[Federal Register Volume 77, Number 132 (Tuesday, July 10, 2012)]
[Rules and Regulations]
[Pages 40494-40509]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-16411]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1983

[Docket Number: OSHA-2010-0006]
RIN 1218-AC47


Procedures for the Handling of Retaliation Complaints Under 
Section 219 of the Consumer Product Safety Improvement Act of 2008

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Final rule.

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SUMMARY: This document provides the final text of regulations governing 
the employee protection (whistleblower) provisions of the Consumer 
Product Safety Improvement Act of 2008 (CPSIA). An interim final rule 
governing these provisions and request for public comment was published 
in the Federal Register on August 31, 2010. Three comments were 
received. This rule responds to those comments and establishes the 
final procedures and time frames for the handling of retaliation 
complaints under CPSIA, including procedures and time frames for 
employee complaints to the Occupational Safety and Health 
Administration (OSHA), investigations by OSHA, appeals of OSHA 
determinations to an administrative law judge (ALJ) for a hearing de 
novo, hearings by ALJs, review of ALJ decisions by the Administrative 
Review Board (ARB) (acting on behalf of the Secretary of Labor), and 
judicial review of the Secretary's final decision.

DATES: This final rule is effective on July 10, 2012.

FOR FURTHER INFORMATION CONTACT: Sandra Dillon, Director, Office of the 
Whistleblower Protection Program, Occupational Safety and Health 
Administration, U.S. Department of Labor, Room N-3610, 200 Constitution 
Avenue NW., Washington, DC 20210; telephone (202) 693-2199. This is not 
a toll-free number. This Federal Register document is available in 
alternative formats. The alternative formats available are large print, 
electronic file on computer disk (Word Perfect, ASCII, Mates with 
Duxbury Braille System) and audiotape.

SUPPLEMENTARY INFORMATION: 

I. Background

    The Consumer Product Safety Improvement Act of 2008 (CPSIA or the 
Act), Public Law 110-314, 122 Stat. 3016, was enacted on August 14, 
2008. Section 219 of the Act, codified at 15 U.S.C. 2087, provides 
protection to employees against retaliation by a manufacturer, private 
labeler, distributor, or retailer, because they provided to their 
employer, the Federal Government or the attorney general of a state, 
information relating to any violation of, or any act or omission the 
employees reasonably believe to be a violation of, any provision of an 
Act enforced by the Consumer Product Safety Commission (Commission), or 
any order, rule, regulation, standard, or ban under any such Act. The 
statutes enforced by the Commission include the Consumer Product Safety 
Act (CPSA), as amended by the CPSIA (15 U.S.C. 2051 et seq.), the 
Children's Gasoline Burn Prevention Act (Pub. L. 110-278, 122 Stat. 
2602 (2008)), the Federal Hazardous Substances Act (15 U.S.C. 1261 et 
seq.), the Flammable Fabrics Act (15 U.S.C. 1191 et seq.), the Poison 
Prevention Packaging Act (15 U.S.C. 1471 et seq.), the Refrigerator 
Safety Act (15 U.S.C. 1211 et seq.), and the Virginia Graeme Baker Pool 
and Spa Safety Act (15 U.S.C. 8001 et seq.). These rules establish 
procedures for the handling of whistleblower complaints under CPSIA.

II. Summary of Statutory Procedures

    CPSIA's whistleblower provisions include procedures that allow a 
covered employee to file, within 180 days of the alleged retaliation, a 
complaint with the Secretary of Labor (Secretary).\1\ Upon receipt of 
the complaint, the Secretary must provide written notice to the person 
or persons named in the complaint alleged to have violated the Act 
(respondent) of the filing of the complaint, the allegations contained 
in the complaint, the substance of the evidence supporting the 
complaint, and the rights afforded the respondent throughout the 
investigation. The Secretary must then, within 60 days of receipt of 
the complaint, afford the complainant and respondent an opportunity to 
submit a response and meet with the investigator to present statements 
from witnesses, and conduct an investigation.
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    \1\ The regulatory provisions in this part have been written and 
organized to be consistent with other whistleblower regulations 
promulgated by OSHA to the extent possible within the bounds of the 
statutory language of CPSIA. Responsibility for receiving and 
investigating complaints under CPSIA also has been delegated to the 
Assistant Secretary for Occupational Safety and Health (Secretary's 
Order 1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012)). Hearings 
on determinations by the Assistant Secretary are conducted by the 
Office of Administrative Law Judges, and appeals from decisions by 
ALJs are decided by the ARB (Secretary's Order 1-2010 (Jan. 15, 
2010), 75 FR 3924 (Jan. 25, 2010)).

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[[Page 40495]]

    The Secretary may conduct an investigation only if the complainant 
has made a prima facie showing that the protected activity was a 
contributing factor in the adverse action alleged in the complaint and 
the respondent has not demonstrated, through clear and convincing 
evidence, that the employer would have taken the same adverse action in 
the absence of that activity.
    After investigating a complaint, the Secretary will issue written 
findings. If, as a result of the investigation, the Secretary finds 
there is reasonable cause to believe that retaliation has occurred, the 
Secretary must notify the respondent of those findings, along with a 
preliminary order that requires the respondent to, where appropriate: 
take affirmative action to abate the violation; reinstate the 
complainant to his or her former position together with the 
compensation of that position (including back pay) and restore the 
terms, conditions, and privileges associated with his or her 
employment; and provide compensatory damages to the complainant, as 
well as all costs and expenses (including attorney fees and expert 
witness fees) reasonably incurred by the complainant for, or in 
connection with, the bringing of the complaint upon which the order was 
issued.
    The complainant and the respondent then have 30 days after the date 
of the Secretary's notification in which to file objections to the 
findings and/or preliminary order and request a hearing before an ALJ. 
The filing of objections under CPSIA will stay any remedy in the 
preliminary order except for preliminary reinstatement. If a hearing 
before an ALJ is not requested within 30 days, the preliminary order 
becomes final and is not subject to judicial review.
    If a hearing is held, CPSIA requires the hearing to be conducted 
``expeditiously.'' The Secretary then has 120 days after the conclusion 
of any hearing in which to issue a final order, which may provide 
appropriate relief or deny the complaint. Until the Secretary's final 
order is issued, the Secretary, the complainant, and the respondent may 
enter into a settlement agreement that terminates the proceeding. Where 
the Secretary has determined that a violation has occurred, the 
Secretary, where appropriate, will assess against the respondent a sum 
equal to the total amount of all costs and expenses, including 
attorney's and expert witness fees, reasonably incurred by the 
complainant for, or in connection with, the bringing of the complaint 
upon which the Secretary issued the order. The Secretary also may award 
a prevailing employer a reasonable attorney's fee, not exceeding 
$1,000, if the Secretary finds that the complaint is frivolous or has 
been brought in bad faith.
    Within 60 days of the issuance of the final order, any person 
adversely affected or aggrieved by the Secretary's final order may file 
an appeal with the United States Court of Appeals for the circuit in 
which the violation occurred or the circuit where the complainant 
resided on the date of the violation.
    CPSIA permits the employee to seek de novo review of the complaint 
by a United States district court in the event that the Secretary has 
not issued a final decision within 210 days after the filing of the 
complaint, or within 90 days after receiving a written determination. 
The court will have jurisdiction over the action without regard to the 
amount in controversy, and the case will be tried before a jury at the 
request of either party.

III. Summary of Regulations and Rulemaking Proceedings

    On August 31, 2010, OSHA published in the Federal Register an 
interim final rule promulgating rules governing the employee protection 
(whistleblower) provisions of CPSIA. 75 FR 53533. In addition to 
promulgating the interim final rule, OSHA included a request for public 
comment on the interim rules by November 1, 2010.
    In response, two organizations and one individual filed comments 
with the agency within the public comment period. Comments were 
received from the National Whistleblower Center (NWC); Government 
Accountability Project (GAP); and Todd Miller.
    OSHA has reviewed and considered the comments. The following 
discussion addresses the comments and OSHA's responses in the order of 
the provisions of the rule.

General Comment

    Mr. Todd Miller commented generally that the regulations do not 
provide a means for redress where OSHA does not meet the timelines 
provided for in the statute. Courts and the ARB have long recognized 
that the statutory timelines provided in the whistleblower statutes are 
directory. Failure to complete the investigation or issue a final 
decision within the statutory time frame does not deprive the Secretary 
of jurisdiction over a whistleblower complaint. See, e.g., Passaic 
Valley Sewerage Comm'rs v. U.S. Dep't of Labor, 992 F.2d 474, 477 n.7 
(3d Cir. 1993); Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1066 (5th 
Cir. 1991); Lewis v. Metropolitan Transp. Authority, New York, ARB No. 
11-070, 2011 WL 3882486, at *2 (ARB Aug. 8, 2011); Welch v. Cardinal 
Bankshares, ARB No. 04-054, 2004 WL 5030301 (ARB May 13, 2004). The 
Secretary is cognizant of CPSIA's statutory directives regarding 
completion of the OSHA investigation and administrative proceedings and 
the need to resolve whistleblower complaints expeditiously. However, in 
those instances where the agency cannot complete the administrative 
proceedings within the statutory timeframes, CPSIA's ``kick-out'' 
provision--which allows a complainant to file a complaint for de novo 
review in Federal district court if the Secretary has not issued a 
final decision within 210 days of the filing of the complaint, or 
within 90 days of receiving a written determination--affords the 
complainant an alternative avenue for resolution of the whistleblower 
complaint.

