thefederalregister.com

Daily Rules, Proposed Rules, and Notices of the Federal Government

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1983

[Docket Number: OSHA-2010-0006]

RIN 1218-AC47

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

AGENCY: Occupational Safety and Health Administration, Labor.
ACTION: Final rule.
SUMMARY: This document provides the final text of regulations governing the employee protection (whistleblower) provisions of the Consumer Product Safety Improvement Act of 2008 (CPSIA). An interim final rule governing these provisions and request for public comment was published in theFederal Registeron August 31, 2010. Three comments were received. This rule responds to those comments and establishes the final procedures and time frames for the handling of retaliation complaints under CPSIA, including procedures and time frames for employee complaints to the Occupational Safety and Health Administration (OSHA), investigations by OSHA, appeals of OSHA determinations to an administrative law judge (ALJ) for a hearing de novo, hearings by ALJs, review of ALJ decisions by the Administrative Review Board (ARB) (acting on behalf of the Secretary of Labor), and judicial review of the Secretary's final decision.
DATES: This final rule is effective on July 10, 2012.
FOR FURTHER INFORMATION CONTACT: Sandra Dillon, Director, Office of the Whistleblower Protection Program, Occupational Safety and Health Administration, U.S. Department of Labor, Room N-3610, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-2199. This is not a toll-free number. ThisFederal Registerdocument is available in alternative formats. The alternative formats available are large print, electronic file on computer disk (Word Perfect, ASCII, Mates with Duxbury Braille System) and audiotape.
SUPPLEMENTARY INFORMATION:

I. Background

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

II. Summary of Statutory Procedures

CPSIA's whistleblower provisions include procedures that allow a covered employee to file, within 180 days of the alleged retaliation, a complaint with the Secretary of Labor (Secretary).1 Upon receipt of the complaint, the Secretary must provide written notice to the person or persons named in the complaint alleged to have violated the Act (respondent) of the filing of the complaint, the allegations contained in the complaint, the substance of the evidence supporting the complaint, and the rights afforded the respondent throughout the investigation. The Secretary must then, within 60 days of receipt of the complaint, afford the complainant and respondent an opportunity to submit a response and meet with the investigator to present statements from witnesses, and conduct an investigation.

1The regulatory provisions in this part have been written and organized to be consistent with other whistleblower regulations promulgated by OSHA to the extent possible within the bounds of the statutory language of CPSIA. Responsibility for receiving and investigating complaints under CPSIA also has been delegated to the Assistant Secretary for Occupational Safety and Health (Secretary's Order 1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012)). Hearings on determinations by the Assistant Secretary are conducted by the Office of Administrative Law Judges, and appeals from decisions by ALJs are decided by the ARB (Secretary's Order 1-2010 (Jan. 15, 2010), 75 FR 3924 (Jan. 25, 2010)).

The Secretary may conduct an investigation only if the complainant has made a prima facie showing that the protected activity was a contributing factor in the adverse action alleged in the complaint and the respondent has not demonstrated, through clear and convincing evidence, that the employer would have taken the same adverse action in the absence of that activity.

After investigating a complaint, the Secretary will issue written findings. If, as a result of the investigation, the Secretary finds there is reasonable cause to believe that retaliation has occurred, the Secretary must notify the respondent of those findings, along with a preliminary order that requires the respondent to, where appropriate: take affirmative action to abate the violation; reinstate the complainant to his or her former position together with the compensation of that position (including back pay) and restore the terms, conditions, and privileges associated with his or her employment; and provide compensatory damages to the complainant, as well as all costs and expenses (including attorney fees and expert witness fees) reasonably incurred by the complainant for, or in connection with, the bringing of the complaint upon which the order was issued.

The complainant and the respondent then have 30 days after the date of the Secretary's notification in which to file objections to the findings and/or preliminary order and request a hearing before an ALJ. The filing of objections under CPSIA will stay any remedy in the preliminary order except for preliminary reinstatement. If a hearing before an ALJ is not requested within 30 days, the preliminary order becomes final and is not subject to judicial review.

If a hearing is held, CPSIA requires the hearing to be conducted “expeditiously.” The Secretary then has 120 days after the conclusion of any hearing in which to issue a final order, which may provide appropriate relief or deny the complaint. Until the Secretary's final order is issued, the Secretary, the complainant, and the respondent may enter into a settlement agreement that terminates the proceeding. Where the Secretary has determined that a violation has occurred, the Secretary, where appropriate, will assess against the respondent a sum equal to the total amount of all costs and expenses, including attorney's and expert witness fees, reasonably incurred by the complainant for, or in connection with, the bringing of the complaint upon which the Secretary issued the order. The Secretary also may award a prevailing employer a reasonable attorney's fee, not exceeding $1,000, if the Secretary finds that the complaint is frivolous or has been brought in bad faith.

Within 60 days of the issuance of the final order, any person adversely affected or aggrieved by the Secretary's final order may file an appeal with the United States Court of Appeals for the circuit in which the violation occurred or the circuit where the complainant resided on the date of the violation.

CPSIA permits the employee to seek de novo review of the complaint by a United States district court in the event that the Secretary has not issued a final decision within 210 days after the filing of the complaint, or within 90 days after receiving a written determination. The court will have jurisdiction over the action without regard to the amount in controversy, and the case will be tried before a jury at the request of either party.

III. Summary of Regulations and Rulemaking Proceedings

On August 31, 2010, OSHA published in theFederal Registeran interim final rule promulgating rules governing the employee protection (whistleblower) provisions of CPSIA. 75 FR 53533. In addition to promulgating the interim final rule, OSHA included a request for public comment on the interim rules by November 1, 2010.

In response, two organizations and one individual filed comments with the agency within the public comment period. Comments were received from the National Whistleblower Center (NWC); Government Accountability Project (GAP); and Todd Miller.

OSHA has reviewed and considered the comments. The following discussion addresses the comments and OSHA's responses in the order of the provisions of the rule.

