative and adjudicative stages of
DOL more generally, is party to a Columbia, to enforce such order.’’).
the case.
Roll commented that this provision confidentiality agreement. Moreover, as Specifically, reinstatement orders issued
should state explicitly that settlements noted in paragraph (e) of this section, at the close of OSHA’s investigation are
may be conducted in a confidential any settlement approved by OSHA, the immediately enforceable in district
manner and outside of the ALJ, or the ARB will constitute the final court pursuant to 21 U.S.C. 399d(b)(6)
administrative proceedings. Because the order of the Secretary, and as such, an and (7). FSMA provides that the
IFR did not plainly provide such approved agreement is an official Secretary shall order the person who
assurances, Roll expressed concern that government record that is subject to has committed a violation to reinstate
‘‘the lack of confidentiality will work as applicable public disclosure rules. See, the complainant to his or her former
a disincentive for both parties . . . [and] e.g., Gonzalez v. J.C. Penny Corp., Inc., position. See 21 U.S.C. 399d(b)(3)(B)(ii).
will ultimately lead to fewer out-of- ARB No. 10–148, 2012 WL 4753923, at FSMA also provides that the Secretary
court settlements. . . .’’ Roll further *6 (ARB Sept. 28, 2012) (describing the shall accompany any reasonable cause
commented that this section should public interest supporting the finding that a violation occurred with a
include guidelines regarding when the Secretary’s review of settlement preliminary order containing the relief
Secretary will approve or disapprove a agreements); McGuire v. B.P. Prods. N. prescribed by subsection (b)(3)(B),
settlement agreement, as well as an Am., Inc., 2014–TSC–0001, slip op. at which includes reinstatement where
explanation regarding the settlement 6–11 (ALJ Jan. 17, 2014) (describing appropriate, and that any preliminary
options that are available to the parties. public disclosure interests relating to order of reinstatement shall not be
OSHA is not making any changes to whistleblower settlements and some of stayed upon the filing of objections. See
the rule in response to this comment. the provisions that the Secretary may 21 U.S.C. 399d(b)(2)(B) (‘‘The filing of
This section implements FSMA’s not approve in a whistleblower such objections shall not operate to stay
statutory provision that ‘‘[a]t any time settlement). Thus, for example, while any reinstatement remedy contained in
before issuance of a final order, a parties may negotiate the terms of a the preliminary order.’’). Thus, under
proceeding under this subsection may settlement agreement in confidence and FSMA, enforceable orders include
be terminated on the basis of a may indicate to OSHA, an ALJ or the preliminary orders that contain the
settlement agreement entered into by ARB that they believe a settlement relief of reinstatement prescribed by 21
the Secretary, the complainant, and the contains information exempt from U.S.C. 399d(b)(3)(B). This statutory
person alleged to have committed the disclosure under the Freedom of interpretation is consistent with the
violation.’’ 21 U.S.C. 399(b)(3)(A). Information Act (FOIA) and that they Secretary’s interpretation of similar
However, OSHA notes that the Secretary should receive pre-disclosure language in the whistleblower
has always recognized that parties may notification of a request for disclosure, provisions of the Wendell H. Ford
efficiently resolve cases in negotiations the Secretary must make his own Aviation Investment and Reform Act for
between themselves. The Secretary’s determination of whether the contents the 21st Century, 49 U.S.C. 42121, and
mstockstill on DSK4VPTVN1PROD with RULES
policy is to approve privately negotiated of a settlement may be withheld in Section 806 of the Corporate and
settlements, provided that each response to a request from a member of Criminal Fraud Accountability Act of
settlement is reviewed by the Secretary the public. See, e.g., Vannoy v. Celanese 2002, Title VIII of the Sarbanes-Oxley
to ensure that the terms are fair, Corp., ARB No. 09–118, 2013 WL Act of 2002, 18 U.S.C. 1514A. See Brief
adequate, reasonable, and consistent 5872048, at *2 (ARB Sept. 27, 2013) for the Intervenor/Plaintiff-Appellee
with the purpose and intent of the (describing the application of FOIA to a Secretary of Labor, Solis v. Tenn.
relevant whistleblower statute and the whistleblower settlement). Commerce Bancorp, Inc., No. 10–5602
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![22544 Federal Register / Vol. 81, No. 74 / Monday, April 18, 2016 / Rules and Regulations
complainant resided on the date of the (3) Compensation for any special will be enforced daily from 8 a.m. to 5
violation. damages sustained as a result of the p.m.
(b) A final order is not subject to discharge or discrimination; and ADDRESSES: To view documents
judicial review in any criminal or other (4) Litigation costs, expert witness mentioned in this preamble as being
civil proceeding. fees, and reasonable attorney fees. available in the docket, go to http://
(c) If a timely petition for review is (d) Within seven days after filing a www.regulations.gov, type USCG–2015–
filed, the record of a case, including the complaint in federal court, a 1108 in the ‘‘SEARCH’’ box and click
record of proceedings before the ALJ, complainant must file with OSHA, the ‘‘SEARCH.’’ Click on Open Docket
will be transmitted by the ARB or the ALJ, or the ARB, depending on where Folder on the line associated with this
ALJ, as the case may be, to the the proceeding is pending, a copy of the rule.
appropriate court pursuant to the file-stamped complaint. In all cases, a FOR FURTHER INFORMATION CONTACT: If
Federal Rules of Appellate Procedure copy of the complaint also must be you have questions about this
and the local rules of such court. served on the OSHA official who issued rulemaking, call or email Lieutenant
the findings and/or preliminary order, Allan Storm, Sector Jacksonville,
§ 1987.113 Judicial enforcement.
the Assistant Secretary, and the Waterways Management Division, U.S.
