29 Cfr 1986.103 (ifr)

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Federal Register / Vol. 78, No. 25 / Wednesday, February 6, 2013 / Rules and Regulations

Publication of Project Cost Limits
Under Blanket Certificates

■

2. Table I in § 157.208(d) is revised to
read as follows:

Order of the Director, OEP

§ 157.208 Construction, acquisition,
operation, replacement, and miscellaneous
rearrangement of facilities.

(February 1, 2013)
Section 157.208(d) of the
Commission’s Regulations provides for
project cost limits applicable to
construction, acquisition, operation and
miscellaneous rearrangement of
facilities (Table I) authorized under the
blanket certificate procedure (Order No.
234, 19 FERC ¶ 61,216). Section
157.215(a) specifies the calendar year
dollar limit which may be expended on
underground storage testing and
development (Table II) authorized under
the blanket certificate. Section
157.208(d) requires that the ‘‘limits
specified in Tables I and II shall be
adjusted each calendar year to reflect
the ‘GDP implicit price deflator’
published by the Department of
Commerce for the previous calendar
year.’’
Pursuant to § 375.308(x)(1) of the
Commission’s Regulations, the authority
for the publication of such cost limits,
as adjusted for inflation, is delegated to
the Director of the Office of Energy
Projects. The cost limits for calendar
year 2013, as published in Table I of
§ 157.208(d) and Table II of § 157.215(a),
are hereby issued.
Effective Date
This final rule is effective February 6,
2013. The provisions of 5 U.S.C. 804
regarding Congressional review of Final
Rules does not apply to the Final Rule
because the rule concerns agency
procedure and practice and will not
substantially affect the rights or
obligations of non-agency parties. The
Final Rule merely updates amounts
published in the Code of Federal
Regulations to reflect the Department of
Commerce’s latest annual determination
of the Gross Domestic Product (GDP)
implicit price deflator, a mathematical
updating required by the Commission’s
existing regulations.
List of Subjects in 18 CFR Part 157
Administrative practice and
procedure, Natural Gas, Reporting and
recordkeeping requirements.

sroberts on DSK5SPTVN1PROD with RULES

Jeff C. Wright,
Director, Office of Energy Projects.

Accordingly, 18 CFR part 157 is
amended as follows:
PART 157—[AMENDED]
1. The authority citation for Part 157
continues to read as follows:

■

Authority: 15 U.S.C. 717–717w, 3301–
3432; 42 U.S.C. 7101–7352.

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Jkt 229001

*

*
*
(d) * * *

*

*

TABLE I
Limit
Year

1982
1983
1984
1985
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013

Auto. proj.
cost limit
(Col.1)

..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........

Prior notice
proj. cost limit
(Col.2)

$4,200,000
4,500,000
4,700,000
4,900,000
5,100,000
5,200,000
5,400,000
5,600,000
5,800,000
6,000,000
6,200,000
6,400,000
6,600,000
6,700,000
6,900,000
7,000,000
7,100,000
7,200,000
7,300,000
7,400,000
7,500,000
7,600,000
7,800,000
8,000,000
9,600,000
9,900,000
10,200,000
10,400,000
10,500,000
10,600,000
10,800,000
11,000,000

$12,000,000
12,800,000
13,300,000
13,800,000
14,300,000
14,700,000
15,100,000
15,600,000
16,000,000
16,700,000
17,300,000
17,700,000
18,100,000
18,400,000
18,800,000
19,200,000
19,600,000
19,800,000
20,200,000
20,600,000
21,000,000
21,200,000
21,600,000
22,000,000
27,400,000
28,200,000
29,000,000
29,600,000
29,900,000
30,200,000
30,800,000
31,400,000

*

*
*
*
*
3. Table II in § 157.215(a)(5) is revised
to read as follows:

■

§ 157.215 Underground storage testing
and development.

(a) * * *
(5) * * *

TABLE II
Year
1982
1983
1984
1985
1986
1987
1988
1989
1990
1991
1992
1993

PO 00000

Limit

......................................
......................................
......................................
......................................
......................................
......................................
......................................
......................................
......................................
......................................
......................................
......................................

Frm 00038

Fmt 4700

Sfmt 4700

$2,700,000
2,900,000
3,000,000
3,100,000
3,200,000
3,300,000
3,400,000
3,500,000
3,600,000
3,800,000
3,900,000
4,000,000

TABLE II—Continued
Year

Limit

1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013

......................................
......................................
......................................
......................................
......................................
......................................
......................................
......................................
......................................
......................................
......................................
......................................
......................................
......................................
......................................
......................................
......................................
......................................
......................................
......................................

*

*

*

*

4,100,000
4,200,000
4,300,000
4,400,000
4,500,000
4,550,000
4,650,000
4,750,000
4,850,000
4,900,000
5,000,000
5,100,000
5,250,000
5,400,000
5,550,000
5,600,000
5,700,000
5,750,000
5,850,000
6,000,000

*

[FR Doc. 2013–02612 Filed 2–5–13; 8:45 am]
BILLING CODE 6717–01–P

DEPARTMENT OF LABOR
Occupational Safety and Health
Administration
29 CFR Part 1986
[Docket Number: OSHA–2011–0841]
RIN 1218–AC58

Procedures for the Handling of
Retaliation Complaints Under the
Employee Protection Provision of the
Seaman’s Protection Act (SPA), as
Amended
Occupational Safety and Health
Administration, Labor.
ACTION: Interim final rule; request for
comments.
AGENCY:

This document provides the
interim final text of regulations
governing the employee protection
(whistleblower) provisions of the
Seaman’s Protection Act (‘‘SPA’’ or ‘‘the
Act’’), as amended by Section 611 of the
Coast Guard Authorization Act of 2010.
Section 611 transfers to the
Occupational Safety and Health
Administration (‘‘OSHA’’ or ‘‘the
Agency’’) the administration of the
whistleblower protections previously
enforced solely via a private right of
action. This interim rule establishes
procedures and time frames for the
handling of retaliation complaints under
SPA, including procedures and time
frames for employee complaints to
OSHA, investigations by OSHA, appeals
of OSHA determinations to an

SUMMARY:

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Federal Register / Vol. 78, No. 25 / Wednesday, February 6, 2013 / Rules and Regulations
administrative law judge (ALJ) for a
hearing de novo, hearings by ALJs,
review of ALJ decisions by the
Administrative Review Board (ARB) on
behalf of the Secretary of Labor
(Secretary), and judicial review of the
Secretary’s final decision. In addition,
this interim rule provides the
Secretary’s interpretation of the term
‘‘seaman’’ and addresses other
interpretive issues raised by SPA.
DATES: This interim final rule is
effective on February 6, 2013.
Comments on the interim final rule
must be submitted (postmarked, sent or
received) on or before April 8, 2013.
ADDRESSES: You may submit comments
and additional materials by any of the
following methods:
Electronically: You may submit
comments and attachments
electronically at http://
www.regulations.gov, which is the
Federal e-Rulemaking Portal. Follow the
instructions online for making
electronic submissions.
Fax: If your submissions, including
attachments, do not exceed 10 pages,
you may fax them to the OSHA Docket
Office at (202) 693–1648.
Mail, hand delivery, express mail,
messenger or courier service: You must
submit your comments and attachments
to the OSHA Docket Office, Docket No.
OSHA–2011–0841, U.S. Department of
Labor, Room N–2625, 200 Constitution
Avenue NW., Washington, DC 20210.
Deliveries (hand, express mail,
messenger and courier service) are
accepted during the Department of
Labor’s and Docket Office’s normal
business hours, 8:15 a.m.–4:45 p.m.,
EST.
Instructions: All submissions must
include the agency name and the OSHA
docket number for this rulemaking
(Docket No. OSHA–2011–0841).
Submissions, including any personal
information you provide, are placed in
the public docket without change and
may be made available online at http://
www.regulations.gov. Therefore, OSHA
cautions you about submitting personal
information such as social security
numbers and birth dates.
Docket: To read or download
submissions or other material in the
docket, go to http://www.regulations.gov
or the OSHA Docket Office at the
address above. All documents in the
docket are listed in the http://
www.regulations.gov index, however,
some information (e.g., copyrighted
material) is not publicly available to
read or download through the Web site.
All submissions, including copyrighted
material, are available for inspection
and copying at the OSHA Docket Office.

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Jkt 229001

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

I. Background
Congress enacted SPA as Section 13
of the Coast Guard Authorization Act of
1984, Public Law 98–557, 98 Stat. 2860
(1984). SPA protected seamen from
retaliation for reporting a violation of
Subtitle II of Title 46 of the U.S. Code,
which governs vessels and seamen, or a
regulation promulgated under that
Subtitle. S. Rep. No. 98–454, at 11
(1984). Congress passed SPA in
response to Donovan v. Texaco, 720
F.2d 825 (5th Cir. 1983), in which the
Fifth Circuit held that the whistleblower
provision of the Occupational Safety
and Health Act (OSH Act) did not cover
a seaman who had been demoted and
discharged from his position because he
reported a possible safety violation to
the U.S. Coast Guard. S. Rep. No. 98–
454, at 12 (1984). This original version
of SPA prohibited ‘‘[a]n owner,
charterer, managing operator, agent,
master, or individual in charge of a
vessel’’ from retaliating against a
seaman ‘‘because the seaman in good
faith has reported or is about to report
to the Coast Guard that the seaman
believes that’’ a violation of Subtitle II
had occurred. Public Law 98–557
§ 13(a), 98 Stat. at 2863. It permitted
seamen to bring actions in U.S. district
courts seeking relief for alleged
retaliation in violation of the Act. Id.
§ 13(a), 98 Stat. at 2863–64.
In 2002, Congress amended SPA.
Section 428 of the Maritime
Transportation Security Act of 2002,
Public Law 107–295, 116 Stat. at 2064
(2002), altered both the protections
afforded and remedies permitted by the
Act. First, Congress removed the
specific list of actors who were
prohibited from retaliating against
seamen and replaced that text with ‘‘[a]
person.’’ Public Law 107–295 § 428(a),
116 Stat. at 2127. Second, Congress
expanded the existing description of
protected activity to include reports to
‘‘the Coast Guard or other appropriate
Federal agency or department,’’ rather
than only to the Coast Guard, and
violations ‘‘of a maritime safety law or

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8391

regulation prescribed under that law or
regulation,’’ rather than only of Subtitle
II and its accompanying regulations. Id.
Third, Congress added a second type of
protected activity; a seaman who
‘‘refused to perform duties ordered by
the seaman’s employer because the
seaman has a reasonable apprehension
or expectation that performing such
duties would result in serious injury to
the seaman, other seamen, or the
public’’ was granted protection from
retaliation. Id. The new text clarified
that, ‘‘[t]o qualify for protection against
the seaman’s employer under paragraph
(1)(B), the employee must have sought
from the employer, and been unable to
obtain, correction of the unsafe
condition.’’ Id. The amended statute
further explained that ‘‘The
circumstances causing a seaman’s
apprehension of serious injury under
paragraph (1)(B) must be of such a
nature that a reasonable person, under
similar circumstances, would conclude
that there is a real danger of an injury
or serious impairment of health
resulting from the performance of duties
as ordered by the seaman’s employer.’’
Public Law 107–295 § 428, 116 Stat. at
2127.
Congress made additional changes to
the Act, including those that led OSHA
to initiate this rulemaking, on October
15, 2010. Section 611 of the Coast Guard
Authorization Act of 2010, Public Law
111–281, 124 Stat. at 2905 (2010), made
further additions to the list of protected
activities under SPA and fundamentally
changed the remedies section of the Act.
Regarding protected activities, Section
611 added to subsection (a):
(C) the seaman testified in a
proceeding brought to enforce a
maritime safety law or regulation
prescribed under that law;
(D) the seaman notified, or attempted
to notify, the vessel owner or the
Secretary [of the department in which
the Coast Guard is operating 1] of a
work-related personal injury or workrelated illness of a seaman;
(E) the seaman cooperated with a
safety investigation by the Secretary [of
the department in which the Coast
Guard is operating] or the National
Transportation Safety Board;
(F) the seaman furnished information
to the Secretary [of the department in
which the Coast Guard is operating], the
National Transportation Safety Board, or
any other public official as to the facts
relating to any marine casualty resulting
1 The text of 46 U.S.C. 2114 refers to ‘‘the
Secretary,’’ defined for purposes of Part A of
Subtitle II as ‘‘the Secretary of the department in
which the Coast Guard is operating.’’ 46 U.S.C.
2101(34). The Coast Guard is currently part of the
Department of Homeland Security.

