Federal Register / Vol. 87, No. 44 / Monday, March 7, 2022 / Rules and Regulations 12575 

routine matter that only affects air traffic 

procedures an air navigation, it is 

certified that this rule, when 

promulgated, does not have a significant 

economic impact on a substantial 

number of small entities under the 

criteria of the Regulatory Flexibility Act. 

Environmental Review 

The FAA has determined that this 

action qualifies for categorical exclusion 

under the National Environmental 

Policy Act in accordance with FAA 

Order JO 1050.1F, ‘‘Environmental 

Impacts: Policies and Procedures,’’ 

paragraph 5–6.5a. This airspace action 

is not expected to cause any potentially 

significant environmental impacts, and 

no extraordinary circumstances exist 

that warrant preparation of an 

environmental assessment. 

Lists of Subjects in 14 CFR Part 71 

Airspace, Incorporation by reference, 

Navigation (air). 

Adoption of the Amendment 

In consideration of the foregoing, the 

Federal Aviation Administration 

amends 14 CFR part 71 as follows: 

PART 71—DESIGNATION OF CLASS A, 

B, C, D, AND E AIRSPACE AREAS; AIR 

TRAFFIC SERVICE ROUTES; AND 

REPORTING POINTS 

■ 1. The authority citation for part 71 

continues to read as follows: 

Authority: 49 U.S.C. 106(f), 106(g); 40103, 

40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 

1959–1963 Comp., p. 389. 

§ 71.1 [Amended] 

■ 2. The incorporation by reference in 

14 CFR 71.1 of FAA Order JO 7400.11F, 

Airspace Designations and Reporting 

Points, dated August 10, 2021, and 

effective September 15, 2021, is 

amended as follows: 

Paragraph 6005 Class E Airspace Areas 

Extending Upward From 700 Feet or More 

Above the Surface of the Earth. 

* * * * * 

ASO GA E5 Griffin, GA [Amended] 

Griffin-Spalding County Airport, GA 

(Lat. 33°13′37′′ N, long. 84°16′30′′ W) 

That airspace extending upward from 700 

feet above the surface within a 8.7-mile 

radius of the Griffin-Spalding County 

Airport, and within 2 miles either side of a 

137° bearing from the airport, extending from 

the 8.7-mile radius to 10.5 miles southeast of 

the airport, and within 2 miles either side of 

a 317° bearing from the airport, extending 

from the 8.7-mile radius to 10.5 miles 

northwest of the airport. 

Issued in College Park, Georgia, on March 

1, 2022. 

Andreese C. Davis, 

Manager, Airspace & Procedures Team South, 

Eastern Service Center, Air Traffic 

Organization. 

[FR Doc. 2022–04707 Filed 3–4–22; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF LABOR 

Occupational Safety and Health 

Administration 

29 CFR Part 1989 

[Docket Number: OSHA–2020–0006] 

RIN 1218–AD27 

Procedures for the Handling of 

Retaliation Complaints Under the 

Taxpayer First Act (TFA) 

AGENCY: Occupational Safety and Health 

Administration, Labor. 

ACTION: Interim final rule; request for 

comments. 

SUMMARY: This document provides the 

interim final text of regulations 

governing the anti-retaliation (employee 

protection or whistleblower) provision 

of the Taxpayer First Act (TFA or the 

Act). This rule establishes procedures 

and timeframes for the handling of 

retaliation complaints under TFA, 

including procedures and timeframes 

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. It also 

sets forth the Secretary’s interpretations 

of the TFA anti-retaliation provision on 

certain matters. 

DATES:

Effective date: This interim final rule 

is effective on March 7, 2022. 

Comments due date: Comments and 

additional materials must be submitted 

(post-marked, sent or received) by May 

6, 2022. 

ADDRESSES: Submit comments by any of 

the following methods: 

Electronically: You may submit 

comments and attachments 

electronically at: https://

www.regulations.gov, which is the 

Federal eRulemaking Portal. Follow the 

instructions online for submitting 

comments. 

Docket: To read or download 

comments or other material in the 

docket, go to http://

www.regulations.gov. Documents in the 

docket are listed in the http://

www.regulations.gov index; however, 

some information (e.g., copyrighted 

material) is not publicly available to 

read or download through the website. 

All submissions, including copyrighted 

material, are available for inspection 

through the OSHA Docket Office. 

Contact the OSHA Docket Office at (202) 

693–2350 (TTY (877) 889–5627) for 

assistance in locating docket 

submissions. 

Instructions: All submissions must 

include the agency name and the OSHA 

docket number for this Federal Register 

notice (OSHA–2020–0006). OSHA will 

place comments and requests to speak, 

including personal information, in the 

public docket, which may be available 

online. Therefore, OSHA cautions 

interested parties about submitting 

personal information such as Social 

Security numbers and birthdates. For 

further information on submitting 

comments, see the ‘‘Public 

Participation’’ heading in the section of 

this notice titled SUPPLEMENTARY

INFORMATION. 

Extension of comment period: Submit 

requests for an extension of the 

comment period on or before March 22, 

2022 to the Directorate of Whistleblower 

Protection Programs, Occupational 

Safety and Health Administration, U.S. 

Department of Labor, 200 Constitution 

Avenue NW, Room N–4618, 

Washington, DC 20210, or by fax to 

(202) 693–2199 or by email to 

OSHA.DWPP@dol.gov. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Meghan Smith, Program Analyst, 

Directorate of Whistleblower Protection 

Programs, Occupational Safety and 

Health Administration, U.S. Department 

of Labor, Room N–4618, 200 

Constitution Avenue NW, Washington, 

DC 20210; telephone (202) 693–2199 

(this is not a toll-free number) or email: 

OSHA.DWPP@dol.gov. This Federal 

Register publication is available in 

alternative formats. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Taxpayer First Act (TFA or Act), 

Public Law 116–25, 133 Stat. 981, was 

enacted on July 1, 2019. Section 1405(b) 

of the Act, codified at 26 U.S.C. 7623(d) 

and referred to throughout these interim 

final rules as the TFA ‘‘anti-retaliation,’’ 

‘‘employee protection,’’ or 

‘‘whistleblower’’ provision, prohibits 

retaliation by an employer, or any 

officer, employee, contractor, 

subcontractor, or agent of such 

employer against an employee in the 


khammond on DSKJM1Z7X2PROD with RULES
12576 Federal Register / Vol. 87, No. 44 / Monday, March 7, 2022 / Rules and Regulations 

terms and conditions of employment in 

reprisal for the employee having 

engaged in protected activity. Protected 

activity under TFA includes any lawful 

act done by an employee to provide 

information, cause information to be 

provided, or otherwise assist in an 

investigation regarding underpayment 

of tax or conduct which the employee 

reasonably believes constitutes a 

violation of the internal revenue laws or 

any provision of Federal law relating to 

tax fraud. To be protected, the 

information or assistance must be 

provided to one of the persons or 

entities listed in the statute, which 

include the Internal Revenue Service 

(IRS), the Secretary of the Treasury, the 

Treasury Inspector General for Tax 

Administration, the Comptroller 

General of the United States, the 

Department of Justice, the United States 

Congress, a person with supervisory 

authority over the employee, or any 

other person working for the employer 

who has the authority to investigate, 

discover, or terminate misconduct. The 

Act also protects employees from 

retaliation in reprisal for any lawful act 

done to testify, participate in, or 

otherwise assist in any administrative or 

judicial action taken by the IRS relating 

to an alleged underpayment of tax or 

any violation of the internal revenue 

laws or any provision of Federal law 

relating to tax fraud. These interim final 

rules establish procedures for the 

handling of retaliation complaints under 

the Act. 

II. Summary of Statutory Procedures 

TFA incorporates the rules, 

procedures, and burdens of proof set 

forth in the Wendell H. Ford Aviation 

Investment and Reform Act for the 21st 

Century (AIR21), 49 U.S.C. 42121(b), 

with some exceptions. Under TFA, a 

person who believes that they have been 

discharged or otherwise retaliated 

against in violation of the Act 

(complainant) may file a complaint with 

the Secretary of Labor (Secretary) within 

180 days of the alleged retaliation. 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) and to the 

complainant’s employer (which in most 

cases will be the 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 

conduct an investigation, within 60 

days of receipt of the complaint, after 

affording the respondent an opportunity 

to submit a written response and to 

meet with the investigator to present 

statements from witnesses. 

The Act provides that 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 it would have taken the same 

adverse action in the absence of that 

activity. (See § 1989.104 for a summary 

of the investigation process.) OSHA 

interprets the prima facie case 

requirement as allowing the 

complainant to meet this burden 

through the complaint as supplemented 

by interviews of the complainant. 

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 

complainant and respondent of those 

findings, and issue a preliminary order 

providing all relief necessary to make 

the complainant whole, including, 

where appropriate: Reinstatement with 

the same seniority status that the 

complainant would have had but for the 

retaliation; the sum of 200 percent of the 

amount of back pay and 100 percent of 

all lost benefits, with interest; and 

compensation for any special damages 

sustained as a result of the retaliation, 

including litigation costs, expert witness 

fees, and reasonable attorney fees. 

