[Federal Register Volume 88, Number 28 (Friday, February 10, 2023)]
[Rules and Regulations]
[Pages 8755-8768]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-02916]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1991

[Docket Number: OSHA-2021-0011]
RIN 1218-AD38


Procedures for the Handling of Retaliation Complaints Under the 
Criminal Antitrust Anti-Retaliation Act (CAARA)

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Interim final rule; request for comments.

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[[Page 8756]]

SUMMARY:  This document provides the interim final text of regulations 
governing the anti-retaliation (whistleblower protection) provision of 
the Criminal Antitrust Anti-Retaliation Act (CAARA or the Act). This 
rule establishes procedures and timeframes for the handling of 
retaliation complaints under CAARA, including procedures and timeframes 
for 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 decisions. It also sets forth the Secretary's 
interpretations of the CAARA anti-retaliation provision on certain 
matters.

DATES: This interim final rule is effective on February 10, 2023. 
Comments and additional materials must be submitted (post-marked, sent 
or received) by April 11, 2023.

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 https://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-2021-0011). 
OSHA will place comments, including personal information, in the public 
docket, which may be available online. Therefore, OSHA cautions 
interested parties against submitting personal information such as 
Social Security numbers and birthdates.
    Extension of comment period: Submit requests for an extension of 
the comment period on or before February 27, 2023 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.

FOR FURTHER INFORMATION CONTACT: Marisa Johnson, Program Analyst, 
Directorate of Whistleblower Protection Programs, Occupational Safety 
and Health Administration; telephone (202) 693-2199 (this is not a 
toll-free number) or email: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    The Criminal Antitrust Anti-Retaliation Act (CAARA or the Act), 
Public Law 116-257, 134 Stat. 1147, was enacted on December 23, 2020. 
Section 2 of the Act, codified at 15 U.S.C. 7a-3 and referred to 
throughout these interim final rules as CAARA, prohibits retaliation by 
an employer, defined in the statute as ``a person, or any officer, 
employee, contractor, subcontractor, or agent of such person,'' against 
a ``covered individual,'' defined in the statute as ``an employee, 
contractor, subcontractor or agent of an employer,'' in the terms and 
conditions of employment in reprisal for the individual having engaged 
in protected activity. Protected activity under CAARA includes any 
lawful act done by an individual to report certain information to the 
Federal Government, the individual's supervisor, or a person working 
for the employer who has the authority to investigate, discover, or 
terminate misconduct. The information must relate to: a violation (or 
conduct the individual reasonably believes is a violation) of section 1 
or 3 of the Sherman Act (15 U.S.C. 1 or 3), or a violation (or conduct 
the individual reasonably believes is a violation) of another criminal 
law committed in conjunction with a potential violation of section 1 or 
3 of the Sherman Act, or in conjunction with an investigation by the 
Department of Justice of a potential violation of section 1 or 3 of the 
Sherman Act. The Act also protects individuals from retaliation for 
causing to be filed, testifying in, participating in, or otherwise 
assisting in a Federal Government investigation or proceeding relating 
to a violation (or conduct the individual reasonably believes is a 
violation) of section 1 or 3 of the Sherman Act, or a violation (or 
conduct the individual reasonably believes is a violation) of another 
criminal law committed in conjunction with a potential violation of 
section 1 or 3 of the Sherman Act, or in conjunction with an 
investigation by the Department of Justice of a potential violation of 
section 1 or 3 of the Sherman Acts. The Federal Government is defined 
by the statute as a Federal regulatory or law enforcement agency, or 
any Member of Congress or committee of Congress. These interim final 
rules establish procedures for the handling of retaliation complaints 
under the Act.

II. Summary of Statutory Procedures

    CAARA 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 
CAARA, 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. OSHA interprets 
the prima facie case requirement as allowing the complainant to meet 
this burden through the information they provide in their 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,

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where appropriate: reinstatement with the same seniority status that 
the complainant would have had but for the retaliation; back pay, 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; 
back pay, 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 covered individual to bring an action for de 
novo review of a CAARA 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, and 
there is no showing that such delay is due to the bad faith of the 
complainant. The provision provides that the court will have 
jurisdiction over the action without regard to the amount in 
controversy. Finally, nothing in the CAARA anti-retaliation provision 
shall be deemed to diminish the rights, privileges, or remedies of any 
covered individual 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) pursuant to Secretary of Labor's Order No. 08-2020 (May 15, 
2020), 85 FR 58393 (September 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 13186-01 
(Mar. 6, 2020) (Delegation of Authority and Assignment of 
Responsibility to the Administrative Review Board).

