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equal to or greater than 19.7 GHz or
‘‘spectral efficiency’’ greater than 3 bit/
s/Hz; (B) Fiber optic systems or
equipment operating at a wavelength
greater than 1000 nm; (C)
‘‘Telecommunications transmission
systems’’ or equipment with a ‘‘digital
transfer rate’’ at the highest multiplex
level exceeding 45 Mb/s.
*
*
*
*
*
4. On page 422, in § 748.5, in
paragraph (b), add the third sentence to
read ‘‘Designation of another party to
receive the license does not alter the
responsibilities of the applicant,
licensee or exporter.’’
■ 5. On page 446, in Supplement No. 2
to part 748, in paragraph (o)(3)(i),
correct ‘‘E:2’’ to read ‘‘E:1’’.
■ 6. On page 466, in § 750.7, in
paragraph (c)(1)(ii), correct ‘‘quality’’ to
read ‘‘quantity’’ and correct ‘‘tolerance’’
to read ‘‘tolerances’’.
■ 7. On page 486, in Supplement No. 1
to part 752, in block 11, correct ‘‘SF ##’’
to read ‘‘SF #’’.
■ 8. On page 487, in Supplement No. 3
to part 752, in block 6, correct ‘‘BIS–
748P–B’’ to read ‘‘BIS–748P–A’’.
■ 9. On page 568, in Supplement No. 7
to part 760, add the fourth paragraph to
read as follows:
■

Supplement No. 7 to Part 760—
Interpretation
*

*
*
*
*
The United States person may also
provide certain services in advance of
the unilateral selection by the
boycotting country, such as the
compilation of lists of qualified
suppliers, so long as such services are
customary to the type of business the
United States person is engaged in, and
the services rendered are completely
non-exclusionary in character (i.e., the
list of qualified suppliers would have to
include the supplier whose goods had
previously been rejected by the
boycotting country, if they were fully
qualified). See § 760.2(a)(6) of this part
for a discussion of the requirements for
the provision of these services.
*
*
*
*
*
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[FR Doc. 2012–16905 Filed 7–9–12; 8:45 am]
BILLING CODE 1505–01–D

DEPARTMENT OF LABOR
Occupational Safety and Health
Administration
29 CFR Part 1983
[Docket Number: OSHA–2010–0006]
RIN 1218–AC47

Procedures for the Handling of
Retaliation Complaints Under Section
219 of the Consumer Product Safety
Improvement Act of 2008
Occupational Safety and Health
Administration, Labor.
ACTION: Final rule.
AGENCY:

This document provides the
final text of regulations governing the
employee protection (whistleblower)
provisions of the Consumer Product
Safety Improvement Act of 2008
(CPSIA). An interim final rule governing
these provisions and request for public
comment was published in the Federal
Register on August 31, 2010. Three
comments were received. This rule
responds to those comments and
establishes the final procedures and
time frames for the handling of
retaliation complaints under CPSIA,
including procedures and time frames
for employee complaints to the
Occupational Safety and Health
Administration (OSHA), investigations
by OSHA, appeals of OSHA
determinations to an administrative law
judge (ALJ) for a hearing de novo,
hearings by ALJs, review of ALJ
decisions by the Administrative Review
Board (ARB) (acting on behalf of the
Secretary of Labor), and judicial review
of the Secretary’s final decision.
DATES: This final rule is effective on July
10, 2012.
FOR FURTHER INFORMATION CONTACT:
Sandra Dillon, Director, Office of the
Whistleblower Protection Program,
Occupational Safety and Health
Administration, U.S. Department of
Labor, Room N–3610, 200 Constitution
Avenue NW., Washington, DC 20210;
telephone (202) 693–2199. This is not a
toll-free number. This Federal Register
document is available in alternative
formats. The alternative formats
available are large print, electronic file
on computer disk (Word Perfect, ASCII,
Mates with Duxbury Braille System) and
audiotape.
SUPPLEMENTARY INFORMATION:
SUMMARY:

I. Background
The Consumer Product Safety
Improvement Act of 2008 (CPSIA or the
Act), Public Law 110–314, 122 Stat.
3016, was enacted on August 14, 2008.

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Section 219 of the Act, codified at 15
U.S.C. 2087, provides protection to
employees against retaliation by a
manufacturer, private labeler,
distributor, or retailer, because they
provided to their employer, the Federal
Government or the attorney general of a
state, information relating to any
violation of, or any act or omission the
employees reasonably believe to be a
violation of, any provision of an Act
enforced by the Consumer Product
Safety Commission (Commission), or
any order, rule, regulation, standard, or
ban under any such Act. The statutes
enforced by the Commission include the
Consumer Product Safety Act (CPSA), as
amended by the CPSIA (15 U.S.C. 2051
et seq.), the Children’s Gasoline Burn
Prevention Act (Pub. L. 110–278, 122
Stat. 2602 (2008)), the Federal
Hazardous Substances Act (15 U.S.C.
1261 et seq.), the Flammable Fabrics Act
(15 U.S.C. 1191 et seq.), the Poison
Prevention Packaging Act (15 U.S.C.
1471 et seq.), the Refrigerator Safety Act
(15 U.S.C. 1211 et seq.), and the Virginia
Graeme Baker Pool and Spa Safety Act
(15 U.S.C. 8001 et seq.). These rules
establish procedures for the handling of
whistleblower complaints under CPSIA.
II. Summary of Statutory Procedures
CPSIA’s whistleblower provisions
include procedures that allow a covered
employee to file, within 180 days of the
alleged retaliation, a complaint with the
Secretary of Labor (Secretary).1 Upon
receipt of the complaint, the Secretary
must provide written notice to the
person or persons named in the
complaint alleged to have violated the
Act (respondent) of the filing of the
complaint, the allegations contained in
the complaint, the substance of the
evidence supporting the complaint, and
the rights afforded the respondent
throughout the investigation. The
Secretary must then, within 60 days of
receipt of the complaint, afford the
complainant and respondent an
opportunity to submit a response and
meet with the investigator to present
statements from witnesses, and conduct
an investigation.
1 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 CPSIA. Responsibility for
receiving and investigating complaints under
CPSIA also has been delegated to the Assistant
Secretary for Occupational Safety and Health
(Secretary’s Order 1–2012 (Jan. 18, 2012), 77 FR
3912 (Jan. 25, 2012)). Hearings on determinations
by the Assistant Secretary are conducted by the
Office of Administrative Law Judges, and appeals
from decisions by ALJs are decided by the ARB
(Secretary’s Order 1–2010 (Jan. 15, 2010), 75 FR
3924 (Jan. 25, 2010)).

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The Secretary may conduct an
investigation only if the complainant
has made a prima facie showing that the
protected activity was a contributing
factor in the adverse action alleged in
the complaint and the respondent has
not demonstrated, through clear and
convincing evidence, that the employer
would have taken the same adverse
action in the absence of that activity.
After investigating a complaint, the
Secretary will issue written findings. If,
as a result of the investigation, the
Secretary finds there is reasonable cause
to believe that retaliation has occurred,
the Secretary must notify the
respondent of those findings, along with
a preliminary order that requires the
respondent to, where appropriate: take
affirmative action to abate the violation;
reinstate the complainant to his or her
former position together with the
compensation of that position
(including back pay) and restore the
terms, conditions, and privileges
associated with his or her employment;
and provide compensatory damages to
the complainant, as well as all costs and
expenses (including attorney fees and
expert witness fees) reasonably incurred
by the complainant for, or in connection
with, the bringing of the complaint
upon which the order was issued.
The complainant and the respondent
then have 30 days after the date of the
Secretary’s notification in which to file
objections to the findings and/or
preliminary order and request a hearing
before an ALJ. The filing of objections
under CPSIA will stay any remedy in
the preliminary order except for
preliminary reinstatement. If a hearing
before an ALJ is not requested within 30
days, the preliminary order becomes
final and is not subject to judicial
review.
If a hearing is held, CPSIA requires
the hearing to be conducted
‘‘expeditiously.’’ The Secretary then has
120 days after the conclusion of any
hearing in which to issue a final order,
which may provide appropriate relief or
deny the complaint. Until the
Secretary’s final order is issued, the
Secretary, the complainant, and the
respondent may enter into a settlement
agreement that terminates the
proceeding. Where the Secretary has
determined that a violation has
occurred, the Secretary, where
appropriate, will assess against the
respondent a sum equal to the total
amount of all costs and expenses,
including attorney’s and expert witness
fees, reasonably incurred by the
complainant for, or in connection with,
the bringing of the complaint upon
which the Secretary issued the order.
The Secretary also may award a

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prevailing employer a reasonable
attorney’s fee, not exceeding $1,000, if
the Secretary finds that the complaint is
frivolous or has been brought in bad
faith.
Within 60 days of the issuance of the
final order, any person adversely
affected or aggrieved by the Secretary’s
final order may file an appeal with the
United States Court of Appeals for the
circuit in which the violation occurred
or the circuit where the complainant
resided on the date of the violation.
CPSIA permits the employee to seek
de novo review of the complaint by a
United States district court in the event
that the Secretary has not issued a final
decision within 210 days after the filing
of the complaint, or within 90 days after
receiving a written determination. The
court will have jurisdiction over the
action without regard to the amount in
controversy, and the case will be tried
before a jury at the request of either
party.
III. Summary of Regulations and
Rulemaking Proceedings
On August 31, 2010, OSHA published
in the Federal Register an interim final
rule promulgating rules governing the
employee protection (whistleblower)
provisions of CPSIA. 75 FR 53533. In
addition to promulgating the interim
final rule, OSHA included a request for
public comment on the interim rules by
November 1, 2010.
In response, two organizations and
one individual filed comments with the
agency within the public comment
period. Comments were received from
the National Whistleblower Center
(NWC); Government Accountability
Project (GAP); and Todd Miller.
OSHA has reviewed and considered
the comments. The following discussion
addresses the comments and OSHA’s
responses in the order of the provisions
of the rule.
General Comment
Mr. Todd Miller commented generally
that the regulations do not provide a
means for redress where OSHA does not
meet the timelines provided for in the
statute. Courts and the ARB have long
recognized that the statutory timelines
provided in the whistleblower statutes
are directory. Failure to complete the
investigation or issue a final decision
within the statutory time frame does not
deprive the Secretary of jurisdiction
over a whistleblower complaint. See,
e.g., Passaic Valley Sewerage Comm’rs
v. U.S. Dep’t of Labor, 992 F.2d 474, 477
n.7 (3d Cir. 1993); Roadway Express,
Inc. v. Dole, 929 F.2d 1060, 1066 (5th
Cir. 1991); Lewis v. Metropolitan
Transp. Authority, New York, ARB No.

