[Federal Register Volume 88, Number 48 (Monday, March 13, 2023)]
[Rules and Regulations]
[Pages 15271-15274]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-05076]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1989

[Docket Number: OSHA-2020-0006]
RIN 1218-AD27


Procedures for the Handling of Retaliation Complaints Under the 
Taxpayer First Act (TFA)

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Final rule.

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SUMMARY: On March 7, 2022, 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 7623(d) of the 
Taxpayer First Act (TFA or Act). The IFR established procedures and 
time frames for the handling of retaliation complaints under

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TFA, 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 TFA whistleblower provisions on certain matters. 
This final rule adopts the IFR with one technical change.

DATES: This final rule is effective on March 13, 2023.

FOR FURTHER INFORMATION CONTACT: Ms. Meghan Smith, Program Analyst, 
Directorate of Whistleblower Protection Programs, Occupational Safety 
and Health Administration, U.S. Department of Labor; telephone (202) 
693-2199 (this is not a toll-free number) or email: [email protected]. 
This Federal Register publication is available in alternative formats.

SUPPLEMENTARY INFORMATION: 

I. Background

    The Taxpayer First Act (TFA or Act), Public Law 116-25, 133 Stat. 
981, was enacted on July 1, 2019. Section 1405(b) of the Act, codified 
at 26 U.S.C. 7623(d) and referred to throughout the interim final rule 
and this final rule as the TFA ``anti-retaliation,'' ``employee 
protection,'' or ``whistleblower'' provision, prohibits retaliation by 
an employer, or any officer, employee, contractor, subcontractor, or 
agent of such employer against an employee in the terms and conditions 
of employment in reprisal for the employee having engaged in protected 
activity. Protected activity under the TFA includes any lawful act done 
by an employee to provide information, cause information to be 
provided, or otherwise assist in an investigation regarding 
underpayment of tax or conduct which the employee reasonably believes 
constitutes a violation of the internal revenue laws or any provision 
of Federal law relating to tax fraud. To be protected, the information 
or assistance must be provided to one of the persons or entities listed 
in the statute, which include the Internal Revenue Service (IRS), the 
Secretary of the Treasury, the Treasury Inspector General for Tax 
Administration, the Comptroller General of the United States, the 
Department of Justice, the United States Congress, a person with 
supervisory authority over the employee, or any other person working 
for the employer who has the authority to investigate, discover, or 
terminate misconduct. The Act also protects employees from retaliation 
in reprisal for any lawful act done to testify, participate in, or 
otherwise assist in any administrative or judicial action taken by the 
IRS relating to an alleged underpayment of tax or any violation of the 
internal revenue laws or any provision of Federal law relating to tax 
fraud. The interim final rules established procedures for the handling 
of retaliation complaints under the Act, which OSHA is finalizing with 
one technical correction in this final rule.

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

    On March 7, 2022, OSHA published in the Federal Register an IFR 
establishing procedures for the handling of whistleblower retaliation 
complaints under the TFA. 81 FR 13976. The IFR also requested public 
comments. The prescribed comment period closed on May 6, 2022. OSHA 
received two comments responsive to the IFR.
    The first commenter, a private citizen, stated their opinion that 
the proposed regulation was ``totally outside the purview of OSHA and 
Safety and Health concerns,'' and that ``OSHA and other government 
agencies'' are ``unconstitutional.'' OSHA disagrees with this comment. 
The TFA rule is a procedural and interpretative rule that implements a 
statutory provision lawfully enacted by Congress in which Congress 
assigned to the Secretary of Labor the responsibility to receive and 
adjudicate TFA retaliation complaints. The Secretary of Labor in turn 
assigned to OSHA the responsibility to administer the whistleblower 
program with respect to TFA retaliation complaints. See Sec'y's Order 
No. 8-2020 (May 15, 2020), 85 FR 58,393, 2020 WL 5578580 (Sept. 18, 
2020). In OSHA's experience, promulgating procedural and interpretative 
rules governing the more than twenty whistleblower protection statutes 
that OSHA administers aids the public in understanding the procedures 
applicable to whistleblower cases and the standards that will apply to 
adjudication of such cases. As such, OSHA is making no revisions to the 
TFA rule in response to this comment.
    The second commenter, the United Brotherhood of Carpenters and 
Joiners of America, expressed support for the rule and recommended 
adding ``making referrals to immigration authorities'' in the list of 
prohibited conduct outlined in 29 CFR 1989.102(a). OSHA agrees with the 
commenter that referring a worker to immigration authorities in 
retaliation for the worker's complaint about the employer's tax law 
violation would violate the TFA anti-retaliation provision. OSHA has 
reaffirmed this view in recent public guidance regarding retaliation in 
violation of the whistleblower protection laws it administers. See, 
e.g., OSHA Whistleblower Protection Program Fact Sheet (August 2022), 
available at https://www.osha.gov/sites/default/files/publications/OSHA3638.pdf (``Retaliation can involve several types of actions, such 
as . . . [r]eporting the employee to the police or immigration 
authorities''), Whistleblower Investigations Manual, p. 29 (April 29, 
2022), available at https://www.osha.gov/sites/default/files/enforcement/directives/CPL_02-03-011.pdf (noting adverse action can 
include ``[r]eporting or threatening to report an employee to the 
police or immigration authorities''). However, because the list of 
prohibited conduct in 29 CFR 1989.102(a) is not exhaustive, OSHA 
believes that the language in the IFR is expansive enough to encompass 
retaliatory referrals to immigration authorities.
    Additionally, OSHA has drafted the regulatory text of 29 CFR 
1989.102 to be consistent with its rules governing other OSHA-enforced 
whistleblower statutes to the extent possible under the applicable 
statutory language. See, e.g., 29 CFR 1987.102 (listing examples of 
retaliatory conduct prohibited under the FDA Food Safety Modernization 
Act whistleblower provision); 29 CFR 1980.102 (listing examples of 
retaliatory conduct prohibited under the Sarbanes-Oxley Act 
whistleblower provision). OSHA's rules implementing other whistleblower 
statutes do not include the suggested language and adding the language 
in this rule could lead to confusion regarding whether this conduct is 
prohibited under the other whistleblower-protection statutes. 
Accordingly, OSHA is making no revisions to the TFA rule in response to 
this comment.

