[Federal Register Volume 81, Number 179 (Thursday, September 15, 2016)]
[Rules and Regulations]
[Pages 63396-63414]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-21758]



[[Page 63396]]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1986

[Docket Number: OSHA-2011-0841]
RIN 1218-AC58


Procedures for the Handling of Retaliation Complaints Under the 
Employee Protection Provision of the Seaman's Protection Act, as 
Amended

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This document provides the final text of regulations governing 
the employee protection (whistleblower) provisions of the Seaman's 
Protection Act (SPA or the Act), as amended by section 611 of the Coast 
Guard Authorization Act of 2010. On February 6, 2013, the Occupational 
Safety and Health Administration (OSHA or the Agency) published an 
interim final rule (IFR) for SPA whistleblower complaints in the 
Federal Register, requested public comment on the IFR, and the Agency 
has considered the comments. This final rule finalizes the procedures 
and time frames for the handling of retaliation complaints under SPA, 
including procedures and time frames for employee complaints to OSHA, 
investigations by OSHA, appeals of OSHA determinations to an 
administrative law judge (ALJ) for a hearing de novo, hearings by ALJs, 
review of ALJ decisions by the Administrative Review Board (ARB) on 
behalf of the Secretary of Labor (Secretary), and judicial review of 
the Secretary's final decision. In addition, this final rule provides 
the Secretary's interpretation of the term ``seaman'' and addresses 
other interpretive issues raised by SPA.

DATES: This final rule is effective on September 15, 2016.

FOR FURTHER INFORMATION CONTACT: Rob Swick, Directorate of 
Whistleblower Protection Programs, Occupational Safety and Health 
Administration, U.S. Department of Labor, Room N-4624, 200 Constitution 
Avenue NW., Washington, DC 20210; telephone (202) 693-2199; email 
[email protected]. This is not a toll-free number. This Federal 
Register publication is available in alternative formats: Large print, 
electronic file on computer disk (Word Perfect, ASCII, Mates with 
Duxbury Braille System) and audiotape.

SUPPLEMENTARY INFORMATION:

I. Background

    Congress enacted SPA as section 13 of the Coast Guard Authorization 
Act of 1984, Public Law 98-557, 98 Stat. 2860 (1984). SPA protected 
seamen from retaliation for reporting a violation of Subtitle II of 
Title 46 of the U.S. Code, which governs vessels and seamen, or a 
regulation promulgated under that subtitle. S. Rep. No. 98-454, at 11 
(1984). Congress passed SPA in response to Donovan v. Texaco, 720 F.2d 
825 (5th Cir. 1983), in which the Fifth Circuit held that the 
whistleblower provision of the Occupational Safety and Health Act (OSH 
Act) did not cover a seaman who had been demoted and discharged from 
his position because he reported a possible safety violation to the 
U.S. Coast Guard. S. Rep. No. 98-454, at 12 (1984). This original 
version of SPA prohibited ``[a]n owner, charterer, managing operator, 
agent, master, or individual in charge of a vessel'' from retaliating 
against a seaman ``because the seaman in good faith has reported or is 
about to report to the Coast Guard that the seaman believes that'' a 
violation of Subtitle II had occurred. Public Law 98-557, sec. 13(a), 
98 Stat. at 2863. It permitted seamen to bring actions in U.S. district 
courts seeking relief for alleged retaliation in violation of the Act. 
Id. sec. 13(a), 98 Stat. at 2863-64.
    In 2002, Congress amended SPA. Section 428 of the Maritime 
Transportation Security Act of 2002, Public Law 107-295, 116 Stat. at 
2064 (2002), altered both the protections afforded and remedies 
permitted by the Act. First, Congress removed the specific list of 
actors who were prohibited from retaliating against seamen and replaced 
that text with ``[a] person.'' Public Law 107-295, sec. 428(a), 116 
Stat. at 2127. Second, Congress expanded the existing description of 
protected activity to include reports to ``the Coast Guard or other 
appropriate Federal agency or department,'' rather than only to the 
Coast Guard, and violations ``of a maritime safety law or regulation 
prescribed under that law or regulation,'' rather than only of Subtitle 
II and its accompanying regulations. Id. Third, Congress added a second 
type of protected activity; a seaman who ``refused to perform duties 
ordered by the seaman's employer because the seaman has a reasonable 
apprehension or expectation that performing such duties would result in 
serious injury to the seaman, other seamen, or the public'' was granted 
protection from retaliation for such a refusal. Id. The new text 
clarified that, ``[t]o qualify for protection against the seaman's 
employer under paragraph (1)(B), the employee must have sought from the 
employer, and been unable to obtain, correction of the unsafe 
condition.'' Id. The amended statute further explained that ``[T]he 
circumstances causing a seaman's apprehension of serious injury under 
paragraph (1)(B) must be of such a nature that a reasonable person, 
under similar circumstances, would conclude that there is a real danger 
of an injury or serious impairment of health resulting from the 
performance of duties as ordered by the seaman's employer.'' Public Law 
107-295, sec. 428, 116 Stat. at 2127.
    Congress made additional changes to the Act, including those that 
led OSHA to initiate this rulemaking, on October 15, 2010. Section 611 
of the Coast Guard Authorization Act of 2010, Public Law 111-281, 124 
Stat. at 2905 (2010), made further additions to the list of protected 
activities under SPA and fundamentally changed the remedies section of 
the Act. Section 611 added to subsection (a) the following protected 
activities: The seaman testified in a proceeding brought to enforce a 
maritime safety law or regulation; the seaman notified, or attempted to 
notify, the vessel owner or the Secretary [of the department in which 
the Coast Guard is operating \1\] of a work-related personal injury or 
work-related illness of a seaman; the seaman cooperated with a safety 
investigation by the Secretary [of the department in which the Coast 
Guard is operating] or the National Transportation Safety Board; the 
seaman furnished information to the Secretary [of the department in 
which the Coast Guard is operating], the National Transportation Safety 
Board, or any other public official as to the facts relating to any 
marine casualty resulting in injury or death to an individual or damage 
to property occurring in connection with vessel transportation; and the 
seaman accurately reported hours of duty under this part.
---------------------------------------------------------------------------

    \1\ The text of 46 U.S.C. 2114 refers to ``the Secretary,'' 
defined for purposes of Part A of Subtitle II as ``the Secretary of 
the department in which the Coast Guard is operating.'' 46 U.S.C. 
2101(34). The Coast Guard is currently part of the Department of 
Homeland Security.
---------------------------------------------------------------------------

    Congress replaced section (b) of SPA, which had provided a private 
right of action to seamen and described relief a court could award, in 
its entirety. The new text provides that a seaman alleging discharge or 
discrimination in violation of subsection (a) of this section, or 
another person at the seaman's request, may file a complaint with 
respect to such allegation in the same manner as a complaint may be 
filed under

[[Page 63397]]

subsection (b) of section 31105 of title 49. Such complaint is subject 
to the procedures, requirements, and rights described in that section, 
including with respect to the right to file an objection, the right of 
a person to file for a petition for review under subsection (c) of that 
section, and the requirement to bring a civil action under subsection 
(d) of that section.
    Id. Section 31105 of title 49 is the whistleblower protection 
provision of the Surface Transportation Assistance Act (STAA), 49 
U.S.C. 31105. STAA provides that initial complaints regarding 
retaliation under that statute are to be filed with and handled by the 
Secretary of Labor (Secretary), sec. 31105(b)-(e), and the Secretary 
has delegated his authority in this regard to OSHA. Secretary's Order 
1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012). The Secretary has 
also delegated to OSHA his authority under SPA. Id. at 3913. Hearings 
on objections to findings by the Assistant Secretary for OSHA 
(Assistant Secretary) are conducted by the Office of Administrative Law 
Judges, and appeals from decisions by ALJs are decided by the 
Department of Labor's Administrative Review Board (ARB). Secretary's 
Order 1-2010, 75 FR 3924-01 (Jan. 25, 2010).
    OSHA is promulgating this final rule to finalize procedures for the 
handling of whistleblower protection complaints under SPA and address 
certain interpretative issues raised by the statute. To the extent 
possible within the bounds of applicable statutory language, these 
regulations are designed to be consistent with the procedures applied 
to claims under STAA, and the other whistleblower protection statutes 
administered by OSHA, including the Energy Reorganization Act (ERA), 42 
U.S.C. 5851; the Wendell H. Ford Aviation Investment and Reform Act for 
the 21st Century (AIR21), 49 U.S.C. 42121; Title VIII of the Sarbanes-
Oxley Act of 2002 (SOX), 18 U.S.C. 1514A; and the Consumer Product 
Safety Improvement Act, 15 U.S.C. 2087.

II. Summary of Statutory Procedures

    As explained above, SPA adopts the process for filing a complaint 
established under subsection (b) of STAA. 46 U.S.C. 2114(b). It further 
incorporates the other ``procedures, requirements, and rights described 
in'' STAA, id., described below. OSHA therefore understands SPA to 
incorporate STAA subsections (b) through (g). SPA's text could cause 
confusion regarding which sections of STAA it adopts by referring, in 
some cases incorrectly,\2\ to certain sections while not mentioning 
others.\3\ The text refers to those sections following the word 
``including,'' however, with no suggestion that the subsequent list is 
meant to be exclusive. Accordingly, OSHA will not treat it as such, 
and, as explained below, promulgates regulations to implement the 
procedures described in 49 U.S.C. 31105(b)-(g). OSHA does not read SPA 
as incorporating 49 U.S.C. 31105 (a), (h), (i) and (j) because those 
provisions are substantive and specific to STAA or agencies other than 
the Department of Labor rather than describing ``procedures, 
requirements, and rights.'' The statutory procedures applicable to SPA 
claims are summarized below.
---------------------------------------------------------------------------

    \2\ Specifically, the Act's adoption of STAA's ``procedures, 
requirements, and rights'' is followed by the text ``including with 
respect to the right to file an objection, the right of a person to 
file for a petition for review under subsection (c) of [STAA], and 
the requirement to bring a civil action under subsection (d) of that 
section.'' 46 U.S.C. 2114(b). But section (c) addresses de novo 
review in the district court if the Secretary has not issued a final 
decision after 210 days; section (d) addresses filing a petition for 
review after receiving an adverse order following a hearing; and 
section (e) provides that ``[i]f a person fails to comply with an 
order issued under subsection (b) of this section, the Secretary of 
Labor shall bring a civil action to enforce the order in the 
district court of the United States for the judicial district in 
which the violation occurred.'' 49 U.S.C. 31105(c)-(e).
    \3\ Section (f) declares that STAA does not preempt any other 
federal or state law safeguarding against retaliation; section (g) 
declares that STAA does not diminish any legal rights of any 
employee, nor may the rights of the section be waived; section (h) 
prohibits the disclosure by the Secretary of Transportation or the 
Secretary of Homeland Security of the identity of an employee who 
provides information about an alleged violation of the statute 
except, under certain circumstances, to the Attorney General; 
section (i) creates a process for reporting security problems to the 
Department of Homeland Security; and section (j) defines the term 
``employee'' for purposes of STAA. 49 U.S.C. 31105(f)-(j).
---------------------------------------------------------------------------

Filing of SPA Complaints

    A seaman, or another person at the seaman's request, alleging a 
violation of SPA, may file a complaint with the Secretary not later 
than 180 days after the alleged retaliation.

Legal Burdens of Proof for SPA Complaints

    STAA states that STAA whistleblower complaints will be governed by 
the legal burdens of proof set forth in AIR21, 49 U.S.C. 42121(b), 
which contains whistleblower protections for employees in the aviation 
industry. 49 U.S.C. 31105(b)(1). Accordingly, these burdens of proof 
also govern SPA whistleblower complaints.
    Under AIR21, a violation may be found only if the complainant 
demonstrates that protected activity was a contributing factor in the 
adverse action described in the complaint. 49 U.S.C. 
42121(b)(2)(B)(iii). Relief is unavailable if the employer demonstrates 
by clear and convincing evidence that it would have taken the same 
adverse action in the absence of the protected activity. 49 U.S.C. 
42121(b)(2)(B)(iv); Vieques Air Link, Inc. v. Dep't of Labor, 437 F.3d 
102, 108-09 (1st Cir. 2006) (per curiam) (burdens of proof under 
AIR21); Formella v. U.S. Dep't of Labor, 628 F.3d 381, 389 (7th Cir. 
2010) (explaining that because it incorporates the burdens of proof set 
forth in AIR21, STAA requires only a showing that the protected 
activity was a contributing factor, not a but-for cause, of the adverse 
action.).

Written Notice of Complaint and Findings

    Under 49 U.S.C. 31105(b), upon receipt of the complaint, the 
Secretary must provide written notice of the filing of the complaint to 
the person or persons alleged in the complaint to have violated the Act 
(respondent). 49 U.S.C. 31105(b).
    Within 60 days of receipt of the complaint, the Secretary must 
conduct an investigation of the allegations, decide whether it is 
reasonable to believe the complaint has merit, and provide written 
notification to the complainant and the respondent of the investigative 
findings.

Remedies

    If the Secretary decides it is reasonable to believe a violation 
occurred, the Secretary shall include with the findings a preliminary 
order for the relief provided for under 49 U.S.C. 31105(b)(3). This 
order shall require the respondent to take affirmative action to abate 
the violation; reinstate the complainant to the former position with 
the same pay and terms and privileges of employment; and pay 
compensatory damages, including back pay with interest and compensation 
for any special damages sustained as a result of the discrimination, 
including litigation costs, expert witness fees, and reasonable 
attorney fees. Additionally, if the Secretary issues a preliminary 
order and the complainant so requests, the Secretary may assess against 
the respondent the costs, including attorney fees, reasonably incurred 
by the complainant in bringing the complaint. Punitive damages of up to 
$250,000.00 are also available.

Hearings

    STAA also provides for hearings. 49 U.S.C. 31105(b), Specifically, 
the complainant and the respondent have

[[Page 63398]]

30 days after the date of the Secretary's notification in which to file 
objections to the findings and/or preliminary order and request a 
hearing. The filing of objections does not stay a reinstatement ordered 
in the preliminary order. If a hearing is not requested within 30 days, 
the preliminary order becomes final and is not subject to judicial 
review.
    If a hearing is held, it is to be conducted expeditiously. The 
Secretary shall issue a final order within 120 days after the 
conclusion of any hearing. The final order may provide appropriate 
relief or deny the complaint. Until the Secretary's final order is 
issued, the Secretary, the complainant, and the respondent may enter 
into a settlement agreement that terminates the proceeding.

De Novo Review

    STAA provides for de novo review of a whistleblower claim by a 
United States district court in the event that the Secretary has not 
issued a final decision within 210 days after the filing of a complaint 
and the delay is not due to the complainant's bad faith. 49 U.S.C. 
31105(c). The provision states that the court will have jurisdiction 
over the action without regard to the amount in controversy and that 
the case will be tried before a jury at the request of either party.

Judicial Review

    STAA provides that within 60 days of the issuance of the 
Secretary's final order following a hearing, any person adversely 
affected or aggrieved by the Secretary's final order may file an appeal 
with the United States Court of Appeals for the circuit in which the 
violation occurred or the circuit where the complainant resided on the 
date of the violation. 49 U.S.C. 31105(d).