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

Section 1983.100 Purpose and Scope
    This section describes the purpose of the regulations implementing 
CPSIA and provides an overview of the procedures covered by these 
regulations. No comments were received on this section and no 
substantive changes were made to it.
Section 1983.101 Definitions
    This section includes general definitions from CPSA, which are 
applicable to the whistleblower provisions of CPSIA, including a 
definition of the term ``consumer product.'' See 15 U.S.C. 2052(a)(5). 
The CPSA defines ``distributor'' as ``a person to whom a consumer 
product is delivered or sold for purposes of distribution in commerce, 
except that such term does not include a manufacturer or retailer of 
such product.'' 15 U.S.C. 2052(a)(8). The CPSA defines ``manufactured'' 
as ``to manufacture, produce, or assemble,'' and defines 
``manufacturer'' as ``any person who manufactures or imports a consumer 
product.'' 15 U.S.C. 2052(a)(10) and (11), respectively. ``Private 
labeler'' is defined by the CPSA as ``an owner of a brand or trademark 
on the label of a consumer product which bears a private label.'' 15 
U.S.C. 2052(a)(12)(A). Section 2052(a)(12)(B) further provides that a 
``consumer product bears a private label if (i) The product (or its 
container) is labeled with the brand or trademark of a person other 
than a manufacturer of the product, (ii) the person with whose brand or 
trademark the product (or container) is labeled has authorized or 
caused the

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product to be so labeled, and (iii) the brand or trademark of a 
manufacturer of such product does not appear on such label.'' 15 U.S.C. 
2052(a)(12)(B). The CPSA defines ``retailer'' as ``a person to whom a 
consumer product is delivered or sold for purposes of sale or 
distribution by such person to a consumer.'' 15 U.S.C. 2052(a)(13). No 
comments were received on this section and no substantive changes were 
made to the definitions section.
Section 1983.102 Obligations and Prohibited Acts
    This section describes the activities that are protected under 
CPSIA, and the conduct that is prohibited in response to any protected 
activities. Under CPSIA, an employer may not retaliate against an 
employee because the employee ``provided, caused to be provided, or is 
about to provide or cause to be provided to the employer, the Federal 
Government, or the attorney general of a State information relating to 
any violation of, or any act or omission the employee reasonably 
believes to be a violation of any provision of [CPSA, as amended by 
CPSIA] or any other Act enforced by the Commission, or any order, rule, 
regulation, standard, or ban under any such Acts.'' 15 U.S.C. 
2087(a)(1). CPSIA also protects employees who testify, assist or 
participate in proceedings concerning such violations. 15 U.S.C. 
2087(a)(2) and (3). Finally, CPSIA prohibits retaliation because an 
employee ``objected to, or refused to participate in, any activity, 
policy, practice, or assigned task that the employee (or other such 
person) reasonably believed to be in violation of any provision of 
[CPSA, as amended by CPSIA] or any other Act enforced by the 
Commission, or any order, rule, regulation, standard, or ban under any 
such Acts.'' 15 U.S.C. 2087(a)(4).
    In order to have a ``reasonable belief'' under CPSIA, a complainant 
must have both a subjective, good faith belief and an objectively 
reasonable belief that the complained-of conduct violates one of the 
listed categories of law. See Sylvester v. Parexel Int'l LLC, ARB No. 
07-123, 2011 WL 2165854, at *11-12 (ARB May 25, 2011) (discussing the 
reasonable belief standard under analogous language in the Sarbanes-
Oxley Act (SOX) whistleblower provision, 18 U.S.C. 1514A). The 
requirement that the complainant have a subjective, good faith belief 
is satisfied so long as the complainant actually believed that the 
conduct complained of violated the relevant law. See id. The 
``reasonableness'' of a complainant's belief is typically determined 
``based on the knowledge available to a reasonable person in the same 
factual circumstances with the same training and experience as the 
aggrieved employee.'' Id. at *12 (internal quotation marks and citation 
omitted). However, the complainant need not show that the conduct 
complained of constituted an actual violation of law. Pursuant to this 
standard, an employee's whistleblower activity is protected where it is 
based on a reasonable, but mistaken, belief that a violation of the 
relevant law has occurred. Id. at *13.
    Section 1983.102(c) reflects the CPSIA mandate that anti-
retaliation protections are not available to employees who deliberately 
cause a violation of any requirement relating to any violation or 
alleged violation of any order, regulation, or standard under the Acts 
enforced by the Commission. 15 U.S.C. 2087(b)(7)(D). For purposes of 
section 1983.102(c), the ARB has interpreted the phrase ``deliberate 
violations'' for the purpose of denying protection to an employee under 
the Energy Reorganization Act's (ERA) similar provision as including an 
element of willfulness. See Fields v. U.S. Dep't of Labor Admin. Review 
Bd., 173 F.3d 811, 814 (11th Cir. 1999) (petitioners knowingly 
conducted unauthorized and potentially dangerous experiments). No 
comments were received on this section and no changes have been made to 
it.
Section 1983.103 Filing of Retaliation Complaint
    This section explains the requirements for filing a retaliation 
complaint under CPSIA. To be timely, a complaint must be filed within 
180 days of when the alleged violation occurs. Under Delaware State 
College v. Ricks, 449 U.S. 250, 258 (1980), this is considered to be 
when the retaliatory decision has been both made and communicated to 
the complainant. In other words, the limitations period commences once 
the employee is aware or reasonably should be aware of the employer's 
decision. Equal Emp't Opportunity Comm'n v. United Parcel Serv., Inc., 
249 F.3d 557, 561-62 (6th Cir. 2001). Complaints filed under CPSIA need 
not be in any particular form. They may be either oral or in writing. 
If the complainant is unable to file the complaint in English, OSHA 
will accept the complaint in any language. With the consent of the 
employee, complaints may be filed by any person on the employee's 
behalf.
    OSHA notes that a complaint of retaliation filed with OSHA under 
CPSIA is not a formal document and need not conform to the pleading 
standards for complaints filed in federal district court articulated in 
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. 
Iqbal, 556 U.S. 662 (2009). See Sylvester v. Parexel Int'l, Inc., ARB 
Case No. 07-123, 2011 WL 2165854, at *9-10 (ARB May 26, 2011) (holding 
whistleblower complaints filed with OSHA under analogous provisions in 
the Sarbanes-Oxley Act need not conform to federal court pleading 
standards). Rather, the complaint filed with OSHA under this section 
simply alerts the agency to the existence of the alleged retaliation 
and the complainant's desire that the agency investigate the complaint. 
Upon the filing of a complaint with OSHA, the Assistant Secretary is to 
determine whether ``the complaint, supplemented as appropriate by 
interviews of the complainant'' alleges ``the existence of facts and 
evidence to make a prima facie showing.'' 29 CFR 1983.104(e). As 
explained in section 1983.104(e), if the complaint, supplemented as 
appropriate, contains a prima facie allegation, and the respondent does 
not show clear and convincing evidence that it would have taken the 
same action in the absence of the alleged protected activity, OSHA 
conducts an investigation to determine whether there is reasonable 
cause to believe that retaliation has occurred. See 15 U.S.C. 
2087(b)(2), 29 CFR 1983.104(e).
    GAP expressed support for sections 1983.103(b) (nature of filing) 
and (d) (time for filing) and commented that these sections improved 
protection for whistleblowers. GAP also asked that the text of section 
1983.103(d) clarify that the 180-day statute of limitations for filing 
a complaint under CPSIA does not begin to run until an employee becomes 
aware of an alleged discriminatory act. Consistent with the rules under 
other whistleblower statutes administered by the agency, OSHA has 
clarified in section 1983.103(d) that the statute of limitations under 
CPSIA may be tolled for reasons warranted by applicable case law and 
made other minor clarifying changes.
Section 1983.104 Investigation
    This section describes the procedures that apply to the 
investigation of complaints under CPSIA. Paragraph (a) of this section 
outlines the procedures for notifying the parties and the Consumer 
Product Safety Commission of the complaint and notifying the respondent 
of its rights under these regulations. Paragraph (b) describes the 
procedures for the respondent to submit its response to the complaint. 
Paragraph (c) specifies that throughout the investigation the agency 
will provide to the complainant (or the complainant's

[[Page 40497]]

legal counsel if the complainant is represented by counsel) a copy of 
respondent's submissions to the agency that are responsive to the 
complainant's whistleblower complaint and the complainant will have an 
opportunity to respond to those submissions. Before providing such 
materials to the complainant, the agency will redact them in accordance 
with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable 
confidentiality laws. Paragraph (d) of this section discusses 
confidentiality of information provided during investigations. 
Paragraph (e) of this section sets forth CPSIA's statutory burdens of 
proof. Paragraph (f) describes the procedures the Assistant Secretary 
will follow prior to the issuance of findings and a preliminary order 
when the Assistant Secretary has reasonable cause to believe that a 
violation has occurred.
    The statute requires that a complainant make an initial prima facie 
showing that protected activity was ``a contributing factor'' in the 
adverse action alleged in the complaint, i.e., that the protected 
activity, alone or in combination with other factors, affected in some 
way the outcome of the employer's decision. The complainant will be 
considered to have met the required burden if the complaint on its 
face, supplemented as appropriate through interviews of the 
complainant, alleges the existence of facts and either direct or 
circumstantial evidence to meet the required showing. The complainant's 
burden may be satisfied, for example, if he or she shows that the 
adverse action took place shortly after protected activity, giving rise 
to the inference that it was a contributing factor in the adverse 
action.
    If the complainant does not make the required prima facie showing, 
the investigation must be discontinued and the complaint dismissed. See 
Trimmer v. U.S. Dep't of Labor, 174 F.3d 1098, 1101 (10th Cir. 1999) 
(noting that the burden-shifting framework of the ERA, which is the 
same as that under CPSIA, serves a ``gatekeeping function'' that 
``stem[s] frivolous complaints''). Even in cases where the complainant 
successfully makes a prima facie showing, the investigation must be 
discontinued if the employer demonstrates, by clear and convincing 
evidence, that it would have taken the same adverse action in the 
absence of the protected activity. Thus, OSHA must dismiss a complaint 
under CPSIA and not investigate (or cease investigating) if either: (1) 
The complainant fails to meet the prima facie showing that protected 
activity was a contributing factor in the adverse action; or (2) the 
employer rebuts that showing by clear and convincing evidence that it 
would have taken the same adverse action absent the protected activity.
    Assuming that an investigation proceeds beyond the gatekeeping 
phase, the statutory burdens of proof require an employee to prove that 
the alleged protected activity was a ``contributing factor'' in the 
alleged adverse action. If the employee proves that the alleged 
protected activity was a contributing factor in the adverse action, the 
employer, to escape liability, must prove by ``clear and convincing 
evidence'' that it would have taken the same action in the absence of 
the protected activity. A contributing factor is ``any factor which, 
alone or in connection with other factors, tends to affect in any way 
the outcome of the decision.'' Marano v. Dep't of Justice, 2 F.3d 1137, 
1140 (Fed. Cir. 1993) (internal quotation marks, emphasis and citation 
omitted) (discussing the Whistleblower Protection Act, 5 U.S.C. 
1221(e)(1)). In proving that protected activity was a contributing 
factor in the adverse action, ``'a complainant need not necessarily 
prove that the respondent's articulated reason was a pretext in order 
to prevail,''' because a complainant alternatively can prevail by 
showing that the respondent's ``'reason, while true, is only one of the 
reasons for its conduct,''' and that another reason was the 
complainant's protected activity. See Klopfenstein v. PCC Flow Techs. 
Holdings, Inc., ARB No. 04-149, 2006 WL 3246904, at *13 (ARB May 31, 
2006) (quoting Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th 
Cir. 2004)) (discussing contributing factor test under the SOX 
whistleblower provision), aff'd sub nom. Klopfenstein v. Admin. Review 
Bd., U.S. Dep't of Labor, 402 F. App'x 936, 2010 WL 4746668 (5th Cir. 
2010).
    CPSIA's burdens of proof do not address the evidentiary standard 
that applies to a complainant's proof that protected activity was a 
contributing factor in an adverse action. CPSIA simply provides that 
the Secretary may find a violation only ``if the complainant 
demonstrates'' that protected activity was a contributing factor in the 
alleged adverse action. See 15 U.S.C. 2087(b)(2)(B)(iii). It is the 
Secretary's position that the complainant must prove by a 
``preponderance of the evidence'' that his or her protected activity 
contributed to the adverse action; otherwise the burden never shifts to 
the employer to establish its defense by ``clear and convincing 
evidence.'' See, e.g., Allen v. Admin. Review Bd., 514 F.3d 468, 475 
n.1 (5th Cir. 2008) (``The term `demonstrates' [under identical 
language in another whistleblower provision] means to prove by a 
preponderance of the evidence.''). Once the complainant establishes 
that the protected activity was a contributing factor in the adverse 
action, the employer can escape liability only by proving by clear and 
convincing evidence that it would have taken the same action even in 
the absence of the prohibited rationale. The ``clear and convincing 
evidence'' standard is a higher burden of proof than a ``preponderance 
of the evidence'' standard.
    NWC and GAP commented on the provisions in section 1983.104. NWC 
suggested that the phrase ``other applicable confidentiality laws'' be 
replaced with more specific language describing the confidentiality 
laws that might apply to a respondent's answer. NWC also suggested that 
OSHA provide a copy of the response to the complainant, and give the 
complainant an opportunity to respond. NWC noted that to conduct a full 
and fair investigation, OSHA needs to obtain the available, responsive 
information from both parties. If one party does not have the 
information submitted by the other, NWC explained, that party cannot 
help the investigation by providing available information to shed light 
on the matter.
    GAP commented that while it was pleased with the provisions in 
Sec.  1983.104 providing copies of respondent's submissions to 
complainants and protecting witness confidentiality, it was concerned 
that the procedures under Sec.  1983.104(f) ``disenfranchise[d] the 
victim, giving only one side of the dispute the chance to participate 
in the most significant step of the process'' and that ``[a]t a 
minimum, this procedural favoritism means there will not be an even 
playing field in the administrative hearing.'' GAP advocated removing 
Sec.  1983.104(f).
    OSHA agrees with NWC and GAP that the input of both parties in the 
investigation is important to ensuring that OSHA reaches the proper 
outcome during its investigation. To that end, in response to the 
comments, the procedures under CPSIA have been revised to contain the 
following safeguards aimed at ensuring that complainants and 
respondents have equal access to information during the course of the 
OSHA investigation:
     Section 1983.104(a) has been revised to more closely 
mirror CPSIA's statutory requirement in 15 U.S.C. 2087(b)(1), that 
after receiving a complaint, the Secretary shall notify the respondent 
of the filing of the complaint, of the allegations contained

