81 FR 63396 - Procedures for the Handling of Retaliation Complaints Under the Employee Protection Provision of the Seaman's Protection Act, as Amended
DEPARTMENT OF LABOR
Occupational Safety and Health Administration Federal Register Volume 81, Issue 179 (September 15, 2016)
Occupational Safety and Health Administration
Federal Register Volume 81, Issue 179 (September 15, 2016)
| Page Range | 63396-63414 | |
| FR Document | 2016-21758 |
[Federal Register Volume 81, Number 179 (Thursday, September 15, 2016)] [Rules and Regulations] [Pages 63396-63414] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-21758] [[Page 63396]] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Part 1986 [Docket Number: OSHA-2011-0841] RIN 1218-AC58 Procedures for the Handling of Retaliation Complaints Under the Employee Protection Provision of the Seaman's Protection Act, as Amended AGENCY: Occupational Safety and Health Administration, Labor. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: This document provides the final text of regulations governing the employee protection (whistleblower) provisions of the Seaman's Protection Act (SPA or the Act), as amended by section 611 of the Coast Guard Authorization Act of 2010. On February 6, 2013, the Occupational Safety and Health Administration (OSHA or the Agency) published an interim final rule (IFR) for SPA whistleblower complaints in the Federal Register, requested public comment on the IFR, and the Agency has considered the comments. This final rule finalizes the procedures and time frames for the handling of retaliation complaints under SPA, including procedures and time frames for employee complaints to 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) on behalf of the Secretary of Labor (Secretary), and judicial review of the Secretary's final decision. In addition, this final rule provides the Secretary's interpretation of the term ``seaman'' and addresses other interpretive issues raised by SPA. DATES: This final rule is effective on September 15, 2016. FOR FURTHER INFORMATION CONTACT: Rob Swick, Directorate of Whistleblower Protection Programs, Occupational Safety and Health Administration, U.S. Department of Labor, Room N-4624, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-2199; email [email protected]. This is not a toll-free number. This Federal Register publication is available in alternative formats: Large print, electronic file on computer disk (Word Perfect, ASCII, Mates with Duxbury Braille System) and audiotape. SUPPLEMENTARY INFORMATION: I. Background Congress enacted SPA as section 13 of the Coast Guard Authorization Act of 1984, Public Law 98-557, 98 Stat. 2860 (1984). SPA protected seamen from retaliation for reporting a violation of Subtitle II of Title 46 of the U.S. Code, which governs vessels and seamen, or a regulation promulgated under that subtitle. S. Rep. No. 98-454, at 11 (1984). Congress passed SPA in response to Donovan v. Texaco, 720 F.2d 825 (5th Cir. 1983), in which the Fifth Circuit held that the whistleblower provision of the Occupational Safety and Health Act (OSH Act) did not cover a seaman who had been demoted and discharged from his position because he reported a possible safety violation to the U.S. Coast Guard. S. Rep. No. 98-454, at 12 (1984). This original version of SPA prohibited ``[a]n owner, charterer, managing operator, agent, master, or individual in charge of a vessel'' from retaliating against a seaman ``because the seaman in good faith has reported or is about to report to the Coast Guard that the seaman believes that'' a violation of Subtitle II had occurred. Public Law 98-557, sec. 13(a), 98 Stat. at 2863. It permitted seamen to bring actions in U.S. district courts seeking relief for alleged retaliation in violation of the Act. Id. sec. 13(a), 98 Stat. at 2863-64. In 2002, Congress amended SPA. Section 428 of the Maritime Transportation Security Act of 2002, Public Law 107-295, 116 Stat. at 2064 (2002), altered both the protections afforded and remedies permitted by the Act. First, Congress removed the specific list of actors who were prohibited from retaliating against seamen and replaced that text with ``[a] person.'' Public Law 107-295, sec. 428(a), 116 Stat. at 2127. Second, Congress expanded the existing description of protected activity to include reports to ``the Coast Guard or other appropriate Federal agency or department,'' rather than only to the Coast Guard, and violations ``of a maritime safety law or regulation prescribed under that law or regulation,'' rather than only of Subtitle II and its accompanying regulations. Id. Third, Congress added a second type of protected activity; a seaman who ``refused to perform duties ordered by the seaman's employer because the seaman has a reasonable apprehension or expectation that performing such duties would result in serious injury to the seaman, other seamen, or the public'' was granted protection from retaliation for such a refusal. Id. The new text clarified that, ``[t]o qualify for protection against the seaman's employer under paragraph (1)(B), the employee must have sought from the employer, and been unable to obtain, correction of the unsafe condition.'' Id. The amended statute further explained that ``[T]he circumstances causing a seaman's apprehension of serious injury under paragraph (1)(B) must be of such a nature that a reasonable person, under similar circumstances, would conclude that there is a real danger of an injury or serious impairment of health resulting from the performance of duties as ordered by the seaman's employer.'' Public Law 107-295, sec. 428, 116 Stat. at 2127. Congress made additional changes to the Act, including those that led OSHA to initiate this rulemaking, on October 15, 2010. Section 611 of the Coast Guard Authorization Act of 2010, Public Law 111-281, 124 Stat. at 2905 (2010), made further additions to the list of protected activities under SPA and fundamentally changed the remedies section of the Act. Section 611 added to subsection (a) the following protected activities: The seaman testified in a proceeding brought to enforce a maritime safety law or regulation; the seaman notified, or attempted to notify, the vessel owner or the Secretary [of the department in which the Coast Guard is operating \1\] of a work-related personal injury or work-related illness of a seaman; the seaman cooperated with a safety investigation by the Secretary [of the department in which the Coast Guard is operating] or the National Transportation Safety Board; the seaman furnished information to the Secretary [of the department in which the Coast Guard is operating], the National Transportation Safety Board, or any other public official as to the facts relating to any marine casualty resulting in injury or death to an individual or damage to property occurring in connection with vessel transportation; and the seaman accurately reported hours of duty under this part. --------------------------------------------------------------------------- \1\ The text of 46 U.S.C. 2114 refers to ``the Secretary,'' defined for purposes of Part A of Subtitle II as ``the Secretary of the department in which the Coast Guard is operating.'' 46 U.S.C. 2101(34). The Coast Guard is currently part of the Department of Homeland Security. --------------------------------------------------------------------------- Congress replaced section (b) of SPA, which had provided a private right of action to seamen and described relief a court could award, in its entirety. The new text provides that a seaman alleging discharge or discrimination in violation of subsection (a) of this section, or another person at the seaman's request, may file a complaint with respect to such allegation in the same manner as a complaint may be filed under [[Page 63397]] subsection (b) of section 31105 of title 49. Such complaint is subject to the procedures, requirements, and rights described in that section, including with respect to the right to file an objection, the right of a person to file for a petition for review under subsection (c) of that section, and the requirement to bring a civil action under subsection (d) of that section. Id. Section 31105 of title 49 is the whistleblower protection provision of the Surface Transportation Assistance Act (STAA), 49 U.S.C. 31105. STAA provides that initial complaints regarding retaliation under that statute are to be filed with and handled by the Secretary of Labor (Secretary), sec. 31105(b)-(e), and the Secretary has delegated his authority in this regard to OSHA. Secretary's Order 1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012). The Secretary has also delegated to OSHA his authority under SPA. Id. at 3913. Hearings on objections to findings by the Assistant Secretary for OSHA (Assistant Secretary) are conducted by the Office of Administrative Law Judges, and appeals from decisions by ALJs are decided by the Department of Labor's Administrative Review Board (ARB). Secretary's Order 1-2010, 75 FR 3924-01 (Jan. 25, 2010). OSHA is promulgating this final rule to finalize procedures for the handling of whistleblower protection complaints under SPA and address certain interpretative issues raised by the statute. To the extent possible within the bounds of applicable statutory language, these regulations are designed to be consistent with the procedures applied to claims under STAA, and the other whistleblower protection statutes administered by OSHA, including the Energy Reorganization Act (ERA), 42 U.S.C. 5851; the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), 49 U.S.C. 42121; Title VIII of the Sarbanes- Oxley Act of 2002 (SOX), 18 U.S.C. 1514A; and the Consumer Product Safety Improvement Act, 15 U.S.C. 2087. II. Summary of Statutory Procedures As explained above, SPA adopts the process for filing a complaint established under subsection (b) of STAA. 46 U.S.C. 2114(b). It further incorporates the other ``procedures, requirements, and rights described in'' STAA, id., described below. OSHA therefore understands SPA to incorporate STAA subsections (b) through (g). SPA's text could cause confusion regarding which sections of STAA it adopts by referring, in some cases incorrectly,\2\ to certain sections while not mentioning others.\3\ The text refers to those sections following the word ``including,'' however, with no suggestion that the subsequent list is meant to be exclusive. Accordingly, OSHA will not treat it as such, and, as explained below, promulgates regulations to implement the procedures described in 49 U.S.C. 31105(b)-(g). OSHA does not read SPA as incorporating 49 U.S.C. 31105 (a), (h), (i) and (j) because those provisions are substantive and specific to STAA or agencies other than the Department of Labor rather than describing ``procedures, requirements, and rights.'' The statutory procedures applicable to SPA claims are summarized below. --------------------------------------------------------------------------- \2\ Specifically, the Act's adoption of STAA's ``procedures, requirements, and rights'' is followed by the text ``including with respect to the right to file an objection, the right of a person to file for a petition for review under subsection (c) of [STAA], and the requirement to bring a civil action under subsection (d) of that section.'' 46 U.S.C. 2114(b). But section (c) addresses de novo review in the district court if the Secretary has not issued a final decision after 210 days; section (d) addresses filing a petition for review after receiving an adverse order following a hearing; and section (e) provides that ``[i]f a person fails to comply with an order issued under subsection (b) of this section, the Secretary of Labor shall bring a civil action to enforce the order in the district court of the United States for the judicial district in which the violation occurred.'' 49 U.S.C. 31105(c)-(e). \3\ Section (f) declares that STAA does not preempt any other federal or state law safeguarding against retaliation; section (g) declares that STAA does not diminish any legal rights of any employee, nor may the rights of the section be waived; section (h) prohibits the disclosure by the Secretary of Transportation or the Secretary of Homeland Security of the identity of an employee who provides information about an alleged violation of the statute except, under certain circumstances, to the Attorney General; section (i) creates a process for reporting security problems to the Department of Homeland Security; and section (j) defines the term ``employee'' for purposes of STAA. 49 U.S.C. 31105(f)-(j). --------------------------------------------------------------------------- Filing of SPA Complaints A seaman, or another person at the seaman's request, alleging a violation of SPA, may file a complaint with the Secretary not later than 180 days after the alleged retaliation. Legal Burdens of Proof for SPA Complaints STAA states that STAA whistleblower complaints will be governed by the legal burdens of proof set forth in AIR21, 49 U.S.C. 42121(b), which contains whistleblower protections for employees in the aviation industry. 49 U.S.C. 31105(b)(1). Accordingly, these burdens of proof also govern SPA whistleblower complaints. Under AIR21, a violation may be found only if the complainant demonstrates that protected activity was a contributing factor in the adverse action described in the complaint. 49 U.S.C. 42121(b)(2)(B)(iii). Relief is unavailable 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. 49 U.S.C. 42121(b)(2)(B)(iv); Vieques Air Link, Inc. v. Dep't of Labor, 437 F.3d 102, 108-09 (1st Cir. 2006) (per curiam) (burdens of proof under AIR21); Formella v. U.S. Dep't of Labor, 628 F.3d 381, 389 (7th Cir. 2010) (explaining that because it incorporates the burdens of proof set forth in AIR21, STAA requires only a showing that the protected activity was a contributing factor, not a but-for cause, of the adverse action.). Written Notice of Complaint and Findings Under 49 U.S.C. 31105(b), upon receipt of the complaint, the Secretary must provide written notice of the filing of the complaint to the person or persons alleged in the complaint to have violated the Act (respondent). 49 U.S.C. 31105(b). Within 60 days of receipt of the complaint, the Secretary must conduct an investigation of the allegations, decide whether it is reasonable to believe the complaint has merit, and provide written notification to the complainant and the respondent of the investigative findings. Remedies If the Secretary decides it is reasonable to believe a violation occurred, the Secretary shall include with the findings a preliminary order for the relief provided for under 49 U.S.C. 31105(b)(3). This order shall require the respondent to take affirmative action to abate the violation; reinstate the complainant to the former position with the same pay and terms and privileges of employment; and pay compensatory damages, including back pay with interest and compensation for any special damages sustained as a result of the discrimination, including litigation costs, expert witness fees, and reasonable attorney fees. Additionally, if the Secretary issues a preliminary order and the complainant so requests, the Secretary may assess against the respondent the costs, including attorney fees, reasonably incurred by the complainant in bringing the complaint. Punitive damages of up to $250,000.00 are also available. Hearings STAA also provides for hearings. 49 U.S.C. 31105(b), Specifically, the complainant and the respondent have [[Page 63398]] 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. The filing of objections does not stay a reinstatement ordered in the preliminary order. If a hearing is not requested within 30 days, the preliminary order becomes final and is not subject to judicial review. If a hearing is held, it is to be conducted expeditiously. The Secretary shall issue a final order within 120 days after the conclusion of any hearing. The final order 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. De Novo Review STAA provides for de novo review of a whistleblower claim 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 a complaint and the delay is not due to the complainant's bad faith. 49 U.S.C. 31105(c). The provision states that the court will have jurisdiction over the action without regard to the amount in controversy and that the case will be tried before a jury at the request of either party. Judicial Review STAA provides that within 60 days of the issuance of the Secretary's final order following a hearing, any person adversely affected or aggrieved by the Secretary's final order may file an appeal with the United States Court of Appeals for the circuit in which the violation occurred or the circuit where the complainant resided on the date of the violation. 49 U.S.C. 31105(d). Civil Actions To Enforce STAA provides that if a person fails to comply with an order issued by the Secretary under 49 U.S.C. 31105(b) the Secretary of Labor ``shall bring a civil action to enforce the order in the district court of the United States for the judicial district in which the violation occurred.'' 49 U.S.C. 31105(e). Preemption STAA clarifies that nothing in the statute preempts or diminishes any other safeguards against discrimination provided by Federal or State law. 49 U.S.C. 31105(f). Employee Rights STAA states that nothing in STAA 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. 49 U.S.C. 31105(g). It further states that rights and remedies under 49 U.S.C. 31105 ``may not be waived by any agreement, policy, form, or condition of employment.'' III. Prior Rulemaking On February 6, 2013, the OSHA published an IFR for SPA whistleblower complaints in the Federal Register establishing the procedures and time frames for the handling of retaliation complaints under SPA, including procedures and time frames for employee complaints to OSHA, investigations by OSHA, objections to OSHA findings and preliminary orders, hearings by ALJs, review of ALJ decisions by the ARB on behalf of the Secretary, and judicial review of the Secretary's final decision. In addition to promulgating the IFR, OSHA's notice included a request for public comment on the interim rules by April 8, 2013. In response to the IFR, two organizations--the Chamber of Shipping of America and the Transportation Trades Department, AFL-CIO, filed comments with the agency within the public comment period. In addition, two individuals--J.I.M. Choate of Stamford, Connecticut, and Lee Luttrell of Las Vegas, Nevada, also filed comments with the agency within the public comment period. In general, commenters supported the IFR's provisions. For example, the Transportation Trades Department stated that the IFR provided ``clarity to workers on the actions they can take to remedy dangerous situations, while empowering them with a well-defined route to pursue when they've been wronged.'' It also expressed support for the protection of internal complaints. Docket ID OSHA-2011-0841-0005. Only three revisions to the rule were suggested by commenters. First, Mr. Choate recommended that references in the rule to ``ALJs'' be changed to ``judges'' because he thought that ``ALJ'' was ``too informal.'' Docket ID OSHA-2011-0841-0002. However, OSHA's use of the term ``ALJ'' appears in many of its other whistleblower protection regulations and is useful in distinguishing between administrative law judges and Article III judges. The Secretary therefore declines to follow this suggestion. Second, the Chamber asked the Secretary to adopt a limited exemption from the work refusal provision in section 1986.102(c)(2) for emergency situations. Third, the Chamber asks that the remedies provisions of sections 1986.109 and 1986.110 include provisions allowing the award of attorney's fees and costs against unsuccessful claimants. Docket ID OSHA-2011-0841-0004. The Secretary also disagrees with these suggestions, which will be discussed further below. Thus, with the exception of coverage provisions, discussed below, the Secretary is carrying over all of the provisions of the IFR into this final rule with only minor technical revisions. IV. Summary and Discussion of Regulatory Provisions Subpart A--Complaints, Investigations, Findings, and Preliminary Orders Section 1986.100 Purpose and Scope This section describes the purpose of the regulations implementing the SPA whistleblower protection provision and provides an overview of the procedures contained in the regulations. Section 1986.101 Definitions This section includes general definitions applicable to the SPA whistleblower provision. Most of the definitions are of terms common to whistleblower statutes and are defined here as they are elsewhere. Some terms call for additional explanation. SPA prohibits retaliation by a ``person.'' Title 1 of the U.S. Code provides the definition of this term because there is no indication in the statute that any other meaning applies. Accordingly, ``person . . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.'' 1 U.S.C. 1. This list, as indicated by the word ``include,'' is not exhaustive. See Fed. Land Bank v. Bismarck Lumber Co., 314 U.S. 95, 100 (1941) (``[T]he term `including' is not one of all embracing definition, but connotes simply an illustrative application of the general principle.'' (citation omitted)). Paragraph (j) accordingly defines ``person'' as ``one or more individuals or other entities, including but not limited to corporations, companies, associations, firms, partnerships, societies, and joint stock companies.'' SPA protects seamen from retaliation for making certain reports and notifications. 46 U.S.C. 2114(a)(1)(A), (D), (G). Paragraphs (h) and (k) define ``report'' and ``notify'' both to include ``any oral or written communications of a violation.'' This interpretation of the statute is consistent with a plain reading of the statutory text and best fulfills the purposes of SPA. See Gaffney v. Riverboat Servs. of Ind., 451 F.3d 424, 445-46 (7th Cir. 2006) (explaining that to interpret SPA's reference to a ``report'' as requiring a formal complaint [[Page 63399]] ``would narrow the statute in a manner that Congress clearly avoided, and, in the process, would frustrate the clear purpose of the provision''). It is also consistent with the legislative history of the statute, which indicates that Congress meant SPA to respond to Donovan v. Texaco, 720 F.2d 825 (5th Cir. 1983), a case in which a seaman had told the Coast Guard about an unsafe condition by telephone. S. Rep. No. 98-454, at 11; Donovan, 720 F.2d at 825; see also Gaffney, 451 F.3d at 446 (reasoning that SPA's legislative history, ``coupled with Congress' decision not to define `report' in the statute or in the course of discussing Donovan in the relevant legislative history,'' indicates that SPA ``does not require a formal complaint, or even a written statement, as a prerequisite to statutory whistleblower protection''); cf. Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1 (2011) (holding that the provision of the Fair Labor Standards Act that prohibits employers from retaliating against an employee because such employee has ``filed any complaint'' protects oral complaints). In addition, SPA protects seaman complaints and testimony related to ``maritime safety law[s] or regulation[s].'' Paragraph (g) defines this term as including ``any statute or regulation regarding health or safety that applies to any person or equipment on a vessel.'' This definition clarifies the meaning of this term in two respects. First, though the statutory text refers to ``safety'' the Secretary finds that Congress did not intend to exclude regulations that address health hazards; rather, it is apparent that no such distinction was intended. Compare 46 U.S.C. 2114(a)(1)(B) (protecting refusal to perform a duty that would result in a serious injury) with (a)(2) (clarifying that circumstances that would justify a refusal to work under (a)(1)(B) are those that present a ``real danger of injury or serious impairment of health''); see also id. (a)(1)(D) (protecting reports of injuries and illnesses). The definition makes clear that laws or regulations addressing either maritime safety or health are included. Second, because working conditions on vessels can be subject to regulation by many agencies, the Secretary interprets ``maritime safety law or regulation'' to include all regulations regarding health or safety that apply to any person or equipment on a vessel under the circumstances at issue. The statute or regulation need not exclusively or explicitly serve the purpose of protecting the safety of seamen, or promoting safety on vessels, to fall within the meaning of this provision of SPA. Section 2214(a)(1)(D) of SPA protects a seaman's notification of the ``vessel owner'' of injuries and illnesses. This would include all notifications to agents of the owner, such as the vessel's master. 