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

Section 1991.100--Purpose and Scope
    This section describes the purpose of the regulations implementing 
the anti-retaliation provisions of CAARA and provides an overview of 
the procedures covered by these regulations.
Section 1991.101--Definitions
    This section includes definitions of certain terms used in CAARA 
and this rule.
    One term defined in Sec.  1991.101 is ``antitrust laws,'' which 
CAARA defines as meaning section 1 or 3 of the Sherman Act (15 U.S.C. 1 
or 3). See 15 U.S.C. 7a-3(a)(3)(A).
    Another term defined in the statute is ``covered individual,'' 
which means an employee, contractor, subcontractor, or agent of an 
employer. See 15 U.S.C. 7a-3(a)(3)(B). Consistent with the approach 
that OSHA has taken in implementing other whistleblower protection 
provisions and consistent with applicable ARB case law, the interim 
final rule includes ``an individual presently or formerly working for, 
an individual applying to work for, or an individual whose employment 
could be affected by, another person'' in the definition of ``covered 
individual.'' 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).
    The term ``employer'' is defined in CAARA as meaning a person, or 
any officer, employee, contractor, subcontractor, or agent of such 
person. See 15 U.S.C. 7a-3(a)(3)(C). The term ``Federal Government'' is 
defined in CAARA as meaning a Federal regulatory or law enforcement 
agency; or any Member of Congress or committee of Congress. See 15 
U.S.C. 7a-3(a)(3)(D).
    The term ``person'' is defined in CAARA to have the same meaning as 
in 15 U.S.C. 12(a). Under that section, the term includes individuals 
as well as corporations and associations existing under or authorized 
by the laws of either the United States, the laws of any of the 
Territories, the laws of any State, or the laws of any foreign country. 
See 15 U.S.C. 7a-3(a)(3)(E) (incorporating 15 U.S.C. 12(a)).
Section 1991.102 Obligations and Prohibited Acts
    This section describes the activities that are protected under 
CAARA and the conduct that is prohibited in response to any protected 
activities. The Act prohibits an employer, defined to include a person 
or any officer, employee, contractor, subcontractor, or agent of such 
person, from discharging, demoting, suspending, threatening, harassing 
or in any other manner retaliating against a covered individual in 
their terms and conditions of employment because the covered individual 
engaged in certain protected activity relating to certain antitrust 
laws--sections 1 and 3 of the Sherman Act, 15 U.S.C. 1 and 3. The Act 
further provides a rule of construction that ``[t]he term `violation', 
with respect to the antitrust laws, shall not be construed to include a 
civil violation of any law that is not also a criminal violation.'' 15 
U.S.C. 7a-3(a)(4).
    Protected activity under CAARA includes any lawful act by a covered 
individual to provide information or cause information to be provided 
regarding conduct which is of the type that constitutes a violation of 
section 1 or 3 of the Sherman Act, or which the covered individual 
reasonably believes constitutes a violation of section 1 or 3 of the 
Sherman Act; or conduct which the covered individual reasonably 
believes to be a violation of another criminal law which is committed, 
or which the covered individual reasonably believes to have been 
committed, in conjunction with a