The complainant and the respondent 

then have 30 days after the date of 

receipt of the Secretary’s notification in 

which to file objections to the findings 

and/or preliminary order and request a 

hearing before an Administrative Law 

Judge (ALJ). The filing of objections will 

not stay any reinstatement order. 

However, under OSHA’s regulations, 

the filing of objections will stay any 

other remedy in the preliminary order. 

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, the Act requires 

the hearing be conducted 

‘‘expeditiously.’’ The Secretary then has 

120 days after the conclusion of any 

hearing 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 

will order all relief necessary to make 

the complainant whole, including, 

where appropriate, reinstatement with 

the same seniority status that the 

complainant would have had, but for 

the retaliation; the sum of 200 percent 

of the amount of back pay and 100 

percent of all lost benefits, with interest; 

and compensation for any special 

damages sustained as a result of the 

retaliation, including litigation costs, 

expert witness fees, and reasonable 

attorney fees. The Secretary also may 

award a prevailing employer reasonable 

attorney fees, 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 allegedly 

occurred or the circuit where the 

complainant resided on the date of the 

violation. 

The Act permits the employee to 

bring an action for de novo review of a 

TFA retaliation claim in the appropriate 

United States district court in the event 

that the Secretary has not issued a final 

decision within 180 days after the filing 

of the complaint. The provision 

provides that the court will have 

jurisdiction over the action without 

regard to the amount in controversy and 

that either party is entitled to request a 

trial by jury. The Act also states that the 

rights and remedies provided in the 

TFA anti-retaliation provision may not 

be waived by any agreement, policy 

form, or condition of employment, 

including by a predispute arbitration 

agreement. No predispute arbitration 

agreement is valid or enforceable, if the 

agreement requires arbitration of a 

dispute arising under the TFA antiretaliation provision. Finally, under the 

Act, nothing in the TFA anti-retaliation 

provision shall be deemed to diminish 

the rights, privileges, or remedies of any 

employee under any Federal or State 

law, or under any collective bargaining 

agreement. 

III. Summary and Discussion of 

Regulatory Provisions 

The regulatory provisions in this part 

have been written and organized to be 

consistent with other whistleblower 

regulations promulgated by OSHA to 

the extent possible within the bounds of 

the statutory language of the Act. 

Responsibility for receiving and 

investigating complaints under the Act 

has been delegated to the Assistant 

Secretary for Occupational Safety and 

Health (Assistant Secretary) by 

Secretary of Labor’s Order No. 08–2020 

(May 15, 2020), 85 FR 58393 (September 


khammond on DSKJM1Z7X2PROD with RULES
Federal Register / Vol. 87, No. 44 / Monday, March 7, 2022 / Rules and Regulations 12577 

18, 2020). 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. See 

Secretary of Labor’s Order 01–2020 

(Feb. 21, 2020), 85 FR 13024–01 (Mar. 

6, 2020) (Delegation of Authority and 

Assignment of Responsibility to the 

Administrative Review Board). 

Subpart A—Complaints, Investigations, 

Findings, and Preliminary Orders 

Section 1989.100 Purpose and Scope 

This section describes the purpose of 

the regulations implementing the antiretaliation provisions of TFA and 

provides an overview of the procedures 

covered by these regulations. 

Section 1989.101 Definitions 

This section includes the general 

definitions of certain terms used in 

§ 1405(b) of TFA, 26 U.S.C. 7623(d), 

which are applicable to the Act’s antiretaliation provision. Consistent with 

the approach that OSHA has taken in 

implementing other whistleblower 

protection provisions and with 

applicable ARB case law, the interim 

final rule defines ‘‘employee’’ as ‘‘an 

individual presently or formerly 

working for, an individual applying to 

work for, or an individual whose 

employment could be affected by, 

another person.’’ See, e.g., 29 CFR 

1979.101 (AIR21 definition of 

employee); 29 CFR 1980.101(g) 

(Sarbanes-Oxley Act of 2002 (SOX) 

definition of employee). In OSHA’s 

view, consistent with TFA’s language 

protecting employees from retaliation 

for providing information regarding 

‘‘any conduct which the employee 

reasonably believes constitutes a 

violation of the internal revenue laws,’’ 

the definition of ‘‘employee’’ in the 

interim final rule encompasses 

individuals who allege that they are 

employees, can show some evidence 

that the respondent exercises control 

over the terms and conditions of their 

employment or other factors tending to 

demonstrate that an employer-employee 

relationship exists, and allege that they 

have suffered retaliation for having 

reported that their employers have 

violated tax laws by failing or refusing 

to make required withholdings, 

deductions, and/or contributions on 

their behalf. See Green v. OPCON, Inc., 

ARB Case No. 2018–0007, 2020 WL 

2319031, at *3 (Apr. 9, 2020) 

(explaining the ARB’s case law applying 

a ‘‘right-to-control’’ test and the 

common law test in Nationwide Mutual 

Insurance Co. v. Darden, 503 U.S. 318, 

322–23 (1992)). 

The interim final rule defines 

‘‘person’’ as ‘‘an individual, partnership, 

company, corporation, association 

(incorporated or unincorporated), trust, 

or estate,’’ based on the definition found 

in the Internal Revenue Code. See 26 

U.S.C. 7701(a)(1). 

Section 1989.102 Obligations and 

Prohibited Acts 

This section describes the activities 

that are protected under the Act and the 

conduct that is prohibited in response to 

any protected activities. The Act 

prohibits an employer, or any officer, 

employee, contractor, subcontractor, or 

agent of such employer from 

discharging, demoting, suspending, 

threatening, harassing or in any other 

manner retaliating against an employee 

in the terms and conditions of 

employment in reprisal for the 

employee having engaged in protected 

activity. Protected activity under TFA 

includes any lawful act by an employee 

to provide information, cause 

information to be provided, or otherwise 

assist in an investigation regarding 

underpayment of tax or conduct which 

the employee reasonably believes 

constitutes a violation of the internal 

revenue laws or any provision of 

Federal law relating to tax fraud. To be 

protected, the information or assistance 

must be provided to one of the persons 

or entities listed in the statute, which 

include the IRS, the Secretary of the 

Treasury, the Treasury Inspector 

General for Tax Administration, the 

Comptroller General of the United 

States, the Department of Justice, the 

United States Congress, a person with 

supervisory authority over the 

employee, or any other person working 

for the employer who has the authority 

to investigate, discover, or terminate 

misconduct. The Act also protects 

employees from discharge or other 

actions in reprisal for any lawful act 

done to testify, participate in, or 

otherwise assist in any administrative or 

judicial action taken by the IRS relating 

to an alleged underpayment of tax or 

any violation of the internal revenue 

laws or any provision of Federal law 

relating to tax fraud. More information 

regarding Federal tax laws and the IRS’s 

regulations can be found at 

www.IRS.gov. 

Under the Act, an employee who 

provides information, causes 

information to be provided, or assists in 

an investigation is protected as long as 

the employee reasonably believes that 

the conduct at issue violates internal 

revenue laws or any provision of 

Federal law relating to tax fraud. To 

have a reasonable belief that there is a 

violation of relevant law, the employee 

must subjectively believe that the 

conduct is a violation and that belief 

must be objectively reasonable. See, e.g., 

Rhinehimer v. U.S. Bancorp. Invs., Inc., 

787 F.3d 797, 811 (6th Cir. 2015) 

(discussing the reasonable belief 

standard under analogous language in 

the SOX whistleblower provision, 18 

U.S.C. 1514A) (citations omitted); Harp 

v. Charter Commc’ns, Inc., 558 F.3d 

722, 723 (7th Cir. 2009) (agreeing with 

First, Fourth, Fifth, and Ninth Circuits 

that determining reasonable belief under 

the SOX whistleblower provision 

requires analysis of the complainant’s 

subjective belief and the objective 

reasonableness of that belief); Sylvester 

v. Parexel Int’l LLC, ARB No. 07–123, 

2011 WL 2165854, at *11–12 (ARB May 

25, 2011) (same). The requirement that 

the complainant have a subjective, good 

faith belief is satisfied so long as the 

complainant actually believed that the 

conduct at issue violated the relevant 

law or regulation. See Sylvester, 2011 

WL 2165854, at *11–12 (citing Harp, 

558 F.3d at 723; Day v. Staples, Inc., 555 

F.3d 42, 54 n.10 (1st Cir. 2009)). The 

objective 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.’’ Harp, 558 F.3d at 

723 (quoting Allen v. Admin. Review 

Bd., 514 F.3d 468, 477 (5th Cir. 2008)). 

However, the complainant need not 

show the conduct constituted an actual 

violation of law. Pursuant to this 

standard, an employee’s whistleblower 

activity is protected when it is based on 

a reasonable, but mistaken, belief that a 

violation of the relevant law has 

occurred. See Van Asdale v. Int’l Game 

Techs., 577 F.3d 989, 1001 (9th Cir. 