2 Robert Force & Martin J. Norris, The Law of Seamen Sec. 25-1 (5th ed. 2003). Other parties that may fall within the meaning of ``vessel owner'' include an owner pro hac vice, operator, or charter or bare boat charterer. 33 U.S.C. 902(21) (defining, for purposes of the Longshore and Harbor Workers' Compensation Act (LHWCA), the entities liable for negligence of a vessel); Helaire v. Mobil Oil Co., 709 F.2d 1031, 1041 (5th Cir. 1983) (referring to this list of entities as ``the broad definition of `vessel owner' under 33 U.S.C. 902(21)''). Paragraph (q) defines ``vessel owner'' as including ``all of the agents of the owner, including the vessel's master.'' SPA protects ``a seaman'' from retaliation, but it does not include a definition of ``seaman.'' Thus, OSHA is relying on the Senate Report that accompanied the original, 1984 version of SPA. Committee Reports on a bill are useful sources for finding the legislature's intent because they represent the considered and collective understanding of those Members of Congress involved in drafting and studying proposed legislation. Garcia v. United States, 469 U.S. 70, 76 (1984). The Senate Report indicates that SPA was originally intended to provide a remedy for workers whose whistleblower rights under section 11(c) of the OSH Act might be not be available in a circuit that follows Donovan v. Texaco, 720 F.2d 825 (5th Cir. 1983).\4\ See S. Rep. No. 98-454, at 11-12 (1984). The Senate Report also provides specific insight as to the definition of ``seaman,'' stating that ``the Committee intends the term `seaman' to be interpreted broadly, to include any individual engaged or employed in any capacity on board a vessel owned by a citizen of the United States.'' Id. at 11. --------------------------------------------------------------------------- \4\ Nothing in this preamble should be read to suggest that OSHA agrees with the holding or rationale of Texaco. --------------------------------------------------------------------------- OSHA considered three basic approaches for defining the term ``seaman'': (a) Mirroring the one established by the Jones Act, 46 U.S.C. 30104, which reflects general maritime law; (b) as a ``gap filler'' available only in situations where workers arguably lack protection under section 11(c) of the OSH Act because of Texaco; or (c) using the broader definition of ``seaman'' suggested by the legislative history of SPA discussed above. First, OSHA rejected adopting a definition of ``seaman'' for SPA that mirrors the one established by case law under the Jones Act. The Jones Act provides that a ``seaman'' injured in the course of employment may bring a civil action against his or her employer, 46 U.S.C. 30104, but, like SPA, the Jones Act does not define the term ``seaman.'' Looking to general maritime law, the Supreme Court has defined the term as including those who have an employment-related connection to a vessel in navigation that contributes to the function of the vessel or to the accomplishment of its mission, even if the employment does not aid in navigation or contribute to the transportation of the vessel, McDermott International, Inc. v. Wilander, 498 U.S. 337, 355 (1991). Importantly, the Supreme Court views the term ``seaman'' as excluding land-based workers; that is, a seaman ``must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and nature.'' Chandris v. Latsis, 515 U.S. 347, 368 (1995). OSHA is concerned that the Jones Act definition of ``seaman'' is more restrictive than the definition of the term reflected in the legislative history of the SPA. Were OSHA to adopt the Jones Act definition here, certain workers who are employed on vessels in significant ways, but who are not ``seamen'' for purposes of the Jones Act, would not be protected. For example, certain riverboat pilots spend substantial time aboard a vessel in furtherance of its purpose, but do not have a connection to a particular vessel or group of vessels, so they have been found not to be covered under the Jones Act. Bach v. Trident Steamship Co., Inc., 920 F.2d 322, aff'd after remand, 947 F.2d 1290 (5th Cir. 1991); Blancq v. Hapag-Lloyd A.G., 986 F. Supp. 376, 379 (E.D. La. 1997). Moreover, there is at least a possibility that under the Texaco analysis, a court would find that such pilots also lack section 11(c) rights when reporting safety violations aboard vessels on which they are working. Second, OSHA rejected the approach of defining ``seaman'' as applying only to workers who arguably are not covered by section 11(c). The legislative history shows that Congress originally passed the SPA in response to Texaco: ``This section responds to Donovan v. Texaco, (720 F.2d 825 5th Cir. 1983)) in which a seaman was demoted and ultimately discharged from his job for reporting a possible safety violation to the Coast Guard . . . [This section] establishes a [[Page 63400]] new legal remedy for seamen, to protect them against discriminatory action due to their reporting a violation of Subtitle II to the Coast Guard. The Amendment creates a private right of action similar but not identical to that in OSH Act section 11(c).'' S. Rep. No. 98-454, at 11-12 (1984). But the legislative history in 2010 suggests a broader definition for ``seaman,'' which includes workers who may also be covered by section 11(c). On a more practical level, OSHA could not fashion a clear definition of ``seaman'' that squarely fills the gap arguably left by Texaco without requiring agency investigators to conduct a complex case-by-case analysis of whether each SPA complainant is exempt from the OSH Act under the rationale of Texaco, a holding with which the Department does not agree. Thus, the final rule adopts the third option--the broader definition of ``seaman'' as clarified in the legislative history of SPA. The first sentence of paragraph (m) incorporates the language of the Senate report to define ``seaman'' insofar as the term includes ``any individual engage or employed in any capacity on board'' certain types of vessels. As indicated in the report, and consistent with the remedial purposes of whistleblower protection statutes like SPA, OSHA intends that the regulatory language be construed broadly. Whirlpool Corporation v. Marshall, 445 U.S. 1, 13 (1980); Bechtel Const. Co. v Sec'y of Labor, 50 F.3d 926, 932 (11th Cir. 1995). Workers who are seamen for purposes of the Jones Act or general maritime law, see, e.g., Chandris, Inc. v. Latsis, 515 U.S. 347, 355 (1995), are covered by the definition, as are land-based workers, if they are ``engaged or employed . . . on board a vessel'' for some part of their duties. H. Rep. No. 111-303, pt. 1, at 119 (2009) (noting that SPA extends protections to ``maritime workers''). Finally, paragraph (m) includes an additional sentence indicating that former seamen and applicants are included in the definition. Such language is included in the definition of ``employee'' in the regulations governing other OSHA-administered whistleblower protection laws, such as STAA (29 CFR 1978.101(h)), the National Transit Systems Security Act and the Federal Railroad Safety Act (29 CFR 1982.101(d)), SOX (29 CFR 1980.101(g)), and the OSH Act (29 CFR 1977.5(b)). This interpretation is consistent with the Supreme Court's reading of the term ``employee'' in 42 U.S.C. 2000e-3a, the anti-retaliation provision of Title VII of the Civil Rights Act of 1964, to include former employees. Robinson v. Shell Oil Co., 519 U.S. 337 (1997). Among the Court's reasons for this interpretation was the lack of temporal modifiers for the term ``employee''; the reinstatement remedy, which only applies to former employees; and the remedial purpose of preventing workers from being deterred from whistleblowing because of a fear of blacklisting. These reasons apply equally to SPA and the other whistleblower provisions enforced by OSHA. In the IFR, OSHA sought comments on these alternative approaches to defining ``seaman,'' and received no objections to the approach described above. OSHA has retained the portion of the definition dealing with the functions of a seaman in the final rule. The definition of ``seaman'' adopted in these regulations is based on and limited to SPA. Nothing should be inferred from the above discussion or the regulatory text about the meaning of ``seaman'' under the OSH Act or any other statute administered by the Department of Labor. Part of the definition of ``seaman'' in the final rule, however, has changed from that of the IFR. As in the IFR, the definition of ``seaman'' limits the term to individuals ``engaged or employed on board'' a subset of vessels. Both the IFR and the final rule protect individuals working on ``any vessel owned by a citizen of the United States,'' but the final rule also extends coverage to individuals engaged on ``a U.S. flag vessel.'' Because all U.S.-flag vessels must be owned by citizens of the United States, as defined in 46 U.S.C. 12103 (providing general eligibility requirements for vessel documentation) and 46 CFR part 67 Subpart C (defining citizen-owners of vessels for the purposes of Coast Guard regulations), covering all individuals employed or engaged on U.S.-flag vessels would effectuate the Congressional intent that individuals working on any vessel owned by a citizen of the United States be regarded as seamen under SPA. S. Rep., at 11. Furthermore, since most U.S.-flag vessels are required to comply with many Coast Guard maritime safety regulations, such as those in 46 CFR Chapter I, Subchapter I (see 46 CFR 90.05-1) (inspected vessels), 46 CFR Chapter I, Subchapter C, Part 24 (see 46 CFR 24.05- 1(a) (uninspected vessels), and 46 CFR Chapter I, Subchapter C, Part 28 (see 46 CFR 28.30(a)) (uninspected commercial fishing industry vessels), covering those who work aboard U.S.-flag vessels will effectuate one of the main purposes of SPA--to encourage the reporting of violations of maritime safety regulations. 46 U.S.C. 2114(a)(1)(A). Moreover, determining whether a vessel is a U.S.-flag vessel is easy for those who work aboard vessels, as well as for OSHA investigators. Also, members of the Armed Forces are not covered under SPA in order not to interfere with military necessities. As noted above, OSHA has retained within the final rule's definition of ``seaman,'' individuals working on vessels owned by ``a citizen of the United States.'' This part of the definition is still relevant because it provides coverage to employees of foreign-flagged vessels owned by U.S. citizens. As in the IFR, the final rule defines the term ``Citizen of the United States,'' but OSHA has changed that definition. The IFR defined ``citizen of the United States'' in 29 CFR 1986.101(d) (2013) as an individual who is a national of the United States as defined in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22)), The IFR also defined the phrase to include a corporation, partnership, association, or other business entity if the controlling interest is owned by citizens of the United States. The controlling interest in a corporation is owned by citizens of the United States if title to the majority of the stock in the corporation is vested in citizens of the United States, the majority of the voting power in the corporation is vested in citizens of the United States, there is no contract or understanding by which the majority of the voting power in the corporation may be exercised, directly or in directly, on behalf of a person not a citizen of the United States, and there is no other means by which control of the corporation is given to or permitted to be exercised by a person not a citizen of the United States.. The definition also stated that a corporation is only a citizen of the United States if it is incorporated under the laws of the United States or a State, its chief executive officer, by whatever title, and the chairman of its board of directors are citizens of the United States, and no more of its directors are non-citizens than a minority of the number necessary to constitute a quorum. OSHA is retaining the portion of that definition dealing with the criteria for an individual to be a United States citizen for the purposes of SPA. As before, a natural person is a ``citizen of the United States'' if he or she is a U.S. citizen for purposes of the Immigration and Nationality Act--the test used to determine U.S. citizenship for natural persons in 46 U.S.C. 104, which applies to all of Title 46 of the United States Code on shipping. OSHA is also retaining the requirement that the controlling interest of a corporation, [[Page 63401]] partnership, association, or other business entity interest be owned by citizens of the United States, but, after further evaluation of relevant statutory provisions and case law, OSHA has decided to substantially simplify the description of what it means for U.S. citizens to own a ``controlling interest'' in a corporation, partnership, association, or other business entity. The lengthy provisions of the IFR setting forth these criteria have been replaced with a straightforward explanation that the controlling interest in a corporation is owned by citizens of the United States if a majority of the stockholders are citizens of the United States. Finally, OSHA has expressly included corporations ``incorporated under the laws of the United States or a State,'' any corporation, partnership, association, or other business entity ``whose principal place of business or base of operations is in a State,'' and federal and state governmental entities within definition of ``Citizen of the United States.'' OSHA decided to make these changes for a number of reasons. First, the IFR definition of ``Citizen of United States'' with respect to corporate and other juridical entities was derived from a subtitle of Title 46 of the United States Code, which is not as closely related to the purposes of SPA as the subtitle in which SPA is located. The language of the IFR specifying what connections a corporation must have with the United States in order to be classified as a ``Citizen of the United States'' was derived from 46 U.S.C. 50501. That provision specifies which corporations and other entities are deemed to be citizens of the United States for the purposes of Subtitle V of Title 46. That subtitle promotes the development of the U.S. merchant marine through financial assistance and promotional programs, among other things. SPA, however, is in Subtitle II, Vessels and Seamen, which has a major emphasis on maritime safety. See, e.g., Part A--General Provisions (including a provision on penalties for the negligent operation of vessels (46 U.S.C. 2302) and SPA (46 U.S.C. 2114); Part B--Inspection and Regulation of Vessels, including the provisions authorizing many Coast Guard maritime safety regulations, such as 46 U.S.C. 3306 (inspected vessels), 46 U.S.C. 4102 (uninspected vessels), and 46 U.S.C. 4502 (uninspected commercial fishing industry vessels)). Subtitle II also has provisions on the documentation of U.S. flag vessels, including the criteria for U.S. citizen ownership of vessels. 46 U.S.C. 12103. One of the main purposes of SPA is to encourage the reporting of violations of Coast Guard maritime safety regulations. 46 U.S.C. 2114(a)(1)(A) (prohibiting retaliation against a seaman for reporting a violation of maritime safety regulations). Thus, the provisions regarding U.S. citizen ownership of vessels in 46 U.S.C. 50501, which is in Subtitle V, are not appropriate in this context. Second, the IFR's criteria for determining if a corporation, partnership, association, or other business entity is a U.S. citizen were unduly restrictive and thus did not effectuate the Congressional intent that the term ``seaman'' in SPA be construed broadly. S. Rep. at 11. As can be seen from the IFR text above, ownership by a U.S. citizen of a controlling interest in the corporation was the sole basis for that corporation's U.S. citizenship, and ownership of a controlling interest was, itself, defined narrowly. The vesting of title to the majority of the corporation's stock in U.S. citizens had to be free of any trust or fiduciary obligation in favor of a foreign citizen, a majority of the voting power had to be vested in U.S. citizens; there could be no contract or understanding by which a majority of the voting power in the corporation could have been exercised, directly or indirectly, on behalf of a foreign citizen; and there could be no other means by which control of the corporation was given to or permitted to be exercised by a foreign citizen. Furthermore, the IFR provided that the corporation had to be incorporated under the laws of the United States or a State; its chief executive officer, by whatever title, and the chairman of its board of directors had to be citizens of the United States; and no more of its directors could be noncitizens than a minority of the number necessary to constitute a quorum. These qualifications unnecessarily narrowed the scope of the term ``seaman'' in contradiction to the Senate Report, which stated that the term ``seaman'' should be read broadly. S. Rep. at 11. Third, because the test of U.S. citizenship for corporations, partnerships, associations, or other business entities turned on the criteria for ownership of a controlling interest of these entities, most of the definition was complex. Determining whether the criteria had been met would have been difficult and time-consuming for workers aboard vessels who may want to report violations of maritime safety laws or injuries or who want to refuse to perform dangerous work, for OSHA whistleblower investigators, and even for supervisors aboard the vessels. Finally, OSHA decided to expressly include corporations incorporated under the laws of the United States or any State and corporations, partnerships, associations, and other business entities, whose principal places of business or bases of operations are in States within the definition of ``Citizen of the United States'' because entities such as these have long been considered by courts to be U.S. citizens in the maritime context. In Lauritzen v. Larsen, 345 U.S. 571 (1953), a leading maritime law decision, the Supreme Court set forth a multifactor test for determining whether United States law applied to a maritime tort claim. One of the most important factors is the citizenship of the defendant shipowner, Id. at 587. In reviewing this factor the Court cited with approval Gerradin v. United States, 60 F.2d 927 (2nd Cir.), in which the court regarded a vessel owner incorporated in New York as a citizen of the United States and imposed liability for a maritime injury to a cook's mate aboard that vessel, despite the fact that the vessel flew a foreign flag. Lauritzen, 345 U.S. at 587, n.24; see also Farmer v. Standard Dredging Corp., 167 F. Supp. 381, 383-84 (D. Delaware 1958) (applying United States law to maritime injury because shipowner was a Delaware corporation); cf., 28 U.S.C. 1332(c)(1) (providing that for the purposes of federal court diversity jurisdiction, a corporation is citizen of state in which it is incorporated). Since SPA bans retaliation for the reporting of maritime injuries, see 46 U.S.C. 2114(a)(1)(D) and (F), and other related activities, such as the reporting of violations of maritime safety regulations, designed to prevent injuries, see 46 U.S.C. 2114(a)(1)(A), it is appropriate to look to a maritime case such as Lauritzen for guidance. A corporation, partnership, association, or other business entity will also be regarded as a citizen of the United States if its principal place of business or base of operations is in a State. The location of a shipowner's principal place of business or base of operations in the United States is an important factor in favor of applying U.S. maritime law. Hellenic Lines Limited v. Rhoditis, 398 U.S. 306, 308-309 (1970) (applying U.S. law to claims by a permanent resident alien seaman aboard foreign-flag vessel where base of operations of defendant corporate shipowner was in the United States); cf. 28 U.S.C. 1332(c) (providing that for the purposes of federal court diversity jurisdiction, a corporation is citizen of State in which its principal place of business is located). [[Page 63402]] As discussed above, the test for determining if a U.S. citizen ``owns a controlling interest'' in the corporation has been simplified to include situations in which a majority of the corporation's stockholders are U.S. citizens. This interpretation is based on decisions analyzing the Lauritzen factors, which have relied on U.S, citizen stockholder ownership of a foreign corporation to apply U.S. law in maritime cases where the vessel was owned by a foreign corporation. Sosa v. M/V Lago Izabal, 736 F.2d 1028, 1032 (5th Cir. 1984); Antypas v. Cia. Maritima San Basilio, S. A., 541 F.2d 307, 310 (2nd Cir. 1976); Moncada v. Lemuria Shipping Corp., 491 F.2d 470, 473 (2nd Cir. 1974); Rainbow Line, Inc. v. M/V Tequila, 480 F.2d 1024, 1026-1027 (2nd Cir. 1973); Bartholomew v. Universe Tankships, 263 F.2d 437, 442 (2nd Cir. 1959). The term ``Citizen of the United States'' is also defined to include governmental entities ``of the Federal Government of the United States, of a State, or of a political subdivision of State.'' This interpretation is based on one of the Coast Guard's definitions of citizenship for the purposes of determining eligibility for vessel documentation. See 46 CFR 67.41 (providing that a governmental entity is citizen for purposes of vessel documentation); 46 CFR 67.3 (defining the term ``State'' to include a political subdivision thereof); cf. 46 U.S.C. 31102 (providing that a civil action in personam in admiralty may be brought against the United States for damages caused by a public vessel of the United States). Paragraph (p) defines ``vessel,'' a term used in the definition of ``seaman'' and in SPA itself. This definition is taken from Title 46 of the U.S. Code and ``includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.'' 