General Comment

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

Subpart A—Complaints, Investigations, Findings and Preliminary Orders Section 1983.100Purpose and Scope

This section describes the purpose of the regulations implementing CPSIA and provides an overview of the procedures covered by these regulations. No comments were received on this section and no substantive changes were made to it.

Section 1983.101Definitions

This section includes general definitions from CPSA, which are applicable to the whistleblower provisions of CPSIA, including a definition of the term “consumer product.”See15 U.S.C. 2052(a)(5). The CPSA defines “distributor” as “a person to whom a consumer product is delivered or sold for purposes of distribution in commerce, except that such term does not include a manufacturer or retailer of such product.” 15 U.S.C. 2052(a)(8). The CPSA defines “manufactured” as “to manufacture, produce, or assemble,” and defines “manufacturer” as “any person who manufactures or imports a consumer product.” 15 U.S.C. 2052(a)(10) and (11), respectively. “Private labeler” is defined by the CPSA as “an owner of a brand or trademark on the label of a consumer product which bears a private label.” 15 U.S.C. 2052(a)(12)(A). Section 2052(a)(12)(B) further provides that a “consumer product bears a private label if (i) The product (or its container) is labeled with the brand or trademark of a person other than a manufacturer of the product, (ii) the person with whose brand or trademark the product (or container) is labeled has authorized or caused theproduct to be so labeled, and (iii) the brand or trademark of a manufacturer of such product does not appear on such label.” 15 U.S.C. 2052(a)(12)(B). The CPSA defines “retailer” as “a person to whom a consumer product is delivered or sold for purposes of sale or distribution by such person to a consumer.” 15 U.S.C. 2052(a)(13). No comments were received on this section and no substantive changes were made to the definitions section.

Section 1983.102Obligations and Prohibited Acts

This section describes the activities that are protected under CPSIA, and the conduct that is prohibited in response to any protected activities. Under CPSIA, an employer may not retaliate against an employee because the employee “provided, caused to be provided, or is about to provide or cause to be provided to the employer, the Federal Government, or the attorney general of a State information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of any provision of [CPSA, as amended by CPSIA] or any other Act enforced by the Commission, or any order, rule, regulation, standard, or ban under any such Acts.” 15 U.S.C. 2087(a)(1). CPSIA also protects employees who testify, assist or participate in proceedings concerning such violations. 15 U.S.C. 2087(a)(2) and (3). Finally, CPSIA prohibits retaliation because an employee “objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any provision of [CPSA, as amended by CPSIA] or any other Act enforced by the Commission, or any order, rule, regulation, standard, or ban under any such Acts.” 15 U.S.C. 2087(a)(4).

In order to have a “reasonable belief” under CPSIA, a complainant must have both a subjective, good faith belief and an objectively reasonable belief that the complained-of conduct violates one of the listed categories of law.See Sylvesterv.Parexel Int'l LLC,ARB No. 07-123, 2011 WL 2165854, at *11-12 (ARB May 25, 2011) (discussing the reasonable belief standard under analogous language in the Sarbanes-Oxley Act (SOX) whistleblower provision, 18 U.S.C. 1514A). The requirement that the complainant have a subjective, good faith belief is satisfied so long as the complainant actually believed that the conduct complained of violated the relevant law.See id.The “reasonableness” of a complainant's belief is typically determined “based on the knowledge available to a reasonable person in the same factual circumstances with the same training and experience as the aggrieved employee.”Id.at *12 (internal quotation marks and citation omitted). However, the complainant need not show that the conduct complained of constituted an actual violation of law. Pursuant to this standard, an employee's whistleblower activity is protected where it is based on a reasonable, but mistaken, belief that a violation of the relevant law has occurred.Id.at *13.

Section 1983.102(c) reflects the CPSIA mandate that anti-retaliation protections are not available to employees who deliberately cause a violation of any requirement relating to any violation or alleged violation of any order, regulation, or standard under the Acts enforced by the Commission. 15 U.S.C. 2087(b)(7)(D). For purposes of section 1983.102(c), the ARB has interpreted the phrase “deliberate violations” for the purpose of denying protection to an employee under the Energy Reorganization Act's (ERA) similar provision as including an element of willfulness.See Fieldsv.U.S. Dep't of Labor Admin. Review Bd.,173 F.3d 811, 814 (11th Cir. 1999) (petitioners knowingly conducted unauthorized and potentially dangerous experiments). No comments were received on this section and no changes have been made to it.

Section 1983.103Filing of Retaliation Complaint

This section explains the requirements for filing a retaliation complaint under CPSIA. To be timely, a complaint must be filed within 180 days of when the alleged violation occurs. UnderDelaware State Collegev.Ricks,449 U.S. 250, 258 (1980), this is considered to be when the retaliatory decision has been both made and communicated to the complainant. In other words, the limitations period commences once the employee is aware or reasonably should be aware of the employer's decision.Equal Emp't Opportunity Comm'nv.United Parcel Serv., Inc.,249 F.3d 557, 561-62 (6th Cir. 2001). Complaints filed under CPSIA need not be in any particular form. They may be either oral or in writing. If the complainant is unable to file the complaint in English, OSHA will accept the complaint in any language. With the consent of the employee, complaints may be filed by any person on the employee's behalf.

OSHA notes that a complaint of retaliation filed with OSHA under CPSIA is not a formal document and need not conform to the pleading standards for complaints filed in federal district court articulated inBell Atlantic Corp.v.Twombly,550 U.S. 544 (2007) andAshcroftv.Iqbal,556 U.S. 662 (2009).See Sylvesterv.Parexel Int'l, Inc.,ARB Case No. 07-123, 2011 WL 2165854, at *9-10 (ARB May 26, 2011) (holding whistleblower complaints filed with OSHA under analogous provisions in the Sarbanes-Oxley Act need not conform to federal court pleading standards). Rather, the complaint filed with OSHA under this section simply alerts the agency to the existence of the alleged retaliation and the complainant's desire that the agency investigate the complaint. Upon the filing of a complaint with OSHA, the Assistant Secretary is to determine whether “the complaint, supplemented as appropriate by interviews of the complainant” alleges “the existence of facts and evidence to make a prima facie showing.” 29 CFR 1983.104(e). As explained in section 1983.104(e), if the complaint, supplemented as appropriate, contains a prima facie allegation, and the respondent does not show clear and convincing evidence that it would have taken the same action in the absence of the alleged protected activity, OSHA conducts an investigation to determine whether there is reasonable cause to believe that retaliation has occurred.See15 U.S.C. 2087(b)(2), 29 CFR 1983.104(e).