[[Page 40498]]

in the complaint, and of the substance of the evidence supporting the 
complaint.
     Section 1983.104(b) of the final rule has been revised to 
implement CPSIA's statutory requirement in 15 U.S.C. 2087(b)(2), that 
after receiving a complaint, the Secretary shall afford the 
complainant, as well as the respondent, the opportunity to submit a 
written response to the complaint, meet with a representative of the 
Secretary and present statements from witnesses;
     Section 1983.104(c) continues to provide that, throughout 
the investigation, the agency will provide the complainant (or the 
complainant's legal counsel if the complainant is represented by 
counsel) a copy of all of respondent's submissions to the agency that 
are responsive to the complainant's whistleblower complaint, redacted 
of confidential information as necessary. The final rule also specifies 
that the complainant will have an opportunity to respond to such 
submissions; and
     Section 1983.104(f) of the final rule provides that the 
complainant will also receive a copy of the materials that must be 
provided to the respondent under that paragraph.
    Regarding NWC's suggestion that OSHA provide more specific 
information about the confidentiality laws that may protect portions of 
the information submitted by a respondent, OSHA anticipates that the 
vast majority of respondent submissions will not be subject to any 
confidentiality laws. However, in addition to the Privacy Act, a 
variety of confidentiality provisions may protect information submitted 
during the course of an investigation. For example, a respondent may 
submit information that the respondent identifies as confidential 
commercial or financial information exempt from disclosure under the 
Freedom of Information Act (FOIA). OSHA's procedures for handling 
information identified as confidential during an investigation are 
explained in OSHA's Whistleblower Investigations Manual available at: 
http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=5061.
    With regard to GAP's comment that Sec.  1983.104(f) should be 
removed, OSHA notes that the purpose of Sec.  1983.104(f) is to ensure 
compliance with the Supreme Court's ruling in Brock v. Roadway Express, 
481 U.S. 252, 264 (1987). In that decision, the Court upheld the facial 
constitutionality of the analogous provisions providing for preliminary 
reinstatement under the Surface Transportation Assistance Act (STAA), 
49 U.S.C. 31105, and the procedures adopted by OSHA to protect the 
respondent's rights under the Due Process Clause of the Fifth 
Amendment, but ruled that the record failed to show that OSHA 
investigators had informed the respondent of the substance of the 
evidence to support reinstatement of the discharged employee. In so 
finding, the Court noted that, although a formal hearing was not 
required before OSHA ordered preliminary reinstatement, ``minimum due 
process for the employer in this context requires notice of the 
employee's allegations, notice of the substance of the relevant 
supporting evidence, an opportunity to submit a written response, and 
an opportunity to meet with the investigator and present statements 
from rebuttal witnesses.'' Roadway Express, 481 U.S. at 264; see 
Bechtel v. Competitive Techs, Inc., 448 F.3d 469, 480-81 (Leval, J. 
concurring in the judgment) (finding OSHA's preliminary reinstatement 
order under SOX unenforceable because the information provided to the 
respondent did not meet the requirements of Roadway Express). Thus, 
OSHA declines to remove the language providing the respondent notice 
and opportunity to respond under Sec.  1983.104(f).
    Nonetheless, while recognizing that the purpose of Sec.  
1983.104(f) is to ensure that the respondent's Due Process rights have 
been met prior to OSHA ordering preliminary reinstatement, OSHA 
appreciates that complainants wish to stay informed regarding their 
case and may continue to have valuable input, even at this late stage 
in the investigation. Thus, under these rules, OSHA will provide 
complainants with a copy of the materials sent to the respondent under 
Sec.  1983.104(f).
    In addition to the revisions noted above, minor changes were made 
as needed in this section to clarify the provision without changing its 
meaning.
Section 1983.105 Issuance of Findings and Preliminary Orders
    This section provides that, on the basis of information obtained in 
the investigation, the Assistant Secretary will issue, within 60 days 
of the filing of a complaint, written findings regarding whether or not 
there is reasonable cause to believe that the complaint has merit. If 
the findings are that there is reasonable cause to believe that the 
complaint has merit, the Assistant Secretary will order appropriate 
relief, including preliminary reinstatement, affirmative action to 
abate the violation, back pay with interest, and compensatory damages. 
To reflect the agency's current practice, wherein a preliminary order 
that includes compensation will include, where appropriate, back pay 
and interest, the phrase ``and interest'' was added to this section.
    In ordering interest on back pay under CPSIA, the Secretary has 
determined that interest due will be computed by compounding daily the 
Internal Revenue Service interest rate for the underpayment of taxes, 
which under 26 U.S.C. 6621, is generally the Federal short-term rate 
plus three percentage points. The Secretary believes that daily 
compounding of interest achieves the make-whole purpose of a back pay 
award. Daily compounding of interest has become the norm in private 
lending and recently was found to be the most appropriate method of 
calculating interest on back pay by the National Labor Relations Board. 
See Jackson Hosp. Corp. v. United Steel, Paper & Forestry, Rubber, 
Mfg., Energy, Allied Indus. & Serv. Workers Int'l Union, 356 NLRB No. 
8, 2010 WL 4318371, at *3-4 (NLRB Oct. 22, 2010). Additionally, 
interest on tax underpayments under the Internal Revenue Code, 26 
U.S.C. 6621, is compounded daily pursuant to 26 U.S.C. 6622(a).
    The findings and, where appropriate, preliminary order, advise the 
parties of their right to file objections to the findings of the 
Assistant Secretary and to request a hearing. The findings and, where 
appropriate, preliminary order, also advise the respondent of the right 
to request an award of attorney's fees not exceeding $1,000 from the 
ALJ, regardless of whether the respondent has filed objections, if the 
respondent alleges that the complaint was frivolous or brought in bad 
faith. If no objections are filed within 30 days of receipt of the 
findings, the findings and any preliminary order of the Assistant 
Secretary become the final decision and order of the Secretary. If 
objections are timely filed, any order of preliminary reinstatement 
will take effect, but the remaining provisions of the order will not 
take effect until administrative proceedings are completed.
    In appropriate circumstances, in lieu of preliminary reinstatement, 
OSHA may order that the complainant receive the same pay and benefits 
that he or she received prior to his termination, but not actually 
return to work. Such ``economic reinstatement'' is akin to an order for 
front pay and frequently is employed in cases arising under Section 
105(c) of the Federal Mine Safety and Health Act of 1977, which 
protects miners from retaliation. 30 U.S.C. 815(c); See, e.g., Sec'y of 
Labor ex rel of York v. BR&D Enters., Inc., 23 FMSHRC 697, 2001 WL 
1806020, at *1 (FMSHRC June 26, 2001). Front pay has been recognized as 
a possible remedy in cases

[[Page 40499]]

under the whistleblower statutes enforced by OSHA in circumstances 
where reinstatement would not be appropriate. See, e.g., Moder v. Vill. 
of Jackson, ARB Nos. 01-095, 02-039, 2003 WL 21499864, at *10 (ARB June 
30, 2003) (under environmental whistleblower statutes, ``front pay may 
be an appropriate substitute when the parties prove the impossibility 
of a productive and amicable working relationship, or the company no 
longer has a position for which the complainant is qualified.''); Hobby 
v. Georgia Power Co., ARB No. 98-166, ALJ No. 1990-ERA-30 (ARB Feb. 9, 
2001), aff'd sub nom. Hobby v. U.S. Dep't of Labor, No. 01-10916 (11th 
Cir. Sept. 30, 2002) (unpublished) (noting circumstances where front 
pay may be available in lieu of reinstatement but ordering 
reinstatement); Doyle v. Hydro Nuclear Servs., ARB Nos. 99-041, 99-042, 
00-012, 1996 WL 518592, at *6 (ARB Sept. 6, 1996) (under ERA, front pay 
appropriate where employer had eliminated the employee's position); 
Michaud v. BSP Transport, Inc., ARB Nos. 97-113, 1997 WL 626849, at *4 
(ARB Oct. 9, 1997) (under STAA, front pay appropriate where employee 
was unable to work due to major depression resulting from the 
retaliation); Brown v. Lockheed Martin Corp., ALJ No. 2008-SOX-49, 2010 
WL 2054426, at *55-56 (ALJ Jan. 15, 2010) (noting that while 
reinstatement is the ``presumptive remedy'' under Sarbanes-Oxley, front 
pay may be awarded as a substitute when reinstatement is 
inappropriate). Congress intended that employees be preliminarily 
reinstated to their positions if OSHA finds reasonable cause to believe 
that they were discharged in violation of CPSIA. When a violation is 
found, the norm is for OSHA to order immediate preliminary 
reinstatement. Neither an employer nor an employee has a statutory 
right to choose economic reinstatement. Rather, economic reinstatement 
is designed to accommodate situations in which evidence establishes to 
OSHA's satisfaction that reinstatement is inadvisable for some reason, 
notwithstanding the employer's retaliatory discharge of the employee. 
In such situations, actual reinstatement might be delayed until after 
the administrative adjudication is completed as long as the employee 
continues to receive his or her pay and benefits and is not otherwise 
disadvantaged by a delay in reinstatement. There is no statutory basis 
for allowing the employer to recover the costs of economically 
reinstating an employee should the employer ultimately prevail in the 
whistleblower adjudication. No comments were received on this section. 
In addition to the revisions noted above, which clarify the provision 
of interest on back pay awards, minor changes were made as needed to 
clarify the provision without changing its meaning.