Civil Actions To Enforce

    STAA provides that if a person fails to comply with an order issued 
by the Secretary under 49 U.S.C. 31105(b) the Secretary of Labor 
``shall bring a civil action to enforce the order in the district court 
of the United States for the judicial district in which the violation 
occurred.'' 49 U.S.C. 31105(e).

Preemption

    STAA clarifies that nothing in the statute preempts or diminishes 
any other safeguards against discrimination provided by Federal or 
State law. 49 U.S.C. 31105(f).

Employee Rights

    STAA states that nothing in STAA shall be deemed to diminish the 
rights, privileges, or remedies of any employee under any Federal or 
State law or under any collective bargaining agreement. 49 U.S.C. 
31105(g). It further states that rights and remedies under 49 U.S.C. 
31105 ``may not be waived by any agreement, policy, form, or condition 
of employment.''

III. Prior Rulemaking

    On February 6, 2013, the OSHA published an IFR for SPA 
whistleblower complaints in the Federal Register establishing the 
procedures and time frames for the handling of retaliation complaints 
under SPA, including procedures and time frames for employee complaints 
to OSHA, investigations by OSHA, objections to OSHA findings and 
preliminary orders, hearings by ALJs, review of ALJ decisions by the 
ARB on behalf of the Secretary, and judicial review of the Secretary's 
final decision. In addition to promulgating the IFR, OSHA's notice 
included a request for public comment on the interim rules by April 8, 
2013. In response to the IFR, two organizations--the Chamber of 
Shipping of America and the Transportation Trades Department, AFL-CIO, 
filed comments with the agency within the public comment period. In 
addition, two individuals--J.I.M. Choate of Stamford, Connecticut, and 
Lee Luttrell of Las Vegas, Nevada, also filed comments with the agency 
within the public comment period. In general, commenters supported the 
IFR's provisions. For example, the Transportation Trades Department 
stated that the IFR provided ``clarity to workers on the actions they 
can take to remedy dangerous situations, while empowering them with a 
well-defined route to pursue when they've been wronged.'' It also 
expressed support for the protection of internal complaints. Docket ID 
OSHA-2011-0841-0005. Only three revisions to the rule were suggested by 
commenters. First, Mr. Choate recommended that references in the rule 
to ``ALJs'' be changed to ``judges'' because he thought that ``ALJ'' 
was ``too informal.'' Docket ID OSHA-2011-0841-0002. However, OSHA's 
use of the term ``ALJ'' appears in many of its other whistleblower 
protection regulations and is useful in distinguishing between 
administrative law judges and Article III judges. The Secretary 
therefore declines to follow this suggestion. Second, the Chamber asked 
the Secretary to adopt a limited exemption from the work refusal 
provision in section 1986.102(c)(2) for emergency situations. Third, 
the Chamber asks that the remedies provisions of sections 1986.109 and 
1986.110 include provisions allowing the award of attorney's fees and 
costs against unsuccessful claimants. Docket ID OSHA-2011-0841-0004. 
The Secretary also disagrees with these suggestions, which will be 
discussed further below. Thus, with the exception of coverage 
provisions, discussed below, the Secretary is carrying over all of the 
provisions of the IFR into this final rule with only minor technical 
revisions.

IV. Summary and Discussion of Regulatory Provisions

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

Section 1986.100 Purpose and Scope
    This section describes the purpose of the regulations implementing 
the SPA whistleblower protection provision and provides an overview of 
the procedures contained in the regulations.
Section 1986.101 Definitions
    This section includes general definitions applicable to the SPA 
whistleblower provision. Most of the definitions are of terms common to 
whistleblower statutes and are defined here as they are elsewhere. Some 
terms call for additional explanation.
    SPA prohibits retaliation by a ``person.'' Title 1 of the U.S. Code 
provides the definition of this term because there is no indication in 
the statute that any other meaning applies. Accordingly, ``person . . . 
include[s] corporations, companies, associations, firms, partnerships, 
societies, and joint stock companies, as well as individuals.'' 1 
U.S.C. 1. This list, as indicated by the word ``include,'' is not 
exhaustive. See Fed. Land Bank v. Bismarck Lumber Co., 314 U.S. 95, 100 
(1941) (``[T]he term `including' is not one of all embracing 
definition, but connotes simply an illustrative application of the 
general principle.'' (citation omitted)). Paragraph (j) accordingly 
defines ``person'' as ``one or more individuals or other entities, 
including but not limited to corporations, companies, associations, 
firms, partnerships, societies, and joint stock companies.''
    SPA protects seamen from retaliation for making certain reports and 
notifications. 46 U.S.C. 2114(a)(1)(A), (D), (G). Paragraphs (h) and 
(k) define ``report'' and ``notify'' both to include ``any oral or 
written communications of a violation.'' This interpretation of the 
statute is consistent with a plain reading of the statutory text and 
best fulfills the purposes of SPA. See Gaffney v. Riverboat Servs. of 
Ind., 451 F.3d 424, 445-46 (7th Cir. 2006) (explaining that to 
interpret SPA's reference to a ``report'' as requiring a formal 
complaint

[[Page 63399]]

``would narrow the statute in a manner that Congress clearly avoided, 
and, in the process, would frustrate the clear purpose of the 
provision''). It is also consistent with the legislative history of the 
statute, which indicates that Congress meant SPA to respond to Donovan 
v. Texaco, 720 F.2d 825 (5th Cir. 1983), a case in which a seaman had 
told the Coast Guard about an unsafe condition by telephone. S. Rep. 
No. 98-454, at 11; Donovan, 720 F.2d at 825; see also Gaffney, 451 F.3d 
at 446 (reasoning that SPA's legislative history, ``coupled with 
Congress' decision not to define `report' in the statute or in the 
course of discussing Donovan in the relevant legislative history,'' 
indicates that SPA ``does not require a formal complaint, or even a 
written statement, as a prerequisite to statutory whistleblower 
protection''); cf. Kasten v. Saint-Gobain Performance Plastics Corp., 
563 U.S. 1 (2011) (holding that the provision of the Fair Labor 
Standards Act that prohibits employers from retaliating against an 
employee because such employee has ``filed any complaint'' protects 
oral complaints).
    In addition, SPA protects seaman complaints and testimony related 
to ``maritime safety law[s] or regulation[s].'' Paragraph (g) defines 
this term as including ``any statute or regulation regarding health or 
safety that applies to any person or equipment on a vessel.'' This 
definition clarifies the meaning of this term in two respects. First, 
though the statutory text refers to ``safety'' the Secretary finds that 
Congress did not intend to exclude regulations that address health 
hazards; rather, it is apparent that no such distinction was intended. 
Compare 46 U.S.C. 2114(a)(1)(B) (protecting refusal to perform a duty 
that would result in a serious injury) with (a)(2) (clarifying that 
circumstances that would justify a refusal to work under (a)(1)(B) are 
those that present a ``real danger of injury or serious impairment of 
health''); see also id. (a)(1)(D) (protecting reports of injuries and 
illnesses). The definition makes clear that laws or regulations 
addressing either maritime safety or health are included.
    Second, because working conditions on vessels can be subject to 
regulation by many agencies, the Secretary interprets ``maritime safety 
law or regulation'' to include all regulations regarding health or 
safety that apply to any person or equipment on a vessel under the 
circumstances at issue. The statute or regulation need not exclusively 
or explicitly serve the purpose of protecting the safety of seamen, or 
promoting safety on vessels, to fall within the meaning of this 
provision of SPA.
    Section 2214(a)(1)(D) of SPA protects a seaman's notification of 
the ``vessel owner'' of injuries and illnesses. This would include all 
notifications to agents of the owner, such as the vessel's master. 2 
Robert Force & Martin J. Norris, The Law of Seamen Sec.  25-1 (5th ed. 
2003). Other parties that may fall within the meaning of ``vessel 
owner'' include an owner pro hac vice, operator, or charter or bare 
boat charterer. 33 U.S.C. 902(21) (defining, for purposes of the 
Longshore and Harbor Workers' Compensation Act (LHWCA), the entities 
liable for negligence of a vessel); Helaire v. Mobil Oil Co., 709 F.2d 
1031, 1041 (5th Cir. 1983) (referring to this list of entities as ``the 
broad definition of `vessel owner' under 33 U.S.C. 902(21)''). 
Paragraph (q) defines ``vessel owner'' as including ``all of the agents 
of the owner, including the vessel's master.''
    SPA protects ``a seaman'' from retaliation, but it does not include 
a definition of ``seaman.'' Thus, OSHA is relying on the Senate Report 
that accompanied the original, 1984 version of SPA. Committee Reports 
on a bill are useful sources for finding the legislature's intent 
because they represent the considered and collective understanding of 
those Members of Congress involved in drafting and studying proposed 
legislation. Garcia v. United States, 469 U.S. 70, 76 (1984). The 
Senate Report indicates that SPA was originally intended to provide a 
remedy for workers whose whistleblower rights under section 11(c) of 
the OSH Act might be not be available in a circuit that follows Donovan 
v. Texaco, 720 F.2d 825 (5th Cir. 1983).\4\ See S. Rep. No. 98-454, at 
11-12 (1984). The Senate Report also provides specific insight as to 
the definition of ``seaman,'' stating that ``the Committee intends the 
term `seaman' to be interpreted broadly, to include any individual 
engaged or employed in any capacity on board a vessel owned by a 
citizen of the United States.'' Id. at 11.
---------------------------------------------------------------------------

    \4\ Nothing in this preamble should be read to suggest that OSHA 
agrees with the holding or rationale of Texaco.
---------------------------------------------------------------------------

    OSHA considered three basic approaches for defining the term 
``seaman'': (a) Mirroring the one established by the Jones Act, 46 
U.S.C. 30104, which reflects general maritime law; (b) as a ``gap 
filler'' available only in situations where workers arguably lack 
protection under section 11(c) of the OSH Act because of Texaco; or (c) 
using the broader definition of ``seaman'' suggested by the legislative 
history of SPA discussed above.
    First, OSHA rejected adopting a definition of ``seaman'' for SPA 
that mirrors the one established by case law under the Jones Act. The 
Jones Act provides that a ``seaman'' injured in the course of 
employment may bring a civil action against his or her employer, 46 
U.S.C. 30104, but, like SPA, the Jones Act does not define the term 
``seaman.'' Looking to general maritime law, the Supreme Court has 
defined the term as including those who have an employment-related 
connection to a vessel in navigation that contributes to the function 
of the vessel or to the accomplishment of its mission, even if the 
employment does not aid in navigation or contribute to the 
transportation of the vessel, McDermott International, Inc. v. 
Wilander, 498 U.S. 337, 355 (1991). Importantly, the Supreme Court 
views the term ``seaman'' as excluding land-based workers; that is, a 
seaman ``must have a connection to a vessel in navigation (or to an 
identifiable group of such vessels) that is substantial in terms of 
both its duration and nature.'' Chandris v. Latsis, 515 U.S. 347, 368 
(1995).
    OSHA is concerned that the Jones Act definition of ``seaman'' is 
more restrictive than the definition of the term reflected in the 
legislative history of the SPA. Were OSHA to adopt the Jones Act 
definition here, certain workers who are employed on vessels in 
significant ways, but who are not ``seamen'' for purposes of the Jones 
Act, would not be protected. For example, certain riverboat pilots 
spend substantial time aboard a vessel in furtherance of its purpose, 
but do not have a connection to a particular vessel or group of 
vessels, so they have been found not to be covered under the Jones Act. 
Bach v. Trident Steamship Co., Inc., 920 F.2d 322, aff'd after remand, 
947 F.2d 1290 (5th Cir. 1991); Blancq v. Hapag-Lloyd A.G., 986 F. Supp. 
376, 379 (E.D. La. 1997). Moreover, there is at least a possibility 
that under the Texaco analysis, a court would find that such pilots 
also lack section 11(c) rights when reporting safety violations aboard 
vessels on which they are working.
    Second, OSHA rejected the approach of defining ``seaman'' as 
applying only to workers who arguably are not covered by section 11(c). 
The legislative history shows that Congress originally passed the SPA 
in response to Texaco: ``This section responds to Donovan v. Texaco, 
(720 F.2d 825 5th Cir. 1983)) in which a seaman was demoted and 
ultimately discharged from his job for reporting a possible safety 
violation to the Coast Guard . . . [This section] establishes a

[[Page 63400]]