Whenever any person has failed to Associate Solicitor, Division of Fair Coast Guard; telephone 904–714–7616,
comply with a preliminary order of Labor Standards, U.S. Department of email Allan.H.Storm@uscg.mil.
reinstatement, or a final order, including Labor.
one approving a settlement agreement, SUPPLEMENTARY INFORMATION:
issued under FSMA, the Secretary may § 1987.115 Special circumstances; waiver I. Table of Abbreviations
file a civil action seeking enforcement of of rules.
CFR Code of Federal Regulations
the order in the United States district In special circumstances not
DHS Department of Homeland Security
court for the district in which the contemplated by the provisions of the FR Federal Register
violation was found to have occurred or rules in this part, or for good cause NPRM Notice of proposed rulemaking
in the United States district court for the shown, the ALJ or the ARB on review § Section
District of Columbia. Whenever any may, upon application, after three days U.S.C. United States Code
person has failed to comply with a notice to all parties, waive any rule or
II. Background Information and
preliminary order of reinstatement, or a issue such orders that justice or the
Regulatory History
final order, including one approving a administration of FSMA requires.
settlement agreement, issued under [FR Doc. 2016–08724 Filed 4–15–16; 8:45 am]
On December 7, 2015, Powerboat P1–
FSMA, a person on whose behalf the USA, LLC notified the Coast Guard that
BILLING CODE 4510–26–P
order was issued may file a civil action it will conduct a series of high speed
seeking enforcement of the order in the boat races in the Atlantic Ocean,
appropriate United States district court. offshore from Daytona Beach, FL from
DEPARTMENT OF HOMELAND April 22 through 24, 2016. In response,
§ 1987.114 District court jurisdiction of SECURITY on February 4, 2016, the Coast Guard
retaliation complaints. published a notice of proposed
Coast Guard
(a) The complainant may bring an rulemaking (NPRM) titled Special Local
action at law or equity for de novo 33 CFR Part 100 Regulation, Daytona Beach Grand Prix
review in the appropriate district court of the Seas; Daytona Beach, FL (81 FR
of the United States, which will have [Docket Number USCG–2015–1108] 5967). There we stated why we issued
jurisdiction over such an action without RIN 1625–AA08 the NPRM and invited comments on our
regard to the amount in controversy, proposed regulatory action related to
either: Special Local Regulation, Daytona this boat race. During the comment
(1) Within 90 days after receiving a Beach Grand Prix of the Seas; Atlantic period that ended March 7, 2016, we
written determination under Ocean, Daytona Beach, FL received 3 comments.
§ 1987.105(a) provided that there has Under good cause provisions in 5
been no final decision of the Secretary; AGENCY: Coast Guard, DHS. U.S.C. 553(d)(3), we are making this rule
or ACTION: Temporary final rule. effective less than 30 days after its
(2) If there has been no final decision publication in the Federal Register. The
of the Secretary within 210 days of the SUMMARY: The Coast Guard is Coast Guard finds that good cause exists
filing of the complaint. establishing a special local regulation on for making this rule effective starting
(b) At the request of either party, the the waters of the Atlantic Ocean east of April 22, 2016 because the public was
action shall be tried by the court with Daytona Beach, Florida during the notified of this event well in advance
a jury. Daytona Beach Grand Prix of the Seas, through a proposed rule to regulate
(c) A proceeding under paragraph (a) a series of high-speed personal waterway activities published on
of this section shall be governed by the watercraft boat races. This action is February 4, 2016 [81 FR 5967].
same legal burdens of proof specified in necessary to provide for the safety of life Designated representatives will be on
§ 1987.109. The court shall have on the navigable waters surrounding the scene to assist the public with
jurisdiction to grant all relief necessary event. This special local regulation will compliance during the nine hours per
to make the employee whole, including be enforced daily 8 a.m. to 5 p.m., from day that the regulation will be enforced.
injunctive relief and compensatory April 22 through April 24, 2016. This
mstockstill on DSK4VPTVN1PROD with RULES
damages, including: rulemaking prohibits persons and III. Legal Authority and Need for Rule
(1) Reinstatement with the same vessels from being in the regulated area The Coast Guard is issuing this rule
seniority status that the employee unless authorized by the Captain of the under authority in 33 U.S.C. 1233. The
would have had, but for the discharge Port (COTP) Jacksonville or a designated COTP Jacksonville determined that
or discrimination; representative. potential hazards associated with high
(2) The amount of back pay, with DATES: This rule is effective from April speed boat races necessitate the
interest; 22, 2016 through April 24, 2016 and establishment of a special local
VerDate Sep<11>2014 16:20 Apr 15, 2016 Jkt 238001 PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 E:\FR\FM\18APR1.SGM 18APR1](https://thefederalregister.org/doc/81_FR_22604/page/15.svg)
Document Created: 2016-04-16 01:46:11
Document Modified: 2016-04-16 01:46:11
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This final rule is effective on April 18, 2016. | |
| Contact | Cleveland Fairchild, Program Analyst, Directorate of Whistleblower Protection Programs, Occupational Safety and Health Administration, U.S. Department of Labor, Room N-4618, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693- 2199. This is not a toll-free number. Email: [email protected] This Federal Register publication is available in alternative formats. The alternative formats available are: Large print, electronic file on computer disk (Word Perfect, ASCII, Mates with Duxbury Braille System), and audiotape. | |
| FR Citation | 81 FR 22530 | |
| RIN Number | 1218-AC58 | |
| CFR Associated | Administrative Practice and Procedure; Employment; Food Safety; Investigations; Reporting and Recordkeeping Requirements and Whistleblower |
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