GAP expressed support for sections 1983.103(b) (nature of filing) and (d) (time for filing) and commented that these sections improved protection for whistleblowers. GAP also asked that the text of section 1983.103(d) clarify that the 180-day statute of limitations for filing a complaint under CPSIA does not begin to run until an employee becomes aware of an alleged discriminatory act. Consistent with the rules under other whistleblower statutes administered by the agency, OSHA has clarified in section 1983.103(d) that the statute of limitations under CPSIA may be tolled for reasons warranted by applicable case law and made other minor clarifying changes.

Section 1983.104Investigation

This section describes the procedures that apply to the investigation of complaints under CPSIA. Paragraph (a) of this section outlines the procedures for notifying the parties and the Consumer Product Safety Commission of the complaint and notifying the respondent of its rights under these regulations. Paragraph (b) describes the procedures for the respondent to submit its response to the complaint. Paragraph (c) specifies that throughout the investigation the agency will provide to the complainant (or the complainant'slegal counsel if the complainant is represented by counsel) a copy of respondent's submissions to the agency that are responsive to the complainant's whistleblower complaint and the complainant will have an opportunity to respond to those submissions. Before providing such materials to the complainant, the agency will redact them in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. Paragraph (d) of this section discusses confidentiality of information provided during investigations. Paragraph (e) of this section sets forth CPSIA's statutory burdens of proof. Paragraph (f) describes the procedures the Assistant Secretary will follow prior to the issuance of findings and a preliminary order when the Assistant Secretary has reasonable cause to believe that a violation has occurred.

The statute requires that a complainant make an initial prima facie showing that protected activity was “a contributing factor” in the adverse action alleged in the complaint,i.e.,that the protected activity, alone or in combination with other factors, affected in some way the outcome of the employer's decision. The complainant will be considered to have met the required burden if the complaint on its face, supplemented as appropriate through interviews of the complainant, alleges the existence of facts and either direct or circumstantial evidence to meet the required showing. The complainant's burden may be satisfied, for example, if he or she shows that the adverse action took place shortly after protected activity, giving rise to the inference that it was a contributing factor in the adverse action.

If the complainant does not make the required prima facie showing, the investigation must be discontinued and the complaint dismissed.See Trimmerv.U.S. Dep't of Labor,174 F.3d 1098, 1101 (10th Cir. 1999) (noting that the burden-shifting framework of the ERA, which is the same as that under CPSIA, serves a “gatekeeping function” that “stem[s] frivolous complaints”). Even in cases where the complainant successfully makes a prima facie showing, the investigation must be discontinued if the employer demonstrates, by clear and convincing evidence, that it would have taken the same adverse action in the absence of the protected activity. Thus, OSHA must dismiss a complaint under CPSIA and not investigate (or cease investigating) if either: (1) The complainant fails to meet the prima facie showing that protected activity was a contributing factor in the adverse action; or (2) the employer rebuts that showing by clear and convincing evidence that it would have taken the same adverse action absent the protected activity.

Assuming that an investigation proceeds beyond the gatekeeping phase, the statutory burdens of proof require an employee to prove that the alleged protected activity was a “contributing factor” in the alleged adverse action. If the employee proves that the alleged protected activity was a contributing factor in the adverse action, the employer, to escape liability, must prove by “clear and convincing evidence” that it would have taken the same action in the absence of the protected activity. A contributing factor is “any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision.”Maranov.Dep't of Justice,2 F.3d 1137, 1140 (Fed. Cir. 1993) (internal quotation marks, emphasis and citation omitted) (discussing the Whistleblower Protection Act, 5 U.S.C. 1221(e)(1)). In proving that protected activity was a contributing factor in the adverse action, “'a complainant need not necessarily prove that the respondent's articulated reason was a pretext in order to prevail,'” because a complainant alternatively can prevail by showing that the respondent's “'reason, while true, is only one of the reasons for its conduct,'” and that another reason was the complainant's protected activity.See Klopfensteinv.PCC Flow Techs. Holdings, Inc.,ARB No. 04-149, 2006 WL 3246904, at *13 (ARB May 31, 2006) (quotingRachidv.Jack in the Box, Inc.,376 F.3d 305, 312 (5th Cir. 2004)) (discussing contributing factor test under the SOX whistleblower provision),aff'd sub nom. Klopfensteinv.Admin. Review Bd., U.S. Dep't of Labor,402 F. App'x 936, 2010 WL 4746668 (5th Cir. 2010).

CPSIA's burdens of proof do not address the evidentiary standard that applies to a complainant's proof that protected activity was a contributing factor in an adverse action. CPSIA simply provides that the Secretary may find a violation only “if the complainant demonstrates” that protected activity was a contributing factor in the alleged adverse action.See15 U.S.C. 2087(b)(2)(B)(iii). It is the Secretary's position that the complainant must prove by a “preponderance of the evidence” that his or her protected activity contributed to the adverse action; otherwise the burden never shifts to the employer to establish its defense by “clear and convincing evidence.”See, e.g., Allenv.Admin. Review Bd.,514 F.3d 468, 475 n.1 (5th Cir. 2008) (“The term `demonstrates' [under identical language in another whistleblower provision] means to prove by a preponderance of the evidence.”). Once the complainant establishes that the protected activity was a contributing factor in the adverse action, the employer can escape liability only by proving by clear and convincing evidence that it would have taken the same action even in the absence of the prohibited rationale. The “clear and convincing evidence” standard is a higher burden of proof than a “preponderance of the evidence” standard.

