81 FR 90196 - Procedures for Handling Retaliation Complaints Under Section 31307 of the Moving Ahead for Progress in the 21st Century Act (MAP-21)
DEPARTMENT OF LABOR
Occupational Safety and Health Administration Federal Register Volume 81, Issue 240 (December 14, 2016)
Occupational Safety and Health Administration
Federal Register Volume 81, Issue 240 (December 14, 2016)
| Page Range | 90196-90198 | |
| FR Document | 2016-29914 |
[Federal Register Volume 81, Number 240 (Wednesday, December 14, 2016)] [Rules and Regulations] [Pages 90196-90198] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-29914] ======================================================================= ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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 [[Page 90197]] 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 [[Page 90198]] 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] BILLING CODE 4510-26-P
![90196 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations
extracts remain in Schedule I. Entities extracts but within another already- List of Subjects in 21 CFR Part 1308
registered to handle marihuana (under established drug code. Thus, persons Drug traffic control, Controlled
drug code 7360) that also handle who handle these marihuana extracts substances.
marihuana extracts, will need to apply have already met DEA’s registration,
to modify their registrations to add the security, and other statutory and For the reasons set out above, 21 CFR
new drug code 7350 to their existing regulatory requirements. The only direct part 1308 is amended as follows:
DEA registrations and procure quotas effect to registrants who handle PART 1308—SCHEDULES OF
specifically for drug code 7350 each marihuana extracts will be the CONTROLLED SUBSTANCES
year. requirement to add the new drug code
Regulatory Analyses to their registration. Therefore, DEA has ■ 1. The authority citation for part 1308
concluded that this rule will not have a continues to read as follows:
Executive Orders 12866 and 13563, significant effect on a substantial
Regulatory Planning and Review, and Authority: 21 U.S.C. 811, 812, 871(b),
number of small entities. unless otherwise noted.
13563, Improving Regulation and
Regulatory Review Unfunded Mandates Reform Act of 1995 ■ 2. Section 1308.11 is amended by
This regulation has been drafted and On the basis of information contained adding paragraph (d)(58) to read as
reviewed in accordance with the in the ‘‘Regulatory Flexibility Act’’ follows:
principles of Executive Orders 12866 section above, DEA has determined and § 1308.11 Schedule I.
and 13563. This rule is not a significant certifies pursuant to the Unfunded
* * * * *
regulatory action under Executive Order Mandates Reform Act (UMRA) of 1995,
(d) * * *
12866. 2 U.S.C. 1501 et seq., that this action
would not result in any Federal (58) Marihuana Extract—(7350)
Executive Order 12988, Civil Justice Meaning an extract containing one or
mandate that may result in the
Reform more cannabinoids that has been
expenditure by State, local, and tribal
This regulation meets the applicable governments, in the aggregate, or by the derived from any plant of the genus
standards set forth in sections 3(a) and private sector, of $100,000,000 or more Cannabis, other than the separated resin
3(b)(2) of Executive Order 12988 to (adjusted for inflation) in any one year. (whether crude or purified) obtained
eliminate drafting errors and ambiguity, Therefore, neither a Small Government from the plant.
minimize litigation, provide a clear legal Agency Plan nor any other action is * * * * *
standard for affected conduct, and required under provisions of the UMRA
promote simplification and burden Dated: December 7, 2016.
of 1995.
reduction. Chuck Rosenberg,
Paperwork Reduction Act of 1995 Acting Administrator.
Executive Order 13132, Federalism
This action does not impose a [FR Doc. 2016–29941 Filed 12–13–16; 8:45 am]
This rulemaking does not have
collection of information requirement BILLING CODE 4410–09–P
federalism implications warranting the
under the Paperwork Reduction Act of
application of Executive Order 13132.