2009); Allen, 514 F.3d at 477. 

Section 1989.103 Filing of Retaliation 

Complaint 

This section explains the 

requirements for filing a retaliation 

complaint under TFA. 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), an alleged 

violation occurs 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 to take an adverse 

action. EEOC v. United Parcel Serv., 

Inc., 249 F.3d 557, 561–62 (6th Cir. 

2001). The time for filing a complaint 

under TFA may be tolled for reasons 

warranted by applicable case law. For 


khammond on DSKJM1Z7X2PROD with RULES
12578 Federal Register / Vol. 87, No. 44 / Monday, March 7, 2022 / Rules and Regulations 

example, OSHA may consider the time 

for filing a complaint to be tolled if a 

complainant mistakenly files a 

complaint with an agency other than 

OSHA within 180 days after an alleged 

adverse action. Xanthopoulos v. U.S. 

Dep’t of Labor, 991 F.3d 823, 832 (7th 

Cir. 2021) (affirming ARB’s refusal to 

toll the statute of limitations under SOX 

and explaining the limited 

circumstances in which tolling is 

appropriate for a timely filing in the 

wrong forum). 

Complaints filed under TFA 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. 

Section 1989.104 Investigation 

This section describes the procedures 

that apply to the investigation of TFA 

complaints. Paragraph (a) of this section 

outlines the procedures for notifying the 

respondent, the employer (if different 

from the respondent), and the IRS of the 

complaint and notifying the respondent 

of the rights under these regulations. 

Paragraph (b) describes the procedures 

for the respondent to submit the 

response to the complaint. Paragraph (c) 

specifies that OSHA will request that 

the parties provide each other with 

copies of their submissions to OSHA 

during the investigation and that, if a 

party does not provide such copies, 

OSHA generally will do so at a time 

permitting the other party an 

opportunity to respond to those 

submissions. Before providing such 

materials, OSHA will redact them 

consistent 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 

the applicable burdens of proof. TFA 

incorporates the burdens of proof in 

AIR21. Thus, in order for OSHA to 

conduct an investigation, TFA requires 

that a complainant make an initial 

prima facie showing that a 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 for OSHA to 

commence an investigation 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 at this stage 

may be satisfied, for example, if the 

complainant shows that the adverse 

action took place shortly after the 

protected activity. 

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 Energy 

Reorganization Act of 1974, as 

amended, (ERA) which is the same as 

that under TFA, serves a ‘‘gatekeeping 

function’’ intended to ‘‘stem [ ] frivolous 

complaints’’). Even in cases where the 

complainant successfully makes a prima 

facie showing, TFA requires that 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 the complaint and 

not investigate further if either: (1) The 

complainant fails to make the prima 

facie showing that protected activity 

was a contributing factor in the alleged 

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 statute requires OSHA to determine 

whether there is reasonable cause to 

believe that protected activity was a 

contributing factor in the alleged 

adverse action. 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.’’ Wiest v. Tyco Elec. Corp., 812 

F.3d 319, 330 (3d Cir. 2016) (discussing 

‘‘contributing factor standard’’ under 

SOX); Feldman v. Law Enforcement 

Assocs. Corp., 752 F.3d 339, 348 (4th 

Cir. 2014) (same); Lockheed Martin 

Corp. v. Admin. Review Bd., 717 F.3d 

1121, 1136 (10th Cir. 2013) (same). A 

conclusion that protected activity was a 

contributing factor in an adverse action 

can be based on direct evidence or 

circumstantial evidence ‘‘such as the 

temporal proximity between the 

protected activity and the adverse 

action, indications of pretext such as 

inconsistent application of policies and 

shifting explanations, antagonism or 

hostility toward protected activity, the 

relation between the discipline and the 

protected activity, and the presence [or 

absence] of intervening events that 

independently justify’’ the adverse 

action. Hess v. Union Pac. R.R. Co., 898 

F.3d 852, 858 (8th Cir. 2018) (quoted 

source omitted) (discussing the 

contributing factor standard under the 

Federal Railroad Safety Act). 

If OSHA finds reasonable cause to 

believe that the alleged protected 

activity was a contributing factor in the 

adverse action, OSHA may not order 

relief if the employer demonstrates by 

‘‘clear and convincing evidence’’ that it 

would have taken the same action in the 

absence of the protected activity. See 49 

U.S.C. 42121(b)(2)(B)(iv). The ‘‘clear and 

convincing evidence’’ standard is a 

higher burden of proof than a 

‘‘preponderance of the evidence’’ 

standard. Clear and convincing 

evidence is evidence indicating that the 

thing to be proved is highly probable or 

reasonably certain. Clarke v. Navajo 

Express, ARB No. 09–114, 2011 WL 

2614326, at *3 (ARB June 29, 2011). 

Paragraph (f) describes the procedures 

OSHA will follow prior to the issuance 

of findings and a preliminary order 

when OSHA has reasonable cause to 

believe that a violation has occurred and 

reinstatement is required. Its purpose is 

to ensure compliance with the Due 

Process Clause of the Fifth Amendment, 

as interpreted by the Supreme Court in 

Brock v. Roadway Express, Inc., 481 

U.S. 252 (1987) (requiring OSHA to give 

a Surface Transportation Assistance Act 

respondent the opportunity to review 

the substance of the evidence and 

respond prior to ordering preliminary 

reinstatement). 

Section 1989.105 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 all relief 

necessary to make the employee whole, 

including reinstatement with the same 

seniority status that the complainant 

would have had, but for the retaliation; 

the sum of 200 percent of the amount 

of back pay and 100 percent of all lost 

benefits, with interest; and 

compensation for any special damages 

sustained as a result of the retaliation, 

including litigation costs, expert witness 

fees, and reasonable attorney fees. The 

findings and, where appropriate, 

preliminary order, will also advise the 

parties of their right to file objections to 

the findings of the Assistant Secretary 

and to request a hearing. The findings 


khammond on DSKJM1Z7X2PROD with RULES
Federal Register / Vol. 87, No. 44 / Monday, March 7, 2022 / Rules and Regulations 12579 

and, where appropriate, the preliminary 

order, will also advise the respondent of 

the right to request an award of attorney 

fees not exceeding a total of $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. 

The remedies provided under TFA 

aim to make the complainant whole by 

restoring the complainant to the 

position that the complainant would 

have occupied absent the retaliation and 

to counteract the chilling effect of 

retaliation on protected whistleblowing 

in the complainant’s workplace. The 

back pay, benefits, and other remedies 

appropriate in each case will depend on 

the individual facts of the case and the 

evidence submitted, and the 

complainant’s interim earnings must be 

taken into account in determining the 

appropriate back pay award. When there 

is evidence to determine these figures, 

a back pay award under TFA might 

include, for example, amounts that the 

complainant would have earned in 

commissions, bonuses, overtime, or 

raises had the complainant not been 

discharged in retaliation for engaging in 

protected activity under TFA. A benefits 

award under TFA might include 

amounts that the employer would have 

contributed to a 401(k) plan, insurance 

plan, profit-sharing plan, or retirement 

plan on the complainant’s behalf had 

the complainant not been discharged in 

retaliation for engaging in protected 

activity under TFA. Other damages, 

including non-pecuniary damages, such 

as damages for emotional distress due to 

the retaliation, are also available under 

TFA. See, e.g., Jones v. Southpeak 

Interactive Corp. of Del., 777 F.3d 658, 

670–71 (4th Cir. 2015) (holding that 

emotional distress damages are available 

under identical remedial provision in 

SOX); Halliburton, Inc. v. Admin. 

Review Bd., 771 F.3d 254, 264–66 (5th 

Cir. 2014) (same). Consistent with the 

rules under other whistleblower statutes 

enforced by the Department of Labor, in 

ordering interest on back pay under 

TFA, OSHA will compute interest due 

by compounding daily the Internal 

Revenue Service interest rate for the 

underpayment of taxes, which under 26 

U.S.C. 6621(a)(2) is the Federal shortterm rate plus three percentage points, 

against back pay. See, e.g., 29 CFR 

1980.105(a) (SOX); 29 CFR 1982.105(a) 

(Federal Railroad Safety Act (FRSA)); 29 

CFR 1988.105(a) (Moving Ahead for 

Progress in the 21st Century Act (MAP– 

21)). 

Consistent with the rules governing 

other Department of Labor-enforced 

whistleblower protection statutes, 

where appropriate, in ordering back 

pay, OSHA will require the respondent 

to submit the appropriate 

documentation to the Social Security 

Administration (SSA) allocating the 

back pay to the appropriate periods. 

See, e.g., 29 CFR 1980.105(a) (SOX); 29 

CFR 1982.105(a) (FRSA); 29 CFR 

1988.105(a) (MAP–21)). 