46 U.S.C. 115; see also 1 U.S.C. 3; Stewart v. Dutra Constr. Co., 543 U.S. 481, 496-97 (2005) (analyzing the meaning of the term ``vessel,'' as defined by 1 U.S.C. 3, and concluding that ``a `vessel' is a watercraft practically capable of maritime transportation, regardless of its primary purpose or state of transit at a particular moment,'' and thus excludes ships ``taken out of service, permanently anchored, or otherwise rendered practically incapable of maritime transport''). Section 1986.102 Obligations and Prohibited Acts This section describes the activities that are protected under SPA and the conduct that is prohibited in response to any protected activities. These protected activities are set out in the statute, as described above. Consistent with OSHA's interpretation of other anti- retaliation provisions, the prohibited conduct includes any form of retaliation, including, but not limited to, discharging, demoting, suspending, harassing, intimidating, threatening, restraining, coercing, blacklisting, or disciplining a seaman. Section 1986.102 tracks the language of the statute in defining the categories of protected activity. As with other whistleblower statutes, SPA's provisions describing protected activity are to be read broadly. See, e.g., Clean Harbors Envtl. Servs., Inc. v. Herman, 146 F.3d 12, 20-21 (1st Cir. 1998) (expansively construing language in STAA to facilitate achieving the policy goals of encouraging corporate compliance with safety laws and employee reports of violations of those laws); Bechtel Constr. Co. v. Sec'y of Labor, 50 F.3d 926, 932-33 (11th Cir. 1995) (``[I]t is appropriate to give a broad construction to remedial statutes such as nondiscrimination provisions in federal labor laws.''); Passaic Valley Sewerage Comm'rs v. U.S. Dep't of Labor, 992 F.2d 474, 478 (3d Cir. 1993) (discussing the ``broad remedial purpose'' of the whistleblower provision in the Clean Water Act in expansively interpreting a term in that statute). Indeed, SPA's prohibition of discharging or ``in any manner'' discriminating against seamen indicates Congress's intent that the provision have broad application. See NLRB v. Scrivener, 405 U.S. 117, 122 (1972) (determining that language in the National Labor Relations Act should be read broadly because ``the presence of the preceding words `to discharge or otherwise discriminate' reveals, we think, particularly by the word `otherwise,' an intent on the part of Congress to afford broad rather than narrow protection to the employee''); Phillips v. Interior Board of Mine Operations Appeals, 500 F.2d 772, 782-83 (D.C. Cir. 1974) (relying on Scrivener in reasoning that the words ``in any other way discriminate'' in the Mine Safety Act support a broad reading of that Act's protections for miners). Likewise, the statement in the Senate Report regarding SPA that the term ``seaman'' is to be ``interpreted broadly'' further supports the premise that Congress did not intend that SPA be construed narrowly. S. Rep. No. 98-454, at 11 (1984). OSHA therefore will interpret each of the seven types of protected activity listed in the Act broadly. Moreover, while SPA, unlike other whistleblower statutes, does not contain a provision directly protecting all internal complaints by seamen to their superiors, many such complaints are covered under the seven specific categories listed in the Act. Protection of internal complaints is important because it ``leverage[s] the government's limited enforcement resources'' by encouraging employees to report substandard working conditions to their employers. Clean Harbors, 146 F.3d at 19-20. Such protections promote the resolution of violations without drawn-out litigation, and the ``failure to protect internal complaints may have the perverse result of encouraging employers to fire employees who believe they have been treated illegally before they file a formal complaint.'' Minor v. Bostwick Laboratories, Inc., 669 F.3d 428, 437 (4th Cir. 2012). The Transportation Trades Department, AFL-CIO, supported this approach in its comment, noting that ``internal communication aids in keeping vessels safe.'' Docket ID OSHA-2011-0841-0005. In addition, in the maritime context, a seaman on a vessel at sea may not be able to contact the authorities to correct a dangerous condition, and his or her only recourse will be to seek correction from the ship's officers. Because internal complaints are an important part of keeping a workplace safe, OSHA will give a broad construction to the Act's language to ensure that internal complaints are protected as fully as possible. The statute first prohibits retaliation because ``the seaman in good faith has reported or is about to report to the Coast Guard or other appropriate Federal agency or department that the seaman believes that a violation of a maritime safety law or regulation prescribed under that law or regulation has occurred.'' 46 U.S.C. 2114(a)(1)(A). One way an employer will know that a seaman ``is about to report'' the violation is when the seaman has made an internal complaint and there are circumstances from which a reasonable person would understand that the seaman will likely report the violation to an agency if the violation is not cured. These circumstances might arise from the internal report itself (e.g., ``I will contact the authorities if it is not fixed''), the seaman's history of reporting similar violations to authorities, or other similar considerations. Further, given that a seaman may be at sea for extended periods without access to ways of reporting a violation, a significant time may elapse between the time the [[Page 63403]] employer learns of the seaman's intent to report and the time the report can actually be made. OSHA will read the phrase ``about to report'' broadly to protect the seaman in such a circumstance. Furthermore, since one of the main purposes of SPA is to promote the provision of accurate information to government agencies about unsafe conditions on vessels, OSHA will also read this phrase to protect a seaman's refusing to lie to an agency about unsafe vessel conditions or protesting being forced to tell such lies. Cf. Donovan on Behalf of Anderson v. Stafford Const. Co., 732 F.2d 954, 959-60 (D.C. Cir. 1984) (employee's telling company officials that she would not lie to Mine Safety and Health Administration investigators is activity protected by anti-retaliation provision of Federal Mine Safety and Health Act). The Act also protects the seaman against discrimination when ``the seaman has refused to perform duties ordered by the seaman's employer because the seaman has a reasonable apprehension or expectation that performing such duties would result in serious injury to the seaman, other seamen, or the public.'' 46 U.S.C. 2114(a)(1)(B). To qualify for this protection, the seaman ``must have sought from the employer, and been unable to obtain, correction of the unsafe condition.'' 46 U.S.C. 2114(a)(3). Although not stated explicitly, in the Secretary's view, the reasonable implication of the statutory language is that the seaman's preliminary act of seeking correction of the condition is itself protected activity. That is, a seaman who asks his or her employer to correct a condition he or she reasonably believes would result in serious injury and suffers retaliation because of that request before the occasion to refuse to perform the unsafe work arises is protected by the Act. Although the literal terms of the Act could be read to leave the request for correction required yet unprotected, courts reject ``absurd result[s].'' Stone v. Instrumentation Laboratory Co., 591 F.3d 239, 243 (4th Cir. 2009) (``Courts will not . . . adopt a `literal' construction of a statute if such interpretation would thwart the statute's obvious purpose or lead to an `absurd result.' '' [quoting Chesapeake Ranch Water Co. v. Board of Comm'rs of Calvert County, 401 F.3d 274, 280 (4th Cir. 2005)]). The Agency's interpretation is embodied in the last sentence of section 1986.102(c): ``Any seaman who requests such a correction shall be protected against retaliation because of the request.'' The Chamber of Shipping of America submitted a comment generally supportive of the right to refuse unsafe work recognized by section 1986.102(c)(2). Every employee, the Chamber agreed, ``has not only a right but a responsibility to report unsafe working conditions to their supervisor in order that these concerns can be addressed before work begins.'' It said that its members have enacted policies which recognize that ``every mariner on board a ship ``is a part of the workplace safety team,'' and Chamber members ``agree that the best protection against future claims of retaliation is the creation of a reporting process for employees to use when the have safety concerns which necessarily must include actions taken by senior officers on board as well as shore management in response to those concerns.'' Docket ID OSHA-2011-0841-0004. However, while supporting a seaman's the right to refuse unsafe work (once correction has been sought) in the context of normal operating conditions of the vessel, the Chamber argued that there should be no such protection in emergency conditions. For example, the Chamber noted, heavy weather, a sea rescue, or a shipboard emergency, such as fire, may jeopardize the ship and all who are aboard her, and in these situations actions may be necessary that would ``give any reasonable individual a reasonable apprehension of injury even in light of the advanced training skills possessed by mariners.'' In these situations ``it is absolutely critical that senior officers managing the emergency be able to issue orders to mariners and expect them to be followed in order to execute the necessary and timely response.'' Thus, the Chamber suggested amending section 1986.102(c)(2) as follows (additions italicized): Refused to perform duties associated with the normal operation of the vessel, ordered by the seaman's employer because the seaman has a reasonable apprehension or expectation that performing such duties would result in serious injury to the seaman, other seamen, or the public. Prohibited acts do not include duties ordered by the seaman's employer deemed necessary to protect the lives of the crew in emergency situations. Docket ID OSHA-2011-0841-0004. OSHA recognizes that a ship-owner and its agents must be able to respond effectively to an emergency that threatens the ship and those aboard her. However, OSHA has decided against amending the regulation as suggested by the Chamber. The work refusal provision in the regulation is taken directly from the statute (sec. 2114(a)(1)(B)), and there is nothing in the statutory language that explicitly limits the refusal right in emergencies. Moreover, the language proposed by the Chamber could shift the balance struck by Congress between the employer and seaman by giving the employer the ability to chill refusals to work by interpreting ``emergency situations'' broadly. Such a result would be counter to the broad remedial purpose of the statute. Moreover, the record contains insufficient information from which to shape the contours of an appropriate rule, and the Secretary is unaware of any such cases that have arisen under the statute. Nonetheless, there may be some situations in which it would be inappropriate to award relief to a seaman who had refused to engage in lifesaving activities in an emergency situation. It would be problematic to interpret the statutory work refusal provision in sec. 2114(a)(1)(B)--which is aimed at the safety of seaman--in a way that might actually directly endanger them. However, the Secretary believes that these situations will be rare and are better decided on a case-by- case basis in the context of adjudication rather than through a categorical rule. Factors to be considered in such situations could include, but are not necessarily limited to, the nature of the emergency, the work ordered to be performed, the seaman's training and duties, and the opportunities that existed to do the work in a safer way. SPA provides protection to certain other types of internal communications. It covers the situation where ``the seaman notified, or attempted to notify, the vessel owner or the Secretary [of the department in which in Coast Guard is operating] of a work-related personal injury or work-related illness of a seaman.'' 46 U.S.C. 2114(a)(1)(D). As noted above, this covers oral, written and electronic communications to any agent of the vessel's owner. SPA also disallows retaliation because ``the seaman accurately reported hours of duty under this part.'' 46 U.S.C. 2114(a)(1)(G). In keeping with the discussion above, this language too should be interpreted in favor of broad protection for seamen should a question of its meaning arise. Finally, consistent with the broad interpretation of the statute as discussed above, OSHA believes that most reports required by the U.S. Coast Guard under 46 CFR parts 4.04 and 4.05 are protected by SPA. Section 1986.103 Filing of Retaliation Complaints This section describes the process for filing a complaint alleging retaliation in violation of SPA. The procedures described are consistent with those [[Page 63404]] governing complaints under STAA as well as other whistleblower statutes OSHA administers. Under paragraph (a), complaints may be filed by a seaman or, with the seaman's consent, by any person on the seaman's behalf. Paragraph (b) provides that complaints filed under SPA 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. Paragraph (c) explains with whom in OSHA complaints may be filed. Paragraph (d) addresses timeliness. To be timely, a complaint must be filed within 180 days of the occurrence of the alleged violation. Under Supreme Court precedent, a violation occurs when the retaliatory decision has been both ``made and communicated to'' the complainant. Del. State College v. Ricks, 449 U.S. 250, 258 (1980). In other words, the limitations period commences once the employee is aware or reasonably should be aware of the employer's decision. EEOC v. United Parcel Serv., 249 F.3d 557, 561-62 (6th Cir. 2001). A complaint will be considered filed on the date of 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. The regulatory text indicates that filing deadlines may be tolled based on principles developed in applicable case law. Donovan v. Hahner, Foreman & Harness, Inc., 736 F.2d 1421, 1423-29 (10th Cir. 1984). Paragraph (e), which is consistent with provisions implementing other OSHA whistleblower programs, describes the relationship between section 11(c) complaints and SPA whistleblower complaints. Section 11(c) of the OSH Act, 29 U.S.C. 660(c), generally prohibits employers from retaliating against employees for filing safety or health complaints or otherwise initiating or participating in proceedings under the OSH Act. Some of the activity protected by SPA, including maritime safety complaints and work refusals, may also be covered under section 11(c), though the geographic limits of section 4(a) of the OSH Act, 29 U.S.C. 653(a), which are applicable to section 11(c), do not apply to SPA.\5\ Paragraph (e) states that SPA whistleblower complaints that also allege facts constituting a section 11(c) violation will be deemed to have been filed under both statutes. Similarly, section 11(c) complaints that allege facts constituting a violation of SPA will also be deemed to have been filed under both laws. In these cases, normal procedures and timeliness requirements under the respective statutes and regulations will apply. --------------------------------------------------------------------------- \5\ SPA contains no geographic limit; its scope is limited only by the definition of ``seaman.'' --------------------------------------------------------------------------- OSHA notes that a complaint of retaliation filed with OSHA under SPA 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). Sylvester v. Parexel Int'l, Inc., No. 07- 123, 2011 WL 2165854, at *9-10 (ARB May 26, 2011) (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 the Agency to the existence of the alleged retaliation and the complainant's desire that the Agency investigate the complaint. Upon the filing of a complaint with OSHA, the Assistant Secretary 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 1986.104(e). As explained in section 1986.104(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 49 U.S.C. 42121(b)(2), 29 CFR 1986.104(e). Section 1986.104 Investigation This section describes the procedures that apply to the investigation of complaints under SPA. Paragraph (a) of this section outlines the procedures for notifying the parties and the U.S. Coast Guard 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) explains that the Agency will share respondent's submissions with the complainant, with redactions in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, et seq., and other applicable confidentiality laws as necessary, and will permit the complainant to respond to those submissions. The Agency expects that sharing information with complainants will assist it in conducting full and fair investigations and thoroughly assessing defenses raised by respondents. Paragraph (d) of this section discusses the confidentiality of information provided during investigations. Paragraph (e) sets forth the applicable burdens of proof. As discussed above, SPA adopts the relevant provisions of STAA, which in turn adopts the burdens of proof under AIR21. Dady v. Harley Marine Services, Inc., Nos. 13-076, 13-077, 2015 WL 4674602, at *3 (ARB July 21, 2015), petition filed, (11th Cir. Sept. 14. 2015) (No. 15-14110). A complainant must 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. Ferguson v. New Prime, Inc., No. 10-75, 2011 WL 4343278, at *3 (ARB Aug. 31, 2011); Clarke v. Navajo Express, No. 09- 114, 2011 WL 2614326, at *3 (ARB June 29, 2011). 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 shortly after protected activity, giving rise to the inference that it was a contributing factor in the adverse action. If the complainant does not make the required prima facie showing, the investigation must be discontinued and the complaint dismissed. Trimmer v. U.S. Dep't of Labor, 174 F.3d 1098, 1101 (10th Cir. 1999) (noting that the burden-shifting framework of the ERA, which is the same framework now found in STAA and therefore SPA, served a ``gatekeeping function'' that ``stemm[ed] 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 SPA and not investigate (or cease investigating) if either: (1) The complainant fails to meet the prima facie showing that the 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. [[Page 63405]] Paragraph (f) describes the procedures the Assistant Secretary will follow prior to the issuance of findings and a preliminary order when the Assistant Secretary has reasonable cause to believe that a violation has occurred. Its purpose is to ensure compliance with the Due Process Clause of the Fifth Amendment, as interpreted by the Supreme Court in Brock v. Roadway Express, Inc., 481 U.S. 252 (1987) (requiring OSHA to give a STAA respondent the opportunity to review the substance of the evidence and respond, prior to ordering preliminary reinstatement). Section 1986.105 Issuance of Findings and Preliminary Orders This section provides that, within 60 days of the filing of a complaint and on the basis of information obtained in the investigation, the Assistant Secretary will issue written findings regarding whether there is reasonable cause to believe that the complaint has merit. If the Assistant Secretary concludes that there is reasonable cause to believe that the complaint has merit, the Assistant Secretary will order appropriate relief, including: A requirement that the person take affirmative action to abate the violation; reinstatement to the seaman's former position; compensatory damages, including back pay with interest and damages such as litigation fees and costs; and punitive damages up to $250,000, where appropriate. Affirmative action to abate the violation includes a variety of measures, such as posting notices about SPA orders and rights, as well as expungement of adverse comments in a personnel record. Scott v. Roadway Express, Inc., No. 01-065, 2003 WL 21269144, at *1-2 (ARB May 29, 2003) (posting notices of STAA orders and rights); Pollock v. Continental Express, Nos. 07-073, 08-051, 2010 WL 1776974, at *9 (ARB Apr. 7, 2010) (expungement of adverse references). The findings and, where appropriate, the preliminary order, advise the parties of their right to file objections to the findings and the preliminary order of the Assistant Secretary and to request a hearing. 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. In appropriate circumstances, in lieu of preliminary reinstatement, OSHA may order that the complainant receive the same pay and benefits that he or she received prior to his termination, but not actually return to work. Smith v. Lake City Enterprises, Inc., Nos. 09-033, 08- 091, 2010 WL 3910346, at *8 (ARB Sept. 24, 2010) (holding that an employer who violated STAA was to compensate the complainant with ``front pay'' when reinstatement was not possible). Such front pay or economic reinstatement is also employed in cases arising under section 105(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 815(c)(2). Sec'y of Labor ex rel. York v. BR&D Enters., Inc., 23 FMSHRC 697, 2001 WL 1806020, at *1 (ALJ June 26, 2001). Front pay has been recognized as a possible remedy in cases under the whistleblower statutes enforced by OSHA in circumstances where reinstatement would not be appropriate. Hagman v. Washington Mutual Bank, , ALJ No. 2005- SOX-73, 2006 WL 6105301, at *32 (Dec. 19, 2006) (noting that while reinstatement is the ``preferred and presumptive remedy'' under Sarbanes-Oxley, ``[f]ront pay may be awarded as a substitute when reinstatement is inappropriate due to: (1) An employee's medical condition that is causally related to her employer's retaliatory action . . .; (2) manifest hostility between the parties . . .; (3) the fact that claimant's former position no longer exists . . .; or (4) the fact that employer is no longer in business at the time of the decision''); Hobby v. Georgia Power Co., ARB No. 98-166, ALJ No. 1990-ERA-30 (ARB Feb. 9, 2001) (noting circumstances in which front pay may be available in lieu of reinstatement but ordering reinstatement); Brown v. Lockheed Martin Corp., ALJ No. 2008-SOX-49, 2010 WL 2054426, at *55-56 (Jan. 15, 2010) (same). Congress intended that seamen be preliminarily reinstated to their positions if OSHA finds reasonable cause to believe that they were discharged in violation of SPA. When OSHA finds a violation, the norm is for OSHA to order immediate preliminary reinstatement. Neither an employer nor an employee has a statutory right to choose economic reinstatement. Rather, economic reinstatement is designed to accommodate situations in which evidence establishes to OSHA's satisfaction that reinstatement is inadvisable for some reason, notwithstanding the employer's retaliatory discharge of the seaman. In such situations, actual reinstatement might be delayed until after the administrative adjudication is completed as long as the seaman continues to receive his or her pay and benefits and is not otherwise disadvantaged by a delay in reinstatement. There is no statutory basis for allowing the employer to recover the costs of economically reinstating a seaman should the employer ultimately prevail in the whistleblower adjudication. In ordering interest on back pay, the Secretary has determined that, instead of computing the interest due by compounding quarterly 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, interest will be compounded daily. The Secretary believes that daily compounding of interest better achieves the make-whole purpose of a back pay award. Daily compounding of interest has become the norm in private lending and recently was found to be the most appropriate method of calculating interest on back pay by the National Labor Relations Board. Jackson Hosp. Corp. v. United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int'l Union, 356 NLRB No. 8, 2010 WL 4318371, at *3-4 (2010). Additionally, interest on tax underpayments under the Internal Revenue Code, 26 U.S.C. 6621, is compounded daily pursuant to 26 U.S.C. 6622(a). Subpart B--Litigation Section 1986.106 Objections to the Findings and the Preliminary Order and Request 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 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 and the OSHA official who issued the findings, 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. Shirani v. Calvert Cliffs Nuclear Power Plant, Inc., No. 04-101, 2005 WL 2865915, at *7 (ARB Oct. 31, 2005). A respondent may file a motion to stay OSHA's preliminary order of reinstatement with the Office of [[Page 63406]] Administrative Law Judges. However, a stay will be granted only on the basis of exceptional circumstances. OSHA believes that a stay of the Assistant Secretary's preliminary order of reinstatement would be appropriate only where the respondent can establish the necessary criteria for a stay, i.e., the respondent would suffer irreparable injury; the respondent is likely to succeed on the merits; a balancing of possible harms to the parties favors the respondent; and the public interest favors a stay. Section 1986.107 Hearings This section adopts the rules of practice and procedure for administrative hearings before the Office of