Subpart B--Litigation

Section 1983.106 Objections to the Findings and the Preliminary Order 
and Requests for a Hearing
    To be effective, objections to the findings of the Assistant 
Secretary must be in writing and must be filed with the Chief 
Administrative Law Judge, U.S. Department of Labor, within 30 days of 
receipt of the findings. The date of the postmark, facsimile 
transmittal, or electronic communication transmittal is considered the 
date of the filing; if the objection is filed in person, by hand-
delivery or other means, the objection is filed upon receipt. The 
filing of objections also is considered a request for a hearing before 
an ALJ. Although the parties are directed to serve a copy of their 
objections on the other parties of record, as well as the OSHA official 
who issued the findings and order, the Assistant Secretary, and the 
U.S. Department of Labor's Associate Solicitor for Fair Labor 
Standards, the failure to serve copies of the objections on the other 
parties of record does not affect the ALJ's jurisdiction to hear and 
decide the merits of the case. See Shirani v. Calvert Cliffs Nuclear 
Power Plant, Inc., ARB No. 04-101, 2005 WL 2865915, at *7 (ARB Oct. 31, 
2005).
    The timely filing of objections stays all provisions of the 
preliminary order, except for the portion requiring reinstatement. A 
respondent may file a motion to stay OSHA's preliminary order of 
reinstatement with the Office of Administrative Law Judges. However, 
such a motion will be granted only based on exceptional circumstances. 
Language was added to paragraph (b) of this section to make this point 
clear. The Secretary believes that a stay of the Assistant Secretary's 
preliminary order of reinstatement under CPSIA would be appropriate 
only where the respondent can establish the necessary criteria for 
equitable injunctive relief, i.e., irreparable injury, likelihood of 
success on the merits, a balancing of possible harms to the parties, 
and the public interest favors a stay. If no timely objection to OSHA's 
findings and/or preliminary order is filed, then OSHA's findings and/or 
preliminary order become the final decision of the Secretary not 
subject to judicial review.
    No comments were received on this section. The term ``electronic 
communication transmittal'' was substituted for ``email communication'' 
and other minor changes were made as needed to clarify the provision 
without changing its meaning.
Section 1983.107 Hearings
    This section adopts the rules of practice and procedure for 
administrative hearings before the Office of Administrative Law Judges 
at 29 CFR part 18 subpart A. It specifically provides for hearings to 
be consolidated where both the complainant and respondent object to the 
findings and/or order of the Assistant Secretary. This section further 
provides that the hearing is to commence expeditiously, except upon a 
showing of good cause or unless otherwise agreed to by the parties. 
Hearings will be conducted de novo, on the record.
    In a revision from the interim final rule, paragraph (b) now notes 
the broad authority of ALJs to limit discovery in order to expedite the 
hearing. This change was made for consistency with OSHA's rules under 
other whistleblower statutes, which similarly note that the ALJ has 
broad authority to limit discovery. See, e.g., 29 CFR 1979.107 
(regulations under the Wendell H. Ford Aviation Investment and Reform 
Act for the 21st Century (AIR21)); 29 CFR 1980.107 (SOX). As with other 
whistleblower statutes administered by OSHA, CPSIA dictates that 
hearings ``shall be conducted expeditiously'' and allows complainants 
to seek de novo review of the complaint in federal court if the 
Secretary has not issued a final decision within 210 days after the 
filing of the complaint, or within 90 days after receiving a written 
determination. See 15 U.S.C. 2087(b)(2) and (4). The ALJ's broad 
discretion to limit discovery, for example by limiting the number of 
interrogatories, requests for production of documents, or depositions 
allowed, furthers Congress' intent to provide for expeditious hearings 
under CPSIA.
    Finally, this section has been revised to add paragraph (d), which 
specifies that the formal rules of evidence will not apply to 
proceedings before an ALJ under Sec.  1983.107, but rules or principles 
designed to assure the production of the most probative evidence will 
be applied. The Department has taken the same approach under the other 
whistleblower statutes administered by OSHA. See, e.g., 29 CFR 1979.107 
(AIR21); 29 CFR 1980.107 (SOX). This approach is also consistent with 
the Administrative Procedure Act, which provides: ``Any oral or 
documentary

[[Page 40500]]

evidence may be received, but the agency as a matter of policy shall 
provide for the exclusion of irrelevant, immaterial, or unduly 
repetitious evidence * * *'' 5 U.S.C. 556(d); see also Fed. Trade 
Comm'n v. Cement Inst., 333 U.S. 683, 805-06 (1948) (administrative 
agencies not restricted by rigid rules of evidence). The Department 
believes that it is inappropriate to apply the rules of evidence at 29 
CFR part 18 subpart B because whistleblowers often appear pro se and 
may be disadvantaged by strict adherence to formal rules of evidence. 
Furthermore, hearsay evidence is often appropriate in whistleblower 
cases, as there often are no relevant documents or witnesses other than 
hearsay to prove discriminatory intent. ALJs have the responsibility to 
determine the appropriate weight to be given such evidence. For these 
reasons, the interests of determining all of the relevant facts are 
best served by not requiring strict evidentiary rules. No comments were 
received on this section, but, as explained above, this section was 
revised to specify that the formal rules of evidence will not apply to 
proceedings before an ALJ under this section.
Section 1983.108 Role of Federal Agencies
    The Assistant Secretary, at his or her discretion, may participate 
as a party or amicus curiae at any time in the administrative 
proceedings under CPSIA. For example, the Assistant Secretary may 
exercise his or her discretion to prosecute the case in the 
administrative proceeding before an ALJ; petition for review of a 
decision of an ALJ, including a decision based on a settlement 
agreement between the complainant and the respondent, regardless of 
whether the Assistant Secretary participated before the ALJ; or 
participate as amicus curiae before the ALJ or in the ARB proceeding. 
Although OSHA anticipates that ordinarily the Assistant Secretary will 
not participate, the Assistant Secretary may choose to do so in 
appropriate cases, such as cases involving important or novel legal 
issues, large numbers of employees, alleged violations that appear 
egregious, or where the interests of justice might require 
participation by the Assistant Secretary. The Consumer Product Safety 
Commission, if interested in a proceeding, also may participate as 
amicus curiae at any time in the proceedings. No comments were received 
on this section; however, it has been revised to specify that documents 
need not be sent to the Assistant Secretary or the Department of 
Labor's Associate Solicitor for Fair Labor Standards unless the 
Assistant Secretary requests that documents be sent, the Assistant 
Secretary is participating in the proceeding, or service on the 
Assistant Secretary is otherwise required by these rules. Other minor 
changes were made as needed to clarify the provision without changing 
its meaning.
Section 1983.109 Decision and Orders of the Administrative Law Judge
    This section sets forth the requirements for the content of the 
decision and order of the ALJ, and includes the standard for finding a 
violation under CPSIA. The section further provides that the Assistant 
Secretary's determination to dismiss the complaint without an 
investigation or without a complete investigation pursuant to Sec.  
1983.104 is not subject to review. Thus, paragraph (c) of Sec.  
1983.109 clarifies that the Assistant Secretary's determinations on 
whether to proceed with an investigation under CPSIA and whether to 
make particular investigative findings are discretionary decisions not 
subject to review by the ALJ. The ALJ hears cases de novo and, 
therefore, as a general matter, may not remand cases to the Assistant 
Secretary to conduct an investigation or make further factual findings. 
A full discussion of the burdens of proof used by the Department of 
Labor to resolve whistleblower cases under this part is described above 
in the discussion of Sec.  1983.104. Paragraph (d) notes the remedies 
that the ALJ may order under CPSIA and, as discussed under Sec.  
1983.105 above, provides that interest on back pay will be calculated 
using the interest rate applicable to underpayment of taxes under 26 
U.S.C. 6621, and will be compounded daily. Paragraph (e) requires that 
the ALJ's decision be served on all parties to the proceeding, the 
Assistant Secretary, and the U.S. Department of Labor's Associate 
Solicitor for Fair Labor Standards. Paragraph (e) also provides that 
any ALJ decision requiring reinstatement or lifting an order of 
reinstatement by the Assistant Secretary will be effective immediately 
upon receipt of the decision by the respondent. All other portions of 
the ALJ's order will be effective 14 days after the date of the 
decision unless a timely petition for review has been filed with the 
ARB.
    No comments were received on this section. However, minor 
modifications were made to the description of the remedies available 
under CPSIA in this paragraph to more closely match the language 
regarding remedies in the statute and the description of the remedies 
in Sec.  1983.105(a)(1). The statement that the decision of the ALJ 
will become the final order of the Secretary unless a petition for 
review is timely filed with the ARB and the ARB accepts the petition 
for review was deleted from Sec.  1983.110(a) and moved to paragraph 
(e) of this section. Additionally, OSHA has revised the period for 
filing a timely petition for review with the ARB to 14 days rather than 
10 business days. With this change, the final rule expresses the time 
for a petition for review in a way that is consistent with the other 
deadlines for filings before the ALJs and the ARB in the rule, which 
are also expressed in days rather than business days. This change also 
makes the final rule congruent with the 2009 amendments to Rule 6(a) of 
the Federal Rules of Civil Procedure and Rule 26(a) of the Federal 
Rules of Appellate Procedure, which govern computation of time before 
those tribunals and express filing deadlines as days rather than 
business days. Accordingly, the ALJ's order will become the final order 
of the Secretary 14 days after the date of the decision, rather than 
after 10 business days, unless a timely petition for review is filed. 
As a practical matter, this revision does not substantively alter the 
window of time for filing a petition for review before the ALJ's order 
becomes final.
Section 1983.110 Decision and Orders of the Administrative Review Board
    Upon the issuance of the ALJ's decision, the parties have 14 days 
within which to petition the ARB for review of that decision. If no 
timely petition for review is filed with the ARB, the decision of the 
ALJ becomes the final decision of the Secretary and is not subject to 
judicial review. The date of the postmark, facsimile transmittal, or 
electronic communication transmittal is considered the date of filing 
of the petition; if the petition is filed in person, by hand-delivery 
or other means, the petition is considered filed upon receipt.
    The appeal provisions in this part provide that an appeal to the 
ARB is not a matter of right but is accepted at the discretion of the 
ARB. The parties should identify in their petitions for review the 
legal conclusions or orders to which they object, or the objections may 
be deemed waived. The ARB has 30 days to decide whether to grant the 
petition for review. If the ARB does not grant the petition, the 
decision of the ALJ becomes the final decision of the Secretary. If a 
timely petition for review is filed with the ARB, any relief ordered

