[Federal Register Volume 78, Number 25 (Wednesday, February 6, 2013)]
[Rules and Regulations]
[Pages 8390-8407]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-02539]


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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 (SPA), as 
Amended

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Interim final rule; request for comments.

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SUMMARY: This document provides the interim 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. Section 611 transfers 
to the Occupational Safety and Health Administration (``OSHA'' or ``the 
Agency'') the administration of the whistleblower protections 
previously enforced solely via a private right of action. This interim 
rule establishes 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

[[Page 8391]]

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 interim rule provides 
the Secretary's interpretation of the term ``seaman'' and addresses 
other interpretive issues raised by SPA.

DATES: This interim final rule is effective on February 6, 2013. 
Comments on the interim final rule must be submitted (postmarked, sent 
or received) on or before April 8, 2013.

ADDRESSES: You may submit comments and additional materials by any of 
the following methods:
    Electronically: You may submit comments and attachments 
electronically at http://www.regulations.gov, which is the Federal e-
Rulemaking Portal. Follow the instructions online for making electronic 
submissions.
    Fax: If your submissions, including attachments, do not exceed 10 
pages, you may fax them to the OSHA Docket Office at (202) 693-1648.
    Mail, hand delivery, express mail, messenger or courier service: 
You must submit your comments and attachments to the OSHA Docket 
Office, Docket No. OSHA-2011-0841, U.S. Department of Labor, Room N-
2625, 200 Constitution Avenue NW., Washington, DC 20210. Deliveries 
(hand, express mail, messenger and courier service) are accepted during 
the Department of Labor's and Docket Office's normal business hours, 
8:15 a.m.-4:45 p.m., EST.
    Instructions: All submissions must include the agency name and the 
OSHA docket number for this rulemaking (Docket No. OSHA-2011-0841). 
Submissions, including any personal information you provide, are placed 
in the public docket without change and may be made available online at 
http://www.regulations.gov. Therefore, OSHA cautions you about 
submitting personal information such as social security numbers and 
birth dates.
    Docket: To read or download submissions or other material in the 
docket, go to http://www.regulations.gov or the OSHA Docket Office at 
the address above. All documents in the docket are listed in the http://www.regulations.gov index, however, some information (e.g., 
copyrighted material) is not publicly available to read or download 
through the Web site. All submissions, including copyrighted material, 
are available for inspection and copying at the OSHA Docket Office.

FOR FURTHER INFORMATION CONTACT: Beth S. Slavet, Director, Directorate 
of Whistleblower 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. 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. 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 ``The 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. Regarding protected activities, Section 611 added to 
subsection (a):
    (C) the seaman testified in a proceeding brought to enforce a 
maritime safety law or regulation prescribed under that law;
    (D) 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;
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    \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.
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    (E) 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;
    (F) 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

[[Page 8392]]

in injury or death to an individual or damage to property occurring in 
connection with vessel transportation; or
    (G) the seaman accurately reported hours of duty under this part.

Id. Sec.  611(a), 124 Stat. at 2969.

    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:
    (b) 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 subsection (b) of section 
31105 of title 49. Such complaint shall be 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 ``Employee protections'' 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), see id. Sec.  31105(b)-(e), and the Secretary has 
delegated her authority in this regard to OSHA. See Secretary's Order 
1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012). The Secretary has 
also delegated to OSHA her authority under SPA. Id. at 3913. Hearings 
on determinations by the Assistant Secretary for OSHA (Assistant 
Secretary) are conducted by the Office of Administrative Law Judges, 
and appeals from decisions by administrative law judges (ALJs) are 
decided by the Department of Labor's Administrative Review Board (ARB). 
See Secretary's Order 1-2010, 75 FR 3924-01 (Jan. 25, 2010).

    OSHA is promulgating this interim final rule to establish 
procedures for the handling of whistleblower 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 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 (CPSIA), 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\ Those references follow the word ``including,'' however, 
with no suggestion that the subsequent list is meant to be exclusive, 
so OSHA will not treat it as such. OSHA does not read SPA as 
incorporating Sections (a), (h), (i), or (j) of STAA 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.
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    \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).
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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

    Section (b)(1) of 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); see 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); see also 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 Section (b) of STAA, 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 Section (b)(3) of STAA, 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

[[Page 8393]]

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

    Section (b) of STAA also provides for hearings. Specifically, the 
complainant and the respondent have 30 days after the date of the 
Secretary's notification in which to file objections to the findings 
and/or preliminary order and request a hearing. 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

    Section (c) of 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 provides that the court will have 
jurisdiction over the action without regard to the amount in 
controversy and that the case will be tried before a jury at the 
request of either party.

