[Federal Register Volume 78, Number 25 (Wednesday, February 6, 2013)][Rules and Regulations][Pages 8390-8407]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-02539]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1986
[Docket Number: OSHA-2011-0841]
RIN 1218-AC58
Procedures for the Handling of Retaliation Complaints Under the
Employee Protection Provision of the Seaman's Protection Act (SPA), as
Amended
AGENCY: Occupational Safety and Health Administration, Labor.
ACTION: Interim final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: This document provides the interim final text of regulations
governing the employee protection (whistleblower) provisions of the
Seaman's Protection Act ("SPA" or "the Act"), as amended by Section
611 of the Coast Guard Authorization Act of 2010. Section 611 transfers
to the Occupational Safety and Health Administration ("OSHA" or "the
Agency") the administration of the whistleblower protections
previously enforced solely via a private right of action. This interim
rule establishes procedures and time frames for the handling of
retaliation complaints under SPA, including procedures and time frames
for employee complaints to OSHA, investigations by OSHA, appeals of
OSHA determinations to an administrative law judge (ALJ) for a hearing
de novo, hearings by ALJs,
review of ALJ decisions by the Administrative Review Board (ARB) on
behalf of the Secretary of Labor (Secretary), and judicial review of
the Secretary's final decision. In addition, this interim rule provides
the Secretary's interpretation of the term "seaman" and addresses
other interpretive issues raised by SPA.
DATES: This interim final rule is effective on February 6, 2013.
Comments on the interim final rule must be submitted (postmarked, sent
or received) on or before April 8, 2013.
ADDRESSES: You may submit comments and additional materials by any of
the following methods:
Electronically: You may submit comments and attachments
electronically at http://www.regulations.gov, which is the Federal e-
Rulemaking Portal. Follow the instructions online for making electronic
submissions.
Fax: If your submissions, including attachments, do not exceed 10
pages, you may fax them to the OSHA Docket Office at (202) 693-1648.
Mail, hand delivery, express mail, messenger or courier service:
You must submit your comments and attachments to the OSHA Docket
Office, Docket No. OSHA-2011-0841, U.S. Department of Labor, Room N-
2625, 200 Constitution Avenue NW., Washington, DC 20210. Deliveries
(hand, express mail, messenger and courier service) are accepted during
the Department of Labor's and Docket Office's normal business hours,
8:15 a.m.-4:45 p.m., EST.
Instructions: All submissions must include the agency name and the
OSHA docket number for this rulemaking (Docket No. OSHA-2011-0841).
Submissions, including any personal information you provide, are placed
in the public docket without change and may be made available online at
http://www.regulations.gov. Therefore, OSHA cautions you about
submitting personal information such as social security numbers and
birth dates.
Docket: To read or download submissions or other material in the
docket, go to http://www.regulations.gov or the OSHA Docket Office at
the address above. All documents in the docket are listed in the
http://www.regulations.gov index, however, some information (e.g.,
copyrighted material) is not publicly available to read or download
through the Web site. All submissions, including copyrighted material,
are available for inspection and copying at the OSHA Docket Office.
FOR FURTHER INFORMATION CONTACT: Beth S. Slavet, Director, Directorate
of Whistleblower Programs, Occupational Safety and Health
Administration, U.S. Department of Labor, Room N-4624, 200 Constitution
Avenue NW., Washington, DC 20210; telephone (202) 693-2199. This is not
a toll-free number. This Federal Register publication is available in
alternative formats: large print, electronic file on computer disk
(Word Perfect, ASCII, Mates with Duxbury Braille System) and audiotape.
SUPPLEMENTARY INFORMATION:
I. Background
Congress enacted SPA as Section 13 of the Coast Guard Authorization
Act of 1984, Public Law 98-557, 98 Stat. 2860 (1984). SPA protected
seamen from retaliation for reporting a violation of Subtitle II of
Title 46 of the U.S. Code, which governs vessels and seamen, or a
regulation promulgated under that Subtitle. S. Rep. No. 98-454, at 11
(1984). Congress passed SPA in response to Donovan v. Texaco, 720 F.2d
825 (5th Cir. 1983), in which the Fifth Circuit held that the
whistleblower provision of the Occupational Safety and Health Act (OSH
Act) did not cover a seaman who had been demoted and discharged from
his position because he reported a possible safety violation to the
U.S. Coast Guard. S. Rep. No. 98-454, at 12 (1984). This original
version of SPA prohibited "[a]n owner, charterer, managing operator,
agent, master, or individual in charge of a vessel" from retaliating
against a seaman "because the seaman in good faith has reported or is
about to report to the Coast Guard that the seaman believes that" a
violation of Subtitle II had occurred. Public Law 98-557 Sec. 13(a),
98 Stat. at 2863. It permitted seamen to bring actions in U.S. district
courts seeking relief for alleged retaliation in violation of the Act.
Id. Sec. 13(a), 98 Stat. at 2863-64.
In 2002, Congress amended SPA. Section 428 of the Maritime
Transportation Security Act of 2002, Public Law 107-295, 116 Stat. at
2064 (2002), altered both the protections afforded and remedies
permitted by the Act. First, Congress removed the specific list of
actors who were prohibited from retaliating against seamen and replaced
that text with "[a] person." Public Law 107-295 Sec. 428(a), 116
Stat. at 2127. Second, Congress expanded the existing description of
protected activity to include reports to "the Coast Guard or other
appropriate Federal agency or department," rather than only to the
Coast Guard, and violations "of a maritime safety law or regulation
prescribed under that law or regulation," rather than only of Subtitle
II and its accompanying regulations. Id. Third, Congress added a second
type of protected activity; a seaman who "refused to perform duties
ordered by the seaman's employer because the seaman has a reasonable
apprehension or expectation that performing such duties would result in
serious injury to the seaman, other seamen, or the public" was granted
protection from retaliation. Id. The new text clarified that, "[t]o
qualify for protection against the seaman's employer under paragraph
(1)(B), the employee must have sought from the employer, and been
unable to obtain, correction of the unsafe condition." Id. The amended
statute further explained that "The circumstances causing a seaman's
apprehension of serious injury under paragraph (1)(B) must be of such a
nature that a reasonable person, under similar circumstances, would
conclude that there is a real danger of an injury or serious impairment
of health resulting from the performance of duties as ordered by the
seaman's employer." Public Law 107-295 Sec. 428, 116 Stat. at 2127.
Congress made additional changes to the Act, including those that
led OSHA to initiate this rulemaking, on October 15, 2010. Section 611
of the Coast Guard Authorization Act of 2010, Public Law 111-281, 124
Stat. at 2905 (2010), made further additions to the list of protected
activities under SPA and fundamentally changed the remedies section of
the Act. Regarding protected activities, Section 611 added to
subsection (a):
(C) the seaman testified in a proceeding brought to enforce a
maritime safety law or regulation prescribed under that law;
(D) the seaman notified, or attempted to notify, the vessel owner
or the Secretary [of the department in which the Coast Guard is
operating \1\] of a work-related personal injury or work-related
illness of a seaman;
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
(E) the seaman cooperated with a safety investigation by the
Secretary [of the department in which the Coast Guard is operating] or
the National Transportation Safety Board;
(F) the seaman furnished information to the Secretary [of the
department in which the Coast Guard is operating], the National
Transportation Safety Board, or any other public official as to the
facts relating to any marine casualty resulting
in injury or death to an individual or damage to property occurring in
connection with vessel transportation; or
(G) the seaman accurately reported hours of duty under this part.
Id. Sec. 611(a), 124 Stat. at 2969.
Congress replaced section (b) of SPA, which had provided a private
right of action to seamen and described relief a court could award, in
its entirety. The new text provides:
(b) A seaman alleging discharge or discrimination in violation of
subsection (a) of this section, or another person at the seaman's
request, may file a complaint with respect to such allegation in the
same manner as a complaint may be filed under subsection (b) of section
31105 of title 49. Such complaint shall be subject to the procedures,
requirements, and rights described in that section, including with
respect to the right to file an objection, the right of a person to
file for a petition for review under subsection (c) of that section,
and the requirement to bring a civil action under subsection (d) of
that section.
Id. Section 31105 of title 49 is the "Employee protections" provision
of the Surface Transportation Assistance Act (STAA), 49 U.S.C. 31105.
STAA provides that initial complaints regarding retaliation under that
statute are to be filed with and handled by the Secretary of Labor
(Secretary), see id. Sec. 31105(b)-(e), and the Secretary has
delegated her authority in this regard to OSHA. See Secretary's Order
1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012). The Secretary has
also delegated to OSHA her authority under SPA. Id. at 3913. Hearings
on determinations by the Assistant Secretary for OSHA (Assistant
Secretary) are conducted by the Office of Administrative Law Judges,
and appeals from decisions by administrative law judges (ALJs) are
decided by the Department of Labor's Administrative Review Board (ARB).
See Secretary's Order 1-2010, 75 FR 3924-01 (Jan. 25, 2010).
OSHA is promulgating this interim final rule to establish
procedures for the handling of whistleblower complaints under SPA and
address certain interpretative issues raised by the statute. To the
extent possible within the bounds of applicable statutory language,
these regulations are designed to be consistent with the procedures
applied to claims under STAA, and the other whistleblower statutes
administered by OSHA, including the Energy Reorganization Act (ERA), 42
U.S.C. 5851, the Wendell H. Ford Aviation Investment and Reform Act for
the 21st Century (AIR21), 49 U.S.C. 42121, Title VIII of the Sarbanes-
Oxley Act of 2002 (SOX), 18 U.S.C. 1514A, and the Consumer Product
Safety Improvement Act (CPSIA), 15 U.S.C. 2087.
II. Summary of Statutory Procedures
As explained above, SPA adopts the process for filing a complaint
established under subsection (b) of STAA. 46 U.S.C. 2114(b). It further
incorporates the other "procedures, requirements, and rights described
in" STAA, id., described below. OSHA therefore understands SPA to
incorporate STAA subsections (b) through (g). SPA's text could cause
confusion regarding which sections of STAA it adopts by referring, in
some cases incorrectly,\2\ to certain sections while not mentioning
others.\3\ Those references follow the word "including," however,
with no suggestion that the subsequent list is meant to be exclusive,
so OSHA will not treat it as such. OSHA does not read SPA as
incorporating Sections (a), (h), (i), or (j) of STAA because those
provisions are substantive and specific to STAA or agencies other than
the Department of Labor rather than describing "procedures,
requirements, and rights." The statutory procedures applicable to SPA
claims are summarized below.
---------------------------------------------------------------------------
\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
Section (b)(1) of STAA states that STAA whistleblower complaints
will be governed by the legal burdens of proof set forth in AIR21, 49
U.S.C. 42121(b), which contains whistleblower protections for employees
in the aviation industry. 49 U.S.C. 31105(b)(1). Accordingly, these
burdens of proof also govern SPA whistleblower complaints.
Under AIR21, a violation may be found only if the complainant
demonstrates that protected activity was a contributing factor in the
adverse action described in the complaint. 49 U.S.C.
42121(b)(2)(B)(iii). Relief is unavailable if the employer demonstrates
by clear and convincing evidence that it would have taken the same
adverse action in the absence of the protected activity. 49 U.S.C.
42121(b)(2)(B)(iv); see Vieques Air Link, Inc. v. Dep't of Labor, 437
F.3d 102, 108-09 (1st Cir. 2006) (per curiam) (burdens of proof under
AIR21); see also Formella v. U.S. Dep't of Labor, 628 F.3d 381, 389
(7th Cir. 2010) (explaining that because it incorporates the burdens of
proof set forth in AIR21, STAA requires only a showing that the
protected activity was a contributing factor, not a but-for cause, of
the adverse action.).
Written Notice of Complaint and Findings.
Under Section (b) of STAA, upon receipt of the complaint, the
Secretary must provide written notice of the filing of the complaint to
the person or persons alleged in the complaint to have violated the Act
("respondent"). 49 U.S.C. 31105(b).
Within 60 days of receipt of the complaint, the Secretary must
conduct an investigation of the allegations, decide whether it is
reasonable to believe the complaint has merit, and provide written
notification to the complainant and the respondent of the investigative
findings.