[[Page 40501]]

by the ALJ, except for that portion ordering reinstatement, is 
inoperative while the matter is pending before the ARB. When the ARB 
accepts a petition for review, the ALJ's factual determinations will be 
reviewed under the substantial evidence standard. In order to be 
consistent with the practices and procedures followed in OSHA's other 
whistleblower programs, and to provide further clarification of the 
regulatory text, OSHA has modified the language of 1983.110(c), to 
clarify when the ALJ proceedings conclude and when the final decision 
of the ARB will be issued.
    This section also provides that, based on exceptional 
circumstances, the ARB may grant a motion to stay an ALJ's preliminary 
order of reinstatement under CPSIA, which otherwise would be effective, 
while review is conducted by the ARB. The Secretary believes that a 
stay of an ALJ's preliminary order of reinstatement under CPSIA would 
be appropriate only where the respondent can establish the necessary 
criteria for equitable injunctive relief, i.e., irreparable injury, 
likelihood of success on the merits, a balancing of possible harms to 
the parties, and the public interest favors a stay.
    If the ARB concludes that the respondent has violated the law, it 
will issue a final order providing relief to the complainant. The final 
order will require, where appropriate: Affirmative action to abate the 
violation; reinstatement of the complainant to his or her former 
position, together with the compensation (including back pay and 
interest), terms, conditions, and privileges of the complainant's 
employment; and payment of compensatory damages, including, at the 
request of the complainant, the aggregate amount of all costs and 
expenses (including attorney's and expert witness fees) reasonably 
incurred. Interest on back pay will be calculated using the interest 
rate applicable to underpayment of taxes under 26 U.S.C. 6621, and will 
be compounded daily. If the ARB determines that the respondent has not 
violated the law, an order will be issued denying the complaint. If, 
upon the request of the respondent, the ARB determines that a complaint 
was frivolous or was brought in bad faith, the ARB may award to the 
respondent a reasonable attorney's fee, not exceeding $1,000.
    With regard to section 1983.110(a), NWC urged deletion of the 
provision in the interim final rule that ``[a]ny exception not 
specifically urged will ordinarily be deemed waived by the parties.'' 
NWC commented that parties should be allowed to add additional grounds 
for review in subsequent briefs and that allowing parties to do so 
would further the goal of deciding cases on the merits. OSHA's 
inclusion of this provision is not intended to limit the circumstances 
in which parties can add additional grounds for review as a case 
progresses before the ARB; rather, the rules include this provision to 
put the public on notice of the possible consequences of failing to 
specify the basis of an appeal to the ARB. OSHA recognizes that while 
the ARB has held in some instances that an exception not specifically 
urged may be deemed waived, the ARB also has found that the rules 
provide for exceptions to this general rule. See, e.g., Furland v. 
American Airlines, Inc., ARB Nos. 09-102, 10-130, 2011 WL 3413364, at 
*7, n.5 (ARB July 27, 2011), petition for review filed, (11th Cir. Oct. 
3, 2011) (No. 11-14419-C) (where complainant consistently made an 
argument throughout the administrative proceedings the argument was not 
waived simply because it appeared in complainant's reply brief to the 
ARB rather than in the petition for review); Avlon v. American Express 
Co., ARB No. 09-089, 2011 WL 4915756, at *4, *5 n.1 (ARB Sept. 14, 
2011) (consideration of an argument not specifically raised in 
complainant's petition for review is within the authority of the ARB, 
and parallel provisions in the SOX whistleblower regulations do not 
mandate the ARB limit its review to ALJ conclusions assigned as error 
in the petition for review). However, recognizing that the interim 
final rule may have suggested too stringent a standard, OSHA has 
replaced the phrase ``ordinarily will'' with ``may.''
    NWC also suggested that the review period be extended from 10 
business days to 30 days to make this section parallel to the provision 
in Sec.  1983.105(c), which allows for 30 days within which to file an 
objection. OSHA declines to extend the review period to 30 days because 
the shorter review period is consistent with the practices and 
procedures followed in OSHA's other whistleblower programs. 
Furthermore, parties may file a motion for extension of time to appeal 
an ALJ's decision, and the ARB has discretion to grant such extensions. 
However, as explained above, OSHA has revised the period to petition 
for review of an ALJ decision to 14 days rather than 10 business days. 
As a practical matter, this revision does not substantively alter the 
window of time for filing a petition for review before the ALJ's order 
becomes final.
    Similarly, section 1983.110(c), which provides that the ARB will 
issue a final decision within 120 days of the conclusion of the ALJ 
hearing, was similarly revised to state that the conclusion of the ALJ 
hearing will be deemed to be 14 days after the date of the decision of 
the ALJ, rather than after 10 business days, unless a motion for 
reconsideration has been filed with the ALJ in the interim. Like the 
revision to section 1983.110(a), this revision does not substantively 
alter the length of time before the ALJ hearing will be deemed to have 
been concluded.
    In addition to the changes noted above, OSHA has revised this 
section slightly to clarify that interest on back pay awards will be 
compounded daily and to make several minor changes to clarify the 
provision and more closely mirror the language used in the statute.

Subpart C--Miscellaneous Provisions

Section 1983.111 Withdrawal of Complaints, Findings, Objections, and 
Petitions for Review; Settlement
    This section provides the procedures and time periods for 
withdrawal of complaints, the withdrawal of findings and/or preliminary 
orders by the Assistant Secretary, and the withdrawal of objections to 
findings and/or orders. It also provides for approval of settlements at 
the investigative and adjudicative stages of the case. No comments were 
received on this section.
    The final rule adopts a revision to Sec.  1983.111(a) that permits 
complainants to withdraw their complaints orally. In such 
circumstances, OSHA will, in writing, confirm a complainant's desire to 
withdraw. This revision will reduce burdens on complainants who no 
longer want to pursue their claims. Other minor changes were made as 
needed to clarify the provision without changing its meaning.
Section 1983.112 Judicial Review
    This section describes the statutory provisions for judicial review 
of decisions of the Secretary and requires, in cases where judicial 
review is sought, the ALJ or the ARB to submit the record of 
proceedings to the appropriate court pursuant to the rules of such 
court. No comments were received on this section.
Section 1983.113 Judicial Enforcement
    This section describes the Secretary's authority under CPSIA to 
obtain judicial enforcement of orders and the terms of settlement 
agreements. CPSIA expressly authorizes district courts to enforce 
orders, including preliminary orders of reinstatement, issued by the 
Secretary under 15 U.S.C. 2087(b)(6). ``Whenever

[[Page 40502]]