The statute permits OSHA to 

preliminarily reinstate employees to 

their positions if OSHA finds reasonable 

cause to believe that they were 

discharged in violation of TFA. See 49 

U.S.C. 42121(b)(2)(A). When a violation 

is found, the norm is for OSHA to order 

immediate preliminary reinstatement. In 

appropriate circumstances, in lieu of 

preliminary reinstatement, OSHA may 

order that the complainant receive the 

same pay and benefits that the 

complainant received prior to 

termination but not actually return to 

work. Such ‘‘economic reinstatement’’ is 

akin to an order of front pay and is 

sometimes employed in cases arising 

under § 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, 

MSHA v. North Fork Coal Corp., 33 

FMSHRC 589, 2011 WL 1455831, at *4 

(FMSHRC Mar. 25, 2011) (explaining 

economic reinstatement in lieu of 

temporary reinstatement in the context 

of § 105(c)). Front pay has been 

recognized as an appropriate remedy in 

cases under the whistleblower statutes 

enforced by OSHA in circumstances 

where reinstatement would not be 

appropriate. See, e.g., Deltek, Inc. v. 

Dep’t of Labor, Admin. Rev Bd., 649 

Fed. App’x. 320, 333 (4th Cir. 2016) 

(affirming award of front pay in SOX 

case due to ‘‘pronounced animosity 

between the parties;’’ explaining that 

‘‘front pay ‘is designed to place the 

complainant in the identical financial 

position’ that she would have occupied 

had she remained employed or been 

reinstated.’’); Continental Airlines, Inc. 

v. Admin. Review Bd., 638 Fed. App’x. 

283, 289–90 at *4 (5th Cir. 2016) 

(affirming front pay award under AIR21, 

and explaining that ‘‘front-pay is 

available when reinstatement is not 

possible’’), aff’g Luder v. Cont’l Airlines, 

Inc., ARB No. 10–026, 2012 WL 376755, 

at *11 (ARB Jan. 31, 2012); see also 

Brown v. Lockheed Martin Corp., ALJ 

No. 2008–SOX–00049, 2010 WL 

2054426, at *55–56 (ALJ Jan. 15, 2010) 

(noting that while reinstatement is the 

‘‘presumptive remedy’’ under SOX 

whistleblower provision, front pay may 

be awarded as a substitute when 

reinstatement is inappropriate), aff’d 

Lockheed Martin Corp. v. Admin. 

Review Bd., 717 F.3d 1121, 1138 (10th 

Cir. 2013) (noting availability of all 

relief necessary to make the employee 

whole in SOX case but remanding for 

DOL to quantify remedies); Indiana 

Michigan Power Co. v. U.S. Dep’t of 

Labor, 278 Fed. Appx. 597, 606 (6th Cir. 

2008) (affirming front pay award under 

ERA). 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 immediate 

reinstatement is inadvisable for some 

reason, notwithstanding the employer’s 

retaliatory discharge of the employee. 

Subpart B—Litigation 

Section 1989.106 Objections to the 

Findings and the Preliminary Order and 

Requests for a Hearing 

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, in accordance 

with 29 CFR part 18, as applicable, 

within 30 days of the receipt of the 

findings. The date of the postmark, 

facsimile transmittal, or electronic 

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 on 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). OSHA and the 

Associate Solicitor for Fair Labor 

Standards may specify the means, 

including electronic means, to serve 

them with copies of objections to 

OSHA’s findings. 


khammond on DSKJM1Z7X2PROD with RULES
12580 Federal Register / Vol. 87, No. 44 / Monday, March 7, 2022 / Rules and Regulations 

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 the Assistant Secretary’s 

preliminary order of reinstatement with 

the Office of Administrative Law Judges. 

However, such a motion will be granted 

only based on exceptional 

circumstances. The Secretary believes 

that a stay of the Assistant Secretary’s 

preliminary order of reinstatement 

under TFA 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 that the public interest 

favors a stay. If no timely objection to 

the Assistant Secretary’s findings and/or 

preliminary order is filed, then the 

Assistant Secretary’s findings and/or 

preliminary order become the final 

decision of the Secretary not subject to 

judicial review. 

Section 1989.107 Hearings 

This section adopts the rules of 

practice and procedure for 

administrative hearings before the 

Office of Administrative Law Judges, as 

set forth in 29 CFR part 18 subpart A. 

This section provides that the hearing is 

to commence expeditiously, except 

upon a showing of good cause or unless 

otherwise agreed to by the parties. 

Hearings will be conducted de novo, on 

the record. As noted in this section, 

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. 

Section 1989.108 Role of Federal 

Agencies 

The Assistant Secretary may 

participate as a party or amicus curiae 

at any time in the administrative 

proceedings under TFA. For example, 

the Assistant Secretary may exercise 

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 the ARB. 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, multiple employees, alleged 

violations that appear egregious, or 

where the interests of justice might 

require participation by the Assistant 

Secretary. The IRS, if interested in a 

proceeding, also may participate as 

amicus curiae at any time in the 

proceedings. 

Section 1989.109 Decisions and 

Orders of the Administrative Law Judge 

This section sets forth the 

requirements for the content of the 

decisions and orders of the ALJ, and 

includes the standard for finding a 

violation under TFA. Specifically, 

because TFA incorporates the burdens 

of proof in AIR21, the complainant must 

demonstrate (i.e., prove by a 

preponderance of the evidence) that the 

protected activity was a ‘‘contributing 

factor’’ in the adverse action. See 49 

U.S.C. 42121(b)(2)(B)(iii); see, e.g., 

Allen, 514 F.3d at 475 n.1 (‘‘The term 

‘demonstrates’ [under identical burdenshifting scheme in the SOX 

whistleblower provision] means to 

prove by a preponderance of the 

evidence.’’). If the employee 

demonstrates that the alleged protected 

activity was a contributing factor in the 

adverse action, then the employer must 

demonstrate by ‘‘clear and convincing 

evidence’’ that it would have taken the 

same action in the absence of the 

protected activity. See 49 U.S.C. 

42121(b)(2)(B)(iv). 

Paragraph (c) of this section further 

provides that OSHA’s determination to 

dismiss the complaint without an 

investigation or without a complete 

investigation under § 1989.104 is not 

subject to review. Thus, § 1989.109(c) 

clarifies that OSHA’s determinations on 

whether to proceed with an 

investigation under TFA 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 

OSHA to conduct an investigation or 

make further factual findings. Paragraph 

(d) notes the remedies that the ALJ may 

order under TFA and, as discussed 

under § 1989.105 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(a)(2) and will be compounded 

daily, and that the respondent will be 

required to submit appropriate 

documentation to the SSA allocating 

any back pay award to the appropriate 

periods. Paragraph (e) requires that the 

ALJ’s decision be served on all parties 

to the proceeding, OSHA, and the U.S. 

Department of Labor’s Associate 

Solicitor for Fair Labor Standards. 

OSHA and the Associate Solicitor for 

Fair Labor Standards may specify the 

means, including electronic means, for 

service of the ALJ’s decision on them. 

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 30 days after the date of the 

decision unless a timely petition for 

review has been filed with the ARB. If 

a timely petition for review is not filed 

with the ARB, the decision of the ALJ 

becomes the final decision of the 

Secretary and is not subject to judicial 

review. 

Section 1989.110 Decisions and 

Orders of the Administrative Review 

Board 

Upon the issuance of the ALJ’s 

decision, the parties have 30 days 

within which to petition the ARB for 

review of that decision. The date of the 

postmark, facsimile transmittal, or 

electronic 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 

only 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 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. 

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 TFA (which otherwise would be 

effective immediately), while the ARB 

reviews the order. The Secretary 

believes that a stay of an ALJ’s 

preliminary order of reinstatement 

under TFA 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 


khammond on DSKJM1Z7X2PROD with RULES
Federal Register / Vol. 87, No. 44 / Monday, March 7, 2022 / Rules and Regulations 12581 

parties, and that the public interest 

favors a stay. 

If the ARB concludes that the 

respondent has violated the law, it will 

issue an order providing all relief 

necessary to make the complainant 

whole. The order will require, where 

appropriate: Reinstatement with the 

same seniority status that the 

complainant would have had, but for 

the retaliation; the sum of 200 percent 

of the amount of back pay and 100 

percent of all lost benefits, with interest; 

and compensation for any special 

damages sustained as a result of the 

retaliation, including litigation costs, 

expert witness fees, and reasonable 

attorney fees. Interest on back pay will 

be calculated using the interest rate 

applicable to underpayment of taxes 

pursuant to 26 U.S.C. 6621(a)(2) and 

will be compounded daily, and the 

respondent will be required to submit 

appropriate documentation to the SSA 

allocating any back pay award to the 

appropriate periods. 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 fee, not exceeding 

a total of $1,000. The decision of the 

ARB is subject to discretionary review 

by the Secretary of Labor. See Secretary 

of Labor’s Order, 01–2020 (Feb. 21, 

2020), 85 FR 13024–01 (Mar. 6, 2020). 