Remedies
If the Secretary decides it is reasonable to believe a violation
occurred, the Secretary shall include with the findings a preliminary
order for the relief provided for under Section (b)(3) of STAA, 49
U.S.C. 31105(b)(3). This order shall require the respondent to take
affirmative action to abate the violation; reinstate the complainant to
the former position with the same pay and terms and privileges of
employment; and pay compensatory damages, including back pay with
interest and compensation for any special damages sustained as a
result of the discrimination, including
litigation costs, expert witness fees, and reasonable attorney fees.
Additionally, if the Secretary issues a preliminary order and the
complainant so requests, the Secretary may assess against the
respondent the costs, including attorney fees, reasonably incurred by
the complainant in bringing the complaint. Punitive damages of up to
$250,000.00 are also available.
Hearings
Section (b) of STAA also provides for hearings. Specifically, the
complainant and the respondent have 30 days after the date of the
Secretary's notification in which to file objections to the findings
and/or preliminary order and request a hearing. The filing of
objections does not stay a reinstatement ordered in the preliminary
order. If a hearing is not requested within 30 days, the preliminary
order becomes final and is not subject to judicial review.
If a hearing is held, it is to be conducted expeditiously. The
Secretary shall issue a final order within 120 days after the
conclusion of any hearing. The final order may provide appropriate
relief or deny the complaint. Until the Secretary's final order is
issued, the Secretary, the complainant, and the respondent may enter
into a settlement agreement that terminates the proceeding.
De Novo Review
Section (c) of STAA provides for de novo review of a whistleblower
claim by a United States district court in the event that the Secretary
has not issued a final decision within 210 days after the filing of a
complaint and the delay is not due to the complainant's bad faith. 49
U.S.C. 31105(c). The provision provides that the court will have
jurisdiction over the action without regard to the amount in
controversy and that the case will be tried before a jury at the
request of either party.
Judicial Review
Section (d) of STAA provides that within 60 days of the issuance of
the Secretary's final order following a hearing, any person adversely
affected or aggrieved by the Secretary's final order may file an appeal
with the United States Court of Appeals for the circuit in which the
violation occurred or the circuit where the complainant resided on the
date of the violation. 49 U.S.C. 31105(d).
Civil Actions To Enforce
Section (e) of STAA provides that if a person fails to comply with
an order issued by the Secretary under Section (b), the Secretary of
Labor "shall bring a civil action to enforce the order in the district
court of the United States for the judicial district in which the
violation occurred." 49 U.S.C. 31105(e).
Preemption
Section (f) of STAA clarifies that nothing in the statute preempts
or diminishes any other safeguards against discrimination provided by
Federal or State law. 49 U.S.C. 31105(f).
Employee Rights
Section (g) of STAA states that nothing in STAA shall be deemed to
diminish the rights, privileges, or remedies of any employee under any
Federal or State law or under any collective bargaining agreement. 49
U.S.C. 31105(g). It further states that rights and remedies under 49
U.S.C. 31105 "may not be waived by any agreement, policy, form, or
condition of employment."
III. Summary and Discussion of Regulatory Provisions
The regulatory provisions in this part have been written and
organized to be consistent with other whistleblower regulations
promulgated by OSHA to the extent possible within the bounds of the
statutory language of SPA and of STAA.
Throughout the regulatory text, OSHA has used the term
"retaliate" rather than "discharge or in any manner discriminate,"
the phrase that appears in the text of SPA. The use of "retaliate,"
which also appears in the regulations implementing STAA, the ERA, SOX,
and CPSIA, is not intended to have a substantive effect. It simply
reflects that claims brought under these whistleblower provisions,
whether alleging discharge or some other form of discrimination, are
prototypical retaliation claims. A retaliation claim is a specific type
of discrimination claim that focuses on actions taken as a result of an
employee's protected activity rather than as a result of an employee's
characteristics (such as race, gender, or religion).
Subpart A--Complaints, Investigations, Findings, and Preliminary Orders
Section 1986.100 Purpose and Scope
This section describes the purpose of the regulations implementing
SPA's whistleblower provision and provides an overview of the
procedures contained in the regulations.
Section 1986.101 Definitions
This section includes general definitions applicable to SPA's
whistleblower provision. Most of the definitions are of terms common to
whistleblower statutes and are defined here as they are elsewhere. Some
terms call for additional explanation.
SPA prohibits retaliation by a "person." Title 1 of the U.S. Code
provides the definition of this term because there is no indication in
the statute that any other meaning applies. Accordingly, "person
[hellip] include[s] corporations, companies, associations, firms,
partnerships, societies, and joint stock companies, as well as
individuals." 1 U.S.C. 1. This list, as indicated by the word
"include," is not exhaustive. See Fed. Land Bank v. Bismarck Lumber
Co., 314 U.S. 95, 100 (1941) ("[T]he term 'including' is not one of
all embracing definition, but connotes simply an illustrative
application of the general principle." (citation omitted)). Paragraph
(j) accordingly defines "person" as "one or more individuals or
other entities, including but not limited to corporations, companies,
associations, firms, partnerships, societies, and joint stock
companies."
SPA protects seamen when they make certain reports and
notifications. 46 U.S.C. 2114(a)(1)(A), (D), (G). Paragraphs (h) and
(k) define "report" and "notify" both to include "any oral or
written communications of a violation." This interpretation of the
statute is consistent with a plain reading of the statutory text and
best fulfills the purposes of SPA. See Gaffney v. Riverboat Servs. of
Ind., 451 F.3d 424, 445-46 (7th Cir. 2006) (explaining that to
interpret SPA's reference to a "report" as requiring a formal
complaint "would narrow the statute in a manner that Congress clearly
avoided, and, in the process, would frustrate the clear purpose of the
provision"). It is also consistent with the legislative history of the
statute, which indicates that Congress meant SPA to respond to Donovan
v. Texaco, 720 F.2d 825 (5th Cir. 1983), a case in which a seaman had
told the Coast Guard about an unsafe condition by telephone. S. Rep.
No. 98-454, at 11; Donovan, 720 F.2d at 825; see also Gaffney, 451 F.3d
at 446 (reasoning that SPA's legislative history, "coupled with
Congress' decision not to define 'report' in the statute or in the
course of discussing Donovan in the relevant legislative history,"
indicates that SPA "does not require a formal complaint, or even a
written statement, as a prerequisite to statutory whistleblower
protection"); cf. Kasten v. Saint-Gobain Performance Plastics Corp.,
131 S. Ct. 1325 (2011) (holding that the provision of the Fair Labor
Standards Act that prohibits employers from retaliating against an
employee because such employee has "filed
any complaint" protects oral complaints).
In addition, SPA protects seaman complaints and testimony related
to "maritime safety law[s] or regulation[s]." Paragraph (g) defines
this term as including "any statute or regulation regarding health or
safety that applies to any person or equipment on a vessel." This
definition clarifies the meaning of this term in two respects. First,
though the statutory text refers to "safety" the Secretary finds that
Congress did not intend to exclude regulations that address health
hazards; rather, it is apparent that no such distinction was intended.
Compare 46 U.S.C. 2114(a)(1)(B) (protecting seamen when they refuse to
perform a duty that would result in a serious injury) with id. (a)(2)
(clarifying that circumstances that would justify a refusal to work
under (a)(1)(B) are those that present a "real danger of injury or
serious impairment of health"); see also id. (a)(1)(D) (protecting
reports of injuries and illnesses). The definition makes clear that
laws or regulations addressing either maritime safety or health are
included.
Second, because working conditions on vessels can be subject to
regulation from multiple jurisdictions, the Secretary interprets
"maritime safety law or regulation" to include all regulations
regarding health or safety that apply to any person or equipment on a
vessel under the circumstances at issue. The statute or regulation need
not exclusively or explicitly serve the purpose of protecting the
safety of seamen, or promoting safety on vessels, to fall within the
meaning of this provision of SPA.
Section 2214(a)(1)(D) of SPA protects a seaman's notification of
the "vessel owner" of injuries and illnesses. This would include all
notifications to agents of the owner, such as the vessel's master. See
2 Robert Force & Martin J. Norris, The Law of Seamen Sec. 25-1 (5th
ed. 2003). Other parties that may fall within the meaning of "vessel
owner" include an owner pro hac vice, operator, or charter or bare
boat charterer. See 33 U.S.C. 902(21) (defining, for purposes of the
LHWCA, the entities liable for negligence of a vessel); see also
Helaire v. Mobil Oil Co., 709 F.2d 1031, 1041 (5th Cir. 1983)
(referring to this list of entities as "the broad definition of
'vessel owner' under 33 U.S.C. 902(21)"). Paragraph (q) defines
"vessel owner" as including "all of the agents of the owner,
including the vessel's master."
SPA protects "a seaman" from retaliation, but it does not include
a definition of "seaman." The Senate Report that accompanied the
original, 1984 version of SPA indicates that SPA was originally
intended to provide a remedy for workers whose whistleblower rights
under 11(c) might be not be available in a jurisdiction that follows
Donovan v. Texaco, 720 F.2d 825 (5th Cir. 1983).\4\ See S. Rep. No. 98-
454, at 11-12 (1984). The Senate Report also provides specific insight
as to the definition of "seaman," stating that "the Committee
intends the term 'seaman' to be interpreted broadly, to include any
individual engaged or employed in any capacity on board a vessel owned
by a citizen of the United States." Id. at 11.
---------------------------------------------------------------------------
\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 where workers arguably lack coverage because of
4(b)(1) preemption under Texaco; or (c) using the broader definition of
"seaman" suggested by the legislative history of SPA discussed above.
First, OSHA rejected adopting a definition of "seaman" for SPA
that mirrors the one established by case law under the Jones Act. The
Jones Act provides that a "seaman" injured in the course of
employment may bring a civil action against his or her employer, 46
U.S.C. 30104, but like SPA, the Jones Act does not define the term
"seaman." Looking to general maritime law, the Supreme Court has
defined the term as including those who have an employment-related
connection to a vessel in navigation that contributes to the function
of the vessel or to the accomplishment of its mission, even if the
employment does not aid in navigation or contribute to the
transportation of the vessel, McDermott International, Inc. v.
Wilander, 498 U.S. 337, 355 (1991). Importantly, the Supreme Court
views the term seaman as excluding land-based workers; that is, a
seaman "must have a connection to a vessel in navigation (or to an
identifiable group of such vessels) that is substantial in terms of
both its duration and nature." Chandris v. Latsis, 515 U.S. 347, 368
(1995).
However, OSHA is concerned that the Jones Act definition of
"seaman" is more restrictive than the definition as clarified in the
legislative history of the SPA. As a result, certain workers who are
employed on vessels in significant ways, but who are not Jones Act
seaman, would not be protected under the Jones Act definition. For
example, certain riverboat pilots spend substantial time aboard a
vessel in furtherance of its purpose, but do not have a connection to a
particular vessel or group of vessels, so they have been found not to
be covered under the Jones Act. See Bach v. Trident Steamship Co.,
Inc., 920 F.2d 322, aff'd after remand, 947 F.2d 1290 (5th Cir. 1991);
Blancq v. Hapag-Lloyd A.G., 986 F. Supp. 376, 379 (E.D. La. 1997).
Moreover, there is at least a possibility that under the Texaco
analysis, a court would find that such pilots also lack 11(c) rights
when reporting safety violations aboard vessels on which they are
working.
OSHA also notes that SPA and the Jones Act are fundamentally
different types of statutes that need not be squarely consistent in
their coverage. The Jones Act provides that particular workers, after
being injured, are entitled to recover by civil action against their
employers. SPA, on the other hand, is prophylactic and remedial in
nature and intended to prevent injuries before they happen by
protecting reports of safety violations, which suggests a broader
definition is appropriate.
Second, OSHA rejected the approach of defining "seaman" as
applying only to workers who arguably are not covered by 11(c). The
legislative history shows that Congress originally passed the SPA in
response to Texaco: "This section responds to Donavan v. Texaco, (720
F.2d 825 (5th Cir. 1983)) in which a seaman was demoted and ultimately
discharged from his job for reporting a possible safety violation to
the Coast Guard * * * [This section] establishes a new legal remedy for
seamen, to protect them against discriminatory action due to their
reporting a violation of Subtitle II to the Coast Guard. The Amendment
creates a private right of action similar but not identical to that in
OSH Act Section 11(c)." S. Rep. No. 98-454, at 11-12 (1984). But the
legislative history in 2010 suggests a broader definition for
"seaman" workers also who may be covered by 11(c). On a more
practical level, OSHA could not fashion a clear definition of
"seaman" that squarely fills the gap arguably left by Texaco without
requiring agency investigators to conduct a complex case-by-case
analysis of whether each SPA complainant is exempt from the OSH Act
under the rationale of Texaco, a holding with which the Department does
not agree.