1995. 44 U.S.C. 3501–3521. This action
The rule does not have substantial DEPARTMENT OF LABOR
would not impose recordkeeping or
direct effects on the States, on the
reporting requirements on State or local
relationship between the national Occupational Safety and Health
governments, individuals, businesses, or
government and the States, or the Administration
organizations. An agency may not
distribution of power and
conduct or sponsor, and a person is not
responsibilities among the various 29 CFR Part 1988
required to respond to, a collection of
levels of government.
information unless it displays a [Docket Number: OSHA–2015–0021]
Executive Order 13175, Consultation currently valid OMB control number.
and Coordination With Indian Tribal RIN 1218–AC88
Governments Congressional Review Act
Procedures for Handling Retaliation
This rule does not have tribal This rule is not a major rule as
Complaints Under Section 31307 of the
implications warranting the application defined by section 804 of the Small
Moving Ahead for Progress in the 21st
of Executive Order 13175. It does not Business Regulatory Enforcement
Century Act (MAP–21)
have substantial direct effects on one or Fairness Act of 1996 (Congressional
more Indian tribes, on the relationship Review Act (CRA)). This rule will not AGENCY: Occupational Safety and Health
between the Federal Government and result in: An annual effect on the Administration, Labor.
Indian tribes, or on the distribution of economy of $100,000,000 or more; a ACTION: Final rule.
power and responsibilities between the major increase in costs or prices for
Federal Government and Indian tribes. consumers, individual industries, SUMMARY: On March 16, 2016, the
Federal, State, or local government Occupational Safety and Health
Regulatory Flexibility Act agencies, or geographic regions; or Administration (OSHA) of the U.S.
The Administrator, in accordance significant adverse effects on Department of Labor (Department)
with the Regulatory Flexibility Act competition, employment, investment, issued an interim final rule (IFR) that
(RFA), 5 U.S.C. 601–602, has reviewed productivity, innovation, or on the provided procedures for the
this rule and by approving it, certifies ability of U.S.-based companies to Department’s processing of complaints
rmajette on DSK2TPTVN1PROD with RULES
that it will not have a significant compete with foreign based companies under the employee protection
economic impact on a substantial in domestic and export markets. (retaliation or whistleblower) provisions
number of small entities. This rule However, pursuant to the CRA, the DEA of Section 31307 of the Moving Ahead
establishes a new drug code for has submitted a copy of this final rule for Progress in the 21st Century Act
marihuana extracts. DEA already to both Houses of Congress and to the (MAP–21). The IFR established
registers persons handling marihuana Comptroller General. procedures and time frames for the
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![90198 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations
issues arising out of legal mandates, the PART 1988—PROCEDURES FOR operation of the Tower Drawbridge,
President’s priorities, or the principles HANDLING RETALIATION mile 59.0, over Sacramento River, at
set forth in Executive Order 12866. COMPLAINTS UNDER SECTION 31307 Sacramento, CA. The vertical lift bridge
Therefore, no economic impact analysis OF THE MOVING AHEAD FOR navigation span provides a vertical
under Section 6(a)(3)(C) of Executive PROGRESS IN THE 21ST CENTURY clearance of 30 feet above Mean High
Order 12866 has been prepared. For the ACT (MAP–21) Water in the closed-to-navigation
same reason, and because no notice of position. The draw operates as required
proposed rulemaking has been ■ For the reasons set out in the by 33 CFR 117.189(a). Navigation on the
published, no statement is required preamble, the interim final rule adding waterway is commercial and
under Section 202 of the Unfunded 29 CFR part 1988, which was published recreational.
Mandates Reform Act of 1995, 2 U.S.C. at 81 FR 13976 on March 16, 2016, is The drawspan will be secured in the
1532. In any event, this rulemaking is adopted as a final rule without change. closed-to-navigation position from 8:30
procedural and interpretive in nature Signed at Washington, DC, on December 8, p.m. on December 31, 2016 to 12:15 a.m.
and is thus not expected to have a 2016. on January 1, 2017, to allow the
significant economic impact. Finally, David Michaels, community to participate in the New
Assistant Secretary of Labor for Occupational Year’s Eve fireworks. This temporary
this rule does not have ‘‘federalism
Safety and Health. deviation has been coordinated with the
implications.’’ The rule does not have
[FR Doc. 2016–29914 Filed 12–13–16; 8:45 am] waterway users. No objections to the
‘‘substantial direct effects on the States,
proposed temporary deviation were
on the relationship between the national BILLING CODE 4510–26–P
raised.