any person has failed to comply with an order issued under paragraph 
(3), the Secretary may file a civil action in the United States 
district court for the district in which the violation was found to 
occur, or in the United States district court for the District of 
Columbia, to enforce such order.'' Specifically, reinstatement orders 
issued at the close of OSHA's investigation under 15 U.S.C. 
2087(b)(2)(A) are immediately enforceable in district court pursuant to 
15 U.S.C. 2087(b)(6) and (7). Section 2087(b)(3)(B)(ii) provides that 
the Secretary shall order the person who has committed a violation to 
reinstate the complainant to his or her former position. Section 
2087(b)(2)(A) instructs the Secretary to accompany any reasonable cause 
finding that a violation occurred with a preliminary order containing 
the relief prescribed by subsection (b)(3)(B), which includes 
reinstatement where appropriate, and provides that any preliminary 
order of reinstatement shall not be stayed upon the filing of 
objections. See 15 U.S.C. 2087(b)(2)(A) (``The filing of such 
objections shall not operate to stay any reinstatement remedy contained 
in the preliminary order.''). Thus, under the statute, enforceable 
orders include preliminary orders that contain the relief of 
reinstatement prescribed by subsection (b)(3)(B). This statutory 
interpretation is consistent with the Secretary's interpretation of 
similar language in AIR21 and SOX. See Brief for the Intervenor/
Plaintiff-Appellee Secretary of Labor, Solis v. Tenn. Commerce Bancorp, 
Inc., No. 10-5602 (6th Cir. 2010); Solis v. Tenn. Commerce Bancorp, 
Inc., 713 F. Supp. 2d 701 (M.D. Tenn. 2010); But see Bechtel, 448 F.3d 
469; Welch v. Cardinal Bankshares Corp., 454 F. Supp. 2d 552 (W.D. Va. 
2006) (decision vacated, appeal dismissed, No. 06-2295 (4th Cir. Feb. 
20, 2008)). CPSIA also permits the person on whose behalf the order was 
issued to obtain judicial enforcement of the order. See 15 U.S.C. 
2087(b)(7). No comments were received on this section. The final rule 
simplifies language in the first sentence and adds a sentence noting 
that, in accordance with the statute, 15 U.S.C. 2087(b)(6), the 
Secretary may file civil actions seeking enforcement of orders in the 
United States District Court for the District of Columbia as well as in 
the district court for the district in which the violation occurred.
Section 1983.114 District Court Jurisdiction of Retaliation Complaints
    This section sets forth provisions that allow a complainant to 
bring an original de novo action in district court under certain 
circumstances. OSHA has revised paragraph (a) of this section to more 
clearly explain the circumstances in which the complainant may file a 
complaint in district court and to incorporate the statutory provision 
allowing a jury trial at the request of either party in a district 
court action under CPSIA.
    Under CPSIA, a complainant may bring an original de novo action in 
district court alleging the same allegations contained in the complaint 
filed with OSHA, if there has been no final decision of the Secretary 
within 210 days of the filing of the complaint, or within 90 days after 
receiving a written determination. ``Written determination'' refers to 
the Assistant Secretary's written findings under Sec.  1983.105(a). See 
15 U.S.C. 2087(b)(4). The Secretary's final decision is generally the 
decision of the ARB issued under Sec.  1983.110. In other words, a 
complainant may file an action for de novo review in the appropriate 
district court in either of the following two circumstances: (1) A 
complainant may file a de novo action in district court within 90 days 
of receiving the Assistant Secretary's written findings issued under 
Sec.  1983.105(a), or (2) a complainant may file a de novo action in 
district court if more than 210 days have passed since the filing of 
the complaint and the Secretary has not issued a final decision. The 
plain language of 15 U.S.C. 2087(b)(4), by distinguishing between 
actions that can be brought if the Secretary has not issued a ``final 
decision'' within 210 days and actions that can be brought within 90 
days after a ``written determination,'' supports allowing de novo 
actions in district court under either of the circumstances described 
above.
    However, it is the Secretary's position that complainants may not 
initiate an action in federal court after the Secretary issues a final 
decision, even if the date of the final decision is more than 210 days 
after the filing of the complaint or within 90 days of the 
complainant's receipt of the Assistant Secretary's written findings. 
The purpose of the ``kick-out'' provision is to aid the complainant in 
receiving a prompt decision. That goal is not implicated in a situation 
where the complainant already has received a final decision from the 
Secretary. In addition, permitting the complainant to file a new case 
in district court in such circumstances could conflict with the 
parties' rights to seek judicial review of the Secretary's final 
decision in the court of appeals. See 15 U.S.C. 2087(b)(5)(B) 
(providing that an order with respect to which review could have been 
obtained in [the court of appeals] shall not be subject to judicial 
review in any criminal or other civil proceeding).
    Under CPSIA, the Assistant Secretary's written findings become the 
final decision of the Secretary, not subject to judicial review, if no 
objection is filed within 30 days. 15 U.S.C. 2087(b)(2). Thus, a 
complainant may need to file timely objections to the Assistant 
Secretary's findings in order to preserve the right to file an action 
in district court.
    In paragraph (b) of this section, OSHA eliminated the requirement 
in the interim final rule that complainants provide the agency 15 days 
advance notice before filing a de novo complaint in district court. 
Instead, this section now provides that within seven days after filing 
a complaint in district court, a complainant must provide a file-
stamped copy of the complaint to the Assistant Secretary, the ALJ, or 
the ARB, depending on where the proceeding is pending. A copy of the 
district court complaint also must be provided to the OSHA official who 
issued the findings and/or preliminary order, the Assistant Secretary, 
Occupational Safety and Health Administration, and the U.S. Department 
of Labor's Associate Solicitor for Fair Labor Standards. This provision 
is necessary to notify the agency that the complainant has opted to 
file a complaint in district court. This provision is not a substitute 
for the complainant's compliance with the requirements for service of 
process of the district court complaint contained in the Federal Rules 
of Civil Procedure and the local rules of the district court where the 
complaint is filed.
    This change responds to NWC's comment that the 15-day advance 
notice requirement for filing in suit in district court should be 
eliminated because it inhibits complainants' access to federal courts. 
OSHA believes that a provision for notifying the agency of the district 
court complaint is necessary to avoid unnecessary expenditure of agency 
resources once a complainant has decided to remove the complaint to 
federal district court. OSHA believes that the revised provision 
adequately balances the complainant's interest in ready access to 
federal court and the agency's interest in receiving prompt notice that 
the complainant no longer wishes to continue with the administrative 
proceeding.

[[Page 40503]]

Section 1983.115 Special Circumstances; Waiver of Rules
    This section provides that in circumstances not contemplated by 
these rules or for good cause the ALJ or the ARB may, upon application 
and notice to the parties, waive any rule as justice or the 
administration of CPSIA requires. No comments were received on this 
section and no changes have been made to it.

IV. Paperwork Reduction Act

    This rule contains a reporting provision (filing a retaliation 
complaint, Sec.  1983.103) which was previously reviewed and approved 
for use by the Office of Management and Budget (OMB), under the 
provisions of the Paperwork Reduction Act of 1995, Public Law 104-13, 
109 Stat. 163 (1995). The assigned OMB control number is 1218-0236.

V. Administrative Procedure Act

    This is a rule of agency procedure and practice within the meaning 
of section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 
553(b)(A). Therefore, publication in the Federal Register of a notice 
of proposed rulemaking and request for comments was not required for 
these regulations, which provide procedures for the handling of 
retaliation complaints. The Assistant Secretary, however, sought and 
considered comments to enable the agency to improve the rules by taking 
into account the concerns of interested persons.
    Furthermore, because this rule is procedural rather than 
substantive, the normal requirement of 5 U.S.C. 553(d), that a rule be 
effective 30 days after publication in the Federal Register, is 
inapplicable. The Assistant Secretary also finds good cause to provide 
an immediate effective date for this rule. It is in the public interest 
that the rule be effective immediately so that parties may know what 
procedures are applicable to pending cases.

VI. Executive Orders 12866 and 13563; Unfunded Mandates Reform Act of 
1995; Small Business Regulatory Enforcement Fairness Act of 1996; 
Executive Order 13132

    The Department has concluded that this rule is not a ``significant 
regulatory action'' within the meaning of Executive Order 12866, as 
reaffirmed by Executive Order 13563, because it is not likely to result 
in a rule that may: (1) Have an annual effect on the economy of $100 
million or more or adversely affect in a material way the economy, a 
sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or Tribal 
governments or communities; (2) create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
Executive Order 12866. Therefore, no regulatory impact analysis has 
been prepared.
    Because this rulemaking is procedural in nature it is not expected 
to have a significant economic impact; therefore no statement is 
required under Section 202 of the Unfunded Mandates Reform Act of 1995. 
Furthermore, because this is a rule of agency procedure or practice, it 
is not a ``rule'' within the meaning of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (5 U.S.C. 804(3)(C)), and does not 
require congressional review. Finally, this rule does not have 
``federalism implications.'' The rule does not have ``substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government'' and therefore 
is not subject to Executive Order 13132 (Federalism).

VII. Regulatory Flexibility Analysis

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

VIII. List of Subjects in 29 CFR Part 1983

    Administrative practice and procedure, Employment, Consumer 
protection, Investigations, Reporting and recordkeeping requirements, 
Whistleblower.

Authority and Signature

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

David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
    Accordingly, for the reasons set out in the preamble, 29 CFR part 
1983 is revised to read as follows:

PART 1983--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS 
UNDER SECTION 219 OF THE CONSUMER PRODUCT SAFETY IMPROVEMENT ACT OF 
2008

Subpart A--Complaints, Investigations, Findings and Preliminary Orders
Sec.
1983.100 Purpose and scope.
1983.101 Definitions.
1983.102 Obligations and prohibited acts.
1983.103 Filing of retaliation complaint.
1983.104 Investigation.
1983.105 Issuance of findings and preliminary orders.
Subpart B--Litigation
1983.106 Objections to the findings and the preliminary order and 
requests for a hearing.
1983.107 Hearings.
1983.108 Role of Federal agencies.
1983.109 Decision and orders of the administrative law judge.
1983.110 Decision and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
1983.111 Withdrawal of complaints, findings, objections, and 
petitions for review; settlement.
1983.112 Judicial review.
1983.113 Judicial enforcement.
1983.114 District court jurisdiction of retaliation complaints.
1983.115 Special circumstances; waiver of rules.

    Authority: 15 U.S.C. 2087; Secretary's Order 1-2012 (Jan. 18, 
2012), 77 FR 3912 (Jan. 25, 2012); Secretary's Order 1-2010 (Jan. 
15, 2010), 75 FR 3924 (Jan. 25, 2010).

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


Sec.  1983.100  Purpose and scope.

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

[[Page 40504]]

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


Sec.  1983.101  Definitions.

    As used in this part:
    (a) Assistant Secretary means the Assistant Secretary of Labor for 
Occupational Safety and Health or the person or persons to whom he or 
she delegates authority under CPSIA.
    (b) Business days means days other than Saturdays, Sundays, and 
Federal holidays.
    (c) Commission means the Consumer Product Safety Commission.
    (d) Complainant means the employee who filed a CPSIA complaint or 
on whose behalf a complaint was filed.
    (e)(1) Consumer product means any article, or component part 
thereof, produced or distributed:
    (i) For sale to a consumer for use in or around a permanent or 
temporary household or residence, a school, in recreation, or 
otherwise; or
    (ii) For the personal use, consumption or enjoyment of a consumer 
in or around a permanent or temporary household or residence, a school, 
in recreation, or otherwise.
    (iii) The term ``consumer product'' includes any mechanical device 
which carries or conveys passengers along, around, or over a fixed or 
restricted route or course or within a defined area for the purpose of 
giving its passengers amusement, which is customarily controlled or 
directed by an individual who is employed for that purpose and who is 
not a consumer with respect to such device, and which is not 
permanently fixed to a site, but does not include such a device that is 
permanently fixed to a site.
    (2) The term consumer product does not include:
    (i) Any article which is not customarily produced or distributed 
for sale to, or use or consumption by, or enjoyment of, a consumer;
    (ii) Tobacco and tobacco products;
    (iii) Motor vehicles or motor vehicle equipment (as defined by 49 
U.S.C. 30102(a)(6) and (7));
    (iv) Pesticides (as defined by the Federal Insecticide, Fungicide, 
and Rodenticide Act (7 U.S.C. 136 et seq.));
    (v) Any article or any component of any such article which, if sold 
by the manufacturer, producer, or importer, would be subject to the tax 
imposed by 26 U.S.C. 4181;
    (vi) Aircraft, aircraft engines, propellers, or appliances (as 
defined in 49 U.S.C. 40102(a));
    (vii) Boats which could be subjected to safety regulation under 46 
U.S.C. chapter 43; vessels, and appurtenances to vessels (other than 
such boats), which could be subjected to safety regulation under title 
52 of the Revised Statutes or other marine safety statutes administered 
by the department in which the Coast Guard is operating; and equipment 
(including associated equipment, as defined in 46 U.S.C. 2101(1)), to 
the extent that a risk of injury associated with the use of such 
equipment on boats or vessels could be eliminated or reduced by actions 
taken under any statute referred to in this definitional section;
    (viii) Drugs, devices, or cosmetics (as such terms are defined in 
21 U.S.C. 321(g), (h), and (i)); or
    (ix) Food (the term ``food'' means all ``food,'' as defined in 21 
U.S.C. 321(f), including poultry and poultry products (as defined in 21 
U.S.C. 453(e) and (f)), meat, meat food products (as defined in 21 
U.S.C. 601(j)), and eggs and egg products (as defined in 21 U.S.C. 
1033)).
    (f) CPSIA means Section 219 of the Consumer Product Safety 
Improvement Act of 2008, Public Law 110-314, 122 Stat. 3016 (Aug. 14, 
2008) (codified at 15 U.S.C. 2087).
    (g) Distributor means a person to whom a consumer product is 
delivered or sold for purposes of distribution in commerce, except that 
such term does not include a manufacturer or retailer of such product.
    (h) Employee means an individual presently or formerly working for, 
an individual applying to work for, or an individual whose employment 
could be affected by a manufacturer, private labeler, distributor, or 
retailer.
    (i) Manufacturer means any person who manufactures or imports a 
consumer product. A product is manufactured if it is manufactured, 
produced, or assembled.
    (j) OSHA means the Occupational Safety and Health Administration of 
the United States Department of Labor.
    (k) Private labeler means an owner of a brand or trademark on the 
label of a consumer product which bears a private label. A consumer 
product bears a private label if:
    (1) The product (or its container) is labeled with the brand or 
trademark of a person other than a manufacturer of the product,
    (2) The person with whose brand or trademark the product (or 
container) is labeled has authorized or caused the product to be so 
labeled, and
    (3) The brand or trademark of a manufacturer of such product does 
not appear on such label.
    (l) Retailer means a person to whom a consumer product is delivered 
or sold for purposes of sale or distribution by such person to a 
consumer.
    (m) Respondent means the employer named in the complaint who is 
alleged to have violated CPSIA.
    (n) Secretary means the Secretary of Labor or person to whom 
authority under CPSIA has been delegated.
    (o) Any future statutory amendments that affect the definition of a 
term or terms listed in this section will apply in lieu of the 
definition stated herein.