Administrative Law Judges at 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. If both the complainant and respondent object to the findings and/or preliminary order of the Assistant Secretary, an ALJ will conduct a single, consolidated hearing. This section states that ALJs have broad power to limit discovery in order to expedite the hearing. This furthers an important goal of SPA--to have unlawfully terminated seamen reinstated as quickly as possible. This section explains that 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. This is consistent with the Administrative Procedure Act, which provides at 5 U.S.C. 556(d): ``Any oral or documentary evidence may be received, but the Agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence. . . .'' Federal Trade Commission v. Cement Institute, 333 U.S. 683, 705-06 (1948) (administrative agencies not restricted by rigid rules of evidence). Furthermore, it is inappropriate to apply the technical rules of evidence in part 18 because OSHA anticipates that complainants will often appear pro se, as is the case with other whistleblower statutes the Department of Labor administers. Also, hearsay evidence is often appropriate in whistleblower cases, as there often is no relevant evidence other than hearsay to prove discriminatory intent. ALJs have the responsibility to determine the appropriate weight to be given to such evidence. For these reasons the interests of determining all of the relevant facts are best served by not having strict evidentiary rules. Section 1986.108 Role of Federal Agencies Paragraph (a)(1) of this section explains that the Assistant Secretary, represented by an attorney from the appropriate Regional Solicitor's office, ordinarily will be the prosecuting party in cases in which the respondent objects to the findings or the preliminary reinstatement order. This has been the practice under STAA, from which the SPA's procedures are drawn, and the public interest generally requires the Assistant Secretary's participation in such matters. The case reports show that there has been relatively little litigation under SPA to date, and OSHA believes that relatively few private attorneys have developed adequate expertise in representing SPA whistleblower complainants. Where the complainant, but not the respondent, objects to the findings or order, the regulations retain the Assistant Secretary's discretion to participate as a party or amicus curiae at any stage of the proceedings, including the right to petition for review of an ALJ decision. Paragraph (a)(2) clarifies that if the Assistant Secretary assumes the role of prosecuting party in accordance with paragraph (a)(1), he or she may, upon written notice to the other parties, withdraw as the prosecuting party in the exercise of prosecutorial discretion. If the Assistant Secretary withdraws, the complainant will become the prosecuting party and the ALJ will issue appropriate orders to regulate the course of future proceedings. Paragraph (a)(3) provides that copies of documents in all cases must be sent to all parties, or if represented by counsel, to them. If the Assistant Secretary is participating in the proceeding, copies of documents must be sent to the Regional Solicitor's office representing the Assistant Secretary. Paragraph (b) states that the U.S. Coast Guard, if interested in a proceeding, also may participate as amicus curiae at any time in the proceeding. This paragraph also permits the U.S. Coast Guard to request copies of all documents, regardless of whether it is participating in the case. Section 1986.109 Decisions and Orders of the Administrative Law Judge This section sets forth in paragraph (a) the requirements for the content of the decision and order of the ALJ. Paragraphs (a) and (b) state the standards for finding a violation under SPA and for precluding such a finding. Specifically, the complainant must show that the protected activity was a ``contributing factor'' in the adverse action alleged in the complaint. 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.'' Clarke, supra, at *3. The complainant (a term that, in this paragraph, refers to the Assistant Secretary if he or she is the prosecuting party) can succeed by providing either direct or indirect proof of contribution. Direct evidence is evidence that conclusively connects the protected activity and the adverse action and does not rely upon inference. If the complainant does not produce direct evidence, he or she must proceed indirectly, or inferentially, by proving by a preponderance of the evidence that an activity protected by SPA was the true reason for the adverse action. One type of indirect, also known as circumstantial, evidence is evidence that discredits the respondent's proffered reasons for the adverse action, demonstrating instead that they were pretext for retaliation. Id. Another type of circumstantial evidence is temporal proximity between the protected activity and the adverse action. Ferguson, supra, at *2. The respondent may avoid liability if it ``demonstrates by clear and convincing evidence'' that it would have taken the same adverse action in any event. Clear and convincing evidence is evidence indicating that the thing to be proved is highly probably or reasonably certain. Clarke, supra, at *3. Paragraph (c) provides that the Assistant Secretary's determinations about when to proceed with an investigation and when to dismiss a complaint without an investigation or without a complete investigation are discretionary decisions not subject to review by the ALJ. The ALJ therefore may not remand cases to the Assistant Secretary to conduct an investigation or make further factual findings. If there otherwise is jurisdiction, the ALJ will hear the case on the merits or dispose of the matter without a hearing if warranted by the facts and circumstances. Paragraph (d)(1) describes the remedies that the ALJ may order and 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. (See the earlier discussion of section 1986.105.) In addition, paragraph (d)(2) in this section requires the ALJ to issue an order [[Page 63407]] denying the complaint if he or she determines that the respondent has not violated SPA. The Chamber of Shipping of America requested that section 1986.109 and .110 be amended to allow awards to employers of attorney fees and litigation costs against claimants found to have made frivolous or fraudulent claims. Docket ID OSHA-2011-0841-0004. The Secretary declines to do so. Under the American Rule, generally parties must bear their own costs of litigation unless expressly authorized by Congress. Key Tronic v. United States, 511 U.S. 809, 814 (1994); Aleyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247 (1975); Unbelievable, Inc. v. NLRB, 118 F.3d 795, 805 (D.C. Cir. 1997) (holding that the NLRB does not have the authority to depart from the American Rule to award attorney's fees incurred because of the assertion of frivolous defenses). There is no such expression of intent here: There is no language in either SPA or STAA entitling respondents to recover attorney's fees. Indeed STAA, which is incorporated by SPA, expressly allows successful claimants to recover attorney's fees; the statute's failure to make a similar provision for employers only serves to underscore the fact that Congress did not intend to award them. Similarly, other whistleblower statues that OSHA administers do allow respondents to recover for frivolous or bad faith claims. See, e.g., 6 U.S.C. 1142(c)(3)(D); 15 U.S.C. 2087(b)(3)(C); 49 U.S.C. 42121(b)(3)(C). This also cuts against the idea that Congress intended them here. The Secretary may only award those remedies Congress has actually empowered him to award. Filiberti v. Merit Sys. Prot. Bd., 804 F.2d 1504, 1511-12 (9th Cir. 1986) (citing Civil Aeronautics Board v. Delta Air Lines, Inc., 367 U.S. 316, 322 (1961)). Finally, the point of SPA is to provide assurance to seamen that they are free to report safety concerns. The addition of a potential sanction for filing a claim under the Act has the potential to undercut that goal. Thus, OSHA rejects the Chamber's suggestion here. Paragraph (e) requires that the ALJ's decision be served on all parties to the proceeding, the Assistant Secretary, and the Associate Solicitor, Division of Occupational Safety and Health, U.S. Department of Labor. Paragraph (e) also provides that any ALJ decision requiring reinstatement or lifting a preliminary 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. Section 1986.110 Decisions and Orders of the Administrative Review Board Paragraph (a) sets forth rules regarding seeking review of an ALJ's decision with the ARB. Upon the issuance of the ALJ's decision, the parties have 14 days within which to petition the ARB for review of that decision. 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. 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. In addition to being sent to the ARB, the petition is to be served on all parties, the Chief Administrative Law Judge, the Assistant Secretary, and, in cases in which the Assistant Secretary is a party, the Associate Solicitor, Division of Occupational Safety and Health, U.S. Department of Labor. Consistent with the procedures for petitions for review under other OSHA-administered whistleblower laws, paragraph (b) of this section indicates that the ARB has discretion to accept or reject review in SPA whistleblower cases. Congress intended these whistleblower cases to be expedited, as reflected by the provision in STAA, which applies to SPA, providing for a hearing de novo in district court if the Secretary has not issued a final decision within 210 days of the filing of the complaint. Making review of SPA whistleblower cases discretionary may assist in furthering that goal. As noted in paragraph (a) of this section, 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. When the ARB accepts a petition for review, the ARB will review the ALJ's factual determinations under the substantial evidence standard. 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. In exceptional circumstances, however, the ARB may grant a motion to stay an ALJ's order of reinstatement. A stay of a preliminary order of reinstatement is appropriate only where the respondent can establish the necessary criteria for a stay, i.e., the respondent will suffer irreparable injury; the respondent is likely to succeed on the merits; a balancing of possible harms to the parties favors the respondent; and the public interest favors a stay. Paragraph (c) incorporates the statutory requirement that the Secretary's final decision be issued within 120 days of the conclusion of the hearing. The hearing is deemed concluded 14 days after the date of the ALJ's decision unless a motion for reconsideration has been filed with the ALJ, in which case the hearing is concluded on the date the motion for reconsideration is ruled upon or 14 days after a new ALJ decision is issued. This paragraph further provides for the ARB's decision in all cases to be served on all parties, the Chief Administrative Law Judge, the Assistant Secretary, and the Associate Solicitor, Division of Occupational Safety and Health, U.S. Department of Labor, even if the Assistant Secretary is not a party. Paragraph (d) describes the remedies the ARB can award if it concludes that the respondent has violated SPA. (See the earlier discussion of remedies at section 1986.105 and .109.) Under paragraph (e), if the ARB determines that the respondent has not violated the law, it will issue an order denying the complaint. Subpart C--Miscellaneous Provisions Section 1986.111 Withdrawal of SPA Complaints, Findings, Objections, and Petitions for Review; Settlement This section provides procedures and time periods for the 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 also provides for approval of settlements at the investigative and adjudicative stages of the case. Paragraph (a) permits a complainant to withdraw, orally or in writing, his or her complaint to the Assistant Secretary at any time prior to the filing of objections to the Assistant Secretary's findings and/or preliminary order. The Assistant Secretary will confirm in writing the complainant's desire to withdraw and will determine whether to approve the withdrawal. If approved, the Assistant Secretary will notify all parties if the withdrawal is approved. Complaints that are withdrawn pursuant to settlement agreements prior to the filing of objections must be approved in accordance with the [[Page 63408]] settlement approval procedures in paragraph (d). The complainant may not withdraw his or her complaint after the filing of objections to the Assistant Secretary's findings and/or preliminary order. Under paragraph (b), the Assistant Secretary may withdraw his or her findings and/or preliminary order at any time before the expiration of the 30-day objection period described in section 1986.106, if no objection has yet been filed. The Assistant Secretary may substitute new findings and/or a preliminary order, and the date of receipt of the substituted findings and/or order will begin a new 30-day objection period. Paragraph (c) addresses situations in which parties seek to withdraw either objections to the Assistant Secretary's findings and/or preliminary order or petitions for review of ALJ decisions. A party may withdraw its objections to the Assistant Secretary's findings and/or preliminary order at any time before the findings and/or preliminary order become final by filing a written withdrawal with the ALJ. Similarly, if a case is on review with the ARB, a party may withdraw its 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, depending on where the case is pending, will determine whether to approve the withdrawal of the objections or the petition for review. Paragraph (c) clarifies that if the ALJ approves a request to withdraw objections to the Assistant Secretary's findings and/or preliminary order, and there are no other pending objections, the Assistant Secretary's findings and/or preliminary order will become the final order of the Secretary. Likewise, 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. Finally, paragraph (c) provides that if objections or a petition for review are withdrawn because of settlement, the settlement must be submitted for approval in accordance with paragraph (d). Paragraph (d)(1) states that a case may be settled at the investigative stage if the Assistant Secretary, the complainant, and the respondent agree. The Assistant Secretary's approval of a settlement reached by the respondent and the complainant demonstrates his or her consent and achieves the consent of all three parties. Paragraph (d)(2) permits a case to be settled if the participating parties agree and the ALJ before whom the case is pending approves at any time after the filing of objections to the Assistant Secretary's findings and/or preliminary order. Similarly, if the case is before the ARB, the ARB may approve a settlement between the participating parties. Under paragraph (e), settlements approved by the Assistant Secretary, the ALJ, or the ARB will constitute the final order of the Secretary and may be enforced pursuant to 49 U.S.C. 31105(e), as incorporated by 46 U.S.C. 2114(b). Section 1986.112 Judicial Review This section describes the statutory provisions for judicial review of decisions of the Secretary. Paragraph (a) provides that within 60 days of the issuance of a final order under sections 1986.109 or 1986.110, a person adversely affected or aggrieved by such order may file a petition for review of the order in the court of appeals of the United States for the circuit in which the violation allegedly occurred or the circuit in which the complainant resided on the date of the violation. Paragraph (b) states that a final order will not be subject to judicial review in any criminal or other civil proceeding. Paragraph (c) requires that in cases where judicial review is sought the ARB or ALJ, as the case may be, must submit the record of proceedings to the appropriate court pursuant to the Federal Rules of Appellate Procedure and the local rules of such court. Section 1986.113 Judicial Enforcement This section provides that the Secretary may obtain judicial enforcement of orders, including orders approving settlement agreements, by filing a civil action seeking such enforcement in the United States district court for the district in which the violation occurred. Section 1986.114 District Court Jurisdiction of Retaliation Complaints Under SPA This section allows a complainant to bring an action in district court for de novo review of the allegations contained in the complaint filed with OSHA if there has been no final decision of the Secretary and 210 days have passed since the filing of that complaint and the delay was not due to the complainant's bad faith. This section reflects the Secretary's position that it would not be reasonable to construe the statute to permit a complainant 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 administrative complaint. In the Secretary's view, the purpose of the ``kick out'' provision is to aid the complainant in receiving a prompt decision. That goal is not implicated in a situation where the complainant already has received a final decision from the Secretary. In addition, permitting the complainant to file a new case in district court in such circumstances could conflict with the parties' rights to seek judicial review of the Secretary's final decision in the court of appeals. Paragraph (b) of this section requires a complainant to provide a file-stamped copy of his or her complaint within seven days after filing a complaint in district court to the Assistant Secretary, the ALJ, or the ARB, depending on where the proceeding is pending. 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 Associate Solicitor, Division of Occupational Safety and Health, U.S. Department of Labor. 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. Section 1986.115 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 three-day's notice to the parties, waive any rule or issue such orders as justice or the administration of SPA's whistleblower provision requires. V. Paperwork Reduction Act This rule contains a reporting provision (filing a retaliation complaint, Section 1986.103) 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. VI. Administrative Procedure Act The notice and comment rulemaking procedures of 5 U.S.C.553, a provision 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). Part 1986 sets forth interpretive rules and rules of agency procedure and practice [[Page 63409]] within the meaning of that section. Therefore, publication in the Federal Register of a notice of proposed rulemaking and request for comments was not required. Although Part 1986 was 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 be 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 final rule. It is in the public interest that the rule be effective immediately so that parties may know what procedures are applicable to pending cases. Furthermore, most of the provisions of this rule were in the IFR and have already been in effect since February 6, 2013. VII. 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: (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 has been prepared. Because no notice of proposed rulemaking was published, no statement is required under section 202 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532. In any event, this rulemaking is procedural and interpretive in nature and is thus not expected to have a significant economic impact. Finally, this rule does not have ``federalism implications.'' The rule does not have ``substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government'' and therefore is not subject to Executive Order 13132 (Federalism). VIII. 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, at 9; also found at: https://www.sba.gov/advocacy/guide-government-agencies-how-comply-regulatory-flexibility-act. This is a rule of agency procedure, practice, and interpretation within the meaning of 5 U.S.C. 553; and, therefore, the rule is exempt from both the notice and comment rulemaking procedures of the APA and the requirements under the RFA. List of Subjects in 29 CFR Part 1986 Administrative practice and procedure, Employment, Investigations, Marine safety, Reporting and recordkeeping requirements, Safety, Seamen, Transportation, Whistleblowing. 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 September 1, 2016. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health. 0 Accordingly, for the reasons set out in the preamble, 29 CFR part 1986 is revised to read as follows: PART 1986--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS UNDER THE EMPLOYEE PROTECTION PROVISION OF THE SEAMAN'S PROTECTION ACT (SPA), AS AMENDED Subpart A--Complaints, Investigations, Findings and Preliminary Orders 1986.100 Purpose and scope. 1986.101 Definitions. 1986.102 Obligations and prohibited acts. 1986.103 Filing of retaliation complaints. 1986.104 Investigation. 1986.105 Issuance of findings and preliminary orders. Subpart B--Litigation 1986.106 Objections to the findings and the preliminary order and request for a hearing. 1986.107 Hearings. 1986.108 Role of Federal agencies. 1986.109 Decisions and orders of the administrative law judge. 1986.110 Decisions and orders of the Administrative Review Board. Subpart C--Miscellaneous Provisions 1986.111 Withdrawal of SPA complaints, findings, objections, and petitions for review; settlement. 1986.112 Judicial review. 1986.113 Judicial enforcement. 1986.114 District court jurisdiction of retaliation complaints under SPA. 1986.115 Special circumstances; waiver of rules. Authority: 46 U.S.C. 2114; 49 U.S.C. 31105; Secretary's Order 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. 1986.100 Purpose and scope. (a) This part sets forth the procedures for, and interpretations of, the Seaman's Protection Act (SPA), 46 U.S.C. 2114, as amended, which protects a seaman from retaliation because the seaman has engaged in protected activity pertaining to compliance with maritime safety laws and accompanying regulations. SPA incorporates the procedures, requirements, and rights described in the whistleblower provision of the Surface Transportation Assistance Act (STAA), 49 U.S.C. 31105. (b) This part establishes procedures pursuant to the statutory provisions set forth above for the expeditious handling of retaliation complaints filed by seamen or persons acting on their behalf. These rules, together with those rules codified at 29 CFR part 18, set forth the procedures for submission of complaints, investigations, issuance of findings and preliminary orders, objections to findings, litigation before administrative law judges (ALJs), post-hearing administrative review, withdrawals and settlements, and judicial review and enforcement. In addition, the rules in this part provide the Secretary's interpretations on certain statutory issues. Sec. 1986.101 Definitions. As used in this part: (a) Act means the Seaman's Protection Act (SPA), 46 U.S.C. 2114, as amended. [[Page 63410]] (b) Assistant Secretary means the Assistant Secretary of Labor for Occupational Safety and Health or the person or persons to whom he or she delegates authority under the Act. (c) Business days means days other than Saturdays, Sundays, and Federal holidays. (d) Citizen of the United States means an individual who is a national of the United States as defined in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(22)); a corporation incorporated under the laws of the United States or a State; a corporation, partnership, association, or other business entity if the controlling interest is owned by citizens of the United States or whose principal place of business or base of operations is in a State; or a governmental entity of the Federal Government of the United States, of a State, or of a political subdivision of a State. The controlling interest in a corporation is owned by citizens of the United States if a majority of the stockholders are citizens of the United States. (e) Complainant means the seaman who filed a SPA whistleblower complaint or on whose behalf a complaint was filed. (f) Cooperated means any assistance or participation with an investigation, at any stage of the investigation, and regardless of the outcome of the investigation. (g) Maritime safety law or regulation includes any statute or regulation regarding health or safety that applies to any person or equipment on a vessel. (h) Notify or notified includes any oral or written communications. (i) OSHA means the Occupational Safety and Health Administration of the United States Department of Labor. (j) Person means one or more individuals or other entities, including but not limited to corporations, companies, associations, firms, partnerships, societies, and joint stock companies. (k) Report or reported means any oral or written communications. (l) Respondent means the person alleged to have violated 46 U.S.C. 2114. (m) Seaman means any individual engaged or employed in any capacity on board a U.S.