Thus, the interim final rule adopts the third option--the broader
definition of seaman as clarified in the legislative history of SPA.
The first sentence of paragraph (m) incorporates the language
of the Senate report to define "seaman." As indicated in the report,
and consistent with the remedial purposes of whistleblower statutes
like SPA, OSHA intends that the regulatory language be construed
broadly. See Whirlpool Corporation v. Marshall, 445 U.S. 1, 13 (1980);
Bechtel Const. Co. v. Sec'y of Labor, 50 F.3d 926, 932 (11th Cir.
1995). Workers who are seamen for purposes of the Jones Act or general
maritime law, see, e.g., Chandris, Inc. v. Latsis, 515 U.S. 347, 355
(1995), are covered by the definition, as are land-based workers, if
they are "engaged or employed * * * on board a vessel" for some part
of their duties. See H. Rep. No. 111-303, pt. 1, at 119 (2009) (noting
that SPA extends protections to "maritime workers").
Finally, paragraph (m) includes an additional sentence indicating
that former seaman and applicants are included in the definition. Such
language is included in the definition of "employee" in the
regulations governing other OSHA-administered whistleblower protection
laws, such as STAA (49 CFR 1978.101(h)), the National Transit Systems
Security Act and the Federal Railroad Safety Act (29 CFR 1982.101(d)),
SOX (29 CFR 1980.101(g)), and the OSH Act (29 CFR 1977.5(b)). This
interpretation is consistent with the Supreme Court's reading of the
term "employee" in 42 U.S.C. 2000e-3a, the anti-retaliation provision
of Title VII of the Civil Rights Act of 1964, to include former
employees. Robinson v. Shell Oil Co., 519 U.S. 337 (1997). Among the
Court's reasons for this interpretation were the lack of temporal
modifiers for the term "employee"; the reinstatement remedy, which
only applies to former employees; and the remedial purpose of
preventing workers from being deterred from whistleblowing because of a
fear of blacklisting. These reasons apply equally to SPA and the other
whistleblower provisions enforced by OSHA.
OSHA encourages interested parties to submit comments on the issues
discussed above in the definition of "seaman," any potential
alternative definitions they wish OSHA to consider in the final rule,
and any information they have about the practical effects of using
various alternative definitions. The definition of "seaman" adopted
in these regulations is based on and limited to SPA. Nothing should be
inferred from the above discussion or the regulatory text about the
meaning of "seaman" under the OSH Act or any other statute
administered by the Department of Labor.
"Citizen of the United States," a term used in the definition of
"seaman," is not defined in the 1984 Senate report. The definition of
this term in paragraph (d) of the regulation is based on two sources:
the definition applicable to individuals given in 46 U.S.C. 104 and the
definition of "entities deemed citizens of the United States" in 46
U.S.C. 50501. These provisions are from the same title of the U.S. Code
as SPA, and deal with similar subject matter. They are roughly similar
to definitions of citizen of the United States used in other similar
contexts. See 49 U.S.C. 42121(a)(2) (definition applicable to AIR21);
46 U.S.C. 12103(b) (ownership of vessels eligible to receive a
certificate of documentation from the United States). Paragraph (d) of
the regulation combines the text of 46 U.S.C. 104 and 50501, with two
changes. First, the regulation adds the text "or other entity" to the
list of business forms that can meet the definition. This change
reflects the development of new business forms, such as limited
liability companies, in recent years. Second, it deletes the language
for section 50501 requiring that at least 75 percent of the interest in
a corporation, partnership, or association be owned by citizens of the
United States where the vessel is operating "in the coastwise trade."
46 U.S.C. 50501(a); see also 46 U.S.C. 50501(d) (providing four
criteria for determining whether 75 percent of the interest in a
corporation is owned by citizens of the United States). There is no
basis for distinguishing between vessels on this basis in implementing
SPA; the purposes of this whistleblower statute are wholly unrelated to
the locations between which the vessel travels. Accordingly, this
language has been omitted.
Paragraph (p) defines "vessel," a term used in the definition of
seaman and that also arises in SPA itself. This definition is taken
from Title 46 of the U.S. Code and "includes every description of
watercraft or other artificial contrivance used, or capable of being
used, as a means of transportation on water." 46 U.S.C. 115; see also
1 U.S.C. 3; Stewart v. Dutra Constr. Co., 543 U.S. 481, 496-97 (2005)
(analyzing the meaning of the term "vessel," as defined by 1 U.S.C.
3, and concluding that "a 'vessel' is a watercraft practically capable
of maritime transportation, regardless of its primary purpose or state
of transit at a particular moment," and thus excludes ships "taken
out of service, permanently anchored, or otherwise rendered practically
incapable of maritime transport").
Section 1986.102 Obligations and Prohibited Acts
This section describes the activities that are protected under SPA
and the conduct that is prohibited in response to any protected
activities. These protected activities are set out in the statute, as
described above. Consistent with OSHA's interpretation of other anti-
retaliation provisions, the prohibited conduct includes any form of
retaliation, including, but not limited to, discharging, demoting,
suspending, harassing, intimidating, threatening, restraining,
coercing, blacklisting, or disciplining a seaman. Section 1986.102
tracks the language of the statute in defining the categories of
protected activity.
As with other whistleblower statutes, SPA's provisions describing
protected activity are to be read broadly. See, e.g., Clean Harbors
Envtl. Servs., Inc. v. Herman, 146 F.3d 12, 20-21 (1st Cir. 1998)
(expansively construing language in STAA to facilitate achieving the
policy goals of encouraging corporate compliance with safety laws and
employee reports of violations of those laws); Bechtel Constr. Co. v.
Sec'y of Labor, 50 F.3d 926, 932-33 (11th Cir. 1995) ("[I]t is
appropriate to give a broad construction to remedial statutes such as
nondiscrimination provisions in Federal labor laws."); Passaic Valley
Sewerage Comm'rs v. U.S. Dep't of Labor, 992 F.2d 474, 478 (3d Cir.
1993) (discussing the "broad remedial purpose" of the whistleblower
provision in the Clean Water Act in expansively interpreting a term in
that statute). Indeed, SPA's prohibition of discharging or "in any
manner" discriminating against seamen indicates Congress's intent that
the provision have broad application. See NLRB v. Scrivener, 405 U.S.
117, 122 (1972) (determining that language in the National Labor
Relations Act should be read broadly because "the presence of the
preceding words 'to discharge or otherwise discriminate' reveals, we
think, particularly by the word 'otherwise,' an intent on the part of
Congress to afford broad rather than narrow protection to the
employee"); Phillips v. Interior Board of Mine Operations Appeals, 500
F.2d 772, 782-83 (DC Cir. 1974) (relying on Scrivener in reasoning that
the words "in any other way discriminate" in the Mine Safety Act
support a broad reading of that Act's protections for miners).
Likewise, the statement in the Senate Report regarding SPA that the
term "seaman" is to be "interpreted broadly" further supports the
premise that Congress did not intend that SPA be construed narrowly.
S. Rep. No. 98-454, at 11 (1984).
OSHA therefore will interpret each of the seven types of protected
activity listed in the Act broadly. Moreover, while SPA, unlike other
whistleblower statutes, does not contain a provision directly
protecting all internal complaints by seamen to their superiors, many
such complaints are covered under the seven specific categories listed
in the Act. Protection of internal complaints is important because it
"leverage[es] the government's limited enforcement resources" by
encouraging employees to report substandard working conditions to their
employers. Clean Harbors, 146 F.3d at 19-20. Such protections promote
the resolution of violations without drawn-out litigation, and the
"failure to protect internal complaints may have the perverse result
of encouraging employers to fire employees who believe they have been
treated illegally before they file a formal complaint." Minor v.
Bostwick Laboratories, Inc., 669 F.3d 428, 437 (4th Cir. 2012). In
addition, in the maritime context, a seaman on a vessel at sea may not
be able to contact the authorities to correct a dangerous condition,
and his or her only recourse will be to seek correction from the ship's
officers. Because internal complaints are an important part of keeping
a workplace safe, OSHA will give a broad construction to the Act's
language to ensure that internal complaints are protected as fully as
possible.
The statute first prohibits retaliation because "the seaman in
good faith has reported or is about to report to the Coast Guard or
other appropriate Federal agency or department that the seaman believes
that a violation of a maritime safety law or regulation prescribed
under that law or regulation has occurred." 46 U.S.C. 2114(a)(1)(A).
One way an employer will know that a seaman "is about to report" the
violation is when the seaman has made an internal complaint and there
are circumstances from which a reasonable person would understand that
the seaman will likely report the violation if the violation is not
cured. These circumstances might arise from the internal report itself
(e.g., "I will contact the authorities if it is not fixed"), the
seaman's history of reporting similar violations to authorities, or
other similar considerations. Further, given that a seaman may be at
sea for extended periods without access to ways of reporting a
violation, a significant time may elapse between the time the employer
learns of the seaman's intent to report and the time the report can
actually be made. OSHA will read the phrase "about to report" broadly
to protect the seaman in such a circumstance.
The Act also protects the seaman against discrimination when "the
seaman has refused to perform duties ordered by the seaman's employer
because the seaman has a reasonable apprehension or expectation that
performing such duties would result in serious injury to the seaman,
other seamen, or the public." 46 U.S.C. 2114(a)(1)(B). To qualify for
this protection, the seaman "must have sought from the employer, and
been unable to obtain, correction of the unsafe condition." 46 U.S.C.
2114(a)(3). Although not stated explicitly, in the Secretary's view,
the reasonable implication of the statutory language is that the
seaman's preliminary act of seeking correction of the condition is
itself protected activity. That is, a seaman who asks his or her
employer to correct a condition he reasonably believes would result in
serious injury and suffers retaliation because of that request before
the occasion to refuse to perform the unsafe work arises is protected
by the Act. Although the literal terms of the Act could be read to
leave the request for correction required yet unprotected, courts
reject "absurd result[s]." Stone v. Instrumentation Laboratory Co.,
591 F.3d 239, 243 (4th Cir. 2009) ("Courts will not * * * adopt a
'literal' construction of a statute if such interpretation would thwart
the statute's obvious purpose or lead to an 'absurd result."'
[quoting Chesapeake Ranch Water Co. v. Board of Comm'rs of Calvert
County, 401 F.3d 274, 280 (4th Cir. 2005)]). The Agency's
interpretation is embodied in the last sentence of section 1986.102(c):
"Any seaman who requests such a correction shall be protected against
retaliation because of the request."
SPA provides protection to certain other types of internal
communications. It covers the situation where "the seaman notified, or
attempted to notify, the vessel owner or the Secretary [of the
department in which in Coast Guard is operating] of a work-related
personal injury or work-related illness of a seaman." 46 U.S.C.
2114(a)(1)(D). As noted above, this covers oral, written and electronic
communications to any agent of the vessel's owner. SPA also disallows
retaliation because "the seaman accurately reported hours of duty
under this part." 46 U.S.C. 2114(a)(1)(G). In keeping with the
discussion above, this language too should be interpreted in favor of
broad protection for seamen should a question of its meaning arise.
Finally, consistent with the broad interpretation of the statute as
discussed above, OSHA believes that most reports required by the U.S.
Coast Guard under 46 CFR 4.04 and 4.05 are protected by SPA.
Section 1986.103 Filing of Retaliation Complaints
This section describes the process for filing a complaint alleging
retaliation in violation of SPA. The procedures described are
consistent with those governing complaints under STAA as well as other
whistleblower statutes OSHA administers.
Under paragraph (a), complaints may be filed by a seaman or, with
the seaman's consent, by any person on the seaman's behalf. Paragraph
(b) provides that complaints filed under SPA need not be in any
particular form; they may be either oral or in writing. If the
complainant is unable to file the complaint in English, OSHA will
accept the complaint in any language. Paragraph (c) explains with whom
in OSHA complaints may be filed.
Paragraph (d) addresses timeliness. To be timely, a complaint must
be filed within 180 days of the occurrence of the alleged violation.
Under Supreme Court precedent, a violation occurs when the retaliatory
decision has been both "made and communicated to" the complainant.