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11–070, 2011 WL 3882486, at *2 (ARB
Aug. 8, 2011); Welch v. Cardinal
Bankshares, ARB No. 04–054, 2004 WL
5030301 (ARB May 13, 2004). The
Secretary is cognizant of CPSIA’s
statutory directives regarding
completion of the OSHA investigation
and administrative proceedings and the
need to resolve whistleblower
complaints expeditiously. However, in
those instances where the agency cannot
complete the administrative
proceedings within the statutory
timeframes, CPSIA’s ‘‘kick-out’’
provision—which allows a complainant
to file a complaint for de novo review
in Federal district court if the Secretary
has not issued a final decision within
210 days of the filing of the complaint,
or within 90 days of receiving a written
determination—affords the complainant
an alternative avenue for resolution of
the whistleblower complaint.
Subpart A—Complaints, Investigations,
Findings and Preliminary Orders
Section 1983.100 Purpose and Scope
This section describes the purpose of
the regulations implementing CPSIA
and provides an overview of the
procedures covered by these
regulations. No comments were received
on this section and no substantive
changes were made to it.
Section 1983.101 Definitions
This section includes general
definitions from CPSA, which are
applicable to the whistleblower
provisions of CPSIA, including a
definition of the term ‘‘consumer
product.’’ See 15 U.S.C. 2052(a)(5). The
CPSA defines ‘‘distributor’’ as ‘‘a person
to whom a consumer product is
delivered or sold for purposes of
distribution in commerce, except that
such term does not include a
manufacturer or retailer of such
product.’’ 15 U.S.C. 2052(a)(8). The
CPSA defines ‘‘manufactured’’ as ‘‘to
manufacture, produce, or assemble,’’
and defines ‘‘manufacturer’’ as ‘‘any
person who manufactures or imports a
consumer product.’’ 15 U.S.C.
2052(a)(10) and (11), respectively.
‘‘Private labeler’’ is defined by the CPSA
as ‘‘an owner of a brand or trademark on
the label of a consumer product which
bears a private label.’’ 15 U.S.C.
2052(a)(12)(A). Section 2052(a)(12)(B)
further provides that a ‘‘consumer
product bears a private label if (i) The
product (or its container) is labeled with
the brand or trademark of a person other
than a manufacturer of the product, (ii)
the person with whose brand or
trademark the product (or container) is
labeled has authorized or caused the

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product to be so labeled, and (iii) the
brand or trademark of a manufacturer of
such product does not appear on such
label.’’ 15 U.S.C. 2052(a)(12)(B). The
CPSA defines ‘‘retailer’’ as ‘‘a person to
whom a consumer product is delivered
or sold for purposes of sale or
distribution by such person to a
consumer.’’ 15 U.S.C. 2052(a)(13). No
comments were received on this section
and no substantive changes were made
to the definitions section.
Section 1983.102 Obligations and
Prohibited Acts
This section describes the activities
that are protected under CPSIA, and the
conduct that is prohibited in response to
any protected activities. Under CPSIA,
an employer may not retaliate against an
employee because the employee
‘‘provided, caused to be provided, or is
about to provide or cause to be provided
to the employer, the Federal
Government, or the attorney general of
a State information relating to any
violation of, or any act or omission the
employee reasonably believes to be a
violation of any provision of [CPSA, as
amended by CPSIA] or any other Act
enforced by the Commission, or any
order, rule, regulation, standard, or ban
under any such Acts.’’ 15 U.S.C.
2087(a)(1). CPSIA also protects
employees who testify, assist or
participate in proceedings concerning
such violations. 15 U.S.C. 2087(a)(2)
and (3). Finally, CPSIA prohibits
retaliation because an employee
‘‘objected to, or refused to participate in,
any activity, policy, practice, or
assigned task that the employee (or
other such person) reasonably believed
to be in violation of any provision of
[CPSA, as amended by CPSIA] or any
other Act enforced by the Commission,
or any order, rule, regulation, standard,
or ban under any such Acts.’’ 15 U.S.C.
2087(a)(4).
In order to have a ‘‘reasonable belief’’
under CPSIA, a complainant must have
both a subjective, good faith belief and
an objectively reasonable belief that the
complained-of conduct violates one of
the listed categories of law. See
Sylvester v. Parexel Int’l LLC, ARB No.
07–123, 2011 WL 2165854, at *11–12
(ARB May 25, 2011) (discussing the
reasonable belief standard under
analogous language in the SarbanesOxley Act (SOX) whistleblower
provision, 18 U.S.C. 1514A). The
requirement that the complainant have
a subjective, good faith belief is satisfied
so long as the complainant actually
believed that the conduct complained of
violated the relevant law. See id. The
‘‘reasonableness’’ of a complainant’s
belief is typically determined ‘‘based on

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the knowledge available to a reasonable
person in the same factual
circumstances with the same training
and experience as the aggrieved
employee.’’ Id. at *12 (internal
quotation marks and citation omitted).
However, the complainant need not
show that the conduct complained of
constituted an actual violation of law.
Pursuant to this standard, an employee’s
whistleblower activity is protected
where it is based on a reasonable, but
mistaken, belief that a violation of the
relevant law has occurred. Id. at *13.
Section 1983.102(c) reflects the CPSIA
mandate that anti-retaliation protections
are not available to employees who
deliberately cause a violation of any
requirement relating to any violation or
alleged violation of any order,
regulation, or standard under the Acts
enforced by the Commission. 15 U.S.C.
2087(b)(7)(D). For purposes of section
1983.102(c), the ARB has interpreted the
phrase ‘‘deliberate violations’’ for the
purpose of denying protection to an
employee under the Energy
Reorganization Act’s (ERA) similar
provision as including an element of
willfulness. See Fields v. U.S. Dep’t of
Labor Admin. Review Bd., 173 F.3d 811,
814 (11th Cir. 1999) (petitioners
knowingly conducted unauthorized and
potentially dangerous experiments). No
comments were received on this section
and no changes have been made to it.
Section 1983.103 Filing of Retaliation
Complaint
This section explains the
requirements for filing a retaliation
complaint under CPSIA. To be timely, a
complaint must be filed within 180 days
of when the alleged violation occurs.
Under Delaware State College v. Ricks,
449 U.S. 250, 258 (1980), this is
considered to be when the retaliatory
decision has been both made and
communicated to the complainant. In
other words, the limitations period
commences once the employee is aware
or reasonably should be aware of the
employer’s decision. Equal Emp’t
Opportunity Comm’n v. United Parcel
Serv., Inc., 249 F.3d 557, 561–62 (6th
Cir. 2001). Complaints filed under
CPSIA need not be in any particular
form. They may be either oral or in
writing. If the complainant is unable to
file the complaint in English, OSHA
will accept the complaint in any
language. With the consent of the
employee, complaints may be filed by
any person on the employee’s behalf.
OSHA notes that a complaint of
retaliation filed with OSHA under
CPSIA is not a formal document and
need not conform to the pleading
standards for complaints filed in federal

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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., ARB Case 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 1983.104(e). As
explained in section 1983.104(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 15 U.S.C.
2087(b)(2), 29 CFR 1983.104(e).
GAP expressed support for sections
1983.103(b) (nature of filing) and (d)
(time for filing) and commented that
these sections improved protection for
whistleblowers. GAP also asked that the
text of section 1983.103(d) clarify that
the 180-day statute of limitations for
filing a complaint under CPSIA does not
begin to run until an employee becomes
aware of an alleged discriminatory act.
Consistent with the rules under other
whistleblower statutes administered by
the agency, OSHA has clarified in
section 1983.103(d) that the statute of
limitations under CPSIA may be tolled
for reasons warranted by applicable case
law and made other minor clarifying
changes.
Section 1983.104 Investigation
This section describes the procedures
that apply to the investigation of
complaints under CPSIA. Paragraph (a)
of this section outlines the procedures
for notifying the parties and the
Consumer Product Safety Commission
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) specifies that throughout the
investigation the agency will provide to
the complainant (or the complainant’s

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legal counsel if the complainant is
represented by counsel) a copy of
respondent’s submissions to the agency
that are responsive to the complainant’s
whistleblower complaint and the
complainant will have an opportunity to
respond to those submissions. Before
providing such materials to the
complainant, the agency will redact
them in accordance with the Privacy
Act of 1974, 5 U.S.C. 552a, and other
applicable confidentiality laws.
Paragraph (d) of this section discusses
confidentiality of information provided
during investigations. Paragraph (e) of
this section sets forth CPSIA’s statutory
burdens of proof. 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.
The statute requires that a
complainant make an initial prima facie
showing that protected activity was ‘‘a
contributing factor’’ in the adverse
action alleged in the complaint, i.e., that
the protected activity, alone or in
combination with other factors, affected
in some way the outcome of the
employer’s decision. The complainant
will be considered to have met the
required burden if the complaint on its
face, supplemented as appropriate
through interviews of the complainant,
alleges the existence of facts and either
direct or circumstantial evidence to
meet the required showing. The
complainant’s burden may be satisfied,
for example, if he or she shows that the
adverse action took place 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 as that under CPSIA,
serves a ‘‘gatekeeping function’’ that
‘‘stem[s] frivolous complaints’’). Even in
cases where the complainant
successfully makes a prima facie
showing, the investigation must be
discontinued if the employer
demonstrates, by clear and convincing
evidence, that it would have taken the
same adverse action in the absence of
the protected activity. Thus, OSHA
must dismiss a complaint under CPSIA
and not investigate (or cease
investigating) if either: (1) The
complainant fails to meet the prima
facie showing that protected activity
was a contributing factor in the adverse

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action; or (2) the employer rebuts that
showing by clear and convincing
evidence that it would have taken the
same adverse action absent the
protected activity.
Assuming that an investigation
proceeds beyond the gatekeeping phase,
the statutory burdens of proof require an
employee to prove that the alleged
protected activity was a ‘‘contributing
factor’’ in the alleged adverse action. If
the employee proves that the alleged
protected activity was a contributing
factor in the adverse action, the
employer, to escape liability, must
prove by ‘‘clear and convincing
evidence’’ that it would have taken the
same action in the absence of the
protected activity. A contributing factor
is ‘‘any factor which, alone or in
connection with other factors, tends to
affect in any way the outcome of the
decision.’’ Marano v. Dep’t of Justice, 2
F.3d 1137, 1140 (Fed. Cir. 1993)
(internal quotation marks, emphasis and
citation omitted) (discussing the
Whistleblower Protection Act, 5 U.S.C.
1221(e)(1)). In proving that protected
activity was a contributing factor in the
adverse action, ‘‘’a complainant need
not necessarily prove that the
respondent’s articulated reason was a
pretext in order to prevail,’’’ because a
complainant alternatively can prevail by
showing that the respondent’s ‘‘’reason,
while true, is only one of the reasons for
its conduct,’’’ and that another reason
was the complainant’s protected
activity. See Klopfenstein v. PCC Flow
Techs. Holdings, Inc., ARB No. 04–149,
2006 WL 3246904, at *13 (ARB May 31,
2006) (quoting Rachid v. Jack in the
Box, Inc., 376 F.3d 305, 312 (5th Cir.
2004)) (discussing contributing factor
test under the SOX whistleblower
provision), aff’d sub nom. Klopfenstein
v. Admin. Review Bd., U.S. Dep’t of
Labor, 402 F. App’x 936, 2010 WL
4746668 (5th Cir. 2010).
CPSIA’s burdens of proof do not
address the evidentiary standard that
applies to a complainant’s proof that
protected activity was a contributing
factor in an adverse action. CPSIA
simply provides that the Secretary may
find a violation only ‘‘if the complainant
demonstrates’’ that protected activity
was a contributing factor in the alleged
adverse action. See 15 U.S.C.
2087(b)(2)(B)(iii). It is the Secretary’s
position that the complainant must
prove by a ‘‘preponderance of the
evidence’’ that his or her protected
activity contributed to the adverse
action; otherwise the burden never
shifts to the employer to establish its
defense by ‘‘clear and convincing
evidence.’’ See, e.g., Allen v. Admin.
Review Bd., 514 F.3d 468, 475 n.1 (5th