-flag vessel or any other vessel owned by a citizen of the United States, except members of the Armed Forces. The term includes an individual formerly performing the work described above or an applicant for such work. (n) Secretary means the Secretary of Labor or persons to whom authority under the Act has been delegated. (o) State means a State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, and the Northern Mariana Islands. (p) Vessel means every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water. (q) Vessel owner includes all of the agents of the owner, including the vessel's master. (r) Any future amendments to SPA that affect the definition of a term or terms listed in this section will apply in lieu of the definition stated herein. Sec. 1986.102 Obligations and prohibited acts. (a) A person may not retaliate against any seaman because the seaman: (1) In good faith reported or was about to report to the Coast Guard or other appropriate Federal agency or department that the seaman believed that a violation of a maritime safety law or regulation prescribed under that law or regulation has occurred; (2) Refused to perform duties ordered by the seaman's employer because the seaman had a reasonable apprehension or expectation that performing such duties would result in serious injury to the seaman, other seamen, or the public; (3) Testified in a proceeding brought to enforce a maritime safety law or regulation prescribed under that law; (4) Notified, or attempted to notify, the vessel owner or the Secretary of the department in which the Coast Guard was operating of a work-related personal injury or work-related illness of a seaman; (5) Cooperated with a safety investigation by the Secretary of the department in which the Coast Guard was operating or the National Transportation Safety Board; (6) Furnished information to the Secretary of the department in which the Coast Guard was operating, the National Transportation Safety Board, or any other public official as to the facts relating to any marine casualty resulting in injury or death to an individual or damage to property occurring in connection with vessel transportation; or (7) Accurately reported hours of duty under part A of subtitle II of title 46 of the United States Code. (b) Retaliation means any discrimination against a seaman including, but not limited to, discharging, demoting, suspending, harassing, intimidating, threatening, restraining, coercing, blacklisting, or disciplining a seaman. (c) For purposes of paragraph (a)(2) of this section, the circumstances causing a seaman's apprehension of serious injury must be of such a nature that a reasonable person, under similar circumstances, would conclude that there was a real danger of an injury or serious impairment of health resulting from the performance of duties as ordered by the seaman's employer. To qualify for protection based on activity described in paragraph (a)(2) of this section, the seaman must have sought from the employer, and been unable to obtain, correction of the unsafe condition. Any seaman who requested such a correction shall be protected against retaliation because of the request. Sec. 1986.103 Filing of retaliation complaints. (a) Who may file. A seaman who believes that he or she has been retaliated against by a person in violation of SPA may file, or have filed by any person on the seaman'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 a seaman is unable to file a complaint in English, OSHA will accept the complaint in any other language. (c) Place of filing. The complaint should be filed with the OSHA office responsible for enforcement activities in the geographical area where the seaman 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. Not later than 180 days after an alleged violation occurs, a seaman who believes that he or she has been retaliated against in violation of SPA may file, or have filed by any person on his or her behalf, a complaint alleging such retaliation. The date of the postmark, facsimile transmittal, electronic communication transmittal, telephone call, hand-delivery, delivery to a 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. (e) Relationship to section 11(c) complaints. A complaint filed under SPA alleging facts that would also constitute a violation of section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. 660(c), will be deemed to be a complaint under both SPA and section 11(c). Similarly, a complaint filed under section 11(c) that alleges facts that would also constitute a violation of SPA will be deemed to be a complaint filed [[Page 63411]] under both SPA and section 11(c). Normal procedures and timeliness requirements under the respective statutes and regulations will be followed. Sec. 1986.104 Investigation. (a) Upon receipt of a complaint in the investigating office, the Assistant Secretary will notify the respondent of the filing of the complaint by providing the respondent with a copy of the complaint, redacted in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. The Assistant Secretary will also notify the respondent of the respondent's rights under paragraphs (b) and (f) of this section. The Assistant Secretary will provide a copy of the unredacted complaint to the complainant (or complainant's legal counsel, if complainant is represented by counsel) and to the U.S. Coast Guard. (b) Within 20 days of receipt of the notice of the filing of the complaint provided under paragraph (a) of this section, the respondent may submit to the Assistant Secretary a written statement and any affidavits or documents substantiating its position. Within the same 20 days, the respondent may request a meeting with the Assistant Secretary to present its position. (c) Throughout the investigation, the Agency will provide to the complainant (or the complainant's legal counsel if complainant is represented by counsel) a copy of all of respondent's submissions to the Agency that are responsive to the complainant's whistleblower complaint. Before providing such materials to the complainant, the Agency will redact them, if necessary, in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. The Agency will also provide the complainant with an opportunity to respond to such submissions. (d) Investigations will be conducted in a manner that protects the confidentiality of any person who provides information on a confidential basis, other than the complainant, in accordance with part 70 of this title. (e)(1) A complaint will be dismissed unless the complainant has made a prima facie showing that protected activity was a contributing factor in the adverse action alleged in the complaint. (2) The complaint, supplemented as appropriate by interviews of the complainant, must allege the existence of facts and evidence to make a prima facie showing as follows: (i) The seaman engaged in a protected activity; (ii) The respondent knew or suspected that the seaman engaged in the protected activity; (iii) The seaman suffered an adverse action; and (iv) The circumstances were sufficient to raise the inference that the protected activity was a contributing factor in the adverse action. (3) For purposes of determining whether to investigate, the complainant will be considered to have met the required burden if the complaint on its face, supplemented as appropriate through interviews of the complainant, alleges the existence of facts and either direct or circumstantial evidence to meet the required showing, i.e., to give rise to an inference that the respondent knew or suspected that the seaman engaged in protected activity and that the protected activity was a contributing factor in the adverse action. The burden may be satisfied, for example, if the complainant shows that the adverse action took place shortly after the protected activity, 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, an investigation of the complaint will not be conducted or will be discontinued 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, the Assistant Secretary 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. 1986.105, if the Assistant Secretary has reasonable cause, on the basis of information gathered under the procedures of this part, to believe that the respondent has violated the Act and that preliminary reinstatement is warranted, the Assistant Secretary will again 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 to the complainant, the Agency will redact them, if necessary, in accordance 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 the Assistant Secretary's notification pursuant to this paragraph, or as soon thereafter as the Assistant Secretary and the respondent can agree, if the interests of justice so require. Sec. 1986.105 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 there is reasonable cause to believe that the respondent retaliated against the complainant in violation of SPA. (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. Such order will require, where appropriate: Affirmative action to abate the violation; reinstatement of the complainant to his or her former position, with the same compensation, terms, conditions and privileges of the complainant's employment; payment of compensatory damages (back pay with interest and compensation for any special damages sustained as a result of the retaliation, including any litigation costs, expert witness fees, and reasonable attorney fees which the complainant has 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 may also require the respondent to pay punitive damages of up to $250,000. [[Page 63412]] (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, 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 the order and to request a hearing. 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 the 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 request for a hearing have been timely filed as provided at Sec. 1986.106. 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. 1986.106 Objections to the findings and the preliminary order and request for a hearing. (a) Any party who desires review, including judicial review, must file any objections and a request for a hearing on the record within 30 days of receipt of the findings and preliminary order pursuant to Sec. 1986.105(c). The objections and request for a hearing must be in writing and state whether the objections are to the findings and/or the preliminary order. The date of the postmark, facsimile transmittal, or electronic communication transmittal is considered the date of filing; if the objection is filed in person, by hand-delivery or other means, the objection is filed upon receipt. Objections must be filed with the Chief Administrative Law Judge, U.S. Department of Labor, and copies of the objections must be mailed at the same time to the other parties of record, and the OSHA official who issued the findings. (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 on the basis of exceptional circumstances. If no timely objection is filed with respect to either the findings or the preliminary order, the findings and/or preliminary order will become the final decision of the Secretary, not subject to judicial review. Sec. 1986.107 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. 1986.108 Role of Federal agencies. (a)(1) The complainant and the respondent will be parties in every proceeding. In any case in which the respondent objects to the findings or the preliminary order, the Assistant Secretary ordinarily will be the prosecuting party. In any other cases, at the Assistant Secretary's discretion, the Assistant Secretary may participate as a party or participate as amicus curiae 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) If the Assistant Secretary assumes the role of prosecuting party in accordance with paragraph (a)(1) of this section, he or she may, upon written notice to the ALJ or the Administrative Review Board (ARB), as the case may be, and the other parties, withdraw as the prosecuting party in the exercise of prosecutorial discretion. If the Assistant Secretary withdraws, the complainant will become the prosecuting party and the ALJ or the ARB, as the case may be, will issue appropriate orders to regulate the course of future proceedings. (3) Copies of documents in all cases shall be sent to all parties, or if they are represented by counsel, to the latter. In cases in which the Assistant Secretary is a party, copies of the documents shall be sent to the Regional Solicitor's Office representing the Assistant Secretary. (b) The U.S. Coast Guard, if interested in a proceeding, may participate as amicus curiae at any time in the proceeding, at its discretion. At the request of the U.S. Coast Guard, copies of all documents in a case must be sent to that agency, whether or not that agency is participating in the proceeding. Sec. 1986.109 Decisions and orders of the administrative law judge. (a) The decision of the ALJ will contain appropriate findings, conclusions, and an order pertaining to the remedies provided in paragraph (d) of this section, as appropriate. A determination that a violation has occurred may be made only if the complainant has demonstrated by a preponderance of the evidence that protected activity was a contributing factor in the adverse action alleged in the complaint. (b) If the complainant or the Assistant Secretary 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 the Assistant Secretary's determination to dismiss a complaint without completing an investigation pursuant to Sec. 1986.104(e) nor the Assistant Secretary'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 [[Page 63413]] 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, with the same compensation, terms, conditions, and privileges of the complainant's employment; payment of compensatory damages (back pay with interest and compensation for any special damages sustained as a result of the retaliation, including any litigation costs, expert witness fees, and reasonable attorney fees which the complainant may have incurred); and payment of punitive damages up to $250,000. 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. (2) If the ALJ determines that the respondent has not violated the law, an order will be issued denying the complaint. (e) The decision will be served upon all parties to the proceeding, the Assistant Secretary, and the Associate Solicitor, Division of Occupational Safety and Health, 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 ARB, U.S. Department of Labor. The ALJ decision will become the final order of the Secretary unless a petition for review is timely filed with the ARB and the ARB accepts the decision for review. Sec. 1986.110 Decisions and orders of the Administrative Review Board. (a) The Assistant Secretary or any other party desiring to seek review, including judicial review, of a decision of the ALJ must file a written petition for review with the ARB, which has been delegated the authority to act for the Secretary and issue final decisions under this part. The parties should identify in their petitions for review the legal conclusions or orders to which they object, or the objections may be deemed waived. A petition must be filed within 14 days of the date of the decision of the ALJ. The date of the postmark, facsimile transmittal, or electronic communication transmittal will be considered to be the date of filing; if the petition is filed in person, by hand- delivery or other means, the petition is considered filed upon receipt. The petition must be served on all parties and on the Chief Administrative Law Judge at the time it is filed with the ARB. Copies of the petition for review and all briefs must be served on the Assistant Secretary and, in cases in which the Assistant Secretary is a party, on the Associate Solicitor, Division of Occupational Safety and Health, 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 ruled upon or 14 days after a new decision is issued. The ARB's final decision will be served upon all parties and the Chief Administrative Law Judge by mail. The final decision also will be served on the Assistant Secretary and on the Associate Solicitor, Division of Occupational Safety and Health, 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, with the same compensation, terms, conditions, and privileges of the complainant's employment; payment of compensatory damages (back pay with interest and compensation for any special damages sustained as a result of the retaliation, including any litigation costs, expert witness fees, and reasonable attorney fees the complainant may have incurred); and payment of punitive damages up to $250,000. 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. (e) If the ARB determines that the respondent has not violated the law, an order will be issued denying the complaint. Subpart C--Miscellaneous Provisions Sec. 1986.111 Withdrawal of SPA 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 the Assistant Secretary, orally or in writing, of his or her withdrawal. The Assistant Secretary then will confirm in writing the complainant's desire to withdraw and determine whether to approve the withdrawal. The Assistant Secretary 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 a preliminary order at any time before the expiration of the 30-day objection period described in Sec. 1986.106, 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 preliminary order become final, a party may withdraw objections to the Assistant Secretary's findings and/or preliminary order by filing a written withdrawal with the ALJ. If a case is on review with the ARB, a party may withdraw a [[Page 63414]] 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 SPA complaint and before the findings and/or order are objected to or become a final order by operation of law, the case may be settled if the Assistant Secretary, the complainant, and the respondent agree to a settlement. The Assistant Secretary's approval of a settlement reached by the respondent and the complainant demonstrates the Assistant Secretary'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 the case may be. (e) Any settlement approved by the Assistant Secretary, the ALJ, or the ARB will constitute the final order of the Secretary and may be enforced in a United States district court pursuant to 49 U.S.C. 31105(e), as incorporated by 46 U.S.C. 2114(b). Sec. 1986.112 Judicial review. (a) Within 60 days after the issuance of a final order under Sec. Sec. 1986.109 and 1986.110, any person adversely affected or aggrieved by the order may file a petition for review of the order in the court of appeals of the United States for the circuit in which the violation allegedly occurred or the circuit in which the complainant resided on the date of the violation. (b) A final order is not subject to judicial review in any criminal or other civil proceeding. (c) If a timely petition for review is filed, the record of a case, including the record of proceedings before the ALJ, will be transmitted by the ARB, or the ALJ, as the case may be, to the appropriate court pursuant to the Federal Rules of Appellate Procedure and the local rules of such court. Sec. 1986.113 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 SPA, 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. Sec. 1986.114 District court jurisdiction of retaliation complaints under SPA. (a) If there is no final order of the Secretary, 210 days have passed since the filing of the complaint, and there is no showing that there has been delay due to the bad faith of the complainant, the complainant may bring an action at law or equity for de novo review in the appropriate district court of the United States, which will have jurisdiction over such an action without regard to the amount in controversy. The action shall, at the request of either party to such action, be tried by the court with a jury. (b) Within seven days after filing a complaint in federal court, a complainant must file with the Assistant Secretary, the ALJ, or the ARB, depending on where the proceeding is pending, a copy of the file- stamped complaint. A copy of the complaint also must be served on the OSHA official who issued the findings and/or preliminary order, the Assistant Secretary, and the Associate Solicitor, Division of Occupational Safety and Health, U.S. Department of Labor. Sec. 1986.115 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 as justice or the administration of SPA requires. [FR Doc. 2016-21758 Filed 9-14-16; 8:45 am] BILLING CODE 4510-26-P
![63396 Federal Register / Vol. 81, No. 179 / Thursday, September 15, 2016 / Rules and Regulations
DEPARTMENT OF LABOR I. Background protection against the seaman’s
Congress enacted SPA as section 13 of employer under paragraph (1)(B), the
Occupational Safety and Health the Coast Guard Authorization Act of employee must have sought from the
Administration 1984, Public Law 98–557, 98 Stat. 2860 employer, and been unable to obtain,
(1984). SPA protected seamen from correction of the unsafe condition.’’ Id.
29 CFR Part 1986 retaliation for reporting a violation of The amended statute further explained
Subtitle II of Title 46 of the U.S. Code, that ‘‘[T]he circumstances causing a
[Docket Number: OSHA–2011–0841] seaman’s apprehension of serious injury
which governs vessels and seamen, or a
RIN 1218–AC58 regulation promulgated under that under paragraph (1)(B) must be of such
subtitle. S. Rep. No. 98–454, at 11 a nature that a reasonable person, under
Procedures for the Handling of (1984). Congress passed SPA in similar circumstances, would conclude
Retaliation Complaints Under the response to Donovan v. Texaco, 720 that there is a real danger of an injury
Employee Protection Provision of the F.2d 825 (5th Cir. 1983), in which the or serious impairment of health
Seaman’s Protection Act, as Amended Fifth Circuit held that the whistleblower resulting from the performance of duties
provision of the Occupational Safety as ordered by the seaman’s employer.’’
AGENCY: Occupational Safety and Health Public Law 107–295, sec. 428, 116 Stat.
Administration, Labor. and Health Act (OSH Act) did not cover
a seaman who had been demoted and at 2127.
ACTION: Final rule. Congress made additional changes to
discharged from his position because he
the Act, including those that led OSHA
SUMMARY: This document provides the reported a possible safety violation to
to initiate this rulemaking, on October
final text of regulations governing the the U.S. Coast Guard. S. Rep. No. 98– 15, 2010. Section 611 of the Coast Guard
employee protection (whistleblower) 454, at 12 (1984). This original version Authorization Act of 2010, Public Law
provisions of the Seaman’s Protection of SPA prohibited ‘‘[a]n owner, 111–281, 124 Stat. at 2905 (2010), made
Act (SPA or the Act), as amended by charterer, managing operator, agent, further additions to the list of protected
section 611 of the Coast Guard master, or individual in charge of a activities under SPA and fundamentally
Authorization Act of 2010. On February vessel’’ from retaliating against a changed the remedies section of the Act.