Judicial Review

    Section (d) of 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

    Section (e) of STAA provides that if a person fails to comply with 
an order issued by the Secretary under Section (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

    Section (f) of 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

    Section (g) of 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. Summary and Discussion of Regulatory Provisions

    The regulatory provisions in this part have been written and 
organized to be consistent with other whistleblower regulations 
promulgated by OSHA to the extent possible within the bounds of the 
statutory language of SPA and of STAA.
    Throughout the regulatory text, OSHA has used the term 
``retaliate'' rather than ``discharge or in any manner discriminate,'' 
the phrase that appears in the text of SPA. The use of ``retaliate,'' 
which also appears in the regulations implementing STAA, the ERA, SOX, 
and CPSIA, is not intended to have a substantive effect. It simply 
reflects that claims brought under these whistleblower provisions, 
whether alleging discharge or some other form of discrimination, are 
prototypical retaliation claims. A retaliation claim is a specific type 
of discrimination claim that focuses on actions taken as a result of an 
employee's protected activity rather than as a result of an employee's 
characteristics (such as race, gender, or religion).

Subpart A--Complaints, Investigations, Findings, and Preliminary Orders

Section 1986.100 Purpose and Scope
    This section describes the purpose of the regulations implementing 
SPA's whistleblower provision and provides an overview of the 
procedures contained in the regulations.
Section 1986.101 Definitions
    This section includes general definitions applicable to SPA's 
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 
[hellip] 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 when they make 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 ``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., 
131 S. Ct. 1325 (2011) (holding that the provision of the Fair Labor 
Standards Act that prohibits employers

[[Page 8394]]

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 seamen when they refuse to 
perform a duty that would result in a serious injury) with id. (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 from multiple jurisdictions, 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. See 
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. See 33 U.S.C. 902(21) (defining, for purposes of the 
LHWCA, the entities liable for negligence of a vessel); see also 
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.'' The Senate Report that accompanied the 
original, 1984 version of SPA indicates that SPA was originally 
intended to provide a remedy for workers whose whistleblower rights 
under 11(c) might be not be available in a jurisdiction 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.
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    \4\ Nothing in this preamble should be read to suggest that OSHA 
agrees with the holding or rationale of Texaco.
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    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 where workers arguably lack coverage because of 
4(b)(1) preemption under 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).
    However, OSHA is concerned that the Jones Act definition of 
``seaman'' is more restrictive than the definition as clarified in the 
legislative history of the SPA. As a result, certain workers who are 
employed on vessels in significant ways, but who are not Jones Act 
seaman, would not be protected under the Jones Act definition. 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. See 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 11(c) rights 
when reporting safety violations aboard vessels on which they are 
working.
    OSHA also notes that SPA and the Jones Act are fundamentally 
different types of statutes that need not be squarely consistent in 
their coverage. The Jones Act provides that particular workers, after 
being injured, are entitled to recover by civil action against their 
employers. SPA, on the other hand, is prophylactic and remedial in 
nature and intended to prevent injuries before they happen by 
protecting reports of safety violations, which suggests a broader 
definition is appropriate.
    Second, OSHA rejected the approach of defining ``seaman'' as 
applying only to workers who arguably are not covered by 11(c). The 
legislative history shows that Congress originally passed the SPA in 
response to Texaco: ``This section responds to Donavan 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 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'' workers also who may be covered by 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 interim 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

[[Page 8395]]

of the Senate report to define ``seaman.'' As indicated in the report, 
and consistent with the remedial purposes of whistleblower statutes 
like SPA, OSHA intends that the regulatory language be construed 
broadly. See 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. See 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 seaman 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 (49 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 were 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.
    OSHA encourages interested parties to submit comments on the issues 
discussed above in the definition of ``seaman,'' any potential 
alternative definitions they wish OSHA to consider in the final rule, 
and any information they have about the practical effects of using 
various alternative definitions. 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.
    ``Citizen of the United States,'' a term used in the definition of 
``seaman,'' is not defined in the 1984 Senate report. The definition of 
this term in paragraph (d) of the regulation is based on two sources: 
the definition applicable to individuals given in 46 U.S.C. 104 and the 
definition of ``entities deemed citizens of the United States'' in 46 
U.S.C. 50501. These provisions are from the same title of the U.S. Code 
as SPA, and deal with similar subject matter. They are roughly similar 
to definitions of citizen of the United States used in other similar 
contexts. See 49 U.S.C. 42121(a)(2) (definition applicable to AIR21); 
46 U.S.C. 12103(b) (ownership of vessels eligible to receive a 
certificate of documentation from the United States). Paragraph (d) of 
the regulation combines the text of 46 U.S.C. 104 and 50501, with two 
changes. First, the regulation adds the text ``or other entity'' to the 
list of business forms that can meet the definition. This change 
reflects the development of new business forms, such as limited 
liability companies, in recent years. Second, it deletes the language 
for section 50501 requiring that at least 75 percent of the interest in 
a corporation, partnership, or association be owned by citizens of the 
United States where the vessel is operating ``in the coastwise trade.'' 
46 U.S.C. 50501(a); see also 46 U.S.C. 50501(d) (providing four 
criteria for determining whether 75 percent of the interest in a 
corporation is owned by citizens of the United States). There is no 
basis for distinguishing between vessels on this basis in implementing 
SPA; the purposes of this whistleblower statute are wholly unrelated to 
the locations between which the vessel travels. Accordingly, this 
language has been omitted.
    Paragraph (p) defines ``vessel,'' a term used in the definition of 
seaman and that also arises 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 (DC 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