As provided in that Secretary’s Order, 

a party may petition the ARB to refer a 

decision to the Secretary for further 

review, after which the Secretary may 

accept review, decline review, or take 

no action. If no such petition is filed, 

the ARB’s decision shall become the 

final action of the Department 28 

calendar days after the date on which 

the decision was issued. If such a 

petition is filed and the ARB declines to 

refer the case to the Secretary, the ARB’s 

decision shall become final 28 calendar 

days after the date on which the petition 

for review was filed. If the ARB refers 

a decision to the Secretary for further 

review, and the Secretary takes no 

action in response to the ARB’s referral, 

or declines to accept the case for review, 

the ARB’s decision shall become final 

either 28 calendar days from the date of 

the referral, or on the date on which the 

Secretary declines review, whichever 

comes first. 

In the alternative, under the 

Secretary’s Order, at any point during 

the first 28 calendar days after the date 

on which an ARB decision was issued, 

the Secretary may direct the ARB to 

refer the decision to the Secretary for 

review. If the Secretary directs the ARB 

to refer a case to the Secretary, or 

notifies the parties that the case has 

been accepted for review, the ARB’s 

decision shall not become the final 

action of the Department and shall have 

no legal force or effect, unless and until 

the Secretary adopts the ARB’s decision. 

Under the Secretary’s Order, any final 

decision made by the Secretary shall be 

made solely based on the administrative 

record, the petition and briefs filed with 

the ARB, and any amicus briefs 

permitted by the Secretary. The decision 

shall be in writing and shall be 

transmitted to the ARB, who will 

publish the decision and transmit it to 

the parties to the case. The Secretary’s 

decision shall constitute final action by 

the Department and shall serve as 

binding precedent in all Department 

proceedings involving the same issue or 

issues. 

Subpart C—Miscellaneous Provisions 

Section 1989.111 Withdrawal of 

Complaints, Findings, Objections, and 

Petitions for Review; Settlement 

This section provides the procedures 

and time periods for withdrawal of 

complaints, withdrawal of findings and/ 

or preliminary orders by the Assistant 

Secretary, and withdrawal of objections 

to findings and/or orders. It permits 

complainants to withdraw their 

complaints orally, and provides that, in 

such circumstances, OSHA will confirm 

a complainant’s desire to withdraw in 

writing. It also provides for approval of 

settlements at the investigative and 

adjudicatory stages of the case. 

Section 1989.112 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 ARB or the ALJ to submit the record 

of proceedings to the appropriate court 

pursuant to the rules of such court. 

Section 1989.113 Judicial Enforcement 

This section describes the ability of 

the Secretary, the complainant, and the 

respondent under TFA to obtain judicial 

enforcement of orders and terms of 

settlement agreements. Through the 

incorporation of the rules and 

procedures in AIR21, TFA authorizes 

district courts to enforce orders issued 

by the Secretary under the provisions of 

49 U.S.C. 42121(b). Specifically, 49 

U.S.C. 42121(b)(5) provides that 

‘‘[w]henever any person has failed to 

comply with an order issued under 

paragraph (3), the Secretary of Labor 

may file a civil action in the United 

States district court for the district in 

which the violation was found to occur 

to enforce such order. In actions brought 

under this paragraph, the district courts 

shall have jurisdiction to grant all 

appropriate relief, including injunctive 

relief and compensatory damages.’’ 49 

U.S.C. 42121(b)(5). Similarly, 49 U.S.C. 

42121(b)(6), provides that a person on 

whose behalf an order was issued ‘‘may 

commence a civil action against the 

person to whom such order was issued 

to required compliance with such 

order’’ in the appropriate United States 

district court, which will have 

jurisdiction without regard to the 

amount in controversy or the 

citizenship of the parties, to enforce 

such order. The Secretary views these 

provisions as permitting district courts 

to enforce both final orders of the 

Secretary and preliminary orders of 

reinstatement for the same reasons that 

the Secretary has expressed with regard 

to SOX, which incorporates the rules 

and procedures of AIR21 using identical 

language to that in TFA. See Procedures 

for the Handling of Retaliation 

Complaints Under § 806 of the 

Sarbanes-Oxley Act of 2002, as 

Amended, Final Rule, 80 FR 11865–02, 

11,877 (Mar. 5, 2015) (discussing 

district court enforcement of 

preliminary reinstatement orders under 

SOX); see also 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 v. Competitive Techs., Inc., 448 

F.3d 469 (2d Cir. 2006); 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)). 

Section 1989.114 District Court 

Jurisdiction of Retaliation Complaints 

This section sets forth TFA’s 

provisions allowing a complainant to 

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 

180 days after the date of the filing of 

the complaint. See 26 U.S.C. 

7623(d)(2)(A)(ii). This section also 

incorporates the statutory provisions 

that allow for a jury trial at the request 

of either party in a district court action 

and that specify the burdens of proof in 

a district court action. 26 U.S.C. 

7623(d)(2)(B)(iii), (v). 

This section also requires that, within 

seven days after filing a complaint in 

district court, a complainant must 

provide a file-stamped copy of the 

complaint to OSHA, the ALJ, or the 


khammond on DSKJM1Z7X2PROD with RULES
12582 Federal Register / Vol. 87, No. 44 / Monday, March 7, 2022 / Rules and Regulations 

ARB, depending on where the 

proceeding is pending. If the ARB has 

issued a decision that has not yet 

become final under Secretary of Labor’s 

Order 01–2020, the case is regarded as 

pending before the ARB for purposes of 

this section and a copy of any district 

court complaint should be sent to the 

ARB. 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, 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. 

Finally, it should be noted that 

although a complainant may file an 

action in district court if the Secretary 

has not issued a final decision within 

180 days of the filing of the complaint 

with OSHA, it is the Department of 

Labor’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 180 days after the 

filing of the complaint. Thus, for 

example, after the ARB has issued a 

decision that has become final denying 

a whistleblower complaint, the 

complainant no longer may file an 

action for de novo review in federal 

district court. See Soo Line R.R., Inc. v. 

Admin. Review Bd., 990 F.3d 596, 598 

n.1 (8th Cir. 2021). 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 49 U.S.C. 

42121(b)(4)(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). 

Section 1989.115 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 TFA 

requires. 

IV. Paperwork Reduction Act 

This rule contains a reporting 

provision (filing a retaliation complaint, 

section 1989.103) which was previously 

reviewed as a statutory requirement of 

TFA and approved for use by the Office 

of Management and Budget (OMB), as 

part of the Information Collection 

Request (ICR) assigned OMB control 

number 1218–0236 under the provisions 

of the Paperwork Reduction Act of 1995 

(PRA). See Public Law 104–13, 109 Stat. 

163 (1995). A non-material change has 

been submitted to OMB to include the 

regulatory citation. 

V. Administrative Procedure Act 

The notice and comment rulemaking 

procedures of § 553 of the 

Administrative Procedure Act (APA) do 

not apply ‘‘to interpretative rules, 

general statements of policy, or rules of 

agency organization, procedure, or 

practice.’’ 5 U.S.C. 553(b)(A). This is a 

rule of agency procedure, practice, and 

interpretation within the meaning of 

that section, because it provides the 

procedures for the handling of 

retaliation complaints. Therefore, 

publication in the Federal Register of a 

notice of proposed rulemaking and 

request for comments are not required 

for this rule. Although this is a 

procedural and interpretative rule not 

subject to the notice and comment 

procedures of the APA, OSHA is 

providing persons interested in this 

interim final rule 60 days to submit 

comments. A final rule will be 

published after OSHA receives and 

reviews the public’s comments. 

Furthermore, because this rule is 

procedural and interpretative rather 

than substantive, the normal 

requirement of 5 U.S.C. 553(d) that a 

rule be effective 30 days after 

publication in the Federal Register is 

inapplicable. OSHA also finds good 

cause to provide an immediate effective 

date for this interim final rule. It is in 

the public interest that the rule be 

effective immediately so that parties 

may know what procedures are 

applicable to pending cases. 

VI. Executive Orders 12866, 13563, and 

13771; Unfunded Mandates Reform Act 

of 1995; Executive Order 13132 

The Office of Information and 

Regulatory Affairs has concluded that 

this rule is not a ‘‘significant regulatory 

action’’ within the meaning of Executive 

Order 12866, reaffirmed by Executive 

Order 13563, because it is not likely to: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or Tribal governments or 

communities; (2) create a serious 

inconsistency or otherwise interfere 

with an action taken or planned by 

another agency; (3) materially alter the 

budgetary impact of entitlements, 

grants, user fees, or loan programs or the 

rights and obligations of recipients 

thereof; or (4) raise novel legal or policy 

issues arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in Executive Order 12866. 

Therefore, no economic impact analysis 

under § 6(a)(3)(C) of Executive Order 

12866 has been prepared. 

This rule is not an Executive Order 

13771 regulatory action because this 

rule is not significant under Executive 

Order 12866. 