Del. State College v. Ricks, 449 U.S. 250, 258 (1980). In other words,
the limitations period commences once the employee is aware or
reasonably should be aware of the employer's decision. EEOC v. United
Parcel Serv., 249 F.3d 557, 561-62 (6th Cir. 2001). However, the time
for filing a complaint may be tolled for reasons warranted by
applicable case law. A complaint will be considered filed on the date
of postmark, facsimile transmittal, electronic communication
transmittal, telephone call, hand-delivery, delivery to a third-party
commercial carrier, or in-person filing at an OSHA office. The
regulatory text indicates that filing deadlines may be tolled based on
principles developed in applicable case law. See, e.g., Donovan v.
Hahner, Foreman & Harness, Inc., 736 F.2d 1421, 1423-29 (10th Cir.
1984).
Paragraph (e), which is consistent with provisions implementing
other OSHA whistleblower programs, describes the relationship between
section 11(c) complaints and SPA whistleblower complaints. Section
11(c) of the OSH Act, 29 U.S.C. 660(c), generally prohibits employers
from retaliating against employees for filing safety or health
complaints or otherwise initiating or participating in proceedings
under the OSH Act. Some of the activity protected by SPA, including
maritime safety complaints and work
refusals, may also be covered under section 11(c), though the
geographic limits of section 4(a) of the OSH Act, 29 U.S.C. 653(a),
which are applicable to section 11(c), do not apply to SPA.\5\
Paragraph (e) states that SPA whistleblower complaints that also allege
facts constituting an 11(c) violation will be deemed to have been filed
under both statutes. Similarly, section 11(c) complaints that allege
facts constituting a violation of SPA will also be deemed to have been
filed under both laws. In these cases, normal procedures and timeliness
requirements under the respective statutes and regulations will apply.
---------------------------------------------------------------------------
\5\ SPA contains no geographic limit; its scope is limited only
by the definition of "seaman."
---------------------------------------------------------------------------
OSHA notes that a complaint of retaliation filed with OSHA under
SPA is not a formal document and need not conform to the pleading
standards for complaints filed in federal district court articulated in
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v.
Iqbal, 556 U.S. 662 (2009). See Sylvester v. Parexel Int'l, Inc., No.
07-123, 2011 WL 2165854, at *9-10 (ARB May 26, 2011) (holding
whistleblower complaints filed with OSHA under analogous provisions in
the Sarbanes-Oxley Act need not conform to federal court pleading
standards). Rather, the complaint filed with OSHA under this section
simply alerts the Agency to the existence of the alleged retaliation
and the complainant's desire that the Agency investigate the complaint.
Upon the filing of a complaint with OSHA, the Assistant Secretary is to
determine whether "the complaint, supplemented as appropriate by
interviews of the complainant" alleges "the existence of facts and
evidence to make a prima facie showing." 29 CFR 1986.104(e). As
explained in section 1986.104(e), if the complaint, supplemented as
appropriate, contains a prima facie allegation, and the respondent does
not show clear and convincing evidence that it would have taken the
same action in the absence of the alleged protected activity, OSHA
conducts an investigation to determine whether there is reasonable
cause to believe that retaliation has occurred. See 49 U.S.C.
42121(b)(2), 29 CFR 1986.104(e).
Section 1986.104 Investigation
This section describes the procedures that apply to the
investigation of complaints under SPA. Paragraph (a) of this section
outlines the procedures for notifying the parties and the U.S. Coast
Guard of the complaint and notifying the respondent of its rights under
these regulations. Paragraph (b) describes the procedures for the
respondent to submit its response to the complaint. Paragraph (c)
explains that the Agency will share respondent's submissions with the
complainant, with redactions in accordance with the Privacy Act of
1974, 5 U.S.C. 552a, et seq., and other applicable confidentiality laws
as necessary, and will permit the complainant to respond to those
submissions. The Agency expects that sharing information with
complainants will assist OSHA in conducting full and fair
investigations and the Assistant Secretary in thoroughly assessing
defenses raised by respondents. Paragraph (d) of this section discusses
confidentiality of information provided during investigations.
Paragraph (e) sets forth the applicable burdens of proof. As
discussed above, SPA adopts the relevant provisions of STAA, which in
turn adopts the burden of proof of AIR21. A complainant must make an
initial prima facie showing that protected activity was "a
contributing factor" in the adverse action alleged in the complaint,
i.e., that the protected activity, alone or in combination with other
factors, affected in some way the outcome of the employer's decision.
See Ferguson v. New Prime, Inc., No. 10-75, 2011 WL 4343278, at *3 (ARB
Aug. 31, 2011); Clarke v. Navajo Express, No. 09-114, 2011 WL 2614326,
at *3 (ARB June 29, 2011). The complainant will be considered to have
met the required burden if the complaint on its face, supplemented as
appropriate through interviews of the complainant, alleges the
existence of facts and either direct or circumstantial evidence to meet
the required showing. The complainant's burden may be satisfied, for
example, if he or she shows that the adverse action took place shortly
after protected activity, giving rise to the inference that it was a
contributing factor in the adverse action.
If the complainant does not make the required prima facie showing,
the investigation must be discontinued and the complaint dismissed. See
Trimmer v. U.S. Dep't of Labor, 174 F.3d 1098, 1101 (10th Cir. 1999)
(noting that the burden-shifting framework of the ERA, which is the
same framework now found in STAA and therefore SPA, served a
"gatekeeping function" that "stemm[ed] frivolous complaints"). Even
in cases where the complainant successfully makes a prima facie
showing, the investigation must be discontinued if the employer
demonstrates, by clear and convincing evidence, that it would have
taken the same adverse action in the absence of the protected activity.
Thus, OSHA must dismiss a complaint under SPA and not investigate (or
cease investigating) if either: (1) The complainant fails to meet the
prima facie showing that the protected activity was a contributing
factor in the adverse action; or (2) the employer rebuts that showing
by clear and convincing evidence that it would have taken the same
adverse action absent the protected activity.
Paragraph (f) describes the procedures the Assistant Secretary will
follow prior to the issuance of findings and a preliminary order when
the Assistant Secretary has reasonable cause to believe that a
violation has occurred. Its purpose is to ensure compliance with the
Due Process Clause of the Fifth Amendment, as interpreted by the
Supreme Court in Brock v. Roadway Express, Inc., 481 U.S. 252 (1987)
(requiring OSHA to give a STAA respondent the opportunity to review the
substance of the evidence and respond, prior to ordering preliminary
reinstatement).
Section 1986.105 Issuance of Findings and Preliminary Orders
This section provides that, within 60 days of the filing of a
complaint and on the basis of information obtained in the
investigation, the Assistant Secretary will issue written findings
regarding whether there is reasonable cause to believe that the
complaint has merit. If the Assistant Secretary concludes that there is
reasonable cause to believe that the complaint has merit, the Assistant
Secretary will order appropriate relief, including: a requirement that
the person take affirmative action to abate the violation;
reinstatement to the seaman's former position; compensatory damages
including back pay with interest and damages such as litigation costs;
and, if the Assistant Secretary so chooses, punitive damages up to
$250,000. Affirmative action to abate the violation includes a variety
of measures, such as posting notices about SPA orders and rights, as
well as expungement of adverse comments in a personnel record. See
Scott v. Roadway Express, Inc., No. 01-065, 2003 WL 21269144, at *1-2
(ARB May 29, 2003) (posting notices of STAA orders and rights); Pollock
v. Continental Express, Nos. 07-073, 08-051, 2010 WL 1776974, at *9
(ARB Apr. 7, 2010) (expungement of adverse references).
The findings and, where appropriate, preliminary order, advise the
parties of their right to file objections to the findings of the
Assistant Secretary and to request a hearing. If no objections are
filed within 30 days of receipt of the findings, the findings and
any preliminary order of the Assistant
Secretary become the final decision and order of the Secretary. If
objections are timely filed, any order of preliminary reinstatement
will take effect, but the remaining provisions of the order will not
take effect until administrative proceedings are completed.
In appropriate circumstances, in lieu of preliminary reinstatement,
OSHA may order that the complainant receive the same pay and benefits
that he received prior to his termination, but not actually return to
work. Smith v. Lake City Enterprises, Inc., Nos. 09-033, 08-091, 2010
WL 3910346, at *8 (ARB Sept. 24, 2010) (holding that an employer who
violated STAA was to compensate the complainant with "front pay" when
reinstatement was not possible). Such front pay or economic
reinstatement is also employed in cases arising under section 105(c) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 815(c)(2).
See, e.g., Sec'y of Labor ex rel. York v. BR&D Enters., Inc., 23 FMSHRC
697, 2001 WL 1806020, at *1 (ALJ June 26, 2001). Front pay has been
recognized as a possible remedy in cases under the whistleblower
statutes enforced by OSHA in circumstances where reinstatement would
not be appropriate. See, e.g., Hagman v. Washington Mutual Bank, ALJ
No. 2005-SOX-73, 2006 WL 6105301, at *32 (Dec. 19, 2006) (noting that
while reinstatement is the "preferred and presumptive remedy" under
Sarbanes-Oxley, "[f]ront pay may be awarded as a substitute when
reinstatement is inappropriate due to: (1) An employee's medical
condition that is causally related to her employer's retaliatory action
* * * (2) manifest hostility between the parties * * * (3) the fact
that claimant's former position no longer exists * * * or (4) the fact
that employer is no longer in business at the time of the decision");
Hobby v. Georgia Power Co., ARB No. 98-166, ALJ No. 1990-ERA-30 (ARB
Feb. 9, 2001) (noting circumstances in which front pay may be available
in lieu of reinstatement but ordering reinstatement), aff'd sub nom.
Hobby v. USDOL, No. 01-10916 (11th Cir. Sept. 30, 2002) (unpublished);
Brown v. Lockheed Martin Corp., ALJ No. 2008-SOX-49, 2010 WL 2054426,
at *55-56 (Jan. 15, 2010) (same). Congress intended that seamen be
preliminarily reinstated to their positions if OSHA finds reasonable
cause to believe that they were discharged in violation of SPA. When
OSHA finds a violation, the norm is for OSHA to order immediate
preliminary reinstatement. Neither an employer nor an employee has a
statutory right to choose economic reinstatement. Rather, economic
reinstatement is designed to accommodate situations in which evidence
establishes to OSHA's satisfaction that reinstatement is inadvisable
for some reason, notwithstanding the employer's retaliatory discharge
of the seaman. In such situations, actual reinstatement might be
delayed until after the administrative adjudication is completed as
long as the seaman continues to receive his or her pay and benefits and
is not otherwise disadvantaged by a delay in reinstatement. There is no
statutory basis for allowing the employer to recover the costs of
economically reinstating a seaman should the employer ultimately
prevail in the whistleblower adjudication.
In ordering interest on back pay, the Secretary has determined
that, instead of computing the interest due by compounding quarterly
the Internal Revenue Service interest rate for the underpayment of
taxes, which under 26 U.S.C. 6621 is generally the Federal short-term
rate plus three percentage points, interest will be compounded daily.
The Secretary believes that daily compounding of interest better
achieves the make-whole purpose of a back pay award. Daily compounding
of interest has become the norm in private lending and recently was
found to be the most appropriate method of calculating interest on back
pay by the National Labor Relations Board. See Jackson Hosp. Corp. v.
United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. &
Serv. Workers Int'l Union, 356 NLRB No. 8, 2010 WL 4318371, at *3-4
(2010). Additionally, interest on tax underpayments under the Internal
Revenue Code, 26 U.S.C. 6621, is compounded daily pursuant to 26 U.S.C.
6622(a).
Subpart B--Litigation
Section 1986.106 Objections to the Findings and the Preliminary Order
and Request for a Hearing
To be effective, objections to the findings of the Assistant
Secretary must be in writing and must be filed with the Chief
Administrative Law Judge within 30 days of receipt of the findings. The
date of the postmark, facsimile transmittal, or electronic
communication transmittal is considered the date of the filing; if the
objection is filed in person, by hand-delivery or other means, the
objection is filed upon receipt. The filing of objections also is
considered a request for a hearing before an ALJ. Although the parties
are directed to serve a copy of their objections on the other parties
of record and the OSHA official who issued the findings, the failure to
serve copies of the objections on the other parties of record does not
affect the ALJ's jurisdiction to hear and decide the merits of the
case. See Shirani v. Calvert Cliffs Nuclear Power Plant, Inc., No. 04-
101, 2005 WL 2865915, at *7 (ARB Oct. 31, 2005).
