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•AMDT. NO. 4805 
inspection resources under section 421 of the 
Federal Food, Drug, and Cosmetic Act, as 
added by section 6201. 
SEC. 6307. ACCREDITATION OF THIRD-PARTY AUDITORS. 
Chapter VIII (21 U.S.C. 381 et seq.), as amended 
by section 6306, is amended by adding at the end the fol-
lowing: 
‘‘SEC. 808. ACCREDITATION OF THIRD-PARTY AUDITORS. 
‘‘(a) DEFINITIONS.—In this section: 
‘‘(1) AUDIT
AGENT.—The term ‘audit agent’ 
means an individual who is an employee or agent of 
an accredited third-party auditor and, although not 
individually accredited, is qualified to conduct food 
safety audits on behalf of an accredited third-party 
auditor. 
‘‘(2) ACCREDITATION
BODY.—The term ‘ac-
creditation body’ means an authority that performs 
accreditation of third-party auditors. 
‘‘(3) THIRD-PARTY AUDITOR.—The term ‘third- 
party auditor’ means a foreign government, agency 
of a foreign government, foreign cooperative, or any 
other thirdparty, as the Secretary determines appro-
priate in accordance with the model standards de-
scribed in subsection (b)(2), that is eligible to be 
considered for accreditation to conduct food safety 
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•AMDT. NO. 4805 
audits to certify that eligible entities meet the appli-
cable requirements of this section. A third-party 
auditor may be a single individual. A third-party 
auditor may employ or use audit agents to help con-
duct consultative and regulatory audits. 
‘‘(4) ACCREDITED
THIRD-PARTY
AUDITOR.— 
The term ‘accredited third-party auditor’ means a 
third-party auditor accredited by an accreditation 
body to conduct audits of eligible entities to certify 
that such eligible entities meet the applicable re-
quirements of this section. An accredited third-party 
auditor may be an individual who conducts food 
safety audits to certify that eligible entities meet the 
applicable requirements of this section. 
‘‘(5) CONSULTATIVE
AUDIT.—The term ‘con-
sultative audit’ means an audit of an eligible enti-
ty— 
‘‘(A) to determine whether such entity is in 
compliance with the provisions of this Act and 
with applicable industry standards and prac-
tices; and 
‘‘(B) the results of which are for internal 
purposes only. 
‘‘(6) ELIGIBLE ENTITY.—The term ‘eligible en-
tity’ means a foreign entity, including a foreign fa-
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•AMDT. NO. 4805 
cility registered under section 415, in the food im-
port supply chain that chooses to be audited by an 
accredited third-party auditor or the audit agent of 
such accredited third-party auditor. 
‘‘(7) REGULATORY
AUDIT.—The term ‘regu-
latory audit’ means an audit of an eligible entity— 
‘‘(A) to determine whether such entity is in 
compliance with the provisions of this Act; and 
‘‘(B) the results of which determine— 
‘‘(i) whether an article of food manu-
factured, processed, packed, or held by 
such entity is eligible to receive a food cer-
tification under section 801(q); or 
‘‘(ii) whether a facility is eligible to 
receive a facility certification under section 
806(a) for purposes of participating in the 
program under section 806. 
‘‘(b) ACCREDITATION SYSTEM.— 
‘‘(1) ACCREDITATION BODIES.— 
‘‘(A) RECOGNITION
OF
ACCREDITATION 
BODIES.— 
‘‘(i) IN GENERAL.—Not later than 2 
years after the date of enactment of the 
FDA Food Safety Modernization Act, the 
Secretary shall establish a system for the 
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•AMDT. NO. 4805 
recognition of accreditation bodies that ac-
credit third-party auditors to certify that 
eligible entities meet the applicable require-
ments of this section. 
‘‘(ii) DIRECT ACCREDITATION.—If, by 
the date that is 2 years after the date of 
establishment of the system described in 
clause (i), the Secretary has not identified 
and recognized an accreditation body to 
meet the requirements of this section, the 
Secretary may directly accredit third-party 
auditors. 