Also, because this rule is not 

significant under Executive Order 

12866, and because no notice of 

proposed rulemaking has been 

published, no statement is required 

under § 202 of the Unfunded Mandates 

Reform Act of 1995, 2 U.S.C. 1532. In 

any event, this rulemaking is procedural 

and interpretative in nature and is thus 

not expected to have a significant 

economic impact. Finally, this rule does 

not have ‘‘federalism implications.’’ The 

rule does not have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government[,]’’ and 

therefore, is not subject to Executive 

Order 13132 (Federalism). 

VII. Regulatory Flexibility Analysis 

The notice and comment rulemaking 

procedures of § 553 of the APA do not 

apply ‘‘to interpretative rules, general 

statements of policy, or rules of agency 

organization, procedure, or practice.’’ 5 

U.S.C. 553(b)(A). Rules that are exempt 

from APA notice and comment 

requirements are also exempt from the 

Regulatory Flexibility Act (RFA). See 

Small Business Administration Office of 

Advocacy, A Guide for Government 

Agencies: How to Comply with the 

Regulatory Flexibility Act, at 9; also 

found at https://www.sba.gov/advocacy/ 

guide-government-agencies-howcomply-regulatory-flexibility-act. This is 

a rule of agency procedure, practice, and 

interpretation within the meaning of 5 

U.S.C. 553; and, therefore, the rule is 

exempt from both the notice and 

comment rulemaking procedures of the 


khammond on DSKJM1Z7X2PROD with RULES
Federal Register / Vol. 87, No. 44 / Monday, March 7, 2022 / Rules and Regulations 12583 

APA and the requirements under the 

RFA. 

List of Subjects in 29 CFR Part 1989 

Administrative practice and 

procedure, Employment, Taxation, 

Whistleblower. 

Authority and Signature 

This document was prepared under 

the direction and control of Douglas L. 

Parker, Assistant Secretary of Labor for 

Occupational Safety and Health. 

Signed at Washington, DC. 

Douglas L. Parker, 

Assistant Secretary of Labor for Occupational 

Safety and Health. 

■ Accordingly, for the reasons set out in 

the preamble, 29 CFR part 1989 is added 

to read as follows: 

PART 1989—PROCEDURES FOR THE 

HANDLING OF RETAILIATION 

COMPAINTS UNDER THE TAXPAYER 

FIRST ACT (TFA) 

Subpart A—Complaints, Investigations, 

Findings, and Preliminary Orders 

Sec. 

1989.100 Purpose and scope. 

1989.101 Definitions. 

1989.102 Obligations and prohibited acts. 

1989.103 Filing of retaliation complaint. 

1989.104 Investigation. 

1989.105 Issuance of findings and 

preliminary orders. 

Subpart B—Litigation 

1989.106 Objections to the findings and the 

preliminary order and requests for a 

hearing. 

1989.107 Hearings. 

1989.108 Role of Federal agencies. 

1989.109 Decisions and orders of the 

administrative law judge. 

1989.110 Decisions and orders of the 

Administrative Review Board. 

Subpart C—Miscellaneous Provisions 

1989.111 Withdrawal of complaints, 

findings, objections, and petitions for 

review; settlement. 

1989.112 Judicial review. 

1989.113 Judicial enforcement. 

1989.114 District court jurisdiction of 

retaliation complaints. 

1989.115 Special circumstances; waiver of 

rules. 

Authority: 26 U.S.C. 7623(d); Secretary of 

Labor’s Order 08–2020 (May 15, 2020), 85 FR 

58393 (September 18, 2020); Secretary of 

Labor’s Order 01–2020 (Feb. 21, 2020), 85 FR 

13024–01 (Mar. 6, 2020). 

Subpart A—Complaints, 

Investigations, Findings, and 

Preliminary Orders 

§ 1989.100 Purpose and scope. 

(a) This part sets forth procedures for, 

and interpretations of, section 1405(b) of 

the Taxpayer First Act (TFA), Public 

Law 116–25, 133 Stat. 981 (July 1, 2019) 

(codified at 26 U.S.C. 7623(d)). TFA 

provides for employee protection from 

retaliation because the employee has 

engaged in protected activity pertaining 

to underpayment of tax or any conduct 

which the employee reasonably believes 

constitutes a violation of the internal 

revenue laws or any provision of 

Federal law relating to tax fraud. 

(b) This part establishes procedures 

under TFA 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 forth the 

procedures under TFA 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. In addition, these rules 

provide the Secretary’s interpretations 

on certain statutory issues. 

§ 1989.101 Definitions. 

As used in this part: 

Assistant Secretary means the 

Assistant Secretary of Labor for 

Occupational Safety and Health or the 

person or persons to whom the 

Assistant Secretary delegates authority 

under TFA. 

Business days means days other than 

Saturdays, Sundays, and Federal 

holidays. 

Complainant means the person who 

filed a TFA complaint or on whose 

behalf a complaint was filed. 

Employee means an individual 

presently or formerly working for, an 

individual applying to work for, or an 

individual whose employment could be 

affected by, another person. 

IRS means the Internal Revenue 

Service of the United States Department 

of the Treasury. 

OSHA means the Occupational Safety 

and Health Administration of the 

United States Department of Labor. 

Person means an individual, 

partnership, company, corporation, 

association (incorporated or 

unincorporated), trust, or estate. 

Respondent means the person named 

in the complaint who is alleged to have 

violated TFA. 

Secretary means the Secretary of 

Labor. 

TFA means section 1405(b) of the 

Taxpayer First Act (TFA), Public Law 

116–25, 133 Stat. 981 (July 1, 2019) 

(codified at 26 U.S.C. 7623(d)). 

§ 1989.102 Obligations and prohibited 

acts. 

(a) No employer or any officer, 

employee, contractor, subcontractor, or 

agent of such employer may discharge, 

demote, suspend, threaten, harass, or in 

any other manner retaliate against, 

including, but not limited to, 

intimidating, restraining, coercing, 

blacklisting, or disciplining, an 

employee in the terms and conditions of 

employment in reprisal for the 

employee having engaged in any of the 

activities specified in paragraphs (b)(1) 

and (2) of this section. 

(b) An employee is protected against 

retaliation (as described in paragraph (a) 

of this section) by an employer or any 

officer, employee, contractor, 

subcontractor, or agent of such 

employer in reprisal for any lawful act 

done by the employee: 

(1) To provide information, cause 

information to be provided, or otherwise 

assist in an investigation regarding 

underpayment of tax or any conduct 

which the employee reasonably believes 

constitutes a violation of the internal 

revenue laws or any provision of 

Federal law relating to tax fraud, when 

the information or assistance is 

provided to the Internal Revenue 

Service, the Secretary of the Treasury, 

the Treasury Inspector General for Tax 

Administration, the Comptroller 

General of the United States, the 

Department of Justice, the United States 

Congress, a person with supervisory 

authority over the employee, or any 

other person working for the employer 

who has the authority to investigate, 

discover, or terminate misconduct; or 

(2) To testify, participate in, or 

otherwise assist in any administrative or 

judicial action taken by the Internal 

Revenue Service relating to an alleged 

underpayment of tax or any violation of 

the internal revenue laws or any 

provision of Federal law relating to tax 

fraud. 

§ 1989.103 Filing of retaliation complaint. 

(a) Who may file. A person who 

believes that they have been discharged 

or otherwise retaliated against by any 

person in violation of TFA may file, or 

have filed by any person on their 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 

complainant resides or was employed, 

but may be filed with any OSHA officer 

or employee. Addresses and telephone 


khammond on DSKJM1Z7X2PROD with RULES
12584 Federal Register / Vol. 87, No. 44 / Monday, March 7, 2022 / Rules and Regulations 

numbers for these officials are set forth 

in local directories and at the following 

internet address: http://www.osha.gov. 

Complaints may also be filed online at 

https://www.osha.gov/whistleblower/ 

WBComplaint.html. 

(d) Time for filing. Within 180 days 

after an alleged violation of TFA occurs, 

any person who believes that they have 

been retaliated against in violation of 

TFA may file, or have filed by any 

person on their behalf, a complaint 

alleging such retaliation. The date of the 

postmark, facsimile transmittal, 

electronic filing or 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. For example, OSHA may consider 

the time for filing a complaint to be 

tolled if a complainant mistakenly files 

a complaint with an agency other than 

OSHA within 180 days after an alleged 

adverse action. 

§ 1989.104 Investigation. 

(a) Upon receipt of a complaint in the 

investigating office, OSHA will notify 

the respondent and the complainant’s 

employer (if different) 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, consistent with 

the Privacy Act of 1974, 5 U.S.C. 552a, 

and other applicable confidentiality 

laws. OSHA will also notify the 

respondent of its rights under 

paragraphs (b) and (f) of this section and 

§ 1989.110(e). OSHA 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 IRS. 

(b) Within 20 days of receipt of the 

notice of the filing of the complaint 

provided under paragraph (a) of this 

section, the respondent may submit to 

OSHA a written statement and any 

affidavits or documents substantiating 

its position. Within the same 20 days, 

the respondent may request a meeting 

with OSHA to present its position. 