A respondent may file a motion to stay OSHA's preliminary order of
reinstatement with the Office of Administrative Law Judges. However, a
stay will be granted only on the basis of exceptional circumstances.
The Secretary believes that a stay of the Assistant Secretary's
preliminary order of reinstatement would be appropriate only where the
respondent can establish the necessary criteria for a stay, i.e., the
respondent would suffer irreparable injury; the respondent is likely to
succeed on the merits; a balancing of possible harms to the parties
favors the respondent; and the public interest favors a stay.
Section 1986.107 Hearings
This section adopts the rules of practice and procedure for
administrative hearings before the Office of Administrative Law Judges
at 29 CFR Part 18 subpart A. This section provides that the hearing is
to commence expeditiously, except upon a showing of good cause or
unless otherwise agreed to by the parties. Hearings will be conducted
de novo, on the record. If both the complainant and respondent object
to the findings and/or order of the Assistant Secretary, an ALJ will
conduct a single, consolidated hearing. This section states that ALJs
have broad power to limit discovery in order to expedite the hearing.
This furthers an important goal of SPA--to have unlawfully terminated
seamen reinstated as quickly as possible.
This section explains that formal rules of evidence will not apply,
but rules or principles designed to assure production of the most
probative evidence will be applied. The ALJ may exclude evidence that
is immaterial, irrelevant, or unduly repetitious. This is consistent
with the Administrative Procedure Act, which provides at 5 U.S.C.
556(d): "Any oral or documentary evidence may be received, but the
Agency as a matter of policy shall provide for the exclusion of
irrelevant, immaterial, or unduly repetitious evidence * * *" See also
Federal Trade Commission v. Cement Institute, 333 U.S. 683, 705-06
(1948) (administrative agencies not restricted by rigid rules of
evidence). Furthermore, it is inappropriate to apply
the technical rules of evidence in Part 18 because the Secretary
anticipates that complainants will often appear pro se, as is the case
with other whistleblower statutes the Department of Labor administers.
Also, hearsay evidence is often appropriate in whistleblower cases, as
there often is no relevant evidence other than hearsay to prove
discriminatory intent. ALJs have the responsibility to determine the
appropriate weight to be given to such evidence. For these reasons the
interests of determining all of the relevant facts are best served by
not having strict evidentiary rules.
Section 1986.108 Role of Federal Agencies
Paragraph (a)(1) of this section explains that the Assistant
Secretary, represented by an attorney from the appropriate Regional
Solicitor's office, ordinarily will be the prosecuting party in cases
in which the respondent objects to the findings or the preliminary
reinstatement order. This has been the practice under STAA, from which
the SPA's procedures are drawn, and the public interest generally
requires the Assistant Secretary's participation in such matters. The
case reports show that there has been relatively little litigation
under SPA to date, and OSHA believes that relatively few private
attorneys have developed adequate expertise in representing SPA
whistleblower complainants.
Where the complainant, but not the respondent, objects to the
findings or order, the regulations retain the Assistant Secretary's
discretion to participate as a party or amicus curiae at any stage of
the proceedings, including the right to petition for review of an ALJ
decision.
Paragraph (a)(2) clarifies that if the Assistant Secretary assumes
the role of prosecuting party in accordance with paragraph (a)(1), he
or she may, upon written notice to the other parties, withdraw as the
prosecuting party in the exercise of prosecutorial discretion. If the
Assistant Secretary withdraws, the complainant will become the
prosecuting party and the ALJ will issue appropriate orders to regulate
the course of future proceedings.
Paragraph (a)(3) provides that copies of documents in all cases
must be sent to all parties, or if represented by counsel, to them. If
the Assistant Secretary is participating in the proceeding, copies of
documents must be sent to the Regional Solicitor's office representing
the Assistant Secretary.
Paragraph (b) states that the U.S. Coast Guard, if interested in a
proceeding, also may participate as amicus curiae at any time in the
proceeding. This paragraph also permits the U.S. Coast Guard to request
copies of all documents, regardless of whether it is participating in
the case.
Section 1986.109 Decisions and Orders of the Administrative Law Judge
This section sets forth, in paragraph (a), the requirements for the
content of the decision and order of the ALJ. Paragraphs (a) and (b)
state the standards for finding a violation under SPA and for
precluding such a finding.
Specifically, the complainant must show that the protected activity
was a "contributing factor" in the adverse action alleged in the
complaint. A contributing factor is "any factor which, alone or in
connection with other factors, tends to affect in any way the outcome
of the decision." Clarke, supra, at *3. The complainant (a term that,
in this paragraph, refers to the Assistant Secretary if he or she is
the prosecuting party) can succeed by providing either direct or
indirect proof of contribution. Direct evidence is evidence that
conclusively connects the protected activity and the adverse action and
does not rely upon inference. If the complainant does not produce
direct evidence, he or she must proceed indirectly, or inferentially,
by proving by a preponderance of the evidence that a motive prohibited
by SPA was the true reason for the adverse action. One type of
indirect, also known as circumstantial, evidence is evidence that
discredits the respondent's proffered reasons for the adverse action,
demonstrating instead that they were pretext for retaliation. Id.
Another type of circumstantial evidence is temporal proximity between
the protected activity and the adverse action. Ferguson, supra, at *2.
The respondent may avoid liability if it "demonstrates by clear and
convincing evidence" that it would have taken the same adverse action
in any event. Clear and convincing evidence is evidence indicating that
the thing to be proved is highly probably or reasonably certain.
Clarke, supra, at *3.
Paragraph (c) provides that the Assistant Secretary's
determinations about when to proceed with an investigation and when to
dismiss a complaint without an investigation or without a complete
investigation are discretionary decisions not subject to review by the
ALJ. The ALJ hears cases de novo and, therefore may not remand cases to
the Assistant Secretary to conduct an investigation or make further
factual findings. If there otherwise is jurisdiction, the ALJ will hear
the case on the merits or dispose of the matter without a hearing if
warranted by the facts and circumstances.
Paragraph (d)(1) describes the remedies that the ALJ may order and
provides that interest on backpay will be calculated using the interest
rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will
be compounded daily. (See the earlier discussion of 1986.105.) In
addition, paragraph (d)(2) in this section requires the ALJ to issue an
order denying the complaint if he or she determines that the respondent
has not violated SPA.
Paragraph (e) requires that the ALJ's decision be served on all
parties to the proceeding, the Assistant Secretary, and the Associate
Solicitor, Division of Occupational Safety and Health, U.S. Department
of Labor. Paragraph (e) also provides that any ALJ decision requiring
reinstatement or lifting an order of reinstatement by the Assistant
Secretary will be effective immediately upon receipt of the decision by
the respondent. All other portions of the ALJ's order will be effective
14 days after the date of the decision unless a timely petition for
review has been filed with the ARB.
Section 1986.110 Decisions and Orders of the Administrative Review
Board
Paragraph (a) sets forth rules regarding seeking review of an ALJ's
decision with the ARB. Upon the issuance of the ALJ's decision, the
parties have 14 days within which to petition the ARB for review of
that decision. If no timely petition for review is filed with the ARB,
the decision of the ALJ becomes the final decision of the Secretary and
is not subject to judicial review. The date of the postmark, facsimile
transmittal, or electronic communication transmittal is considered the
date of filing of the petition; if the petition is filed in person, by
hand delivery or other means, the petition is considered filed upon
receipt. In addition to being sent to the ARB, the petition is to be
served on all parties, the Chief Administrative Law Judge, the
Assistant Secretary, and, in cases in which the Assistant Secretary is
a party, the Associate Solicitor, Division of Occupational Safety and
Health, U.S. Department of Labor.
Consistent with the procedures for petitions for review under other
OSHA-administered whistleblower laws, paragraph (b) of this section
indicates that the ARB has discretion to accept or reject review in SPA
whistleblower cases. Congress intended these
whistleblower cases to be expedited, as reflected by the provision in
STAA, which applies to SPA, providing for a hearing de novo in district
court if the Secretary has not issued a final decision within 210 days
of the filing of the complaint. Making review of SPA whistleblower
cases discretionary may assist in furthering that goal. As noted in
paragraph (a) of this section, the parties should identify in their
petitions for review the legal conclusions or orders to which they
object, or the objections may be deemed waived. The ARB has 30 days to
decide whether to grant the petition for review. If the ARB does not
grant the petition, the decision of the ALJ becomes the final decision
of the Secretary.
When the ARB accepts a petition for review, the ARB will review the
ALJ's factual determinations under the substantial evidence standard.
If a timely petition for review is filed with the ARB, any relief
ordered by the ALJ, except for that portion ordering reinstatement, is
inoperative while the matter is pending before the ARB. In exceptional
circumstances, however, the ARB may grant a motion to stay an ALJ's
order of reinstatement. A stay of a preliminary order of reinstatement
is appropriate only where the respondent can establish the necessary
criteria for a stay, i.e., the respondent will suffer irreparable
injury; the respondent is likely to succeed on the merits; a balancing
of possible harms to the parties favors the respondent; and the public
interest favors a stay.
Paragraph (c) incorporates the statutory requirement that the
Secretary's final decision be issued within 120 days of the conclusion
of the hearing. The hearing is deemed concluded 14 days after the date
of the ALJ's decision unless a motion for reconsideration has been
filed with the ALJ, in which case the hearing is concluded on the date
the motion for reconsideration is ruled upon or 14 days after a new ALJ
decision is issued. This paragraph further provides for the ARB's
decision in all cases to be served on all parties, the Chief
Administrative Law Judge, the Assistant Secretary, and the Associate
Solicitor, Division of Occupational Safety and Health, U.S. Department
of Labor, even if the Assistant Secretary is not a party.
Paragraph (d) describes the remedies the ARB can award if it
concludes that the respondent has violated SPA. (See the earlier
discussion of remedies at 1986.105 and .109.) Under paragraph (e), if
the ARB determines that the respondent has not violated the law, it
will issue an order denying the complaint.
Subpart C--Miscellaneous Provisions
Section 1986.111 Withdrawal of SPA Complaints, Findings, Objections,
and Petitions for Review; Settlement
This section provides procedures and time periods for the
withdrawal of complaints, the withdrawal of findings and/or preliminary
orders by the Assistant Secretary, and the withdrawal of objections to
findings and/or orders. It also provides for approval of settlements at
the investigative and adjudicative stages of the case.
Paragraph (a) permits a complainant to withdraw, orally or in
writing, his or her complaint to the Assistant Secretary, at any time
prior to the filing of objections to the Assistant Secretary's findings
and/or preliminary order. The Assistant Secretary will confirm in
writing the complainant's desire to withdraw and will determine whether
to approve the withdrawal. If approved, the Assistant Secretary will
notify all parties if the withdrawal is approved. Complaints that are
withdrawn pursuant to settlement agreements prior to the filing of
objections must be approved in accordance with the settlement approval
procedures in paragraph (d). The complainant may not withdraw his or
her complaint after the filing of objections to the Assistant
Secretary's findings and/or preliminary order.
Under paragraph (b), the Assistant Secretary may withdraw his or
her findings and/or preliminary order at any time before the expiration
of the 30-day objection period described in section 1986.106, if no
objection has yet been filed. The Assistant Secretary may substitute
new findings and/or a preliminary order, and the date of receipt of the
substituted findings and/or order will begin a new 30-day objection
period.
Paragraph (c) addresses situations in which parties seek to
withdraw either objections to the Assistant Secretary's findings and/or
preliminary order or petitions for review of ALJ decisions. A party may
withdraw its objections to the Assistant Secretary's findings and/or
preliminary order at any time before the findings and/or preliminary
order become final by filing a written withdrawal with the ALJ.
Similarly, if a case is on review with the ARB, a party may withdraw
its petition for review of an ALJ's decision at any time before that
decision becomes final by filing a written withdrawal with the ARB. The
ALJ or the ARB, depending on where the case is pending, will determine
whether to approve the withdrawal of the objections or the petition for
review. Paragraph (c) clarifies that if the ALJ approves a request to
withdraw objections to the Assistant Secretary's findings and/or
preliminary order, and there are no other pending objections, the
Assistant Secretary's findings and/or preliminary order will become the
final order of the Secretary. Likewise, if the ARB approves a request
to withdraw a petition for review of an ALJ decision, and there are no
other pending petitions for review of that decision, the ALJ's decision
will become the final order of the Secretary. Finally, paragraph (c)
provides that if objections or a petition for review are withdrawn
because of settlement, the settlement must be submitted for approval in
accordance with paragraph (d).