Sec.  1983.102  Obligations and prohibited acts.

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

[[Page 40505]]

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


Sec.  1983.103  Filing of retaliation complaint.

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


Sec.  1983.104  Investigation.

    (a) Upon receipt of a complaint in the investigating office, the 
Assistant Secretary will notify the respondent of the filing of the 
complaint, of the allegations contained in the complaint, and of the 
substance of the evidence supporting the complaint. Such materials will 
be redacted, if necessary, in accordance with the Privacy Act of 1974, 
5 U.S.C. 552a, and other applicable confidentiality laws. The Assistant 
Secretary will also notify the respondent of its rights under 
paragraphs (b) and (f) of this section and Sec.  1983.110(e). The 
Assistant Secretary will provide an unredacted copy of these same 
materials to the complainant (or the complainant's legal counsel if 
complainant is represented by counsel), and to the Consumer Product 
Safety Commission.
    (b) Within 20 days of receipt of the notice of the filing of the 
complaint provided under paragraph (a) of this section, the respondent 
and the complainant each may submit to the Assistant Secretary a 
written statement and any affidavits or documents substantiating its 
position. Within the same 20 days, the respondent and the complainant 
each may request a meeting with the Assistant Secretary to present its 
position.
    (c) Throughout the investigation, the agency will provide to the 
complainant (or the complainant's legal counsel if complainant is 
represented by counsel) a copy of all of respondent's submissions to 
the agency that are responsive to the complainant's whistleblower 
complaint. Before providing such materials to the complainant, the 
agency will redact them, if necessary, in accordance with the Privacy 
Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. 
The agency will also provide the complainant with an opportunity to 
respond to such submissions.
    (d) Investigations will be conducted in a manner that protects the 
confidentiality of any person who provides information on a 
confidential basis, other than the complainant, in accordance with part 
70 of this title.
    (e)(1) A complaint will be dismissed unless the complainant has 
made a prima facie showing that protected activity was a contributing 
factor in the adverse action alleged in the complaint.
    (2) The complaint, supplemented as appropriate by interviews of the 
complainant, must allege the existence of facts and evidence to make a 
prima facie showing as follows:
    (i) The employee engaged in a protected activity;
    (ii) The respondent knew or suspected that the employee engaged in 
the protected activity;
    (iii) The employee suffered an adverse action; and
    (iv) The circumstances were sufficient to raise the inference that 
the protected activity was a contributing factor in the adverse action.
    (3) For purposes of determining whether to investigate, the 
complainant will be considered to have met the required burden if the 
complaint on its face, supplemented as appropriate through interviews 
of the complainant, alleges the existence of facts and either direct or 
circumstantial evidence to meet the required showing, i.e., to give 
rise to an inference that the respondent knew or suspected that the 
employee engaged in protected activity and that the protected activity 
was a contributing factor in the adverse action. The burden may be 
satisfied, for example, if the complaint shows that the adverse action 
took place shortly after the protected activity, giving rise to the 
inference that it was a contributing factor in the adverse action. If 
the required showing has not been made, the complainant (or the 
complainant's legal counsel if complainant is represented by counsel) 
will be so notified and the investigation will not commence.
    (4) Notwithstanding a finding that a complainant has made a prima 
facie showing, as required by this section, an investigation of the 
complaint will not be conducted or will be discontinued if the 
respondent demonstrates by clear and convincing evidence that it would 
have taken the same adverse action in the absence of the complainant's 
protected activity.
    (5) If the respondent fails to make a timely response or fails to 
satisfy the burden set forth in the prior paragraph, the Assistant 
Secretary will proceed with the investigation. The investigation will 
proceed whenever it is necessary or appropriate to confirm or verify 
the information provided by the respondent.
    (f) Prior to the issuance of findings and a preliminary order as 
provided for in Sec.  1983.105, if the Assistant Secretary has 
reasonable cause, on the basis of information gathered under the 
procedures of this part, to believe that the respondent has violated 
CPSIA and that preliminary reinstatement is warranted, the Assistant 
Secretary will again contact the respondent (or the respondent's legal 
counsel if respondent is represented by counsel) to give notice of the 
substance of the relevant evidence supporting the complainant's 
allegations as developed during the course of the investigation. This 
evidence includes any witness statements, which will be redacted to 
protect the identity of confidential informants where statements were 
given in confidence; if the statements cannot

[[Page 40506]]

be redacted without revealing the identity of confidential informants, 
summaries of their contents will be provided. The complainant will also 
receive a copy of the materials that must be provided to the respondent 
under this paragraph. Before providing such materials to the 
complainant, the agency will redact them, if necessary, in accordance 
with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable 
confidentiality laws. The respondent will be given the opportunity to 
submit a written response, to meet with the investigators, to present 
statements from witnesses in support of its position, and to present 
legal and factual arguments. The respondent must present this evidence 
within 10 business days of the Assistant Secretary's notification 
pursuant to this paragraph, or as soon thereafter as the Assistant 
Secretary and the respondent can agree, if the interests of justice so 
require.


Sec.  1983.105  Issuance of findings and preliminary orders.

    (a) After considering all the relevant information collected during 
the investigation, the Assistant Secretary will issue, within 60 days 
of the filing of the complaint, written findings as to whether or not 
there is reasonable cause to believe that the respondent has retaliated 
against the complainant in violation of CPSIA.
    (1) If the Assistant Secretary concludes that there is reasonable 
cause to believe that a violation has occurred, the Assistant Secretary 
will accompany the findings with a preliminary order providing relief 
to the complainant. The preliminary order will require, where 
appropriate: affirmative action to abate the violation; reinstatement 
of the complainant to his or her former position, together with the 
compensation (including back pay and interest), terms, conditions and 
privileges of the complainant's employment; and payment of compensatory 
damages, including, at the request of the complainant, the aggregate 
amount of all costs and expenses (including attorney's and expert 
witness fees) reasonably incurred. Interest on back pay will be 
calculated using the interest rate applicable to underpayment of taxes 
under 26 U.S.C. 6621 and will be compounded daily.
    (2) If the Assistant Secretary concludes that a violation has not 
occurred, the Assistant Secretary will notify the parties of that 
finding.
    (b) The findings and, where appropriate, the preliminary order will 
be sent by certified mail, return receipt requested, to all parties of 
record (and each party's legal counsel if the party is represented by 
counsel). The findings and, where appropriate, the preliminary order 
will inform the parties of the right to object to the findings and/or 
order and to request a hearing, and of the right of the respondent to 
request an award of attorney's fees not exceeding $1,000 from the ALJ, 
regardless of whether the respondent has filed objections, if the 
respondent alleges that the complaint was frivolous or brought in bad 
faith. The findings and, where appropriate, the preliminary order also 
will give the address of the Chief Administrative Law Judge, U.S. 
Department of Labor. At the same time, the Assistant Secretary will 
file with the Chief Administrative Law Judge a copy of the original 
complaint and a copy of the findings and/or order.
    (c) The findings and any preliminary order will be effective 30 
days after receipt by the respondent (or the respondent's legal counsel 
if the respondent is represented by counsel), or on the compliance date 
set forth in the preliminary order, whichever is later, unless an 
objection and/or a request for hearing has been timely filed as 
provided at Sec.  1983.106. However, the portion of any preliminary 
order requiring reinstatement will be effective immediately upon the 
respondent's receipt of the findings and the preliminary order, 
regardless of any objections to the findings and/or the order.

Subpart B--Litigation


Sec.  1983.106  Objections to the findings and the preliminary order 
and requests for a hearing.

    (a) Any party who desires review, including judicial review, of the 
findings and/or preliminary order, or a respondent alleging that the 
complaint was frivolous or brought in bad faith who seeks an award of 
attorney's fees under CPSIA, must file any objections and/or a request 
for a hearing on the record within 30 days of receipt of the findings 
and preliminary order pursuant to Sec.  1983.105. The objections, 
request for a hearing, and/or request for attorney's fees must be in 
writing and state whether the objections are to the findings, the 
preliminary order, and/or whether there should be an award of 
attorney's fees. The date of the postmark, facsimile transmittal, or 
electronic communication transmittal is considered the date of filing; 
if the objection is filed in person, by hand-delivery or other means, 
the objection is filed upon receipt. Objections must be filed with the 
Chief Administrative Law Judge, U.S. Department of Labor, and copies of 
the objections must be mailed at the same time to the other parties of 
record, the OSHA official who issued the findings and order, the 
Assistant Secretary, and the Associate Solicitor, Division of Fair 
Labor Standards, U.S. Department of Labor.
    (b) If a timely objection is filed, all provisions of the 
preliminary order will be stayed, except for the portion requiring 
preliminary reinstatement, which will not be automatically stayed. The 
portion of the preliminary order requiring reinstatement will be 
effective immediately upon the respondent's receipt of the findings and 
preliminary order, regardless of any objections to the order. The 
respondent may file a motion with the Office of Administrative Law 
Judges for a stay of the Assistant Secretary's preliminary order of 
reinstatement, which shall be granted only based on exceptional 
circumstances. If no timely objection is filed with respect to either 
the findings or the preliminary order, the findings and/or the 
preliminary order will become the final decision of the Secretary, not 
subject to judicial review.