6, 2013, the Occupational Safety and seaman ‘‘because the seaman in good Section 611 added to subsection (a) the
Health Administration (OSHA or the faith has reported or is about to report following protected activities: The
Agency) published an interim final rule to the Coast Guard that the seaman seaman testified in a proceeding brought
(IFR) for SPA whistleblower complaints believes that’’ a violation of Subtitle II to enforce a maritime safety law or
in the Federal Register, requested had occurred. Public Law 98–557, sec. regulation; the seaman notified, or
public comment on the IFR, and the 13(a), 98 Stat. at 2863. It permitted attempted to notify, the vessel owner or
Agency has considered the comments. seamen to bring actions in U.S. district the Secretary [of the department in
This final rule finalizes the procedures courts seeking relief for alleged which the Coast Guard is operating 1] of
and time frames for the handling of retaliation in violation of the Act. Id. a work-related personal injury or work-
retaliation complaints under SPA, sec. 13(a), 98 Stat. at 2863–64. related illness of a seaman; the seaman
including procedures and time frames In 2002, Congress amended SPA. cooperated with a safety investigation
for employee complaints to OSHA, Section 428 of the Maritime by the Secretary [of the department in
investigations by OSHA, appeals of Transportation Security Act of 2002, which the Coast Guard is operating] or
OSHA determinations to an Public Law 107–295, 116 Stat. at 2064 the National Transportation Safety
administrative law judge (ALJ) for a (2002), altered both the protections Board; the seaman furnished
hearing de novo, hearings by ALJs, afforded and remedies permitted by the information to the Secretary [of the
review of ALJ decisions by the Act. First, Congress removed the department in which the Coast Guard is
Administrative Review Board (ARB) on specific list of actors who were operating], the National Transportation
behalf of the Secretary of Labor prohibited from retaliating against Safety Board, or any other public official
(Secretary), and judicial review of the seamen and replaced that text with ‘‘[a] as to the facts relating to any marine
Secretary’s final decision. In addition, person.’’ Public Law 107–295, sec. casualty resulting in injury or death to
this final rule provides the Secretary’s 428(a), 116 Stat. at 2127. Second, an individual or damage to property
interpretation of the term ‘‘seaman’’ and Congress expanded the existing occurring in connection with vessel
addresses other interpretive issues description of protected activity to transportation; and the seaman
raised by SPA. include reports to ‘‘the Coast Guard or accurately reported hours of duty under
other appropriate Federal agency or this part.
DATES: This final rule is effective on
department,’’ rather than only to the Congress replaced section (b) of SPA,
September 15, 2016. Coast Guard, and violations ‘‘of a which had provided a private right of
FOR FURTHER INFORMATION CONTACT: Rob maritime safety law or regulation action to seamen and described relief a
Swick, Directorate of Whistleblower prescribed under that law or court could award, in its entirety. The
Protection Programs, Occupational regulation,’’ rather than only of Subtitle new text provides that a seaman alleging
Safety and Health Administration, U.S. II and its accompanying regulations. Id. discharge or discrimination in violation
Department of Labor, Room N–4624, Third, Congress added a second type of of subsection (a) of this section, or
200 Constitution Avenue NW., protected activity; a seaman who another person at the seaman’s request,
Washington, DC 20210; telephone (202) ‘‘refused to perform duties ordered by may file a complaint with respect to
693–2199; email OSHA.DWPP@dol.gov. the seaman’s employer because the such allegation in the same manner as
This is not a toll-free number. This seaman has a reasonable apprehension
rmajette on DSK2TPTVN1PROD with RULES
a complaint may be filed under
Federal Register publication is available or expectation that performing such
in alternative formats: Large print, duties would result in serious injury to 1 The text of 46 U.S.C. 2114 refers to ‘‘the
electronic file on computer disk (Word the seaman, other seamen, or the Secretary,’’ defined for purposes of Part A of
Perfect, ASCII, Mates with Duxbury Subtitle II as ‘‘the Secretary of the department in
public’’ was granted protection from which the Coast Guard is operating.’’ 46 U.S.C.
Braille System) and audiotape. retaliation for such a refusal. Id. The 2101(34). The Coast Guard is currently part of the
SUPPLEMENTARY INFORMATION: new text clarified that, ‘‘[t]o qualify for Department of Homeland Security.
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subsection (b) of section 31105 of title cases incorrectly,2 to certain sections a contributing factor in the adverse
49. Such complaint is subject to the while not mentioning others.3 The text action described in the complaint. 49
procedures, requirements, and rights refers to those sections following the U.S.C. 42121(b)(2)(B)(iii). Relief is
described in that section, including with word ‘‘including,’’ however, with no unavailable if the employer
respect to the right to file an objection, suggestion that the subsequent list is demonstrates by clear and convincing
the right of a person to file for a petition meant to be exclusive. Accordingly, evidence that it would have taken the
for review under subsection (c) of that OSHA will not treat it as such, and, as same adverse action in the absence of
section, and the requirement to bring a explained below, promulgates the protected activity. 49 U.S.C.
civil action under subsection (d) of that regulations to implement the procedures 42121(b)(2)(B)(iv); Vieques Air Link, Inc.
section. described in 49 U.S.C. 31105(b)–(g). v. Dep’t of Labor, 437 F.3d 102, 108–09
OSHA does not read SPA as (1st Cir. 2006) (per curiam) (burdens of
Id. Section 31105 of title 49 is the
incorporating 49 U.S.C. 31105 (a), (h), (i) proof under AIR21); Formella v. U.S.
whistleblower protection provision of
and (j) because those provisions are Dep’t of Labor, 628 F.3d 381, 389 (7th
the Surface Transportation Assistance
substantive and specific to STAA or Cir. 2010) (explaining that because it
Act (STAA), 49 U.S.C. 31105. STAA
agencies other than the Department of incorporates the burdens of proof set
provides that initial complaints
Labor rather than describing forth in AIR21, STAA requires only a
regarding retaliation under that statute
‘‘procedures, requirements, and rights.’’ showing that the protected activity was
are to be filed with and handled by the
The statutory procedures applicable to a contributing factor, not a but-for cause,
Secretary of Labor (Secretary), sec.
SPA claims are summarized below. of the adverse action.).
31105(b)–(e), and the Secretary has
delegated his authority in this regard to Filing of SPA Complaints Written Notice of Complaint and
OSHA. Secretary’s Order 1–2012 (Jan. Findings
A seaman, or another person at the
18, 2012), 77 FR 3912 (Jan. 25, 2012). seaman’s request, alleging a violation of Under 49 U.S.C. 31105(b), upon
The Secretary has also delegated to SPA, may file a complaint with the receipt of the complaint, the Secretary
OSHA his authority under SPA. Id. at Secretary not later than 180 days after must provide written notice of the filing
3913. Hearings on objections to findings the alleged retaliation. of the complaint to the person or
by the Assistant Secretary for OSHA persons alleged in the complaint to have
(Assistant Secretary) are conducted by Legal Burdens of Proof for SPA violated the Act (respondent). 49 U.S.C.
the Office of Administrative Law Judges, Complaints 31105(b).
and appeals from decisions by ALJs are STAA states that STAA whistleblower Within 60 days of receipt of the
decided by the Department of Labor’s complaints will be governed by the legal complaint, the Secretary must conduct
Administrative Review Board (ARB). burdens of proof set forth in AIR21, 49 an investigation of the allegations,
Secretary’s Order 1–2010, 75 FR 3924– U.S.C. 42121(b), which contains decide whether it is reasonable to
01 (Jan. 25, 2010). whistleblower protections for believe the complaint has merit, and
OSHA is promulgating this final rule employees in the aviation industry. 49 provide written notification to the
to finalize procedures for the handling U.S.C. 31105(b)(1). Accordingly, these complainant and the respondent of the
of whistleblower protection complaints burdens of proof also govern SPA investigative findings.
under SPA and address certain whistleblower complaints. Remedies
interpretative issues raised by the Under AIR21, a violation may be
statute. To the extent possible within found only if the complainant If the Secretary decides it is
the bounds of applicable statutory demonstrates that protected activity was reasonable to believe a violation
language, these regulations are designed occurred, the Secretary shall include
to be consistent with the procedures 2 Specifically, the Act’s adoption of STAA’s with the findings a preliminary order for
applied to claims under STAA, and the ‘‘procedures, requirements, and rights’’ is followed the relief provided for under 49 U.S.C.
by the text ‘‘including with respect to the right to 31105(b)(3). This order shall require the
other whistleblower protection statutes file an objection, the right of a person to file for a
administered by OSHA, including the petition for review under subsection (c) of [STAA], respondent to take affirmative action to
Energy Reorganization Act (ERA), 42 and the requirement to bring a civil action under abate the violation; reinstate the
U.S.C. 5851; the Wendell H. Ford subsection (d) of that section.’’ 46 U.S.C. 2114(b). complainant to the former position with
But section (c) addresses de novo review in the the same pay and terms and privileges
Aviation Investment and Reform Act for district court if the Secretary has not issued a final
the 21st Century (AIR21), 49 U.S.C. decision after 210 days; section (d) addresses filing of employment; and pay compensatory
42121; Title VIII of the Sarbanes-Oxley a petition for review after receiving an adverse damages, including back pay with
Act of 2002 (SOX), 18 U.S.C. 1514A; order following a hearing; and section (e) provides interest and compensation for any
that ‘‘[i]f a person fails to comply with an order special damages sustained as a result of
and the Consumer Product Safety issued under subsection (b) of this section, the
Improvement Act, 15 U.S.C. 2087. Secretary of Labor shall bring a civil action to the discrimination, including litigation
enforce the order in the district court of the United costs, expert witness fees, and
II. Summary of Statutory Procedures States for the judicial district in which the violation reasonable attorney fees. Additionally, if
occurred.’’ 49 U.S.C. 31105(c)–(e). the Secretary issues a preliminary order
As explained above, SPA adopts the 3 Section (f) declares that STAA does not preempt
and the complainant so requests, the
process for filing a complaint any other federal or state law safeguarding against
retaliation; section (g) declares that STAA does not Secretary may assess against the
established under subsection (b) of diminish any legal rights of any employee, nor may respondent the costs, including attorney
STAA. 46 U.S.C. 2114(b). It further the rights of the section be waived; section (h) fees, reasonably incurred by the
incorporates the other ‘‘procedures, prohibits the disclosure by the Secretary of
complainant in bringing the complaint.
requirements, and rights described in’’ Transportation or the Secretary of Homeland
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Security of the identity of an employee who Punitive damages of up to $250,000.00
STAA, id., described below. OSHA provides information about an alleged violation of are also available.
therefore understands SPA to the statute except, under certain circumstances, to
incorporate STAA subsections (b) the Attorney General; section (i) creates a process Hearings
through (g). SPA’s text could cause for reporting security problems to the Department
of Homeland Security; and section (j) defines the
STAA also provides for hearings. 49
confusion regarding which sections of term ‘‘employee’’ for purposes of STAA. 49 U.S.C. U.S.C. 31105(b), Specifically, the
STAA it adopts by referring, in some 31105(f)–(j). complainant and the respondent have
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![63398 Federal Register / Vol. 81, No. 179 / Thursday, September 15, 2016 / Rules and Regulations
30 days after the date of the Secretary’s under any Federal or State law or under the award of attorney’s fees and costs
notification in which to file objections any collective bargaining agreement. 49 against unsuccessful claimants. Docket
to the findings and/or preliminary order U.S.C. 31105(g). It further states that ID OSHA–2011–0841–0004. The
and request a hearing. The filing of rights and remedies under 49 U.S.C. Secretary also disagrees with these
objections does not stay a reinstatement 31105 ‘‘may not be waived by any suggestions, which will be discussed
ordered in the preliminary order. If a agreement, policy, form, or condition of further below. Thus, with the exception
hearing is not requested within 30 days, employment.’’ of coverage provisions, discussed below,
the preliminary order becomes final and the Secretary is carrying over all of the
III. Prior Rulemaking
is not subject to judicial review. provisions of the IFR into this final rule
If a hearing is held, it is to be On February 6, 2013, the OSHA with only minor technical revisions.
conducted expeditiously. The Secretary published an IFR for SPA whistleblower
complaints in the Federal Register IV. Summary and Discussion of
shall issue a final order within 120 days Regulatory Provisions
after the conclusion of any hearing. The establishing the procedures and time
final order may provide appropriate frames for the handling of retaliation Subpart A—Complaints, Investigations,
relief or deny the complaint. Until the complaints under SPA, including Findings, and Preliminary Orders
Secretary’s final order is issued, the procedures and time frames for
employee complaints to OSHA, Section 1986.100 Purpose and Scope
Secretary, the complainant, and the
respondent may enter into a settlement investigations by OSHA, objections to This section describes the purpose of
agreement that terminates the OSHA findings and preliminary orders, the regulations implementing the SPA
proceeding. hearings by ALJs, review of ALJ whistleblower protection provision and
decisions by the ARB on behalf of the provides an overview of the procedures
De Novo Review Secretary, and judicial review of the contained in the regulations.
STAA provides for de novo review of Secretary’s final decision. In addition to
Section 1986.101 Definitions
a whistleblower claim by a United promulgating the IFR, OSHA’s notice
States district court in the event that the included a request for public comment This section includes general
Secretary has not issued a final decision on the interim rules by April 8, 2013. In definitions applicable to the SPA
within 210 days after the filing of a response to the IFR, two organizations— whistleblower provision. Most of the
complaint and the delay is not due to the Chamber of Shipping of America definitions are of terms common to
the complainant’s bad faith. 49 U.S.C. and the Transportation Trades whistleblower statutes and are defined
31105(c). The provision states that the Department, AFL–CIO, filed comments here as they are elsewhere. Some terms
court will have jurisdiction over the with the agency within the public call for additional explanation.
comment period. In addition, two SPA prohibits retaliation by a
action without regard to the amount in
individuals—J.I.M. Choate of Stamford, ‘‘person.’’ Title 1 of the U.S. Code
controversy and that the case will be
Connecticut, and Lee Luttrell of Las provides the definition of this term
tried before a jury at the request of
Vegas, Nevada, also filed comments because there is no indication in the
either party.
with the agency within the public statute that any other meaning applies.
Judicial Review comment period. In general, Accordingly, ‘‘person . . . include[s]
STAA provides that within 60 days of commenters supported the IFR’s corporations, companies, associations,
the issuance of the Secretary’s final provisions. For example, the firms, partnerships, societies, and joint
order following a hearing, any person Transportation Trades Department stock companies, as well as
adversely affected or aggrieved by the stated that the IFR provided ‘‘clarity to individuals.’’ 1 U.S.C. 1. This list, as
Secretary’s final order may file an workers on the actions they can take to indicated by the word ‘‘include,’’ is not
appeal with the United States Court of remedy dangerous situations, while exhaustive. See Fed. Land Bank v.
Appeals for the circuit in which the empowering them with a well-defined Bismarck Lumber Co., 314 U.S. 95, 100
violation occurred or the circuit where route to pursue when they’ve been (1941) (‘‘[T]he term ‘including’ is not
the complainant resided on the date of wronged.’’ It also expressed support for one of all embracing definition, but
the violation. 49 U.S.C. 31105(d). the protection of internal complaints. connotes simply an illustrative
Docket ID OSHA–2011–0841–0005. application of the general principle.’’
Civil Actions To Enforce Only three revisions to the rule were (citation omitted)). Paragraph (j)
STAA provides that if a person fails suggested by commenters. First, Mr. accordingly defines ‘‘person’’ as ‘‘one or
to comply with an order issued by the Choate recommended that references in more individuals or other entities,
Secretary under 49 U.S.C. 31105(b) the the rule to ‘‘ALJs’’ be changed to including but not limited to
Secretary of Labor ‘‘shall bring a civil ‘‘judges’’ because he thought that ‘‘ALJ’’ corporations, companies, associations,
action to enforce the order in the district was ‘‘too informal.’’ Docket ID OSHA– firms, partnerships, societies, and joint
court of the United States for the 2011–0841–0002. However, OSHA’s use stock companies.’’
judicial district in which the violation of the term ‘‘ALJ’’ appears in many of SPA protects seamen from retaliation
occurred.’’ 49 U.S.C. 31105(e). its other whistleblower protection for making certain reports and
regulations and is useful in notifications. 46 U.S.C. 2114(a)(1)(A),
Preemption distinguishing between administrative (D), (G). Paragraphs (h) and (k) define
STAA clarifies that nothing in the law judges and Article III judges. The ‘‘report’’ and ‘‘notify’’ both to include
statute preempts or diminishes any Secretary therefore declines to follow ‘‘any oral or written communications of
other safeguards against discrimination this suggestion. Second, the Chamber a violation.’’ This interpretation of the
asked the Secretary to adopt a limited statute is consistent with a plain reading
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provided by Federal or State law. 49
U.S.C. 31105(f). exemption from the work refusal of the statutory text and best fulfills the
provision in section 1986.102(c)(2) for purposes of SPA. See Gaffney v.
Employee Rights emergency situations. Third, the Riverboat Servs. of Ind., 451 F.3d 424,
STAA states that nothing in STAA Chamber asks that the remedies 445–46 (7th Cir. 2006) (explaining that
shall be deemed to diminish the rights, provisions of sections 1986.109 and to interpret SPA’s reference to a
privileges, or remedies of any employee 1986.110 include provisions allowing ‘‘report’’ as requiring a formal complaint
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![Federal Register / Vol. 81, No. 179 / Thursday, September 15, 2016 / Rules and Regulations 63399
‘‘would narrow the statute in a manner to fall within the meaning of this ‘‘seaman’’ suggested by the legislative
that Congress clearly avoided, and, in provision of SPA. history of SPA discussed above.
the process, would frustrate the clear Section 2214(a)(1)(D) of SPA protects First, OSHA rejected adopting a
purpose of the provision’’). It is also a seaman’s notification of the ‘‘vessel definition of ‘‘seaman’’ for SPA that
consistent with the legislative history of owner’’ of injuries and illnesses. This mirrors the one established by case law
the statute, which indicates that would include all notifications to agents under the Jones Act. The Jones Act
Congress meant SPA to respond to of the owner, such as the vessel’s provides that a ‘‘seaman’’ injured in the
Donovan v. Texaco, 720 F.2d 825 (5th master. 2 Robert Force & Martin J. course of employment may bring a civil
Cir. 1983), a case in which a seaman had Norris, The Law of Seamen § 25–1 (5th action against his or her employer, 46
told the Coast Guard about an unsafe ed. 2003). Other parties that may fall U.S.C. 30104, but, like SPA, the Jones
condition by telephone. S. Rep. No. 98– within the meaning of ‘‘vessel owner’’ Act does not define the term ‘‘seaman.’’
454, at 11; Donovan, 720 F.2d at 825; include an owner pro hac vice, operator, Looking to general maritime law, the
see also Gaffney, 451 F.3d at 446 or charter or bare boat charterer. 33 Supreme Court has defined the term as
(reasoning that SPA’s legislative history, U.S.C. 902(21) (defining, for purposes of including those who have an
‘‘coupled with Congress’ decision not to the Longshore and Harbor Workers’ employment-related connection to a
define ‘report’ in the statute or in the Compensation Act (LHWCA), the vessel in navigation that contributes to
course of discussing Donovan in the entities liable for negligence of a vessel); the function of the vessel or to the
relevant legislative history,’’ indicates Helaire v. Mobil Oil Co., 709 F.2d 1031, accomplishment of its mission, even if
that SPA ‘‘does not require a formal 1041 (5th Cir. 1983) (referring to this list the employment does not aid in
complaint, or even a written statement, of entities as ‘‘the broad definition of navigation or contribute to the
as a prerequisite to statutory ‘vessel owner’ under 33 U.S.C. transportation of the vessel, McDermott
whistleblower protection’’); cf. Kasten v. 902(21)’’). Paragraph (q) defines ‘‘vessel International, Inc. v. Wilander, 498 U.S.