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Cir. 2008) (‘‘The term ‘demonstrates’
[under identical language in another
whistleblower provision] means to
prove by a preponderance of the
evidence.’’). Once the complainant
establishes that the protected activity
was a contributing factor in the adverse
action, the employer can escape liability
only by proving by clear and convincing
evidence that it would have taken the
same action even in the absence of the
prohibited rationale. The ‘‘clear and
convincing evidence’’ standard is a
higher burden of proof than a
‘‘preponderance of the evidence’’
standard.
NWC and GAP commented on the
provisions in section 1983.104. NWC
suggested that the phrase ‘‘other
applicable confidentiality laws’’ be
replaced with more specific language
describing the confidentiality laws that
might apply to a respondent’s answer.
NWC also suggested that OSHA provide
a copy of the response to the
complainant, and give the complainant
an opportunity to respond. NWC noted
that to conduct a full and fair
investigation, OSHA needs to obtain the
available, responsive information from
both parties. If one party does not have
the information submitted by the other,
NWC explained, that party cannot help
the investigation by providing available
information to shed light on the matter.
GAP commented that while it was
pleased with the provisions in
§ 1983.104 providing copies of
respondent’s submissions to
complainants and protecting witness
confidentiality, it was concerned that
the procedures under § 1983.104(f)
‘‘disenfranchise[d] the victim, giving
only one side of the dispute the chance
to participate in the most significant
step of the process’’ and that ‘‘[a]t a
minimum, this procedural favoritism
means there will not be an even playing
field in the administrative hearing.’’
GAP advocated removing § 1983.104(f).
OSHA agrees with NWC and GAP that
the input of both parties in the
investigation is important to ensuring
that OSHA reaches the proper outcome
during its investigation. To that end, in
response to the comments, the
procedures under CPSIA have been
revised to contain the following
safeguards aimed at ensuring that
complainants and respondents have
equal access to information during the
course of the OSHA investigation:
• Section 1983.104(a) has been
revised to more closely mirror CPSIA’s
statutory requirement in 15 U.S.C.
2087(b)(1), that after receiving a
complaint, the Secretary shall notify the
respondent of the filing of the
complaint, of the allegations contained

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in the complaint, and of the substance
of the evidence supporting the
complaint.
• Section 1983.104(b) of the final rule
has been revised to implement CPSIA’s
statutory requirement in 15 U.S.C.
2087(b)(2), that after receiving a
complaint, the Secretary shall afford the
complainant, as well as the respondent,
the opportunity to submit a written
response to the complaint, meet with a
representative of the Secretary and
present statements from witnesses;
• Section 1983.104(c) continues to
provide that, throughout the
investigation, the agency will provide
the complainant (or the complainant’s
legal counsel if the 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, redacted of
confidential information as necessary.
The final rule also specifies that the
complainant will have an opportunity to
respond to such submissions; and
• Section 1983.104(f) of the final rule
provides that the complainant will also
receive a copy of the materials that must
be provided to the respondent under
that paragraph.
Regarding NWC’s suggestion that
OSHA provide more specific
information about the confidentiality
laws that may protect portions of the
information submitted by a respondent,
OSHA anticipates that the vast majority
of respondent submissions will not be
subject to any confidentiality laws.
However, in addition to the Privacy Act,
a variety of confidentiality provisions
may protect information submitted
during the course of an investigation.
For example, a respondent may submit
information that the respondent
identifies as confidential commercial or
financial information exempt from
disclosure under the Freedom of
Information Act (FOIA). OSHA’s
procedures for handling information
identified as confidential during an
investigation are explained in OSHA’s
Whistleblower Investigations Manual
available at: http://www.osha.gov/pls/
oshaweb/owadisp.show_document?p_
table=DIRECTIVES&p_id=5061.
With regard to GAP’s comment that
§ 1983.104(f) should be removed, OSHA
notes that the purpose of § 1983.104(f) is
to ensure compliance with the Supreme
Court’s ruling in Brock v. Roadway
Express, 481 U.S. 252, 264 (1987). In
that decision, the Court upheld the
facial constitutionality of the analogous
provisions providing for preliminary
reinstatement under the Surface
Transportation Assistance Act (STAA),
49 U.S.C. 31105, and the procedures
adopted by OSHA to protect the

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respondent’s rights under the Due
Process Clause of the Fifth Amendment,
but ruled that the record failed to show
that OSHA investigators had informed
the respondent of the substance of the
evidence to support reinstatement of the
discharged employee. In so finding, the
Court noted that, although a formal
hearing was not required before OSHA
ordered preliminary reinstatement,
‘‘minimum due process for the
employer in this context requires notice
of the employee’s allegations, notice of
the substance of the relevant supporting
evidence, an opportunity to submit a
written response, and an opportunity to
meet with the investigator and present
statements from rebuttal witnesses.’’
Roadway Express, 481 U.S. at 264; see
Bechtel v. Competitive Techs, Inc., 448
F.3d 469, 480–81 (Leval, J. concurring in
the judgment) (finding OSHA’s
preliminary reinstatement order under
SOX unenforceable because the
information provided to the respondent
did not meet the requirements of
Roadway Express). Thus, OSHA
declines to remove the language
providing the respondent notice and
opportunity to respond under
§ 1983.104(f).
Nonetheless, while recognizing that
the purpose of § 1983.104(f) is to ensure
that the respondent’s Due Process rights
have been met prior to OSHA ordering
preliminary reinstatement, OSHA
appreciates that complainants wish to
stay informed regarding their case and
may continue to have valuable input,
even at this late stage in the
investigation. Thus, under these rules,
OSHA will provide complainants with a
copy of the materials sent to the
respondent under § 1983.104(f).
In addition to the revisions noted
above, minor changes were made as
needed in this section to clarify the
provision without changing its meaning.
Section 1983.105 Issuance of Findings
and Preliminary Orders
This section provides that, on the
basis of information obtained in the
investigation, the Assistant Secretary
will issue, within 60 days of the filing
of a complaint, written findings
regarding whether or not there is
reasonable cause to believe that the
complaint has merit. If the findings are
that there is reasonable cause to believe
that the complaint has merit, the
Assistant Secretary will order
appropriate relief, including
preliminary reinstatement, affirmative
action to abate the violation, back pay
with interest, and compensatory
damages. To reflect the agency’s current
practice, wherein a preliminary order
that includes compensation will

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include, where appropriate, back pay
and interest, the phrase ‘‘and interest’’
was added to this section.
In ordering interest on back pay under
CPSIA, the Secretary has determined
that interest due will be computed by
compounding daily the Internal
Revenue Service interest rate for the
underpayment of taxes, which under 26
U.S.C. 6621, is generally the Federal
short-term rate plus three percentage
points. The Secretary believes that daily
compounding of interest 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 (NLRB Oct. 22, 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).
The findings and, where appropriate,
preliminary order, advise the parties of
their right to file objections to the
findings of the Assistant Secretary and
to request a hearing. The findings and,
where appropriate, preliminary order,
also advise the respondent of the right
to request an award of attorney’s fees
not exceeding $1,000 from the ALJ,
regardless of whether the respondent
has filed objections, if the respondent
alleges that the complaint was frivolous
or brought in bad faith. If no objections
are filed within 30 days of receipt of the
findings, the findings and any
preliminary order of the Assistant
Secretary become the final decision and
order of the Secretary. If objections are
timely filed, any order of preliminary
reinstatement will take effect, but the
remaining provisions of the order will
not take effect until administrative
proceedings are completed.
In appropriate circumstances, in lieu
of preliminary reinstatement, OSHA
may order that the complainant receive
the same pay and benefits that he or she
received prior to his termination, but
not actually return to work. Such
‘‘economic reinstatement’’ is akin to an
order for front pay and frequently is
employed in cases arising under Section
105(c) of the Federal Mine Safety and
Health Act of 1977, which protects
miners from retaliation. 30 U.S.C.
815(c); See, e.g., Sec’y of Labor ex rel of
York v. BR&D Enters., Inc., 23 FMSHRC
697, 2001 WL 1806020, at *1 (FMSHRC
June 26, 2001). Front pay has been
recognized as a possible remedy in cases