government and the States, or on the Vessels able to pass through the
distribution of power and bridge in the closed position may do so
responsibilities among the various DEPARTMENT OF HOMELAND at any time. The bridge will not be able
levels of government’’ and therefore is SECURITY to open for emergencies and there is no
not subject to Executive Order 13132 immediate alternate route for vessels to
(Federalism). Coast Guard
pass. The Coast Guard will also inform
VI. Regulatory Flexibility Analysis 33 CFR Part 117 the users of the waterway through our
Local and Broadcast Notices to Mariners
The notice and comment rulemaking [Docket No. USCG–2016–1044] of the change in operating schedule for
procedures of Section 553 of the APA the bridge so that vessel operators can
do not apply ‘‘to interpretative rules, Drawbridge Operation Regulation; arrange their transits to minimize any
general statements of policy, or rules of Sacramento River, Sacramento, CA impact caused by the temporary
agency organization, procedure, or AGENCY: Coast Guard, DHS. deviation.
practice.’’ 5 U.S.C. 553(b)(A). Rules that In accordance with 33 CFR 117.35(e),
ACTION:Notice of deviation from
are exempt from APA notice and the drawbridge must return to its regular
drawbridge regulation.
comment requirements are also exempt operating schedule immediately at the
from the Regulatory Flexibility Act SUMMARY: The Coast Guard has issued a end of the effective period of this
(RFA). See SBA Office of Advocacy, A temporary deviation from the operating temporary deviation. This deviation
Guide for Government Agencies: How to schedule that governs the Tower from the operating regulations is
Comply with the Regulatory Flexibility Drawbridge across the Sacramento authorized under 33 CFR 117.35.
Act, at 9; also found at: https:// River, mile 59.0, at Sacramento, CA. The Dated: December 9, 2016.
www.sba.gov/advocacy/guide- deviation is necessary to allow the D.H. Sulouff,
government-agencies-how-comply- community to participate in the New District Bridge Chief, Eleventh Coast Guard
regulatory-flexibility-act. This is a rule Year’s Eve fireworks. This deviation District.
of agency procedure, practice, and allows the bridge to remain in the [FR Doc. 2016–29986 Filed 12–13–16; 8:45 am]
interpretation within the meaning of 5 closed-to-navigation position during the BILLING CODE 9110–04–P
U.S.C. 553; and, therefore, the rule is deviation period.
exempt from both the notice and DATES: This deviation is effective from
comment rulemaking procedures of the 8:30 p.m. on December 31, 2016 to 12:15 DEPARTMENT OF VETERANS
APA and the requirements under the a.m. on January 1, 2017. AFFAIRS
RFA. Nonetheless OSHA, in the IFR, ADDRESSES: The docket for this
provided interested persons 60 days to deviation, [USCG–2016–1044], is 38 CFR Part 17
comment on the procedures applicable available at http://www.regulations.gov. RIN 2900–AP44
to retaliation complaints under MAP–21 Type the docket number in the
and considered the one comment ‘‘SEARCH’’ box and click ‘‘SEARCH’’. Advanced Practice Registered Nurses
pertinent to the IFR that it received in Click on Open Docket Folder on the line
associated with this deviation. AGENCY: Department of Veterans Affairs.
deciding to finalize without change the
procedures in the IFR. FOR FURTHER INFORMATION CONTACT: If ACTION: Final rule with comment period.
you have questions on this temporary SUMMARY: The Department of Veterans
List of Subjects in 29 CFR Part 1988
deviation, call or email David H. Affairs (VA) is amending its medical
Administrative practice and Sulouff, Chief, Bridge Section, Eleventh regulations to permit full practice
rmajette on DSK2TPTVN1PROD with RULES
procedure, Automobile dealers, Coast Guard District; telephone 510– authority of three roles of VA advanced
Employment, Investigations, Motor 437–3516, email practice registered nurses (APRN) when
vehicle defects, Motor vehicle David.H.Sulouff@uscg.mil. they are acting within the scope of their
manufacturers, Part suppliers, Reporting SUPPLEMENTARY INFORMATION: California VA employment. Certified Registered
and recordkeeping requirements, Department of Transportation has Nurse Anesthetists (CRNA) will not be
Whistleblower. requested a temporary change to the included in VA’s full practice authority
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Document Created: 2016-12-14 00:48:54
Document Modified: 2016-12-14 00:48:54
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This final rule is effective December 14, 2016. | |
| 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. | |
| FR Citation | 81 FR 90196 | |
| RIN Number | 1218-AC88 | |
| CFR Associated | Administrative Practice and Procedure; Automobile Dealers; Employment; Investigations; Motor Vehicle Defects; Motor Vehicle Manufacturers; Part Suppliers; Reporting and Recordkeeping Requirements and Whistleblower |
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