Saint-Gobain Performance Plastics 337, 355 (1991). Importantly, the
owner’’ as including ‘‘all of the agents
Corp., 563 U.S. 1 (2011) (holding that Supreme Court views the term
of the owner, including the vessel’s
the provision of the Fair Labor ‘‘seaman’’ as excluding land-based
master.’’
Standards Act that prohibits employers workers; that is, a seaman ‘‘must have
SPA protects ‘‘a seaman’’ from a connection to a vessel in navigation
from retaliating against an employee retaliation, but it does not include a
because such employee has ‘‘filed any (or to an identifiable group of such
definition of ‘‘seaman.’’ Thus, OSHA is vessels) that is substantial in terms of
complaint’’ protects oral complaints). relying on the Senate Report that both its duration and nature.’’ Chandris
In addition, SPA protects seaman accompanied the original, 1984 version v. Latsis, 515 U.S. 347, 368 (1995).
complaints and testimony related to of SPA. Committee Reports on a bill are OSHA is concerned that the Jones Act
‘‘maritime safety law[s] or useful sources for finding the definition of ‘‘seaman’’ is more
regulation[s].’’ Paragraph (g) defines this legislature’s intent because they restrictive than the definition of the
term as including ‘‘any statute or represent the considered and collective term reflected in the legislative history
regulation regarding health or safety that understanding of those Members of of the SPA. Were OSHA to adopt the
applies to any person or equipment on Congress involved in drafting and Jones Act definition here, certain
a vessel.’’ This definition clarifies the studying proposed legislation. Garcia v. workers who are employed on vessels in
meaning of this term in two respects. United States, 469 U.S. 70, 76 (1984). significant ways, but who are not
First, though the statutory text refers to The Senate Report indicates that SPA ‘‘seamen’’ for purposes of the Jones Act,
‘‘safety’’ the Secretary finds that was originally intended to provide a would not be protected. For example,
Congress did not intend to exclude remedy for workers whose certain riverboat pilots spend
regulations that address health hazards; whistleblower rights under section 11(c) substantial time aboard a vessel in
rather, it is apparent that no such of the OSH Act might be not be furtherance of its purpose, but do not
distinction was intended. Compare 46 available in a circuit that follows have a connection to a particular vessel
U.S.C. 2114(a)(1)(B) (protecting refusal Donovan v. Texaco, 720 F.2d 825 (5th or group of vessels, so they have been
to perform a duty that would result in Cir. 1983).4 See S. Rep. No. 98–454, at found not to be covered under the Jones
a serious injury) with (a)(2) (clarifying 11–12 (1984). The Senate Report also Act. Bach v. Trident Steamship Co.,
that circumstances that would justify a provides specific insight as to the Inc., 920 F.2d 322, aff’d after remand,
refusal to work under (a)(1)(B) are those definition of ‘‘seaman,’’ stating that ‘‘the 947 F.2d 1290 (5th Cir. 1991); Blancq v.
that present a ‘‘real danger of injury or Committee intends the term ‘seaman’ to Hapag-Lloyd A.G., 986 F. Supp. 376,
serious impairment of health’’); see also be interpreted broadly, to include any 379 (E.D. La. 1997). Moreover, there is
id. (a)(1)(D) (protecting reports of individual engaged or employed in any at least a possibility that under the
injuries and illnesses). The definition capacity on board a vessel owned by a Texaco analysis, a court would find that
makes clear that laws or regulations citizen of the United States.’’ Id. at 11. such pilots also lack section 11(c) rights
addressing either maritime safety or OSHA considered three basic when reporting safety violations aboard
health are included. approaches for defining the term vessels on which they are working.
Second, because working conditions ‘‘seaman’’: (a) Mirroring the one Second, OSHA rejected the approach
on vessels can be subject to regulation established by the Jones Act, 46 U.S.C. of defining ‘‘seaman’’ as applying only
by many agencies, the Secretary 30104, which reflects general maritime to workers who arguably are not covered
interprets ‘‘maritime safety law or law; (b) as a ‘‘gap filler’’ available only by section 11(c). The legislative history
regulation’’ to include all regulations in situations where workers arguably shows that Congress originally passed
regarding health or safety that apply to the SPA in response to Texaco: ‘‘This
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lack protection under section 11(c) of
any person or equipment on a vessel the OSH Act because of Texaco; or (c) section responds to Donovan v. Texaco,
under the circumstances at issue. The using the broader definition of (720 F.2d 825 5th Cir. 1983)) in which
statute or regulation need not a seaman was demoted and ultimately
exclusively or explicitly serve the 4 Nothing in this preamble should be read to discharged from his job for reporting a
purpose of protecting the safety of suggest that OSHA agrees with the holding or possible safety violation to the Coast
seamen, or promoting safety on vessels, rationale of Texaco. Guard . . . [This section] establishes a
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As discussed above, the test for conduct that is prohibited in response to while SPA, unlike other whistleblower
determining if a U.S. citizen ‘‘owns a any protected activities. These protected statutes, does not contain a provision
controlling interest’’ in the corporation activities are set out in the statute, as directly protecting all internal
has been simplified to include described above. Consistent with complaints by seamen to their superiors,
situations in which a majority of the OSHA’s interpretation of other anti- many such complaints are covered
corporation’s stockholders are U.S. retaliation provisions, the prohibited under the seven specific categories
citizens. This interpretation is based on conduct includes any form of listed in the Act. Protection of internal
decisions analyzing the Lauritzen retaliation, including, but not limited to, complaints is important because it
factors, which have relied on U.S, discharging, demoting, suspending, ‘‘leverage[s] the government’s limited
citizen stockholder ownership of a harassing, intimidating, threatening, enforcement resources’’ by encouraging
foreign corporation to apply U.S. law in restraining, coercing, blacklisting, or employees to report substandard
maritime cases where the vessel was disciplining a seaman. Section 1986.102 working conditions to their employers.
owned by a foreign corporation. Sosa v. tracks the language of the statute in Clean Harbors, 146 F.3d at 19–20. Such
M/V Lago Izabal, 736 F.2d 1028, 1032 defining the categories of protected protections promote the resolution of
(5th Cir. 1984); Antypas v. Cia. activity. violations without drawn-out litigation,
Maritima San Basilio, S. A., 541 F.2d As with other whistleblower statutes, and the ‘‘failure to protect internal
307, 310 (2nd Cir. 1976); Moncada v. SPA’s provisions describing protected complaints may have the perverse result
Lemuria Shipping Corp., 491 F.2d 470, activity are to be read broadly. See, e.g., of encouraging employers to fire
473 (2nd Cir. 1974); Rainbow Line, Inc. Clean Harbors Envtl. Servs., Inc. v. employees who believe they have been
v. M/V Tequila, 480 F.2d 1024, 1026– Herman, 146 F.3d 12, 20–21 (1st Cir. treated illegally before they file a formal
1027 (2nd Cir. 1973); Bartholomew v. 1998) (expansively construing language complaint.’’ Minor v. Bostwick
Universe Tankships, 263 F.2d 437, 442 in STAA to facilitate achieving the Laboratories, Inc., 669 F.3d 428, 437
(2nd Cir. 1959). policy goals of encouraging corporate (4th Cir. 2012). The Transportation
The term ‘‘Citizen of the United compliance with safety laws and Trades Department, AFL–CIO,
States’’ is also defined to include employee reports of violations of those supported this approach in its comment,
governmental entities ‘‘of the Federal laws); Bechtel Constr. Co. v. Sec’y of noting that ‘‘internal communication
Government of the United States, of a Labor, 50 F.3d 926, 932–33 (11th Cir. aids in keeping vessels safe.’’ Docket ID
State, or of a political subdivision of 1995) (‘‘[I]t is appropriate to give a OSHA–2011–0841–0005. In addition, in
State.’’ This interpretation is based on broad construction to remedial statutes the maritime context, a seaman on a
one of the Coast Guard’s definitions of such as nondiscrimination provisions in vessel at sea may not be able to contact
citizenship for the purposes of federal labor laws.’’); Passaic Valley the authorities to correct a dangerous
determining eligibility for vessel Sewerage Comm’rs v. U.S. Dep’t of condition, and his or her only recourse
documentation. See 46 CFR 67.41 Labor, 992 F.2d 474, 478 (3d Cir. 1993) will be to seek correction from the
(providing that a governmental entity is (discussing the ‘‘broad remedial ship’s officers. Because internal
citizen for purposes of vessel purpose’’ of the whistleblower provision complaints are an important part of
documentation); 46 CFR 67.3 (defining in the Clean Water Act in expansively keeping a workplace safe, OSHA will
the term ‘‘State’’ to include a political interpreting a term in that statute). give a broad construction to the Act’s
subdivision thereof); cf. 46 U.S.C. 31102 Indeed, SPA’s prohibition of language to ensure that internal
(providing that a civil action in discharging or ‘‘in any manner’’ complaints are protected as fully as
personam in admiralty may be brought discriminating against seamen indicates
possible.
against the United States for damages Congress’s intent that the provision
caused by a public vessel of the United have broad application. See NLRB v. The statute first prohibits retaliation
States). Scrivener, 405 U.S. 117, 122 (1972) because ‘‘the seaman in good faith has
Paragraph (p) defines ‘‘vessel,’’ a term (determining that language in the reported or is about to report to the
used in the definition of ‘‘seaman’’ and National Labor Relations Act should be Coast Guard or other appropriate
in SPA itself. This definition is taken read broadly because ‘‘the presence of Federal agency or department that the
from Title 46 of the U.S. Code and the preceding words ‘to discharge or seaman believes that a violation of a
‘‘includes every description of otherwise discriminate’ reveals, we maritime safety law or regulation
watercraft or other artificial contrivance think, particularly by the word prescribed under that law or regulation
used, or capable of being used, as a ‘otherwise,’ an intent on the part of has occurred.’’ 46 U.S.C. 2114(a)(1)(A).
means of transportation on water.’’ 46 Congress to afford broad rather than One way an employer will know that a
U.S.C. 115; see also 1 U.S.C. 3; Stewart narrow protection to the employee’’); seaman ‘‘is about to report’’ the
v. Dutra Constr. Co., 543 U.S. 481, 496– Phillips v. Interior Board of Mine violation is when the seaman has made
97 (2005) (analyzing the meaning of the Operations Appeals, 500 F.2d 772, 782– an internal complaint and there are
term ‘‘vessel,’’ as defined by 1 U.S.C. 3, 83 (D.C. Cir. 1974) (relying on Scrivener circumstances from which a reasonable
and concluding that ‘‘a ‘vessel’ is a in reasoning that the words ‘‘in any person would understand that the
watercraft practically capable of other way discriminate’’ in the Mine seaman will likely report the violation
maritime transportation, regardless of its Safety Act support a broad reading of to an agency if the violation is not
primary purpose or state of transit at a that Act’s protections for miners). cured. These circumstances might arise
particular moment,’’ and thus excludes Likewise, the statement in the Senate from the internal report itself (e.g., ‘‘I
ships ‘‘taken out of service, permanently Report regarding SPA that the term will contact the authorities if it is not
anchored, or otherwise rendered ‘‘seaman’’ is to be ‘‘interpreted broadly’’ fixed’’), the seaman’s history of
reporting similar violations to
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practically incapable of maritime further supports the premise that
transport’’). Congress did not intend that SPA be authorities, or other similar
construed narrowly. S. Rep. No. 98–454, considerations. Further, given that a
Section 1986.102 Obligations and at 11 (1984). seaman may be at sea for extended
Prohibited Acts OSHA therefore will interpret each of periods without access to ways of
This section describes the activities the seven types of protected activity reporting a violation, a significant time
that are protected under SPA and the listed in the Act broadly. Moreover, may elapse between the time the
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employer learns of the seaman’s intent supportive of the right to refuse unsafe Moreover, the language proposed by the
to report and the time the report can work recognized by section Chamber could shift the balance struck
actually be made. OSHA will read the 1986.102(c)(2). Every employee, the by Congress between the employer and
phrase ‘‘about to report’’ broadly to Chamber agreed, ‘‘has not only a right seaman by giving the employer the
protect the seaman in such a but a responsibility to report unsafe ability to chill refusals to work by
circumstance. Furthermore, since one of working conditions to their supervisor interpreting ‘‘emergency situations’’
the main purposes of SPA is to promote in order that these concerns can be broadly. Such a result would be counter
the provision of accurate information to addressed before work begins.’’ It said to the broad remedial purpose of the
government agencies about unsafe that its members have enacted policies statute. Moreover, the record contains
conditions on vessels, OSHA will also which recognize that ‘‘every mariner on insufficient information from which to
read this phrase to protect a seaman’s board a ship ‘‘is a part of the workplace shape the contours of an appropriate
refusing to lie to an agency about unsafe safety team,’’ and Chamber members rule, and the Secretary is unaware of
vessel conditions or protesting being ‘‘agree that the best protection against any such cases that have arisen under
forced to tell such lies. Cf. Donovan on future claims of retaliation is the the statute.
Behalf of Anderson v. Stafford Const. creation of a reporting process for Nonetheless, there may be some
Co., 732 F.2d 954, 959–60 (D.C. Cir. employees to use when the have safety situations in which it would be
1984) (employee’s telling company concerns which necessarily must inappropriate to award relief to a
officials that she would not lie to Mine include actions taken by senior officers seaman who had refused to engage in
Safety and Health Administration on board as well as shore management lifesaving activities in an emergency
investigators is activity protected by in response to those concerns.’’ Docket situation. It would be problematic to
anti-retaliation provision of Federal ID OSHA–2011–0841–0004. interpret the statutory work refusal
Mine Safety and Health Act). However, while supporting a provision in sec. 2114(a)(1)(B)—which
The Act also protects the seaman seaman’s the right to refuse unsafe work is aimed at the safety of seaman—in a
against discrimination when ‘‘the (once correction has been sought) in the way that might actually directly
seaman has refused to perform duties context of normal operating conditions endanger them. However, the Secretary
ordered by the seaman’s employer of the vessel, the Chamber argued that believes that these situations will be
because the seaman has a reasonable there should be no such protection in rare and are better decided on a case-by-
apprehension or expectation that emergency conditions. For example, the case basis in the context of adjudication
performing such duties would result in Chamber noted, heavy weather, a sea rather than through a categorical rule.
serious injury to the seaman, other rescue, or a shipboard emergency, such Factors to be considered in such
seamen, or the public.’’ 46 U.S.C. as fire, may jeopardize the ship and all situations could include, but are not
2114(a)(1)(B). To qualify for this who are aboard her, and in these necessarily limited to, the nature of the
protection, the seaman ‘‘must have situations actions may be necessary that emergency, the work ordered to be
sought from the employer, and been would ‘‘give any reasonable individual performed, the seaman’s training and
unable to obtain, correction of the a reasonable apprehension of injury duties, and the opportunities that
unsafe condition.’’ 46 U.S.C. 2114(a)(3). even in light of the advanced training existed to do the work in a safer way.
Although not stated explicitly, in the skills possessed by mariners.’’ In these SPA provides protection to certain
Secretary’s view, the reasonable situations ‘‘it is absolutely critical that other types of internal communications.
implication of the statutory language is senior officers managing the emergency It covers the situation where ‘‘the
that the seaman’s preliminary act of be able to issue orders to mariners and seaman notified, or attempted to notify,
seeking correction of the condition is expect them to be followed in order to the vessel owner or the Secretary [of the
itself protected activity. That is, a execute the necessary and timely department in which in Coast Guard is
seaman who asks his or her employer to response.’’ Thus, the Chamber suggested operating] of a work-related personal
correct a condition he or she reasonably amending section 1986.102(c)(2) as injury or work-related illness of a
believes would result in serious injury follows (additions italicized): seaman.’’ 46 U.S.C. 2114(a)(1)(D). As
and suffers retaliation because of that noted above, this covers oral, written
request before the occasion to refuse to Refused to perform duties associated with and electronic communications to any
the normal operation of the vessel, ordered
perform the unsafe work arises is agent of the vessel’s owner. SPA also
by the seaman’s employer because the
protected by the Act. Although the seaman has a reasonable apprehension or disallows retaliation because ‘‘the
literal terms of the Act could be read to expectation that performing such duties seaman accurately reported hours of
leave the request for correction required would result in serious injury to the seaman, duty under this part.’’ 46 U.S.C.
yet unprotected, courts reject ‘‘absurd other seamen, or the public. Prohibited acts 2114(a)(1)(G). In keeping with the
result[s].’’ Stone v. Instrumentation do not include duties ordered by the discussion above, this language too
Laboratory Co., 591 F.3d 239, 243 (4th seaman’s employer deemed necessary to should be interpreted in favor of broad
Cir. 2009) (‘‘Courts will not . . . adopt protect the lives of the crew in emergency protection for seamen should a question
situations.
a ‘literal’ construction of a statute if of its meaning arise.
such interpretation would thwart the Docket ID OSHA–2011–0841–0004. Finally, consistent with the broad
statute’s obvious purpose or lead to an OSHA recognizes that a ship-owner interpretation of the statute as discussed
‘absurd result.’ ’’ [quoting Chesapeake and its agents must be able to respond above, OSHA believes that most reports
Ranch Water Co. v. Board of Comm’rs effectively to an emergency that required by the U.S. Coast Guard under
of Calvert County, 401 F.3d 274, 280 threatens the ship and those aboard her. 46 CFR parts 4.04 and 4.05 are protected
(4th Cir. 2005)]). The Agency’s However, OSHA has decided against by SPA.
amending the regulation as suggested by
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interpretation is embodied in the last
sentence of section 1986.102(c): ‘‘Any the Chamber. The work refusal Section 1986.103 Filing of Retaliation
seaman who requests such a correction provision in the regulation is taken Complaints
shall be protected against retaliation directly from the statute (sec. This section describes the process for
because of the request.’’ 2114(a)(1)(B)), and there is nothing in filing a complaint alleging retaliation in
The Chamber of Shipping of America the statutory language that explicitly violation of SPA. The procedures
submitted a comment generally limits the refusal right in emergencies. described are consistent with those
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![63404 Federal Register / Vol. 81, No. 179 / Thursday, September 15, 2016 / Rules and Regulations
governing complaints under STAA as allege facts constituting a violation of defenses raised by respondents.
well as other whistleblower statutes SPA will also be deemed to have been Paragraph (d) of this section discusses
OSHA administers. filed under both laws. In these cases, the confidentiality of information
Under paragraph (a), complaints may normal procedures and timeliness provided during investigations.
be filed by a seaman or, with the requirements under the respective Paragraph (e) sets forth the applicable
seaman’s consent, by any person on the statutes and regulations will apply. burdens of proof. As discussed above,
seaman’s behalf. Paragraph (b) provides OSHA notes that a complaint of SPA adopts the relevant provisions of
that complaints filed under SPA need retaliation filed with OSHA under SPA STAA, which in turn adopts the
not be in any particular form; they may is not a formal document and need not burdens of proof under AIR21. Dady v.