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under the whistleblower statutes
enforced by OSHA in circumstances
where reinstatement would not be
appropriate. See, e.g., Moder v. Vill. of
Jackson, ARB Nos. 01–095, 02–039,
2003 WL 21499864, at *10 (ARB June
30, 2003) (under environmental
whistleblower statutes, ‘‘front pay may
be an appropriate substitute when the
parties prove the impossibility of a
productive and amicable working
relationship, or the company no longer
has a position for which the
complainant is qualified.’’); Hobby v.
Georgia Power Co., ARB No. 98–166,
ALJ No. 1990–ERA–30 (ARB Feb. 9,
2001), aff’d sub nom. Hobby v. U.S.
Dep’t of Labor, No. 01–10916 (11th Cir.
Sept. 30, 2002) (unpublished) (noting
circumstances where front pay may be
available in lieu of reinstatement but
ordering reinstatement); Doyle v. Hydro
Nuclear Servs., ARB Nos. 99–041, 99–
042, 00–012, 1996 WL 518592, at *6
(ARB Sept. 6, 1996) (under ERA, front
pay appropriate where employer had
eliminated the employee’s position);
Michaud v. BSP Transport, Inc., ARB
Nos. 97–113, 1997 WL 626849, at *4
(ARB Oct. 9, 1997) (under STAA, front
pay appropriate where employee was
unable to work due to major depression
resulting from the retaliation); Brown v.
Lockheed Martin Corp., ALJ No. 2008–
SOX–49, 2010 WL 2054426, at *55–56
(ALJ Jan. 15, 2010) (noting that while
reinstatement is the ‘‘presumptive
remedy’’ under Sarbanes-Oxley, front
pay may be awarded as a substitute
when reinstatement is inappropriate).
Congress intended that employees be
preliminarily reinstated to their
positions if OSHA finds reasonable
cause to believe that they were
discharged in violation of CPSIA. When
a violation is found, 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 employee. In
such situations, actual reinstatement
might be delayed until after the
administrative adjudication is
completed as long as the employee
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
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employer ultimately prevail in the
whistleblower adjudication. No
comments were received on this section.
In addition to the revisions noted above,
which clarify the provision of interest
on back pay awards, minor changes
were made as needed to clarify the
provision without changing its meaning.
Subpart B—Litigation
Section 1983.106 Objections to the
Findings and the Preliminary Order and
Requests for a Hearing
To be effective, objections to the
findings of the Assistant Secretary must
be in writing and must be filed with the
Chief Administrative Law Judge, U.S.
Department of Labor, within 30 days of
receipt of the findings. The date of the
postmark, facsimile transmittal, or
electronic communication transmittal is
considered the date of the filing; if the
objection is filed in person, by handdelivery or other means, the objection is
filed upon receipt. The filing of
objections also is considered a request
for a hearing before an ALJ. Although
the parties are directed to serve a copy
of their objections on the other parties
of record, as well as the OSHA official
who issued the findings and order, the
Assistant Secretary, and the U.S.
Department of Labor’s Associate
Solicitor for Fair Labor Standards, the
failure to serve copies of the objections
on the other parties of record does not
affect the ALJ’s jurisdiction to hear and
decide the merits of the case. See
Shirani v. Calvert Cliffs Nuclear Power
Plant, Inc., ARB No. 04–101, 2005 WL
2865915, at *7 (ARB Oct. 31, 2005).
The timely filing of objections stays
all provisions of the preliminary order,
except for the portion requiring
reinstatement. A respondent may file a
motion to stay OSHA’s preliminary
order of reinstatement with the Office of
Administrative Law Judges. However,
such a motion will be granted only
based on exceptional circumstances.
Language was added to paragraph (b) of
this section to make this point clear.
The Secretary believes that a stay of the
Assistant Secretary’s preliminary order
of reinstatement under CPSIA would be
appropriate only where the respondent
can establish the necessary criteria for
equitable injunctive relief, i.e.,
irreparable injury, likelihood of success
on the merits, a balancing of possible
harms to the parties, and the public
interest favors a stay. If no timely
objection to OSHA’s findings and/or
preliminary order is filed, then OSHA’s
findings and/or preliminary order
become the final decision of the
Secretary not subject to judicial review.

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No comments were received on this
section. The term ‘‘electronic
communication transmittal’’ was
substituted for ‘‘email communication’’
and other minor changes were made as
needed to clarify the provision without
changing its meaning.
Section 1983.107 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. It specifically
provides for hearings to be consolidated
where both the complainant and
respondent object to the findings and/or
order of the Assistant Secretary. This
section further 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.
In a revision from the interim final
rule, paragraph (b) now notes the broad
authority of ALJs to limit discovery in
order to expedite the hearing. This
change was made for consistency with
OSHA’s rules under other
whistleblower statutes, which similarly
note that the ALJ has broad authority to
limit discovery. See, e.g., 29 CFR
1979.107 (regulations under the
Wendell H. Ford Aviation Investment
and Reform Act for the 21st Century
(AIR21)); 29 CFR 1980.107 (SOX). As
with other whistleblower statutes
administered by OSHA, CPSIA dictates
that hearings ‘‘shall be conducted
expeditiously’’ and allows complainants
to seek de novo review of the complaint
in federal court if the Secretary has not
issued a final decision within 210 days
after the filing of the complaint, or
within 90 days after receiving a written
determination. See 15 U.S.C. 2087(b)(2)
and (4). The ALJ’s broad discretion to
limit discovery, for example by limiting
the number of interrogatories, requests
for production of documents, or
depositions allowed, furthers Congress’
intent to provide for expeditious
hearings under CPSIA.
Finally, this section has been revised
to add paragraph (d), which specifies
that the formal rules of evidence will
not apply to proceedings before an ALJ
under § 1983.107, but rules or principles
designed to assure the production of the
most probative evidence will be
applied. The Department has taken the
same approach under the other
whistleblower statutes administered by
OSHA. See, e.g., 29 CFR 1979.107
(AIR21); 29 CFR 1980.107 (SOX). This
approach is also consistent with the
Administrative Procedure Act, which
provides: ‘‘Any oral or documentary

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evidence may be received, but the
agency as a matter of policy shall
provide for the exclusion of irrelevant,
immaterial, or unduly repetitious
evidence * * *’’ 5 U.S.C. 556(d); see
also Fed. Trade Comm’n v. Cement
Inst., 333 U.S. 683, 805–06 (1948)
(administrative agencies not restricted
by rigid rules of evidence). The
Department believes that it is
inappropriate to apply the rules of
evidence at 29 CFR part 18 subpart B
because whistleblowers often appear
pro se and may be disadvantaged by
strict adherence to formal rules of
evidence. Furthermore, hearsay
evidence is often appropriate in
whistleblower cases, as there often are
no relevant documents or witnesses
other than hearsay to prove
discriminatory intent. ALJs have the
responsibility to determine the
appropriate weight to be given such
evidence. For these reasons, the
interests of determining all of the
relevant facts are best served by not
requiring strict evidentiary rules. No
comments were received on this section,
but, as explained above, this section was
revised to specify that the formal rules
of evidence will not apply to
proceedings before an ALJ under this
section.
Section 1983.108 Role of Federal
Agencies
The Assistant Secretary, at his or her
discretion, may participate as a party or
amicus curiae at any time in the
administrative proceedings under
CPSIA. For example, the Assistant
Secretary may exercise his or her
discretion to prosecute the case in the
administrative proceeding before an
ALJ; petition for review of a decision of
an ALJ, including a decision based on
a settlement agreement between the
complainant and the respondent,
regardless of whether the Assistant
Secretary participated before the ALJ; or
participate as amicus curiae before the
ALJ or in the ARB proceeding. Although
OSHA anticipates that ordinarily the
Assistant Secretary will not participate,
the Assistant Secretary may choose to
do so in appropriate cases, such as cases
involving important or novel legal
issues, large numbers of employees,
alleged violations that appear egregious,
or where the interests of justice might
require participation by the Assistant
Secretary. The Consumer Product Safety
Commission, if interested in a
proceeding, also may participate as
amicus curiae at any time in the
proceedings. No comments were
received on this section; however, it has
been revised to specify that documents
need not be sent to the Assistant

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Secretary or the Department of Labor’s
Associate Solicitor for Fair Labor
Standards unless the Assistant Secretary
requests that documents be sent, the
Assistant Secretary is participating in
the proceeding, or service on the
Assistant Secretary is otherwise
required by these rules. Other minor
changes were made as needed to clarify
the provision without changing its
meaning.
Section 1983.109 Decision and Orders
of the Administrative Law Judge
This section sets forth the
requirements for the content of the
decision and order of the ALJ, and
includes the standard for finding a
violation under CPSIA. The section
further provides that the Assistant
Secretary’s determination to dismiss the
complaint without an investigation or
without a complete investigation
pursuant to § 1983.104 is not subject to
review. Thus, paragraph (c) of
§ 1983.109 clarifies that the Assistant
Secretary’s determinations on whether
to proceed with an investigation under
CPSIA and whether to make particular
investigative findings are discretionary
decisions not subject to review by the
ALJ. The ALJ hears cases de novo and,
therefore, as a general matter, may not
remand cases to the Assistant Secretary
to conduct an investigation or make
further factual findings. A full
discussion of the burdens of proof used
by the Department of Labor to resolve
whistleblower cases under this part is
described above in the discussion of
§ 1983.104. Paragraph (d) notes the
remedies that the ALJ may order under
CPSIA and, as discussed under
§ 1983.105 above, provides that interest
on back pay will be calculated using the
interest rate applicable to underpayment
of taxes under 26 U.S.C. 6621, and will
be compounded daily. Paragraph (e)
requires that the ALJ’s decision be
served on all parties to the proceeding,
the Assistant Secretary, and the U.S.
Department of Labor’s Associate
Solicitor for Fair Labor Standards.
Paragraph (e) also provides that any ALJ
decision requiring reinstatement or
lifting an order of reinstatement by the
Assistant Secretary will be effective
immediately upon receipt of the
decision by the respondent. All other
portions of the ALJ’s order will be
effective 14 days after the date of the
decision unless a timely petition for
review has been filed with the ARB.
No comments were received on this
section. However, minor modifications
were made to the description of the
remedies available under CPSIA in this
paragraph to more closely match the
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statute and the description of the
remedies in § 1983.105(a)(1). The
statement that the decision of the ALJ
will become the final order of the
Secretary unless a petition for review is
timely filed with the ARB and the ARB
accepts the petition for review was
deleted from § 1983.110(a) and moved
to paragraph (e) of this section.
Additionally, OSHA has revised the
period for filing a timely petition for
review with the ARB to 14 days rather
than 10 business days. With this change,
the final rule expresses the time for a
petition for review in a way that is
consistent with the other deadlines for
filings before the ALJs and the ARB in
the rule, which are also expressed in
days rather than business days. This
change also makes the final rule
congruent with the 2009 amendments to
Rule 6(a) of the Federal Rules of Civil
Procedure and Rule 26(a) of the Federal
Rules of Appellate Procedure, which
govern computation of time before those
tribunals and express filing deadlines as
days rather than business days.
Accordingly, the ALJ’s order will
become the final order of the Secretary
14 days after the date of the decision,
rather than after 10 business days,
unless a timely petition for review is
filed. As a practical matter, this revision
does not substantively alter the window
of time for filing a petition for review
before the ALJ’s order becomes final.
Section 1983.110 Decision and Orders
of the Administrative Review Board
Upon the issuance of the ALJ’s
decision, the parties have 14 days
within which to petition the ARB for
review of that decision. 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.
The appeal provisions in this part
provide that an appeal to the ARB is not
a matter of right but is accepted at the
discretion of the ARB. The parties
should identify in their petitions for
review the legal conclusions or orders to
which they object, or the objections may
be deemed waived. The ARB has 30
days to decide whether to grant the
petition for review. If the ARB does not
grant the petition, the decision of the
ALJ becomes the final decision of the
Secretary. If a timely petition for review
is filed with the ARB, any relief ordered