NWC and GAP commented on the provisions in section 1983.104. NWC suggested that the phrase “other applicable confidentiality laws” be replaced with more specific language describing the confidentiality laws that might apply to a respondent's answer. NWC also suggested that OSHA provide a copy of the response to the complainant, and give the complainant an opportunity to respond. NWC noted that to conduct a full and fair investigation, OSHA needs to obtain the available, responsive information from both parties. If one party does not have the information submitted by the other, NWC explained, that party cannot help the investigation by providing available information to shed light on the matter.

GAP commented that while it was pleased with the provisions in § 1983.104 providing copies of respondent's submissions to complainants and protecting witness confidentiality, it was concerned that the procedures under § 1983.104(f) “disenfranchise[d] the victim, giving only one side of the dispute the chance to participate in the most significant step of the process” and that “[a]t a minimum, this procedural favoritism means there will not be an even playing field in the administrative hearing.” GAP advocated removing § 1983.104(f).

OSHA agrees with NWC and GAP that the input of both parties in the investigation is important to ensuring that OSHA reaches the proper outcome during its investigation. To that end, in response to the comments, the procedures under CPSIA have been revised to contain the following safeguards aimed at ensuring that complainants and respondents have equal access to information during the course of the OSHA investigation:

• Section 1983.104(a) has been revised to more closely mirror CPSIA's statutory requirement in 15 U.S.C. 2087(b)(1), that after receiving a complaint, the Secretary shall notify the respondent of the filing of the complaint, of the allegations containedin the complaint, and of the substance of the evidence supporting the complaint.

• Section 1983.104(b) of the final rule has been revised to implement CPSIA's statutory requirement in 15 U.S.C. 2087(b)(2), that after receiving a complaint, the Secretary shall afford the complainant, as well as the respondent, the opportunity to submit a written response to the complaint, meet with a representative of the Secretary and present statements from witnesses;

• Section 1983.104(c) continues to provide that, throughout the investigation, the agency will provide the complainant (or the complainant's legal counsel if the complainant is represented by counsel) a copy of all of respondent's submissions to the agency that are responsive to the complainant's whistleblower complaint, redacted of confidential information as necessary. The final rule also specifies that the complainant will have an opportunity to respond to such submissions; and

• Section 1983.104(f) of the final rule provides that the complainant will also receive a copy of the materials that must be provided to the respondent under that paragraph.

Regarding NWC's suggestion that OSHA provide more specific information about the confidentiality laws that may protect portions of the information submitted by a respondent, OSHA anticipates that the vast majority of respondent submissions will not be subject to any confidentiality laws. However, in addition to the Privacy Act, a variety of confidentiality provisions may protect information submitted during the course of an investigation. For example, a respondent may submit information that the respondent identifies as confidential commercial or financial information exempt from disclosure under the Freedom of Information Act (FOIA). OSHA's procedures for handling information identified as confidential during an investigation are explained in OSHA's Whistleblower Investigations Manual available at:http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=5061.

With regard to GAP's comment that § 1983.104(f) should be removed, OSHA notes that the purpose of § 1983.104(f) is to ensure compliance with the Supreme Court's ruling inBrockv.Roadway Express,481 U.S. 252, 264 (1987). In that decision, the Court upheld the facial constitutionality of the analogous provisions providing for preliminary reinstatement under the Surface Transportation Assistance Act (STAA), 49 U.S.C. 31105, and the procedures adopted by OSHA to protect the respondent's rights under the Due Process Clause of the Fifth Amendment, but ruled that the record failed to show that OSHA investigators had informed the respondent of the substance of the evidence to support reinstatement of the discharged employee. In so finding, the Court noted that, although a formal hearing was not required before OSHA ordered preliminary reinstatement, “minimum due process for the employer in this context requires notice of the employee's allegations, notice of the substance of the relevant supporting evidence, an opportunity to submit a written response, and an opportunity to meet with the investigator and present statements from rebuttal witnesses.”Roadway Express,481 U.S. at 264;see Bechtelv.Competitive Techs, Inc.,448 F.3d 469, 480-81 (Leval, J. concurring in the judgment) (finding OSHA's preliminary reinstatement order under SOX unenforceable because the information provided to the respondent did not meet the requirements ofRoadway Express). Thus, OSHA declines to remove the language providing the respondent notice and opportunity to respond under § 1983.104(f).

Nonetheless, while recognizing that the purpose of § 1983.104(f) is to ensure that the respondent's Due Process rights have been met prior to OSHA ordering preliminary reinstatement, OSHA appreciates that complainants wish to stay informed regarding their case and may continue to have valuable input, even at this late stage in the investigation. Thus, under these rules, OSHA will provide complainants with a copy of the materials sent to the respondent under § 1983.104(f).

In addition to the revisions noted above, minor changes were made as needed in this section to clarify the provision without changing its meaning.

Section 1983.105Issuance of Findings and Preliminary Orders

This section provides that, on the basis of information obtained in the investigation, the Assistant Secretary will issue, within 60 days of the filing of a complaint, written findings regarding whether or not there is reasonable cause to believe that the complaint has merit. If the findings are that there is reasonable cause to believe that the complaint has merit, the Assistant Secretary will order appropriate relief, including preliminary reinstatement, affirmative action to abate the violation, back pay with interest, and compensatory damages. To reflect the agency's current practice, wherein a preliminary order that includes compensation will include, where appropriate, back pay and interest, the phrase “and interest” was added to this section.

In ordering interest on back pay under CPSIA, the Secretary has determined that interest due will be computed by compounding daily the Internal Revenue Service interest rate for the underpayment of taxes, which under 26 U.S.C. 6621, is generally the Federal short-term rate plus three percentage points. The Secretary believes that daily compounding of interest achieves the make-whole purpose of a back pay award. Daily compounding of interest has become the norm in private lending and recently was found to be the most appropriate method of calculating interest on back pay by the National Labor Relations Board.See Jackson Hosp. Corp.v.United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int'l Union,356 NLRB No. 8, 2010 WL 4318371, at *3-4 (NLRB Oct. 22, 2010). Additionally, interest on tax underpayments under the Internal Revenue Code, 26 U.S.C. 6621, is compounded daily pursuant to 26 U.S.C. 6622(a).

