Federal Register Vol. 81, No.198,

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2010-23-19, Amendment 39-16508 (75 FR 68695, November 9, 2010) (“AD 2010-23-19”). AD 2010-23-19 applied to certain Bombardier, Inc. Model CL-600-2C10 (Regional Jet Series 700, 701, and 702) airplanes, Model CL-600-2D15 (Regional Jet Series 705) airplanes, and Model CL-600-2D24 (Regional Jet Series 900) airplanes. The NPRM published in the Federal Register on January 20, 2016 (81 FR 3038) (“the NPRM”). The NPRM was prompted by reports of the MLG failing to fully extend. The NPRM proposed to continue to require repetitive inspections for damage of the MLG inboard doors and fairing, and corrective actions if necessary. The NPRM also proposed to require repetitive inspections for damage of the MLG inboard doors, MLG fairing, and adjacent structures of the MLG inboard doors, and corrective actions if necessary; replacement of the MLG fairing seal; and a terminating action involving increasing the clearances between the MLG fairing and MLG door. The NPRM also proposed to add one airplane and remove others from the applicability. We are issuing this AD to prevent loss of controllability of the airplane during landing.

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Airworthiness Directive CF-2010-36R1, dated July 18, 2013 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition on certain Bombardier, Inc. Model CL-600-2C10 (Regional Jet Series 700, 701, and 702) airplanes, Model CL-600-2D15 (Regional Jet Series 705) airplanes, and Model CL-600-2D24 (Regional Jet Series 900) airplanes. The MCAI states:

• For the MLG fairing seal: Cracks, cuts, or tears in the material of the MLG fairing seal, and cuts in the material base.

• For the MLG inboard doors: Missing or broken rollers on the MLG inboard door, missing stops, loose or missing fasteners from the stops, and damage (including, but not limited to, corrosion, cracking, and dents) along the edge of the MLG inboard door adjacent to the MLG fairing.

• For the MLG fairing: Missing forward and aft stops, loose or missing fasteners from the forward and aft stops, and damage (including, but not limited to, corrosion, cracking, and dents) along the edge of the MLG fairing adjacent to the MLG inboard door.

• For the stops and wedges on the forward and aft spars: Missing stops, loose or missing fasteners from the stops, missing wedges, and loose or missing fasteners from the wedges.

Corrective actions include replacement of MLG fairing seals, and increasing the clearances between the MLG fairing and MLG door.

The terminating modification involves increasing the clearance between the left and right MLG fairings and the left and right MLG doors. Related investigative actions for the terminating modification include the following inspections:

• A detailed inspection of the MLG fairing for missing forward and aft stops, loose or missing fasteners from the forward and aft stops, and damage along the edge of the MLG fairing adjacent to the MLG inboard door.

• A detailed visual inspection of the MLG inboard door for missing or broken rollers on the MLG inboard door, missing stops, loose or missing fasteners from the stops, and damage along the edge of the MLG inboard door adjacent to the MLG fairing.

• A detailed visual inspection on the stops and wedges on the forward and aft spars for missing stops, loose or missing fasteners from the stops, missing wedges, and loose or missing fasteners from the wedges.

• A liquid penetrant inspection or an eddy current inspection for cracks in the aft stop-fitting and stiffener of the forward member of the MLG inboard door.

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-8471.

We gave the public the opportunity to participate in developing this AD. The following presents the comment received on the NPRM and the FAA's response to the comment.

The Air Line Pilots Association, International (ALPA), stated that it supports the proposed requirements.

ALPA requested that we mandate a flightcrew check of the MLG door from the rear during preflight checks of the aft portion of the MLG. ALPA stated that an informal poll of ALPA carriers suggested that there is not a universally required position from which to make such a check. ALPA suggested that including a specific MLG fairing seal check in the preflight procedures would enhance the preflight inspection.

We do not agree with the commenter's request. The door seals have numerous marks and the only way to determine if there is significant damage to the MLG door fairing and seal would be to perform a detailed inspection as specified in Bombardier Alert Service Bulletin A670BA-32-030. Flightcrews are not trained to accomplish this inspection and would not be able to accurately assess the damage during the limited time assigned for the preflight check. Canadian AD CF-2010-36R1, dated July 18, 2013, requires increasing the clearance between the MLG fairings and the MLG doors. The effectiveness of Canadian AD CF-2010-36R1 is being monitored, and we have no information that the required modification is not effective. As of April 2016, Bombardier In-Service-Engineering has confirmed that there have been no reports of the MLG door being jammed in the MLG fairing on airplanes that have done the actions specified in Bombardier Service Bulletin 670BA-32-040. We have not changed this AD in this regard.