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potential violation of section 1 or 3 of the Sherman Act or in 
conjunction with an investigation by the Department of Justice of a 
potential violation of section 1 or 3 of the Sherman Act. To be 
protected, the information or assistance must be provided to a Federal 
regulatory or law enforcement agency, any Member of Congress or 
committee of Congress, a person with supervisory authority over the 
covered individual, or any other person working for the employer who 
has the authority to investigate, discover, or terminate misconduct.
    The Act also protects covered individuals from discharge or other 
retaliation for any lawful act done to cause to be filed, testify in, 
participate in, or otherwise assist a Federal Government investigation 
or a Federal Government proceeding filed or about to be filed (with any 
knowledge of the employer) relating to any violation of, or any act or 
omission which is of the type that constitutes a violation of section 1 
or 3 of the Sherman Act, or which the covered individual reasonably 
believes to be a violation of, section 1 or 3 of the Sherman Act; or 
any violation of, or any act or omission the covered individual 
reasonably believes to be a violation of, another criminal law 
committed, or which the covered individual reasonably believes was 
committed, in conjunction with a potential violation of section 1 or 3 
of the Sherman Act or in conjunction with an investigation by the 
Department of Justice of a potential violation of section 1 or 3 of the 
Sherman Act. The type of conduct that constitutes a violation of 
section 1 or 3 of the Sherman Act can include bid rigging, price 
fixing, and market allocation agreements between competitors.
    Under the Act, a covered individual who provides information, 
causes information to be provided, or engages in other activities 
listed in the statute is protected as long as the conduct at issue is 
of the type that violates section 1 or 3 of the Sherman Act, or the 
covered individual reasonably believes that the conduct at issue is the 
type of conduct that violates section 1 or 3 of the Sherman Act; or the 
covered individual reasonably believes that the conduct at issue is a 
violation of another criminal law committed in conjunction with a 
potential violation of section 1 or 3 of the Sherman Act or in 
conjunction with an investigation by the Department of Justice of a 
potential violation. To have a reasonable belief, the individual must 
subjectively believe that such conduct is occurring 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 
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)). Moreover, the 
complainant need not cite any provision of law in their communications 
to the employer or show that the conduct constituted an actual 
violation of law. See, e.g., Sylvester, 2011 WL 2165854, at *11-12. 
Pursuant to this standard, a complainant'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.
    Activity will not be protected if the covered individual is found 
to have planned and initiated a violation or attempted violation of 
section 1 or 3 of the Sherman Act, planned and initiated a violation or 
attempted violation of another criminal law in conjunction with a 
violation or attempted violation of section 1 or 3 of the Sherman Act, 
or planned and initiated an obstruction or attempted obstruction of an 
investigation by the Department of Justice of a violation of section 1 
or 3 of the Sherman Act.
Section 1991.103 Filing of Retaliation Complaint
    This section explains the requirements for filing a retaliation 
complaint under CAARA. 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 covered individual 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 CAARA 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. 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 CAARA 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 covered individual, complaints may be 
filed by any person on the covered individual's behalf.
Section 1991.104 Investigation
    This section describes the procedures that apply to the 
investigation of CAARA complaints. Paragraph (a) of this section 
outlines the procedures for notifying the respondent, the employer (if 
different from the respondent), and the Antitrust Division of the 
United States Department of Justice of the complaint and notifying the 
respondent of rights under these regulations. In certain circumstances, 
OSHA may briefly delay notification to the respondent if requested by 
law enforcement. See OSHA Whistleblower Investigations Manual Chapter 
3.IX.B, available at https://www.osha.gov/sites/default/files/enforcement/directives/CPL_02-03-011.pdf. 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. CAARA incorporates the burdens of proof in AIR21. Thus, in order 
for OSHA to

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conduct an investigation, CAARA 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 CAARA, 
serves a ``gatekeeping function'' intended to ``stem[] frivolous 
complaints''). Even in cases where the complainant successfully makes a 
prima facie showing, CAARA 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. Their 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 1991.105 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 complainant whole, including reinstatement with 
the same seniority status that the complainant would have had, but for 
the retaliation; back pay 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, the 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 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 CAARA 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 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 CAARA 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 
CAARA. Lost benefits may also be included in a back pay award when 
there is evidence to support an award for lost benefits. A benefits 
award under CAARA 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 
CAARA. Other damages, including non-pecuniary damages, such as damages 
for emotional distress due to

[[Page 8760]]

the retaliation, are also available under CAARA. 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 CAARA, 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 short-term 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 covered 
individuals to their positions if OSHA finds reasonable cause to 
believe that they were discharged in violation of CAARA. 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 section 105(c) of the 
Federal Mine Safety and Health Act of 1977, which protects miners from 
retaliation. 30 U.S.C. 815(c); see, e.g., Sec'y of Labor, 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 section 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, 2016 
WL 97461, 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. Dept. of Labor, 278 Fed. Appx. 597, 606 (6th 
Cir. 2008) (affirming front pay award under ERA). Neither an employer 
nor a covered individual 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 
individual.