‘‘(B) NOTIFICATION.—Each accreditation 
body recognized by the Secretary shall submit 
to the Secretary a list of all accredited third- 
party auditors accredited by such body and the 
audit agents of such auditors. 
‘‘(C) REVOCATION OF RECOGNITION AS AN 
ACCREDITATION
BODY.—The Secretary shall 
promptly revoke the recognition of any accredi-
tation body found not to be in compliance with 
the requirements of this section. 
‘‘(D) 
REINSTATEMENT.—The 
Secretary 
shall establish procedures to reinstate recogni-
tion of an accreditation body if the Secretary 
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•AMDT. NO. 4805 
determines, based on evidence presented by 
such accreditation body, that revocation was in-
appropriate or that the body meets the require-
ments for recognition under this section. 
‘‘(2) MODEL
ACCREDITATION
STANDARDS.— 
Not later than 18 months after the date of enact-
ment of the FDA Food Safety Modernization Act, 
the Secretary shall develop model standards, includ-
ing requirements for regulatory audit reports, and 
each recognized accreditation body shall ensure that 
third-party auditors and audit agents of such audi-
tors meet such standards in order to qualify such 
third-party auditors as accredited third-party audi-
tors under this section. In developing the model 
standards, the Secretary shall look to standards in 
place on the date of the enactment of this section for 
guidance, to avoid unnecessary duplication of efforts 
and costs. 
‘‘(c) THIRD-PARTY AUDITORS.— 
‘‘(1) REQUIREMENTS FOR ACCREDITATION AS A 
THIRD-PARTY AUDITOR.— 
‘‘(A) FOREIGN
GOVERNMENTS.—Prior to 
accrediting a foreign government or an agency 
of a foreign government as an accredited third- 
party auditor, the accreditation body (or, in the 
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•AMDT. NO. 4805 
case of direct accreditation under subsection 
(b)(1)(A)(ii), the Secretary) shall perform such 
reviews and audits of food safety programs, sys-
tems, and standards of the government or agen-
cy of the government as the Secretary deems 
necessary, including requirements under the 
model standards developed under subsection 
(b)(2), to determine that the foreign govern-
ment or agency of the foreign government is ca-
pable of adequately ensuring that eligible enti-
ties or foods certified by such government or 
agency meet the requirements of this Act with 
respect 
to 
food 
manufactured, 
processed, 
packed, or held for import into the United 
States. 
‘‘(B) FOREIGN COOPERATIVES AND OTHER 
THIRD PARTIES.—Prior to accrediting a foreign 
cooperative that aggregates the products of 
growers or processors, or any other third party 
to be an accredited third-party auditor, the ac-
creditation body (or, in the case of direct ac-
creditation under subsection (b)(1)(A)(ii), the 
Secretary) shall perform such reviews and au-
dits of the training and qualifications of audit 
agents used by that cooperative or party and 
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•AMDT. NO. 4805 
conduct such reviews of internal systems and 
such other investigation of the cooperative or 
party as the Secretary deems necessary, includ-
ing requirements under the model standards de-
veloped under subsection (b)(2), to determine 
that each eligible entity certified by the cooper-
ative or party has systems and standards in use 
to ensure that such entity or food meets the re-
quirements of this Act. 
‘‘(2) REQUIREMENT TO ISSUE CERTIFICATION 
OF ELIGIBLE ENTITIES OR FOODS.— 
‘‘(A) IN GENERAL.—An accreditation body 
(or, in the case of direct accreditation under 
subsection (b)(1)(A)(ii), the Secretary) may not 
accredit a third-party auditor unless such third- 
party auditor agrees to issue a written and, as 
appropriate, electronic food certification, de-
scribed in section 801(q), or facility certifi-
cation under section 806(a), as appropriate, to 
accompany each food shipment for import into 
the United States from an eligible entity, sub-
ject to requirements set forth by the Secretary. 