Bombardier, Inc. has issued Service Bulletin 670BA-32-040, Revision F, dated February 11, 2016, including Appendix A, Revision A, and Appendix B, Revision B, both dated July 12, 2014. This service information incorporates small editorial changes, which have no effect on airplanes that have incorporated prior revisions of this service information. We have revised paragraphs (n) and (o) of this AD to reference this service information as the appropriate source of service information for accomplishing the required actions in those paragraphs. We have also added a new paragraph (p)(3)(v) to this AD to give credit for accomplishment of the actions required by paragraph (n) of this AD, if those actions were performed before the effective date of this AD using Bombardier Service Bulletin 670BA-32-040, Revision E, dated November 13, 2014.

We have clarified the revised repair instructions in paragraph (g)(4) of this AD by specifying that, as of the effective date of this AD, if damage other than the damage identified in paragraph (g)(3) of this AD is found the repairs must be approved using a method approved by the Manager, New York Aircraft Certification Office (ACO), ANE-170, FAA; or Transport Canada Civil Aviation (TCCA); or Bombardier, Inc.'s TCCA Design Approval Organization (DAO).

We reviewed the available data, including the comment received, and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these changes:

• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

Bombardier, Inc. has issued Alert Service Bulletin A670BA-32-030, Revision D, dated August 6, 2013, which describes procedures for an inspection of the MLG inboard doors, MLG fairing, and adjacent structure of the MLG inboard doors. This service information also describes procedures for replacing damaged MLG fairing seal(s) and for a clearance check of the MLG door or, if necessary, for removing and/or installing a MLG door.

Bombardier, Inc. has also issued Service Bulletin 670BA-32-040, Revision F, dated February 11, 2016, including Appendix A, Revision A, and Appendix B, Revision B, both dated July 12, 2014. This service information describes procedures for increasing the clearances between the fairing and the MLG inboard doors, and between the MLG fairing and adjacent structure of the MLG doors. This service information also describes procedures for adjusting the MLG doors.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 416 airplanes of U.S. registry.

The actions required by AD 2010-23-19 and retained in this AD take about 1 work-hour per product, at an average labor rate of $85 per work-hour. Based on these figures, the estimated cost of the actions that were required by AD 2010-23-19 is $85 per inspection cycle for each product.

We also estimate that it takes about 50 work-hours for each product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $1,768,000, or $4,250 for each product.

In addition, we estimate that any necessary follow-on replacement actions would take about 24 work-hours and require parts costing $2,626, for a cost of $4,666 per product. We have no way of determining the number of aircraft that might need these actions.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect 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.

For the reasons discussed above, I certify that this AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

NMFS published a proposed rule to modify the recordkeeping and reporting requirements for the groundfish fisheries in the Gulf of Alaska and the Bering Sea and Aleutian Islands management areas on August 1, 2016 (81 FR 50436). The comment period on the proposed rule ended on August 31, 2016. NMFS received one comment.

This final rule is organized into four actions. The first action implements a requirement for tender vessel operators to use tLandings. The second action modifies the definition of buying station so that tender vessels and land-based buying stations are differentiated under the regulations. The third action removes the requirement for buying stations to complete the buying station report. The fourth action modifies the definition of a mothership to simplify the unnecessary paragraph formatting. The following sections of the preamble describe (1) background on the Interagency Electronic Reporting System and tendering, (2) the need for action, (3) the final rule, (4) the response to comments, and (5) the changes from the proposed rule. The preamble of the proposed rule (81 FR 50436; August 1, 2016) provides a more detailed description of the background and need for this action.

The Interagency Electronic Reporting System (IERS) is a collaborative program for reporting commercial fishery landings administered by NMFS, Alaska Department of Fish and Game (ADF&G), and the International Pacific Halibut Commission. The IERS consists of three main components: eLandings—a web-based application for immediate harvest data upload from internet-capable vessels or processors; seaLandings—a desktop application for vessels at sea without internet capability that transmits reports by satellite phone; and tLandings—a software application for tender vessels that records landings data on a USB flash drive (“thumb drive”) that includes all of the data fields required under IERS. NMFS requires all shoreside or floating processors that hold a Federal processing permit to use eLandings or other NMFS-approved software to submit landing reports for all groundfish species.

