[Federal Register Volume 81, Number 240 (Wednesday, December 14, 2016)]
[Rules and Regulations]
[Pages 90196-90198]
[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

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_ADDRESS>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

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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