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Federal Register / Vol. 78, No. 25 / Wednesday, February 6, 2013 / Rules and Regulations

in injury or death to an individual or
damage to property occurring in
connection with vessel transportation;
or
(G) the seaman accurately reported
hours of duty under this part.
Id. § 611(a), 124 Stat. at 2969.
Congress replaced section (b) of SPA,
which had provided a private right of
action to seamen and described relief a
court could award, in its entirety. The
new text provides:
(b) A seaman alleging discharge or
discrimination in violation of
subsection (a) of this section, or another
person at the seaman’s request, may file
a complaint with respect to such
allegation in the same manner as a
complaint may be filed under
subsection (b) of section 31105 of title
49. Such complaint shall be subject to
the procedures, requirements, and rights
described in that section, including with
respect to the right to file an objection,
the right of a person to file for a petition
for review under subsection (c) of that
section, and the requirement to bring a
civil action under subsection (d) of that
section.
Id. Section 31105 of title 49 is the
‘‘Employee protections’’ provision of the
Surface Transportation Assistance Act
(STAA), 49 U.S.C. 31105. STAA
provides that initial complaints
regarding retaliation under that statute
are to be filed with and handled by the
Secretary of Labor (Secretary), see id.
§ 31105(b)–(e), and the Secretary has
delegated her authority in this regard to
OSHA. See Secretary’s Order 1–2012
(Jan. 18, 2012), 77 FR 3912 (Jan. 25,
2012). The Secretary has also delegated
to OSHA her authority under SPA. Id.
at 3913. Hearings on determinations by
the Assistant Secretary for OSHA
(Assistant Secretary) are conducted by
the Office of Administrative Law Judges,
and appeals from decisions by
administrative law judges (ALJs) are
decided by the Department of Labor’s
Administrative Review Board (ARB).
See Secretary’s Order 1–2010, 75 FR
3924–01 (Jan. 25, 2010).
OSHA is promulgating this interim
final rule to establish procedures for the
handling of whistleblower complaints
under SPA and address certain
interpretative issues raised by the
statute. To the extent possible within
the bounds of applicable statutory
language, these regulations are designed
to be consistent with the procedures
applied to claims under STAA, and the
other whistleblower statutes
administered by OSHA, including the
Energy Reorganization Act (ERA), 42
U.S.C. 5851, the Wendell H. Ford
Aviation Investment and Reform Act for

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the 21st Century (AIR21), 49 U.S.C.
42121, Title VIII of the Sarbanes-Oxley
Act of 2002 (SOX), 18 U.S.C. 1514A,
and the Consumer Product Safety
Improvement Act (CPSIA), 15 U.S.C.
2087.
II. Summary of Statutory Procedures
As explained above, SPA adopts the
process for filing a complaint
established under subsection (b) of
STAA. 46 U.S.C. 2114(b). It further
incorporates the other ‘‘procedures,
requirements, and rights described in’’
STAA, id., described below. OSHA
therefore understands SPA to
incorporate STAA subsections (b)
through (g). SPA’s text could cause
confusion regarding which sections of
STAA it adopts by referring, in some
cases incorrectly,2 to certain sections
while not mentioning others.3 Those
references follow the word ‘‘including,’’
however, with no suggestion that the
subsequent list is meant to be exclusive,
so OSHA will not treat it as such. OSHA
does not read SPA as incorporating
Sections (a), (h), (i), or (j) of STAA
because those provisions are substantive
and specific to STAA or agencies other
than the Department of Labor rather
than describing ‘‘procedures,
requirements, and rights.’’ The statutory
procedures applicable to SPA claims are
summarized below.
Filing of SPA Complaints
A seaman, or another person at the
seaman’s request, alleging a violation of
SPA, may file a complaint with the
Secretary not later than 180 days after
the alleged retaliation.
2 Specifically, the Act’s adoption of STAA’s
‘‘procedures, requirements, and rights’’ is followed
by the text ‘‘including with respect to the right to
file an objection, the right of a person to file for a
petition for review under subsection (c) of [STAA],
and the requirement to bring a civil action under
subsection (d) of that section.’’ 46 U.S.C. 2114(b).
But Section (c) addresses de novo review in the
district court if the Secretary has not issued a final
decision after 210 days; Section (d) addresses filing
a petition for review after receiving an adverse
order following a hearing; and Section (e) provides
that ‘‘[i]f a person fails to comply with an order
issued under subsection (b) of this section, the
Secretary of Labor shall bring a civil action to
enforce the order in the district court of the United
States for the judicial district in which the violation
occurred.’’ 49 U.S.C. 31105(c)–(e).
3 Section (f) declares that STAA does not preempt
any other federal or state law safeguarding against
retaliation; Section (g) declares that STAA does not
diminish any legal rights of any employee, nor may
the rights of the Section be waived; Section (h)
prohibits the disclosure by the Secretary of
Transportation or the Secretary of Homeland
Security of the identity of an employee who
provides information about an alleged violation of
the statute except, under certain circumstances, to
the Attorney General; Section (i) creates a process
for reporting security problems to the Department
of Homeland Security; and Section (j) defines the
term ‘‘employee’’ for purposes of STAA. 49 U.S.C.
31105(f)–(j).

PO 00000

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Legal Burdens of Proof for SPA
Complaints
Section (b)(1) of STAA states that
STAA whistleblower complaints will be
governed by the legal burdens of proof
set forth in AIR21, 49 U.S.C. 42121(b),
which contains whistleblower
protections for employees in the
aviation industry. 49 U.S.C. 31105(b)(1).
Accordingly, these burdens of proof also
govern SPA whistleblower complaints.
Under AIR21, a violation may be
found only if the complainant
demonstrates that protected activity was
a contributing factor in the adverse
action described in the complaint. 49
U.S.C. 42121(b)(2)(B)(iii). Relief is
unavailable if the employer
demonstrates by clear and convincing
evidence that it would have taken the
same adverse action in the absence of
the protected activity. 49 U.S.C.
42121(b)(2)(B)(iv); see Vieques Air Link,
Inc. v. Dep’t of Labor, 437 F.3d 102,
108–09 (1st Cir. 2006) (per curiam)
(burdens of proof under AIR21); see also
Formella v. U.S. Dep’t of Labor, 628
F.3d 381, 389 (7th Cir. 2010) (explaining
that because it incorporates the burdens
of proof set forth in AIR21, STAA
requires only a showing that the
protected activity was a contributing
factor, not a but-for cause, of the adverse
action.).
Written Notice of Complaint and
Findings.
Under Section (b) of STAA, upon
receipt of the complaint, the Secretary
must provide written notice of the filing
of the complaint to the person or
persons alleged in the complaint to have
violated the Act (‘‘respondent’’). 49
U.S.C. 31105(b).
Within 60 days of receipt of the
complaint, the Secretary must conduct
an investigation of the allegations,
decide whether it is reasonable to
believe the complaint has merit, and
provide written notification to the
complainant and the respondent of the
investigative findings.
Remedies
If the Secretary decides it is
reasonable to believe a violation
occurred, the Secretary shall include
with the findings a preliminary order for
the relief provided for under Section
(b)(3) of STAA, 49 U.S.C. 31105(b)(3).
This order shall require the respondent
to take affirmative action to abate the
violation; reinstate the complainant to
the former position with the same pay
and terms and privileges of
employment; and pay compensatory
damages, including back pay with
interest and compensation for any

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Federal Register / Vol. 78, No. 25 / Wednesday, February 6, 2013 / Rules and Regulations
special damages sustained as a result of
the discrimination, including litigation
costs, expert witness fees, and
reasonable attorney fees. Additionally, if
the Secretary issues a preliminary order
and the complainant so requests, the
Secretary may assess against the
respondent the costs, including attorney
fees, reasonably incurred by the
complainant in bringing the complaint.
Punitive damages of up to $250,000.00
are also available.
Hearings
Section (b) of STAA also provides for
hearings. Specifically, the complainant
and the respondent have 30 days after
the date of the Secretary’s notification in
which to file objections to the findings
and/or preliminary order and request a
hearing. The filing of objections does
not stay a reinstatement ordered in the
preliminary order. If a hearing is not
requested within 30 days, the
preliminary order becomes final and is
not subject to judicial review.
If a hearing is held, it is to be
conducted expeditiously. The Secretary
shall issue a final order within 120 days
after the conclusion of any hearing. The
final order may provide appropriate
relief or deny the complaint. Until the
Secretary’s final order is issued, the
Secretary, the complainant, and the
respondent may enter into a settlement
agreement that terminates the
proceeding.

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De Novo Review
Section (c) of STAA provides for de
novo review of a whistleblower claim by
a United States district court in the
event that the Secretary has not issued
a final decision within 210 days after
the filing of a complaint and the delay
is not due to the complainant’s bad
faith. 49 U.S.C. 31105(c). The provision
provides that the court will have
jurisdiction over the action without
regard to the amount in controversy and
that the case will be tried before a jury
at the request of either party.
Judicial Review
Section (d) of STAA provides that
within 60 days of the issuance of the
Secretary’s final order following a
hearing, any person adversely affected
or aggrieved by the Secretary’s final
order may file an appeal with the
United States Court of Appeals for the
circuit in which the violation occurred
or the circuit where the complainant
resided on the date of the violation. 49
U.S.C. 31105(d).
Civil Actions To Enforce
Section (e) of STAA provides that if
a person fails to comply with an order

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issued by the Secretary under Section
(b), the Secretary of Labor ‘‘shall bring
a civil action to enforce the order in the
district court of the United States for the
judicial district in which the violation
occurred.’’ 49 U.S.C. 31105(e).
Preemption
Section (f) of STAA clarifies that
nothing in the statute preempts or
diminishes any other safeguards against
discrimination provided by Federal or
State law. 49 U.S.C. 31105(f).
Employee Rights
Section (g) of STAA states that
nothing in STAA shall be deemed to
diminish the rights, privileges, or
remedies of any employee under any
Federal or State law or under any
collective bargaining agreement. 49
U.S.C. 31105(g). It further states that
rights and remedies under 49 U.S.C.
31105 ‘‘may not be waived by any
agreement, policy, form, or condition of
employment.’’
III. Summary and Discussion of
Regulatory Provisions
The regulatory provisions in this part
have been written and organized to be
consistent with other whistleblower
regulations promulgated by OSHA to
the extent possible within the bounds of
the statutory language of SPA and of
STAA.
Throughout the regulatory text, OSHA
has used the term ‘‘retaliate’’ rather than
‘‘discharge or in any manner
discriminate,’’ the phrase that appears
in the text of SPA. The use of
‘‘retaliate,’’ which also appears in the
regulations implementing STAA, the
ERA, SOX, and CPSIA, is not intended
to have a substantive effect. It simply
reflects that claims brought under these
whistleblower provisions, whether
alleging discharge or some other form of
discrimination, are prototypical
retaliation claims. A retaliation claim is
a specific type of discrimination claim
that focuses on actions taken as a result
of an employee’s protected activity
rather than as a result of an employee’s
characteristics (such as race, gender, or
religion).
Subpart A—Complaints, Investigations,
Findings, and Preliminary Orders
Section 1986.100 Purpose and Scope
This section describes the purpose of
the regulations implementing SPA’s
whistleblower provision and provides
an overview of the procedures
contained in the regulations.
Section 1986.101 Definitions
This section includes general
definitions applicable to SPA’s

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whistleblower provision. Most of the
definitions are of terms common to
whistleblower statutes and are defined
here as they are elsewhere. Some terms
call for additional explanation.
SPA prohibits retaliation by a
‘‘person.’’ Title 1 of the U.S. Code
provides the definition of this term
because there is no indication in the
statute that any other meaning applies.
Accordingly, ‘‘person … include[s]
corporations, companies, associations,
firms, partnerships, societies, and joint
stock companies, as well as
individuals.’’ 1 U.S.C. 1. This list, as
indicated by the word ‘‘include,’’ is not
exhaustive. See Fed. Land Bank v.
Bismarck Lumber Co., 314 U.S. 95, 100
(1941) (‘‘[T]he term ‘including’ is not
one of all embracing definition, but
connotes simply an illustrative
application of the general principle.’’
(citation omitted)). Paragraph (j)
accordingly defines ‘‘person’’ as ‘‘one or
more individuals or other entities,
including but not limited to
corporations, companies, associations,
firms, partnerships, societies, and joint
stock companies.’’
SPA protects seamen when they make
certain reports and notifications. 46
U.S.C. 2114(a)(1)(A), (D), (G).
Paragraphs (h) and (k) define ‘‘report’’
and ‘‘notify’’ both to include ‘‘any oral
or written communications of a
violation.’’ This interpretation of the
statute is consistent with a plain reading
of the statutory text and best fulfills the
purposes of SPA. See Gaffney v.
Riverboat Servs. of Ind., 451 F.3d 424,
445–46 (7th Cir. 2006) (explaining that
to interpret SPA’s reference to a
‘‘report’’ as requiring a formal complaint
‘‘would narrow the statute in a manner
that Congress clearly avoided, and, in
the process, would frustrate the clear
purpose of the provision’’). It is also
consistent with the legislative history of
the statute, which indicates that
Congress meant SPA to respond to
Donovan v. Texaco, 720 F.2d 825 (5th
Cir. 1983), a case in which a seaman had
told the Coast Guard about an unsafe
condition by telephone. S. Rep. No. 98–
454, at 11; Donovan, 720 F.2d at 825;
see also Gaffney, 451 F.3d at 446
(reasoning that SPA’s legislative history,
‘‘coupled with Congress’ decision not to
define ‘report’ in the statute or in the
course of discussing Donovan in the
relevant legislative history,’’ indicates
that SPA ‘‘does not require a formal
complaint, or even a written statement,
as a prerequisite to statutory
whistleblower protection’’); cf. Kasten v.
Saint-Gobain Performance Plastics
Corp., 131 S. Ct. 1325 (2011) (holding
that the provision of the Fair Labor
Standards Act that prohibits employers

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from retaliating against an employee
because such employee has ‘‘filed any
complaint’’ protects oral complaints).
In addition, SPA protects seaman
complaints and testimony related to
‘‘maritime safety law[s] or
regulation[s].’’ Paragraph (g) defines this
term as including ‘‘any statute or
regulation regarding health or safety that
applies to any person or equipment on
a vessel.’’ This definition clarifies the
meaning of this term in two respects.
First, though the statutory text refers to
‘‘safety’’ the Secretary finds that
Congress did not intend to exclude
regulations that address health hazards;
rather, it is apparent that no such
distinction was intended. Compare 46
U.S.C. 2114(a)(1)(B) (protecting seamen
when they refuse to perform a duty that
would result in a serious injury) with id.
(a)(2) (clarifying that circumstances that
would justify a refusal to work under
(a)(1)(B) are those that present a ‘‘real
danger of injury or serious impairment
of health’’); see also id. (a)(1)(D)
(protecting reports of injuries and
illnesses). The definition makes clear
that laws or regulations addressing
either maritime safety or health are
included.
Second, because working conditions
on vessels can be subject to regulation
from multiple jurisdictions, the
Secretary interprets ‘‘maritime safety
law or regulation’’ to include all
regulations regarding health or safety
that apply to any person or equipment
on a vessel under the circumstances at
issue. The statute or regulation need not
exclusively or explicitly serve the
purpose of protecting the safety of
seamen, or promoting safety on vessels,
to fall within the meaning of this
provision of SPA.
Section 2214(a)(1)(D) of SPA protects
a seaman’s notification of the ‘‘vessel
owner’’ of injuries and illnesses. This
would include all notifications to agents
of the owner, such as the vessel’s
master. See 2 Robert Force & Martin J.
Norris, The Law of Seamen § 25–1 (5th
ed. 2003). Other parties that may fall
within the meaning of ‘‘vessel owner’’
include an owner pro hac vice, operator,
or charter or bare boat charterer. See 33
U.S.C. 902(21) (defining, for purposes of
the LHWCA, the entities liable for
negligence of a vessel); see also Helaire
v. Mobil Oil Co., 709 F.2d 1031, 1041
(5th Cir. 1983) (referring to this list of
entities as ‘‘the broad definition of
‘vessel owner’ under 33 U.S.C.
902(21)’’). Paragraph (q) defines ‘‘vessel
owner’’ as including ‘‘all of the agents
of the owner, including the vessel’s
master.’’
SPA protects ‘‘a seaman’’ from
retaliation, but it does not include a

