[Federal Register Volume 81, Number 240 (Wednesday, December 14, 2016)]
[Rules and Regulations]
[Pages 90196-90198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29914]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1988

[Docket Number: OSHA-2015-0021]
RIN 1218-AC88


Procedures for Handling Retaliation Complaints Under Section 
31307 of the Moving Ahead for Progress in the 21st Century Act (MAP-21)

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Final rule.

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SUMMARY: On March 16, 2016, the Occupational Safety and Health 
Administration (OSHA) of the U.S. Department of Labor (Department) 
issued an interim final rule (IFR) that provided procedures for the 
Department's processing of complaints under the employee protection 
(retaliation or whistleblower) provisions of Section 31307 of the 
Moving Ahead for Progress in the 21st Century Act (MAP-21). The IFR 
established procedures and time frames for the

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handling of retaliation complaints under MAP-21, including procedures 
and time frames for employee complaints to OSHA, investigations by 
OSHA, appeals of OSHA determinations to an administrative law judge 
(ALJ) for a hearing de novo, hearings by ALJs, review of ALJ decisions 
by the Administrative Review Board (ARB) (acting on behalf of the 
Secretary of Labor) and judicial review of the Secretary's final 
decision. It also set forth the Department's interpretations of the 
MAP-21 whistleblower provisions on certain matters. This final rule 
adopts, without change, the IFR.

DATES: This final rule is effective December 14, 2016.

FOR FURTHER INFORMATION CONTACT: Britania C. Smith, Program Analyst, 
Directorate of Whistleblower Protection Programs, Occupational Safety 
and Health Administration, U.S. Department of Labor, Room N-4618, 200 
Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-
2199. This is not a toll-free number. Email: [email protected]. This 
Federal Register publication 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 Moving Ahead for Progress in the 21st Century Act, Public Law 
112-141, 126 Stat. 405, was enacted on July 6, 2012 and, among other 
things, funded surface transportation programs at over $105 billion for 
fiscal years 2013 and 2014. Section 31307 of the Act, codified at 49 
U.S.C. 30171 and referred to throughout this rulemaking as MAP-21, 
prohibits motor vehicle manufacturers, parts suppliers, and dealerships 
from discharging or otherwise retaliating against an employee because 
the employee provided, caused to be provided or is about to provide 
information to the employer or the Secretary of Transportation relating 
to any motor vehicle defect, noncompliance, or any violation or alleged 
violation of any notification or reporting requirement of Chapter 301 
of title 49 of the U.S. Code (Chapter 301); filed, caused to be filed 
or is about to file a proceeding relating to any such defect or 
violation; testified, assisted or participated (or is about to testify, 
assist or participate) in such a proceeding; or objected to, or refused 
to participate in, any activity that the employee reasonably believed 
to be in violation of any provision of Chapter 301, or any order, rule, 
regulation, standard or ban under such provision. Chapter 301 is the 
codification of the National Traffic and Motor Vehicle Safety Act of 
1966, as amended, which grants the National Highway Traffic Safety 
Administration (NHTSA) authority to issue vehicle safety standards and 
to require manufacturers to recall vehicles that have a safety-related 
defect or do not meet federal safety standards. This final rule adopts, 
without change, the provisions in the IFR which established procedures 
for the handling of whistleblower complaints under MAP-21.

II. Interim Final Rule, Comment Received and OSHA's Response

    On March 16, 2016, OSHA published in the Federal Register an IFR 
establishing procedures for the handling of whistleblower retaliation 
complaints under MAP-21. 81 FR 13976. The IFR also requested public 
comments. The prescribed comment period closed on May 16, 2016. OSHA 
received one comment responsive to the IFR. The commenter, a private 
citizen, stated in full that:

    After the OSHA investigation, the complainant should have a 
reasonable chance to respond to whatever the investigation found 
before the final determination. The investigation should rely on 
facts: Any witness remarks need to be substantiated by facts, and 
the complainant should be able to respond to them. Investigations 
need to be conducted according to strict guidelines with facts 
checked perhaps by another investigator.

    OSHA is making no revisions to the MAP-21 rule in response to this 
comment. OSHA believes that the procedures in the IFR, see e.g., 29 CFR 
1988.104(c), as supplemented by OSHA's whistleblower investigations 
manual, available at http://www.whistleblowers.gov, operate to give 
complainants adequate opportunities to review and respond to 
information submitted by the employer in a MAP-21 whistleblower 
investigation and to ensure adequate supervision of investigators. In 
addition, as provided in the rules, any party who objects to OSHA's 
findings has an opportunity to seek de novo review before an 
administrative law judge. Accordingly, this rule adopts as final, 
without change, the IFR published on March 16, 2016.

III. Paperwork Reduction Act

    This rule contains a reporting provision (filing a retaliation 
complaint, Section 1988.103) which was previously reviewed and approved 
for use by the Office of Management and Budget (OMB) under the 
provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13). The 
assigned OMB control number is 1218-0236.

IV. 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. Therefore, publication in the Federal Register of a notice of 
proposed rulemaking and request for comments was not required for this 
rulemaking. Although this is a procedural and interpretative rule not 
subject to the notice and comment procedures of the APA, OSHA provided 
persons interested in the IFR 60 days to submit comments and considered 
the one comment pertinent to the IFR that it received in deciding to 
finalize without change the procedures in the IFR.
    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 final rule, which simply finalizes without 
change the procedures that have been in place since publication of the 
IFR. It is in the public interest that the rule be effective 
immediately so that parties may know what procedures are applicable to 
pending cases.

V. Executive Orders 12866 and 13563; Unfunded Mandates Reform Act of 
1995; Executive Order 13132

    The Department 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

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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. For the same reason, 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 interpretive 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).

VI. 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 SBA 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. 
Nonetheless OSHA, in the IFR, provided interested persons 60 days to 
comment on the procedures applicable to retaliation complaints under 
MAP-21 and considered the one comment pertinent to the IFR that it 
received in deciding to finalize without change the procedures in the 
IFR.

List of Subjects in 29 CFR Part 1988

    Administrative practice and procedure, Automobile dealers, 
Employment, Investigations, Motor vehicle defects, Motor vehicle 
manufacturers, Part suppliers, Reporting and recordkeeping 
requirements, Whistleblower.

PART 1988--PROCEDURES FOR HANDLING RETALIATION COMPLAINTS UNDER 
SECTION 31307 OF THE MOVING AHEAD FOR PROGRESS IN THE 21ST CENTURY 
ACT (MAP-21)

0
For the reasons set out in the preamble, the interim final rule adding 
29 CFR part 1988, which was published at 81 FR 13976 on March 16, 2016, 
is adopted as a final rule without change.

    Signed at Washington, DC, on December 8, 2016.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2016-29914 Filed 12-13-16; 8:45 am]
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