(c) During the investigation, OSHA 

will request that each party provide the 

other parties to the whistleblower 

complaint with a copy of submissions to 

OSHA that are pertinent to the 

whistleblower complaint. Alternatively, 

if a party does not provide its 

submissions to OSHA to the other party, 

OSHA generally will provide them to 

the other party (or the party’s legal 

counsel if the party is represented by 

counsel) at a time permitting the other 

party an opportunity to respond. Before 

providing such materials to the other 

party, OSHA will redact them, if 

necessary, consistent with the Privacy 

Act of 1974, 5 U.S.C. 552a, and other 

applicable confidentiality laws. OSHA 

will also provide each party with an 

opportunity to respond to the other 

party’s 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 a 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 

complainant shows that the adverse 

action took place shortly after the 

protected activity. 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, 

further investigation of the complaint 

will not be conducted 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 its 

burden set forth in the prior paragraph, 

OSHA 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 § 1989.105, if OSHA has reasonable 

cause, on the basis of information 

gathered under the procedures of this 

part, to believe that the respondent has 

violated TFA and that preliminary 

reinstatement is warranted, OSHA will 

contact the respondent (or the 

respondent’s legal counsel if respondent 

is represented by counsel) to give notice 

of the substance of the relevant evidence 

supporting the complainant’s 

allegations as developed during the 

course of the investigation. This 

evidence includes any witness 

statements, which will be redacted to 

protect the identity of confidential 

informants where statements were given 

in confidence; if the statements cannot 

be redacted without revealing the 

identity of confidential informants, 

summaries of their contents will be 

provided. The complainant will also 

receive a copy of the materials that must 

be provided to the respondent under 

this paragraph. Before providing such 

materials, OSHA will redact them, if 

necessary, consistent 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 investigator, 

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 OSHA’s 

notification pursuant to this paragraph, 

or as soon thereafter as OSHA and the 

respondent can agree, if the interests of 

justice so require. 

§ 1989.105 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 TFA. 

(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 


khammond on DSKJM1Z7X2PROD with RULES
Federal Register / Vol. 87, No. 44 / Monday, March 7, 2022 / Rules and Regulations 12585 

providing relief to the complainant. The 

preliminary order will include all relief 

necessary to make the complainant 

whole including, where appropriate: 

Reinstatement with the same seniority 

status that the complainant would have 

had, but for the retaliation; the sum of 

200 percent of the amount of back pay 

and 100 percent of all lost benefits, with 

interest; and compensation for any 

special damages sustained as a result of 

the retaliation, including litigation 

costs, expert witness fees, and 

reasonable attorney fees. Interest on 

back pay will be calculated using the 

interest rate applicable to underpayment 

of taxes under 26 U.S.C. 6621(a)(2) and 

will be compounded daily. Where 

appropriate, the preliminary order will 

also require the respondent to submit 

appropriate documentation to the Social 

Security Administration allocating any 

back pay award to the appropriate 

periods. 

(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 physical or electronic means 

that allow OSHA to confirm delivery to 

all parties of record (or 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 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, or 

appropriate information regarding filing 

objections electronically with the Office 

of Administrative Law Judges if 

electronic filing is available. The 

findings also may specify the means, 

including electronic means, for serving 

OSHA and the Associate Solicitor for 

Fair Labor Standards with documents in 

the administrative litigation as required 

under this Part. 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 § 1989.106. 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 

§ 1989.106 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 fees 

under TFA, 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 § 1989.105. The objections and 

request for hearing and/or request for 

attorney fees must be in writing and 

must state whether the objections are to 

the findings, the preliminary order, or 

both, and/or whether there should be an 

award of attorney fees. The date of the 

postmark, facsimile transmittal, or 

electronic 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, in accordance 

with 29 CFR part 18, and copies of the 

objections must be served at the same 

time on 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. OSHA and the Associate 

Solicitor for Fair Labor Standards may 

specify the means, including electronic 

means, for serving then with copies of 

the objections. 

(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. 

§ 1989.107 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 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. 

§ 1989.108 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 

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, and the right to seek 

discretionary review of a decision of the 

Administrative Review Board (ARB) 

from the Secretary. 

(2) Parties must send copies of 

documents to OSHA and to the 

Associate Solicitor, Division of Fair 

Labor Standards, U.S. Department of 

Labor, only upon request of OSHA, or 

when OSHA is participating in the 

proceeding, or when service on OSHA 

and the Associate Solicitor is otherwise 


khammond on DSKJM1Z7X2PROD with RULES
12586 Federal Register / Vol. 87, No. 44 / Monday, March 7, 2022 / Rules and Regulations 

required by these rules. Except as 

otherwise provided in rules of practice 

and/or procedure before the OALJ or the 

ARB, OSHA and the Associate Solicitor 

for Fair Labor Standards may specify the 

means, including electronic means, for 

serving them with documents under this 

section. 

(b) The IRS, if interested in a 

proceeding, may participate as amicus 

curiae at any time in the proceeding, at 

the IRS’s discretion. At the request of 

the IRS, copies of all documents in a 

case must be sent to the IRS, whether or 

not it is participating in the proceeding. 

§ 1989.109 Decisions and orders of the 

administrative law judge. 

(a) The decision of the ALJ will 

contain appropriate findings, 

conclusions, and an order pertaining to 

the remedies provided in paragraph (d) 

of this section, as appropriate. A 

determination that a violation has 

occurred may be made only if the 

complainant has demonstrated by a 

preponderance of the evidence that 

protected activity was a contributing 

factor in the adverse action alleged in 

the complaint. 

(b) If the complainant 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 OSHA’s determination to 

dismiss a complaint without completing 

an investigation pursuant to 

§ 1989.104(e) nor OSHA’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 providing all relief 

necessary to make the complainant 

whole, including, where appropriate: 

Reinstatement with the same seniority 

status that the complainant would have 

had, but for the retaliation; the sum of 

200 percent of the amount of back pay 

and 100 percent of all lost benefits, with 

interest; and compensation for any 

special damages sustained as a result of 

the retaliation, including litigation 

costs, expert witness fees, and 

reasonable attorney fees. Interest on 

back pay will be calculated using the 

interest rate applicable to underpayment 

of taxes under 26 U.S.C. 6621(a)(2) and 

will be compounded daily. The order 

will also require the respondent to 

submit appropriate documentation to 

the Social Security Administration 

allocating any back pay award to the 

appropriate periods. 

(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 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. 

OSHA and the Associate Solicitor for 

Fair Labor Standards may specify the 

means, including electronic means, for 

service of decisions on them under this 

section. 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 30 days 

after the date of the decision unless a 

timely petition for review has been filed 

with the Administrative Review ARB 

(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. 

§ 1989.110 Decisions 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 fees, must file a written 

petition for review with the 

Administrative Review Board (ARB or 

Board), which has been delegated the 

authority to act for the Secretary and 

issue decisions under this part subject 

to the Secretary’s discretionary review. 

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 

30 days of the date of the decision of the 

ALJ. All petitions and documents 

submitted to the ARB must be filed 

electronically, in accordance with Part 

26, unless another filing method has 

been authorized by the ARB for good 

cause. The date of the postmark, 

facsimile transmittal, or electronic 

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. The petition for 

review also must be served on the 

Assistant Secretary and on the Associate 

Solicitor, Division of Fair Labor 

Standards, U.S. Department of Labor. 

OSHA and the Associate Solicitor for 

Fair Labor Standards may specify the 

means, including electronic means, for 

service of petitions for review on them 

under this section. 

(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 a timely petition for review 

is not filed, or the ARB denies review, 

the decision of the ALJ will become the 

final order of the Secretary. If a timely 

petition for review is not filed, the 

resulting final order is not subject to 

judicial review. 

(c) The decision of the ARB will be 

issued within 120 days of the 

conclusion of the hearing, which will be 

deemed to be 30 days after 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 30 days after a new decision is 

issued. The ARB’s decision will be 

served upon all parties and the Chief 

Administrative Law Judge. The 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. OSHA 

and the Associate Solicitor for Fair 

Labor Standards may specify the means, 

including electronic means, for service 

of ARB decisions on them under this 

section. 


khammond on DSKJM1Z7X2PROD with RULES
Federal Register / Vol. 87, No. 44 / Monday, March 7, 2022 / Rules and Regulations 12587 

(d) If the ARB concludes that the 

respondent has violated the law, the 

ARB will issue an order providing all 

relief necessary to make the 

complainant whole. The order will 

require, where appropriate: 

Reinstatement with the same seniority 

status that the complainant would have 

had, but for the retaliation; the sum of 

200 percent of the amount of back pay 

and 100 percent of all lost benefits, with 

interest; and compensation for any 

special damages sustained as a result of 

the retaliation, including litigation 

costs, expert witness fees, and 

reasonable attorney fees. Interest on 

back pay will be calculated using the 

interest rate applicable to underpayment 

of taxes under 26 U.S.C. 6621(a)(2) and 

will be compounded daily. The order 

will also require the respondent to 

submit appropriate documentation to 

the Social Security Administration 

allocating any back pay award to the 

appropriate periods. Such order is 

subject to discretionary review by the 

Secretary (as provided in Secretary’s 

Order 01–2020 or any successor to that 

order). 