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definition of ‘‘seaman.’’ The Senate
Report that accompanied the original,
1984 version of SPA indicates that SPA
was originally intended to provide a
remedy for workers whose
whistleblower rights under 11(c) might
be not be available in a jurisdiction that
follows Donovan v. Texaco, 720 F.2d
825 (5th Cir. 1983).4 See S. Rep. No. 98–
454, at 11–12 (1984). The Senate Report
also provides specific insight as to the
definition of ‘‘seaman,’’ stating that ‘‘the
Committee intends the term ‘seaman’ to
be interpreted broadly, to include any
individual engaged or employed in any
capacity on board a vessel owned by a
citizen of the United States.’’ Id. at 11.
OSHA considered three basic
approaches for defining the term
‘‘seaman’’: (a) Mirroring the one
established by the Jones Act, 46 U.S.C.
30104, which reflects general maritime
law; (b) as a ‘‘gap filler’’ available only
where workers arguably lack coverage
because of 4(b)(1) preemption under
Texaco; or (c) using the broader
definition of ‘‘seaman’’ suggested by the
legislative history of SPA discussed
above.
First, OSHA rejected adopting a
definition of ‘‘seaman’’ for SPA that
mirrors the one established by case law
under the Jones Act. The Jones Act
provides that a ‘‘seaman’’ injured in the
course of employment may bring a civil
action against his or her employer, 46
U.S.C. 30104, but like SPA, the Jones
Act does not define the term ‘‘seaman.’’
Looking to general maritime law, the
Supreme Court has defined the term as
including those who have an
employment-related connection to a
vessel in navigation that contributes to
the function of the vessel or to the
accomplishment of its mission, even if
the employment does not aid in
navigation or contribute to the
transportation of the vessel, McDermott
International, Inc. v. Wilander, 498 U.S.
337, 355 (1991). Importantly, the
Supreme Court views the term seaman
as excluding land-based workers; that is,
a seaman ‘‘must have a connection to a
vessel in navigation (or to an
identifiable group of such vessels) that
is substantial in terms of both its
duration and nature.’’ Chandris v.
Latsis, 515 U.S. 347, 368 (1995).
However, OSHA is concerned that the
Jones Act definition of ‘‘seaman’’ is
more restrictive than the definition as
clarified in the legislative history of the
SPA. As a result, certain workers who
are employed on vessels in significant
ways, but who are not Jones Act
4 Nothing in this preamble should be read to
suggest that OSHA agrees with the holding or
rationale of Texaco.

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seaman, would not be protected under
the Jones Act definition. For example,
certain riverboat pilots spend
substantial time aboard a vessel in
furtherance of its purpose, but do not
have a connection to a particular vessel
or group of vessels, so they have been
found not to be covered under the Jones
Act. See Bach v. Trident Steamship Co.,
Inc., 920 F.2d 322, aff’d after remand,
947 F.2d 1290 (5th Cir. 1991); Blancq v.
Hapag-Lloyd A.G., 986 F. Supp. 376,
379 (E.D. La. 1997). Moreover, there is
at least a possibility that under the
Texaco analysis, a court would find that
such pilots also lack 11(c) rights when
reporting safety violations aboard
vessels on which they are working.
OSHA also notes that SPA and the
Jones Act are fundamentally different
types of statutes that need not be
squarely consistent in their coverage.
The Jones Act provides that particular
workers, after being injured, are entitled
to recover by civil action against their
employers. SPA, on the other hand, is
prophylactic and remedial in nature and
intended to prevent injuries before they
happen by protecting reports of safety
violations, which suggests a broader
definition is appropriate.
Second, OSHA rejected the approach
of defining ‘‘seaman’’ as applying only
to workers who arguably are not covered
by 11(c). The legislative history shows
that Congress originally passed the SPA
in response to Texaco: ‘‘This section
responds to Donavan v. Texaco, (720
F.2d 825 (5th Cir. 1983)) in which a
seaman was demoted and ultimately
discharged from his job for reporting a
possible safety violation to the Coast
Guard * * * [This section] establishes a
new legal remedy for seamen, to protect
them against discriminatory action due
to their reporting a violation of Subtitle
II to the Coast Guard. The Amendment
creates a private right of action similar
but not identical to that in OSH Act
Section 11(c).’’ S. Rep. No. 98–454, at
11–12 (1984). But the legislative history
in 2010 suggests a broader definition for
‘‘seaman’’ workers also who may be
covered by 11(c). On a more practical
level, OSHA could not fashion a clear
definition of ‘‘seaman’’ that squarely
fills the gap arguably left by Texaco
without requiring agency investigators
to conduct a complex case-by-case
analysis of whether each SPA
complainant is exempt from the OSH
Act under the rationale of Texaco, a
holding with which the Department
does not agree.
Thus, the interim final rule adopts the
third option—the broader definition of
seaman as clarified in the legislative
history of SPA. The first sentence of
paragraph (m) incorporates the language

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of the Senate report to define ‘‘seaman.’’
As indicated in the report, and
consistent with the remedial purposes
of whistleblower statutes like SPA,
OSHA intends that the regulatory
language be construed broadly. See
Whirlpool Corporation v. Marshall, 445
U.S. 1, 13 (1980); Bechtel Const. Co. v.
Sec’y of Labor, 50 F.3d 926, 932 (11th
Cir. 1995). Workers who are seamen for
purposes of the Jones Act or general
maritime law, see, e.g., Chandris, Inc. v.
Latsis, 515 U.S. 347, 355 (1995), are
covered by the definition, as are landbased workers, if they are ‘‘engaged or
employed * * * on board a vessel’’ for
some part of their duties. See H. Rep.
No. 111–303, pt. 1, at 119 (2009) (noting
that SPA extends protections to
‘‘maritime workers’’).
Finally, paragraph (m) includes an
additional sentence indicating that
former seaman and applicants are
included in the definition. Such
language is included in the definition of
‘‘employee’’ in the regulations
governing other OSHA-administered
whistleblower protection laws, such as
STAA (49 CFR 1978.101(h)), the
National Transit Systems Security Act
and the Federal Railroad Safety Act (29
CFR 1982.101(d)), SOX (29 CFR
1980.101(g)), and the OSH Act (29 CFR
1977.5(b)). This interpretation is
consistent with the Supreme Court’s
reading of the term ‘‘employee’’ in 42
U.S.C. 2000e-3a, the anti-retaliation
provision of Title VII of the Civil Rights
Act of 1964, to include former
employees. Robinson v. Shell Oil Co.,
519 U.S. 337 (1997). Among the Court’s
reasons for this interpretation were the
lack of temporal modifiers for the term
‘‘employee’’; the reinstatement remedy,
which only applies to former
employees; and the remedial purpose of
preventing workers from being deterred
from whistleblowing because of a fear of
blacklisting. These reasons apply
equally to SPA and the other
whistleblower provisions enforced by
OSHA.
OSHA encourages interested parties
to submit comments on the issues
discussed above in the definition of
‘‘seaman,’’ any potential alternative
definitions they wish OSHA to consider
in the final rule, and any information
they have about the practical effects of
using various alternative definitions.
The definition of ‘‘seaman’’ adopted in
these regulations is based on and
limited to SPA. Nothing should be
inferred from the above discussion or
the regulatory text about the meaning of
‘‘seaman’’ under the OSH Act or any
other statute administered by the
Department of Labor.

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‘‘Citizen of the United States,’’ a term
used in the definition of ‘‘seaman,’’ is
not defined in the 1984 Senate report.
The definition of this term in paragraph
(d) of the regulation is based on two
sources: the definition applicable to
individuals given in 46 U.S.C. 104 and
the definition of ‘‘entities deemed
citizens of the United States’’ in 46
U.S.C. 50501. These provisions are from
the same title of the U.S. Code as SPA,
and deal with similar subject matter.
They are roughly similar to definitions
of citizen of the United States used in
other similar contexts. See 49 U.S.C.
42121(a)(2) (definition applicable to
AIR21); 46 U.S.C. 12103(b) (ownership
of vessels eligible to receive a certificate
of documentation from the United
States). Paragraph (d) of the regulation
combines the text of 46 U.S.C. 104 and
50501, with two changes. First, the
regulation adds the text ‘‘or other
entity’’ to the list of business forms that
can meet the definition. This change
reflects the development of new
business forms, such as limited liability
companies, in recent years. Second, it
deletes the language for section 50501
requiring that at least 75 percent of the
interest in a corporation, partnership, or
association be owned by citizens of the
United States where the vessel is
operating ‘‘in the coastwise trade.’’ 46
U.S.C. 50501(a); see also 46 U.S.C.
50501(d) (providing four criteria for
determining whether 75 percent of the
interest in a corporation is owned by
citizens of the United States). There is
no basis for distinguishing between
vessels on this basis in implementing
SPA; the purposes of this whistleblower
statute are wholly unrelated to the
locations between which the vessel
travels. Accordingly, this language has
been omitted.
Paragraph (p) defines ‘‘vessel,’’ a term
used in the definition of seaman and
that also arises in SPA itself. This
definition is taken from Title 46 of the
U.S. Code and ‘‘includes every
description of watercraft or other
artificial contrivance used, or capable of
being used, as a means of transportation
on water.’’ 46 U.S.C. 115; see also 1
U.S.C. 3; Stewart v. Dutra Constr. Co.,
543 U.S. 481, 496–97 (2005) (analyzing
the meaning of the term ‘‘vessel,’’ as
defined by 1 U.S.C. 3, and concluding
that ‘‘a ‘vessel’ is a watercraft practically
capable of maritime transportation,
regardless of its primary purpose or
state of transit at a particular moment,’’
and thus excludes ships ‘‘taken out of
service, permanently anchored, or
otherwise rendered practically
incapable of maritime transport’’).

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Section 1986.102 Obligations and
Prohibited Acts
This section describes the activities
that are protected under SPA and the
conduct that is prohibited in response to
any protected activities. These protected
activities are set out in the statute, as
described above. Consistent with
OSHA’s interpretation of other antiretaliation provisions, the prohibited
conduct includes any form of
retaliation, including, but not limited to,
discharging, demoting, suspending,
harassing, intimidating, threatening,
restraining, coercing, blacklisting, or
disciplining a seaman. Section 1986.102
tracks the language of the statute in
defining the categories of protected
activity.
As with other whistleblower statutes,
SPA’s provisions describing protected
activity are to be read broadly. See, e.g.,
Clean Harbors Envtl. Servs., Inc. v.
Herman, 146 F.3d 12, 20–21 (1st Cir.
1998) (expansively construing language
in STAA to facilitate achieving the
policy goals of encouraging corporate
compliance with safety laws and
employee reports of violations of those
laws); Bechtel Constr. Co. v. Sec’y of
Labor, 50 F.3d 926, 932–33 (11th Cir.
1995) (‘‘[I]t is appropriate to give a
broad construction to remedial statutes
such as nondiscrimination provisions in
Federal labor laws.’’); Passaic Valley
Sewerage Comm’rs v. U.S. Dep’t of
Labor, 992 F.2d 474, 478 (3d Cir. 1993)
(discussing the ‘‘broad remedial
purpose’’ of the whistleblower provision
in the Clean Water Act in expansively
interpreting a term in that statute).
Indeed, SPA’s prohibition of
discharging or ‘‘in any manner’’
discriminating against seamen indicates
Congress’s intent that the provision
have broad application. See NLRB v.
Scrivener, 405 U.S. 117, 122 (1972)
(determining that language in the
National Labor Relations Act should be
read broadly because ‘‘the presence of
the preceding words ‘to discharge or
otherwise discriminate’ reveals, we
think, particularly by the word
‘otherwise,’ an intent on the part of
Congress to afford broad rather than
narrow protection to the employee’’);
Phillips v. Interior Board of Mine
Operations Appeals, 500 F.2d 772, 782–
83 (DC Cir. 1974) (relying on Scrivener
in reasoning that the words ‘‘in any
other way discriminate’’ in the Mine
Safety Act support a broad reading of
that Act’s protections for miners).
Likewise, the statement in the Senate
Report regarding SPA that the term
‘‘seaman’’ is to be ‘‘interpreted broadly’’
further supports the premise that
Congress did not intend that SPA be

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construed narrowly. S. Rep. No. 98–454,
at 11 (1984).
OSHA therefore will interpret each of
the seven types of protected activity
listed in the Act broadly. Moreover,
while SPA, unlike other whistleblower
statutes, does not contain a provision
directly protecting all internal
complaints by seamen to their superiors,
many such complaints are covered
under the seven specific categories
listed in the Act. Protection of internal
complaints is important because it
‘‘leverage[es] the government’s limited
enforcement resources’’ by encouraging
employees to report substandard
working conditions to their employers.
Clean Harbors, 146 F.3d at 19–20. Such
protections promote the resolution of
violations without drawn-out litigation,
and the ‘‘failure to protect internal
complaints may have the perverse result
of encouraging employers to fire
employees who believe they have been
treated illegally before they file a formal
complaint.’’ Minor v. Bostwick
Laboratories, Inc., 669 F.3d 428, 437
(4th Cir. 2012). In addition, in the
maritime context, a seaman on a vessel
at sea may not be able to contact the
authorities to correct a dangerous
condition, and his or her only recourse
will be to seek correction from the
ship’s officers. Because internal
complaints are an important part of
keeping a workplace safe, OSHA will
give a broad construction to the Act’s
language to ensure that internal
complaints are protected as fully as
possible.
The statute first prohibits retaliation
because ‘‘the seaman in good faith has
reported or is about to report to the
Coast Guard or other appropriate
Federal agency or department that the
seaman believes that a violation of a
maritime safety law or regulation
prescribed under that law or regulation
has occurred.’’ 46 U.S.C. 2114(a)(1)(A).
One way an employer will know that a
seaman ‘‘is about to report’’ the
violation is when the seaman has made
an internal complaint and there are
circumstances from which a reasonable
person would understand that the
seaman will likely report the violation
if the violation is not cured. These
circumstances might arise from the
internal report itself (e.g., ‘‘I will contact
the authorities if it is not fixed’’), the
seaman’s history of reporting similar
violations to authorities, or other similar
considerations. Further, given that a
seaman may be at sea for extended
periods without access to ways of
reporting a violation, a significant time
may elapse between the time the
employer learns of the seaman’s intent
to report and the time the report can