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by the ALJ, except for that portion
ordering reinstatement, is inoperative
while the matter is pending before the
ARB. When the ARB accepts a petition
for review, the ALJ’s factual
determinations will be reviewed under
the substantial evidence standard. In
order to be consistent with the practices
and procedures followed in OSHA’s
other whistleblower programs, and to
provide further clarification of the
regulatory text, OSHA has modified the
language of 1983.110(c), to clarify when
the ALJ proceedings conclude and when
the final decision of the ARB will be
issued.
This section also provides that, based
on exceptional circumstances, the ARB
may grant a motion to stay an ALJ’s
preliminary order of reinstatement
under CPSIA, which otherwise would
be effective, while review is conducted
by the ARB. The Secretary believes that
a stay of an ALJ’s preliminary order of
reinstatement under CPSIA would be
appropriate only where the respondent
can establish the necessary criteria for
equitable injunctive relief, i.e.,
irreparable injury, likelihood of success
on the merits, a balancing of possible
harms to the parties, and the public
interest favors a stay.
If the ARB concludes that the
respondent has violated the law, it will
issue a final order providing relief to the
complainant. The final order will
require, where appropriate: Affirmative
action to abate the violation;
reinstatement of the complainant to his
or her former position, together with the
compensation (including back pay and
interest), terms, conditions, and
privileges of the complainant’s
employment; and payment of
compensatory damages, including, at
the request of the complainant, the
aggregate amount of all costs and
expenses (including attorney’s and
expert witness fees) reasonably
incurred. Interest on back pay will be
calculated using the interest rate
applicable to underpayment of taxes
under 26 U.S.C. 6621, and will be
compounded daily. If the ARB
determines that the respondent has not
violated the law, an order will be issued
denying the complaint. If, upon the
request of the respondent, the ARB
determines that a complaint was
frivolous or was brought in bad faith,
the ARB may award to the respondent
a reasonable attorney’s fee, not
exceeding $1,000.
With regard to section 1983.110(a),
NWC urged deletion of the provision in
the interim final rule that ‘‘[a]ny
exception not specifically urged will
ordinarily be deemed waived by the
parties.’’ NWC commented that parties

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should be allowed to add additional
grounds for review in subsequent briefs
and that allowing parties to do so would
further the goal of deciding cases on the
merits. OSHA’s inclusion of this
provision is not intended to limit the
circumstances in which parties can add
additional grounds for review as a case
progresses before the ARB; rather, the
rules include this provision to put the
public on notice of the possible
consequences of failing to specify the
basis of an appeal to the ARB. OSHA
recognizes that while the ARB has held
in some instances that an exception not
specifically urged may be deemed
waived, the ARB also has found that the
rules provide for exceptions to this
general rule. See, e.g., Furland v.
American Airlines, Inc., ARB Nos. 09–
102, 10–130, 2011 WL 3413364, at *7,
n.5 (ARB July 27, 2011), petition for
review filed, (11th Cir. Oct. 3, 2011) (No.
11–14419–C) (where complainant
consistently made an argument
throughout the administrative
proceedings the argument was not
waived simply because it appeared in
complainant’s reply brief to the ARB
rather than in the petition for review);
Avlon v. American Express Co., ARB
No. 09–089, 2011 WL 4915756, at *4, *5
n.1 (ARB Sept. 14, 2011) (consideration
of an argument not specifically raised in
complainant’s petition for review is
within the authority of the ARB, and
parallel provisions in the SOX
whistleblower regulations do not
mandate the ARB limit its review to ALJ
conclusions assigned as error in the
petition for review). However,
recognizing that the interim final rule
may have suggested too stringent a
standard, OSHA has replaced the phrase
‘‘ordinarily will’’ with ‘‘may.’’
NWC also suggested that the review
period be extended from 10 business
days to 30 days to make this section
parallel to the provision in
§ 1983.105(c), which allows for 30 days
within which to file an objection. OSHA
declines to extend the review period to
30 days because the shorter review
period is consistent with the practices
and procedures followed in OSHA’s
other whistleblower programs.
Furthermore, parties may file a motion
for extension of time to appeal an ALJ’s
decision, and the ARB has discretion to
grant such extensions. However, as
explained above, OSHA has revised the
period to petition for review of an ALJ
decision to 14 days rather than 10
business days. As a practical matter, this
revision does not substantively alter the
window of time for filing a petition for
review before the ALJ’s order becomes
final.

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40501

Similarly, section 1983.110(c), which
provides that the ARB will issue a final
decision within 120 days of the
conclusion of the ALJ hearing, was
similarly revised to state that the
conclusion of the ALJ hearing will be
deemed to be 14 days after the date of
the decision of the ALJ, rather than after
10 business days, unless a motion for
reconsideration has been filed with the
ALJ in the interim. Like the revision to
section 1983.110(a), this revision does
not substantively alter the length of time
before the ALJ hearing will be deemed
to have been concluded.
In addition to the changes noted
above, OSHA has revised this section
slightly to clarify that interest on back
pay awards will be compounded daily
and to make several minor changes to
clarify the provision and more closely
mirror the language used in the statute.
Subpart C—Miscellaneous Provisions
Section 1983.111 Withdrawal of
Complaints, Findings, Objections, and
Petitions for Review; Settlement
This section provides the procedures
and time periods for withdrawal of
complaints, the withdrawal of findings
and/or preliminary orders by the
Assistant Secretary, and the withdrawal
of objections to findings and/or orders.
It also provides for approval of
settlements at the investigative and
adjudicative stages of the case. No
comments were received on this section.
The final rule adopts a revision to
§ 1983.111(a) that permits complainants
to withdraw their complaints orally. In
such circumstances, OSHA will, in
writing, confirm a complainant’s desire
to withdraw. This revision will reduce
burdens on complainants who no longer
want to pursue their claims. Other
minor changes were made as needed to
clarify the provision without changing
its meaning.
Section 1983.112

Judicial Review

This section describes the statutory
provisions for judicial review of
decisions of the Secretary and requires,
in cases where judicial review is sought,
the ALJ or the ARB to submit the record
of proceedings to the appropriate court
pursuant to the rules of such court. No
comments were received on this section.
Section 1983.113

Judicial Enforcement

This section describes the Secretary’s
authority under CPSIA to obtain judicial
enforcement of orders and the terms of
settlement agreements. CPSIA expressly
authorizes district courts to enforce
orders, including preliminary orders of
reinstatement, issued by the Secretary
under 15 U.S.C. 2087(b)(6). ‘‘Whenever

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any person has failed to comply with an
order issued under paragraph (3), the
Secretary may file a civil action in the
United States district court for the
district in which the violation was
found to occur, or in the United States
district court for the District of
Columbia, to enforce such order.’’
Specifically, reinstatement orders issued
at the close of OSHA’s investigation
under 15 U.S.C. 2087(b)(2)(A) are
immediately enforceable in district
court pursuant to 15 U.S.C. 2087(b)(6)
and (7). Section 2087(b)(3)(B)(ii)
provides that the Secretary shall order
the person who has committed a
violation to reinstate the complainant to
his or her former position. Section
2087(b)(2)(A) instructs the Secretary to
accompany any reasonable cause
finding that a violation occurred with a
preliminary order containing the relief
prescribed by subsection (b)(3)(B),
which includes reinstatement where
appropriate, and provides that any
preliminary order of reinstatement shall
not be stayed upon the filing of
objections. See 15 U.S.C. 2087(b)(2)(A)
(‘‘The filing of such objections shall not
operate to stay any reinstatement
remedy contained in the preliminary
order.’’). Thus, under the statute,
enforceable orders include preliminary
orders that contain the relief of
reinstatement prescribed by subsection
(b)(3)(B). This statutory interpretation is
consistent with the Secretary’s
interpretation of similar language in
AIR21 and SOX. See Brief for the
Intervenor/Plaintiff-Appellee Secretary
of Labor, Solis v. Tenn. Commerce
Bancorp, Inc., No. 10–5602 (6th Cir.
2010); Solis v. Tenn. Commerce
Bancorp, Inc., 713 F. Supp. 2d 701
(M.D. Tenn. 2010); But see Bechtel, 448
F.3d 469; Welch v. Cardinal Bankshares
Corp., 454 F. Supp. 2d 552 (W.D. Va.
2006) (decision vacated, appeal
dismissed, No. 06–2295 (4th Cir. Feb.
20, 2008)). CPSIA also permits the
person on whose behalf the order was
issued to obtain judicial enforcement of
the order. See 15 U.S.C. 2087(b)(7). No
comments were received on this section.
The final rule simplifies language in the
first sentence and adds a sentence
noting that, in accordance with the
statute, 15 U.S.C. 2087(b)(6), the
Secretary may file civil actions seeking
enforcement of orders in the United
States District Court for the District of
Columbia as well as in the district court
for the district in which the violation
occurred.
Section 1983.114 District Court
Jurisdiction of Retaliation Complaints
This section sets forth provisions that
allow a complainant to bring an original

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de novo action in district court under
certain circumstances. OSHA has
revised paragraph (a) of this section to
more clearly explain the circumstances
in which the complainant may file a
complaint in district court and to
incorporate the statutory provision
allowing a jury trial at the request of
either party in a district court action
under CPSIA.
Under CPSIA, a complainant may
bring an original de novo action in
district court alleging the same
allegations contained in the complaint
filed with OSHA, if there has been no
final decision of the Secretary within
210 days of the filing of the complaint,
or within 90 days after receiving a
written determination. ‘‘Written
determination’’ refers to the Assistant
Secretary’s written findings under
§ 1983.105(a). See 15 U.S.C. 2087(b)(4).
The Secretary’s final decision is
generally the decision of the ARB issued
under § 1983.110. In other words, a
complainant may file an action for de
novo review in the appropriate district
court in either of the following two
circumstances: (1) A complainant may
file a de novo action in district court
within 90 days of receiving the
Assistant Secretary’s written findings
issued under § 1983.105(a), or (2) a
complainant may file a de novo action
in district court if more than 210 days
have passed since the filing of the
complaint and the Secretary has not
issued a final decision. The plain
language of 15 U.S.C. 2087(b)(4), by
distinguishing between actions that can
be brought if the Secretary has not
issued a ‘‘final decision’’ within 210
days and actions that can be brought
within 90 days after a ‘‘written
determination,’’ supports allowing de
novo actions in district court under
either of the circumstances described
above.
However, it is the Secretary’s position
that complainants may not initiate an
action in federal court after the
Secretary issues a final decision, even if
the date of the final decision is more
than 210 days after the filing of the
complaint or within 90 days of the
complainant’s receipt of the Assistant
Secretary’s written findings. The
purpose of the ‘‘kick-out’’ provision is to
aid the complainant in receiving a
prompt decision. That goal is not
implicated in a situation where the
complainant already has received a final
decision from the Secretary. In addition,
permitting the complainant to file a new
case in district court in such
circumstances could conflict with the
parties’ rights to seek judicial review of
the Secretary’s final decision in the
court of appeals. See 15 U.S.C.