Such written or electronic certification may be 
included with other documentation regarding 
such food shipment. The Secretary shall con-
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•AMDT. NO. 4805 
sider certifications under section 801(q) and 
participation in the voluntary qualified importer 
program described in section 806 when tar-
geting inspection resources under section 421. 
‘‘(B) PURPOSE
OF
CERTIFICATION.—The 
Secretary shall use certification provided by ac-
credited third-party auditors to— 
‘‘(i) determine, in conjunction with 
any other assurances the Secretary may re-
quire under section 801(q), whether a food 
satisfies the requirements of such section; 
and 
‘‘(ii) determine whether a facility is el-
igible to be a facility from which food may 
be offered for import under the voluntary 
qualified importer program under section 
806. 
‘‘(C) REQUIREMENTS
FOR
ISSUING
CER-
TIFICATION.— 
‘‘(i) IN
GENERAL.—An accredited 
third-party auditor shall issue a food cer-
tification under section 801(q) or a facility 
certification described under subparagraph 
(B) only after conducting a regulatory 
audit and such other activities that may be 
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•AMDT. NO. 4805 
necessary to establish compliance with the 
requirements of such sections. 
‘‘(ii) PROVISION OF CERTIFICATION.— 
Only an accredited third-party auditor or 
the Secretary may provide a facility certifi-
cation under section 806(a). Only those 
parties described in 801(q)(3) or the Sec-
retary may provide a food certification 
under 301(g). 
‘‘(3) AUDIT
REPORT
SUBMISSION
REQUIRE-
MENTS.— 
‘‘(A) REQUIREMENTS IN GENERAL.—As a 
condition of accreditation, not later than 45 
days after conducting an audit, an accredited 
third-party auditor or audit agent of such audi-
tor shall prepare, and, in the case of a regu-
latory audit, submit, the audit report for each 
audit conducted, in a form and manner des-
ignated by the Secretary, which shall include— 
‘‘(i) the identity of the persons at the 
audited eligible entity responsible for com-
pliance with food safety requirements; 
‘‘(ii) the dates of the audit; 
‘‘(iii) the scope of the audit; and 
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•AMDT. NO. 4805 
‘‘(iv) any other information required 
by the Secretary that relates to or may in-
fluence an assessment of compliance with 
this Act. 
‘‘(B) RECORDS.—Following any accredita-
tion of a third-party auditor, the Secretary 
may, at any time, require the accredited third- 
party auditor to submit to the Secretary an on-
site audit report and such other reports or doc-
uments required as part of the audit process, 
for any eligible entity certified by the third- 
party auditor or audit agent of such auditor. 
Such report may include documentation that 
the eligible entity is in compliance with any ap-
plicable registration requirements. 
‘‘(C) 
LIMITATION.—The 
requirement 
under subparagraph (B) shall not include any 
report or other documents resulting from a con-
sultative audit by the accredited third-party 
auditor, except that the Secretary may access 
the results of a consultative audit in accordance 
with section 414. 
‘‘(4) REQUIREMENTS OF ACCREDITED THIRD- 
PARTY
AUDITORS
AND
AUDIT
AGENTS
OF
SUCH 
AUDITORS.— 
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•AMDT. NO. 4805 
‘‘(A) RISKS TO PUBLIC HEALTH.—If, at 
any time during an audit, an accredited third- 
party auditor or audit agent of such auditor 
discovers a condition that could cause or con-
tribute to a serious risk to the public health, 
such auditor shall immediately notify the Sec-
retary of— 
‘‘(i) the identification of the eligible 
entity subject to the audit; and 
‘‘(ii) such condition. 
‘‘(B) TYPES
OF
AUDITS.—An accredited 
third-party auditor or audit agent of such audi-
tor may perform consultative and regulatory 
audits of eligible entities. 