new legal remedy for seamen, to protect them against discriminatory 
action due to their reporting a violation of Subtitle II to the Coast 
Guard. The Amendment creates a private right of action similar but not 
identical to that in OSH Act section 11(c).'' S. Rep. No. 98-454, at 
11-12 (1984). But the legislative history in 2010 suggests a broader 
definition for ``seaman,'' which includes workers who may also be 
covered by section 11(c). On a more practical level, OSHA could not 
fashion a clear definition of ``seaman'' that squarely fills the gap 
arguably left by Texaco without requiring agency investigators to 
conduct a complex case-by-case analysis of whether each SPA complainant 
is exempt from the OSH Act under the rationale of Texaco, a holding 
with which the Department does not agree.
    Thus, the final rule adopts the third option--the broader 
definition of ``seaman'' as clarified in the legislative history of 
SPA. The first sentence of paragraph (m) incorporates the language of 
the Senate report to define ``seaman'' insofar as the term includes 
``any individual engage or employed in any capacity on board'' certain 
types of vessels. As indicated in the report, and consistent with the 
remedial purposes of whistleblower protection statutes like SPA, OSHA 
intends that the regulatory language be construed broadly. Whirlpool 
Corporation v. Marshall, 445 U.S. 1, 13 (1980); Bechtel Const. Co. v 
Sec'y of Labor, 50 F.3d 926, 932 (11th Cir. 1995). Workers who are 
seamen for purposes of the Jones Act or general maritime law, see, 
e.g., Chandris, Inc. v. Latsis, 515 U.S. 347, 355 (1995), are covered 
by the definition, as are land-based workers, if they are ``engaged or 
employed . . . on board a vessel'' for some part of their duties. H. 
Rep. No. 111-303, pt. 1, at 119 (2009) (noting that SPA extends 
protections to ``maritime workers'').
    Finally, paragraph (m) includes an additional sentence indicating 
that former seamen and applicants are included in the definition. Such 
language is included in the definition of ``employee'' in the 
regulations governing other OSHA-administered whistleblower protection 
laws, such as STAA (29 CFR 1978.101(h)), the National Transit Systems 
Security Act and the Federal Railroad Safety Act (29 CFR 1982.101(d)), 
SOX (29 CFR 1980.101(g)), and the OSH Act (29 CFR 1977.5(b)). This 
interpretation is consistent with the Supreme Court's reading of the 
term ``employee'' in 42 U.S.C. 2000e-3a, the anti-retaliation provision 
of Title VII of the Civil Rights Act of 1964, to include former 
employees. Robinson v. Shell Oil Co., 519 U.S. 337 (1997). Among the 
Court's reasons for this interpretation was the lack of temporal 
modifiers for the term ``employee''; the reinstatement remedy, which 
only applies to former employees; and the remedial purpose of 
preventing workers from being deterred from whistleblowing because of a 
fear of blacklisting. These reasons apply equally to SPA and the other 
whistleblower provisions enforced by OSHA.
    In the IFR, OSHA sought comments on these alternative approaches to 
defining ``seaman,'' and received no objections to the approach 
described above. OSHA has retained the portion of the definition 
dealing with the functions of a seaman in the final rule. The 
definition of ``seaman'' adopted in these regulations is based on and 
limited to SPA. Nothing should be inferred from the above discussion or 
the regulatory text about the meaning of ``seaman'' under the OSH Act 
or any other statute administered by the Department of Labor.
    Part of the definition of ``seaman'' in the final rule, however, 
has changed from that of the IFR. As in the IFR, the definition of 
``seaman'' limits the term to individuals ``engaged or employed on 
board'' a subset of vessels. Both the IFR and the final rule protect 
individuals working on ``any vessel owned by a citizen of the United 
States,'' but the final rule also extends coverage to individuals 
engaged on ``a U.S. flag vessel.'' Because all U.S.-flag vessels must 
be owned by citizens of the United States, as defined in 46 U.S.C. 
12103 (providing general eligibility requirements for vessel 
documentation) and 46 CFR part 67 Subpart C (defining citizen-owners of 
vessels for the purposes of Coast Guard regulations), covering all 
individuals employed or engaged on U.S.-flag vessels would effectuate 
the Congressional intent that individuals working on any vessel owned 
by a citizen of the United States be regarded as seamen under SPA. S. 
Rep., at 11. Furthermore, since most U.S.-flag vessels are required to 
comply with many Coast Guard maritime safety regulations, such as those 
in 46 CFR Chapter I, Subchapter I (see 46 CFR 90.05-1) (inspected 
vessels), 46 CFR Chapter I, Subchapter C, Part 24 (see 46 CFR 24.05-
1(a) (uninspected vessels), and 46 CFR Chapter I, Subchapter C, Part 28 
(see 46 CFR 28.30(a)) (uninspected commercial fishing industry 
vessels), covering those who work aboard U.S.-flag vessels will 
effectuate one of the main purposes of SPA--to encourage the reporting 
of violations of maritime safety regulations. 46 U.S.C. 2114(a)(1)(A). 
Moreover, determining whether a vessel is a U.S.-flag vessel is easy 
for those who work aboard vessels, as well as for OSHA investigators. 
Also, members of the Armed Forces are not covered under SPA in order 
not to interfere with military necessities. As noted above, OSHA has 
retained within the final rule's definition of ``seaman,'' individuals 
working on vessels owned by ``a citizen of the United States.'' This 
part of the definition is still relevant because it provides coverage 
to employees of foreign-flagged vessels owned by U.S. citizens.
    As in the IFR, the final rule defines the term ``Citizen of the 
United States,'' but OSHA has changed that definition. The IFR defined 
``citizen of the United States'' in 29 CFR 1986.101(d) (2013) as an 
individual who is a national of the United States as defined in section 
101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 
1101(a)(22)), The IFR also defined the phrase to include a corporation, 
partnership, association, or other business entity if the controlling 
interest is owned by citizens of the United States. The controlling 
interest in a corporation is owned by citizens of the United States if 
title to the majority of the stock in the corporation is vested in 
citizens of the United States, the majority of the voting power in the 
corporation is vested in citizens of the United States, there is no 
contract or understanding by which the majority of the voting power in 
the corporation may be exercised, directly or in directly, on behalf of 
a person not a citizen of the United States, and there is no other 
means by which control of the corporation is given to or permitted to 
be exercised by a person not a citizen of the United States.. The 
definition also stated that a corporation is only a citizen of the 
United States if it is incorporated under the laws of the United States 
or a State, its chief executive officer, by whatever title, and the 
chairman of its board of directors are citizens of the United States, 
and no more of its directors are non-citizens than a minority of the 
number necessary to constitute a quorum.
    OSHA is retaining the portion of that definition dealing with the 
criteria for an individual to be a United States citizen for the 
purposes of SPA. As before, a natural person is a ``citizen of the 
United States'' if he or she is a U.S. citizen for purposes of the 
Immigration and Nationality Act--the test used to determine U.S. 
citizenship for natural persons in 46 U.S.C. 104, which applies to all 
of Title 46 of the United States Code on shipping. OSHA is also 
retaining the requirement that the controlling interest of a 
corporation,

[[Page 63401]]

partnership, association, or other business entity interest be owned by 
citizens of the United States, but, after further evaluation of 
relevant statutory provisions and case law, OSHA has decided to 
substantially simplify the description of what it means for U.S. 
citizens to own a ``controlling interest'' in a corporation, 
partnership, association, or other business entity. The lengthy 
provisions of the IFR setting forth these criteria have been replaced 
with a straightforward explanation that the controlling interest in a 
corporation is owned by citizens of the United States if a majority of 
the stockholders are citizens of the United States.
    Finally, OSHA has expressly included corporations ``incorporated 
under the laws of the United States or a State,'' any corporation, 
partnership, association, or other business entity ``whose principal 
place of business or base of operations is in a State,'' and federal 
and state governmental entities within definition of ``Citizen of the 
United States.''
    OSHA decided to make these changes for a number of reasons. First, 
the IFR definition of ``Citizen of United States'' with respect to 
corporate and other juridical entities was derived from a subtitle of 
Title 46 of the United States Code, which is not as closely related to 
the purposes of SPA as the subtitle in which SPA is located. The 
language of the IFR specifying what connections a corporation must have 
with the United States in order to be classified as a ``Citizen of the 
United States'' was derived from 46 U.S.C. 50501. That provision 
specifies which corporations and other entities are deemed to be 
citizens of the United States for the purposes of Subtitle V of Title 
46. That subtitle promotes the development of the U.S. merchant marine 
through financial assistance and promotional programs, among other 
things. SPA, however, is in Subtitle II, Vessels and Seamen, which has 
a major emphasis on maritime safety. See, e.g., Part A--General 
Provisions (including a provision on penalties for the negligent 
operation of vessels (46 U.S.C. 2302) and SPA (46 U.S.C. 2114); Part 
B--Inspection and Regulation of Vessels, including the provisions 
authorizing many Coast Guard maritime safety regulations, such as 46 
U.S.C. 3306 (inspected vessels), 46 U.S.C. 4102 (uninspected vessels), 
and 46 U.S.C. 4502 (uninspected commercial fishing industry vessels)). 
Subtitle II also has provisions on the documentation of U.S. flag 
vessels, including the criteria for U.S. citizen ownership of vessels. 
46 U.S.C. 12103. One of the main purposes of SPA is to encourage the 
reporting of violations of Coast Guard maritime safety regulations. 46 
U.S.C. 2114(a)(1)(A) (prohibiting retaliation against a seaman for 
reporting a violation of maritime safety regulations). Thus, the 
provisions regarding U.S. citizen ownership of vessels in 46 U.S.C. 
50501, which is in Subtitle V, are not appropriate in this context.
    Second, the IFR's criteria for determining if a corporation, 
partnership, association, or other business entity is a U.S. citizen 
were unduly restrictive and thus did not effectuate the Congressional 
intent that the term ``seaman'' in SPA be construed broadly. S. Rep. at 
11. As can be seen from the IFR text above, ownership by a U.S. citizen 
of a controlling interest in the corporation was the sole basis for 
that corporation's U.S. citizenship, and ownership of a controlling 
interest was, itself, defined narrowly. The vesting of title to the 
majority of the corporation's stock in U.S. citizens had to be free of 
any trust or fiduciary obligation in favor of a foreign citizen, a 
majority of the voting power had to be vested in U.S. citizens; there 
could be no contract or understanding by which a majority of the voting 
power in the corporation could have been exercised, directly or 
indirectly, on behalf of a foreign citizen; and there could be no other 
means by which control of the corporation was given to or permitted to 
be exercised by a foreign citizen. Furthermore, the IFR provided that 
the corporation had to be incorporated under the laws of the United 
States or a State; its chief executive officer, by whatever title, and 
the chairman of its board of directors had to be citizens of the United 
States; and no more of its directors could be noncitizens than a 
minority of the number necessary to constitute a quorum. These 
qualifications unnecessarily narrowed the scope of the term ``seaman'' 
in contradiction to the Senate Report, which stated that the term 
``seaman'' should be read broadly. S. Rep. at 11.
    Third, because the test of U.S. citizenship for corporations, 
partnerships, associations, or other business entities turned on the 
criteria for ownership of a controlling interest of these entities, 
most of the definition was complex. Determining whether the criteria 
had been met would have been difficult and time-consuming for workers 
aboard vessels who may want to report violations of maritime safety 
laws or injuries or who want to refuse to perform dangerous work, for 
OSHA whistleblower investigators, and even for supervisors aboard the 
vessels.
    Finally, OSHA decided to expressly include corporations 
incorporated under the laws of the United States or any State and 
corporations, partnerships, associations, and other business entities, 
whose principal places of business or bases of operations are in States 
within the definition of ``Citizen of the United States'' because 
entities such as these have long been considered by courts to be U.S. 
citizens in the maritime context.
    In Lauritzen v. Larsen, 345 U.S. 571 (1953), a leading maritime law 
decision, the Supreme Court set forth a multifactor test for 
determining whether United States law applied to a maritime tort claim. 
One of the most important factors is the citizenship of the defendant 
shipowner, Id. at 587. In reviewing this factor the Court cited with 
approval Gerradin v. United States, 60 F.2d 927 (2nd Cir.), in which 
the court regarded a vessel owner incorporated in New York as a citizen 
of the United States and imposed liability for a maritime injury to a 
cook's mate aboard that vessel, despite the fact that the vessel flew a 
foreign flag. Lauritzen, 345 U.S. at 587, n.24; see also Farmer v. 
Standard Dredging Corp., 167 F. Supp. 381, 383-84 (D. Delaware 1958) 
(applying United States law to maritime injury because shipowner was a 
Delaware corporation); cf., 28 U.S.C. 1332(c)(1) (providing that for 
the purposes of federal court diversity jurisdiction, a corporation is 
citizen of state in which it is incorporated). Since SPA bans 
retaliation for the reporting of maritime injuries, see 46 U.S.C. 
2114(a)(1)(D) and (F), and other related activities, such as the 
reporting of violations of maritime safety regulations, designed to 
prevent injuries, see 46 U.S.C. 2114(a)(1)(A), it is appropriate to 
look to a maritime case such as Lauritzen for guidance.
    A corporation, partnership, association, or other business entity 
will also be regarded as a citizen of the United States if its 
principal place of business or base of operations is in a State. The 
location of a shipowner's principal place of business or base of 
operations in the United States is an important factor in favor of 
applying U.S. maritime law. Hellenic Lines Limited v. Rhoditis, 398 
U.S. 306, 308-309 (1970) (applying U.S. law to claims by a permanent 
resident alien seaman aboard foreign-flag vessel where base of 
operations of defendant corporate shipowner was in the United States); 
cf. 28 U.S.C. 1332(c) (providing that for the purposes of federal court 
diversity jurisdiction, a corporation is citizen of State in which its 
principal place of business is located).

[[Page 63402]]

    As discussed above, the test for determining if a U.S. citizen 
``owns a controlling interest'' in the corporation has been simplified 
to include situations in which a majority of the corporation's 
stockholders are U.S. citizens. This interpretation is based on 
decisions analyzing the Lauritzen factors, which have relied on U.S, 
citizen stockholder ownership of a foreign corporation to apply U.S. 
law in maritime cases where the vessel was owned by a foreign 
corporation. Sosa v. M/V Lago Izabal, 736 F.2d 1028, 1032 (5th Cir. 
1984); Antypas v. Cia. Maritima San Basilio, S. A., 541 F.2d 307, 310 
(2nd Cir. 1976); Moncada v. Lemuria Shipping Corp., 491 F.2d 470, 473 
(2nd Cir. 1974); Rainbow Line, Inc. v. M/V Tequila, 480 F.2d 1024, 
1026-1027 (2nd Cir. 1973); Bartholomew v. Universe Tankships, 263 F.2d 
437, 442 (2nd Cir. 1959).
    The term ``Citizen of the United States'' is also defined to 
include governmental entities ``of the Federal Government of the United 
States, of a State, or of a political subdivision of State.'' This 
interpretation is based on one of the Coast Guard's definitions of 
citizenship for the purposes of determining eligibility for vessel 
documentation. See 46 CFR 67.41 (providing that a governmental entity 
is citizen for purposes of vessel documentation); 46 CFR 67.3 (defining 
the term ``State'' to include a political subdivision thereof); cf. 46 
U.S.C. 31102 (providing that a civil action in personam in admiralty 
may be brought against the United States for damages caused by a public 
vessel of the United States).
    Paragraph (p) defines ``vessel,'' a term used in the definition of 
``seaman'' and in SPA itself. This definition is taken from Title 46 of 
the U.S. Code and ``includes every description of watercraft or other 
artificial contrivance used, or capable of being used, as a means of 
transportation on water.'' 46 U.S.C. 115; see also 1 U.S.C. 3; Stewart 
v. Dutra Constr. Co., 543 U.S. 481, 496-97 (2005) (analyzing the 
meaning of the term ``vessel,'' as defined by 1 U.S.C. 3, and 
concluding that ``a `vessel' is a watercraft practically capable of 
maritime transportation, regardless of its primary purpose or state of 
transit at a particular moment,'' and thus excludes ships ``taken out 
of service, permanently anchored, or otherwise rendered practically 
incapable of maritime transport'').
Section 1986.102 Obligations and Prohibited Acts
    This section describes the activities that are protected under SPA 
and the conduct that is prohibited in response to any protected 
activities. These protected activities are set out in the statute, as 
described above. Consistent with OSHA's interpretation of other anti-
retaliation provisions, the prohibited conduct includes any form of 
retaliation, including, but not limited to, discharging, demoting, 
suspending, harassing, intimidating, threatening, restraining, 
coercing, blacklisting, or disciplining a seaman. Section 1986.102 
tracks the language of the statute in defining the categories of 
protected activity.
    As with other whistleblower statutes, SPA's provisions describing 
protected activity are to be read broadly. See, e.g., Clean Harbors 
Envtl. Servs., Inc. v. Herman, 146 F.3d 12, 20-21 (1st Cir. 1998) 
(expansively construing language in STAA to facilitate achieving the 
policy goals of encouraging corporate compliance with safety laws and 
employee reports of violations of those laws); Bechtel Constr. Co. v. 
Sec'y of Labor, 50 F.3d 926, 932-33 (11th Cir. 1995) (``[I]t is 
appropriate to give a broad construction to remedial statutes such as 
nondiscrimination provisions in federal labor laws.''); Passaic Valley 
Sewerage Comm'rs v. U.S. Dep't of Labor, 992 F.2d 474, 478 (3d Cir. 
1993) (discussing the ``broad remedial purpose'' of the whistleblower 
provision in the Clean Water Act in expansively interpreting a term in 
that statute). Indeed, SPA's prohibition of discharging or ``in any 
manner'' discriminating against seamen indicates Congress's intent that 
the provision have broad application. See NLRB v. Scrivener, 405 U.S. 
117, 122 (1972) (determining that language in the National Labor 
Relations Act should be read broadly because ``the presence of the 
preceding words `to discharge or otherwise discriminate' reveals, we 
think, particularly by the word `otherwise,' an intent on the part of 
Congress to afford broad rather than narrow protection to the 
employee''); Phillips v. Interior Board of Mine Operations Appeals, 500 
F.2d 772, 782-83 (D.C. Cir. 1974) (relying on Scrivener in reasoning 
that the words ``in any other way discriminate'' in the Mine Safety Act 
support a broad reading of that Act's protections for miners). 
Likewise, the statement in the Senate Report regarding SPA that the 
term ``seaman'' is to be ``interpreted broadly'' further supports the 
premise that Congress did not intend that SPA be construed narrowly. S. 
Rep. No. 98-454, at 11 (1984).
    OSHA therefore will interpret each of the seven types of protected 
activity listed in the Act broadly. Moreover, while SPA, unlike other 
whistleblower statutes, does not contain a provision directly 
protecting all internal complaints by seamen to their superiors, many 
such complaints are covered under the seven specific categories listed 
in the Act. Protection of internal complaints is important because it 
``leverage[s] the government's limited enforcement resources'' by 
encouraging employees to report substandard working conditions to their 
employers. Clean Harbors, 146 F.3d at 19-20. Such protections promote 
the resolution of violations without drawn-out litigation, and the 
``failure to protect internal complaints may have the perverse result 
of encouraging employers to fire employees who believe they have been 
treated illegally before they file a formal complaint.'' Minor v. 
Bostwick Laboratories, Inc., 669 F.3d 428, 437 (4th Cir. 2012). The 
Transportation Trades Department, AFL-CIO, supported this approach in 
its comment, noting that ``internal communication aids in keeping 
vessels safe.'' Docket ID OSHA-2011-0841-0005. In addition, in the 
maritime context, a seaman on a vessel at sea may not be able to 
contact the authorities to correct a dangerous condition, and his or 
her only recourse will be to seek correction from the ship's officers. 
Because internal complaints are an important part of keeping a 
workplace safe, OSHA will give a broad construction to the Act's 
language to ensure that internal complaints are protected as fully as 
possible.
    The statute first prohibits retaliation because ``the seaman in 
good faith has reported or is about to report to the Coast Guard or 
other appropriate Federal agency or department that the seaman believes 
that a violation of a maritime safety law or regulation prescribed 
under that law or regulation has occurred.'' 46 U.S.C. 2114(a)(1)(A). 
One way an employer will know that a seaman ``is about to report'' the 
violation is when the seaman has made an internal complaint and there 
are circumstances from which a reasonable person would understand that 
the seaman will likely report the violation to an agency if the 
violation is not cured. These circumstances might arise from the 
internal report itself (e.g., ``I will contact the authorities if it is 
not fixed''), the seaman's history of reporting similar violations to 
authorities, or other similar considerations. Further, given that a 
seaman may be at sea for extended periods without access to ways of 
reporting a violation, a significant time may elapse between the time 
the