be either oral or in writing. If the conform to the pleading standards for Harley Marine Services, Inc., Nos. 13–
complainant is unable to file the complaints filed in federal district court 076, 13–077, 2015 WL 4674602, at *3
complaint in English, OSHA will accept articulated in Bell Atlantic Corp. v. (ARB July 21, 2015), petition filed, (11th
the complaint in any language. Twombly, 550 U.S. 544 (2007) and Cir. Sept. 14. 2015) (No. 15–14110). A
Paragraph (c) explains with whom in Ashcroft v. Iqbal, 556 U.S. 662 (2009). complainant must make an initial prima
OSHA complaints may be filed. Sylvester v. Parexel Int’l, Inc., No. 07– facie showing that protected activity
Paragraph (d) addresses timeliness. To 123, 2011 WL 2165854, at *9–10 (ARB was ‘‘a contributing factor’’ in the
be timely, a complaint must be filed May 26, 2011) (holding whistleblower adverse action alleged in the complaint,
within 180 days of the occurrence of the complaints filed with OSHA under i.e., that the protected activity, alone or
alleged violation. Under Supreme Court analogous provisions in the Sarbanes- in combination with other factors,
precedent, a violation occurs when the Oxley Act need not conform to federal affected in some way the outcome of the
retaliatory decision has been both court pleading standards). Rather, the employer’s decision. Ferguson v. New
‘‘made and communicated to’’ the complaint filed with OSHA under this Prime, Inc., No. 10–75, 2011 WL
complainant. Del. State College v. Ricks, section simply alerts the Agency to the 4343278, at *3 (ARB Aug. 31, 2011);
449 U.S. 250, 258 (1980). In other existence of the alleged retaliation and Clarke v. Navajo Express, No. 09–114,
words, the limitations period the complainant’s desire that the 2011 WL 2614326, at *3 (ARB June 29,
commences once the employee is aware Agency investigate the complaint. Upon 2011). The complainant will be
or reasonably should be aware of the the filing of a complaint with OSHA, the considered to have met the required
employer’s decision. EEOC v. United Assistant Secretary is to determine burden if the complaint on its face,
Parcel Serv., 249 F.3d 557, 561–62 (6th whether ‘‘the complaint, supplemented supplemented as appropriate through
Cir. 2001). A complaint will be as appropriate by interviews of the
interviews of the complainant, alleges
considered filed on the date of complainant’’ alleges ‘‘the existence of
the existence of facts and either direct
postmark, facsimile transmittal, facts and evidence to make a prima facie
electronic communication transmittal, or circumstantial evidence to meet the
showing.’’ 29 CFR 1986.104(e). As
telephone call, hand-delivery, delivery required showing. The complainant’s
explained in section 1986.104(e), if the
to a third-party commercial carrier, or burden may be satisfied, for example, if
complaint, supplemented as
in-person filing at an OSHA office. The he or she shows that the adverse action
appropriate, contains a prima facie
regulatory text indicates that filing took place shortly after protected
allegation, and the respondent does not
deadlines may be tolled based on activity, giving rise to the inference that
show clear and convincing evidence
principles developed in applicable case it was a contributing factor in the
that it would have taken the same action
law. Donovan v. Hahner, Foreman & in the absence of the alleged protected adverse action.
Harness, Inc., 736 F.2d 1421, 1423–29 activity, OSHA conducts an If the complainant does not make the
(10th Cir. 1984). investigation to determine whether required prima facie showing, the
Paragraph (e), which is consistent there is reasonable cause to believe that investigation must be discontinued and
with provisions implementing other retaliation has occurred. See 49 U.S.C. the complaint dismissed. Trimmer v.
OSHA whistleblower programs, 42121(b)(2), 29 CFR 1986.104(e). U.S. Dep’t of Labor, 174 F.3d 1098, 1101
describes the relationship between (10th Cir. 1999) (noting that the burden-
Section 1986.104 Investigation shifting framework of the ERA, which is
section 11(c) complaints and SPA
whistleblower complaints. Section 11(c) This section describes the procedures the same framework now found in
of the OSH Act, 29 U.S.C. 660(c), that apply to the investigation of STAA and therefore SPA, served a
generally prohibits employers from complaints under SPA. Paragraph (a) of ‘‘gatekeeping function’’ that ‘‘stemm[ed]
retaliating against employees for filing this section outlines the procedures for frivolous complaints’’). Even in cases
safety or health complaints or otherwise notifying the parties and the U.S. Coast where the complainant successfully
initiating or participating in proceedings Guard of the complaint and notifying makes a prima facie showing, the
under the OSH Act. Some of the activity the respondent of its rights under these investigation must be discontinued if
protected by SPA, including maritime regulations. Paragraph (b) describes the the employer demonstrates, by clear and
safety complaints and work refusals, procedures for the respondent to submit convincing evidence, that it would have
may also be covered under section 11(c), its response to the complaint. Paragraph taken the same adverse action in the
though the geographic limits of section (c) explains that the Agency will share absence of the protected activity. Thus,
4(a) of the OSH Act, 29 U.S.C. 653(a), respondent’s submissions with the OSHA must dismiss a complaint under
which are applicable to section 11(c), do complainant, with redactions in SPA and not investigate (or cease
not apply to SPA.5 Paragraph (e) states accordance with the Privacy Act of investigating) if either: (1) The
that SPA whistleblower complaints that 1974, 5 U.S.C. 552a, et seq., and other complainant fails to meet the prima
applicable confidentiality laws as facie showing that the protected activity
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also allege facts constituting a section
11(c) violation will be deemed to have necessary, and will permit the was a contributing factor in the adverse
been filed under both statutes. complainant to respond to those action; or (2) the employer rebuts that
Similarly, section 11(c) complaints that submissions. The Agency expects that showing by clear and convincing
sharing information with complainants evidence that it would have taken the
5 SPA contains no geographic limit; its scope is will assist it in conducting full and fair same adverse action absent the
limited only by the definition of ‘‘seaman.’’ investigations and thoroughly assessing protected activity.
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![Federal Register / Vol. 81, No. 179 / Thursday, September 15, 2016 / Rules and Regulations 63405
Paragraph (f) describes the procedures may order that the complainant receive benefits and is not otherwise
the Assistant Secretary will follow prior the same pay and benefits that he or she disadvantaged by a delay in
to the issuance of findings and a received prior to his termination, but reinstatement. There is no statutory
preliminary order when the Assistant not actually return to work. Smith v. basis for allowing the employer to
Secretary has reasonable cause to Lake City Enterprises, Inc., Nos. 09–033, recover the costs of economically
believe that a violation has occurred. Its 08–091, 2010 WL 3910346, at *8 (ARB reinstating a seaman should the
purpose is to ensure compliance with Sept. 24, 2010) (holding that an employer ultimately prevail in the
the Due Process Clause of the Fifth employer who violated STAA was to whistleblower adjudication.
Amendment, as interpreted by the compensate the complainant with ‘‘front In ordering interest on back pay, the
Supreme Court in Brock v. Roadway pay’’ when reinstatement was not Secretary has determined that, instead
Express, Inc., 481 U.S. 252 (1987) possible). Such front pay or economic of computing the interest due by
(requiring OSHA to give a STAA reinstatement is also employed in cases compounding quarterly the Internal
respondent the opportunity to review arising under section 105(c) of the Revenue Service interest rate for the
the substance of the evidence and Federal Mine Safety and Health Act of underpayment of taxes, which under 26
respond, prior to ordering preliminary 1977, 30 U.S.C. 815(c)(2). Sec’y of Labor U.S.C. 6621 is generally the Federal
reinstatement). ex rel. York v. BR&D Enters., Inc., 23 short-term rate plus three percentage
Section 1986.105 Issuance of Findings FMSHRC 697, 2001 WL 1806020, at *1 points, interest will be compounded
and Preliminary Orders (ALJ June 26, 2001). Front pay has been daily. The Secretary believes that daily
recognized as a possible remedy in cases compounding of interest better achieves
This section provides that, within 60 the make-whole purpose of a back pay
days of the filing of a complaint and on under the whistleblower statutes
enforced by OSHA in circumstances award. Daily compounding of interest
the basis of information obtained in the has become the norm in private lending
investigation, the Assistant Secretary where reinstatement would not be
appropriate. Hagman v. Washington and recently was found to be the most
will issue written findings regarding appropriate method of calculating
whether there is reasonable cause to Mutual Bank, , ALJ No. 2005–SOX–73,
2006 WL 6105301, at *32 (Dec. 19, interest on back pay by the National
believe that the complaint has merit. If Labor Relations Board. Jackson Hosp.
the Assistant Secretary concludes that 2006) (noting that while reinstatement is
the ‘‘preferred and presumptive Corp. v. United Steel, Paper & Forestry,
there is reasonable cause to believe that Rubber, Mfg., Energy, Allied Indus. &
the complaint has merit, the Assistant remedy’’ under Sarbanes-Oxley, ‘‘[f]ront
pay may be awarded as a substitute Serv. Workers Int’l Union, 356 NLRB
Secretary will order appropriate relief, No. 8, 2010 WL 4318371, at *3–4 (2010).
including: A requirement that the when reinstatement is inappropriate
due to: (1) An employee’s medical Additionally, interest on tax
person take affirmative action to abate underpayments under the Internal
the violation; reinstatement to the condition that is causally related to her
employer’s retaliatory action . . .; (2) Revenue Code, 26 U.S.C. 6621, is
seaman’s former position; compensatory compounded daily pursuant to 26
damages, including back pay with manifest hostility between the parties
. . .; (3) the fact that claimant’s former U.S.C. 6622(a).
interest and damages such as litigation
fees and costs; and punitive damages up position no longer exists . . .; or (4) the Subpart B—Litigation
to $250,000, where appropriate. fact that employer is no longer in
business at the time of the decision’’); Section 1986.106 Objections to the
Affirmative action to abate the violation
Hobby v. Georgia Power Co., ARB No. Findings and the Preliminary Order and
includes a variety of measures, such as
98–166, ALJ No. 1990–ERA–30 (ARB Request for a Hearing
posting notices about SPA orders and
rights, as well as expungement of Feb. 9, 2001) (noting circumstances in To be effective, objections to the
adverse comments in a personnel which front pay may be available in lieu findings of the Assistant Secretary must
record. Scott v. Roadway Express, Inc., of reinstatement but ordering be in writing and must be filed with the
No. 01–065, 2003 WL 21269144, at *1– reinstatement); Brown v. Lockheed Chief Administrative Law Judge within
2 (ARB May 29, 2003) (posting notices Martin Corp., ALJ No. 2008–SOX–49, 30 days of receipt of the findings. The
of STAA orders and rights); Pollock v. 2010 WL 2054426, at *55–56 (Jan. 15, date of the postmark, facsimile
Continental Express, Nos. 07–073, 08– 2010) (same). Congress intended that transmittal, or electronic
051, 2010 WL 1776974, at *9 (ARB Apr. seamen be preliminarily reinstated to communication transmittal is
7, 2010) (expungement of adverse their positions if OSHA finds reasonable considered the date of the filing; if the
references). cause to believe that they were objection is filed in person, by hand-
The findings and, where appropriate, discharged in violation of SPA. When delivery or other means, the objection is
the preliminary order, advise the parties OSHA finds a violation, the norm is for filed upon receipt. The filing of
of their right to file objections to the OSHA to order immediate preliminary objections also is considered a request
findings and the preliminary order of reinstatement. Neither an employer nor for a hearing before an ALJ. Although
the Assistant Secretary and to request a an employee has a statutory right to the parties are directed to serve a copy
hearing. If no objections are filed within choose economic reinstatement. Rather, of their objections on the other parties
30 days of receipt of the findings, the economic reinstatement is designed to of record and the OSHA official who
findings and any preliminary order of accommodate situations in which issued the findings, the failure to serve
the Assistant Secretary become the final evidence establishes to OSHA’s copies of the objections on the other
decision and order of the Secretary. If satisfaction that reinstatement is parties of record does not affect the
objections are timely filed, any order of inadvisable for some reason, ALJ’s jurisdiction to hear and decide the
notwithstanding the employer’s
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preliminary reinstatement will take merits of the case. Shirani v. Calvert
effect, but the remaining provisions of retaliatory discharge of the seaman. In Cliffs Nuclear Power Plant, Inc., No. 04–
the order will not take effect until such situations, actual reinstatement 101, 2005 WL 2865915, at *7 (ARB Oct.
administrative proceedings are might be delayed until after the 31, 2005).
completed. administrative adjudication is A respondent may file a motion to
In appropriate circumstances, in lieu completed as long as the seaman stay OSHA’s preliminary order of
of preliminary reinstatement, OSHA continues to receive his or her pay and reinstatement with the Office of
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![63414 Federal Register / Vol. 81, No. 179 / Thursday, September 15, 2016 / Rules and Regulations
petition for review of an ALJ’s decision (b) A final order is not subject to PENSION BENEFIT GUARANTY
at any time before that decision becomes judicial review in any criminal or other CORPORATION
final by filing a written withdrawal with civil proceeding.
the ARB. The ALJ or the ARB, as the 29 CFR Parts 4022 and 4044
(c) If a timely petition for review is
case may be, will determine whether to filed, the record of a case, including the
approve the withdrawal of the Allocation of Assets in Single-
record of proceedings before the ALJ, Employer Plans; Benefits Payable in
objections or the petition for review. If
will be transmitted by the ARB, or the Terminated Single-Employer Plans;
the ALJ approves a request to withdraw
ALJ, as the case may be, to the Interest Assumptions for Valuing and
objections to the Assistant Secretary’s
findings and/or order, and there are no appropriate court pursuant to the Paying Benefits
other pending objections, the Assistant Federal Rules of Appellate Procedure
AGENCY: Pension Benefit Guaranty
Secretary’s findings and/or order will and the local rules of such court.
Corporation.
become the final order of the Secretary. § 1986.113 Judicial enforcement. ACTION: Final rule.
If the ARB approves a request to
withdraw a petition for review of an ALJ Whenever any person has failed to SUMMARY: This final rule amends the
decision, and there are no other pending comply with a preliminary order of Pension Benefit Guaranty Corporation’s
petitions for review of that decision, the reinstatement or a final order, including regulations on Benefits Payable in
ALJ’s decision will become the final one approving a settlement agreement Terminated Single-Employer Plans and
order of the Secretary. If objections or a issued under SPA, the Secretary may Allocation of Assets in Single-Employer
petition for review are withdrawn file a civil action seeking enforcement of Plans to prescribe interest assumptions
because of settlement, the settlement the order in the United States district under the benefit payments regulation
must be submitted for approval in court for the district in which the for valuation dates in October 2016 and
accordance with paragraph (d) of this violation was found to have occurred. interest assumptions under the asset
section. allocation regulation for valuation dates
(d)(1) Investigative settlements. At any
§ 1986.114 District court jurisdiction of in the fourth quarter of 2016. The
retaliation complaints under SPA. interest assumptions are used for
time after the filing of a SPA complaint
and before the findings and/or order are (a) If there is no final order of the valuing and paying benefits under
objected to or become a final order by terminating single-employer plans
Secretary, 210 days have passed since
operation of law, the case may be settled covered by the pension insurance
the filing of the complaint, and there is
if the Assistant Secretary, the system administered by PBGC.
no showing that there has been delay
complainant, and the respondent agree DATES: Effective October 1, 2016.
due to the bad faith of the complainant,
to a settlement. The Assistant FOR FURTHER INFORMATION CONTACT:
the complainant may bring an action at
Secretary’s approval of a settlement law or equity for de novo review in the Deborah C. Murphy (Murphy.Deborah@
reached by the respondent and the PBGC.gov), Assistant General Counsel
appropriate district court of the United
complainant demonstrates the Assistant for Regulatory Affairs, Pension Benefit
States, which will have jurisdiction over
Secretary’s consent and achieves the Guaranty Corporation, 1200 K Street
such an action without regard to the
consent of all three parties. NW., Washington, DC 20005, 202–326–
amount in controversy. The action shall, 4400 ext. 3451. (TTY/TDD users may
(2) Adjudicatory settlements. At any at the request of either party to such call the Federal relay service toll free at
time after the filing of objections to the action, be tried by the court with a jury. 1–800–877–8339 and ask to be
Assistant Secretary’s findings and/or
(b) Within seven days after filing a connected to 202–326–4400 ext. 3451.)
order, the case may be settled if the
complaint in federal court, a SUPPLEMENTARY INFORMATION: PBGC’s
participating parties agree to a
complainant must file with the regulations on Allocation of Assets in
settlement and the settlement is
approved by the ALJ if the case is before Assistant Secretary, the ALJ, or the ARB, Single-Employer Plans (29 CFR part
the ALJ or by the ARB, if the ARB has depending on where the proceeding is 4044) and Benefits Payable in
accepted the case for review. A copy of pending, a copy of the file-stamped Terminated Single-Employer Plans (29
the settlement will be filed with the ALJ complaint. A copy of the complaint also CFR part 4022) prescribe actuarial
or the ARB as the case may be. must be served on the OSHA official assumptions—including interest
who issued the findings and/or assumptions—for valuing and paying
(e) Any settlement approved by the plan benefits under terminating single-
preliminary order, the Assistant
Assistant Secretary, the ALJ, or the ARB employer plans covered by title IV of
will constitute the final order of the Secretary, and the Associate Solicitor,
Division of Occupational Safety and the Employee Retirement Income
Secretary and may be enforced in a Security Act of 1974. The interest
United States district court pursuant to Health, U.S. Department of Labor.
assumptions in the regulations are also
49 U.S.C. 31105(e), as incorporated by § 1986.115 Special circumstances; waiver published on PBGC’s Web site (http://
46 U.S.C. 2114(b). of rules. www.pbgc.gov).
The interest assumptions in Appendix
§ 1986.112 Judicial review. In special circumstances not B to Part 4044 are used to value benefits
(a) Within 60 days after the issuance contemplated by the provisions of the for allocation purposes under ERISA
of a final order under §§ 1986.109 and rules in this part, or for good cause section 4044. PBGC uses the interest
1986.110, any person adversely affected shown, the ALJ or the ARB on review assumptions in Appendix B to Part 4022
or aggrieved by the order may file a may, upon application, after three days to determine whether a benefit is
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petition for review of the order in the notice to all parties, waive any rule or payable as a lump sum and to determine
court of appeals of the United States for issue such orders as justice or the the amount to pay. Appendix C to Part
the circuit in which the violation administration of SPA requires. 4022 contains interest assumptions for
allegedly occurred or the circuit in [FR Doc. 2016–21758 Filed 9–14–16; 8:45 am] private-sector pension practitioners to
which the complainant resided on the BILLING CODE 4510–26–P refer to if they wish to use lump-sum
date of the violation. interest rates determined using PBGC’s
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Document Created: 2018-02-09 13:18:15
Document Modified: 2018-02-09 13:18:15
| 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 September 15, 2016. | |
| Contact | Rob Swick, Directorate of Whistleblower Protection Programs, Occupational Safety and Health Administration, U.S. Department of Labor, Room N-4624, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-2199; email [email protected] This is not a toll-free number. This Federal Register publication is available in alternative formats: Large print, electronic file on computer disk (Word Perfect, ASCII, Mates with Duxbury Braille System) and audiotape. | |
| FR Citation | 81 FR 63396 | |
| RIN Number | 1218-AC58 | |
| CFR Associated | Administrative Practice and Procedure; Employment; Investigations; Marine Safety; Reporting and Recordkeeping Requirements; Safety; Seamen; Transportation and Whistleblowing |
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