III. Discussion of Change

    This final rule corrects one section of the Code of Federal 
Regulations, 29 CFR 1989.110(a), to harmonize the final rule with 29 
CFR part 26. Under that part, pro se litigants do not have to 
electronically file petitions with the ARB, or show ``good cause'' to 
file by mail or some other non-electronic method. Therefore, OSHA is 
revising 29 CFR 1989.110(a) to be consistent with 29 CFR part 26. 
Accordingly, this rule modifies the IFR published on March 7, 2022. In 
all other respects, this rule adopts as final, without change, the IFR 
published on March 7, 2022.

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IV. Paperwork Reduction Act

    This rule contains a reporting provision (filing a retaliation 
complaint, Sec.  1989.103) which was previously reviewed as a statutory 
requirement of TFA and approved for use by the Office of Management and 
Budget (OMB), as part of the Information Collection Request (ICR) 
assigned OMB control number 1218-0236 under the provisions of the 
Paperwork Reduction Act of 1995 (PRA). See Public Law 104-13, 109 Stat. 
163 (1995). A non-material change has been submitted to OMB to include 
the regulatory citation.

V. Administrative Procedure Act

    The notice and comment rulemaking procedures of Sec.  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 two comments pertinent to the IFR that it received in deciding to 
finalize 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 makes one technical change 
and otherwise 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 know 
with the certainty afforded by a final rule 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 
Sec.  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. Nonetheless, OSHA, in the IFR, provided interested persons 60 days 
to comment on the procedures applicable to retaliation complaints under 
TFA and considered the two comments pertinent to the IFR that it 
received in deciding to finalize the procedures in the IFR.

List of Subjects in 29 CFR Part 1989

    Administrative practice and procedure, Employment, Taxation, 
Whistleblower.

Authority and Signature

    This document was prepared under the direction and control of 
Douglas L. Parker, Assistant Secretary of Labor for Occupational Safety 
and Health.

    Signed at Washington, DC, on February 27, 2023.
Douglas L. Parker,
Assistant Secretary of Labor for Occupational Safety and Health.

    For the reasons set forth in the preamble, the Department of Labor 
amends 29 CFR part 1989, which was published as an interim final rule 
at 87 FR 12575 on March 7, 2022, as follows:

PART 1989--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS 
UNDER THE TAXPAYER FIRST ACT (TFA)

0
1. The authority citation for part 1989 continues to read as follows:

    Authority:  26 U.S.C. 7623(d); Secretary of Labor's Order 08-
2020 (May 15, 2020), 85 FR 58393 (September 18, 2020); Secretary of 
Labor's Order 01-2020 (Feb. 21, 2020), 85 FR 13024-01 (Mar. 6, 
2020).


0
2. Amend Sec.  1989.110 by revising paragraph (a) to read as follows:


Sec.  1989.110  Decisions and orders of the Administrative Review 
Board.

    (a) Any party desiring to seek review, including judicial review, 
of a decision of the ALJ, or a respondent alleging that the complaint 
was frivolous or brought in bad faith who seeks an award of attorney 
fees, must file a written petition for review with the 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

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all parties and on the Chief Administrative Law Judge at the time it is 
filed with the ARB. The petition for review must also 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.
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[FR Doc. 2023-05076 Filed 3-10-23; 8:45 am]
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