[[Page 63403]]

employer learns of the seaman's intent to report and the time the 
report can actually be made. OSHA will read the phrase ``about to 
report'' broadly to protect the seaman in such a circumstance. 
Furthermore, since one of the main purposes of SPA is to promote the 
provision of accurate information to government agencies about unsafe 
conditions on vessels, OSHA will also read this phrase to protect a 
seaman's refusing to lie to an agency about unsafe vessel conditions or 
protesting being forced to tell such lies. Cf. Donovan on Behalf of 
Anderson v. Stafford Const. Co., 732 F.2d 954, 959-60 (D.C. Cir. 1984) 
(employee's telling company officials that she would not lie to Mine 
Safety and Health Administration investigators is activity protected by 
anti-retaliation provision of Federal Mine Safety and Health Act).
    The Act also protects the seaman against discrimination when ``the 
seaman has refused to perform duties ordered by the seaman's employer 
because the seaman has a reasonable apprehension or expectation that 
performing such duties would result in serious injury to the seaman, 
other seamen, or the public.'' 46 U.S.C. 2114(a)(1)(B). To qualify for 
this protection, the seaman ``must have sought from the employer, and 
been unable to obtain, correction of the unsafe condition.'' 46 U.S.C. 
2114(a)(3). Although not stated explicitly, in the Secretary's view, 
the reasonable implication of the statutory language is that the 
seaman's preliminary act of seeking correction of the condition is 
itself protected activity. That is, a seaman who asks his or her 
employer to correct a condition he or she reasonably believes would 
result in serious injury and suffers retaliation because of that 
request before the occasion to refuse to perform the unsafe work arises 
is protected by the Act. Although the literal terms of the Act could be 
read to leave the request for correction required yet unprotected, 
courts reject ``absurd result[s].'' Stone v. Instrumentation Laboratory 
Co., 591 F.3d 239, 243 (4th Cir. 2009) (``Courts will not . . . adopt a 
`literal' construction of a statute if such interpretation would thwart 
the statute's obvious purpose or lead to an `absurd result.' '' 
[quoting Chesapeake Ranch Water Co. v. Board of Comm'rs of Calvert 
County, 401 F.3d 274, 280 (4th Cir. 2005)]). The Agency's 
interpretation is embodied in the last sentence of section 1986.102(c): 
``Any seaman who requests such a correction shall be protected against 
retaliation because of the request.''
    The Chamber of Shipping of America submitted a comment generally 
supportive of the right to refuse unsafe work recognized by section 
1986.102(c)(2). Every employee, the Chamber agreed, ``has not only a 
right but a responsibility to report unsafe working conditions to their 
supervisor in order that these concerns can be addressed before work 
begins.'' It said that its members have enacted policies which 
recognize that ``every mariner on board a ship ``is a part of the 
workplace safety team,'' and Chamber members ``agree that the best 
protection against future claims of retaliation is the creation of a 
reporting process for employees to use when the have safety concerns 
which necessarily must include actions taken by senior officers on 
board as well as shore management in response to those concerns.'' 
Docket ID OSHA-2011-0841-0004.
    However, while supporting a seaman's the right to refuse unsafe 
work (once correction has been sought) in the context of normal 
operating conditions of the vessel, the Chamber argued that there 
should be no such protection in emergency conditions. For example, the 
Chamber noted, heavy weather, a sea rescue, or a shipboard emergency, 
such as fire, may jeopardize the ship and all who are aboard her, and 
in these situations actions may be necessary that would ``give any 
reasonable individual a reasonable apprehension of injury even in light 
of the advanced training skills possessed by mariners.'' In these 
situations ``it is absolutely critical that senior officers managing 
the emergency be able to issue orders to mariners and expect them to be 
followed in order to execute the necessary and timely response.'' Thus, 
the Chamber suggested amending section 1986.102(c)(2) as follows 
(additions italicized):

    Refused to perform duties associated with the normal operation 
of the vessel, ordered by the seaman's employer because the seaman 
has a reasonable apprehension or expectation that performing such 
duties would result in serious injury to the seaman, other seamen, 
or the public. Prohibited acts do not include duties ordered by the 
seaman's employer deemed necessary to protect the lives of the crew 
in emergency situations.

Docket ID OSHA-2011-0841-0004.
    OSHA recognizes that a ship-owner and its agents must be able to 
respond effectively to an emergency that threatens the ship and those 
aboard her. However, OSHA has decided against amending the regulation 
as suggested by the Chamber. The work refusal provision in the 
regulation is taken directly from the statute (sec. 2114(a)(1)(B)), and 
there is nothing in the statutory language that explicitly limits the 
refusal right in emergencies. Moreover, the language proposed by the 
Chamber could shift the balance struck by Congress between the employer 
and seaman by giving the employer the ability to chill refusals to work 
by interpreting ``emergency situations'' broadly. Such a result would 
be counter to the broad remedial purpose of the statute. Moreover, the 
record contains insufficient information from which to shape the 
contours of an appropriate rule, and the Secretary is unaware of any 
such cases that have arisen under the statute.
    Nonetheless, there may be some situations in which it would be 
inappropriate to award relief to a seaman who had refused to engage in 
lifesaving activities in an emergency situation. It would be 
problematic to interpret the statutory work refusal provision in sec. 
2114(a)(1)(B)--which is aimed at the safety of seaman--in a way that 
might actually directly endanger them. However, the Secretary believes 
that these situations will be rare and are better decided on a case-by-
case basis in the context of adjudication rather than through a 
categorical rule. Factors to be considered in such situations could 
include, but are not necessarily limited to, the nature of the 
emergency, the work ordered to be performed, the seaman's training and 
duties, and the opportunities that existed to do the work in a safer 
way.
    SPA provides protection to certain other types of internal 
communications. It covers the situation where ``the seaman notified, or 
attempted to notify, the vessel owner or the Secretary [of the 
department in which in Coast Guard is operating] of a work-related 
personal injury or work-related illness of a seaman.'' 46 U.S.C. 
2114(a)(1)(D). As noted above, this covers oral, written and electronic 
communications to any agent of the vessel's owner. SPA also disallows 
retaliation because ``the seaman accurately reported hours of duty 
under this part.'' 46 U.S.C. 2114(a)(1)(G). In keeping with the 
discussion above, this language too should be interpreted in favor of 
broad protection for seamen should a question of its meaning arise.
    Finally, consistent with the broad interpretation of the statute as 
discussed above, OSHA believes that most reports required by the U.S. 
Coast Guard under 46 CFR parts 4.04 and 4.05 are protected by SPA.
Section 1986.103 Filing of Retaliation Complaints
    This section describes the process for filing a complaint alleging 
retaliation in violation of SPA. The procedures described are 
consistent with those

[[Page 63404]]

governing complaints under STAA as well as other whistleblower statutes 
OSHA administers.
    Under paragraph (a), complaints may be filed by a seaman or, with 
the seaman's consent, by any person on the seaman's behalf. Paragraph 
(b) provides that complaints filed under SPA need not be in any 
particular form; they may be either oral or in writing. If the 
complainant is unable to file the complaint in English, OSHA will 
accept the complaint in any language. Paragraph (c) explains with whom 
in OSHA complaints may be filed.
    Paragraph (d) addresses timeliness. To be timely, a complaint must 
be filed within 180 days of the occurrence of the alleged violation. 
Under Supreme Court precedent, a violation occurs when the retaliatory 
decision has been both ``made and communicated to'' the complainant. 
Del. State College v. Ricks, 449 U.S. 250, 258 (1980). In other words, 
the limitations period commences once the employee is aware or 
reasonably should be aware of the employer's decision. EEOC v. United 
Parcel Serv., 249 F.3d 557, 561-62 (6th Cir. 2001). A complaint will be 
considered filed on the date of postmark, facsimile transmittal, 
electronic communication transmittal, telephone call, hand-delivery, 
delivery to a third-party commercial carrier, or in-person filing at an 
OSHA office. The regulatory text indicates that filing deadlines may be 
tolled based on principles developed in applicable case law. Donovan v. 
Hahner, Foreman & Harness, Inc., 736 F.2d 1421, 1423-29 (10th Cir. 
1984).
    Paragraph (e), which is consistent with provisions implementing 
other OSHA whistleblower programs, describes the relationship between 
section 11(c) complaints and SPA whistleblower complaints. Section 
11(c) of the OSH Act, 29 U.S.C. 660(c), generally prohibits employers 
from retaliating against employees for filing safety or health 
complaints or otherwise initiating or participating in proceedings 
under the OSH Act. Some of the activity protected by SPA, including 
maritime safety complaints and work refusals, may also be covered under 
section 11(c), though the geographic limits of section 4(a) of the OSH 
Act, 29 U.S.C. 653(a), which are applicable to section 11(c), do not 
apply to SPA.\5\ Paragraph (e) states that SPA whistleblower complaints 
that also allege facts constituting a section 11(c) violation will be 
deemed to have been filed under both statutes. Similarly, section 11(c) 
complaints that allege facts constituting a violation of SPA will also 
be deemed to have been filed under both laws. In these cases, normal 
procedures and timeliness requirements under the respective statutes 
and regulations will apply.
---------------------------------------------------------------------------

    \5\ SPA contains no geographic limit; its scope is limited only 
by the definition of ``seaman.''
---------------------------------------------------------------------------

    OSHA notes that a complaint of retaliation filed with OSHA under 
SPA is not a formal document and need not conform to the pleading 
standards for complaints filed in federal district court articulated in 
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. 
Iqbal, 556 U.S. 662 (2009). Sylvester v. Parexel Int'l, Inc., No. 07-
123, 2011 WL 2165854, at *9-10 (ARB May 26, 2011) (holding 
whistleblower complaints filed with OSHA under analogous provisions in 
the Sarbanes-Oxley Act need not conform to federal court pleading 
standards). Rather, the complaint filed with OSHA under this section 
simply alerts the Agency to the existence of the alleged retaliation 
and the complainant's desire that the Agency investigate the complaint. 
Upon the filing of a complaint with OSHA, the Assistant Secretary is to 
determine whether ``the complaint, supplemented as appropriate by 
interviews of the complainant'' alleges ``the existence of facts and 
evidence to make a prima facie showing.'' 29 CFR 1986.104(e). As 
explained in section 1986.104(e), if the complaint, supplemented as 
appropriate, contains a prima facie allegation, and the respondent does 
not show clear and convincing evidence that it would have taken the 
same action in the absence of the alleged protected activity, OSHA 
conducts an investigation to determine whether there is reasonable 
cause to believe that retaliation has occurred. See 49 U.S.C. 
42121(b)(2), 29 CFR 1986.104(e).
Section 1986.104 Investigation
    This section describes the procedures that apply to the 
investigation of complaints under SPA. Paragraph (a) of this section 
outlines the procedures for notifying the parties and the U.S. Coast 
Guard of the complaint and notifying the respondent of its rights under 
these regulations. Paragraph (b) describes the procedures for the 
respondent to submit its response to the complaint. Paragraph (c) 
explains that the Agency will share respondent's submissions with the 
complainant, with redactions in accordance with the Privacy Act of 
1974, 5 U.S.C. 552a, et seq., and other applicable confidentiality laws 
as necessary, and will permit the complainant to respond to those 
submissions. The Agency expects that sharing information with 
complainants will assist it in conducting full and fair investigations 
and thoroughly assessing defenses raised by respondents. Paragraph (d) 
of this section discusses the confidentiality of information provided 
during investigations.
    Paragraph (e) sets forth the applicable burdens of proof. As 
discussed above, SPA adopts the relevant provisions of STAA, which in 
turn adopts the burdens of proof under AIR21. Dady v. Harley Marine 
Services, Inc., Nos. 13-076, 13-077, 2015 WL 4674602, at *3 (ARB July 
21, 2015), petition filed, (11th Cir. Sept. 14. 2015) (No. 15-14110). A 
complainant must make an initial prima facie showing that protected 
activity was ``a contributing factor'' in the adverse action alleged in 
the complaint, i.e., that the protected activity, alone or in 
combination with other factors, affected in some way the outcome of the 
employer's decision. Ferguson v. New Prime, Inc., No. 10-75, 2011 WL 
4343278, at *3 (ARB Aug. 31, 2011); Clarke v. Navajo Express, No. 09-
114, 2011 WL 2614326, at *3 (ARB June 29, 2011). The complainant will 
be considered to have met the required burden if the complaint on its 
face, supplemented as appropriate through interviews of the 
complainant, alleges the existence of facts and either direct or 
circumstantial evidence to meet the required showing. The complainant's 
burden may be satisfied, for example, if he or she shows that the 
adverse action took place shortly after protected activity, giving rise 
to the inference that it was a contributing factor in the adverse 
action.
    If the complainant does not make the required prima facie showing, 
the investigation must be discontinued and the complaint dismissed. 
Trimmer v. U.S. Dep't of Labor, 174 F.3d 1098, 1101 (10th Cir. 1999) 
(noting that the burden-shifting framework of the ERA, which is the 
same framework now found in STAA and therefore SPA, served a 
``gatekeeping function'' that ``stemm[ed] frivolous complaints''). Even 
in cases where the complainant successfully makes a prima facie 
showing, the investigation must be discontinued if the employer 
demonstrates, by clear and convincing evidence, that it would have 
taken the same adverse action in the absence of the protected activity. 
Thus, OSHA must dismiss a complaint under SPA and not investigate (or 
cease investigating) if either: (1) The complainant fails to meet the 
prima facie showing that the protected activity was a contributing 
factor in the adverse action; or (2) the employer rebuts that showing 
by clear and convincing evidence that it would have taken the same 
adverse action absent the protected activity.