Subpart B--Litigation

Section 1991.106 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.
    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 CAARA 
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 1991.107 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 1991.108 Role of Federal Agencies
    The Assistant Secretary may participate as a party or amicus curiae 
at any time in the administrative

[[Page 8761]]

proceedings under CAARA. 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 Department of Justice 
Antitrust Division, if interested in a proceeding, also may participate 
as amicus curiae at any time in the proceedings.
Section 1991.109 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 CAARA. Specifically, because CAARA 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 burden-shifting scheme in the SOX 
whistleblower provision] means to prove by a preponderance of the 
evidence.''). If the complainant 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 Sec.  1991.104 is not subject to 
review. OSHA's determinations on whether to proceed with an 
investigation under CAARA and whether to make 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 
CAARA and, as discussed under Sec.  1991.105 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 1991.110 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 accept the petition for review. If the 
ARB does not accept 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 CAARA (which otherwise would be effective 
immediately) while the ARB reviews the order. A stay of an ALJ's 
preliminary order of reinstatement under CAARA 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. See, e.g., Bailey v. 
Consol. Rail Corp., ARB Case Nos. 13-030 13-033, 2013 WL 1385563, at *2 
(ARB Mar. 27, 2013).
    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; back pay 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 13186, 13187 (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

[[Page 8762]]

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 1991.111 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 1991.112 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 1991.113 Judicial Enforcement
    This section describes the ability of the Secretary, the 
complainant, and the respondent under CAARA to obtain judicial 
enforcement of final orders, preliminary orders of reinstatement, and 
terms of settlement agreements approved by the Department of Labor as 
provided in Sec.  1991.111(d) and (e). CAARA provides that ``[i]f a 
person fails to comply with an order or preliminary order issued by the 
Secretary of Labor pursuant to the procedures set forth in section 
42121(b) of title 49, the Secretary of Labor or the person on whose 
behalf the order was issued may bring a civil action to enforce the 
order in the district court of the United States for the judicial 
district in which the violation occurred.'' 15 U.S.C. 7a-3(b)(2)(E). As 
explained in section 1991.106, if a timely objection to OSHA's 
preliminary order is filed, all provisions of the preliminary order 
will be stayed, except for the portion requiring preliminary 
reinstatement, which will not be automatically stayed. See also 49 
U.S.C. 42121(b)(2)(A) (``The filing of such objections shall not 
operate to stay any reinstatement remedy contained in the preliminary 
order.''). Thus, CAARA permits both private parties and the Secretary 
to seek district court enforcement of preliminary orders of 
reinstatement and final orders of the Secretary, including approved 
settlement agreements.
Section 1991.114 District Court Jurisdiction of Retaliation Complaints
    This section sets forth CAARA'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, and there is no showing that such 
delay is due to the bad faith of the complainant. See 15 U.S.C. 7a-
3(b)(1)(B). This section also reflects the statutory provision that 
specifies the burdens of proof in a district court action. See 15 
U.S.C. 7a-3(b)(2)(C) (incorporating 49 U.S.C. 42121(b).
    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 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 any decision of the 
Department of Labor becomes the final decision of the Secretary, 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 1991.115 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 or issue such orders as 
justice or the administration of CAARA requires.

[[Page 8763]]

IV. Paperwork Reduction Act

    This rule contains a reporting provision (filing a retaliation 
complaint, section 1991.103) which was previously reviewed as a 
statutory requirement of CAARA 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 section 553 of the 
Administrative Procedure Act (APA) do not apply ``to interpretative 
rules, general statements of policy, or rules of agency organization, 
procedure, or practice.'' 5 U.S.C. 553(b)(A). This is a rule of agency 
procedure, practice, and interpretation within the meaning of that 
section, 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 and 13563; 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 
section 6(a)(3)(C) of Executive Order 12866 has been prepared.
    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 section 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 section 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-how-comply-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 APA and the requirements under the 
RFA.

List of Subjects in 29 CFR Part 1991

    Administrative practice and procedure, Employment, Antitrust, 
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, on February 6, 2023.
Douglas L. Parker,
Assistant Secretary of Labor for Occupational Safety and Health.


0
Accordingly, for the reasons set out in the preamble, title 29, chapter 
XVII, of the Code of Federal Regulations is amended by adding part 1991 
to read as follows:

PART 1991--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS 
UNDER THE CRIMINAL ANTITRUST ANTI-RETALIATION ACT (CAARA).