(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 fee, 

not exceeding $1,000. An order under 

this section is subject to discretionary 

review by the Secretary (as provided in 

Secretary’s Order 01–2020 or any 

successor to that order). 

Subpart C—Miscellaneous Provisions 

§ 1989.111 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 the 

complaint by notifying OSHA, orally or 

in writing, of the withdrawal. OSHA 

then will confirm in writing the 

complainant’s desire to withdraw and 

determine whether to approve the 

withdrawal. OSHA will notify the 

parties (or 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 the 

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 § 1989.106, 

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, but 

before the findings and/or order are 

objected to or become a final order by 

operation of law, the case may be settled 

if OSHA, the complainant, and the 

respondent agree to a settlement. 

OSHA’s approval of a settlement 

reached by the respondent and the 

complainant demonstrates OSHA’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. If the 

Secretary has accepted the case for 

discretionary review, or directed that 

the case be referred for discretionary 

review, the settlement must be approved 

by the Secretary. A copy of the 

settlement will be filed with the ALJ or 

the ARB, as appropriate. 

(e) Any settlement approved by 

OSHA, the ALJ, the ARB or the 

Secretary will constitute the final order 

of the Secretary and may be enforced in 

United States district court pursuant to 

§ 1989.113. 

§ 1989.112 Judicial review. 

(a) Within 60 days after the issuance 

of a final order for which judicial review 

is available (including a decision issued 

by the Secretary upon discretionary 

review), 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 the 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. 

§ 1989.113 Judicial enforcement. 

Whenever any person has failed to 

comply with a preliminary order of 

reinstatement or a final order issued 

under TFA, including one approving a 

settlement agreement, the Secretary may 

file a civil action seeking enforcement of 

the order in the United States district 

court for the district in which the 

violation was found to have occurred. 

Whenever any person has failed to 

comply with a preliminary order of 

reinstatement or a final order issued 

under TFA, including one approving a 

settlement agreement, a person on 

whose behalf the order was issued may 

file a civil action seeking enforcement of 

the order in the appropriate United 

States district court. 

§ 1989.114 District court jurisdiction of 

retaliation complaints. 

(a) If the Secretary has not issued a 

final decision within 180 days of the 

filing of the complaint, and there is no 

showing that there has been delay due 

to the bad faith of the complainant, the 

complainant may bring an action at law 

or equity for de novo review in the 

appropriate district court of the United 

States, which will have jurisdiction over 

such an action without regard to the 

amount in controversy. Either party 

shall be entitled to a trial by jury. 

(b) A proceeding under paragraph (a) 

of this section shall be governed by the 


khammond on DSKJM1Z7X2PROD with RULES
12588 Federal Register / Vol. 87, No. 44 / Monday, March 7, 2022 / Rules and Regulations 

same legal burdens of proof specified in 

§ 1989.109. 

(c) Within seven days after filing a 

complaint in federal court, a 

complainant must file with OSHA, the 

ALJ, or the ARB, depending on where 

the proceeding is pending, a copy of the 

file-stamped complaint. A copy of the 

complaint also must be served on the 

OSHA official who issued the findings 

and/or preliminary order, the Assistant 

Secretary, and the Associate Solicitor, 

Division of Fair Labor Standards, U.S. 

Department of Labor. 

§ 1989.115 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, and after three days’ notice 

to all parties, waive any rule or issue 

such orders that justice or the 

administration of TFA requires. 

[FR Doc. 2022–04238 Filed 3–4–22; 8:45 am] 

BILLING CODE 4510–26–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 100 

[Docket Number USCG–2022–0032] 

RIN 1625–AA08 

Special Local Regulation; Lake 

Havasu, Lake Havasu City, AZ 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard is 

establishing a temporary special local 

regulation (SLR) in the navigable waters 

of Lake Havasu, Arizona during the 

Lake Havasu Triathlon marine event. 

This regulation is necessary to provide 

for the safety of the participants, crew, 

spectators, sponsor vessels, and general 

users of the waterway during the event, 

which will be held on March 19, 2022. 

This special local regulation will 

temporarily prohibit persons and 

vessels from entering into, transiting 

through, anchoring, blocking, or 

loitering within the event area unless 

authorized by the Captain of the Port 

San Diego or a designated 

representative. 

DATES: This rule is effective from 8 a.m. 

to 9 a.m. on March 19, 2022. 

ADDRESSES: To view documents 

mentioned in this preamble as being 

available in the docket, go to https://

www.regulations.gov, type USCG–2022– 

0032 in the search box and click 

‘‘Search.’’ Next, in the Document Type 

column, select ‘‘Supporting & Related 

Material.’’ 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, call or 

email Lieutenant Commander John 

Santorum, Waterways Management, 

U.S. Coast Guard Sector San Diego, CA; 

telephone (619) 278–7656, email 

D11MarineEventsSD@uscg.mil. 

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations 

CFR Code of Federal Regulations 

DHS Department of Homeland Security 

FR Federal Register 

NPRM Notice of proposed rulemaking 

§ Section 

U.S.C. United States Code 

II. Background Information and 

Regulatory History 

The Coast Guard is issuing this 

temporary rule without prior notice and 

opportunity to comment pursuant to 

authority under section 4(a) of the 

Administrative Procedure Act (APA) (5 

U.S.C. 553(b)). This provision 

authorizes an agency to issue a rule 

without prior notice and opportunity to 

comment when the agency for good 

cause finds that those procedures are 

‘‘impracticable, unnecessary, or contrary 

to the public interest.’’ Under 5 U.S.C. 

553(b)(B), the Coast Guard finds that 

good cause exists for not publishing a 

notice of proposed rulemaking (NPRM) 

with respect to this rule because it is 

impracticable. We must establish this 

special local regulation by March 19, 

2022. Therefore, it is impracticable to 

publish an NPRM because we lack 

sufficient time to provide a reasonable 

comment period and then consider 

those comments before issuing the rule. 

This regulation is necessary to ensure 

the safety of life on the navigable waters 

of Lake Havasu during the marine event. 

Under 5 U.S.C. 553(d)(3), the Coast 

Guard finds that good cause exists for 

making this rule effective less than 30 

days after publication in the Federal 

Register. Delaying the effective date of 

this rule would be contrary to public 

interest because action is needed to 

ensure the safety of life on the navigable 

waters of Lake Havasu during the 

marine event on March 19, 2022. 

III. Legal Authority and Need for Rule 

The Coast Guard is issuing this rule 

under authority in 46 U.S.C. 70041 

(previously 33 U.S.C. 1236). The 

Captain of the Port Sector San Diego 

(COTP) has determined that the large 

number of swimmers associated with 

the Lake Havasu Triathlon marine event 

on March 19, 2022, poses a potential 

safety concern in the regulated area. 

This rule is needed to protect persons, 

vessels, and the marine environment in 

the navigable waters of Lake Havasu 

during the marine event. 

IV. Discussion of Comments, Changes, 

and the Rule 

This rule establishes a special local 

regulation from 8 a.m. to 9 a.m. on 

March 19, 2022. This special local 

regulation will cover all navigable 

waters, from surface to bottom, on a predetermined course within Lake Havasu, 

Arizona beginning at the starting point 

of the event at Lake Havasu State Park 

South Beach and proceeding south to 

the southern entrance to the 

Bridgewater Channel. The duration of 

the temporary special local regulation is 

intended to ensure the safety of 

participants, vessels, and the marine 

environment in these navigable waters 

during the scheduled marine event. No 

vessel or person will be permitted to 

enter the regulated area without 

obtaining permission from the COTP or 

a designated representative. The 

regulatory text provides information on 

how to contact the COTP or a 

designated representative for permission 

to transit the area. When in the 

regulated area, persons must comply 

with all lawful orders or directions 

given to them by the COTP or 

designated representative. Additionally, 

the COTP will provide notice of the 

regulated area through advanced notice 

via Local Notice to Mariners or by onscene designated representatives. 

V. Regulatory Analyses 

We developed this rule after 

considering numerous statutes and 

Executive orders related to rulemaking. 

Below we summarize our analyses 

based on a number of these statutes and 

Executive orders, and we discuss First 

Amendment rights of protestors. 

A. Regulatory Planning and Review 

Executive Orders 12866 and 13563 

direct agencies to assess the costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits. 

This rule has not been designated a 

‘‘significant regulatory action,’’ under 

Executive Order 12866. Accordingly, 

this rule has not been reviewed by the 

Office of Management and Budget 

(OMB). 

This regulatory action determination 

is based on the size, location, duration, 

and time-of-day of the regulated area. 

The affected portion of the navigable 

waterway in Lake Havasu will be of very 

limited duration, and is necessary for 


khammond on DSKJM1Z7X2PROD with RULES