[[Page 63405]]

    Paragraph (f) describes the procedures the Assistant Secretary will 
follow prior to the issuance of findings and a preliminary order when 
the Assistant Secretary has reasonable cause to believe that a 
violation has occurred. Its purpose is to ensure compliance with the 
Due Process Clause of the Fifth Amendment, as interpreted by the 
Supreme Court in Brock v. Roadway Express, Inc., 481 U.S. 252 (1987) 
(requiring OSHA to give a STAA respondent the opportunity to review the 
substance of the evidence and respond, prior to ordering preliminary 
reinstatement).
Section 1986.105 Issuance of Findings and Preliminary Orders
    This section provides that, within 60 days of the filing of a 
complaint and on the basis of information obtained in the 
investigation, the Assistant Secretary will issue written findings 
regarding whether there is reasonable cause to believe that the 
complaint has merit. If the Assistant Secretary concludes that there is 
reasonable cause to believe that the complaint has merit, the Assistant 
Secretary will order appropriate relief, including: A requirement that 
the person take affirmative action to abate the violation; 
reinstatement to the seaman's former position; compensatory damages, 
including back pay with interest and damages such as litigation fees 
and costs; and punitive damages up to $250,000, where appropriate. 
Affirmative action to abate the violation includes a variety of 
measures, such as posting notices about SPA orders and rights, as well 
as expungement of adverse comments in a personnel record. Scott v. 
Roadway Express, Inc., No. 01-065, 2003 WL 21269144, at *1-2 (ARB May 
29, 2003) (posting notices of STAA orders and rights); Pollock v. 
Continental Express, Nos. 07-073, 08-051, 2010 WL 1776974, at *9 (ARB 
Apr. 7, 2010) (expungement of adverse references).
    The findings and, where appropriate, the preliminary order, advise 
the parties of their right to file objections to the findings and the 
preliminary order of the Assistant Secretary and to request a hearing. 
If no objections are filed within 30 days of receipt of the findings, 
the findings and any preliminary order of the Assistant Secretary 
become the final decision and order of the Secretary. If objections are 
timely filed, any order of preliminary reinstatement will take effect, 
but the remaining provisions of the order will not take effect until 
administrative proceedings are completed.
    In appropriate circumstances, in lieu of preliminary reinstatement, 
OSHA may order that the complainant receive the same pay and benefits 
that he or she received prior to his termination, but not actually 
return to work. Smith v. Lake City Enterprises, Inc., Nos. 09-033, 08-
091, 2010 WL 3910346, at *8 (ARB Sept. 24, 2010) (holding that an 
employer who violated STAA was to compensate the complainant with 
``front pay'' when reinstatement was not possible). Such front pay or 
economic reinstatement is also employed in cases arising under section 
105(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 
815(c)(2). Sec'y of Labor ex rel. York v. BR&D Enters., Inc., 23 FMSHRC 
697, 2001 WL 1806020, at *1 (ALJ June 26, 2001). Front pay has been 
recognized as a possible remedy in cases under the whistleblower 
statutes enforced by OSHA in circumstances where reinstatement would 
not be appropriate. Hagman v. Washington Mutual Bank, , ALJ No. 2005-
SOX-73, 2006 WL 6105301, at *32 (Dec. 19, 2006) (noting that while 
reinstatement is the ``preferred and presumptive remedy'' under 
Sarbanes-Oxley, ``[f]ront pay may be awarded as a substitute when 
reinstatement is inappropriate due to: (1) An employee's medical 
condition that is causally related to her employer's retaliatory action 
. . .; (2) manifest hostility between the parties . . .; (3) the fact 
that claimant's former position no longer exists . . .; or (4) the fact 
that employer is no longer in business at the time of the decision''); 
Hobby v. Georgia Power Co., ARB No. 98-166, ALJ No. 1990-ERA-30 (ARB 
Feb. 9, 2001) (noting circumstances in which front pay may be available 
in lieu of reinstatement but ordering reinstatement); Brown v. Lockheed 
Martin Corp., ALJ No. 2008-SOX-49, 2010 WL 2054426, at *55-56 (Jan. 15, 
2010) (same). Congress intended that seamen be preliminarily reinstated 
to their positions if OSHA finds reasonable cause to believe that they 
were discharged in violation of SPA. When OSHA finds a violation, the 
norm is for OSHA to order immediate preliminary reinstatement. Neither 
an employer nor an employee has a statutory right to choose economic 
reinstatement. Rather, economic reinstatement is designed to 
accommodate situations in which evidence establishes to OSHA's 
satisfaction that reinstatement is inadvisable for some reason, 
notwithstanding the employer's retaliatory discharge of the seaman. In 
such situations, actual reinstatement might be delayed until after the 
administrative adjudication is completed as long as the seaman 
continues to receive his or her pay and benefits and is not otherwise 
disadvantaged by a delay in reinstatement. There is no statutory basis 
for allowing the employer to recover the costs of economically 
reinstating a seaman should the employer ultimately prevail in the 
whistleblower adjudication.
    In ordering interest on back pay, the Secretary has determined 
that, instead of computing the interest due by compounding quarterly 
the Internal Revenue Service interest rate for the underpayment of 
taxes, which under 26 U.S.C. 6621 is generally the Federal short-term 
rate plus three percentage points, interest will be compounded daily. 
The Secretary believes that daily compounding of interest better 
achieves the make-whole purpose of a back pay award. Daily compounding 
of interest has become the norm in private lending and recently was 
found to be the most appropriate method of calculating interest on back 
pay by the National Labor Relations Board. Jackson Hosp. Corp. v. 
United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & 
Serv. Workers Int'l Union, 356 NLRB No. 8, 2010 WL 4318371, at *3-4 
(2010). Additionally, interest on tax underpayments under the Internal 
Revenue Code, 26 U.S.C. 6621, is compounded daily pursuant to 26 U.S.C. 
6622(a).

Subpart B--Litigation

Section 1986.106 Objections to the Findings and the Preliminary Order 
and Request for a Hearing
    To be effective, objections to the findings of the Assistant 
Secretary must be in writing and must be filed with the Chief 
Administrative Law Judge within 30 days of receipt of the findings. The 
date of the postmark, facsimile transmittal, or electronic 
communication transmittal is considered the date of the filing; if the 
objection is filed in person, by hand-delivery or other means, the 
objection is filed upon receipt. The filing of objections also is 
considered a request for a hearing before an ALJ. Although the parties 
are directed to serve a copy of their objections on the other parties 
of record and the OSHA official who issued the findings, the failure to 
serve copies of the objections on the other parties of record does not 
affect the ALJ's jurisdiction to hear and decide the merits of the 
case. Shirani v. Calvert Cliffs Nuclear Power Plant, Inc., No. 04-101, 
2005 WL 2865915, at *7 (ARB Oct. 31, 2005).
    A respondent may file a motion to stay OSHA's preliminary order of 
reinstatement with the Office of

[[Page 63406]]

Administrative Law Judges. However, a stay will be granted only on the 
basis of exceptional circumstances. OSHA believes that a stay of the 
Assistant Secretary's preliminary order of reinstatement would be 
appropriate only where the respondent can establish the necessary 
criteria for a stay, i.e., the respondent would suffer irreparable 
injury; the respondent is likely to succeed on the merits; a balancing 
of possible harms to the parties favors the respondent; and the public 
interest favors a stay.
Section 1986.107 Hearings
    This section adopts the rules of practice and procedure for 
administrative hearings before the Office of Administrative Law Judges 
at 29 CFR part 18 subpart A. This section provides that the hearing is 
to commence expeditiously, except upon a showing of good cause or 
unless otherwise agreed to by the parties. Hearings will be conducted 
de novo on the record. If both the complainant and respondent object to 
the findings and/or preliminary order of the Assistant Secretary, an 
ALJ will conduct a single, consolidated hearing. This section states 
that ALJs have broad power to limit discovery in order to expedite the 
hearing. This furthers an important goal of SPA--to have unlawfully 
terminated seamen reinstated as quickly as possible.
    This section explains that formal rules of evidence will not apply, 
but rules or principles designed to assure production of the most 
probative evidence will be applied. The ALJ may exclude evidence that 
is immaterial, irrelevant, or unduly repetitious. This is consistent 
with the Administrative Procedure Act, which provides at 5 U.S.C. 
556(d): ``Any oral or documentary evidence may be received, but the 
Agency as a matter of policy shall provide for the exclusion of 
irrelevant, immaterial, or unduly repetitious evidence. . . .'' Federal 
Trade Commission v. Cement Institute, 333 U.S. 683, 705-06 (1948) 
(administrative agencies not restricted by rigid rules of evidence). 
Furthermore, it is inappropriate to apply the technical rules of 
evidence in part 18 because OSHA anticipates that complainants will 
often appear pro se, as is the case with other whistleblower statutes 
the Department of Labor administers. Also, hearsay evidence is often 
appropriate in whistleblower cases, as there often is no relevant 
evidence other than hearsay to prove discriminatory intent. ALJs have 
the responsibility to determine the appropriate weight to be given to 
such evidence. For these reasons the interests of determining all of 
the relevant facts are best served by not having strict evidentiary 
rules.
Section 1986.108 Role of Federal Agencies
    Paragraph (a)(1) of this section explains that the Assistant 
Secretary, represented by an attorney from the appropriate Regional 
Solicitor's office, ordinarily will be the prosecuting party in cases 
in which the respondent objects to the findings or the preliminary 
reinstatement order. This has been the practice under STAA, from which 
the SPA's procedures are drawn, and the public interest generally 
requires the Assistant Secretary's participation in such matters. The 
case reports show that there has been relatively little litigation 
under SPA to date, and OSHA believes that relatively few private 
attorneys have developed adequate expertise in representing SPA 
whistleblower complainants.
    Where the complainant, but not the respondent, objects to the 
findings or order, the regulations retain the Assistant Secretary's 
discretion to participate as a party or amicus curiae at any stage of 
the proceedings, including the right to petition for review of an ALJ 
decision.
    Paragraph (a)(2) clarifies that if the Assistant Secretary assumes 
the role of prosecuting party in accordance with paragraph (a)(1), he 
or she may, upon written notice to the other parties, withdraw as the 
prosecuting party in the exercise of prosecutorial discretion. If the 
Assistant Secretary withdraws, the complainant will become the 
prosecuting party and the ALJ will issue appropriate orders to regulate 
the course of future proceedings.
    Paragraph (a)(3) provides that copies of documents in all cases 
must be sent to all parties, or if represented by counsel, to them. If 
the Assistant Secretary is participating in the proceeding, copies of 
documents must be sent to the Regional Solicitor's office representing 
the Assistant Secretary.
    Paragraph (b) states that the U.S. Coast Guard, if interested in a 
proceeding, also may participate as amicus curiae at any time in the 
proceeding. This paragraph also permits the U.S. Coast Guard to request 
copies of all documents, regardless of whether it is participating in 
the case.
Section 1986.109 Decisions and Orders of the Administrative Law Judge
    This section sets forth in paragraph (a) the requirements for the 
content of the decision and order of the ALJ. Paragraphs (a) and (b) 
state the standards for finding a violation under SPA and for 
precluding such a finding.
    Specifically, the complainant must show that the protected activity 
was a ``contributing factor'' in the adverse action alleged in the 
complaint. A contributing factor is ``any factor which, alone or in 
connection with other factors, tends to affect in any way the outcome 
of the decision.'' Clarke, supra, at *3. The complainant (a term that, 
in this paragraph, refers to the Assistant Secretary if he or she is 
the prosecuting party) can succeed by providing either direct or 
indirect proof of contribution. Direct evidence is evidence that 
conclusively connects the protected activity and the adverse action and 
does not rely upon inference. If the complainant does not produce 
direct evidence, he or she must proceed indirectly, or inferentially, 
by proving by a preponderance of the evidence that an activity 
protected by SPA was the true reason for the adverse action. One type 
of indirect, also known as circumstantial, evidence is evidence that 
discredits the respondent's proffered reasons for the adverse action, 
demonstrating instead that they were pretext for retaliation. Id. 
Another type of circumstantial evidence is temporal proximity between 
the protected activity and the adverse action. Ferguson, supra, at *2. 
The respondent may avoid liability if it ``demonstrates by clear and 
convincing evidence'' that it would have taken the same adverse action 
in any event. Clear and convincing evidence is evidence indicating that 
the thing to be proved is highly probably or reasonably certain. 
Clarke, supra, at *3.
    Paragraph (c) provides that the Assistant Secretary's 
determinations about when to proceed with an investigation and when to 
dismiss a complaint without an investigation or without a complete 
investigation are discretionary decisions not subject to review by the 
ALJ. The ALJ therefore may not remand cases to the Assistant Secretary 
to conduct an investigation or make further factual findings. If there 
otherwise is jurisdiction, the ALJ will hear the case on the merits or 
dispose of the matter without a hearing if warranted by the facts and 
circumstances.
    Paragraph (d)(1) describes the remedies that the ALJ may order and 
provides that interest on back pay will be calculated using the 
interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 
and will be compounded daily. (See the earlier discussion of section 
1986.105.) In addition, paragraph (d)(2) in this section requires the 
ALJ to issue an order