A tender vessel is defined under § 679.2 as a vessel that is used to transport unprocessed fish or shellfish received from another vessel to an associated processor. An associated processor is defined under § 679.2 as having a contractual relationship with a buying station to conduct groundfish buying station activities for that processor. The contractual relationship in the Federal regulations creates joint responsibility for recordkeeping and reporting. For more information on tendering, see Section 1.5 of the RIR.

This action is necessary to enable NMFS to identify tender vessel deliveries and to provide reliable, expeditious data for catch accounting and inseason management of fisheries with tender vessel deliveries. In addition, this action is necessary to correct and clarify other regulations in 50 CFR part 679 that are related to recordkeeping and reporting by tender vessels and associated processors.

Prior to this final rule, when a tender vessel received catch from a vessel, the tender vessel operator completed a paper fish ticket. Once the transfer was complete, the vessel operator signed the paper fish ticket acknowledging the transfer of catch and agreeing to the information provided. When the tender vessel delivered the catch to the processor, the tender vessel operator provided the paper fish ticket to the processor. The processor then verified the information and manually entered the fish ticket data into eLandings to create a landing report. Landing reports are required to be submitted to NMFS by noon of the day following the delivery. The processor's manual entry of fish ticket data, including review and correction of the data, sometimes made it difficult for the processor to meet this submission deadline and delayed the availability of the tender vessel landing data to NMFS.

The lack of electronic data from tenders reduced data reliability and timeliness. Additionally, with the lack of electronic data from tenders, NMFS was unable to differentiate deliveries to tender vessels from deliveries to processors unless the processor voluntarily entered the tender vessel identification number in the eLandings report. NMFS had, in the past, raised concerns about landings data reliability and timeliness in analyses presented to the North Pacific Fishery Management Council and fishery participants. The tLandings requirement reduces data entry errors and the time required to manually enter fish tickets. Requiring tLandings reduces the likelihood of a processor needing to recall a tender vessel if a fish ticket is illegible or incorrectly filled out. Additionally, requiring tLandings eliminates the need for comprehensive manual data entry by processor staff, simplifying and expediting the data transmission to NMFS.

Data timeliness and reliability are paramount to effective inseason management. Almost real-time access to the data is particularly important for fast-paced fisheries that operate under small total allowable catch limits, constraining prohibited species catch (PSC) limits, or that have inconsistent and unpredictable levels of fishing effort. NMFS requires timely data for the successful management of these fisheries. In addition, NMFS uses timely data for any catch share program that involves transferable allocations of target species. NMFS inseason management and Office of Law Enforcement rely on the data provided through eLandings to monitor compliance with requirements that quota holders not exceed their allocations. Management and enforcement of PSC-limited and catch share fisheries become more difficult when data access is delayed. For more information on the potential implications of the lack of electronic data entry on management, see Sections 1.3 and 1.8 of the RIR.

This rule requires tenders to use tLandings. tLandings is a computer application used on computers on board tender vessels to create electronic landing reports. The tLandings application is loaded onto a thumb drive; the tender vessel operator creates the landing reports and stores them on the thumb drive. The mandatory use of tLandings will provide a streamlined data entry mechanism that ensures efficient, precise data transmission.

Action 1 of this rule requires tender vessel operators to use tLandings to prepare electronic landing reports. Action 1 is necessary to improve data quality for deliveries made to tender vessels.

Under this rule, the eLandings user (defined as a representative of a processor under § 679.2, i.e., an employee) is required to supply the tender vessel operator with a “configured” tLandings application for computer installation prior to the tender vessel operator taking delivery of fish or shellfish from a fishing vessel. A configured tLandings application is preloaded with a list of the authorized users, a species list, and other useful data for the associated processor and tender vessel operator. The tender vessel operator must record the required information in tLandings for each delivery the tender vessel accepts. Once the tender vessel delivers the catch to the associated processor, the user (as defined at § 679.2) is required to complete the eLandings landing report by uploading the tLandings data through the Processor Tender Interface component of eLandings. After the completion of the delivery, the processor may sort the catch and update the landing data appropriately.