Paragraph (d)(1) states that a case may be settled at the
investigative stage if the Assistant Secretary, the complainant, and
the respondent agree. The Assistant Secretary's approval of a
settlement reached by the respondent and the complainant demonstrates
his or her consent and achieves the consent of all three parties.
Paragraph (d)(2) permits a case to be settled, if the participating
parties agree and the ALJ before whom the case is pending approves, at
any time after the filing of objections to the Assistant Secretary's
findings and/or preliminary order. Similarly, if the case is before the
ARB, the ARB may approve a settlement between the participating
parties.
Under paragraph (e), settlements approved by the Assistant
Secretary, the ALJ, or the ARB will constitute the final order of the
Secretary and may be enforced pursuant to 49 U.S.C. 31105(e), as
incorporated by 46 U.S.C. 2114(b).
Section 1986.112 Judicial Review
This section describes the statutory provisions for judicial review
of decisions of the Secretary. Paragraph (a) provides that within 60
days of the issuance of a final order under sections 1986.109 or
1986.110, a person adversely affected or aggrieved by such order may
file a petition for review of the order in the United States Court of
Appeals for the circuit in which the violation allegedly occurred or
the circuit in which the complainant resided on the date of the
violation. Paragraph (b) states that a final order will not be subject
to judicial review in any criminal or other civil proceeding. Paragraph
(c) requires that, in cases where judicial review is sought, the ARB or
ALJ, as the case may be, submit the record of proceedings to the
appropriate court pursuant to the Federal Rules of Appellate Procedure
and the local rules of such court.
Section 1986.113 Judicial Enforcement
This section provides that the Secretary may obtain judicial
enforcement of orders, including orders approving settlement
agreements, by filing a civil action seeking such enforcement in the
United States district court for the district in which the violation
occurred.
Section 1986.114 District Court Jurisdiction of Retaliation Complaints
Under SPA
This section allows a complainant to bring an action in district
court for de novo review of the allegations contained in the complaint
filed with OSHA if there has been no final decision of the Secretary
and 210 days have passed since the filing of that complaint and the
delay was not due to the complainant's bad faith. This section reflects
the Secretary's position that it would not be reasonable to construe
the statute to permit a complainant to initiate an action in federal
court after the Secretary issues a final decision, even if the date of
the final decision is more than 210 days after the filing of the
administrative complaint. In the Secretary's view, the purpose of the
"kick out" provision is to aid the complainant in receiving a prompt
decision. That goal is not implicated in a situation where the
complainant already has received a final decision from the Secretary.
In addition, permitting the complainant to file a new case in district
court in such circumstances could conflict with the parties' rights to
seek judicial review of the Secretary's final decision in the court of
appeals.
Paragraph (b) of this section requires complainants to provide
file-stamped copies of their complaint within seven days after filing a
complaint in district court to the Assistant Secretary, the ALJ, or the
ARB, depending on where the proceeding is pending. A copy of the
complaint also must be provided to the OSHA official who issued the
findings and/or preliminary order, the Assistant Secretary, and the
Associate Solicitor, Division of Occupational Safety and Health, U.S.
Department of Labor. This provision is necessary to notify the Agency
that the complainant has opted to file a complaint in district court.
This provision is not a substitute for the complainant's compliance
with the requirements for service of process of the district court
complaint contained in the Federal Rules of Civil Procedure and the
local rules of the district court where the complaint is filed.
Section 1986.115 Special Circumstances; Waiver of Rules
This section provides that in circumstances not contemplated by
these rules or for good cause the ALJ or the ARB may, upon application
and three days notice to the parties, waive any rule or issue such
orders as justice or the administration of SPA's whistleblower
provision requires.
IV. Paperwork Reduction Act
This rule contains a reporting provision (filing a retaliation
complaint, section 1986.103) which was previously reviewed as a
statutory requirement of the Seaman's Protection Act (46 U.S.C. 2114)
and approved for use by the Office of Management and Budget ("OMB"),
and was assigned OMB control number 1218-0236 under the provisions of
the Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163
(1995). A non-material change has been submitted to OMB to include the
regulatory citation.
V. Administrative Procedure Act
The notice and comment rulemaking procedures of Section 553 of the
Administrative Procedure Act (APA) do not apply "to interpretative
rules, general statements of policy, or rules of agency organization,
procedure, or practice." 5 U.S.C. 553(b)(A). This is a rule of agency
procedure, practice, and interpretation within the meaning of that
section, since it provides procedures for the handling of retaliation
complaints. Therefore, publication in the Federal Register of a notice
of proposed rulemaking and request for comments are not required for
these regulations. Although this is a procedural rule not subject to
the notice and comment procedures of the APA, the Agency is providing
persons interested in this interim final rule 60 days to submit
comments. A final rule will be published after the Agency receives and
reviews the public's comments.
Furthermore, because this rule is procedural and interpretative
rather than substantive, the normal requirement of 5 U.S.C. 553(d) that
a rule be effective 30 days after publication in the Federal Register
is inapplicable. The Assistant Secretary also finds good cause to
provide an immediate effective date for this interim final rule. It is
in the public interest that the rule be effective immediately so that
parties may know what procedures are applicable to pending cases.
VI. Executive Orders 12866 and 13563; Unfunded Mandates Reform Act of
1995; Executive Order 13132
The Department has concluded that this rule is not a "significant
regulatory action" within the meaning of Section 3(f)(4) of Executive
Order 12866, as reaffirmed by Executive Order 13563, because it is not
likely to result in a rule that may: (1) Have an annual effect on the
economy of $100 million or more or adversely affect in a material way
the economy, a sector of the economy, productivity, competition, jobs,
the environment, public health or safety, or State, local, or tribal
governments or communities; (2) create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
Executive Order 12866. Therefore, no regulatory impact analysis has
been prepared.
The rule is procedural and interpretative in nature, and it is
expected to have a negligible economic impact. For this reason, and the
fact that no notice of proposed rulemaking has been published, no
statement is required under Section 202 of the Unfunded Mandates Reform
Act of 1995, 2 U.S.C. 1531 et seq. Finally, this rule does not have
"federalism implications." The rule does not have "substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government" and therefore
is not subject to Executive Order 13132 (Federalism).
VII. Regulatory Flexibility Analysis
The Department has determined that the regulation will not have a
significant economic impact on a substantial number of small entities.
The regulation simply implements procedures necessitated by enactment
of SPA. Furthermore, no certification to this effect is required and no
regulatory flexibility analysis is required because no proposed rule
has been issued.
List of Subjects in 29 CFR Part 1986
Administrative practice and procedure, Employment, Investigations,
Marine safety, Reporting and recordkeeping requirements, Safety,
Seamen, Transportation, Whistleblowing.
Authority and Signature
This document was prepared under the direction and control of David
Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational
Safety and Health.
Signed at Washington, DC on January 31, 2013.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
Accordingly, for the reasons set out in the preamble, 29 CFR part 1986
is added to read as follows:
PART 1986--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS
UNDER THE EMPLOYEE PROTECTION PROVISION OF THE SEAMAN'S PROTECTION
ACT (SPA), AS AMENDED.
Subpart A--Complaints, Investigations, Findings, and Preliminary Orders
Sec.
1986.100 Purpose and scope.
1986.101 Definitions.
1986.102 Obligations and prohibited acts.
1986.103 Filing of retaliation complaints.
1986.104 Investigation.
1986.105 Issuance of findings and preliminary orders.
Subpart B--Litigation
1986.106 Objections to the findings and the preliminary order and
request for a hearing.
1986.107 Hearings.
1986.108 Role of Federal agencies.
1986.109 Decisions and orders of the administrative law judge.
1986.110 Decisions and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
1986.111 Withdrawal of SPA complaints, findings, objections, and
petitions for review; settlement.
1986.112 Judicial review.
1986.113 Judicial enforcement.
1986.114 District court jurisdiction of retaliation complaints under
SPA.
1986.115 Special circumstances; waiver of rules.
Authority: 46 U.S.C. 2114; 49 U.S.C. 31105; Secretary's Order
1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012); Secretary's
Order 1-2010 (Jan. 15, 2010), 75 FR 3924-01 (Jan. 25, 2010).
Subpart A--Complaints, Investigations, Findings, and Preliminary
Orders
Sec. 1986.100 Purpose and scope.
(a) This part sets forth the procedures for, and interpretations
of, the Seaman's Protection Act (SPA), 46 U.S.C. 2114, as amended,
which protects a seaman from retaliation because the seaman has engaged
in protected activity pertaining to compliance with maritime safety
laws and accompanying regulations. SPA incorporates the procedures,
requirements, and rights described in the whistleblower provision of
the Surface Transportation Assistance Act (STAA), 49 U.S.C. 31105.
(b) This part establishes procedures pursuant to the statutory
provisions set forth above for the expeditious handling of retaliation
complaints filed by seamen or persons acting on their behalf. These
rules, together with those rules codified at 29 CFR part 18, set forth
the procedures for submission of complaints, investigations, issuance
of findings and preliminary orders, objections to findings, litigation
before administrative law judges (ALJs), post-hearing administrative
review, withdrawals and settlements, and judicial review and
enforcement. In addition, these rules provide the Secretary's
interpretations on certain statutory issues.
Sec. 1986.101 Definitions.
As used in this part:
(a) Act means the Seaman's Protection Act (SPA), 46 U.S.C. 2114, as
amended.
(b) Assistant Secretary means the Assistant Secretary of Labor for
Occupational Safety and Health or the person or persons to whom he or
she delegates authority under the Act.
(c) Business days means days other than Saturdays, Sundays, and
Federal holidays.
(d) Citizen of the United States means:
(1) An individual who is a national of the United States as defined
in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C.
1101 (a)(22)) or a corporation, partnership, association, or other
business entity if the controlling interest is owned by citizens of the
United States. The controlling interest in a corporation is owned by
citizens of the United States if:
(i) Title to the majority of the stock in the corporation is vested
in citizens of the United States free from any trust or fiduciary
obligation in favor of a person not a citizen of the United States;
(ii) The majority of the voting power in the corporation is vested
in citizens of the United States;
(iii) There is no contract or understanding by which the majority
of the voting power in the corporation may be exercised, directly or
indirectly, in behalf of a person not a citizen of the United States;
and
(iv) There is no other means by which control of the corporation is
given to or permitted to be exercised by a person not a citizen of the
United States.
(2) Furthermore, a corporation is only a citizen of the United
States if:
(i) It is incorporated under the laws of the United States or a
State;
(ii) Its chief executive officer, by whatever title, and the
chairman of its board of directors are citizens of the United States;
and
(iii) No more of its directors are noncitizens than a minority of
the number necessary to constitute a quorum.
(e) Complainant means the seaman who filed a SPA whistleblower
complaint or on whose behalf a complaint was filed.
(f) Cooperated means any assistance or participation with an
investigation, at any stage of the investigation, and regardless of the
outcome of the investigation.
(g) Maritime safety law or regulation includes any statute or
regulation regarding health or safety that applies to any person or
equipment on a vessel.
(h) Notify or notified includes any oral or written communications.
(i) OSHA means the Occupational Safety and Health Administration of
the United States Department of Labor.
(j) Person means one or more individuals or other entities,
including but not limited to corporations, companies, associations,
firms, partnerships, societies, and joint stock companies.
(k) Report or reported means any oral or written communications.
(l) Respondent means the person alleged to have violated 46 U.S.C.
2114.
(m) Seaman means any individual engaged or employed in any capacity
on board a vessel owned by a citizen of the United States. The term
includes an individual formerly performing the work described above or
an applicant for such work.
(n) Secretary means the Secretary of Labor or persons to whom
authority under the Act has been delegated.
(o) State means a State of the United States, the District of
Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, and
the Northern Mariana Islands.
(p) Vessel means every description of watercraft or other
artificial contrivance used, or capable of being used, as a means of
transportation on water.
(q) Vessel owner includes all of the agents of the owner, including
the vessel's master.
(r) Any future amendments to SPA that affect the definition of a
term or terms listed in this section will apply in lieu of the
definition stated herein.
Sec. 1986.102 Obligations and prohibited acts.