[[Page 63407]]

denying the complaint if he or she determines that the respondent has 
not violated SPA.
    The Chamber of Shipping of America requested that section 1986.109 
and .110 be amended to allow awards to employers of attorney fees and 
litigation costs against claimants found to have made frivolous or 
fraudulent claims. Docket ID OSHA-2011-0841-0004. The Secretary 
declines to do so. Under the American Rule, generally parties must bear 
their own costs of litigation unless expressly authorized by Congress. 
Key Tronic v. United States, 511 U.S. 809, 814 (1994); Aleyeska 
Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247 (1975); 
Unbelievable, Inc. v. NLRB, 118 F.3d 795, 805 (D.C. Cir. 1997) (holding 
that the NLRB does not have the authority to depart from the American 
Rule to award attorney's fees incurred because of the assertion of 
frivolous defenses). There is no such expression of intent here: There 
is no language in either SPA or STAA entitling respondents to recover 
attorney's fees. Indeed STAA, which is incorporated by SPA, expressly 
allows successful claimants to recover attorney's fees; the statute's 
failure to make a similar provision for employers only serves to 
underscore the fact that Congress did not intend to award them. 
Similarly, other whistleblower statues that OSHA administers do allow 
respondents to recover for frivolous or bad faith claims. See, e.g., 6 
U.S.C. 1142(c)(3)(D); 15 U.S.C. 2087(b)(3)(C); 49 U.S.C. 
42121(b)(3)(C). This also cuts against the idea that Congress intended 
them here. The Secretary may only award those remedies Congress has 
actually empowered him to award. Filiberti v. Merit Sys. Prot. Bd., 804 
F.2d 1504, 1511-12 (9th Cir. 1986) (citing Civil Aeronautics Board v. 
Delta Air Lines, Inc., 367 U.S. 316, 322 (1961)). Finally, the point of 
SPA is to provide assurance to seamen that they are free to report 
safety concerns. The addition of a potential sanction for filing a 
claim under the Act has the potential to undercut that goal. Thus, OSHA 
rejects the Chamber's suggestion here.
    Paragraph (e) requires that the ALJ's decision be served on all 
parties to the proceeding, the Assistant Secretary, and the Associate 
Solicitor, Division of Occupational Safety and Health, U.S. Department 
of Labor. Paragraph (e) also provides that any ALJ decision requiring 
reinstatement or lifting a preliminary order of reinstatement by the 
Assistant Secretary will be effective immediately upon receipt of the 
decision by the respondent. All other portions of the ALJ's order will 
be effective 14 days after the date of the decision unless a timely 
petition for review has been filed with the ARB.
Section 1986.110 Decisions and Orders of the Administrative Review 
Board
    Paragraph (a) sets forth rules regarding seeking review of an ALJ's 
decision with the ARB. Upon the issuance of the ALJ's decision, the 
parties have 14 days within which to petition the ARB for review of 
that decision. If no timely petition for review is filed with the ARB, 
the decision of the ALJ becomes the final decision of the Secretary and 
is not subject to judicial review. The date of the postmark, facsimile 
transmittal, or electronic communication transmittal is considered the 
date of filing of the petition; if the petition is filed in person, by 
hand delivery or other means, the petition is considered filed upon 
receipt. In addition to being sent to the ARB, the petition is to be 
served on all parties, the Chief Administrative Law Judge, the 
Assistant Secretary, and, in cases in which the Assistant Secretary is 
a party, the Associate Solicitor, Division of Occupational Safety and 
Health, U.S. Department of Labor. Consistent with the procedures for 
petitions for review under other OSHA-administered whistleblower laws, 
paragraph (b) of this section indicates that the ARB has discretion to 
accept or reject review in SPA whistleblower cases. Congress intended 
these whistleblower cases to be expedited, as reflected by the 
provision in STAA, which applies to SPA, providing for a hearing de 
novo in district court if the Secretary has not issued a final decision 
within 210 days of the filing of the complaint. Making review of SPA 
whistleblower cases discretionary may assist in furthering that goal. 
As noted in paragraph (a) of this section, the parties should identify 
in their petitions for review the legal conclusions or orders to which 
they object, or the objections may be deemed waived. The ARB has 30 
days to decide whether to grant the petition for review. If the ARB 
does not grant the petition, the decision of the ALJ becomes the final 
decision of the Secretary.
    When the ARB accepts a petition for review, the ARB will review the 
ALJ's factual determinations under the substantial evidence standard. 
If a timely petition for review is filed with the ARB, any relief 
ordered by the ALJ, except for that portion ordering reinstatement, is 
inoperative while the matter is pending before the ARB. In exceptional 
circumstances, however, the ARB may grant a motion to stay an ALJ's 
order of reinstatement. A stay of a preliminary order of reinstatement 
is appropriate only where the respondent can establish the necessary 
criteria for a stay, i.e., the respondent will suffer irreparable 
injury; the respondent is likely to succeed on the merits; a balancing 
of possible harms to the parties favors the respondent; and the public 
interest favors a stay.
    Paragraph (c) incorporates the statutory requirement that the 
Secretary's final decision be issued within 120 days of the conclusion 
of the hearing. The hearing is deemed concluded 14 days after the date 
of the ALJ's decision unless a motion for reconsideration has been 
filed with the ALJ, in which case the hearing is concluded on the date 
the motion for reconsideration is ruled upon or 14 days after a new ALJ 
decision is issued. This paragraph further provides for the ARB's 
decision in all cases to be served on all parties, the Chief 
Administrative Law Judge, the Assistant Secretary, and the Associate 
Solicitor, Division of Occupational Safety and Health, U.S. Department 
of Labor, even if the Assistant Secretary is not a party.
    Paragraph (d) describes the remedies the ARB can award if it 
concludes that the respondent has violated SPA. (See the earlier 
discussion of remedies at section 1986.105 and .109.) Under paragraph 
(e), if the ARB determines that the respondent has not violated the 
law, it will issue an order denying the complaint.

Subpart C--Miscellaneous Provisions

Section 1986.111 Withdrawal of SPA Complaints, Findings, Objections, 
and Petitions for Review; Settlement
    This section provides procedures and time periods for the 
withdrawal of complaints, the withdrawal of findings and/or preliminary 
orders by the Assistant Secretary, and the withdrawal of objections to 
findings and/or orders. It also provides for approval of settlements at 
the investigative and adjudicative stages of the case.
    Paragraph (a) permits a complainant to withdraw, orally or in 
writing, his or her complaint to the Assistant Secretary at any time 
prior to the filing of objections to the Assistant Secretary's findings 
and/or preliminary order. The Assistant Secretary will confirm in 
writing the complainant's desire to withdraw and will determine whether 
to approve the withdrawal. If approved, the Assistant Secretary will 
notify all parties if the withdrawal is approved. Complaints that are 
withdrawn pursuant to settlement agreements prior to the filing of 
objections must be approved in accordance with the

[[Page 63408]]

settlement approval procedures in paragraph (d). The complainant may 
not withdraw his or her complaint after the filing of objections to the 
Assistant Secretary's findings and/or preliminary order.
    Under paragraph (b), the Assistant Secretary may withdraw his or 
her findings and/or preliminary order at any time before the expiration 
of the 30-day objection period described in section 1986.106, if no 
objection has yet been filed. The Assistant Secretary may substitute 
new findings and/or a preliminary order, and the date of receipt of the 
substituted findings and/or order will begin a new 30-day objection 
period.
    Paragraph (c) addresses situations in which parties seek to 
withdraw either objections to the Assistant Secretary's findings and/or 
preliminary order or petitions for review of ALJ decisions. A party may 
withdraw its objections to the Assistant Secretary's findings and/or 
preliminary order at any time before the findings and/or preliminary 
order become final by filing a written withdrawal with the ALJ. 
Similarly, if a case is on review with the ARB, a party may withdraw 
its petition for review of an ALJ's decision at any time before that 
decision becomes final by filing a written withdrawal with the ARB. The 
ALJ or the ARB, depending on where the case is pending, will determine 
whether to approve the withdrawal of the objections or the petition for 
review. Paragraph (c) clarifies that if the ALJ approves a request to 
withdraw objections to the Assistant Secretary's findings and/or 
preliminary order, and there are no other pending objections, the 
Assistant Secretary's findings and/or preliminary order will become the 
final order of the Secretary. Likewise, if the ARB approves a request 
to withdraw a petition for review of an ALJ decision, and there are no 
other pending petitions for review of that decision, the ALJ's decision 
will become the final order of the Secretary. Finally, paragraph (c) 
provides that if objections or a petition for review are withdrawn 
because of settlement, the settlement must be submitted for approval in 
accordance with paragraph (d).
    Paragraph (d)(1) states that a case may be settled at the 
investigative stage if the Assistant Secretary, the complainant, and 
the respondent agree. The Assistant Secretary's approval of a 
settlement reached by the respondent and the complainant demonstrates 
his or her consent and achieves the consent of all three parties. 
Paragraph (d)(2) permits a case to be settled if the participating 
parties agree and the ALJ before whom the case is pending approves at 
any time after the filing of objections to the Assistant Secretary's 
findings and/or preliminary order. Similarly, if the case is before the 
ARB, the ARB may approve a settlement between the participating 
parties.
    Under paragraph (e), settlements approved by the Assistant 
Secretary, the ALJ, or the ARB will constitute the final order of the 
Secretary and may be enforced pursuant to 49 U.S.C. 31105(e), as 
incorporated by 46 U.S.C. 2114(b).
Section 1986.112 Judicial Review
    This section describes the statutory provisions for judicial review 
of decisions of the Secretary. Paragraph (a) provides that within 60 
days of the issuance of a final order under sections 1986.109 or 
1986.110, a person adversely affected or aggrieved by such order may 
file a petition for review of the order in the court of appeals of the 
United States for the circuit in which the violation allegedly occurred 
or the circuit in which the complainant resided on the date of the 
violation. Paragraph (b) states that a final order will not be subject 
to judicial review in any criminal or other civil proceeding. Paragraph 
(c) requires that in cases where judicial review is sought the ARB or 
ALJ, as the case may be, must submit the record of proceedings to the 
appropriate court pursuant to the Federal Rules of Appellate Procedure 
and the local rules of such court.
Section 1986.113 Judicial Enforcement
    This section provides that the Secretary may obtain judicial 
enforcement of orders, including orders approving settlement 
agreements, by filing a civil action seeking such enforcement in the 
United States district court for the district in which the violation 
occurred.
Section 1986.114 District Court Jurisdiction of Retaliation Complaints 
Under SPA
    This section allows a complainant to bring an action in district 
court for de novo review of the allegations contained in the complaint 
filed with OSHA if there has been no final decision of the Secretary 
and 210 days have passed since the filing of that complaint and the 
delay was not due to the complainant's bad faith. This section reflects 
the Secretary's position that it would not be reasonable to construe 
the statute to permit a complainant to initiate an action in federal 
court after the Secretary issues a final decision, even if the date of 
the final decision is more than 210 days after the filing of the 
administrative complaint. In the Secretary's view, the purpose of the 
``kick out'' provision is to aid the complainant in receiving a prompt 
decision. That goal is not implicated in a situation where the 
complainant already has received a final decision from the Secretary. 
In addition, permitting the complainant to file a new case in district 
court in such circumstances could conflict with the parties' rights to 
seek judicial review of the Secretary's final decision in the court of 
appeals.
    Paragraph (b) of this section requires a complainant to provide a 
file-stamped copy of his or her complaint within seven days after 
filing a complaint in district court to the Assistant Secretary, the 
ALJ, or the ARB, depending on where the proceeding is pending. A copy 
of the complaint also must be provided to the OSHA official who issued 
the findings and/or preliminary order, the Assistant Secretary, and the 
Associate Solicitor, Division of Occupational Safety and Health, U.S. 
Department of Labor. This provision is necessary to notify the Agency 
that the complainant has opted to file a complaint in district court. 
This provision is not a substitute for the complainant's compliance 
with the requirements for service of process of the district court 
complaint contained in the Federal Rules of Civil Procedure and the 
local rules of the district court where the complaint is filed.
Section 1986.115 Special Circumstances; Waiver of Rules
    This section provides that in circumstances not contemplated by 
these rules or for good cause the ALJ or the ARB may, upon application 
and three-day's notice to the parties, waive any rule or issue such 
orders as justice or the administration of SPA's whistleblower 
provision requires.

V. Paperwork Reduction Act

    This rule contains a reporting provision (filing a retaliation 
complaint, Section 1986.103) which was previously reviewed and approved 
for use by the Office of Management and Budget (OMB) under the 
provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13). The 
assigned OMB control number is 1218-0236.

VI. Administrative Procedure Act

    The notice and comment rulemaking procedures of 5 U.S.C.553, a 
provision of the Administrative Procedure Act (APA), do not apply ``to 
interpretative rules, general statements of policy, or rules of agency 
organization, procedure, or practice.'' 5 U.S.C. 553(b)(A). Part 1986 
sets forth interpretive rules and rules of agency procedure and 
practice

[[Page 63409]]

within the meaning of that section. Therefore, publication in the 
Federal Register of a notice of proposed rulemaking and request for 
comments was not required. Although Part 1986 was not subject to the 
notice and comment procedures of the APA, the Assistant Secretary 
sought and considered comments to enable the agency to improve the 
rules by taking into account the concerns of interested persons.
    Furthermore, because this rule is procedural and interpretative 
rather than substantive, the normal requirement of 5 U.S.C. 553(d) that 
a rule be effective 30 days after publication in the Federal Register 
is inapplicable. The Assistant Secretary also finds good cause to 
provide an immediate effective date for this final rule. It is in the 
public interest that the rule be effective immediately so that parties 
may know what procedures are applicable to pending cases. Furthermore, 
most of the provisions of this rule were in the IFR and have already 
been in effect since February 6, 2013.

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

    The Department has concluded that this rule is not a ``significant 
regulatory action'' within the meaning of section 3(f)(4) of Executive 
Order 12866, as reaffirmed by Executive Order 13563, because it is not 
likely to: (1) Have an annual effect on the economy of $100 million or 
more or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities; (2) create a serious inconsistency or otherwise interfere 
with an action taken or planned by another agency; (3) materially alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients thereof; or (4) 
raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in Executive Order 
12866. Therefore, no regulatory impact analysis has been prepared. 
Because no notice of proposed rulemaking was published, no statement is 
required under section 202 of the Unfunded Mandates Reform Act of 1995, 
2 U.S.C. 1532. In any event, this rulemaking is procedural and 
interpretive in nature and is thus not expected to have a significant 
economic impact. Finally, this rule does not have ``federalism 
implications.'' The rule does not have ``substantial direct effects on 
the States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government'' and therefore is not subject to 
Executive Order 13132 (Federalism).

VIII. Regulatory Flexibility Analysis

    The notice and comment rulemaking procedures of section 553 of the 
APA do not apply ``to interpretative rules, general statements of 
policy, or rules of agency organization, procedure, or practice.'' 5 
U.S.C. 553(b)(A). Rules that are exempt from APA notice and comment 
requirements are also exempt from the Regulatory Flexibility Act (RFA). 
See SBA Office of Advocacy, A Guide for Government Agencies: How to 
Comply with the Regulatory Flexibility Act, at 9; also found at: 
https://www.sba.gov/advocacy/guide-government-agencies-how-comply-regulatory-flexibility-act. This is a rule of agency procedure, 
practice, and interpretation within the meaning of 5 U.S.C. 553; and, 
therefore, the rule is exempt from both the notice and comment 
rulemaking procedures of the APA and the requirements under the RFA.

List of Subjects in 29 CFR Part 1986

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

Authority and Signature

    This document was prepared under the direction and control of David 
Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational 
Safety and Health.

    Signed at Washington, DC, on September 1, 2016.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.