‘‘(C) LIMITATIONS.— 
‘‘(i) IN
GENERAL.—An accredited 
third-party auditor may not perform a reg-
ulatory audit of an eligible entity if such 
agent has performed a consultative audit 
or a regulatory audit of such eligible entity 
during the previous 13-month period. 
‘‘(ii) WAIVER.—The Secretary may 
waive the application of clause (i) if the 
Secretary determines that there is insuffi-
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•AMDT. NO. 4805 
cient access to accredited third-party audi-
tors in a country or region. 
‘‘(5) CONFLICTS OF INTEREST.— 
‘‘(A) THIRD-PARTY
AUDITORS.—An ac-
credited third-party auditor shall— 
‘‘(i) not be owned, managed, or con-
trolled by any person that owns or operates 
an eligible entity to be certified by such 
auditor; 
‘‘(ii) in carrying out audits of eligible 
entities under this section, have procedures 
to ensure against the use of any officer or 
employee of such auditor that has a finan-
cial conflict of interest regarding an eligi-
ble entity to be certified by such auditor; 
and 
‘‘(iii) annually make available to the 
Secretary disclosures of the extent to 
which such auditor and the officers and 
employees of such auditor have maintained 
compliance with clauses (i) and (ii) relat-
ing to financial conflicts of interest. 
‘‘(B) AUDIT
AGENTS.—An audit agent 
shall— 
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•AMDT. NO. 4805 
‘‘(i) not own or operate an eligible en-
tity to be audited by such agent; 
‘‘(ii) in carrying out audits of eligible 
entities under this section, have procedures 
to ensure that such agent does not have a 
financial conflict of interest regarding an 
eligible entity to be audited by such agent; 
and 
‘‘(iii) annually make available to the 
Secretary disclosures of the extent to 
which such agent has maintained compli-
ance with clauses (i) and (ii) relating to fi-
nancial conflicts of interest. 
‘‘(C) REGULATIONS.—The Secretary shall 
promulgate regulations not later than 18 
months after the date of enactment of the FDA 
Food Safety Modernization Act to implement 
this section and to ensure that there are protec-
tions against conflicts of interest between an 
accredited third-party auditor and the eligible 
entity to be certified by such auditor or audited 
by such audit agent. Such regulations shall in-
clude— 
‘‘(i) requiring that audits performed 
under this section be unannounced; 
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•AMDT. NO. 4805 
‘‘(ii) a structure to decrease the po-
tential for conflicts of interest, including 
timing and public disclosure, for fees paid 
by eligible entities to accredited third-party 
auditors; and 
‘‘(iii) appropriate limits on financial 
affiliations between an accredited third- 
party auditor or audit agents of such audi-
tor and any person that owns or operates 
an eligible entity to be certified by such 
auditor, as described in subparagraphs (A) 
and (B). 
‘‘(6) WITHDRAWAL OF ACCREDITATION.— 
‘‘(A) IN
GENERAL.—The Secretary shall 
withdraw accreditation from an accredited 
third-party auditor— 
‘‘(i) if food certified under section 
801(q) or from a facility certified under 
paragraph (2)(B) by such third-party audi-
tor is linked to an outbreak of foodborne 
illness that has a reasonable probability of 
causing 
serious 
adverse 
health 
con-
sequences or death in humans or animals; 
‘‘(ii) following an evaluation and find-
ing by the Secretary that the third-party 
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•AMDT. NO. 4805 
auditor no longer meets the requirements 
for accreditation; or 
‘‘(iii) following a refusal to allow 
United States officials to conduct such au-
dits and investigations as may be necessary 
to ensure continued compliance with the 
requirements set forth in this section. 
‘‘(B) 
ADDITIONAL
BASIS
FOR
WITH-
DRAWAL
OF
ACCREDITATION.—The Secretary 
may withdraw accreditation from an accredited 
third-party auditor in the case that such third- 
party auditor is accredited by an accreditation 
body for which recognition as an accreditation 
body under subsection (b)(1)(C) is revoked, if 
the Secretary determines that there is good 
cause for the withdrawal. 