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actually be made. OSHA will read the
phrase ‘‘about to report’’ broadly to
protect the seaman in such a
circumstance.
The Act also protects the seaman
against discrimination when ‘‘the
seaman has refused to perform duties
ordered by the seaman’s employer
because the seaman has a reasonable
apprehension or expectation that
performing such duties would result in
serious injury to the seaman, other
seamen, or the public.’’ 46 U.S.C.
2114(a)(1)(B). To qualify for this
protection, the seaman ‘‘must have
sought from the employer, and been
unable to obtain, correction of the
unsafe condition.’’ 46 U.S.C. 2114(a)(3).
Although not stated explicitly, in the
Secretary’s view, the reasonable
implication of the statutory language is
that the seaman’s preliminary act of
seeking correction of the condition is
itself protected activity. That is, a
seaman who asks his or her employer to
correct a condition he reasonably
believes would result in serious injury
and suffers retaliation because of that
request before the occasion to refuse to
perform the unsafe work arises is
protected by the Act. Although the
literal terms of the Act could be read to
leave the request for correction required
yet unprotected, courts reject ‘‘absurd
result[s].’’ Stone v. Instrumentation
Laboratory Co., 591 F.3d 239, 243 (4th
Cir. 2009) (‘‘Courts will not * * * adopt
a ‘literal’ construction of a statute if
such interpretation would thwart the
statute’s obvious purpose or lead to an
‘absurd result.’ ’’ [quoting Chesapeake
Ranch Water Co. v. Board of Comm’rs
of Calvert County, 401 F.3d 274, 280
(4th Cir. 2005)]). The Agency’s
interpretation is embodied in the last
sentence of section 1986.102(c): ‘‘Any
seaman who requests such a correction
shall be protected against retaliation
because of the request.’’
SPA provides protection to certain
other types of internal communications.
It covers the situation where ‘‘the
seaman notified, or attempted to notify,
the vessel owner or the Secretary [of the
department in which in Coast Guard is
operating] of a work-related personal
injury or work-related illness of a
seaman.’’ 46 U.S.C. 2114(a)(1)(D). As
noted above, this covers oral, written
and electronic communications to any
agent of the vessel’s owner. SPA also
disallows retaliation because ‘‘the
seaman accurately reported hours of
duty under this part.’’ 46 U.S.C.
2114(a)(1)(G). In keeping with the
discussion above, this language too
should be interpreted in favor of broad
protection for seamen should a question
of its meaning arise.

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Finally, consistent with the broad
interpretation of the statute as discussed
above, OSHA believes that most reports
required by the U.S. Coast Guard under
46 CFR 4.04 and 4.05 are protected by
SPA.
Section 1986.103 Filing of Retaliation
Complaints
This section describes the process for
filing a complaint alleging retaliation in
violation of SPA. The procedures
described are consistent with those
governing complaints under STAA as
well as other whistleblower statutes
OSHA administers.
Under paragraph (a), complaints may
be filed by a seaman or, with the
seaman’s consent, by any person on the
seaman’s behalf. Paragraph (b) provides
that complaints filed under SPA need
not be in any particular form; they may
be either oral or in writing. If the
complainant is unable to file the
complaint in English, OSHA will accept
the complaint in any language.
Paragraph (c) explains with whom in
OSHA complaints may be filed.
Paragraph (d) addresses timeliness. To
be timely, a complaint must be filed
within 180 days of the occurrence of the
alleged violation. Under Supreme Court
precedent, a violation occurs when the
retaliatory decision has been both
‘‘made and communicated to’’ the
complainant. Del. State College v. Ricks,
449 U.S. 250, 258 (1980). In other
words, the limitations period
commences once the employee is aware
or reasonably should be aware of the
employer’s decision. EEOC v. United
Parcel Serv., 249 F.3d 557, 561–62 (6th
Cir. 2001). However, the time for filing
a complaint may be tolled for reasons
warranted by applicable case law. A
complaint will be considered filed on
the date of postmark, facsimile
transmittal, electronic communication
transmittal, telephone call, handdelivery, delivery to a third-party
commercial carrier, or in-person filing at
an OSHA office. The regulatory text
indicates that filing deadlines may be
tolled based on principles developed in
applicable case law. See, e.g., Donovan
v. Hahner, Foreman & Harness, Inc.,
736 F.2d 1421, 1423–29 (10th Cir. 1984).
Paragraph (e), which is consistent
with provisions implementing other
OSHA whistleblower programs,
describes the relationship between
section 11(c) complaints and SPA
whistleblower complaints. Section 11(c)
of the OSH Act, 29 U.S.C. 660(c),
generally prohibits employers from
retaliating against employees for filing
safety or health complaints or otherwise
initiating or participating in proceedings
under the OSH Act. Some of the activity

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protected by SPA, including maritime
safety complaints and work refusals,
may also be covered under section 11(c),
though the geographic limits of section
4(a) of the OSH Act, 29 U.S.C. 653(a),
which are applicable to section 11(c), do
not apply to SPA.5 Paragraph (e) states
that SPA whistleblower complaints that
also allege facts constituting an 11(c)
violation will be deemed to have been
filed under both statutes. Similarly,
section 11(c) complaints that allege facts
constituting a violation of SPA will also
be deemed to have been filed under
both laws. In these cases, normal
procedures and timeliness requirements
under the respective statutes and
regulations will apply.
OSHA notes that a complaint of
retaliation filed with OSHA under SPA
is not a formal document and need not
conform to the pleading standards for
complaints filed in federal district court
articulated in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007) and
Ashcroft v. Iqbal, 556 U.S. 662 (2009).
See Sylvester v. Parexel Int’l, Inc., No.
07–123, 2011 WL 2165854, at *9–10
(ARB May 26, 2011) (holding
whistleblower complaints filed with
OSHA under analogous provisions in
the Sarbanes-Oxley Act need not
conform to federal court pleading
standards). Rather, the complaint filed
with OSHA under this section simply
alerts the Agency to the existence of the
alleged retaliation and the
complainant’s desire that the Agency
investigate the complaint. Upon the
filing of a complaint with OSHA, the
Assistant Secretary is to determine
whether ‘‘the complaint, supplemented
as appropriate by interviews of the
complainant’’ alleges ‘‘the existence of
facts and evidence to make a prima facie
showing.’’ 29 CFR 1986.104(e). As
explained in section 1986.104(e), if the
complaint, supplemented as
appropriate, contains a prima facie
allegation, and the respondent does not
show clear and convincing evidence
that it would have taken the same action
in the absence of the alleged protected
activity, OSHA conducts an
investigation to determine whether
there is reasonable cause to believe that
retaliation has occurred. See 49 U.S.C.
42121(b)(2), 29 CFR 1986.104(e).
Section 1986.104 Investigation
This section describes the procedures
that apply to the investigation of
complaints under SPA. Paragraph (a) of
this section outlines the procedures for
notifying the parties and the U.S. Coast
Guard of the complaint and notifying
5 SPA contains no geographic limit; its scope is
limited only by the definition of ‘‘seaman.’’

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the respondent of its rights under these
regulations. Paragraph (b) describes the
procedures for the respondent to submit
its response to the complaint. Paragraph
(c) explains that the Agency will share
respondent’s submissions with the
complainant, with redactions in
accordance with the Privacy Act of
1974, 5 U.S.C. 552a, et seq., and other
applicable confidentiality laws as
necessary, and will permit the
complainant to respond to those
submissions. The Agency expects that
sharing information with complainants
will assist OSHA in conducting full and
fair investigations and the Assistant
Secretary in thoroughly assessing
defenses raised by respondents.
Paragraph (d) of this section discusses
confidentiality of information provided
during investigations.
Paragraph (e) sets forth the applicable
burdens of proof. As discussed above,
SPA adopts the relevant provisions of
STAA, which in turn adopts the burden
of proof of AIR21. A complainant must
make an initial prima facie showing that
protected activity was ‘‘a contributing
factor’’ in the adverse action alleged in
the complaint, i.e., that the protected
activity, alone or in combination with
other factors, affected in some way the
outcome of the employer’s decision. See
Ferguson v. New Prime, Inc., No. 10–75,
2011 WL 4343278, at *3 (ARB Aug. 31,
2011); Clarke v. Navajo Express, No. 09–
114, 2011 WL 2614326, at *3 (ARB June
29, 2011). The complainant will be
considered to have met the required
burden if the complaint on its face,
supplemented as appropriate through
interviews of the complainant, alleges
the existence of facts and either direct
or circumstantial evidence to meet the
required showing. The complainant’s
burden may be satisfied, for example, if
he or she shows that the adverse action
took place shortly after protected
activity, giving rise to the inference that
it was a contributing factor in the
adverse action.
If the complainant does not make the
required prima facie showing, the
investigation must be discontinued and
the complaint dismissed. See Trimmer
v. U.S. Dep’t of Labor, 174 F.3d 1098,
1101 (10th Cir. 1999) (noting that the
burden-shifting framework of the ERA,
which is the same framework now
found in STAA and therefore SPA,
served a ‘‘gatekeeping function’’ that
‘‘stemm[ed] frivolous complaints’’).
Even in cases where the complainant
successfully makes a prima facie
showing, the investigation must be
discontinued if the employer
demonstrates, by clear and convincing
evidence, that it would have taken the
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the protected activity. Thus, OSHA
must dismiss a complaint under SPA
and not investigate (or cease
investigating) if either: (1) The
complainant fails to meet the prima
facie showing that the protected activity
was a contributing factor in the adverse
action; or (2) the employer rebuts that
showing by clear and convincing
evidence that it would have taken the
same adverse action absent the
protected activity.
Paragraph (f) describes the procedures
the Assistant Secretary will follow prior
to the issuance of findings and a
preliminary order when the Assistant
Secretary has reasonable cause to
believe that a violation has occurred. Its
purpose is to ensure compliance with
the Due Process Clause of the Fifth
Amendment, as interpreted by the
Supreme Court in Brock v. Roadway
Express, Inc., 481 U.S. 252 (1987)
(requiring OSHA to give a STAA
respondent the opportunity to review
the substance of the evidence and
respond, prior to ordering preliminary
reinstatement).
Section 1986.105 Issuance of Findings
and Preliminary Orders
This section provides that, within 60
days of the filing of a complaint and on
the basis of information obtained in the
investigation, the Assistant Secretary
will issue written findings regarding
whether there is reasonable cause to
believe that the complaint has merit. If
the Assistant Secretary concludes that
there is reasonable cause to believe that
the complaint has merit, the Assistant
Secretary will order appropriate relief,
including: a requirement that the person
take affirmative action to abate the
violation; reinstatement to the seaman’s
former position; compensatory damages
including back pay with interest and
damages such as litigation costs; and, if
the Assistant Secretary so chooses,
punitive damages up to $250,000.
Affirmative action to abate the violation
includes a variety of measures, such as
posting notices about SPA orders and
rights, as well as expungement of
adverse comments in a personnel
record. See Scott v. Roadway Express,
Inc., No. 01–065, 2003 WL 21269144, at
*1–2 (ARB May 29, 2003) (posting
notices of STAA orders and rights);
Pollock v. Continental Express, Nos. 07–
073, 08–051, 2010 WL 1776974, at *9
(ARB Apr. 7, 2010) (expungement of
adverse references).
The findings and, where appropriate,
preliminary order, advise the parties of
their right to file objections to the
findings of the Assistant Secretary and
to request a hearing. If no objections are
filed within 30 days of receipt of the

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findings, the findings and any
preliminary order of the Assistant
Secretary become the final decision and
order of the Secretary. If objections are
timely filed, any order of preliminary
reinstatement will take effect, but the
remaining provisions of the order will
not take effect until administrative
proceedings are completed.
In appropriate circumstances, in lieu
of preliminary reinstatement, OSHA
may order that the complainant receive
the same pay and benefits that he
received prior to his termination, but
not actually return to work. Smith v.
Lake City Enterprises, Inc., Nos. 09–033,
08–091, 2010 WL 3910346, at *8 (ARB
Sept. 24, 2010) (holding that an
employer who violated STAA was to
compensate the complainant with ‘‘front
pay’’ when reinstatement was not
possible). Such front pay or economic
reinstatement is also employed in cases
arising under section 105(c) of the
Federal Mine Safety and Health Act of
1977, 30 U.S.C. 815(c)(2). See, e.g., Sec’y
of Labor ex rel. York v. BR&D Enters.,
Inc., 23 FMSHRC 697, 2001 WL
1806020, at *1 (ALJ June 26, 2001).
Front pay has been recognized as a
possible remedy in cases under the
whistleblower statutes enforced by
OSHA in circumstances where
reinstatement would not be appropriate.
See, e.g., Hagman v. Washington Mutual
Bank, ALJ No. 2005–SOX–73, 2006 WL
6105301, at *32 (Dec. 19, 2006) (noting
that while reinstatement is the
‘‘preferred and presumptive remedy’’
under Sarbanes-Oxley, ‘‘[f]ront pay may
be awarded as a substitute when
reinstatement is inappropriate due to:
(1) An employee’s medical condition
that is causally related to her employer’s
retaliatory action * * * (2) manifest
hostility between the parties * * * (3)
the fact that claimant’s former position
no longer exists * * * or (4) the fact
that employer is no longer in business
at the time of the decision’’); Hobby v.
Georgia Power Co., ARB No. 98–166,
ALJ No. 1990–ERA–30 (ARB Feb. 9,
2001) (noting circumstances in which
front pay may be available in lieu of
reinstatement but ordering
reinstatement), aff’d sub nom. Hobby v.
USDOL, No. 01–10916 (11th Cir. Sept.
30, 2002) (unpublished); Brown v.
Lockheed Martin Corp., ALJ No. 2008–
SOX–49, 2010 WL 2054426, at *55–56
(Jan. 15, 2010) (same). Congress
intended that seamen be preliminarily
reinstated to their positions if OSHA
finds reasonable cause to believe that
they were discharged in violation of
SPA. When OSHA finds a violation, the
norm is for OSHA to order immediate
preliminary reinstatement. Neither an