[[Page 8396]]

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[es] 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). 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 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 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.
    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 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.''
    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 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 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). However, the time 
for filing a complaint may be tolled for reasons warranted by 
applicable case law. 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. See, e.g., 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

[[Page 8397]]

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 an 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). See 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 OSHA in conducting full and fair 
investigations and the Assistant Secretary in thoroughly assessing 
defenses raised by respondents. Paragraph (d) of this section discusses 
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 burden of proof of AIR21. 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. 
See 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. See 
Trimmer v. U.S. Dep't of Labor, 174 F.3d 1098, 1101 (10th Cir. 1999) 
(noting that the burden-shifting framework of the 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.
    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 costs; 
and, if the Assistant Secretary so chooses, punitive damages up to 
$250,000. 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. See 
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, preliminary order, advise the 
parties of their right to file objections to the findings of the 
Assistant Secretary and to request a hearing. If no objections are 
filed within 30 days of receipt of the

[[Page 8398]]

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 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). 
See, e.g., Sec'y of Labor ex rel. York v. BR&D Enters., Inc., 23 FMSHRC 
697, 2001 WL 1806020, at *1 (ALJ June 26, 2001). Front pay has been 
recognized as a possible remedy in cases under the whistleblower 
statutes enforced by OSHA in circumstances where reinstatement would 
not be appropriate. See, e.g., 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), aff'd sub nom. 
Hobby v. USDOL, No. 01-10916 (11th Cir. Sept. 30, 2002) (unpublished); 
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. See Jackson Hosp. Corp. v. 
United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & 
Serv. Workers Int'l Union, 356 NLRB No. 8, 2010 WL 4318371, at *3-4 
(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. See 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 Administrative Law Judges. However, a 
stay will be granted only on the basis of exceptional circumstances. 
The Secretary 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 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 * * *'' See also 
Federal Trade Commission v. Cement Institute, 333 U.S. 683, 705-06 
(1948) (administrative agencies not restricted

[[Page 8399]]

by rigid rules of evidence). Furthermore, it is inappropriate to apply 
the technical rules of evidence in Part 18 because the Secretary 
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 a motive prohibited 
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 hears cases de novo and, 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 backpay 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 1986.105.) In 
addition, paragraph (d)(2) in this section requires the ALJ to issue an 
order denying the complaint if he or she determines that the respondent 
has not violated SPA.
    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 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.
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

[[Page 8400]]

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 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 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 United States Court of 
Appeals for the circuit in which the violation allegedly occurred or 
the circuit in which the complainant resided on the date of the 
violation. 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, submit the record of proceedings to the 
appropriate court pursuant to the Federal Rules of Appellate Procedure 
and the local rules of such court.

[[Page 8401]]

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 complainants to provide 
file-stamped copies of their 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 days notice to the parties, waive any rule or issue such 
orders as justice or the administration of SPA's whistleblower 
provision requires.

IV. Paperwork Reduction Act

    This rule contains a reporting provision (filing a retaliation 
complaint, section 1986.103) which was previously reviewed as a 
statutory requirement of the Seaman's Protection Act (46 U.S.C. 2114) 
and approved for use by the Office of Management and Budget (``OMB''), 
and was assigned OMB control number 1218-0236 under the provisions of 
the Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163 
(1995). A non-material change has been submitted to OMB to include the 
regulatory citation.