(a) A person may not retaliate against any seaman because the
seaman:
(1) In good faith reported or is about to report to the Coast Guard
or other appropriate Federal agency or department that the seaman believes that
a violation of a maritime safety law or regulation prescribed under
that law or regulation has occurred;
(2) Refused to perform duties ordered by the seaman's employer
because the seaman has a reasonable apprehension or expectation that
performing such duties would result in serious injury to the seaman,
other seamen, or the public;
(3) Testified in a proceeding brought to enforce a maritime safety
law or regulation prescribed under that law;
(4) Notified, or attempted to notify, the vessel owner or the
Secretary of the department in which the Coast Guard is operating of a
work-related personal injury or work-related illness of a seaman;
(5) Cooperated with a safety investigation by the Secretary of the
department in which the Coast Guard is operating or the National
Transportation Safety Board;
(6) Furnished information to the Secretary of the department in
which the Coast Guard is operating, the National Transportation Safety
Board, or any other public official as to the facts relating to any
marine casualty resulting in injury or death to an individual or damage
to property occurring in connection with vessel transportation; or
(7) Accurately reported hours of duty under part A of subtitle II
of title 46 of the United States Code.
(b) Retaliation means any discrimination against a seaman
including, but is not limited to, discharging, demoting, suspending,
harassing, intimidating, threatening, restraining, coercing,
blacklisting, or disciplining a seaman.
(c) For purposes of paragraph (a)(2) of this section, the
circumstances causing a seaman's apprehension of serious injury must be
of such a nature that a reasonable person, under similar circumstances,
would conclude that there is a real danger of an injury or serious
impairment of health resulting from the performance of duties as
ordered by the seaman's employer. To qualify for protection based on
activity described in paragraph (a)(2) of this section, the seaman must
have sought from the employer, and been unable to obtain, correction of
the unsafe condition. Any seaman who requests such a correction shall
be protected against retaliation because of the request.
Sec. 1986.103 Filing of retaliation complaints.
(a) Who may file. A seaman who believes that he or she has been
retaliated against by a person in violation of SPA may file, or have
filed by any person on the seaman's behalf, a complaint alleging such
retaliation.
(b) Nature of filing. No particular form of complaint is required.
A complaint may be filed orally or in writing. Oral complaints will be
reduced to writing by OSHA. If a seaman is unable to file a complaint
in English, OSHA will accept the complaint in any other language.
(c) Place of filing. The complaint should be filed with the OSHA
office responsible for enforcement activities in the geographical area
where the seaman resides or was employed, but may be filed with any
OSHA officer or employee. Addresses and telephone numbers for these
officials are set forth in local directories and at the following
Internet address: http://www.osha.gov.
(d) Time for filing. Not later than 180 days after an alleged
violation occurs, a seaman who believes that he or she has been
retaliated against in violation of SPA may file, or have filed by any
person on his or her behalf, a complaint alleging such retaliation. The
date of the postmark, facsimile transmittal, electronic communication
transmittal, telephone call, hand-delivery, delivery to a third-party
commercial carrier, or in-person filing at an OSHA office will be
considered the date of filing. The time for filing a complaint may be
tolled for reasons warranted by applicable case law.
(e) Relationship to section 11(c) complaints. A complaint filed
under SPA alleging facts that would also constitute a violation of
section 11(c) of the Occupational Safety and Health Act, 29 U.S.C.
660(c), will be deemed to be a complaint under both SPA and section
11(c). Similarly, a complaint filed under section 11(c) that alleges
facts that would also constitute a violation of SPA will be deemed to
be a complaint filed under both SPA and section 11(c). Normal
procedures and timeliness requirements under the respective statutes
and regulations will be followed.
Sec. 1986.104 Investigation.
(a) Upon receipt of a complaint in the investigating office, the
Assistant Secretary will notify the respondent of the filing of the
complaint by providing the respondent with a copy of the complaint,
redacted in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, and
other applicable confidentiality laws. The Assistant Secretary will
also notify the respondent of the respondent's rights under paragraphs
(b) and (f) of this section. The Assistant Secretary will provide a
copy of the unredacted complaint to the complainant (or complainant's
legal counsel, if complainant is represented by counsel) and to the
U.S. Coast Guard.
(b) Within 20 days of receipt of the notice of the filing of the
complaint provided under paragraph (a) of this section, the respondent
may submit to the Assistant Secretary a written statement and any
affidavits or documents substantiating its position. Within the same 20
days, the respondent may request a meeting with the Assistant Secretary
to present its position.
(c) Throughout the investigation, the Agency will provide to the
complainant (or the complainant's legal counsel if complainant is
represented by counsel) a copy of all of respondent's submissions to
the Agency that are responsive to the complainant's whistleblower
complaint. Before providing such materials to the complainant, the
Agency will redact them, if necessary, in accordance with the Privacy
Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws.
The Agency will also provide the complainant with an opportunity to
respond to such submissions.
(d) Investigations will be conducted in a manner that protects the
confidentiality of any person who provides information on a
confidential basis, other than the complainant, in accordance with part
70 of this title.
(e)(1) A complaint will be dismissed unless the complainant has
made a prima facie showing that protected activity was a contributing
factor in the adverse action alleged in the complaint.
(2) The complaint, supplemented as appropriate by interviews of the
complainant, must allege the existence of facts and evidence to make a
prima facie showing as follows:
(i) The seaman engaged in a protected activity;
(ii) The respondent knew or suspected that the seaman engaged in
the protected activity;
(iii) The seaman suffered an adverse action; and
(iv) The circumstances were sufficient to raise the inference that
the protected activity was a contributing factor in the adverse action.
(3) For purposes of determining whether to investigate, the
complainant will be considered to have met the required burden if the
complaint on its face, supplemented as appropriate through interviews
of the complainant, alleges the existence of facts and either direct or
circumstantial evidence to meet the required showing, i.e., to give
rise to an inference that the respondent knew or suspected that the
seaman engaged in protected activity and that
the protected activity was a contributing factor in the adverse action.
The burden may be satisfied, for example, if the complainant shows that
the adverse action took place shortly after the protected activity,
giving rise to the inference that it was a contributing factor in the
adverse action. If the required showing has not been made, the
complainant (or the complainant's legal counsel if complainant is
represented by counsel) will be so notified and the investigation will
not commence.
(4) Notwithstanding a finding that a complainant has made a prima
facie showing, as required by this section, an investigation of the
complaint will not be conducted or will be discontinued if the
respondent demonstrates by clear and convincing evidence that it would
have taken the same adverse action in the absence of the complainant's
protected activity.
(5) If the respondent fails to make a timely response or fails to
satisfy the burden set forth in the prior paragraph, the Assistant
Secretary will proceed with the investigation. The investigation will
proceed whenever it is necessary or appropriate to confirm or verify
the information provided by the respondent.
(f) Prior to the issuance of findings and a preliminary order as
provided for in Sec. 1986.105, if the Assistant Secretary has
reasonable cause, on the basis of information gathered under the
procedures of this part, to believe that the respondent has violated
the Act and that preliminary reinstatement is warranted, the Assistant
Secretary will again contact the respondent (or the respondent's legal
counsel, if respondent is represented by counsel) to give notice of the
substance of the relevant evidence supporting the complainant's
allegations as developed during the course of the investigation. This
evidence includes any witness statements, which will be redacted to
protect the identity of confidential informants where statements were
given in confidence; if the statements cannot be redacted without
revealing the identity of confidential informants, summaries of their
contents will be provided. The complainant will also receive a copy of
the materials that must be provided to the respondent under this
paragraph. Before providing such materials to the complainant, the
Agency will redact them, if necessary, in accordance with the Privacy
Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws.
The respondent will be given the opportunity to submit a written
response, to meet with the investigators, to present statements from
witnesses in support of its position, and to present legal and factual
arguments. The respondent must present this evidence within 10 business
days of the Assistant Secretary's notification pursuant to this
paragraph, or as soon thereafter as the Assistant Secretary and the
respondent can agree, if the interests of justice so require.
Sec. 1986.105 Issuance of findings and preliminary orders.
(a) After considering all the relevant information collected during
the investigation, the Assistant Secretary will issue, within 60 days
of the filing of the complaint, written findings as to whether there is
reasonable cause to believe that the respondent retaliated against the
complainant in violation of SPA.
(1) If the Assistant Secretary concludes that there is reasonable
cause to believe that a violation has occurred, the Assistant Secretary
will accompany the findings with a preliminary order providing relief.
Such order will require, where appropriate: affirmative action to abate
the violation; reinstatement of the complainant to his or her former
position, with the same compensation, terms, conditions and privileges
of the complainant's employment; payment of compensatory damages (back
pay with interest and compensation for any special damages sustained as
a result of the retaliation, including any litigation costs, expert
witness fees, and reasonable attorney fees which the complainant has
incurred). Interest on back pay will be calculated using the interest
rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will
be compounded daily. The preliminary order may also require the
respondent to pay punitive damages of up to $250,000.
(2) If the Assistant Secretary concludes that a violation has not
occurred, the Assistant Secretary will notify the parties of that
finding.
(b) The findings and, where appropriate, the preliminary order will
be sent by certified mail, return receipt requested, to all parties of
record (and each party's legal counsel if the party is represented by
counsel). The findings and, where appropriate, the preliminary order
will inform the parties of the right to object to the findings and/or
the order and to request a hearing. The findings and, where
appropriate, the preliminary order also will give the address of the
Chief Administrative Law Judge, U.S. Department of Labor. At the same
time, the Assistant Secretary will file with the Chief Administrative
Law Judge, a copy of the original complaint and a copy of the findings
and/or order.
(c) The findings and the preliminary order will be effective 30
days after receipt by the respondent (or the respondent's legal counsel
if the respondent is represented by counsel), or on the compliance date
set forth in the preliminary order, whichever is later, unless an
objection and request for a hearing have been timely filed as provided
at Sec. 1986.106. However, the portion of any preliminary order
requiring reinstatement will be effective immediately upon the
respondent's receipt of the findings and the preliminary order,
regardless of any objections to the findings and/or the order.
Subpart B--Litigation
Sec. 1986.106 Objections to the findings and the preliminary order
and request for a hearing.
(a) Any party who desires review, including judicial review, must
file any objections and a request for a hearing on the record within 30
days of receipt of the findings and preliminary order pursuant to Sec.
1986.105(c). The objections and request for a hearing must be in
writing and state whether the objections are to the findings and/or the
preliminary order. The date of the postmark, facsimile transmittal, or
electronic communication transmittal is considered the date of filing;
if the objection is filed in person, by hand-delivery or other means,
the objection is filed upon receipt. Objections must be filed with the
Chief Administrative Law Judge, U.S. Department of Labor, and copies of
the objections must be mailed at the same time to the other parties of
record, and the OSHA official who issued the findings.
(b) If a timely objection is filed, all provisions of the
preliminary order will be stayed, except for the portion requiring
preliminary reinstatement, which will not be automatically stayed. The
portion of the preliminary order requiring reinstatement will be
effective immediately upon the respondent's receipt of the findings and
preliminary order, regardless of any objections to the order. The
respondent may file a motion with the Office of Administrative Law
Judges for a stay of the Assistant Secretary's preliminary order of
reinstatement, which shall be granted only based on exceptional
circumstances. If no timely objection is filed with respect to either
the findings or the preliminary order, the findings and/or preliminary
order will become the final decision of the Secretary, not subject to
judicial review.
Sec. 1986.107 Hearings.
(a) Except as provided in this part, proceedings will be conducted
in accordance with the rules of practice and procedure for
administrative hearings before the Office of Administrative Law Judges,
codified at subpart A of part 18 of this title.
(b) Upon receipt of an objection and request for hearing, the Chief
Administrative Law Judge will promptly assign the case to an ALJ who
will notify the parties, by certified mail, of the day, time, and place
of hearing. The hearing is to commence expeditiously, except upon a
showing of good cause or unless otherwise agreed to by the parties.
Hearings will be conducted de novo on the record. ALJs have broad
discretion to limit discovery in order to expedite the hearing.
(c) If both the complainant and the respondent object to the
findings and/or order, the objections will be consolidated, and a
single hearing will be conducted.
(d) Formal rules of evidence will not apply, but rules or
principles designed to assure production of the most probative evidence
will be applied. The ALJ may exclude evidence that is immaterial,
irrelevant, or unduly repetitious.