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2087(b)(5)(B) (providing that an order
with respect to which review could
have been obtained in [the court of
appeals] shall not be subject to judicial
review in any criminal or other civil
proceeding).
Under CPSIA, the Assistant
Secretary’s written findings become the
final decision of the Secretary, not
subject to judicial review, if no
objection is filed within 30 days. 15
U.S.C. 2087(b)(2). Thus, a complainant
may need to file timely objections to the
Assistant Secretary’s findings in order to
preserve the right to file an action in
district court.
In paragraph (b) of this section, OSHA
eliminated the requirement in the
interim final rule that complainants
provide the agency 15 days advance
notice before filing a de novo complaint
in district court. Instead, this section
now provides that within seven days
after filing a complaint in district court,
a complainant must provide a filestamped copy of the complaint to the
Assistant Secretary, the ALJ, or the ARB,
depending on where the proceeding is
pending. A copy of the district court
complaint also must be provided to the
OSHA official who issued the findings
and/or preliminary order, the Assistant
Secretary, Occupational Safety and
Health Administration, and the U.S.
Department of Labor’s Associate
Solicitor for Fair Labor Standards. This
provision is necessary to notify the
agency that the complainant has opted
to file a complaint in district court. This
provision is not a substitute for the
complainant’s compliance with the
requirements for service of process of
the district court complaint contained in
the Federal Rules of Civil Procedure and
the local rules of the district court
where the complaint is filed.
This change responds to NWC’s
comment that the 15-day advance notice
requirement for filing in suit in district
court should be eliminated because it
inhibits complainants’ access to federal
courts. OSHA believes that a provision
for notifying the agency of the district
court complaint is necessary to avoid
unnecessary expenditure of agency
resources once a complainant has
decided to remove the complaint to
federal district court. OSHA believes
that the revised provision adequately
balances the complainant’s interest in
ready access to federal court and the
agency’s interest in receiving prompt
notice that the complainant no longer
wishes to continue with the
administrative proceeding.

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Section 1983.115 Special
Circumstances; Waiver of Rules
This section provides that in
circumstances not contemplated by
these rules or for good cause the ALJ or
the ARB may, upon application and
notice to the parties, waive any rule as
justice or the administration of CPSIA
requires. No comments were received
on this section and no changes have
been made to it.
IV. Paperwork Reduction Act
This rule contains a reporting
provision (filing a retaliation complaint,
§ 1983.103) which was previously
reviewed and approved for use by the
Office of Management and Budget
(OMB), under the provisions of the
Paperwork Reduction Act of 1995,
Public Law 104–13, 109 Stat. 163
(1995). The assigned OMB control
number is 1218–0236.

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V. Administrative Procedure Act
This is a rule of agency procedure and
practice within the meaning of section
553 of the Administrative Procedure Act
(APA), 5 U.S.C. 553(b)(A). Therefore,
publication in the Federal Register of a
notice of proposed rulemaking and
request for comments was not required
for these regulations, which provide
procedures for the handling of
retaliation complaints. The Assistant
Secretary, however, sought and
considered comments to enable the
agency to improve the rules by taking
into account the concerns of interested
persons.
Furthermore, because this rule is
procedural 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 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; Small Business Regulatory
Enforcement Fairness Act of 1996;
Executive Order 13132
The Department has concluded that
this rule is not a ‘‘significant regulatory
action’’ within the meaning 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

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safety, or State, local, or Tribal
governments or communities; (2) create
a serious inconsistency or otherwise
interfere with an action taken or
planned by another agency; (3)
materially alter the budgetary impact of
entitlements, grants, user fees, or loan
programs or the rights and obligations of
recipients thereof; or (4) raise novel
legal or policy issues arising out of legal
mandates, the President’s priorities, or
the principles set forth in Executive
Order 12866. Therefore, no regulatory
impact analysis has been prepared.
Because this rulemaking is procedural
in nature it is not expected to have a
significant economic impact; therefore
no statement is required under Section
202 of the Unfunded Mandates Reform
Act of 1995. Furthermore, because this
is a rule of agency procedure or practice,
it is not a ‘‘rule’’ within the meaning of
the Small Business Regulatory
Enforcement Fairness Act of 1996 (5
U.S.C. 804(3)(C)), and does not require
congressional review. 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 CPSIA.
Furthermore, no certification to this
effect is required and no regulatory
flexibility analysis is required because
no proposed rule has been issued.
VIII. List of Subjects in 29 CFR Part
1983
Administrative practice and
procedure, Employment, Consumer
protection, Investigations, Reporting
and recordkeeping requirements,
Whistleblower.
Authority and Signature
This document was prepared under
the direction and control of David
Michaels, Ph.D., MPH, Assistant

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40503

Secretary of Labor for Occupational
Safety and Health.
David Michaels,
Assistant Secretary of Labor for Occupational
Safety and Health.

Accordingly, for the reasons set out in
the preamble, 29 CFR part 1983 is
revised to read as follows:
PART 1983—PROCEDURES FOR THE
HANDLING OF RETALIATION
COMPLAINTS UNDER SECTION 219
OF THE CONSUMER PRODUCT
SAFETY IMPROVEMENT ACT OF 2008
Subpart A—Complaints, Investigations,
Findings and Preliminary Orders
Sec.
1983.100 Purpose and scope.
1983.101 Definitions.
1983.102 Obligations and prohibited acts.
1983.103 Filing of retaliation complaint.
1983.104 Investigation.
1983.105 Issuance of findings and
preliminary orders.
Subpart B—Litigation
1983.106 Objections to the findings and the
preliminary order and requests for a
hearing.
1983.107 Hearings.
1983.108 Role of Federal agencies.
1983.109 Decision and orders of the
administrative law judge.
1983.110 Decision and orders of the
Administrative Review Board.
Subpart C—Miscellaneous Provisions
1983.111 Withdrawal of complaints,
findings, objections, and petitions for
review; settlement.
1983.112 Judicial review.
1983.113 Judicial enforcement.
1983.114 District court jurisdiction of
retaliation complaints.
1983.115 Special circumstances; waiver of
rules.
Authority: 15 U.S.C. 2087; 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 (Jan. 25, 2010).

Subpart A—Complaints,
Investigations, Findings and
Preliminary Orders
§ 1983.100

Purpose and scope.

(a) This part implements procedures
of the employee protection provisions of
the Consumer Product Safety
Improvement Act (CPSIA), 15 U.S.C.
2087. CPSIA provides for employee
protection from retaliation because the
employee has engaged in protected
activity pertaining to consumer product
safety.
(b) This part establishes procedures
under CPSIA for the expeditious
handling of retaliation complaints filed
by employees, or by persons acting on
their behalf. These rules, together with
those codified at 29 CFR part 18, set

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forth the procedures under CPSIA for
submission of complaints,
investigations, issuance of findings and
preliminary orders, objections to
findings and orders, litigation before
administrative law judges (ALJs), posthearing administrative review, and
withdrawals and settlements.

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§ 1983.101

Definitions.

As used in this part:
(a) Assistant Secretary means the
Assistant Secretary of Labor for
Occupational Safety and Health or the
person or persons to whom he or she
delegates authority under CPSIA.
(b) Business days means days other
than Saturdays, Sundays, and Federal
holidays.
(c) Commission means the Consumer
Product Safety Commission.
(d) Complainant means the employee
who filed a CPSIA complaint or on
whose behalf a complaint was filed.
(e)(1) Consumer product means any
article, or component part thereof,
produced or distributed:
(i) For sale to a consumer for use in
or around a permanent or temporary
household or residence, a school, in
recreation, or otherwise; or
(ii) For the personal use, consumption
or enjoyment of a consumer in or
around a permanent or temporary
household or residence, a school, in
recreation, or otherwise.
(iii) The term ‘‘consumer product’’
includes any mechanical device which
carries or conveys passengers along,
around, or over a fixed or restricted
route or course or within a defined area
for the purpose of giving its passengers
amusement, which is customarily
controlled or directed by an individual
who is employed for that purpose and
who is not a consumer with respect to
such device, and which is not
permanently fixed to a site, but does not
include such a device that is
permanently fixed to a site.
(2) The term consumer product does
not include:
(i) Any article which is not
customarily produced or distributed for
sale to, or use or consumption by, or
enjoyment of, a consumer;
(ii) Tobacco and tobacco products;
(iii) Motor vehicles or motor vehicle
equipment (as defined by 49 U.S.C.
30102(a)(6) and (7));
(iv) Pesticides (as defined by the
Federal Insecticide, Fungicide, and
Rodenticide Act (7 U.S.C. 136 et seq.));
(v) Any article or any component of
any such article which, if sold by the
manufacturer, producer, or importer,
would be subject to the tax imposed by
26 U.S.C. 4181;

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(vi) Aircraft, aircraft engines,
propellers, or appliances (as defined in
49 U.S.C. 40102(a));
(vii) Boats which could be subjected
to safety regulation under 46 U.S.C.
chapter 43; vessels, and appurtenances
to vessels (other than such boats), which
could be subjected to safety regulation
under title 52 of the Revised Statutes or
other marine safety statutes
administered by the department in
which the Coast Guard is operating; and
equipment (including associated
equipment, as defined in 46 U.S.C.
2101(1)), to the extent that a risk of
injury associated with the use of such
equipment on boats or vessels could be
eliminated or reduced by actions taken
under any statute referred to in this
definitional section;
(viii) Drugs, devices, or cosmetics (as
such terms are defined in 21 U.S.C.
321(g), (h), and (i)); or
(ix) Food (the term ‘‘food’’ means all
‘‘food,’’ as defined in 21 U.S.C. 321(f),
including poultry and poultry products
(as defined in 21 U.S.C. 453(e) and (f)),
meat, meat food products (as defined in
21 U.S.C. 601(j)), and eggs and egg
products (as defined in 21 U.S.C. 1033)).
(f) CPSIA means Section 219 of the
Consumer Product Safety Improvement
Act of 2008, Public Law 110–314, 122
Stat. 3016 (Aug. 14, 2008) (codified at
15 U.S.C. 2087).
(g) Distributor means a person to
whom a consumer product is delivered
or sold for purposes of distribution in
commerce, except that such term does
not include a manufacturer or retailer of
such product.
(h) Employee means an individual
presently or formerly working for, an
individual applying to work for, or an
individual whose employment could be
affected by a manufacturer, private
labeler, distributor, or retailer.
(i) Manufacturer means any person
who manufactures or imports a
consumer product. A product is
manufactured if it is manufactured,
produced, or assembled.
(j) OSHA means the Occupational
Safety and Health Administration of the
United States Department of Labor.
(k) Private labeler means an owner of
a brand or trademark on the label of a
consumer product which bears a private
label. A consumer product bears a
private label if:
(1) The product (or its container) is
labeled with the brand or trademark of
a person other than a manufacturer of
the product,
(2) The person with whose brand or
trademark the product (or container) is
labeled has authorized or caused the
product to be so labeled, and

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(3) The brand or trademark of a
manufacturer of such product does not
appear on such label.
(l) Retailer means a person to whom
a consumer product is delivered or sold
for purposes of sale or distribution by
such person to a consumer.
(m) Respondent means the employer
named in the complaint who is alleged
to have violated CPSIA.
(n) Secretary means the Secretary of
Labor or person to whom authority
under CPSIA has been delegated.
(o) Any future statutory amendments
that affect the definition of a term or
terms listed in this section will apply in
lieu of the definition stated herein.
§ 1983.102
acts.