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employer nor an employee has a
statutory right to choose economic
reinstatement. Rather, economic
reinstatement is designed to
accommodate situations in which
evidence establishes to OSHA’s
satisfaction that reinstatement is
inadvisable for some reason,
notwithstanding the employer’s
retaliatory discharge of the seaman. In
such situations, actual reinstatement
might be delayed until after the
administrative adjudication is
completed as long as the seaman
continues to receive his or her pay and
benefits and is not otherwise
disadvantaged by a delay in
reinstatement. There is no statutory
basis for allowing the employer to
recover the costs of economically
reinstating a seaman should the
employer ultimately prevail in the
whistleblower adjudication.
In ordering interest on back pay, the
Secretary has determined that, instead
of computing the interest due by
compounding quarterly the Internal
Revenue Service interest rate for the
underpayment of taxes, which under 26
U.S.C. 6621 is generally the Federal
short-term rate plus three percentage
points, interest will be compounded
daily. The Secretary believes that daily
compounding of interest better achieves
the make-whole purpose of a back pay
award. Daily compounding of interest
has become the norm in private lending
and recently was found to be the most
appropriate method of calculating
interest on back pay by the National
Labor Relations Board. See Jackson
Hosp. Corp. v. United Steel, Paper &
Forestry, Rubber, Mfg., Energy, Allied
Indus. & Serv. Workers Int’l Union, 356
NLRB No. 8, 2010 WL 4318371, at *3–
4 (2010). Additionally, interest on tax
underpayments under the Internal
Revenue Code, 26 U.S.C. 6621, is
compounded daily pursuant to 26
U.S.C. 6622(a).
Subpart B—Litigation
Section 1986.106 Objections to the
Findings and the Preliminary Order and
Request for a Hearing
To be effective, objections to the
findings of the Assistant Secretary must
be in writing and must be filed with the
Chief Administrative Law Judge within
30 days of receipt of the findings. The
date of the postmark, facsimile
transmittal, or electronic
communication transmittal is
considered the date of the filing; if the
objection is filed in person, by handdelivery or other means, the objection is
filed upon receipt. The filing of
objections also is considered a request

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for a hearing before an ALJ. Although
the parties are directed to serve a copy
of their objections on the other parties
of record and the OSHA official who
issued the findings, the failure to serve
copies of the objections on the other
parties of record does not affect the
ALJ’s jurisdiction to hear and decide the
merits of the case. See Shirani v. Calvert
Cliffs Nuclear Power Plant, Inc., No. 04–
101, 2005 WL 2865915, at *7 (ARB Oct.
31, 2005).
A respondent may file a motion to
stay OSHA’s preliminary order of
reinstatement with the Office of
Administrative Law Judges. However, a
stay will be granted only on the basis of
exceptional circumstances. The
Secretary believes that a stay of the
Assistant Secretary’s preliminary order
of reinstatement would be appropriate
only where the respondent can establish
the necessary criteria for a stay, i.e., the
respondent would suffer irreparable
injury; the respondent is likely to
succeed on the merits; a balancing of
possible harms to the parties favors the
respondent; and the public interest
favors a stay.
Section 1986.107 Hearings
This section adopts the rules of
practice and procedure for
administrative hearings before the
Office of Administrative Law Judges at
29 CFR Part 18 subpart A. This section
provides that the hearing is to
commence expeditiously, except upon a
showing of good cause or unless
otherwise agreed to by the parties.
Hearings will be conducted de novo, on
the record. If both the complainant and
respondent object to the findings and/or
order of the Assistant Secretary, an ALJ
will conduct a single, consolidated
hearing. This section states that ALJs
have broad power to limit discovery in
order to expedite the hearing. This
furthers an important goal of SPA—to
have unlawfully terminated seamen
reinstated as quickly as possible.
This section explains that formal rules
of evidence will not apply, but rules or
principles designed to assure
production of the most probative
evidence will be applied. The ALJ may
exclude evidence that is immaterial,
irrelevant, or unduly repetitious. This is
consistent with the Administrative
Procedure Act, which provides at 5
U.S.C. 556(d): ‘‘Any oral or
documentary evidence may be received,
but the Agency as a matter of policy
shall provide for the exclusion of
irrelevant, immaterial, or unduly
repetitious evidence * * *’’ See also
Federal Trade Commission v. Cement
Institute, 333 U.S. 683, 705–06 (1948)
(administrative agencies not restricted

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by rigid rules of evidence). Furthermore,
it is inappropriate to apply the technical
rules of evidence in Part 18 because the
Secretary anticipates that complainants
will often appear pro se, as is the case
with other whistleblower statutes the
Department of Labor administers. Also,
hearsay evidence is often appropriate in
whistleblower cases, as there often is no
relevant evidence other than hearsay to
prove discriminatory intent. ALJs have
the responsibility to determine the
appropriate weight to be given to such
evidence. For these reasons the interests
of determining all of the relevant facts
are best served by not having strict
evidentiary rules.
Section 1986.108 Role of Federal
Agencies
Paragraph (a)(1) of this section
explains that the Assistant Secretary,
represented by an attorney from the
appropriate Regional Solicitor’s office,
ordinarily will be the prosecuting party
in cases in which the respondent objects
to the findings or the preliminary
reinstatement order. This has been the
practice under STAA, from which the
SPA’s procedures are drawn, and the
public interest generally requires the
Assistant Secretary’s participation in
such matters. The case reports show that
there has been relatively little litigation
under SPA to date, and OSHA believes
that relatively few private attorneys
have developed adequate expertise in
representing SPA whistleblower
complainants.
Where the complainant, but not the
respondent, objects to the findings or
order, the regulations retain the
Assistant Secretary’s discretion to
participate as a party or amicus curiae
at any stage of the proceedings,
including the right to petition for review
of an ALJ decision.
Paragraph (a)(2) clarifies that if the
Assistant Secretary assumes the role of
prosecuting party in accordance with
paragraph (a)(1), he or she may, upon
written notice to the other parties,
withdraw as the prosecuting party in the
exercise of prosecutorial discretion. If
the Assistant Secretary withdraws, the
complainant will become the
prosecuting party and the ALJ will issue
appropriate orders to regulate the course
of future proceedings.
Paragraph (a)(3) provides that copies
of documents in all cases must be sent
to all parties, or if represented by
counsel, to them. If the Assistant
Secretary is participating in the
proceeding, copies of documents must
be sent to the Regional Solicitor’s office
representing the Assistant Secretary.
Paragraph (b) states that the U.S.
Coast Guard, if interested in a

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proceeding, also may participate as
amicus curiae at any time in the
proceeding. This paragraph also permits
the U.S. Coast Guard to request copies
of all documents, regardless of whether
it is participating in the case.
Section 1986.109 Decisions and
Orders of the Administrative Law Judge
This section sets forth, in paragraph
(a), the requirements for the content of
the decision and order of the ALJ.
Paragraphs (a) and (b) state the
standards for finding a violation under
SPA and for precluding such a finding.
Specifically, the complainant must
show that the protected activity was a
‘‘contributing factor’’ in the adverse
action alleged in the complaint. A
contributing factor is ‘‘any factor which,
alone or in connection with other
factors, tends to affect in any way the
outcome of the decision.’’ Clarke, supra,
at *3. The complainant (a term that, in
this paragraph, refers to the Assistant
Secretary if he or she is the prosecuting
party) can succeed by providing either
direct or indirect proof of contribution.
Direct evidence is evidence that
conclusively connects the protected
activity and the adverse action and does
not rely upon inference. If the
complainant does not produce direct
evidence, he or she must proceed
indirectly, or inferentially, by proving
by a preponderance of the evidence that
a motive prohibited by SPA was the true
reason for the adverse action. One type
of indirect, also known as
circumstantial, evidence is evidence
that discredits the respondent’s
proffered reasons for the adverse action,
demonstrating instead that they were
pretext for retaliation. Id. Another type
of circumstantial evidence is temporal
proximity between the protected
activity and the adverse action.
Ferguson, supra, at *2. The respondent
may avoid liability if it ‘‘demonstrates
by clear and convincing evidence’’ that
it would have taken the same adverse
action in any event. Clear and
convincing evidence is evidence
indicating that the thing to be proved is
highly probably or reasonably certain.
Clarke, supra, at *3.
Paragraph (c) provides that the
Assistant Secretary’s determinations
about when to proceed with an
investigation and when to dismiss a
complaint without an investigation or
without a complete investigation are
discretionary decisions not subject to
review by the ALJ. The ALJ hears cases
de novo and, therefore may not remand
cases to the Assistant Secretary to
conduct an investigation or make
further factual findings. If there
otherwise is jurisdiction, the ALJ will

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hear the case on the merits or dispose
of the matter without a hearing if
warranted by the facts and
circumstances.
Paragraph (d)(1) describes the
remedies that the ALJ may order and
provides that interest on backpay will
be calculated using the interest rate
applicable to underpayment of taxes
under 26 U.S.C. 6621 and will be
compounded daily. (See the earlier
discussion of 1986.105.) In addition,
paragraph (d)(2) in this section requires
the ALJ to issue an order denying the
complaint if he or she determines that
the respondent has not violated SPA.
Paragraph (e) requires that the ALJ’s
decision be served on all parties to the
proceeding, the Assistant Secretary, and
the Associate Solicitor, Division of
Occupational Safety and Health, U.S.
Department of Labor. Paragraph (e) also
provides that any ALJ decision requiring
reinstatement or lifting an order of
reinstatement by the Assistant Secretary
will be effective immediately upon
receipt of the decision by the
respondent. All other portions of the
ALJ’s order will be effective 14 days
after the date of the decision unless a
timely petition for review has been filed
with the ARB.
Section 1986.110 Decisions and
Orders of the Administrative Review
Board
Paragraph (a) sets forth rules
regarding seeking review of an ALJ’s
decision with the ARB. Upon the
issuance of the ALJ’s decision, the
parties have 14 days within which to
petition the ARB for review of that
decision. If no timely petition for review
is filed with the ARB, the decision of
the ALJ becomes the final decision of
the Secretary and is not subject to
judicial review. The date of the
postmark, facsimile transmittal, or
electronic communication transmittal is
considered the date of filing of the
petition; if the petition is filed in
person, by hand delivery or other
means, the petition is considered filed
upon receipt. In addition to being sent
to the ARB, the petition is to be served
on all parties, the Chief Administrative
Law Judge, the Assistant Secretary, and,
in cases in which the Assistant
Secretary is a party, the Associate
Solicitor, Division of Occupational
Safety and Health, U.S. Department of
Labor.
Consistent with the procedures for
petitions for review under other OSHAadministered whistleblower laws,
paragraph (b) of this section indicates
that the ARB has discretion to accept or
reject review in SPA whistleblower
cases. Congress intended these

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whistleblower cases to be expedited, as
reflected by the provision in STAA,
which applies to SPA, providing for a
hearing de novo in district court if the
Secretary has not issued a final decision
within 210 days of the filing of the
complaint. Making review of SPA
whistleblower cases discretionary may
assist in furthering that goal. As noted
in paragraph (a) of this section, the
parties should identify in their petitions
for review the legal conclusions or
orders to which they object, or the
objections may be deemed waived. The
ARB has 30 days to decide whether to
grant the petition for review. If the ARB
does not grant the petition, the decision
of the ALJ becomes the final decision of
the Secretary.
When the ARB accepts a petition for
review, the ARB will review the ALJ’s
factual determinations under the
substantial evidence standard. If a
timely petition for review is filed with
the ARB, any relief ordered by the ALJ,
except for that portion ordering
reinstatement, is inoperative while the
matter is pending before the ARB. In
exceptional circumstances, however, the
ARB may grant a motion to stay an ALJ’s
order of reinstatement. A stay of a
preliminary order of reinstatement is
appropriate only where the respondent
can establish the necessary criteria for a
stay, i.e., the respondent will suffer
irreparable injury; the respondent is
likely to succeed on the merits; a
balancing of possible harms to the
parties favors the respondent; and the
public interest favors a stay.
Paragraph (c) incorporates the
statutory requirement that the
Secretary’s final decision be issued
within 120 days of the conclusion of the
hearing. The hearing is deemed
concluded 14 days after the date of the
ALJ’s decision unless a motion for
reconsideration has been filed with the
ALJ, in which case the hearing is
concluded on the date the motion for
reconsideration is ruled upon or 14 days
after a new ALJ decision is issued. This
paragraph further provides for the
ARB’s decision in all cases to be served
on all parties, the Chief Administrative
Law Judge, the Assistant Secretary, and
the Associate Solicitor, Division of
Occupational Safety and Health, U.S.
Department of Labor, even if the
Assistant Secretary is not a party.
Paragraph (d) describes the remedies
the ARB can award if it concludes that
the respondent has violated SPA. (See
the earlier discussion of remedies at
1986.105 and .109.) Under paragraph
(e), if the ARB determines that the
respondent has not violated the law, it
will issue an order denying the
complaint.