Sec. 1986.108 Role of Federal agencies.
(a)(1) The complainant and the respondent will be parties in every
proceeding. In any case in which the respondent objects to the findings
or the preliminary order, the Assistant Secretary ordinarily will be
the prosecuting party. In any other cases, at the Assistant Secretary's
discretion, the Assistant Secretary may participate as a party or
participate as amicus curiae at any stage of the proceeding. This right
to participate includes, but is not limited to, the right to petition
for review of a decision of an ALJ, including a decision approving or
rejecting a settlement agreement between the complainant and the
respondent.
(2) If the Assistant Secretary assumes the role of prosecuting
party in accordance with paragraph (a)(1) of this section, he or she
may, upon written notice to the ALJ or the Administrative Review Board,
as the case may be, and the other parties, withdraw as the prosecuting
party in the exercise of prosecutorial discretion. If the Assistant
Secretary withdraws, the complainant will become the prosecuting party
and the ALJ or the Administrative Review Board, as the case may be,
will issue appropriate orders to regulate the course of future
proceedings.
(3) Copies of documents in all cases shall be sent to all parties,
or if they are represented by counsel, to the latter. In cases in which
the Assistant Secretary is a party, copies of the documents shall be
sent to the Regional Solicitor's Office representing the Assistant
Secretary.
(b) The U.S. Coast Guard, if interested in a proceeding, may
participate as amicus curiae at any time in the proceeding, at its
discretion. At the request of the U.S. Coast Guard, copies of all
documents in a case must be sent to that agency, whether or not that
agency is participating in the proceeding.
Sec. 1986.109 Decisions and orders of the administrative law judge.
(a) The decision of the ALJ will contain appropriate findings,
conclusions, and an order pertaining to the remedies provided in
paragraph (d) of this section, as appropriate. A determination that a
violation has occurred may be made only if the complainant has
demonstrated by a preponderance of the evidence that protected activity
was a contributing factor in the adverse action alleged in the
complaint.
(b) If the complainant or the Assistant Secretary has satisfied the
burden set forth in the prior paragraph, relief may not be ordered if
the respondent demonstrates by clear and convincing evidence that it
would have taken the same adverse action in the absence of any
protected activity.
(c) Neither the Assistant Secretary's determination to dismiss a
complaint without completing an investigation pursuant to Sec.
1986.104(e) nor the Assistant Secretary's determination to proceed with
an investigation is subject to review by the ALJ, and a complaint may
not be remanded for the completion of an investigation or for
additional findings on the basis that a determination to dismiss was
made in error. Rather, if there otherwise is jurisdiction, the ALJ will
hear the case on the merits or dispose of the matter without a hearing
if the facts and circumstances warrant.
(d)(1) If the ALJ concludes that the respondent has violated the
law, the ALJ will issue an order that will require, where appropriate:
affirmative action to abate the violation, reinstatement of the
complainant to his or her former position, with the same compensation,
terms, conditions, and privileges of the complainant's employment;
payment of compensatory damages (back pay with interest and
compensation for any special damages sustained as a result of the
retaliation, including any litigation costs, expert witness fees, and
reasonable attorney fees which the complainant may have incurred); and
payment of punitive damages up to $250,000. Interest on back pay will
be calculated using the interest rate applicable to underpayment of
taxes under 26 U.S.C. 6621 and will be compounded daily.
(2) If the ALJ determines that the respondent has not violated the
law, an order will be issued denying the complaint.
(e) The decision will be served upon all parties to the proceeding,
the Assistant Secretary, and the Associate Solicitor, Division of
Occupational Safety and Health, U.S. Department of Labor. Any ALJ's
decision requiring reinstatement or lifting an order of reinstatement
by the Assistant Secretary will be effective immediately upon receipt
of the decision by the respondent. All other portions of the ALJ's
order will be effective 14 days after the date of the decision unless a
timely petition for review has been filed with the Administrative
Review Board (ARB), U.S. Department of Labor. The ALJ decision will
become the final order of the Secretary unless a petition for review is
timely filed with the ARB and the ARB accepts the decision for review.
Sec. 1986.110 Decisions and orders of the Administrative Review
Board.
(a) The Assistant Secretary or any other party desiring to seek
review, including judicial review, of a decision of the ALJ must file a
written petition for review with the ARB, which has been delegated the
authority to act for the Secretary and issue final decisions under this
part. The parties should identify in their petitions for review the
legal conclusions or orders to which they object, or the objections may
be deemed waived. A petition must be filed within 14 days of the date
of the decision of the ALJ. The date of the postmark, facsimile
transmittal, or electronic communication transmittal will be considered
to be the date of filing; if the petition is filed in person, by hand-
delivery or other means, the petition is considered filed upon receipt.
The petition must be served on all parties and on the Chief
Administrative Law Judge at the time it is filed with the ARB. Copies
of the petition for review and all briefs must be served on the
Assistant Secretary and, in cases in which the Assistant Secretary is a
party, on the Associate Solicitor, Division of Occupational Safety and
Health, U.S. Department of Labor.
(b) If a timely petition for review is filed pursuant to paragraph
(a) of this section, the decision of the ALJ will
become the final order of the Secretary unless the ARB, within 30 days
of the filing of the petition, issues an order notifying the parties
that the case has been accepted for review. If a case is accepted for
review, the decision of the ALJ will be inoperative unless and until
the ARB issues an order adopting the decision, except that any order of
reinstatement will be effective while review is conducted by the ARB
unless the ARB grants a motion by the respondent to stay that order
based on exceptional circumstances. The ARB will specify the terms
under which any briefs are to be filed. The ARB will review the factual
determinations of the ALJ under the substantial evidence standard. If
no timely petition for review is filed, or the ARB denies review, the
decision of the ALJ will become the final order of the Secretary. If no
timely petition for review is filed, the resulting final order is not
subject to judicial review.
(c) The final decision of the ARB will be issued within 120 days of
the conclusion of the hearing, which will be deemed to be 14 days after
the date of the decision of the ALJ, unless a motion for
reconsideration has been filed with the ALJ in the interim. In such
case, the conclusion of the hearing is the date the motion for
reconsideration is ruled upon or 14 days after a new decision is
issued. The ARB's final decision will be served upon all parties and
the Chief Administrative Law Judge by mail. The final decision also
will be served on the Assistant Secretary and on the Associate
Solicitor, Division of Occupational Safety and Health, U.S. Department
of Labor, even if the Assistant Secretary is not a party.
(d) If the ARB concludes that the respondent has violated the law,
the ARB will issue a final order providing relief to the complainant.
The final order will require, where appropriate: affirmative action to
abate the violation; reinstatement of the complainant to his or her
former position, with the same compensation, terms, conditions, and
privileges of the complainant's employment; payment of compensatory
damages (backpay with interest and compensation for any special damages
sustained as a result of the retaliation, including any litigation
costs, expert witness fees, and reasonable attorney fees the
complainant may have incurred); and payment of punitive damages up to
$250,000. Interest on backpay will be calculated using the interest
rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will
be compounded daily.
(e) If the ARB determines that the respondent has not violated the
law, an order will be issued denying the complaint.
Subpart C--Miscellaneous Provisions
Sec. 1986.111 Withdrawal of SPA complaints, findings, objections, and
petitions for review; settlement.
(a) At any time prior to the filing of objections to the Assistant
Secretary's findings and/or preliminary order, a complainant may
withdraw his or her complaint by notifying the Assistant Secretary,
orally or in writing, of his or her withdrawal. The Assistant Secretary
then will confirm in writing the complainant's desire to withdraw and
determine whether to approve the withdrawal. The Assistant Secretary
will notify the parties (and each party's legal counsel if the party is
represented by counsel) of the approval of any withdrawal. If the
complaint is withdrawn because of settlement, the settlement must be
submitted for approval in accordance with paragraph (d) of this
section. A complainant may not withdraw his or her complaint after the
filing of objections to the Assistant Secretary's findings and/or
preliminary order.
(b) The Assistant Secretary may withdraw the findings and/or a
preliminary order at any time before the expiration of the 30-day
objection period described in Sec. 1986.106, provided that no
objection has been filed yet, and substitute new findings and/or a new
preliminary order. The date of the receipt of the substituted findings
or order will begin a new 30-day objection period.
(c) At any time before the Assistant Secretary's findings and/or
preliminary order become final, a party may withdraw objections to the
Assistant Secretary's findings and/or preliminary order by filing a
written withdrawal with the ALJ. If a case is on review with the ARB, a
party may withdraw a petition for review of an ALJ's decision at any
time before that decision becomes final by filing a written withdrawal
with the ARB. The ALJ or the ARB, as the case may be, will determine
whether to approve the withdrawal of the objections or the petition for
review. If the ALJ approves a request to withdraw objections to the
Assistant Secretary's findings and/or order, and there are no other
pending objections, the Assistant Secretary's findings and/or order
will become the final order of the Secretary. If the ARB approves a
request to withdraw a petition for review of an ALJ decision, and there
are no other pending petitions for review of that decision, the ALJ's
decision will become the final order of the Secretary. If objections or
a petition for review are withdrawn because of settlement, the
settlement must be submitted for approval in accordance with paragraph
(d) of this section.
(d)(1) Investigative settlements. At any time after the filing of a
SPA complaint and before the findings and/or order are objected to or
become a final order by operation of law, the case may be settled if
the Assistant Secretary, the complainant, and the respondent agree to a
settlement. The Assistant Secretary's approval of a settlement reached
by the respondent and the complainant demonstrates the Assistant
Secretary's consent and achieves the consent of all three parties.
(2) Adjudicatory settlements. At any time after the filing of
objections to the Assistant Secretary's findings and/or order, the case
may be settled if the participating parties agree to a settlement and
the settlement is approved by the ALJ if the case is before the ALJ or
by the ARB, if the ARB has accepted the case for review. A copy of the
settlement will be filed with the ALJ or the ARB as the case may be.
(e) Any settlement approved by the Assistant Secretary, the ALJ, or
the ARB will constitute the final order of the Secretary and may be
enforced in a United States district court pursuant to 49 U.S.C.
31105(e), as incorporated by 46 U.S.C. 2114(b).
Sec. 1986.112 Judicial review.
(a) Within 60 days after the issuance of a final order under
Sec. Sec. 1986.109 and 1986.110, any person adversely affected or
aggrieved by the order may file a petition for review of the order in
the United States Court of Appeals for the circuit in which the
violation allegedly occurred or the circuit in which the complainant
resided on the date of the violation.
(b) A final order is not subject to judicial review in any criminal
or other civil proceeding.
(c) If a timely petition for review is filed, the record of a case,
including the record of proceedings before the ALJ, will be transmitted
by the ARB, or the ALJ, as the case may be, to the appropriate court
pursuant to the Federal Rules of Appellate Procedure and the local
rules of such court.
Sec. 1986.113 Judicial enforcement.
Whenever any person has failed to comply with a preliminary order
of reinstatement or a final order, including one approving a settlement
agreement issued under SPA, the Secretary may file a civil action
seeking enforcement of the order in the United States district
court for the district in which the violation was found to have
occurred.
Sec. 1986.114 District court jurisdiction of retaliation complaints
under SPA.
(a) If there is no final order of the Secretary, 210 days have
passed since the filing of the complaint, and there is no showing that
there has been delay due to the bad faith of the complainant, the
complainant may bring an action at law or equity for de novo review in
the appropriate district court of the United States, which will have
jurisdiction over such an action without regard to the amount in
controversy. The action shall, at the request of either party to such
action, be tried by the court with a jury.
(b) Within seven days after filing a complaint in federal court, a
complainant must file with the Assistant Secretary, the ALJ, or the
ARB, depending on where the proceeding is pending, a copy of the file-
stamped complaint. A copy of the complaint also must be served on the
OSHA official who issued the findings and/or preliminary order, the
Assistant Secretary, and the Associate Solicitor, Division of
Occupational Safety and Health, U.S. Department of Labor.
Sec. 1986.115 Special circumstances; waiver of rules.
In special circumstances not contemplated by the provisions of
these rules, or for good cause shown, the ALJ or the ARB on review may,
upon application, after three days notice to all parties, waive any
rule or issue such orders as justice or the administration of SPA
requires.
[FR Doc. 2013-02539 Filed 2-5-13; 8:45 am]
BILLING CODE 4510-26-P