‘‘(C) EXCEPTION.—The Secretary may 
waive the application of subparagraph (A)(i) if 
the Secretary— 
‘‘(i) conducts an investigation of the 
material facts related to the outbreak of 
human or animal illness; and 
‘‘(ii) reviews the steps or actions 
taken by the third-party auditor to justify 
the certification and determines that the 
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•AMDT. NO. 4805 
accredited third-party auditor satisfied the 
requirements under section 801(q) of certi-
fying the food, or the requirements under 
paragraph (2)(B) of certifying the entity. 
‘‘(7) REACCREDITATION.—The Secretary shall 
establish procedures to reinstate the accreditation of 
a third-party auditor for which accreditation has 
been withdrawn under paragraph (6)— 
‘‘(A) if the Secretary determines, based on 
evidence presented, that the third-party auditor 
satisfies the requirements of this section and 
adequate grounds for revocation no longer exist; 
and 
‘‘(B) in the case of a third-party auditor 
accredited by an accreditation body for which 
recognition as an accreditation body under sub-
section (b)(1)(C) is revoked— 
‘‘(i) if the third-party auditor becomes 
accredited not later than 1 year after rev-
ocation of accreditation under paragraph 
(6)(A), through direct accreditation under 
subsection (b)(1)(A)(ii) or by an accredita-
tion body in good standing; or 
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•AMDT. NO. 4805 
‘‘(ii) under such conditions as the Sec-
retary may require for a third-party audi-
tor under paragraph (6)(B). 
‘‘(8) NEUTRALIZING
COSTS.—The Secretary 
shall establish by regulation a reimbursement (user 
fee) program, similar to the method described in sec-
tion 203(h) of the Agriculture Marketing Act of 
1946, by which the Secretary assesses fees and re-
quires accredited third-party auditors and audit 
agents to reimburse the Food and Drug Administra-
tion for the work performed to establish and admin-
ister the accreditation system under this section. 
The Secretary shall make operating this program 
revenue-neutral and shall not generate surplus rev-
enue from such a reimbursement mechanism. Fees 
authorized under this paragraph shall be collected 
and available for obligation only to the extent and in 
the amount provided in advance in appropriation 
Acts. Such fees are authorized to remain available 
until expended. 
‘‘(d) RECERTIFICATION OF ELIGIBLE ENTITIES.—An 
eligible entity shall apply for annual recertification by an 
accredited third-party auditor if such entity— 
‘‘(1) intends to participate in voluntary quali-
fied importer program under section 806; or 
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•AMDT. NO. 4805 
‘‘(2) is required to provide to the Secretary a 
certification under section 801(q) for any food from 
such entity. 
‘‘(e) FALSE STATEMENTS.—Any statement or rep-
resentation made— 
‘‘(1) by an employee or agent of an eligible enti-
ty to an accredited third-party auditor or audit 
agent; or 
‘‘(2) by an accredited third-party auditor to the 
Secretary, 
shall be subject to section 1001 of title 18, United States 
Code. 
‘‘(f) MONITORING.—To ensure compliance with the 
requirements of this section, the Secretary shall— 
‘‘(1) periodically, or at least once every 4 years, 
reevaluate the accreditation bodies described in sub-
section (b)(1); 
‘‘(2) periodically, or at least once every 4 years, 
evaluate the performance of each accredited third- 
party auditor, through the review of regulatory audit 
reports by such auditors, the compliance history as 
available of eligible entities certified by such audi-
tors, and any other measures deemed necessary by 
the Secretary; 
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•AMDT. NO. 4805 
‘‘(3) at any time, conduct an onsite audit of 
any eligible entity certified by an accredited third- 
party auditor, with or without the auditor present; 
and 
‘‘(4) take any other measures deemed necessary 
by the Secretary. 