Subpart A--Complaints, Investigations, Findings, and Preliminary Orders
Sec.
1991.100 Purpose and scope.
1991.101 Definitions.
1991.102 Obligations and prohibited acts.
1991.103 Filing of retaliation complaint.
1991.104 Investigation.
1991.105 Issuance of findings and preliminary orders.
Subpart B--Litigation
1991.106 Objections to the findings and the preliminary order and 
requests for a hearing.
1991.107 Hearings.
1991.108 Role of Federal agencies.
1991.109 Decisions and orders of the administrative law judge.
1991.110 Decisions and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
1991.111 Withdrawal of complaints, findings, objections, and 
petitions for review; settlement.
1991.112 Judicial review.
1991.113 Judicial enforcement.
1991.114 District court jurisdiction of retaliation complaints.
1991.115 Special circumstances; waiver of rules.

    Authority:  15 U.S.C. 7a-3; 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 13186-01 (Mar. 6, 
2020).

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


Sec.  1991.100  Purpose and scope.

    (a) This part sets forth procedures for, and interpretations of 
section 2 of the Criminal Antitrust Anti-Retaliation Act (CAARA), 
Public Law 116-257, 134 Stat. 1147 (December 23, 2020) (codified at 15 
U.S.C. 7a-3). CAARA provides for

[[Page 8764]]

protection from retaliation because the covered individual has engaged 
in protected activity pertaining to any violation of, or any act or 
omission which the covered individual reasonably believes constitutes a 
violation of, section 1 or 3 of the Sherman Act; or any violation of, 
or any act or omission the covered individual reasonably believes to be 
a violation of, another criminal law committed in conjunction with a 
potential violation of section 1 or 3 of the Sherman Act or in 
conjunction with an investigation by the Department of Justice of a 
potential violation of section 1 or 3 of the Sherman Act.
    (b) This part establishes procedures under CAARA for the 
expeditious handling of retaliation complaints filed by covered 
individuals, or by persons acting on their behalf. These rules, 
together with those codified at 29 CFR part 18, set forth the 
procedures under CAARA 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 of 
certain statutory provisions.


Sec.  1991.101  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 CAARA.
    Antitrust laws means section 1 or 3 of the Sherman Act (15 U.S.C. 1 
or 3).
    Business days means days other than Saturdays, Sundays, and Federal 
holidays.
    CAARA means the Criminal Antitrust Anti-Retaliation Act, Public Law 
116-257, 134 Stat. 1147 (December 23, 2020) (codified at 15 U.S.C. 7a-
3).
    Complainant means the covered individual who filed a CAARA 
complaint or on whose behalf a complaint was filed.
    Covered individual means an employee, contractor, subcontractor, or 
agent of an employer and includes an individual presently or formerly 
working for, an individual applying to work for, or an individual whose 
employment could be affected by, another person.
    DOJ means the Antitrust Division of the United States Department of 
Justice.
    Employer means a person, or any officer, employee, contractor, 
subcontractor, or agent of such person.
    Federal Government means a Federal regulatory or law enforcement 
agency; or any Member of Congress or committee of Congress.
    OSHA means the Occupational Safety and Health Administration of the 
United States Department of Labor.
    Person has the same meaning as in 15 U.S.C. 12(a) and includes 
individuals as well as corporations and associations existing under or 
authorized by the laws of either the United States, the laws of any of 
the Territories, the laws of any State, or the laws of any foreign 
country.
    Respondent means the person named in the complaint who is alleged 
to have violated CAARA.
    Secretary means the Secretary of Labor.


Sec.  1991.102  Obligations and prohibited acts.