The findings and, where appropriate, preliminary order, advise the parties of their right to file objections to the findings of the Assistant Secretary and to request a hearing. The findings and, where appropriate, preliminary order, also advise the respondent of the right to request an award of attorney's fees not exceeding $1,000 from the ALJ, regardless of whether the respondent has filed objections, if the respondent alleges that the complaint was frivolous or brought in bad faith. If no objections are filed within 30 days of receipt of the findings, the findings and any preliminary order of the Assistant Secretary become the final decision and order of the Secretary. If objections are timely filed, any order of preliminary reinstatement will take effect, but the remaining provisions of the order will not take effect until administrative proceedings are completed.

In appropriate circumstances, in lieu of preliminary reinstatement, OSHA may order that the complainant receive the same pay and benefits that he or she received prior to his termination, but not actually return to work. Such “economic reinstatement” is akin to an order for front pay and frequently is employed in cases arising under Section 105(c) of the Federal Mine Safety and Health Act of 1977, which protects miners from retaliation. 30 U.S.C. 815(c);See, e.g., Sec'y of Labor ex rel of Yorkv.BR&D Enters., Inc.,23 FMSHRC 697, 2001 WL 1806020, at *1 (FMSHRC June 26, 2001). Front pay has been recognized as a possible remedy in casesunder the whistleblower statutes enforced by OSHA in circumstances where reinstatement would not be appropriate.See, e.g., Moderv.Vill. of Jackson,ARB Nos. 01-095, 02-039, 2003 WL 21499864, at *10 (ARB June 30, 2003) (under environmental whistleblower statutes, “front pay may be an appropriate substitute when the parties prove the impossibility of a productive and amicable working relationship, or the company no longer has a position for which the complainant is qualified.”);Hobbyv.Georgia Power Co.,ARB No. 98-166, ALJ No. 1990-ERA-30 (ARB Feb. 9, 2001),aff'd sub nom. Hobbyv.U.S. Dep't of Labor,No. 01-10916 (11th Cir. Sept. 30, 2002) (unpublished) (noting circumstances where front pay may be available in lieu of reinstatement but ordering reinstatement);Doylev.Hydro Nuclear Servs.,ARB Nos. 99-041, 99-042, 00-012, 1996 WL 518592, at *6 (ARB Sept. 6, 1996) (under ERA, front pay appropriate where employer had eliminated the employee's position);Michaudv.BSP Transport, Inc.,ARB Nos. 97-113, 1997 WL 626849, at *4 (ARB Oct. 9, 1997) (under STAA, front pay appropriate where employee was unable to work due to major depression resulting from the retaliation);Brownv.Lockheed Martin Corp.,ALJ No. 2008-SOX-49, 2010 WL 2054426, at *55-56 (ALJ Jan. 15, 2010) (noting that while reinstatement is the “presumptive remedy” under Sarbanes-Oxley, front pay may be awarded as a substitute when reinstatement is inappropriate). Congress intended that employees be preliminarily reinstated to their positions if OSHA finds reasonable cause to believe that they were discharged in violation of CPSIA. When a violation is found, the norm is for OSHA to order immediate preliminary reinstatement. Neither an employer nor an employee has a statutory right to choose economic reinstatement. Rather, economic reinstatement is designed to accommodate situations in which evidence establishes to OSHA's satisfaction that reinstatement is inadvisable for some reason, notwithstanding the employer's retaliatory discharge of the employee. In such situations, actual reinstatement might be delayed until after the administrative adjudication is completed as long as the employee continues to receive his or her pay and benefits and is not otherwise disadvantaged by a delay in reinstatement. There is no statutory basis for allowing the employer to recover the costs of economically reinstating an employee should the employer ultimately prevail in the whistleblower adjudication. No comments were received on this section. In addition to the revisions noted above, which clarify the provision of interest on back pay awards, minor changes were made as needed to clarify the provision without changing its meaning.

Subpart B—Litigation Section 1983.106Objections to the Findings and the Preliminary Order and Requests for a Hearing

To be effective, objections to the findings of the Assistant Secretary must be in writing and must be filed with the Chief Administrative Law Judge, U.S. Department of Labor, within 30 days of receipt of the findings. The date of the postmark, facsimile transmittal, or electronic communication transmittal is considered the date of the filing; if the objection is filed in person, by hand-delivery or other means, the objection is filed upon receipt. The filing of objections also is considered a request for a hearing before an ALJ. Although the parties are directed to serve a copy of their objections on the other parties of record, as well as the OSHA official who issued the findings and order, the Assistant Secretary, and the U.S. Department of Labor's Associate Solicitor for Fair Labor Standards, the failure to serve copies of the objections on the other parties of record does not affect the ALJ's jurisdiction to hear and decide the merits of the case.See Shiraniv.Calvert Cliffs Nuclear Power Plant, Inc.,ARB No. 04-101, 2005 WL 2865915, at *7 (ARB Oct. 31, 2005).

The timely filing of objections stays all provisions of the preliminary order, except for the portion requiring reinstatement. A respondent may file a motion to stay OSHA's preliminary order of reinstatement with the Office of Administrative Law Judges. However, such a motion will be granted only based on exceptional circumstances. Language was added to paragraph (b) of this section to make this point clear. The Secretary believes that a stay of the Assistant Secretary's preliminary order of reinstatement under CPSIA would be appropriate only where the respondent can establish the necessary criteria for equitable injunctive relief,i.e.,irreparable injury, likelihood of success on the merits, a balancing of possible harms to the parties, and the public interest favors a stay. If no timely objection to OSHA's findings and/or preliminary order is filed, then OSHA's findings and/or preliminary order become the final decision of the Secretary not subject to judicial review.

No comments were received on this section. The term “electronic communication transmittal” was substituted for “email communication” and other minor changes were made as needed to clarify the provision without changing its meaning.

Section 1983.107Hearings

This section adopts the rules of practice and procedure for administrative hearings before the Office of Administrative Law Judges at 29 CFR part 18 subpart A. It specifically provides for hearings to be consolidated where both the complainant and respondent object to the findings and/or order of the Assistant Secretary. This section further provides that the hearing is to commence expeditiously, except upon a showing of good cause or unless otherwise agreed to by the parties. Hearings will be conducted de novo, on the record.