‘‘(g) PUBLICLY AVAILABLE REGISTRY.—The Sec-
retary shall establish a publicly available registry of ac-
creditation bodies and of accredited third-party auditors, 
including the name of, contact information for, and other 
information deemed necessary by the Secretary about such 
bodies and auditors. 
‘‘(h) LIMITATIONS.— 
‘‘(1) NO
EFFECT
ON
SECTION
704
INSPEC-
TIONS.—The audits performed under this section 
shall not be considered inspections under section 
704. 
‘‘(2) NO
EFFECT
ON
INSPECTION
AUTHOR-
ITY.—Nothing in this section affects the authority of 
the Secretary to inspect any eligible entity pursuant 
to this Act.’’. 
SEC. 6308. FOREIGN OFFICES OF THE FOOD AND DRUG AD-
MINISTRATION. 
(a) IN GENERAL.—The Secretary shall establish of-
fices of the Food and Drug Administration in foreign 
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•AMDT. NO. 4805 
countries selected by the Secretary, to provide assistance 
to the appropriate governmental entities of such countries 
with respect to measures to provide for the safety of arti-
cles of food and other products regulated by the Food and 
Drug Administration exported by such country to the 
United States, including by directly conducting risk-based 
inspections of such articles and supporting such inspec-
tions by such governmental entity. 
(b) CONSULTATION.—In establishing the foreign of-
fices described in subsection (a), the Secretary shall con-
sult with the Secretary of State, the Secretary of Home-
land Security, and the United States Trade Representa-
tive. 
(c) REPORT.—Not later than October 1, 2011, the 
Secretary shall submit to Congress a report on the basis 
for the selection by the Secretary of the foreign countries 
in which the Secretary established offices, the progress 
which such offices have made with respect to assisting the 
governments of such countries in providing for the safety 
of articles of food and other products regulated by the 
Food and Drug Administration exported to the United 
States, and the plans of the Secretary for establishing ad-
ditional foreign offices of the Food and Drug Administra-
tion, as appropriate. 
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•AMDT. NO. 4805 
SEC. 6309. SMUGGLED FOOD. 
(a) IN GENERAL.—Not later than 180 days after the 
enactment of this Act, the Secretary shall, in coordination 
with the Secretary of Homeland Security, develop and im-
plement a strategy to better identify smuggled food and 
prevent entry of such food into the United States. 
(b) NOTIFICATION TO HOMELAND SECURITY.—Not 
later than 10 days after the Secretary identifies a smug-
gled food that the Secretary believes would cause serious 
adverse health consequences or death to humans or ani-
mals, the Secretary shall provide to the Secretary of 
Homeland Security a notification under section 417(n) of 
the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 
350f(k)) describing the smuggled food and, if available, 
the names of the individuals or entities that attempted to 
import such food into the United States. 
(c) PUBLIC NOTIFICATION.—If the Secretary— 
(1) identifies a smuggled food; 
(2) reasonably believes exposure to the food 
would cause serious adverse health consequences or 
death to humans or animals; and 
(3) reasonably believes that the food has en-
tered domestic commerce and is likely to be con-
sumed, 
the Secretary shall promptly issue a press release describ-
ing that food and shall use other emergency communica-
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•AMDT. NO. 4805 
tion or recall networks, as appropriate, to warn consumers 
and vendors about the potential threat. 
(d) EFFECT OF SECTION.—Nothing in this section 
shall affect the authority of the Secretary to issue public 
notifications under other circumstances. 
(e) DEFINITION.—In this subsection, the term 
‘‘smuggled food’’ means any food that a person introduces 
into the United States through fraudulent means or with 
the intent to defraud or mislead. 
TITLE IV—MISCELLANEOUS 
PROVISIONS 
SEC. 6401. FUNDING FOR FOOD SAFETY. 
(a) IN GENERAL.—There are authorized to be appro-
priated to carry out the activities of the Center for Food 
Safety and Applied Nutrition, the Center for Veterinary 
Medicine, and related field activities in the Office of Regu-
latory Affairs of the Food and Drug Administration such 
sums as may be necessary for fiscal years 2011 through 
2015. 