    (a) No 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, 
a covered individual in the terms and conditions of employment of the 
covered individual because of any lawful act done by the covered 
individual to engage in any of the activities specified in paragraph 
(b)(1) and (2) of this section.
    (b) A covered individual is protected against retaliation (as 
described in paragraph (a) of this section) for any lawful act done by 
the covered individual:
    (1) To provide information, or cause information to be provided to 
the Federal Government or a person with supervisory authority over the 
individual, or any other person working for the employer who has the 
authority to investigate, discover, or terminate misconduct, regarding:
    (i) Any violation of, or any act or omission the covered individual 
reasonably believes to be a violation of, the antitrust laws; or
    (ii) Any violation of, or any act or omission the covered 
individual reasonably believes to be a violation of, another criminal 
law committed in conjunction with a potential violation of the 
antitrust laws or in conjunction with an investigation by the 
Department of Justice of a potential violation of the antitrust laws; 
or
    (2) To cause to be filed, testify in, participate in, or otherwise 
assist a Federal Government investigation or a Federal Government 
proceeding filed or about to be filed (with any knowledge of the 
employer) relating to:
    (i) Any violation of, or any act or omission the covered individual 
reasonably believes to be a violation of, the antitrust laws; or
    (ii) Any violation of, or any act or omission the covered 
individual reasonably believes to be a violation of, another criminal 
law committed in conjunction with a potential violation or in 
conjunction with an investigation by the Department of Justice of a 
potential violation of the antitrust laws.
    (3) The term violation with respect to the antitrust laws shall not 
be construed to include a civil violation of any law that is not also a 
criminal violation.
    (4) Paragraphs (b)(1) and (2) of this section shall not apply to 
any covered individual if the covered individual:
    (i) Planned and initiated a violation or attempted violation of the 
antitrust laws;
    (ii) Planned and initiated a violation or attempted violation of 
another criminal law in conjunction with a violation or attempted 
violation of the antitrust laws; or
    (iii) Planned and initiated an obstruction or attempted obstruction 
of an investigation by the Department of Justice of a violation of the 
antitrust laws.


Sec.  1991.103  Filing of retaliation complaint.

    (a) Who may file. A covered individual who believes that they have 
been discharged or otherwise retaliated against by any employer in 
violation of CAARA 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 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 
CAARA occurs, any person who believes that they have been retaliated 
against in violation of CAARA 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

[[Page 8765]]

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.


 Sec.  1991.104  Investigation.

    (a) OSHA will notify the respondent(s) 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 Sec.  1991.110(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 DOJ.
    (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 29 
CFR part 70.
    (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 individual engaged in a protected activity;
    (ii) The respondent knew or suspected that the individual engaged 
in the protected activity;
    (iii) The individual 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 
individual 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 Sec.  1991.105, if OSHA has reasonable cause, on the 
basis of information gathered under the procedures of this part, to 
believe that the respondent has violated CAARA 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.


Sec.  1991.105  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 CAARA.
    (1) If the Assistant Secretary concludes that there is reasonable 
cause to believe that a violation has occurred, the Assistant Secretary 
will accompany the findings with a preliminary order providing relief 
to the complainant. The preliminary order will 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; back pay 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

[[Page 8766]]

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 Sec.  1991.106. However, the portion of any preliminary 
order requiring reinstatement will be effective immediately upon the 
respondent's receipt of the findings and the preliminary order, 
regardless of any objections to the findings and/or the order.

Subpart B--Litigation


Sec.  1991.106  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 CAARA, must file any objections and/or a request 
for a hearing on the record within 30 days of receipt of the findings 
and preliminary order pursuant to Sec.  1991.105. 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 them 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.


Sec.  1991.107  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 29 CFR part 18, subpart A.
    (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.


Sec.  1991.108  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 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 DOJ, if interested in a proceeding, may participate as 
amicus curiae at any time in the proceeding, at the DOJ's discretion. 
At the request of

[[Page 8767]]

the DOJ, copies of all documents in a case must be sent to the DOJ, 
whether or not it is participating in the proceeding.


Sec.  1991.109  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 Sec.  1991.104(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; back pay 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 
ARB. The decision of the ALJ will become the final order of the 
Secretary unless a petition for review is timely filed with the ARB and 
the ARB accepts the petition for review.


Sec.  1991.110  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 ARB, 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 in accordance with 29 CFR part 26. 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.
    (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; back pay 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

[[Page 8768]]

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


Sec.  1991.111  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 Sec.  1991.106, 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 Sec.  1991.113.


Sec.  1991.112  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.


Sec.  1991.113  Judicial enforcement.

    Whenever any person has failed to comply with a preliminary order 
of reinstatement or a final order issued by the Secretary under CAARA, 
including one approving a settlement agreement, the Secretary or the 
person on whose behalf the order was issued may file a civil action 
seeking enforcement of the order in the United States district court 
for the district in which the violation was found to have occurred.


Sec.  1991.114  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.
    (b) A proceeding under paragraph (a) of this section shall be 
governed by the same legal burdens of proof specified in Sec.  
1991.109.
    (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.


Sec.  1991.115  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 
CAARA requires.

[FR Doc. 2023-02916 Filed 2-9-23; 8:45 am]
BILLING CODE 4510-26-P