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Subpart C—Miscellaneous Provisions
Section 1986.111 Withdrawal of SPA
Complaints, Findings, Objections, and
Petitions for Review; Settlement
This section provides procedures and
time periods for the withdrawal of
complaints, the withdrawal of findings
and/or preliminary orders by the
Assistant Secretary, and the withdrawal
of objections to findings and/or orders.
It also provides for approval of
settlements at the investigative and
adjudicative stages of the case.
Paragraph (a) permits a complainant
to withdraw, orally or in writing, his or
her complaint to the Assistant Secretary,
at any time prior to the filing of
objections to the Assistant Secretary’s
findings and/or preliminary order. The
Assistant Secretary will confirm in
writing the complainant’s desire to
withdraw and will determine whether
to approve the withdrawal. If approved,
the Assistant Secretary will notify all
parties if the withdrawal is approved.
Complaints that are withdrawn
pursuant to settlement agreements prior
to the filing of objections must be
approved in accordance with the
settlement approval procedures in
paragraph (d). The complainant may not
withdraw his or her complaint after the
filing of objections to the Assistant
Secretary’s findings and/or preliminary
order.
Under paragraph (b), the Assistant
Secretary may withdraw his or her
findings and/or preliminary order at any
time before the expiration of the 30-day
objection period described in section
1986.106, if no objection has yet been
filed. The Assistant Secretary may
substitute new findings and/or a
preliminary order, and the date of
receipt of the substituted findings and/
or order will begin a new 30-day
objection period.
Paragraph (c) addresses situations in
which parties seek to withdraw either
objections to the Assistant Secretary’s
findings and/or preliminary order or
petitions for review of ALJ decisions. A
party may withdraw its objections to the
Assistant Secretary’s findings and/or
preliminary order at any time before the
findings and/or preliminary order
become final by filing a written
withdrawal with the ALJ. Similarly, if a
case is on review with the ARB, a party
may withdraw its petition for review of
an ALJ’s decision at any time before that
decision becomes final by filing a
written withdrawal with the ARB. The
ALJ or the ARB, depending on where
the case is pending, will determine
whether to approve the withdrawal of
the objections or the petition for review.
Paragraph (c) clarifies that if the ALJ

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approves a request to withdraw
objections to the Assistant Secretary’s
findings and/or preliminary order, and
there are no other pending objections,
the Assistant Secretary’s findings and/or
preliminary order will become the final
order of the Secretary. Likewise, if the
ARB approves a request to withdraw a
petition for review of an ALJ decision,
and there are no other pending petitions
for review of that decision, the ALJ’s
decision will become the final order of
the Secretary. Finally, paragraph (c)
provides that if objections or a petition
for review are withdrawn because of
settlement, the settlement must be
submitted for approval in accordance
with paragraph (d).
Paragraph (d)(1) states that a case may
be settled at the investigative stage if the
Assistant Secretary, the complainant,
and the respondent agree. The Assistant
Secretary’s approval of a settlement
reached by the respondent and the
complainant demonstrates his or her
consent and achieves the consent of all
three parties. Paragraph (d)(2) permits a
case to be settled, if the participating
parties agree and the ALJ before whom
the case is pending approves, at any
time after the filing of objections to the
Assistant Secretary’s findings and/or
preliminary order. Similarly, if the case
is before the ARB, the ARB may approve
a settlement between the participating
parties.
Under paragraph (e), settlements
approved by the Assistant Secretary, the
ALJ, or the ARB will constitute the final
order of the Secretary and may be
enforced pursuant to 49 U.S.C. 31105(e),
as incorporated by 46 U.S.C. 2114(b).
Section 1986.112

Judicial Review

This section describes the statutory
provisions for judicial review of
decisions of the Secretary. Paragraph (a)
provides that within 60 days of the
issuance of a final order under sections
1986.109 or 1986.110, a person
adversely affected or aggrieved by such
order may file a petition for review of
the order in the United States Court of
Appeals for the circuit in which the
violation allegedly occurred or the
circuit in which the complainant
resided on the date of the violation.
Paragraph (b) states that a final order
will not be subject to judicial review in
any criminal or other civil proceeding.
Paragraph (c) requires that, in cases
where judicial review is sought, the
ARB or ALJ, as the case may be, submit
the record of proceedings to the
appropriate court pursuant to the
Federal Rules of Appellate Procedure
and the local rules of such court.

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Section 1986.113

Judicial Enforcement

This section provides that the
Secretary may obtain judicial
enforcement of orders, including orders
approving settlement agreements, by
filing a civil action seeking such
enforcement in the United States district
court for the district in which the
violation occurred.

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Section 1986.114 District Court
Jurisdiction of Retaliation Complaints
Under SPA

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This section provides that in
circumstances not contemplated by
these rules or for good cause the ALJ or
the ARB may, upon application and
three days notice to the parties, waive
any rule or issue such orders as justice
or the administration of SPA’s
whistleblower provision requires.
IV. Paperwork Reduction Act

This section allows a complainant to
bring an action in district court for de
novo review of the allegations contained
in the complaint filed with OSHA if
there has been no final decision of the
Secretary and 210 days have passed
since the filing of that complaint and
the delay was not due to the
complainant’s bad faith. This section
reflects the Secretary’s position that it
would not be reasonable to construe the
statute to permit a complainant to
initiate an action in federal court after
the Secretary issues a final decision,
even if the date of the final decision is
more than 210 days after the filing of the
administrative complaint. In the
Secretary’s view, the purpose of the
‘‘kick out’’ provision is to aid the
complainant in receiving a prompt
decision. That goal is not implicated in
a situation where the complainant
already has received a final decision
from the Secretary. In addition,
permitting the complainant to file a new
case in district court in such
circumstances could conflict with the
parties’ rights to seek judicial review of
the Secretary’s final decision in the
court of appeals.
Paragraph (b) of this section requires
complainants to provide file-stamped
copies of their complaint within seven
days after filing a complaint in district
court to the Assistant Secretary, the ALJ,
or the ARB, depending on where the
proceeding is pending. A copy of the
complaint also must be provided to the
OSHA official who issued the findings
and/or preliminary order, the Assistant
Secretary, and the Associate Solicitor,
Division of Occupational Safety and
Health, U.S. Department of Labor. This
provision is necessary to notify the
Agency that the complainant has opted
to file a complaint in district court. This
provision is not a substitute for the
complainant’s compliance with the
requirements for service of process of
the district court complaint contained in
the Federal Rules of Civil Procedure and
the local rules of the district court
where the complaint is filed.

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Section 1986.115 Special
Circumstances; Waiver of Rules

This rule contains a reporting
provision (filing a retaliation complaint,
section 1986.103) which was previously
reviewed as a statutory requirement of
the Seaman’s Protection Act (46 U.S.C.
2114) and approved for use by the
Office of Management and Budget
(‘‘OMB’’), and was assigned OMB
control number 1218–0236 under the
provisions of the Paperwork Reduction
Act of 1995, Public Law 104–13, 109
Stat. 163 (1995). A non-material change
has been submitted to OMB to include
the regulatory citation.
V. Administrative Procedure Act
The notice and comment rulemaking
procedures of Section 553 of the
Administrative Procedure Act (APA) do
not apply ‘‘to interpretative rules,
general statements of policy, or rules of
agency organization, procedure, or
practice.’’ 5 U.S.C. 553(b)(A). This is a
rule of agency procedure, practice, and
interpretation within the meaning of
that section, since it provides
procedures for the handling of
retaliation complaints. Therefore,
publication in the Federal Register of a
notice of proposed rulemaking and
request for comments are not required
for these regulations. Although this is a
procedural rule not subject to the notice
and comment procedures of the APA,
the Agency is providing persons
interested in this interim final rule 60
days to submit comments. A final rule
will be published after the Agency
receives and reviews the public’s
comments.
Furthermore, because this rule is
procedural and interpretative rather
than substantive, the normal
requirement of 5 U.S.C. 553(d) that a
rule be effective 30 days after
publication in the Federal Register is
inapplicable. The Assistant Secretary
also finds good cause to provide an
immediate effective date for this interim
final rule. It is in the public interest that
the rule be effective immediately so that
parties may know what procedures are
applicable to pending cases.

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VI. Executive Orders 12866 and 13563;
Unfunded Mandates Reform Act of
1995; Executive Order 13132
The Department has concluded that
this rule is not a ‘‘significant regulatory
action’’ within the meaning of Section
3(f)(4) of Executive Order 12866, as
reaffirmed by Executive Order 13563,
because it is not likely to result in a rule
that may: (1) Have an annual effect on
the economy of $100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal governments or
communities; (2) create a serious
inconsistency or otherwise interfere
with an action taken or planned by
another agency; (3) materially alter the
budgetary impact of entitlements,
grants, user fees, or loan programs or the
rights and obligations of recipients
thereof; or (4) raise novel legal or policy
issues arising out of legal mandates, the
President’s priorities, or the principles
set forth in Executive Order 12866.
Therefore, no regulatory impact analysis
has been prepared.
The rule is procedural and
interpretative in nature, and it is
expected to have a negligible economic
impact. For this reason, and the fact that
no notice of proposed rulemaking has
been published, no statement is
required under Section 202 of the
Unfunded Mandates Reform Act of
1995, 2 U.S.C. 1531 et seq. Finally, this
rule does not have ‘‘federalism
implications.’’ The rule does not have
‘‘substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government’’ and therefore is
not subject to Executive Order 13132
(Federalism).
VII. Regulatory Flexibility Analysis
The Department has determined that
the regulation will not have a significant
economic impact on a substantial
number of small entities. The regulation
simply implements procedures
necessitated by enactment of SPA.
Furthermore, no certification to this
effect is required and no regulatory
flexibility analysis is required because
no proposed rule has been issued.
List of Subjects in 29 CFR Part 1986
Administrative practice and
procedure, Employment, Investigations,
Marine safety, Reporting and
recordkeeping requirements, Safety,
Seamen, Transportation,
Whistleblowing.

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Authority and Signature
This document was prepared under
the direction and control of David
Michaels, Ph.D., MPH, Assistant
Secretary of Labor for Occupational
Safety and Health.
Signed at Washington, DC on January 31,
2013.
David Michaels,
Assistant Secretary of Labor for Occupational
Safety and Health.

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

■

PART 1986—PROCEDURES FOR THE
HANDLING OF RETALIATION
COMPLAINTS UNDER THE EMPLOYEE
PROTECTION PROVISION OF THE
SEAMAN’S PROTECTION ACT (SPA),
AS AMENDED.
Subpart A—Complaints, Investigations,
Findings, and Preliminary Orders
Sec.
1986.100 Purpose and scope.
1986.101 Definitions.
1986.102 Obligations and prohibited acts.
1986.103 Filing of retaliation complaints.
1986.104 Investigation.
1986.105 Issuance of findings and
preliminary orders.
Subpart B—Litigation
1986.106 Objections to the findings and the
preliminary order and request for a
hearing.
1986.107 Hearings.
1986.108 Role of Federal agencies.
1986.109 Decisions and orders of the
administrative law judge.
1986.110 Decisions and orders of the
Administrative Review Board.
Subpart C—Miscellaneous Provisions
1986.111 Withdrawal of SPA complaints,
findings, objections, and petitions for
review; settlement.
1986.112 Judicial review.
1986.113 Judicial enforcement.
1986.114 District court jurisdiction of
retaliation complaints under SPA.
1986.115 Special circumstances; waiver of
rules.
Authority: 46 U.S.C. 2114; 49 U.S.C.
31105; Secretary’s Order 1–2012 (Jan. 18,
2012), 77 FR 3912 (Jan. 25, 2012); Secretary’s
Order 1–2010 (Jan. 15, 2010), 75 FR 3924–01
(Jan. 25, 2010).

Subpart A—Complaints,
Investigations, Findings, and
Preliminary Orders
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§ 1986.100

Purpose and scope.

(a) This part sets forth the procedures
for, and interpretations of, the Seaman’s
Protection Act (SPA), 46 U.S.C. 2114, as
amended, which protects a seaman from
retaliation because the seaman has
engaged in protected activity pertaining
to compliance with maritime safety laws

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and accompanying regulations. SPA
incorporates the procedures,
requirements, and rights described in
the whistleblower provision of the
Surface Transportation Assistance Act
(STAA), 49 U.S.C. 31105.
(b) This part establishes procedures
pursuant to the statutory provisions set
forth above for the expeditious handling
of retaliation complaints filed by
seamen or persons acting on their
behalf. These rules, together with those
rules codified at 29 CFR part 18, set
forth the procedures for submission of
complaints, investigations, issuance of
findings and preliminary orders,
objections to findings, litigation before
administrative law judges (ALJs), posthearing administrative review,
withdrawals and settlements, and
judicial review and enforcement. In
addition, these rules provide the
Secretary’s interpretations on certain
statutory issues.
§ 1986.101

Definitions.