(b) INCREASED NUMBER OF FIELD STAFF.— 
(1) IN GENERAL.—To carry out the activities of 
the Center for Food Safety and Applied Nutrition, 
the Center for Veterinary Medicine, and related field 
activities of the Office of Regulatory Affairs of the 
Food and Drug Administration, the Secretary of 
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•AMDT. NO. 4805 
Health and Human Services shall increase the field 
staff of such Centers and Office with a goal of not 
fewer than— 
(A) 4,000 staff members in fiscal year 
2011; 
(B) 4,200 staff members in fiscal year 
2012; 
(C) 4,600 staff members in fiscal year 
2013; and 
(D) 5,000 staff members in fiscal year 
2014. 
(2) FIELD STAFF FOR FOOD DEFENSE.—The 
goal under paragraph (1) shall include an increase 
of 150 employees by fiscal year 2011 to— 
(A) provide additional detection of and re-
sponse to food defense threats; and 
(B) detect, track, and remove smuggled 
food (as defined in section 6309) from com-
merce. 
SEC. 6402. EMPLOYEE PROTECTIONS. 
Chapter X of the Federal Food, Drug, and Cosmetic 
Act (21 U.S.C. 391 et seq.), as amended by section 6209, 
is further amended by adding at the end the following: 
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•AMDT. NO. 4805 
‘‘SEC. 1013. EMPLOYEE PROTECTIONS. 
‘‘(a) IN GENERAL.—No entity engaged in the manu-
facture, processing, packing, transporting, distribution, re-
ception, holding, or importation of food may discharge an 
employee or otherwise discriminate against an employee 
with respect to compensation, terms, conditions, or privi-
leges of employment because the employee, whether at the 
employee’s initiative or in the ordinary course of the em-
ployee’s duties (or any person acting pursuant to a request 
of the employee)— 
‘‘(1) provided, caused to be provided, or is 
about to provide or cause to be provided to the em-
ployer, the Federal Government, or the attorney 
general of a State information relating to any viola-
tion of, or any act or omission the employee reason-
ably believes to be a violation of any provision of this 
Act or any order, rule, regulation, standard, or ban 
under this Act, or any order, rule, regulation, stand-
ard, or ban under this Act; 
‘‘(2) testified or is about to testify in a pro-
ceeding concerning such violation; 
‘‘(3) assisted or participated or is about to as-
sist or participate in such a proceeding; or 
‘‘(4) objected to, or refused to participate in, 
any activity, policy, practice, or assigned task that 
the employee (or other such person) reasonably be-
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•AMDT. NO. 4805 
order. Any such hearing shall be conducted ex-
peditiously. If a hearing is not requested in 
such 30-day period, the preliminary order shall 
be deemed a final order that is not subject to 
judicial review. 
‘‘(C) DISMISSAL OF COMPLAINT.— 
‘‘(i) STANDARD FOR COMPLAINANT.— 
The Secretary shall dismiss a complaint 
filed under this subsection and shall not 
conduct an investigation otherwise required 
under subparagraph (A) unless the com-
plainant makes a prima facie showing that 
any behavior described in paragraphs (1) 
through (4) of subsection (a) was a con-
tributing factor in the unfavorable per-
sonnel action alleged in the complaint. 
‘‘(ii) STANDARD
FOR
EMPLOYER.— 
Notwithstanding a finding by the Secretary 
that the complainant has made the show-
ing required under clause (i), no investiga-
tion otherwise required under subpara-
graph (A) shall be conducted if the em-
ployer demonstrates, by clear and con-
vincing evidence, that the employer would 
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•AMDT. NO. 4805 
have taken the same unfavorable personnel 
action in the absence of that behavior. 