Obligations and prohibited

(a) No manufacturer, private labeler,
distributor, or retailer may discharge or
otherwise retaliate against, including,
but not limited to, intimidating,
threatening, restraining, coercing,
blacklisting or disciplining, any
employee with respect to the
employee’s compensation, terms,
conditions, or privileges of employment
because the employee, whether at the
employee’s initiative or in the ordinary
course of the employee’s duties (or any
person acting pursuant to a request of
the employee), engaged in any of the
activities specified in paragraphs (b)(1)
through (4) of this section.
(b) An employee is protected against
retaliation (as described in paragraph (a)
of this section) by a manufacturer,
private labeler, distributor, or retailer
because the employee (or any person
acting pursuant to a request of the
employee):
(1) Provided, caused to be provided,
or is about to provide or cause to be
provided to the employer, the Federal
Government, or the attorney general of
a State information relating to any
violation of, or any act or omission the
employee reasonably believes to be a
violation of any provision of the
Consumer Product Safety Act, as
amended by CPSIA, or any other Act
enforced by the Commission, or any
order, rule, regulation, standard, or ban
under any such Acts;
(2) Testified or is about to testify in a
proceeding concerning such violation;
(3) Assisted or participated or is about
to assist or participate in such a
proceeding; or
(4) Objected to, or refused to
participate in, any activity, policy,
practice, or assigned task that the
employee (or other such person)
reasonably believed to be in violation of
any provision of the Consumer Product
Safety Act, as amended by CPSIA, or
any other Act enforced by the

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Commission, or any order, rule,
regulation, standard, or ban under any
such Acts.
(c) This part shall have no application
with respect to an employee of a
manufacturer, private labeler,
distributor, or retailer who, acting
without direction from such
manufacturer, private labeler,
distributor, or retailer (or such person’s
agent), deliberately causes a violation of
any requirement relating to any
violation or alleged violation of any
order, regulation, or consumer product
safety standard under the Consumer
Product Safety Act, as amended by
CPSIA, or any other law enforced by the
Commission.

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§ 1983.103

Filing of retaliation complaint.

(a) Who may file. An employee who
believes that he or she has been
retaliated against by a manufacturer,
private labeler, distributor, or retailer in
violation of CPSIA may file, or have
filed by any person on the employee’s
behalf, a complaint alleging such
retaliation.
(b) Nature of filing. No particular form
of complaint is required. A complaint
may be filed orally or in writing. Oral
complaints will be reduced to writing
by OSHA. If the complainant is unable
to file the complaint in English, OSHA
will accept the complaint in any
language.
(c) Place of filing. The complaint
should be filed with the OSHA office
responsible for enforcement activities in
the geographical area where the
employee resides or was employed, but
may be filed with any OSHA officer or
employee. Addresses and telephone
numbers for these officials are set forth
in local directories and at the following
Internet address: http://www.osha.gov.
(d) Time for filing. Within 180 days
after an alleged violation of CPSIA
occurs, any employee who believes that
he or she has been retaliated against in
violation of CPSIA may file, or have
filed by any person on the employee’s
behalf, a complaint alleging such
retaliation. The date of the postmark,
facsimile transmittal, electronic
communication transmittal, telephone
call, hand-delivery, delivery to a thirdparty 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.
§ 1983.104

Investigation.

(a) Upon receipt of a complaint in the
investigating office, the Assistant
Secretary will notify the respondent of
the filing of the complaint, of the

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allegations contained in the complaint,
and of the substance of the evidence
supporting the complaint. Such
materials will be redacted, if necessary,
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 its rights under
paragraphs (b) and (f) of this section and
§ 1983.110(e). The Assistant Secretary
will provide an unredacted copy of
these same materials to the complainant
(or the complainant’s legal counsel if
complainant is represented by counsel),
and to the Consumer Product Safety
Commission.
(b) Within 20 days of receipt of the
notice of the filing of the complaint
provided under paragraph (a) of this
section, the respondent and the
complainant each may submit to the
Assistant Secretary a written statement
and any affidavits or documents
substantiating its position. Within the
same 20 days, the respondent and the
complainant each may request a
meeting with 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 employee engaged in a
protected activity;
(ii) The respondent knew or suspected
that the employee engaged in the
protected activity;
(iii) The employee suffered an adverse
action; and

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(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 employee
engaged in protected activity and that
the protected activity was a contributing
factor in the adverse action. The burden
may be satisfied, for example, if the
complaint shows that the adverse action
took place 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 § 1983.105, 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 CPSIA 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

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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.

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§ 1983.105 Issuance of findings and
preliminary orders.

(a) After considering all the relevant
information collected during the
investigation, the Assistant Secretary
will issue, within 60 days of the filing
of the complaint, written findings as to
whether or not there is reasonable cause
to believe that the respondent has
retaliated against the complainant in
violation of CPSIA.
(1) If the Assistant Secretary
concludes that there is reasonable cause
to believe that a violation has occurred,
the Assistant Secretary will accompany
the findings with a preliminary order
providing relief to the complainant. The
preliminary order will require, where
appropriate: affirmative action to abate
the violation; reinstatement of the
complainant to his or her former
position, together with the
compensation (including back pay and
interest), terms, conditions and
privileges of the complainant’s
employment; and payment of
compensatory damages, including, at
the request of the complainant, the
aggregate amount of all costs and
expenses (including attorney’s and
expert witness fees) reasonably
incurred. Interest on back pay will be
calculated using the interest rate
applicable to underpayment of taxes
under 26 U.S.C. 6621 and will be
compounded daily.
(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

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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 order
and to request a hearing, and of the right
of the respondent to request an award of
attorney’s fees not exceeding $1,000
from the ALJ, regardless of whether the
respondent has filed objections, if the
respondent alleges that the complaint
was frivolous or brought in bad faith.
The findings and, where appropriate,
the preliminary order also will give the
address of the Chief Administrative Law
Judge, U.S. Department of Labor. At the
same time, the Assistant Secretary will
file with the Chief Administrative Law
Judge a copy of the original complaint
and a copy of the findings and/or order.
(c) The findings and any preliminary
order will be effective 30 days after
receipt by the respondent (or the
respondent’s legal counsel if the
respondent is represented by counsel),
or on the compliance date set forth in
the preliminary order, whichever is
later, unless an objection and/or a
request for hearing has been timely filed
as provided at § 1983.106. 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
§ 1983.106 Objections to the findings and
the preliminary order and requests for a
hearing.

(a) Any party who desires review,
including judicial review, of the
findings and/or preliminary order, or a
respondent alleging that the complaint
was frivolous or brought in bad faith
who seeks an award of attorney’s fees
under CPSIA, must file any objections
and/or a request for a hearing on the
record within 30 days of receipt of the
findings and preliminary order pursuant
to § 1983.105. The objections, request
for a hearing, and/or request for
attorney’s fees must be in writing and
state whether the objections are to the
findings, the preliminary order, and/or
whether there should be an award of
attorney’s fees. The date of the
postmark, facsimile transmittal, or
electronic communication transmittal is
considered the date of filing; if the
objection is filed in person, by handdelivery 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

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copies of the objections must be mailed
at the same time to the other parties of
record, the OSHA official who issued
the findings and order, the Assistant
Secretary, and the Associate Solicitor,
Division of Fair Labor Standards, U.S.
Department of Labor.
(b) If a timely objection is filed, all
provisions of the preliminary order will
be stayed, except for the portion
requiring preliminary reinstatement,
which will not be automatically stayed.
The portion of the preliminary order
requiring reinstatement will be effective
immediately upon the respondent’s
receipt of the findings and preliminary
order, regardless of any objections to the
order. The respondent may file a motion
with the Office of Administrative Law
Judges for a stay of the Assistant
Secretary’s preliminary order of
reinstatement, which shall be granted
only based on exceptional
circumstances. If no timely objection is
filed with respect to either the findings
or the preliminary order, the findings
and/or the preliminary order will
become the final decision of the
Secretary, not subject to judicial review.
§ 1983.107

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.
§ 1983.108

Role of Federal agencies.

(a)(1) The complainant and the
respondent will be parties in every
proceeding and must be served with
copies of all documents in the case. At

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the Assistant Secretary’s discretion, the
Assistant Secretary may participate as a
party or as amicus curiae at any time at
any stage of the proceeding. This right
to participate includes, but is not
limited to, the right to petition for
review of a decision of an ALJ,
including a decision approving or
rejecting a settlement agreement
between the complainant and the
respondent.
(2) Copies of documents must be sent
to the Assistant Secretary and to the
Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of
Labor, only upon request of the
Assistant Secretary, or where the
Assistant Secretary is participating in
the proceeding, or where service on the
Assistant Secretary and the Associate
Solicitor is otherwise required by these
rules.
(b) The Consumer Product Safety
Commission, if interested in a
proceeding, may participate as amicus
curiae at any time in the proceeding, at
the Commission’s discretion. At the
request of the Commission, copies of all
documents in a case must be sent to the
Commission, whether or not it is
participating in the proceeding.

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§ 1983.109 Decision and orders of the
administrative law judge.

(a) The decision of the ALJ will
contain appropriate findings,
conclusions, and an order pertaining to
the remedies provided in paragraph (d)
of this section, as appropriate. A
determination that a violation has
occurred may be made only if the
complainant has demonstrated by a
preponderance of the evidence that
protected activity was a contributing
factor in the adverse action alleged in
the complaint.
(b) If the complainant has satisfied the
burden set forth in the prior paragraph,
relief may not be ordered if the
respondent demonstrates by clear and
convincing evidence that it would have
taken the same adverse action in the
absence of any protected activity.
(c) Neither the Assistant Secretary’s
determination to dismiss a complaint
without completing an investigation
pursuant to § 1983.104(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.

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(d)(1) If the ALJ concludes that the
respondent has violated the law, the ALJ
will issue an order that will require,
where appropriate: affirmative action to
abate the violation; reinstatement of the
complainant to his or her former
position, together with the
compensation (including back pay and
interest), terms, conditions, and
privileges of the complainant’s
employment; and payment of
compensatory damages, including, at
the request of the complainant, the
aggregate amount of all costs and
expenses (including attorney’s and
expert witness fees) reasonably
incurred. Interest on back pay will be
calculated using the interest rate
applicable to underpayment of taxes
under 26 U.S.C. 6621 and will be
compounded daily.
(2) If the ALJ determines that the
respondent has not violated the law, an
order will be issued denying the
complaint. If, upon the request of the
respondent, the ALJ determines that a
complaint was frivolous or was brought
in bad faith, the ALJ may award to the
respondent a reasonable attorney’s fee,
not exceeding $1,000.
(e) The decision will be served upon
all parties to the proceeding, the
Assistant Secretary, and the Associate
Solicitor, Division of Fair Labor
Standards, U.S. Department of Labor.
Any ALJ’s decision requiring
reinstatement or lifting an order of
reinstatement by the Assistant Secretary
will be effective immediately upon
receipt of the decision by the
respondent. All other portions of the
ALJ’s order will be effective 14 days
after the date of the decision unless a
timely petition for review has been filed
with the Administrative Review Board
(ARB), U.S. Department of Labor. The
decision of the ALJ will become the
final order of the Secretary unless a
petition for review is timely filed with
the ARB and the ARB accepts the
petition for review.
§ 1983.110 Decision and orders of the
Administrative Review Board.