As used in this part:
(a) Act means the Seaman’s Protection
Act (SPA), 46 U.S.C. 2114, as amended.
(b) Assistant Secretary means the
Assistant Secretary of Labor for
Occupational Safety and Health or the
person or persons to whom he or she
delegates authority under the Act.
(c) Business days means days other
than Saturdays, Sundays, and Federal
holidays.
(d) Citizen of the United States means:
(1) An individual who is a national of
the United States as defined in section
101(a)(22) of the Immigration and
Nationality Act (8 U.S.C. 1101 (a)(22)) or
a corporation, partnership, association,
or other business entity if the
controlling interest is owned by citizens
of the United States. The controlling
interest in a corporation is owned by
citizens of the United States if:
(i) Title to the majority of the stock in
the corporation is vested in citizens of
the United States free from any trust or
fiduciary obligation in favor of a person
not a citizen of the United States;
(ii) The majority of the voting power
in the corporation is vested in citizens
of the United States;
(iii) There is no contract or
understanding by which the majority of
the voting power in the corporation may
be exercised, directly or indirectly, in
behalf of a person not a citizen of the
United States; and
(iv) There is no other means by which
control of the corporation is given to or
permitted to be exercised by a person
not a citizen of the United States.
(2) Furthermore, a corporation is only
a citizen of the United States if:
(i) It is incorporated under the laws of
the United States or a State;

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(ii) Its chief executive officer, by
whatever title, and the chairman of its
board of directors are citizens of the
United States; and
(iii) No more of its directors are
noncitizens than a minority of the
number necessary to constitute a
quorum.
(e) Complainant means the seaman
who filed a SPA whistleblower
complaint or on whose behalf a
complaint was filed.
(f) Cooperated means any assistance
or participation with an investigation, at
any stage of the investigation, and
regardless of the outcome of the
investigation.
(g) Maritime safety law or regulation
includes any statute or regulation
regarding health or safety that applies to
any person or equipment on a vessel.
(h) Notify or notified includes any oral
or written communications.
(i) OSHA means the Occupational
Safety and Health Administration of the
United States Department of Labor.
(j) Person means one or more
individuals or other entities, including
but not limited to corporations,
companies, associations, firms,
partnerships, societies, and joint stock
companies.
(k) Report or reported means any oral
or written communications.
(l) Respondent means the person
alleged to have violated 46 U.S.C. 2114.
(m) Seaman means any individual
engaged or employed in any capacity on
board a vessel owned by a citizen of the
United States. The term includes an
individual formerly performing the
work described above or an applicant
for such work.
(n) Secretary means the Secretary of
Labor or persons to whom authority
under the Act has been delegated.
(o) State means a State of the United
States, the District of Columbia, Puerto
Rico, the Virgin Islands, American
Samoa, Guam, and the Northern
Mariana Islands.
(p) Vessel means every description of
watercraft or other artificial contrivance
used, or capable of being used, as a
means of transportation on water.
(q) Vessel owner includes all of the
agents of the owner, including the
vessel’s master.
(r) Any future amendments to SPA
that affect the definition of a term or
terms listed in this section will apply in
lieu of the definition stated herein.
§ 1986.102
acts.

Obligations and prohibited

(a) A person may not retaliate against
any seaman because the seaman:
(1) In good faith reported or is about
to report to the Coast Guard or other

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appropriate Federal agency or
department that the seaman believes
that a violation of a maritime safety law
or regulation prescribed under that law
or regulation has occurred;
(2) Refused to perform duties ordered
by the seaman’s employer because the
seaman has a reasonable apprehension
or expectation that performing such
duties would result in serious injury to
the seaman, other seamen, or the public;
(3) Testified in a proceeding brought
to enforce a maritime safety law or
regulation prescribed under that law;
(4) Notified, or attempted to notify,
the vessel owner or the Secretary of the
department in which the Coast Guard is
operating of a work-related personal
injury or work-related illness of a
seaman;
(5) Cooperated with a safety
investigation by the Secretary of the
department in which the Coast Guard is
operating or the National Transportation
Safety Board;
(6) Furnished information to the
Secretary of the department in which
the Coast Guard is operating, the
National Transportation Safety Board, or
any other public official as to the facts
relating to any marine casualty resulting
in injury or death to an individual or
damage to property occurring in
connection with vessel transportation;
or
(7) Accurately reported hours of duty
under part A of subtitle II of title 46 of
the United States Code.
(b) Retaliation means any
discrimination against a seaman
including, but is not limited to,
discharging, demoting, suspending,
harassing, intimidating, threatening,
restraining, coercing, blacklisting, or
disciplining a seaman.
(c) For purposes of paragraph (a)(2) of
this section, the circumstances causing
a seaman’s apprehension of serious
injury must be of such a nature that a
reasonable person, under similar
circumstances, would conclude that
there is a real danger of an injury or
serious impairment of health resulting
from the performance of duties as
ordered by the seaman’s employer. To
qualify for protection based on activity
described in paragraph (a)(2) of this
section, the seaman must have sought
from the employer, and been unable to
obtain, correction of the unsafe
condition. Any seaman who requests
such a correction shall be protected
against retaliation because of the
request.
§ 1986.103

Filing of retaliation complaints.

(a) Who may file. A seaman who
believes that he or she has been
retaliated against by a person in

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violation of SPA may file, or have filed
by any person on the seaman’s behalf,
a complaint alleging such retaliation.
(b) Nature of filing. No particular form
of complaint is required. A complaint
may be filed orally or in writing. Oral
complaints will be reduced to writing
by OSHA. If a seaman is unable to file
a complaint in English, OSHA will
accept the complaint in any other
language.
(c) Place of filing. The complaint
should be filed with the OSHA office
responsible for enforcement activities in
the geographical area where the seaman
resides or was employed, but may be
filed with any OSHA officer or
employee. Addresses and telephone
numbers for these officials are set forth
in local directories and at the following
Internet address: http://www.osha.gov.
(d) Time for filing. Not later than 180
days after an alleged violation occurs, a
seaman who believes that he or she has
been retaliated against in violation of
SPA may file, or have filed by any
person on his or her behalf, a complaint
alleging such retaliation. The date of the
postmark, facsimile transmittal,
electronic communication transmittal,
telephone call, hand-delivery, delivery
to a third-party commercial carrier, or
in-person filing at an OSHA office will
be considered the date of filing. The
time for filing a complaint may be tolled
for reasons warranted by applicable case
law.
(e) Relationship to section 11(c)
complaints. A complaint filed under
SPA alleging facts that would also
constitute a violation of section 11(c) of
the Occupational Safety and Health Act,
29 U.S.C. 660(c), will be deemed to be
a complaint under both SPA and section
11(c). Similarly, a complaint filed under
section 11(c) that alleges facts that
would also constitute a violation of SPA
will be deemed to be a complaint filed
under both SPA and section 11(c).
Normal procedures and timeliness
requirements under the respective
statutes and regulations will be
followed.
§ 1986.104

Investigation.

(a) Upon receipt of a complaint in the
investigating office, the Assistant
Secretary will notify the respondent of
the filing of the complaint by providing
the respondent with a copy of the
complaint, redacted in accordance with
the Privacy Act of 1974, 5 U.S.C. 552a,
and other applicable confidentiality
laws. The Assistant Secretary will also
notify the respondent of the
respondent’s rights under paragraphs (b)
and (f) of this section. The Assistant
Secretary will provide a copy of the
unredacted complaint to the

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8403

complainant (or complainant’s legal
counsel, if complainant is represented
by counsel) and to the U.S. Coast Guard.
(b) Within 20 days of receipt of the
notice of the filing of the complaint
provided under paragraph (a) of this
section, the respondent may submit to
the Assistant Secretary a written
statement and any affidavits or
documents substantiating its position.
Within the same 20 days, the
respondent may request a meeting with
the Assistant Secretary to present its
position.
(c) Throughout the investigation, the
Agency will provide to the complainant
(or the complainant’s legal counsel if
complainant is represented by counsel)
a copy of all of respondent’s
submissions to the Agency that are
responsive to the complainant’s
whistleblower complaint. Before
providing such materials to the
complainant, the Agency will redact
them, if necessary, in accordance with
the Privacy Act of 1974, 5 U.S.C. 552a,
and other applicable confidentiality
laws. The Agency will also provide the
complainant with an opportunity to
respond to such submissions.
(d) Investigations will be conducted
in a manner that protects the
confidentiality of any person who
provides information on a confidential
basis, other than the complainant, in
accordance with part 70 of this title.
(e)(1) A complaint will be dismissed
unless the complainant has made a
prima facie showing that protected
activity was a contributing factor in the
adverse action alleged in the complaint.
(2) The complaint, supplemented as
appropriate by interviews of the
complainant, must allege the existence
of facts and evidence to make a prima
facie showing as follows:
(i) The seaman engaged in a protected
activity;
(ii) The respondent knew or suspected
that the seaman engaged in the
protected activity;
(iii) The seaman suffered an adverse
action; and
(iv) The circumstances were sufficient
to raise the inference that the protected
activity was a contributing factor in the
adverse action.
(3) For purposes of determining
whether to investigate, the complainant
will be considered to have met the
required burden if the complaint on its
face, supplemented as appropriate
through interviews of the complainant,
alleges the existence of facts and either
direct or circumstantial evidence to
meet the required showing, i.e., to give
rise to an inference that the respondent
knew or suspected that the seaman
engaged in protected activity and that

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the protected activity was a contributing
factor in the adverse action. The burden
may be satisfied, for example, if the
complainant shows that the adverse
action took place shortly after the
protected activity, giving rise to the
inference that it was a contributing
factor in the adverse action. If the
required showing has not been made,
the complainant (or the complainant’s
legal counsel if complainant is
represented by counsel) will be so
notified and the investigation will not
commence.
(4) Notwithstanding a finding that a
complainant has made a prima facie
showing, as required by this section, an
investigation of the complaint will not
be conducted or will be discontinued if
the respondent demonstrates by clear
and convincing evidence that it would
have taken the same adverse action in
the absence of the complainant’s
protected activity.
(5) If the respondent fails to make a
timely response or fails to satisfy the
burden set forth in the prior paragraph,
the Assistant Secretary will proceed
with the investigation. The investigation
will proceed whenever it is necessary or
appropriate to confirm or verify the
information provided by the
respondent.
(f) Prior to the issuance of findings
and a preliminary order as provided for
in § 1986.105, if the Assistant Secretary
has reasonable cause, on the basis of
information gathered under the
procedures of this part, to believe that
the respondent has violated the Act and
that preliminary reinstatement is
warranted, the Assistant Secretary will
again contact the respondent (or the
respondent’s legal counsel, if
respondent is represented by counsel) to
give notice of the substance of the
relevant evidence supporting the
complainant’s allegations as developed
during the course of the investigation.
This evidence includes any witness
statements, which will be redacted to
protect the identity of confidential
informants where statements were given
in confidence; if the statements cannot
be redacted without revealing the
identity of confidential informants,
summaries of their contents will be
provided. The complainant will also
receive a copy of the materials that must
be provided to the respondent under
this paragraph. Before providing such
materials to the complainant, the
Agency will redact them, if necessary,
in accordance with the Privacy Act of
1974, 5 U.S.C. 552a, and other
applicable confidentiality laws. The
respondent will be given the
opportunity to submit a written
response, to meet with the investigators,

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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.
§ 1986.105 Issuance of findings and
preliminary orders.

(a) After considering all the relevant
information collected during the
investigation, the Assistant Secretary
will issue, within 60 days of the filing
of the complaint, written findings as to
whether there is reasonable cause to
believe that the respondent retaliated
against the complainant in violation of
SPA.
(1) If the Assistant Secretary
concludes that there is reasonable cause
to believe that a violation has occurred,
the Assistant Secretary will accompany
the findings with a preliminary order
providing relief. Such order will
require, where appropriate: affirmative
action to abate the violation;
reinstatement of the complainant to his
or her former position, with the same
compensation, terms, conditions and
privileges of the complainant’s
employment; payment of compensatory
damages (back pay with interest and
compensation for any special damages
sustained as a result of the retaliation,
including any litigation costs, expert
witness fees, and reasonable attorney
fees which the complainant has
incurred). Interest on back pay will be
calculated using the interest rate
applicable to underpayment of taxes
under 26 U.S.C. 6621 and will be
compounded daily. The preliminary
order may also require the respondent to
pay punitive damages of up to $250,000.
(2) If the Assistant Secretary
concludes that a violation has not
occurred, the Assistant Secretary will
notify the parties of that finding.
(b) The findings and, where
appropriate, the preliminary order will
be sent by certified mail, return receipt
requested, to all parties of record (and
each party’s legal counsel if the party is
represented by counsel). The findings
and, where appropriate, the preliminary
order will inform the parties of the right
to object to the findings and/or the order
and to request a hearing. The findings
and, where appropriate, the preliminary
order also will give the address of the
Chief Administrative Law Judge, U.S.
Department of Labor. At the same time,
the Assistant Secretary will file with the
Chief Administrative Law Judge, a copy

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of the original complaint and a copy of
the findings and/or order.
(c) The findings and the preliminary
order will be effective 30 days after
receipt by the respondent (or the
respondent’s legal counsel if the
respondent is represented by counsel),
or on the compliance date set forth in
the preliminary order, whichever is
later, unless an objection and request for
a hearing have been timely filed as
provided at § 1986.106. However, the
portion of any preliminary order
requiring reinstatement will be effective
immediately upon the respondent’s
receipt of the findings and the
preliminary order, regardless of any
objections to the findings and/or the
order.
Subpart B—Litigation
§ 1986.106 Objections to the findings and
the preliminary order and request for a
hearing.

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

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Federal Register / Vol. 78, No. 25 / Wednesday, February 6, 2013 / Rules and Regulations
§ 1986.107

Hearings.

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

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§ 1986.108

Role of Federal agencies.

(a)(1) The complainant and the
respondent will be parties in every
proceeding. In any case in which the
respondent objects to the findings or the
preliminary order, the Assistant
Secretary ordinarily will be the
prosecuting party. In any other cases, at
the Assistant Secretary’s discretion, the
Assistant Secretary may participate as a
party or participate as amicus curiae at
any stage of the proceeding. This right
to participate includes, but is not
limited to, the right to petition for
review of a decision of an ALJ,
including a decision approving or
rejecting a settlement agreement
between the complainant and the
respondent.
(2) If the Assistant Secretary assumes
the role of prosecuting party in
accordance with paragraph (a)(1) of this
section, he or she may, upon written
notice to the ALJ or the Administrative
Review Board, as the case may be, and
the other parties, withdraw as the
prosecuting party in the exercise of
prosecutorial discretion. If the Assistant
Secretary withdraws, the complainant
will become the prosecuting party and
the ALJ or the Administrative Review
Board, as the case may be, will issue
appropriate orders to regulate the course
of future proceedings.

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(3) Copies of documents in all cases
shall be sent to all parties, or if they are
represented by counsel, to the latter. In
cases in which the Assistant Secretary is
a party, copies of the documents shall
be sent to the Regional Solicitor’s Office
representing the Assistant Secretary.
(b) The U.S. Coast Guard, if interested
in a proceeding, may participate as
amicus curiae at any time in the
proceeding, at its discretion. At the
request of the U.S. Coast Guard, copies
of all documents in a case must be sent
to that agency, whether or not that
agency is participating in the
proceeding.
§ 1986.109 Decisions and orders of the
administrative law judge.