In a revision from the interim final rule, paragraph (b) now notes the broad authority of ALJs to limit discovery in order to expedite the hearing. This change was made for consistency with OSHA's rules under other whistleblower statutes, which similarly note that the ALJ has broad authority to limit discovery.See, e.g.,29 CFR 1979.107 (regulations under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21)); 29 CFR 1980.107 (SOX). As with other whistleblower statutes administered by OSHA, CPSIA dictates that hearings “shall be conducted expeditiously” and allows complainants to seek de novo review of the complaint in federal court if the Secretary has not issued a final decision within 210 days after the filing of the complaint, or within 90 days after receiving a written determination.See15 U.S.C. 2087(b)(2) and (4). The ALJ's broad discretion to limit discovery, for example by limiting the number of interrogatories, requests for production of documents, or depositions allowed, furthers Congress' intent to provide for expeditious hearings under CPSIA.

Finally, this section has been revised to add paragraph (d), which specifies that the formal rules of evidence will not apply to proceedings before an ALJ under § 1983.107, but rules or principles designed to assure the production of the most probative evidence will be applied. The Department has taken the same approach under the other whistleblower statutes administered by OSHA.See, e.g.,29 CFR 1979.107 (AIR21); 29 CFR 1980.107 (SOX). This approach is also consistent with the Administrative Procedure Act, which provides: “Any oral or documentaryevidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence * * *” 5 U.S.C. 556(d);see also Fed. Trade Comm'nv.Cement Inst.,333 U.S. 683, 805-06 (1948) (administrative agencies not restricted by rigid rules of evidence). The Department believes that it is inappropriate to apply the rules of evidence at 29 CFR part 18 subpart B because whistleblowers often appear pro se and may be disadvantaged by strict adherence to formal rules of evidence. Furthermore, hearsay evidence is often appropriate in whistleblower cases, as there often are no relevant documents or witnesses other than hearsay to prove discriminatory intent. ALJs have the responsibility to determine the appropriate weight to be given such evidence. For these reasons, the interests of determining all of the relevant facts are best served by not requiring strict evidentiary rules. No comments were received on this section, but, as explained above, this section was revised to specify that the formal rules of evidence will not apply to proceedings before an ALJ under this section.

Section 1983.108Role of Federal Agencies

The Assistant Secretary, at his or her discretion, may participate as a party or amicus curiae at any time in the administrative proceedings under CPSIA. For example, the Assistant Secretary may exercise his or her discretion to prosecute the case in the administrative proceeding before an ALJ; petition for review of a decision of an ALJ, including a decision based on a settlement agreement between the complainant and the respondent, regardless of whether the Assistant Secretary participated before the ALJ; or participate as amicus curiae before the ALJ or in the ARB proceeding. Although OSHA anticipates that ordinarily the Assistant Secretary will not participate, the Assistant Secretary may choose to do so in appropriate cases, such as cases involving important or novel legal issues, large numbers of employees, alleged violations that appear egregious, or where the interests of justice might require participation by the Assistant Secretary. The Consumer Product Safety Commission, if interested in a proceeding, also may participate as amicus curiae at any time in the proceedings. No comments were received on this section; however, it has been revised to specify that documents need not be sent to the Assistant Secretary or the Department of Labor's Associate Solicitor for Fair Labor Standards unless the Assistant Secretary requests that documents be sent, the Assistant Secretary is participating in the proceeding, or service on the Assistant Secretary is otherwise required by these rules. Other minor changes were made as needed to clarify the provision without changing its meaning.

Section 1983.109Decision and Orders of the Administrative Law Judge

This section sets forth the requirements for the content of the decision and order of the ALJ, and includes the standard for finding a violation under CPSIA. The section further provides that the Assistant Secretary's determination to dismiss the complaint without an investigation or without a complete investigation pursuant to § 1983.104 is not subject to review. Thus, paragraph (c) of § 1983.109 clarifies that the Assistant Secretary's determinations on whether to proceed with an investigation under CPSIA and whether to make particular investigative findings are discretionary decisions not subject to review by the ALJ. The ALJ hears cases de novo and, therefore, as a general matter, may not remand cases to the Assistant Secretary to conduct an investigation or make further factual findings. A full discussion of the burdens of proof used by the Department of Labor to resolve whistleblower cases under this part is described above in the discussion of § 1983.104. Paragraph (d) notes the remedies that the ALJ may order under CPSIA and, as discussed under § 1983.105 above, provides that interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621, and will be compounded daily. Paragraph (e) requires that the ALJ's decision be served on all parties to the proceeding, the Assistant Secretary, and the U.S. Department of Labor's Associate Solicitor for Fair Labor Standards. Paragraph (e) also provides that any ALJ decision requiring reinstatement or lifting an order of reinstatement by the Assistant Secretary will be effective immediately upon receipt of the decision by the respondent. All other portions of the ALJ's order will be effective 14 days after the date of the decision unless a timely petition for review has been filed with the ARB.

No comments were received on this section. However, minor modifications were made to the description of the remedies available under CPSIA in this paragraph to more closely match the language regarding remedies in the statute and the description of the remedies in § 1983.105(a)(1). The statement that the decision of the ALJ will become the final order of the Secretary unless a petition for review is timely filed with the ARB and the ARB accepts the petition for review was deleted from § 1983.110(a) and moved to paragraph (e) of this section. Additionally, OSHA has revised the period for filing a timely petition for review with the ARB to 14 days rather than 10 business days. With this change, the final rule expresses the time for a petition for review in a way that is consistent with the other deadlines for filings before the ALJs and the ARB in the rule, which are also expressed in days rather than business days. This change also makes the final rule congruent with the 2009 amendments to Rule 6(a) of the Federal Rules of Civil Procedure and Rule 26(a) of the Federal Rules of Appellate Procedure, which govern computation of time before those tribunals and express filing deadlines as days rather than business days. Accordingly, the ALJ's order will become the final order of the Secretary 14 days after the date of the decision, rather than after 10 business days, unless a timely petition for review is filed. As a practical matter, this revision does not substantively alter the window of time for filing a petition for review before the ALJ's order becomes final.