V. Administrative Procedure Act

    The notice and comment rulemaking procedures of Section 553 of the 
Administrative Procedure Act (APA) do not apply ``to interpretative 
rules, general statements of policy, or rules of agency organization, 
procedure, or practice.'' 5 U.S.C. 553(b)(A). This is a rule of agency 
procedure, practice, and interpretation within the meaning of that 
section, since it provides procedures for the handling of retaliation 
complaints. Therefore, publication in the Federal Register of a notice 
of proposed rulemaking and request for comments are not required for 
these regulations. Although this is a procedural rule not subject to 
the notice and comment procedures of the APA, the Agency is providing 
persons interested in this interim final rule 60 days to submit 
comments. A final rule will be published after the Agency receives and 
reviews the public's comments.
    Furthermore, because this rule is procedural and interpretative 
rather than substantive, the normal requirement of 5 U.S.C. 553(d) that 
a rule be effective 30 days after publication in the Federal Register 
is inapplicable. The Assistant Secretary also finds good cause to 
provide an immediate effective date for this interim final rule. It is 
in the public interest that the rule be effective immediately so that 
parties may know what procedures are applicable to pending cases.

VI. Executive Orders 12866 and 13563; Unfunded Mandates Reform Act of 
1995; Executive Order 13132

    The Department has concluded that this rule is not a ``significant 
regulatory action'' within the meaning of Section 3(f)(4) of Executive 
Order 12866, as reaffirmed by Executive Order 13563, because it is not 
likely to result in a rule that may: (1) Have an annual effect on the 
economy of $100 million or more or adversely affect in a material way 
the economy, a sector of the economy, productivity, competition, jobs, 
the environment, public health or safety, or State, local, or tribal 
governments or communities; (2) create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
Executive Order 12866. Therefore, no regulatory impact analysis has 
been prepared.
    The rule is procedural and interpretative in nature, and it is 
expected to have a negligible economic impact. For this reason, and the 
fact that no notice of proposed rulemaking has been published, no 
statement is required under Section 202 of the Unfunded Mandates Reform 
Act of 1995, 2 U.S.C. 1531 et seq. Finally, this rule does not have 
``federalism implications.'' The rule does not have ``substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government'' and therefore 
is not subject to Executive Order 13132 (Federalism).

VII. Regulatory Flexibility Analysis

    The Department has determined that the regulation will not have a 
significant economic impact on a substantial number of small entities. 
The regulation simply implements procedures necessitated by enactment 
of SPA. Furthermore, no certification to this effect is required and no 
regulatory flexibility analysis is required because no proposed rule 
has been issued.

List of Subjects in 29 CFR Part 1986

    Administrative practice and procedure, Employment, Investigations, 
Marine safety, Reporting and recordkeeping requirements, Safety, 
Seamen, Transportation, Whistleblowing.

[[Page 8402]]

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 January 31, 2013.
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 added 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
Sec.
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's 
Order 1-2010 (Jan. 15, 2010), 75 FR 3924-01 (Jan. 25, 2010).

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, these rules 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.
    (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:
    (1) 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)) or 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:
    (i) Title to the majority of the stock in the corporation is vested 
in citizens of the United States free from any trust or fiduciary 
obligation in favor of a person not a citizen of the United States;
    (ii) The majority of the voting power in the corporation is vested 
in citizens of the United States;
    (iii) There is no contract or understanding by which the majority 
of the voting power in the corporation may be exercised, directly or 
indirectly, in behalf of a person not a citizen of the United States; 
and
    (iv) 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.
    (2) Furthermore, a corporation is only a citizen of the United 
States if:
    (i) It is incorporated under the laws of the United States or a 
State;
    (ii) Its chief executive officer, by whatever title, and the 
chairman of its board of directors are citizens of the United States; 
and
    (iii) No more of its directors are noncitizens than a minority of 
the number necessary to constitute a quorum.
    (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 vessel owned by a citizen of the United States. 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 is about to report to the Coast Guard 
or other

[[Page 8403]]

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;
    (2) 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;
    (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 is 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 is operating or the National 
Transportation Safety Board;
    (6) 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; 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 is 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 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. 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 requests 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 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

[[Page 8404]]

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 the prior paragraph, 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.
    (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 based on 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.

[[Page 8405]]

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, 
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 Administrative Review Board, 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 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 Administrative 
Review Board (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

[[Page 8406]]

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


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

[[Page 8407]]

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 
these rules, or for good cause shown, the ALJ or the ARB on review may, 
upon application, after three days notice to all parties, waive any 
rule or issue such orders as justice or the administration of SPA 
requires.

[FR Doc. 2013-02539 Filed 2-5-13; 8:45 am]
BILLING CODE 4510-26-P