‘‘(iii) 
VIOLATION
STANDARD.—The 
Secretary may determine that a violation 
of subsection (a) has occurred only if the 
complainant demonstrates that any behav-
ior described in paragraphs (1) through 
(4) of subsection (a) was a contributing 
factor in the unfavorable personnel action 
alleged in the complaint. 
‘‘(iv) RELIEF STANDARD.—Relief may 
not be ordered under subparagraph (A) if 
the employer demonstrates by clear and 
convincing evidence that the employer 
would have taken the same unfavorable 
personnel action in the absence of that be-
havior. 
‘‘(3) FINAL ORDER.— 
‘‘(A) IN
GENERAL.—Not later than 120 
days after the date of conclusion of any hearing 
under paragraph (2), the Secretary shall issue 
a final order providing the relief prescribed by 
this paragraph or denying the complaint. At 
any time before issuance of a final order, a pro-
ceeding under this subsection may be termi-
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•AMDT. NO. 4805 
nated on the basis of a settlement agreement 
entered into by the Secretary, the complainant, 
and the person alleged to have committed the 
violation. 
‘‘(B) CONTENT
OF
ORDER.—If, in re-
sponse to a complaint filed under paragraph 
(1), the Secretary determines that a violation of 
subsection (a) has occurred, the Secretary shall 
order the person who committed such viola-
tion— 
‘‘(i) to take affirmative action to 
abate the violation; 
‘‘(ii) to reinstate the complainant to 
his or her former position together with 
compensation (including back pay) and re-
store the terms, conditions, and privileges 
associated with his or her employment; and 
‘‘(iii) to provide compensatory dam-
ages to the complainant. 
‘‘(C) PENALTY.—If such an order is issued 
under this paragraph, the Secretary, at the re-
quest of the complainant, shall assess against 
the person against whom the order is issued a 
sum equal to the aggregate amount of all costs 
and expenses (including attorneys’ and expert 
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•AMDT. NO. 4805 
witness fees) reasonably incurred, as deter-
mined by the Secretary, by the complainant for, 
or in connection with, the bringing of the com-
plaint upon which the order was issued. 
‘‘(D) BAD FAITH CLAIM.—If the Secretary 
finds that a complaint under paragraph (1) is 
frivolous or has been brought in bad faith, the 
Secretary may award to the prevailing employer 
a reasonable attorneys’ fee, not exceeding 
$1,000, to be paid by the complainant. 
‘‘(4) ACTION IN COURT.— 
‘‘(A) IN GENERAL.—If the Secretary has 
not issued a final decision within 210 days after 
the filing of the complaint, or within 90 days 
after receiving a written determination, the 
complainant may bring an action at law or eq-
uity for de novo review in the appropriate dis-
trict court of the United States with jurisdic-
tion, which shall have jurisdiction over such an 
action without regard to the amount in con-
troversy, and which action shall, at the request 
of either party to such action, be tried by the 
court with a jury. The proceedings shall be gov-
erned by the same legal burdens of proof speci-
fied in paragraph (2)(C). 
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•AMDT. NO. 4805 
‘‘(B) RELIEF.—The court shall have juris-
diction to grant all relief necessary to make the 
employee whole, including injunctive relief and 
compensatory damages, including— 
‘‘(i) reinstatement with the same se-
niority status that the employee would 
have had, but for the discharge or dis-
crimination; 
‘‘(ii) the amount of back pay, with in-
terest; and 
‘‘(iii) compensation for any special 
damages sustained as a result of the dis-
charge or discrimination, including litiga-
tion costs, expert witness fees, and reason-
able attorney’s fees. 
‘‘(5) REVIEW.— 
‘‘(A) IN GENERAL.—Unless the complain-
ant brings an action under paragraph (4), any 
person adversely affected or aggrieved by a final 
order issued under paragraph (3) may obtain 
review of the order in the United States Court 
of Appeals for the circuit in which the violation, 
with respect to which the order was issued, al-
legedly occurred or the circuit in which the 
complainant resided on the date of such viola-
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