Section 1983.110Decision and Orders of the Administrative Review Board

Upon the issuance of the ALJ's decision, the parties have 14 days within which to petition the ARB for review of that decision. If no timely petition for review is filed with the ARB, the decision of the ALJ becomes the final decision of the Secretary and is not subject to judicial review. The date of the postmark, facsimile transmittal, or electronic communication transmittal is considered the date of filing of the petition; if the petition is filed in person, by hand-delivery or other means, the petition is considered filed upon receipt.

The appeal provisions in this part provide that an appeal to the ARB is not a matter of right but is accepted at the discretion of the ARB. The parties should identify in their petitions for review the legal conclusions or orders to which they object, or the objections may be deemed waived. The ARB has 30 days to decide whether to grant the petition for review. If the ARB does not grant the petition, the decision of the ALJ becomes the final decision of the Secretary. If a timely petition for review is filed with the ARB, any relief orderedby the ALJ, except for that portion ordering reinstatement, is inoperative while the matter is pending before the ARB. When the ARB accepts a petition for review, the ALJ's factual determinations will be reviewed under the substantial evidence standard. In order to be consistent with the practices and procedures followed in OSHA's other whistleblower programs, and to provide further clarification of the regulatory text, OSHA has modified the language of 1983.110(c), to clarify when the ALJ proceedings conclude and when the final decision of the ARB will be issued.

This section also provides that, based on exceptional circumstances, the ARB may grant a motion to stay an ALJ's preliminary order of reinstatement under CPSIA, which otherwise would be effective, while review is conducted by the ARB. The Secretary believes that a stay of an ALJ's preliminary order of reinstatement under CPSIA would be appropriate only where the respondent can establish the necessary criteria for equitable injunctive relief,i.e.,irreparable injury, likelihood of success on the merits, a balancing of possible harms to the parties, and the public interest favors a stay.

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

With regard to section 1983.110(a), NWC urged deletion of the provision in the interim final rule that “[a]ny exception not specifically urged will ordinarily be deemed waived by the parties.” NWC commented that parties should be allowed to add additional grounds for review in subsequent briefs and that allowing parties to do so would further the goal of deciding cases on the merits. OSHA's inclusion of this provision is not intended to limit the circumstances in which parties can add additional grounds for review as a case progresses before the ARB; rather, the rules include this provision to put the public on notice of the possible consequences of failing to specify the basis of an appeal to the ARB. OSHA recognizes that while the ARB has held in some instances that an exception not specifically urged may be deemed waived, the ARB also has found that the rules provide for exceptions to this general rule.See, e.g., Furlandv.American Airlines, Inc.,ARB Nos. 09-102, 10-130, 2011 WL 3413364, at *7, n.5 (ARB July 27, 2011),petition for review filed,(11th Cir. Oct. 3, 2011) (No. 11-14419-C) (where complainant consistently made an argument throughout the administrative proceedings the argument was not waived simply because it appeared in complainant's reply brief to the ARB rather than in the petition for review);Avlonv.American Express Co.,ARB No. 09-089, 2011 WL 4915756, at *4, *5 n.1 (ARB Sept. 14, 2011) (consideration of an argument not specifically raised in complainant's petition for review is within the authority of the ARB, and parallel provisions in the SOX whistleblower regulations do not mandate the ARB limit its review to ALJ conclusions assigned as error in the petition for review). However, recognizing that the interim final rule may have suggested too stringent a standard, OSHA has replaced the phrase “ordinarily will” with “may.”

NWC also suggested that the review period be extended from 10 business days to 30 days to make this section parallel to the provision in § 1983.105(c), which allows for 30 days within which to file an objection. OSHA declines to extend the review period to 30 days because the shorter review period is consistent with the practices and procedures followed in OSHA's other whistleblower programs. Furthermore, parties may file a motion for extension of time to appeal an ALJ's decision, and the ARB has discretion to grant such extensions. However, as explained above, OSHA has revised the period to petition for review of an ALJ decision to 14 days rather than 10 business days. As a practical matter, this revision does not substantively alter the window of time for filing a petition for review before the ALJ's order becomes final.

Similarly, section 1983.110(c), which provides that the ARB will issue a final decision within 120 days of the conclusion of the ALJ hearing, was similarly revised to state that the conclusion of the ALJ hearing will be deemed to be 14 days after the date of the decision of the ALJ, rather than after 10 business days, unless a motion for reconsideration has been filed with the ALJ in the interim. Like the revision to section 1983.110(a), this revision does not substantively alter the length of time before the ALJ hearing will be deemed to have been concluded.

In addition to the changes noted above, OSHA has revised this section slightly to clarify that interest on back pay awards will be compounded daily and to make several minor changes to clarify the provision and more closely mirror the language used in the statute.

Subpart C—Miscellaneous Provisions Section 1983.111Withdrawal of Complaints, Findings, Objections, and Petitions for Review; Settlement

This section provides the procedures and time periods for withdrawal of complaints, the withdrawal of findings and/or preliminary orders by the Assistant Secretary, and the withdrawal of objections to findings and/or orders. It also provides for approval of settlements at the investigative and adjudicative stages of the case. No comments were received on this section.

The final rule adopts a revision to § 1983.111(a) that permits complainants to withdraw their complaints orally. In such circumstances, OSHA will, in writing, confirm a complainant's desire to withdraw. This revision will reduce burdens on complainants who no longer want to pursue their claims. Other minor changes were made as needed to clarify the provision without changing its meaning.

Section 1983.112Judicial Review

This section describes the statutory provisions for judicial review of decisions of the Secretary and requires, in cases where judicial review is sought, the ALJ or the ARB to submit the record of proceedings to the appropriate court pursuant to the rules of such court. No comments were received on this section.