0
Accordingly, for the reasons set out in the preamble, 29 CFR part 1986 
is revised to read as follows:

PART 1986--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS 
UNDER THE EMPLOYEE PROTECTION PROVISION OF THE SEAMAN'S PROTECTION 
ACT (SPA), AS AMENDED

Subpart A--Complaints, Investigations, Findings and Preliminary Orders
1986.100 Purpose and scope.
1986.101 Definitions.
1986.102 Obligations and prohibited acts.
1986.103 Filing of retaliation complaints.
1986.104 Investigation.
1986.105 Issuance of findings and preliminary orders.
Subpart B--Litigation
1986.106 Objections to the findings and the preliminary order and 
request for a hearing.
1986.107 Hearings.
1986.108 Role of Federal agencies.
1986.109 Decisions and orders of the administrative law judge.
1986.110 Decisions and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
1986.111 Withdrawal of SPA complaints, findings, objections, and 
petitions for review; settlement.
1986.112 Judicial review.
1986.113 Judicial enforcement.
1986.114 District court jurisdiction of retaliation complaints under 
SPA.
1986.115 Special circumstances; waiver of rules.

    Authority:  46 U.S.C. 2114; 49 U.S.C. 31105; Secretary's Order 
1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012); Secretary of 
Labor's Order No. 2-2012 (Oct. 19, 2012), 77 FR 69378 (Nov. 16, 
2012).

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


Sec.  1986.100  Purpose and scope.

    (a) This part sets forth the procedures for, and interpretations 
of, the Seaman's Protection Act (SPA), 46 U.S.C. 2114, as amended, 
which protects a seaman from retaliation because the seaman has engaged 
in protected activity pertaining to compliance with maritime safety 
laws and accompanying regulations. SPA incorporates the procedures, 
requirements, and rights described in the whistleblower provision of 
the Surface Transportation Assistance Act (STAA), 49 U.S.C. 31105.
    (b) This part establishes procedures pursuant to the statutory 
provisions set forth above for the expeditious handling of retaliation 
complaints filed by seamen or persons acting on their behalf. These 
rules, together with those rules codified at 29 CFR part 18, set forth 
the procedures for submission of complaints, investigations, issuance 
of findings and preliminary orders, objections to findings, litigation 
before administrative law judges (ALJs), post-hearing administrative 
review, withdrawals and settlements, and judicial review and 
enforcement. In addition, the rules in this part provide the 
Secretary's interpretations on certain statutory issues.


Sec.  1986.101  Definitions.

    As used in this part:
    (a) Act means the Seaman's Protection Act (SPA), 46 U.S.C. 2114, as 
amended.

[[Page 63410]]

    (b) Assistant Secretary means the Assistant Secretary of Labor for 
Occupational Safety and Health or the person or persons to whom he or 
she delegates authority under the Act.
    (c) Business days means days other than Saturdays, Sundays, and 
Federal holidays.
    (d) Citizen of the United States means an individual who is a 
national of the United States as defined in section 101(a)(22) of the 
Immigration and Nationality Act (8 U.S.C. 1101 (a)(22)); a corporation 
incorporated under the laws of the United States or a State; a 
corporation, partnership, association, or other business entity if the 
controlling interest is owned by citizens of the United States or whose 
principal place of business or base of operations is in a State; or a 
governmental entity of the Federal Government of the United States, of 
a State, or of a political subdivision of a State. The controlling 
interest in a corporation is owned by citizens of the United States if 
a majority of the stockholders are citizens of the United States.
    (e) Complainant means the seaman who filed a SPA whistleblower 
complaint or on whose behalf a complaint was filed.
    (f) Cooperated means any assistance or participation with an 
investigation, at any stage of the investigation, and regardless of the 
outcome of the investigation.
    (g) Maritime safety law or regulation includes any statute or 
regulation regarding health or safety that applies to any person or 
equipment on a vessel.
    (h) Notify or notified includes any oral or written communications.
    (i) OSHA means the Occupational Safety and Health Administration of 
the United States Department of Labor.
    (j) Person means one or more individuals or other entities, 
including but not limited to corporations, companies, associations, 
firms, partnerships, societies, and joint stock companies.
    (k) Report or reported means any oral or written communications.
    (l) Respondent means the person alleged to have violated 46 U.S.C. 
2114.
    (m) Seaman means any individual engaged or employed in any capacity 
on board a U.S.-flag vessel or any other vessel owned by a citizen of 
the United States, except members of the Armed Forces. The term 
includes an individual formerly performing the work described above or 
an applicant for such work.
    (n) Secretary means the Secretary of Labor or persons to whom 
authority under the Act has been delegated.
    (o) State means a State of the United States, the District of 
Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, and 
the Northern Mariana Islands.
    (p) Vessel means every description of watercraft or other 
artificial contrivance used, or capable of being used, as a means of 
transportation on water.
    (q) Vessel owner includes all of the agents of the owner, including 
the vessel's master.
    (r) Any future amendments to SPA that affect the definition of a 
term or terms listed in this section will apply in lieu of the 
definition stated herein.


Sec.  1986.102   Obligations and prohibited acts.

    (a) A person may not retaliate against any seaman because the 
seaman:
    (1) In good faith reported or was about to report to the Coast 
Guard or other appropriate Federal agency or department that the seaman 
believed that a violation of a maritime safety law or regulation 
prescribed under that law or regulation has occurred;
    (2) Refused to perform duties ordered by the seaman's employer 
because the seaman had a reasonable apprehension or expectation that 
performing such duties would result in serious injury to the seaman, 
other seamen, or the public;
    (3) Testified in a proceeding brought to enforce a maritime safety 
law or regulation prescribed under that law;
    (4) Notified, or attempted to notify, the vessel owner or the 
Secretary of the department in which the Coast Guard was operating of a 
work-related personal injury or work-related illness of a seaman;
    (5) Cooperated with a safety investigation by the Secretary of the 
department in which the Coast Guard was operating or the National 
Transportation Safety Board;
    (6) Furnished information to the Secretary of the department in 
which the Coast Guard was operating, the National Transportation Safety 
Board, or any other public official as to the facts relating to any 
marine casualty resulting in injury or death to an individual or damage 
to property occurring in connection with vessel transportation; or
    (7) Accurately reported hours of duty under part A of subtitle II 
of title 46 of the United States Code.
    (b) Retaliation means any discrimination against a seaman 
including, but not limited to, discharging, demoting, suspending, 
harassing, intimidating, threatening, restraining, coercing, 
blacklisting, or disciplining a seaman.
    (c) For purposes of paragraph (a)(2) of this section, the 
circumstances causing a seaman's apprehension of serious injury must be 
of such a nature that a reasonable person, under similar circumstances, 
would conclude that there was a real danger of an injury or serious 
impairment of health resulting from the performance of duties as 
ordered by the seaman's employer. To qualify for protection based on 
activity described in paragraph (a)(2) of this section, the seaman must 
have sought from the employer, and been unable to obtain, correction of 
the unsafe condition. Any seaman who requested such a correction shall 
be protected against retaliation because of the request.


Sec.  1986.103  Filing of retaliation complaints.

    (a) Who may file. A seaman who believes that he or she has been 
retaliated against by a person in violation of SPA may file, or have 
filed by any person on the seaman's behalf, a complaint alleging such 
retaliation.
    (b) Nature of filing. No particular form of complaint is required. 
A complaint may be filed orally or in writing. Oral complaints will be 
reduced to writing by OSHA. If a seaman is unable to file a complaint 
in English, OSHA will accept the complaint in any other language.
    (c) Place of filing. The complaint should be filed with the OSHA 
office responsible for enforcement activities in the geographical area 
where the seaman resides or was employed, but may be filed with any 
OSHA officer or employee. Addresses and telephone numbers for these 
officials are set forth in local directories and at the following 
Internet address: http://www.osha.gov
    (d) Time for filing. Not later than 180 days after an alleged 
violation occurs, a seaman who believes that he or she has been 
retaliated against in violation of SPA may file, or have filed by any 
person on his or her behalf, a complaint alleging such retaliation. The 
date of the postmark, facsimile transmittal, electronic communication 
transmittal, telephone call, hand-delivery, delivery to a third-party 
commercial carrier, or in-person filing at an OSHA office will be 
considered the date of filing. The time for filing a complaint may be 
tolled for reasons warranted by applicable case law.
    (e) Relationship to section 11(c) complaints. A complaint filed 
under SPA alleging facts that would also constitute a violation of 
section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. 
660(c), will be deemed to be a complaint under both SPA and section 
11(c). Similarly, a complaint filed under section 11(c) that alleges 
facts that would also constitute a violation of SPA will be deemed to 
be a complaint filed

[[Page 63411]]

under both SPA and section 11(c). Normal procedures and timeliness 
requirements under the respective statutes and regulations will be 
followed.


Sec.  1986.104  Investigation.

    (a) Upon receipt of a complaint in the investigating office, the 
Assistant Secretary will notify the respondent of the filing of the 
complaint by providing the respondent with a copy of the complaint, 
redacted in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, and 
other applicable confidentiality laws. The Assistant Secretary will 
also notify the respondent of the respondent's rights under paragraphs 
(b) and (f) of this section. The Assistant Secretary will provide a 
copy of the unredacted complaint to the complainant (or complainant's 
legal counsel, if complainant is represented by counsel) and to the 
U.S. Coast Guard.
    (b) Within 20 days of receipt of the notice of the filing of the 
complaint provided under paragraph (a) of this section, the respondent 
may submit to the Assistant Secretary a written statement and any 
affidavits or documents substantiating its position. Within the same 20 
days, the respondent may request a meeting with the Assistant Secretary 
to present its position.
    (c) Throughout the investigation, the Agency will provide to the 
complainant (or the complainant's legal counsel if complainant is 
represented by counsel) a copy of all of respondent's submissions to 
the Agency that are responsive to the complainant's whistleblower 
complaint. Before providing such materials to the complainant, the 
Agency will redact them, if necessary, in accordance with the Privacy 
Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. 
The Agency will also provide the complainant with an opportunity to 
respond to such submissions.
    (d) Investigations will be conducted in a manner that protects the 
confidentiality of any person who provides information on a 
confidential basis, other than the complainant, in accordance with part 
70 of this title.
    (e)(1) A complaint will be dismissed unless the complainant has 
made a prima facie showing that protected activity was a contributing 
factor in the adverse action alleged in the complaint.
    (2) The complaint, supplemented as appropriate by interviews of the 
complainant, must allege the existence of facts and evidence to make a 
prima facie showing as follows:
    (i) The seaman engaged in a protected activity;
    (ii) The respondent knew or suspected that the seaman engaged in 
the protected activity;
    (iii) The seaman suffered an adverse action; and
    (iv) The circumstances were sufficient to raise the inference that 
the protected activity was a contributing factor in the adverse action.
    (3) For purposes of determining whether to investigate, the 
complainant will be considered to have met the required burden if the 
complaint on its face, supplemented as appropriate through interviews 
of the complainant, alleges the existence of facts and either direct or 
circumstantial evidence to meet the required showing, i.e., to give 
rise to an inference that the respondent knew or suspected that the 
seaman engaged in protected activity and that the protected activity 
was a contributing factor in the adverse action. The burden may be 
satisfied, for example, if the complainant shows that the adverse 
action took place shortly after the protected activity, giving rise to 
the inference that it was a contributing factor in the adverse action. 
If the required showing has not been made, the complainant (or the 
complainant's legal counsel if complainant is represented by counsel) 
will be so notified and the investigation will not commence.
    (4) Notwithstanding a finding that a complainant has made a prima 
facie showing, as required by this section, an investigation of the 
complaint will not be conducted or will be discontinued if the 
respondent demonstrates by clear and convincing evidence that it would 
have taken the same adverse action in the absence of the complainant's 
protected activity.
    (5) If the respondent fails to make a timely response or fails to 
satisfy the burden set forth in paragraph (e)(4) of this section, the 
Assistant Secretary will proceed with the investigation. The 
investigation will proceed whenever it is necessary or appropriate to 
confirm or verify the information provided by the respondent.
    (f) Prior to the issuance of findings and a preliminary order as 
provided for in Sec.  1986.105, if the Assistant Secretary has 
reasonable cause, on the basis of information gathered under the 
procedures of this part, to believe that the respondent has violated 
the Act and that preliminary reinstatement is warranted, the Assistant 
Secretary will again contact the respondent (or the respondent's legal 
counsel, if respondent is represented by counsel) to give notice of the 
substance of the relevant evidence supporting the complainant's 
allegations as developed during the course of the investigation. This 
evidence includes any witness statements, which will be redacted to 
protect the identity of confidential informants where statements were 
given in confidence; if the statements cannot be redacted without 
revealing the identity of confidential informants, summaries of their 
contents will be provided. The complainant will also receive a copy of 
the materials that must be provided to the respondent under this 
paragraph. Before providing such materials to the complainant, the 
Agency will redact them, if necessary, in accordance with the Privacy 
Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. 
The respondent will be given the opportunity to submit a written 
response, to meet with the investigators, to present statements from 
witnesses in support of its position, and to present legal and factual 
arguments. The respondent must present this evidence within 10 business 
days of the Assistant Secretary's notification pursuant to this 
paragraph, or as soon thereafter as the Assistant Secretary and the 
respondent can agree, if the interests of justice so require.


Sec.  1986.105  Issuance of findings and preliminary orders.

    (a) After considering all the relevant information collected during 
the investigation, the Assistant Secretary will issue, within 60 days 
of the filing of the complaint, written findings as to whether there is 
reasonable cause to believe that the respondent retaliated against the 
complainant in violation of SPA.
    (1) If the Assistant Secretary concludes that there is reasonable 
cause to believe that a violation has occurred, the Assistant Secretary 
will accompany the findings with a preliminary order providing relief. 
Such order will require, where appropriate: Affirmative action to abate 
the violation; reinstatement of the complainant to his or her former 
position, with the same compensation, terms, conditions and privileges 
of the complainant's employment; payment of compensatory damages (back 
pay with interest and compensation for any special damages sustained as 
a result of the retaliation, including any litigation costs, expert 
witness fees, and reasonable attorney fees which the complainant has 
incurred). Interest on back pay will be calculated using the interest 
rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will 
be compounded daily. The preliminary order may also require the 
respondent to pay punitive damages of up to $250,000.

[[Page 63412]]

    (2) If the Assistant Secretary concludes that a violation has not 
occurred, the Assistant Secretary will notify the parties of that 
finding.
    (b) The findings and, where appropriate, the preliminary order will 
be sent by certified mail, return receipt requested, to all parties of 
record (and each party's legal counsel if the party is represented by 
counsel). The findings and, where appropriate, the preliminary order 
will inform the parties of the right to object to the findings and/or 
the order and to request a hearing. The findings and, where 
appropriate, the preliminary order also will give the address of the 
Chief Administrative Law Judge, U.S. Department of Labor. At the same 
time, the Assistant Secretary will file with the Chief Administrative 
Law Judge a copy of the original complaint and a copy of the findings 
and/or order.
    (c) The findings and the preliminary order will be effective 30 
days after receipt by the respondent (or the respondent's legal counsel 
if the respondent is represented by counsel), or on the compliance date 
set forth in the preliminary order, whichever is later, unless an 
objection and request for a hearing have been timely filed as provided 
at Sec.  1986.106. However, the portion of any preliminary order 
requiring reinstatement will be effective immediately upon the 
respondent's receipt of the findings and the preliminary order, 
regardless of any objections to the findings and/or the order.

Subpart B--Litigation


Sec.  1986.106  Objections to the findings and the preliminary order 
and request for a hearing.