(a) Any party desiring to seek review,
including judicial review, of a decision
of the ALJ, or a respondent alleging that
the complaint was frivolous or brought
in bad faith who seeks an award of
attorney’s fees, must file a written
petition for review with the ARB, which
has been delegated the authority to act
for the Secretary and issue final
decisions under this part. The parties
should identify in their petitions for
review the legal conclusions or orders to
which they object, or the objections may
be deemed waived. A petition must be
filed within 14 days of the date of the

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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 must be served on
the Assistant Secretary and on the
Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of
Labor.
(b) If a timely petition for review is
filed pursuant to paragraph (a) of this
section, the decision of the ALJ will
become the final order of the Secretary
unless the ARB, within 30 days of the
filing of the petition, issues an order
notifying the parties that the case has
been accepted for review. If a case is
accepted for review, the decision of the
ALJ will be inoperative unless and until
the ARB issues an order adopting the
decision, except that any order of
reinstatement will be effective while
review is conducted by the ARB, unless
the ARB grants a motion by the
respondent to stay that order based on
exceptional circumstances. The ARB
will specify the terms under which any
briefs are to be filed. The ARB will
review the factual determinations of the
ALJ under the substantial evidence
standard. If no timely petition for
review is filed, or the ARB denies
review, the decision of the ALJ will
become the final order of the Secretary.
If no timely petition for review is filed,
the resulting final order is not subject to
judicial review.
(c) The final decision of the ARB will
be issued within 120 days of the
conclusion of the hearing, which will be
deemed to be 14 days after the date of
the decision of the ALJ, unless a motion
for reconsideration has been filed with
the ALJ in the interim. In such case, the
conclusion of the hearing is the date the
motion for reconsideration is 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 will also be served on the
Assistant Secretary and on the Associate
Solicitor, Division of Fair Labor
Standards, U.S. Department of Labor,
even if the Assistant Secretary is not a
party.
(d) If the ARB concludes that the
respondent has violated the law, the
ARB will issue a final order providing
relief to the complainant. The final
order will require, where appropriate:
affirmative action to abate the violation;

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reinstatement of the complainant to his
or her former position, together with the
compensation (including back pay and
interest), terms, conditions, and
privileges of the complainant’s
employment; and payment of
compensatory damages, including, at
the request of the complainant, the
aggregate amount of all costs and
expenses (including attorney’s and
expert witness fees) reasonably
incurred. Interest on back pay will be
calculated using the interest rate
applicable to underpayment of taxes
under 26 U.S.C. 6621 and will be
compounded daily.
(e) If the ARB determines that the
respondent has not violated the law, an
order will be issued denying the
complaint. If, upon the request of the
respondent, the ARB determines that a
complaint was frivolous or was brought
in bad faith, the ARB may award to the
respondent a reasonable attorney’s fee,
not exceeding $1,000.
Subpart C—Miscellaneous Provisions

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§ 1983.111 Withdrawal of complaints,
findings, objections, and petitions for
review; settlement.

(a) At any time prior to the filing of
objections to the Assistant Secretary’s
findings and/or preliminary order, a
complainant may withdraw his or her
complaint by notifying 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
preliminary order at any time before the
expiration of the 30-day objection
period described in § 1983.106,
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 30day objection period.
(c) At any time before the Assistant
Secretary’s findings and/or order
become final, a party may withdraw
objections to the Assistant Secretary’s

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findings and/or order by filing a written
withdrawal with the ALJ. If the case is
on review with the ARB, a party may
withdraw a petition for review of an
ALJ’s decision at any time before that
decision becomes final by filing a
written withdrawal with the ARB. The
ALJ or the ARB, as the case may be, will
determine whether to approve the
withdrawal of the objections or the
petition for review. If the ALJ approves
a request to withdraw objections to the
Assistant Secretary’s findings and/or
order, and there are no other pending
objections, the Assistant Secretary’s
findings and/or order will become the
final order of the Secretary. If the ARB
approves a request to withdraw a
petition for review of an ALJ decision,
and there are no other pending petitions
for review of that decision, the ALJ’s
decision will become the final order of
the Secretary. If objections or a petition
for review are withdrawn because of
settlement, the settlement must be
submitted for approval in accordance
with paragraph (d) of this section.
(d)(1) Investigative settlements. At any
time after the filing of a complaint, 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
United States district court pursuant to
§ 1983.113.
§ 1983.112

Judicial review.

(a) Within 60 days after the issuance
of a final order under §§ 1983.109 and
1983.110, 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.

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(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.
§ 1983.113

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 CPSIA, the Secretary or a
person on whose behalf the order was
issued 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. The Secretary also may file a
civil action seeking enforcement of the
order in the United States district court
for the District of Columbia. In civil
actions under this section, the district
court will have jurisdiction to grant all
appropriate relief, including, but not
limited to, injunctive relief and
compensatory damages, including:
(a) Reinstatement with the same
seniority status that the employee
would have had, but for the discharge
or retaliation;
(b) The amount of back pay, with
interest; and
(c) Compensation for any special
damages sustained as a result of the
discharge or retaliation, including
litigation costs, expert witness fees, and
reasonable attorney’s fees.
§ 1983.114 District court jurisdiction of
retaliation complaints.

(a) The complainant may bring an
action at law or equity for de novo
review in the appropriate district court
of the United States, which will have
jurisdiction over such an action without
regard to the amount in controversy,
either:
(1) Within 90 days after receiving a
written determination under
§ 1983.105(a) provided that there has
been no final decision of the Secretary;
or
(2) If there has been no final decision
of the Secretary within 210 days of the
filing of the complaint.
(3) At the request of either party, the
action shall 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

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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 Fair Labor Standards, U.S.
Department of Labor.
§ 1983.115
of rules.

Special circumstances; waiver

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 that justice or the administration
of CPSIA requires.
[FR Doc. 2012–16411 Filed 7–9–12; 8:45 am]
BILLING CODE 4510–26–P

DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 117
[Docket No. USCG–2012–0550]

Drawbridge Operation Regulation;
Oakland Inner Harbor Tidal Canal,
Alameda, CA
Coast Guard, DHS.
Notice of temporary deviation
from regulations.

AGENCY:
ACTION:

The Coast Guard has issued a
temporary deviation from the operating
regulation that governs the Park Street
Drawbridge across Oakland Inner
Harbor Tidal Canal, mile 5.2, at
Alameda, CA. The deviation is
necessary to allow the County of
Alameda Public Works Agency to
perform necessary repairs on the
drawbridge. This deviation allows
single leaf operation of the double leaf
bascule style drawbridge during the
project.

SUMMARY:

This deviation is effective from
7 a.m., July 9, 2012 to 6 p.m. on July 18,
2012.
ADDRESSES: Documents mentioned in
this preamble as being available in the
docket are part of the docket USCG–
2012–0550 and are available online by
going to http://www.regulations.gov,
inserting USCG–2012–0550 in the
‘‘Keyword’’ box and then clicking
‘‘Search’’. They are also available for
inspection or copying at the Docket
Management Facility (M–30), U.S.
Department of Transportation, West
Building Ground Floor, Room W12–140,
1200 New Jersey Avenue SE.,

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DATES:

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Washington, DC 20590, between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays.
If
you have questions on this rule, call or
email David H. Sulouff, Chief, Bridge
Section, Eleventh Coast Guard District;
telephone 510–437–3516, email
David.H.Sulouff@uscg.mil. If you have
questions on viewing the docket, call
Renee V. Wright, Program Manager,
Docket Operations, telephone 202–366–
9826.

FOR FURTHER INFORMATION CONTACT:

The
County of Alameda Public Works
Department has requested a temporary
change to the operation of the Park
Street Drawbridge, mile 5.2, over
Oakland Inner Harbor Tidal Canal, at
Alameda, CA. The drawbridge
navigation span provides a vertical
clearance of 15 feet above Mean High
Water in the closed-to-navigation
position. The draw opens on signal;
except that, from 8 a.m. to 9 a.m. and
4:30 p.m. to 6:30 p.m. Monday through
Friday except Federal holidays, the
draw need not be opened for the passage
of vessels. However, the draw shall
open during the closed periods for
vessels which must, for reasons of
safety, move on a tide or slack water, if
at least two hours notice is given.
Navigation on the waterway is
commercial and recreational.
The Alameda (south) side of the
bridge leaf of the double bascule
drawspan may be secured in the closedto-navigation position from 7 a.m., July
9, 2012 to 6 p.m. on July 18, 2012, to
allow the County of Alameda Public
Works Agency to perform necessary
repairs on the bridge. The opposite leaf
will continue to operate normally,
providing unlimited vertical clearance
and 120 feet horizontal clearance
between leafs. This temporary deviation
has been coordinated with waterway
users. No objections to the proposed
temporary deviation were raised.
In accordance with 33 CFR 117.35(e),
the drawbridge must return to its regular
operating schedule immediately at the
end of the designated time period. This
deviation from the operating regulations
is authorized under 33 CFR 117.35.

SUPPLEMENTARY INFORMATION:

Dated: June 27, 2012.
D.H. Sulouff,
District Bridge Chief, Eleventh Coast Guard
District.
[FR Doc. 2012–16779 Filed 7–9–12; 8:45 am]
BILLING CODE 9110–04–P

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DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG–2012–0526]
RIN 1625–AA00

Safety Zone; Fireworks Display in
Captain of the Port, Puget Sound Zone
Coast Guard, DHS.
Temporary final rule.

AGENCY:
ACTION:

The Coast Guard is
establishing a safety zone in Shilshole
Bay for a fireworks display. The safety
zone is necessary to help ensure the
safety of the maritime public during the
display and will do so by prohibiting all
persons and vessels from entering the
safety zone unless authorized by the
Captain of the Port or his Designated
Representative.
DATES: This rule is effective from
August 2, 2012, until August 3, 2012.
ADDRESSES: Documents mentioned in
this preamble are part of docket USCG–
2012–0526. To view documents
mentioned in this preamble as being
available in the docket, go to http://
www.regulations.gov, type the docket
number in the ‘‘SEARCH’’ box and click
‘‘SEARCH.’’ Click on Open Docket
Folder on the line associated with this
rulemaking. You may also visit the
Docket Management Facility in Room
W12–140 on the ground floor of the
Department of Transportation West
Building, 1200 New Jersey Avenue SE.,
Washington, DC 20590, between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this rule, call or
email ENS Nathaniel P. Clinger, Coast
Guard Sector Puget Sound, Waterways
Management Division; telephone 206–
217–6045, email
SectorPugetSoundWWM@uscg.mil. If
you have questions on viewing or
submitting material to the docket, call
Renee V. Wright, Program Manager,
Docket Operations, telephone (202)
366–9826.
SUPPLEMENTARY INFORMATION:
SUMMARY:

Table of Acronyms
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking

A. Regulatory History and Information
The Coast Guard is issuing this
temporary final rule without prior
notice and opportunity to comment
pursuant to authority under section 4(a)

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