(a) The decision of the ALJ will
contain appropriate findings,
conclusions, and an order pertaining to
the remedies provided in paragraph (d)
of this section, as appropriate. A
determination that a violation has
occurred may be made only if the
complainant has demonstrated by a
preponderance of the evidence that
protected activity was a contributing
factor in the adverse action alleged in
the complaint.
(b) If the complainant or the Assistant
Secretary has satisfied the burden set
forth in the prior paragraph, relief may
not be ordered if the respondent
demonstrates by clear and convincing
evidence that it would have taken the
same adverse action in the absence of
any protected activity.
(c) Neither the Assistant Secretary’s
determination to dismiss a complaint
without completing an investigation
pursuant to § 1986.104(e) nor the
Assistant Secretary’s determination to
proceed with an investigation is subject
to review by the ALJ, and a complaint
may not be remanded for the
completion of an investigation or for
additional findings on the basis that a
determination to dismiss was made in
error. Rather, if there otherwise is
jurisdiction, the ALJ will hear the case
on the merits or dispose of the matter
without a hearing if the facts and
circumstances warrant.
(d)(1) If the ALJ concludes that the
respondent has violated the law, the ALJ
will issue an order that will require,
where appropriate: affirmative action to
abate the violation, reinstatement of the
complainant to his or her former
position, with the same compensation,
terms, conditions, and privileges of the
complainant’s employment; payment of
compensatory damages (back pay with
interest and compensation for any
special damages sustained as a result of
the retaliation, including any litigation
costs, expert witness fees, and

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reasonable attorney fees which the
complainant may have incurred); and
payment of punitive damages up to
$250,000. Interest on back pay will be
calculated using the interest rate
applicable to underpayment of taxes
under 26 U.S.C. 6621 and will be
compounded daily.
(2) If the ALJ determines that the
respondent has not violated the law, an
order will be issued denying the
complaint.
(e) The decision will be served upon
all parties to the proceeding, the
Assistant Secretary, and the Associate
Solicitor, Division of Occupational
Safety and Health, U.S. Department of
Labor. Any ALJ’s decision requiring
reinstatement or lifting an order of
reinstatement by the Assistant Secretary
will be effective immediately upon
receipt of the decision by the
respondent. All other portions of the
ALJ’s order will be effective 14 days
after the date of the decision unless a
timely petition for review has been filed
with the Administrative Review Board
(ARB), U.S. Department of Labor. The
ALJ decision will become the final order
of the Secretary unless a petition for
review is timely filed with the ARB and
the ARB accepts the decision for review.
§ 1986.110 Decisions and orders of the
Administrative Review Board.

(a) The Assistant Secretary or any
other party desiring to seek review,
including judicial review, of a decision
of the ALJ must file a written petition
for review with the ARB, which has
been delegated the authority to act for
the Secretary and issue final decisions
under this part. The parties should
identify in their petitions for review the
legal conclusions or orders to which
they object, or the objections may be
deemed waived. A petition must be
filed within 14 days of the date of the
decision of the ALJ. The date of the
postmark, facsimile transmittal, or
electronic communication transmittal
will be considered to be the date of
filing; if the petition is filed in person,
by hand-delivery or other means, the
petition is considered filed upon
receipt. The petition must be served on
all parties and on the Chief
Administrative Law Judge at the time it
is filed with the ARB. Copies of the
petition for review and all briefs must
be served on the Assistant Secretary
and, in cases in which the Assistant
Secretary is a party, on the Associate
Solicitor, Division of Occupational
Safety and Health, U.S. Department of
Labor.
(b) If a timely petition for review is
filed pursuant to paragraph (a) of this
section, the decision of the ALJ will

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Federal Register / Vol. 78, No. 25 / Wednesday, February 6, 2013 / Rules and Regulations

become the final order of the Secretary
unless the ARB, within 30 days of the
filing of the petition, issues an order
notifying the parties that the case has
been accepted for review. If a case is
accepted for review, the decision of the
ALJ will be inoperative unless and until
the ARB issues an order adopting the
decision, except that any order of
reinstatement will be effective while
review is conducted by the ARB unless
the ARB grants a motion by the
respondent to stay that order based on
exceptional circumstances. The ARB
will specify the terms under which any
briefs are to be filed. The ARB will
review the factual determinations of the
ALJ under the substantial evidence
standard. If no timely petition for
review is filed, or the ARB denies
review, the decision of the ALJ will
become the final order of the Secretary.
If no timely petition for review is filed,
the resulting final order is not subject to
judicial review.
(c) The final decision of the ARB will
be issued within 120 days of the
conclusion of the hearing, which will be
deemed to be 14 days after the date of
the decision of the ALJ, unless a motion
for reconsideration has been filed with
the ALJ in the interim. In such case, the
conclusion of the hearing is the date the
motion for reconsideration is ruled
upon or 14 days after a new decision is
issued. The ARB’s final decision will be
served upon all parties and the Chief
Administrative Law Judge by mail. The
final decision also will be served on the
Assistant Secretary and on the Associate
Solicitor, Division of Occupational
Safety and Health, U.S. Department of
Labor, even if the Assistant Secretary is
not a party.
(d) If the ARB concludes that the
respondent has violated the law, the
ARB will issue a final order providing
relief to the complainant. The final
order will require, where appropriate:
affirmative action to abate the violation;
reinstatement of the complainant to his
or her former position, with the same
compensation, terms, conditions, and
privileges of the complainant’s
employment; payment of compensatory
damages (backpay with interest and
compensation for any special damages
sustained as a result of the retaliation,
including any litigation costs, expert
witness fees, and reasonable attorney
fees the complainant may have
incurred); and payment of punitive
damages up to $250,000. Interest on
backpay will be calculated using the
interest rate applicable to underpayment
of taxes under 26 U.S.C. 6621 and will
be compounded daily.
(e) If the ARB determines that the
respondent has not violated the law, an

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order will be issued denying the
complaint.
Subpart C—Miscellaneous Provisions
§ 1986.111 Withdrawal of SPA complaints,
findings, objections, and petitions for
review; settlement.

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

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petition for review are withdrawn
because of settlement, the settlement
must be submitted for approval in
accordance with paragraph (d) of this
section.
(d)(1) Investigative settlements. At any
time after the filing of a SPA complaint
and before the findings and/or order are
objected to or become a final order by
operation of law, the case may be settled
if the Assistant Secretary, the
complainant, and the respondent agree
to a settlement. The Assistant
Secretary’s approval of a settlement
reached by the respondent and the
complainant demonstrates the Assistant
Secretary’s consent and achieves the
consent of all three parties.
(2) Adjudicatory settlements. At any
time after the filing of objections to the
Assistant Secretary’s findings and/or
order, the case may be settled if the
participating parties agree to a
settlement and the settlement is
approved by the ALJ if the case is before
the ALJ or by the ARB, if the ARB has
accepted the case for review. A copy of
the settlement will be filed with the ALJ
or the ARB as the case may be.
(e) Any settlement approved by the
Assistant Secretary, the ALJ, or the ARB
will constitute the final order of the
Secretary and may be enforced in a
United States district court pursuant to
49 U.S.C. 31105(e), as incorporated by
46 U.S.C. 2114(b).
§ 1986.112

Judicial review.

(a) Within 60 days after the issuance
of a final order under §§ 1986.109 and
1986.110, any person adversely affected
or aggrieved by the order may file a
petition for review of the order in the
United States Court of Appeals for the
circuit in which the violation allegedly
occurred or the circuit in which the
complainant resided on the date of the
violation.
(b) A final order is not subject to
judicial review in any criminal or other
civil proceeding.
(c) If a timely petition for review is
filed, the record of a case, including the
record of proceedings before the ALJ,
will be transmitted by the ARB, or the
ALJ, as the case may be, to the
appropriate court pursuant to the
Federal Rules of Appellate Procedure
and the local rules of such court.
§ 1986.113

Judicial enforcement.

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

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Federal Register / Vol. 78, No. 25 / Wednesday, February 6, 2013 / Rules and Regulations
court for the district in which the
violation was found to have occurred.

FOR FURTHER INFORMATION CONTACT:

§ 1986.114 District court jurisdiction of
retaliation complaints under SPA.

(a) If there is no final order of the
Secretary, 210 days have passed since
the filing of the complaint, and there is
no showing that there has been delay
due to the bad faith of the complainant,
the complainant may bring an action at
law or equity for de novo review in the
appropriate district court of the United
States, which will have jurisdiction over
such an action without regard to the
amount in controversy. The action shall,
at the request of either party to such
action, be tried by the court with a jury.
(b) Within seven days after filing a
complaint in federal court, a
complainant must file with the
Assistant Secretary, the ALJ, or the ARB,
depending on where the proceeding is
pending, a copy of the file-stamped
complaint. A copy of the complaint also
must be served on the OSHA official
who issued the findings and/or
preliminary order, the Assistant
Secretary, and the Associate Solicitor,
Division of Occupational Safety and
Health, U.S. Department of Labor.
§ 1986.115
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 as justice or the administration of
SPA requires.
[FR Doc. 2013–02539 Filed 2–5–13; 8:45 am]
BILLING CODE 4510–26–P

POSTAL SERVICE
39 CFR Part 501
Authorization To Manufacture and
Distribute Postage Evidencing
Systems; Discontinued Indicia
Postal ServiceTM.
Final rule.

AGENCY:
ACTION:

The Postal Service is
amending the rules concerning the
manufacture and distribution of postage
evidencing systems to clarify that
effective January 1, 2016, all postage
evidencing systems (postage meters and
PC Postage® products) will be required
to produce Information-Based Indicia
(IBI) or Intelligent Mail® Indicia (IMI)
for evidence of pre-paid postage, and
that indicia from noncompliant systems
will not be recognized as valid postage.
DATES: Effective date: January 1, 2016.

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SUMMARY:

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Marlo Ivey, Business Programs
Specialist, Payment Technology, U.S.
Postal Service, (202) 268–7613.
SUPPLEMENTARY INFORMATION: In 1999,
the Postal Service introduced the
Information Based Indicia Program
(IBIP). Under IBIP, postage evidencing
systems submitted for Postal Service test
and evaluation were required to
produce IBI—digital indicia that use a
two-dimensional (2–D) barcode. In
2012, the next generation of postage
evidencing was introduced through the
publication of the IMI performance
criteria. Both IBI and IMI contain a 2–
D barcode that includes revenue
security-related data elements and
product and service information.
On July 13, 2012, the Postal Service
published a proposed rule (77 FR
41336) stating that after January 1, 2016,
all postage evidencing systems (postage
meters and PC Postage products) will be
required to produce IBI or IMI for
evidence of pre-paid postage. Indicia
from postage evidencing systems that
are not IBI-compliant or IMI-compliant
will not be recognized as valid after
December 31, 2015. The following
amendment to 39 CFR part 501 is
intended to clarify that noncompliant
indicia will be decertified, and will not
be recognized as valid after that date.
One comment was received. The
vendor understands the need to
implement such changes to maintain
revenue protection and accountability.
However, by discontinuing the non-IBI
or non-IMI indicia over such a short
period of time it would put them at risk
in the market due to the amount of
resources needed to complete upgrading
their customers in just 3 years.
Our response noted that this proposed
rule was expected over the past several
years, since the Postal Service has
discussed with the industry the need to
discontinue these indicia. Since the
introduction of the IBI, the Postal
Service has made significant investment
in infrastructure to enhance the revenue
security and processing of the mail.
Postage meter indicia that do not bear
an IBI or IMI indicia are inconsistent
with these enhanced systems and
processes and pose a threat to their
effectiveness. Also, they do not have the
enhanced revenue security features
required under today’s performance
criteria. Recent experiences have
demonstrated that these meters pose
revenue risks to the Postal Service.
In addition, metering systems
producing non-IBI or IMI do not provide
the Postal Service and its customers the
product level and mail processing
visibility needed to manage business in
today’s information rich environment.

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8407

Given these compelling reasons, the
Postal Service does not intend to delay
the discontinuance of non-IBI or IMI
beyond December 31, 2015. We believe
this date (about 3 years in the future)
provides the best compromise for all
parties impacted by this ruling.
List of Subjects in 39 CFR Part 501
Postal Service.
Accordingly, the Postal Service
amends 39 CFR part 501 as follows:
PART 501—AUTHORIZATION TO
MANUFACTURE AND DISTRIBUTE
POSTAGE EVIDENCING SYSTEMS
1. The authority citation for 39 CFR
part 501 continues to read as follows:

■

Authority: 5 U.S.C. 552(a); 39 U.S.C. 101,
401, 403, 404, 410, 2601, 2605, Inspector
General Act of 1978, as amended (Pub. L. 95–
452, as amended); 5 U.S.C. App. 3.
■

2. Add § 501.20 to read as follows:

§ 501.20
Indicia.

Discontinued Postage Evidencing

(a) Decertified indicia (evidence of
pre-paid postage) are indicia that have
been withdrawn by the Postal Service as
valid forms of postage evidence through
publication by the Postal Service in the
Federal Register, or by voluntary
withdrawal undertaken by the provider.
(b) Effective January 1, 2016, all
Postage Evidencing Systems (postage
meters and PC Postage products) will be
required to produce Information-Based
Indicia (IBI) or Intelligent Mail Indicia
(IMI) for evidence of pre-paid postage.
Non-IBI and non-IMI indicia will be
decertified effective January 1, 2016,
and may not be used as a valid form of
postage evidence. These decertified
indicia will not be recognized as valid
postage after December 31, 2015.
Stanley F. Mires,
Attorney, Legal Policy & Legislative Advice.
[FR Doc. 2013–02514 Filed 2–5–13; 8:45 am]
BILLING CODE 7710–12–P

ENVIRONMENTAL PROTECTION
AGENCY
[EPA–HQ–OPP–2011–0104; FRL–9363–1]

40 CFR Part 180
Endosulfan; Pesticide Tolerance
Environmental Protection
Agency (EPA).
ACTION: Order reestablishing tolerance.
AGENCY:

EPA has granted an objection
to the timing of the revocation of the
tolerance for endosulfan on tea. The
objection was filed by the Chamber of

SUMMARY:

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