    (a) Any party who desires review, including judicial review, must 
file any objections and a request for a hearing on the record within 30 
days of receipt of the findings and preliminary order pursuant to Sec.  
1986.105(c). The objections and request for a hearing must be in 
writing and state whether the objections are to the findings and/or the 
preliminary order. The date of the postmark, facsimile transmittal, or 
electronic communication transmittal is considered the date of filing; 
if the objection is filed in person, by hand-delivery or other means, 
the objection is filed upon receipt. Objections must be filed with the 
Chief Administrative Law Judge, U.S. Department of Labor, and copies of 
the objections must be mailed at the same time to the other parties of 
record, and the OSHA official who issued the findings.
    (b) If a timely objection is filed, all provisions of the 
preliminary order will be stayed, except for the portion requiring 
preliminary reinstatement, which will not be automatically stayed. The 
portion of the preliminary order requiring reinstatement will be 
effective immediately upon the respondent's receipt of the findings and 
preliminary order, regardless of any objections to the order. The 
respondent may file a motion with the Office of Administrative Law 
Judges for a stay of the Assistant Secretary's preliminary order of 
reinstatement, which shall be granted only on the basis of exceptional 
circumstances. If no timely objection is filed with respect to either 
the findings or the preliminary order, the findings and/or preliminary 
order will become the final decision of the Secretary, not subject to 
judicial review.


Sec.  1986.107  Hearings.

    (a) Except as provided in this part, proceedings will be conducted 
in accordance with the rules of practice and procedure for 
administrative hearings before the Office of Administrative Law Judges, 
codified at subpart A of part 18 of this title.
    (b) Upon receipt of an objection and request for hearing, the Chief 
Administrative Law Judge will promptly assign the case to an ALJ who 
will notify the parties, by certified mail, of the day, time, and place 
of hearing. The hearing is to commence expeditiously, except upon a 
showing of good cause or unless otherwise agreed to by the parties. 
Hearings will be conducted de novo on the record. ALJs have broad 
discretion to limit discovery in order to expedite the hearing.
    (c) If both the complainant and the respondent object to the 
findings and/or order, the objections will be consolidated, and a 
single hearing will be conducted.
    (d) Formal rules of evidence will not apply, but rules or 
principles designed to assure production of the most probative evidence 
will be applied. The ALJ may exclude evidence that is immaterial, 
irrelevant, or unduly repetitious.


Sec.  1986.108  Role of Federal agencies.

    (a)(1) The complainant and the respondent will be parties in every 
proceeding. In any case in which the respondent objects to the findings 
or the preliminary order, the Assistant Secretary ordinarily will be 
the prosecuting party. In any other cases, at the Assistant Secretary's 
discretion, the Assistant Secretary may participate as a party or 
participate as amicus curiae at any stage of the proceeding. This right 
to participate includes, but is not limited to, the right to petition 
for review of a decision of an ALJ, including a decision approving or 
rejecting a settlement agreement between the complainant and the 
respondent.
    (2) If the Assistant Secretary assumes the role of prosecuting 
party in accordance with paragraph (a)(1) of this section, he or she 
may, upon written notice to the ALJ or the Administrative Review Board 
(ARB), as the case may be, and the other parties, withdraw as the 
prosecuting party in the exercise of prosecutorial discretion. If the 
Assistant Secretary withdraws, the complainant will become the 
prosecuting party and the ALJ or the ARB, as the case may be, will 
issue appropriate orders to regulate the course of future proceedings.
    (3) Copies of documents in all cases shall be sent to all parties, 
or if they are represented by counsel, to the latter. In cases in which 
the Assistant Secretary is a party, copies of the documents shall be 
sent to the Regional Solicitor's Office representing the Assistant 
Secretary.
    (b) The U.S. Coast Guard, if interested in a proceeding, may 
participate as amicus curiae at any time in the proceeding, at its 
discretion. At the request of the U.S. Coast Guard, copies of all 
documents in a case must be sent to that agency, whether or not that 
agency is participating in the proceeding.


Sec.  1986.109  Decisions and orders of the administrative law judge.

    (a) The decision of the ALJ will contain appropriate findings, 
conclusions, and an order pertaining to the remedies provided in 
paragraph (d) of this section, as appropriate. A determination that a 
violation has occurred may be made only if the complainant has 
demonstrated by a preponderance of the evidence that protected activity 
was a contributing factor in the adverse action alleged in the 
complaint.
    (b) If the complainant or the Assistant Secretary has satisfied the 
burden set forth in the prior paragraph, relief may not be ordered if 
the respondent demonstrates by clear and convincing evidence that it 
would have taken the same adverse action in the absence of any 
protected activity.
    (c) Neither the Assistant Secretary's determination to dismiss a 
complaint without completing an investigation pursuant to Sec.  
1986.104(e) nor the Assistant Secretary's determination to proceed with 
an investigation is subject to review by the ALJ, and a complaint may 
not be remanded for the completion of an investigation or for 
additional findings on the basis that a determination to dismiss was 
made in

[[Page 63413]]

error. Rather, if there otherwise is jurisdiction, the ALJ will hear 
the case on the merits or dispose of the matter without a hearing if 
the facts and circumstances warrant.
    (d)(1) If the ALJ concludes that the respondent has violated the 
law, the ALJ will issue an order that will require, where appropriate: 
affirmative action to abate the violation, reinstatement of the 
complainant to his or her former position, with the same compensation, 
terms, conditions, and privileges of the complainant's employment; 
payment of compensatory damages (back pay with interest and 
compensation for any special damages sustained as a result of the 
retaliation, including any litigation costs, expert witness fees, and 
reasonable attorney fees which the complainant may have incurred); and 
payment of punitive damages up to $250,000. Interest on back pay will 
be calculated using the interest rate applicable to underpayment of 
taxes under 26 U.S.C. 6621 and will be compounded daily.
    (2) If the ALJ determines that the respondent has not violated the 
law, an order will be issued denying the complaint.
    (e) The decision will be served upon all parties to the proceeding, 
the Assistant Secretary, and the Associate Solicitor, Division of 
Occupational Safety and Health, U.S. Department of Labor. Any ALJ's 
decision requiring reinstatement or lifting an order of reinstatement 
by the Assistant Secretary will be effective immediately upon receipt 
of the decision by the respondent. All other portions of the ALJ's 
order will be effective 14 days after the date of the decision unless a 
timely petition for review has been filed with the ARB, U.S. Department 
of Labor. The ALJ decision will become the final order of the Secretary 
unless a petition for review is timely filed with the ARB and the ARB 
accepts the decision for review.


Sec.  1986.110  Decisions and orders of the Administrative Review 
Board.

    (a) The Assistant Secretary or any other party desiring to seek 
review, including judicial review, of a decision of the ALJ must file a 
written petition for review with the ARB, which has been delegated the 
authority to act for the Secretary and issue final decisions under this 
part. The parties should identify in their petitions for review the 
legal conclusions or orders to which they object, or the objections may 
be deemed waived. A petition must be filed within 14 days of the date 
of the decision of the ALJ. The date of the postmark, facsimile 
transmittal, or electronic communication transmittal will be considered 
to be the date of filing; if the petition is filed in person, by hand-
delivery or other means, the petition is considered filed upon receipt. 
The petition must be served on all parties and on the Chief 
Administrative Law Judge at the time it is filed with the ARB. Copies 
of the petition for review and all briefs must be served on the 
Assistant Secretary and, in cases in which the Assistant Secretary is a 
party, on the Associate Solicitor, Division of Occupational Safety and 
Health, U.S. Department of Labor.
    (b) If a timely petition for review is filed pursuant to paragraph 
(a) of this section, the decision of the ALJ will become the final 
order of the Secretary unless the ARB, within 30 days of the filing of 
the petition, issues an order notifying the parties that the case has 
been accepted for review. If a case is accepted for review, the 
decision of the ALJ will be inoperative unless and until the ARB issues 
an order adopting the decision, except that any order of reinstatement 
will be effective while review is conducted by the ARB unless the ARB 
grants a motion by the respondent to stay that order based on 
exceptional circumstances. The ARB will specify the terms under which 
any briefs are to be filed. The ARB will review the factual 
determinations of the ALJ under the substantial evidence standard. If 
no timely petition for review is filed, or the ARB denies review, the 
decision of the ALJ will become the final order of the Secretary. If no 
timely petition for review is filed, the resulting final order is not 
subject to judicial review.
    (c) The final decision of the ARB will be issued within 120 days of 
the conclusion of the hearing, which will be deemed to be 14 days after 
the date of the decision of the ALJ, unless a motion for 
reconsideration has been filed with the ALJ in the interim. In such 
case, the conclusion of the hearing is the date the motion for 
reconsideration is ruled upon or 14 days after a new decision is 
issued. The ARB's final decision will be served upon all parties and 
the Chief Administrative Law Judge by mail. The final decision also 
will be served on the Assistant Secretary and on the Associate 
Solicitor, Division of Occupational Safety and Health, U.S. Department 
of Labor, even if the Assistant Secretary is not a party.
    (d) If the ARB concludes that the respondent has violated the law, 
the ARB will issue a final order providing relief to the complainant. 
The final order will require, where appropriate: Affirmative action to 
abate the violation; reinstatement of the complainant to his or her 
former position, with the same compensation, terms, conditions, and 
privileges of the complainant's employment; payment of compensatory 
damages (back pay with interest and compensation for any special 
damages sustained as a result of the retaliation, including any 
litigation costs, expert witness fees, and reasonable attorney fees the 
complainant may have incurred); and payment of punitive damages up to 
$250,000. Interest on back pay will be calculated using the interest 
rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will 
be compounded daily.
    (e) If the ARB determines that the respondent has not violated the 
law, an order will be issued denying the complaint.

Subpart C--Miscellaneous Provisions


Sec.  1986.111  Withdrawal of SPA complaints, findings, objections, and 
petitions for review; settlement.

    (a) At any time prior to the filing of objections to the Assistant 
Secretary's findings and/or preliminary order, a complainant may 
withdraw his or her complaint by notifying the Assistant Secretary, 
orally or in writing, of his or her withdrawal. The Assistant Secretary 
then will confirm in writing the complainant's desire to withdraw and 
determine whether to approve the withdrawal. The Assistant Secretary 
will notify the parties (and each party's legal counsel if the party is 
represented by counsel) of the approval of any withdrawal. If the 
complaint is withdrawn because of settlement, the settlement must be 
submitted for approval in accordance with paragraph (d) of this 
section. A complainant may not withdraw his or her complaint after the 
filing of objections to the Assistant Secretary's findings and/or 
preliminary order.
    (b) The Assistant Secretary may withdraw the findings and/or a 
preliminary order at any time before the expiration of the 30-day 
objection period described in Sec.  1986.106, provided that no 
objection has been filed yet, and substitute new findings and/or a new 
preliminary order. The date of the receipt of the substituted findings 
or order will begin a new 30-day objection period.
    (c) At any time before the Assistant Secretary's findings and/or 
preliminary order become final, a party may withdraw objections to the 
Assistant Secretary's findings and/or preliminary order by filing a 
written withdrawal with the ALJ. If a case is on review with the ARB, a 
party may withdraw a

[[Page 63414]]

petition for review of an ALJ's decision at any time before that 
decision becomes final by filing a written withdrawal with the ARB. The 
ALJ or the ARB, as the case may be, will determine whether to approve 
the withdrawal of the objections or the petition for review. If the ALJ 
approves a request to withdraw objections to the Assistant Secretary's 
findings and/or order, and there are no other pending objections, the 
Assistant Secretary's findings and/or order will become the final order 
of the Secretary. If the ARB approves a request to withdraw a petition 
for review of an ALJ decision, and there are no other pending petitions 
for review of that decision, the ALJ's decision will become the final 
order of the Secretary. If objections or a petition for review are 
withdrawn because of settlement, the settlement must be submitted for 
approval in accordance with paragraph (d) of this section.
    (d)(1) Investigative settlements. At any time after the filing of a 
SPA complaint and before the findings and/or order are objected to or 
become a final order by operation of law, the case may be settled if 
the Assistant Secretary, the complainant, and the respondent agree to a 
settlement. The Assistant Secretary's approval of a settlement reached 
by the respondent and the complainant demonstrates the Assistant 
Secretary's consent and achieves the consent of all three parties.
    (2) Adjudicatory settlements. At any time after the filing of 
objections to the Assistant Secretary's findings and/or order, the case 
may be settled if the participating parties agree to a settlement and 
the settlement is approved by the ALJ if the case is before the ALJ or 
by the ARB, if the ARB has accepted the case for review. A copy of the 
settlement will be filed with the ALJ or the ARB as the case may be.
    (e) Any settlement approved by the Assistant Secretary, the ALJ, or 
the ARB will constitute the final order of the Secretary and may be 
enforced in a United States district court pursuant to 49 U.S.C. 
31105(e), as incorporated by 46 U.S.C. 2114(b).


Sec.  1986.112  Judicial review.

    (a) Within 60 days after the issuance of a final order under 
Sec. Sec.  1986.109 and 1986.110, any person adversely affected or 
aggrieved by the order may file a petition for review of the order in 
the court of appeals of the United States for the circuit in which the 
violation allegedly occurred or the circuit in which the complainant 
resided on the date of the violation.
    (b) A final order is not subject to judicial review in any criminal 
or other civil proceeding.
    (c) If a timely petition for review is filed, the record of a case, 
including the record of proceedings before the ALJ, will be transmitted 
by the ARB, or the ALJ, as the case may be, to the appropriate court 
pursuant to the Federal Rules of Appellate Procedure and the local 
rules of such court.


Sec.  1986.113  Judicial enforcement.

    Whenever any person has failed to comply with a preliminary order 
of reinstatement or a final order, including one approving a settlement 
agreement issued under SPA, the Secretary may file a civil action 
seeking enforcement of the order in the United States district court 
for the district in which the violation was found to have occurred.


Sec.  1986.114  District court jurisdiction of retaliation complaints 
under SPA.

    (a) If there is no final order of the Secretary, 210 days have 
passed since the filing of the complaint, and there is no showing that 
there has been delay due to the bad faith of the complainant, the 
complainant may bring an action at law or equity for de novo review in 
the appropriate district court of the United States, which will have 
jurisdiction over such an action without regard to the amount in 
controversy. The action shall, at the request of either party to such 
action, be tried by the court with a jury.
    (b) Within seven days after filing a complaint in federal court, a 
complainant must file with the Assistant Secretary, the ALJ, or the 
ARB, depending on where the proceeding is pending, a copy of the file-
stamped complaint. A copy of the complaint also must be served on the 
OSHA official who issued the findings and/or preliminary order, the 
Assistant Secretary, and the Associate Solicitor, Division of 
Occupational Safety and Health, U.S. Department of Labor.


 Sec.  1986.115  Special circumstances; waiver of rules.

    In special circumstances not contemplated by the provisions of the 
rules in this part, or for good cause shown, the ALJ or the ARB on 
review may, upon application, after three days notice to all parties, 
waive any rule or issue such orders as justice or the administration of 
SPA requires.

[FR Doc. 2016-21758 Filed 9-14-16; 8:45 am]
 BILLING CODE 4510-26-P