Section 1983.113Judicial Enforcement

This section describes the Secretary's authority under CPSIA to obtain judicial enforcement of orders and the terms of settlement agreements. CPSIA expressly authorizes district courts to enforce orders, including preliminary orders of reinstatement, issued by the Secretary under 15 U.S.C. 2087(b)(6). “Wheneverany person has failed to comply with an order issued under paragraph (3), the Secretary may file a civil action in the United States district court for the district in which the violation was found to occur, or in the United States district court for the District of Columbia, to enforce such order.” Specifically, reinstatement orders issued at the close of OSHA's investigation under 15 U.S.C. 2087(b)(2)(A) are immediately enforceable in district court pursuant to 15 U.S.C. 2087(b)(6) and (7). Section 2087(b)(3)(B)(ii) provides that the Secretary shall order the person who has committed a violation to reinstate the complainant to his or her former position. Section 2087(b)(2)(A) instructs the Secretary to accompany any reasonable cause finding that a violation occurred with a preliminary order containing the relief prescribed by subsection (b)(3)(B), which includes reinstatement where appropriate, and provides that any preliminary order of reinstatement shall not be stayed upon the filing of objections.See15 U.S.C. 2087(b)(2)(A) (“The filing of such objections shall not operate to stay any reinstatement remedy contained in the preliminary order.”). Thus, under the statute, enforceable orders include preliminary orders that contain the relief of reinstatement prescribed by subsection (b)(3)(B). This statutory interpretation is consistent with the Secretary's interpretation of similar language in AIR21 and SOX.SeeBrief for the Intervenor/Plaintiff-Appellee Secretary of Labor,Solisv.Tenn. Commerce Bancorp, Inc.,No. 10-5602 (6th Cir. 2010);Solisv.Tenn. Commerce Bancorp, Inc.,713 F. Supp. 2d 701 (M.D. Tenn. 2010);But see Bechtel,448 F.3d 469;Welchv.Cardinal Bankshares Corp.,454 F. Supp. 2d 552 (W.D. Va. 2006) (decision vacated, appeal dismissed,No. 06-2295 (4th Cir. Feb. 20, 2008)). CPSIA also permits the person on whose behalf the order was issued to obtain judicial enforcement of the order.See15 U.S.C. 2087(b)(7). No comments were received on this section. The final rule simplifies language in the first sentence and adds a sentence noting that, in accordance with the statute, 15 U.S.C. 2087(b)(6), the Secretary may file civil actions seeking enforcement of orders in the United States District Court for the District of Columbia as well as in the district court for the district in which the violation occurred.

Section 1983.114District Court Jurisdiction of Retaliation Complaints

This section sets forth provisions that allow a complainant to bring an original de novo action in district court under certain circumstances. OSHA has revised paragraph (a) of this section to more clearly explain the circumstances in which the complainant may file a complaint in district court and to incorporate the statutory provision allowing a jury trial at the request of either party in a district court action under CPSIA.

Under CPSIA, a complainant may bring an original de novo action in district court alleging the same allegations contained in the complaint filed with OSHA, if there has been no final decision of the Secretary within 210 days of the filing of the complaint, or within 90 days after receiving a written determination. “Written determination” refers to the Assistant Secretary's written findings under § 1983.105(a).See15 U.S.C. 2087(b)(4). The Secretary's final decision is generally the decision of the ARB issued under § 1983.110. In other words, a complainant may file an action for de novo review in the appropriate district court in either of the following two circumstances: (1) A complainant may file a de novo action in district court within 90 days of receiving the Assistant Secretary's written findings issued under § 1983.105(a), or (2) a complainant may file a de novo action in district court if more than 210 days have passed since the filing of the complaint and the Secretary has not issued a final decision. The plain language of 15 U.S.C. 2087(b)(4), by distinguishing between actions that can be brought if the Secretary has not issued a “final decision” within 210 days and actions that can be brought within 90 days after a “written determination,” supports allowing de novo actions in district court under either of the circumstances described above.

However, it is the Secretary's position that complainants may not initiate an action in federal court after the Secretary issues a final decision, even if the date of the final decision is more than 210 days after the filing of the complaint or within 90 days of the complainant's receipt of the Assistant Secretary's written findings. The purpose of the “kick-out” provision is to aid the complainant in receiving a prompt decision. That goal is not implicated in a situation where the complainant already has received a final decision from the Secretary. In addition, permitting the complainant to file a new case in district court in such circumstances could conflict with the parties' rights to seek judicial review of the Secretary's final decision in the court of appeals.See15 U.S.C. 2087(b)(5)(B) (providing that an order with respect to which review could have been obtained in [the court of appeals] shall not be subject to judicial review in any criminal or other civil proceeding).

Under CPSIA, the Assistant Secretary's written findings become the final decision of the Secretary, not subject to judicial review, if no objection is filed within 30 days. 15 U.S.C. 2087(b)(2). Thus, a complainant may need to file timely objections to the Assistant Secretary's findings in order to preserve the right to file an action in district court.

In paragraph (b) of this section, OSHA eliminated the requirement in the interim final rule that complainants provide the agency 15 days advance notice before filing a de novo complaint in district court. Instead, this section now provides that within seven days after filing a complaint in district court, a complainant must provide a file-stamped copy of the complaint to the Assistant Secretary, the ALJ, or the ARB, depending on where the proceeding is pending. A copy of the district court complaint also must be provided to the OSHA official who issued the findings and/or preliminary order, the Assistant Secretary, Occupational Safety and Health Administration, and the U.S. Department of Labor's Associate Solicitor for Fair Labor Standards. This provision is necessary to notify the agency that the complainant has opted to file a complaint in district court. This provision is not a substitute for the complainant's compliance with the requirements for service of process of the district court complaint contained in the Federal Rules of Civil Procedure and the local rules of the district court where the complaint is filed.

This change responds to NWC's comment that the 15-day advance notice requirement for filing in suit in district court should be eliminated because it inhibits complainants' access to federal courts. OSHA believes that a provision for notifying the agency of the district court complaint is necessary to avoid unnecessary expenditure of agency resources once a complainant has decided to remove the complaint to federal district court. OSHA believes that the revised provision