Sec.  1983.107  Hearings.

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


Sec.  1983.108  Role of Federal agencies.

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

[[Page 40507]]

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


Sec.  1983.109  Decision and orders of the administrative law judge.

    (a) The decision of the ALJ will contain appropriate findings, 
conclusions, and an order pertaining to the remedies provided in 
paragraph (d) of this section, as appropriate. A determination that a 
violation has occurred may be made only if the complainant has 
demonstrated by a preponderance of the evidence that protected activity 
was a contributing factor in the adverse action alleged in the 
complaint.
    (b) If the complainant has satisfied the burden set forth in the 
prior paragraph, relief may not be ordered if the respondent 
demonstrates by clear and convincing evidence that it would have taken 
the same adverse action in the absence of any protected activity.
    (c) Neither the Assistant Secretary's determination to dismiss a 
complaint without completing an investigation pursuant to Sec.  
1983.104(e) nor the Assistant Secretary's determination to proceed with 
an investigation is subject to review by the ALJ, and a complaint may 
not be remanded for the completion of an investigation or for 
additional findings on the basis that a determination to dismiss was 
made in error. Rather, if there otherwise is jurisdiction, the ALJ will 
hear the case on the merits or dispose of the matter without a hearing 
if the facts and circumstances warrant.
    (d)(1) If the ALJ concludes that the respondent has violated the 
law, the ALJ will issue an order that will require, where appropriate: 
affirmative action to abate the violation; reinstatement of the 
complainant to his or her former position, together with the 
compensation (including back pay and interest), terms, conditions, and 
privileges of the complainant's employment; and payment of compensatory 
damages, including, at the request of the complainant, the aggregate 
amount of all costs and expenses (including attorney's and expert 
witness fees) reasonably incurred. Interest on back pay will be 
calculated using the interest rate applicable to underpayment of taxes 
under 26 U.S.C. 6621 and will be compounded daily.
    (2) If the ALJ determines that the respondent has not violated the 
law, an order will be issued denying the complaint. If, upon the 
request of the respondent, the ALJ determines that a complaint was 
frivolous or was brought in bad faith, the ALJ may award to the 
respondent a reasonable attorney's fee, not exceeding $1,000.
    (e) The decision will be served upon all parties to the proceeding, 
the Assistant Secretary, and the Associate Solicitor, Division of Fair 
Labor Standards, U.S. Department of Labor. Any ALJ's decision requiring 
reinstatement or lifting an order of reinstatement by the Assistant 
Secretary will be effective immediately upon receipt of the decision by 
the respondent. All other portions of the ALJ's order will be effective 
14 days after the date of the decision unless a timely petition for 
review has been filed with the Administrative Review Board (ARB), U.S. 
Department of Labor. The decision of the ALJ will become the final 
order of the Secretary unless a petition for review is timely filed 
with the ARB and the ARB accepts the petition for review.


Sec.  1983.110  Decision and orders of the Administrative Review Board.

    (a) Any party desiring to seek review, including judicial review, 
of a decision of the ALJ, or a respondent alleging that the complaint 
was frivolous or brought in bad faith who seeks an award of attorney's 
fees, must file a written petition for review with the ARB, which has 
been delegated the authority to act for the Secretary and issue final 
decisions under this part. The parties should identify in their 
petitions for review the legal conclusions or orders to which they 
object, or the objections may be deemed waived. A petition must be 
filed within 14 days of the date of the decision of the ALJ. The date 
of the postmark, facsimile transmittal, or electronic communication 
transmittal will be considered to be the date of filing; if the 
petition is filed in person, by hand-delivery or other means, the 
petition is considered filed upon receipt. The petition must be served 
on all parties and on the Chief Administrative Law Judge at the time it 
is filed with the ARB. Copies of the petition for review must be served 
on the Assistant Secretary and on the Associate Solicitor, Division of 
Fair Labor Standards, U.S. Department of Labor.
    (b) If a timely petition for review is filed pursuant to paragraph 
(a) of this section, the decision of the ALJ will become the final 
order of the Secretary unless the ARB, within 30 days of the filing of 
the petition, issues an order notifying the parties that the case has 
been accepted for review. If a case is accepted for review, the 
decision of the ALJ will be inoperative unless and until the ARB issues 
an order adopting the decision, except that any order of reinstatement 
will be effective while review is conducted by the ARB, unless the ARB 
grants a motion by the respondent to stay that order based on 
exceptional circumstances. The ARB will specify the terms under which 
any briefs are to be filed. The ARB will review the factual 
determinations of the ALJ under the substantial evidence standard. If 
no timely petition for review is filed, or the ARB denies review, the 
decision of the ALJ will become the final order of the Secretary. If no 
timely petition for review is filed, the resulting final order is not 
subject to judicial review.
    (c) The final decision of the ARB will be issued within 120 days of 
the conclusion of the hearing, which will be deemed to be 14 days after 
the date of the decision of the ALJ, unless a motion for 
reconsideration has been filed with the ALJ in the interim. In such 
case, the conclusion of the hearing is the date the motion for 
reconsideration is ruled upon or 14 days after a new decision is 
issued. The ARB's final decision will be served upon all parties and 
the Chief Administrative Law Judge by mail. The final decision will 
also be served on the Assistant Secretary and on the Associate 
Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, 
even if the Assistant Secretary is not a party.
    (d) If the ARB concludes that the respondent has violated the law, 
the ARB will issue a final order providing relief to the complainant. 
The final order will require, where appropriate: affirmative action to 
abate the violation;

[[Page 40508]]

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

Subpart C--Miscellaneous Provisions


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

    (a) At any time prior to the filing of objections to the Assistant 
Secretary's findings and/or preliminary order, a complainant may 
withdraw his or her complaint by notifying the Assistant Secretary, 
orally or in writing, of his or her withdrawal. The Assistant Secretary 
then will confirm in writing the complainant's desire to withdraw and 
determine whether to approve the withdrawal. The Assistant Secretary 
will notify the parties (and each party's legal counsel if the party is 
represented by counsel) of the approval of any withdrawal. If the 
complaint is withdrawn because of settlement, the settlement must be 
submitted for approval in accordance with paragraph (d) of this 
section. A complainant may not withdraw his or her complaint after the 
filing of objections to the Assistant Secretary's findings and/or 
preliminary order.
    (b) The Assistant Secretary may withdraw the findings and/or 
preliminary order at any time before the expiration of the 30-day 
objection period described in Sec.  1983.106, provided that no 
objection has been filed yet, and substitute new findings and/or a new 
preliminary order. The date of the receipt of the substituted findings 
or order will begin a new 30-day objection period.
    (c) At any time before the Assistant Secretary's findings and/or 
order become final, a party may withdraw objections to the Assistant 
Secretary's findings and/or order by filing a written withdrawal with 
the ALJ. If the case is on review with the ARB, a party may withdraw a 
petition for review of an ALJ's decision at any time before that 
decision becomes final by filing a written withdrawal with the ARB. The 
ALJ or the ARB, as the case may be, will determine whether to approve 
the withdrawal of the objections or the petition for review. If the ALJ 
approves a request to withdraw objections to the Assistant Secretary's 
findings and/or order, and there are no other pending objections, the 
Assistant Secretary's findings and/or order will become the final order 
of the Secretary. If the ARB approves a request to withdraw a petition 
for review of an ALJ decision, and there are no other pending petitions 
for review of that decision, the ALJ's decision will become the final 
order of the Secretary. If objections or a petition for review are 
withdrawn because of settlement, the settlement must be submitted for 
approval in accordance with paragraph (d) of this section.
    (d)(1) Investigative settlements. At any time after the filing of a 
complaint, and before the findings and/or order are objected to or 
become a final order by operation of law, the case may be settled if 
the Assistant Secretary, the complainant, and the respondent agree to a 
settlement. The Assistant Secretary's approval of a settlement reached 
by the respondent and the complainant demonstrates the Assistant 
Secretary's consent and achieves the consent of all three parties.
    (2) Adjudicatory settlements. At any time after the filing of 
objections to the Assistant Secretary's findings and/or order, the case 
may be settled if the participating parties agree to a settlement and 
the settlement is approved by the ALJ if the case is before the ALJ, or 
by the ARB if the ARB has accepted the case for review. A copy of the 
settlement will be filed with the ALJ or the ARB, as the case may be.
    (e) Any settlement approved by the Assistant Secretary, the ALJ, or 
the ARB will constitute the final order of the Secretary and may be 
enforced in United States district court pursuant to Sec.  1983.113.


Sec.  1983.112  Judicial review.

    (a) Within 60 days after the issuance of a final order under 
Sec. Sec.  1983.109 and 1983.110, any person adversely affected or 
aggrieved by the order may file a petition for review of the order in 
the United States Court of Appeals for the circuit in which the 
violation allegedly occurred or the circuit in which the complainant 
resided on the date of the violation.
    (b) A final order is not subject to judicial review in any criminal 
or other civil proceeding.
    (c) If a timely petition for review is filed, the record of a case, 
including the record of proceedings before the ALJ, will be transmitted 
by the ARB or the ALJ, as the case may be, to the appropriate court 
pursuant to the Federal Rules of Appellate Procedure and the local 
rules of such court.


Sec.  1983.113  Judicial enforcement.

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


Sec.  1983.114  District court jurisdiction of retaliation complaints.

    (a) The complainant may bring an action at law or equity for de 
novo review in the appropriate district court of the United States, 
which will have jurisdiction over such an action without regard to the 
amount in controversy, either:
    (1) Within 90 days after receiving a written determination under 
Sec.  1983.105(a) provided that there has been no final decision of the 
Secretary; or
    (2) If there has been no final decision of the Secretary within 210 
days of the filing of the complaint.
    (3) At the request of either party, the action shall be tried by 
the court with a jury.
    (b) Within seven days after filing a complaint in federal court, a 
complainant must file with the Assistant Secretary, the ALJ, or the 
ARB, depending on where the proceeding is

[[Page 40509]]

pending, a copy of the file-stamped complaint. A copy of the complaint 
also must be served on the OSHA official who issued the findings and/or 
preliminary order, the Assistant Secretary, and the Associate 
Solicitor, Division of Fair Labor Standards, U.S. Department of Labor.


Sec.  1983.115  Special circumstances; waiver of rules.

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

[FR Doc. 2012-16411 Filed 7-9-12; 8:45 am]
BILLING CODE 4510-26-P