The processor will continue to be subject to the time limits for data submission specified under § 679.5(e). For shoreside processors and stationary floating processors, users must submit a landing report for each delivery by 1200 hours, Alaska local time, of the day following completion of the delivery (§ 679.5(e)(5)(ii)). These processors have until 1200 hours, Alaska local time, of the third day following completion of the delivery to submit a revised landing report after sorting has occurred. Under this rule, tender vessels delivering to shoreside processors or stationary floating processors are required to abide by these submittal time limits.

Under this rule, the tender vessel operator is responsible for completing the tLandings landing report and submitting it to the processor. This creates a joint responsibility for the tLandings landing report information for the tender vessel operator and the processor. Section 1.9.4 of the RIR provides additional detail on the monitoring and enforcement of the tLandings requirements.

To use tLandings, each tender vessel needs a laptop computer with a numeric key pad, a basic laser printer with ink cartridges and paper, a magstripe reader, and thumb drives that contain the tLandings application. NMFS estimates that using tLandings will increase the annual cost to tender vessels from $1,000 to $2,300. Section 1.4 of the RIR describes that most tender vessels are voluntarily using tLandings to report Federal groundfish landings, and many are required to use tLandings to report landings made in fisheries managed by the State of Alaska (State). Therefore, the total additional costs and burden on tender vessel operations are expected to be limited. See Section 1.9.1.1 of the RIR for more information on the estimated cost of equipment.

Operating the tLandings application requires some training and practice for both the tender vessel operators and processor staff. NMFS assumes that the initial and ongoing training costs to use tLandings will likely be shared by NMFS and the processor using tender vessels. NMFS may bear an initial cost for training processors on the use of tLandings, after which it will be the processors' responsibility to provide training for their tender vessel operators. NMFS estimates that it will require a full day of initial training for new tLandings users. Section 1.9.1.2 of the RIR describes projected training costs in more detail.

Because processors are already subject to an eLandings reporting requirement, processors likely have staff proficient with the IERS software, so there is not expected to be significant additional training required for the tLandings requirement.

Under this rule, NMFS will add a data field to the tLandings application to track the location of tenders when they take deliveries from vessels. The tender vessel operator is required to report the vessel's latitude and longitude at the time of each vessel delivery. This data is necessary to improve information on tender vessel activity and vessel delivery patterns when delivering to a tender vessel as opposed to a processor. This data field is not expected to add a reporting burden on tender vessel operators.

Section 1.5.1 of the RIR estimates that 30 tender vessels received Federal groundfish in the BSAI and GOA in 2015. Those tender vessels delivered to eight processors. Many tender vessels that operate in the Federal groundfish fisheries also operate in the State groundfish fisheries. Under State regulations these tender vessels are already subject to a State tLandings requirement and may already be equipped with tLandings from ADF&G. In 2015, 21 of the 30 tender vessels also took delivery of State groundfish. NMFS expects that there will be minimal additional cost for these tender vessels to also use tLandings for Federal groundfish. The tLandings requirement under this rule affects nine tender vessels. The eight processors that received Federal groundfish from tender vessels in 2015 also received State groundfish from tender vessels; therefore, the effect of this rule on processors is estimated to be minimal.

Action 2 of this rule revises the definitions of tender vessel and buying station for improved clarity to ensure that the reporting requirements that are applicable to tender vessels and land-based buying stations are clear to the public. Prior to this final rule, under § 679.2, the definition of a buying station includes both tender vessels and land-based buying stations. Under § 679.2, tender vessel is separately defined as a vessel used to transport unprocessed fish or shellfish received from another vessel to an associated processor. While many recordkeeping and reporting requirements that apply to buying stations should include both tender vessels and land-based buying stations, not all of the reporting requirements that apply to buying stations should apply to both tender vessels and land-based buying stations. Additionally, while a tender vessel may be associated with a shoreside processor, stationary floating processor, or mothership, a land-based buying station is only associated with a shoreside processor. Action 2 does not revise or modify the specific provisions of reporting requirements, but clarifies who is responsible for each requirement.

Action 3 of this rule removes the requirement in § 679.5(d) for a buying station to submit a Buying Station Report. The most recent year of landing report data in 2015 shows that all 54 active buying stations are associated with shoreside processors that use eLandings. NMFS receives the landing data it needs through eLandings, and so does not need to require that the data be submitted in a Buying Station Report. Removing the requirement to submit a Buying Station Report removes a duplicative reporting requirement and reduces the burden on the regulated public. Buying stations will continue to be required to submit landing reports using eLandings.

To implement Action 3, this rule modifies references in the regulations to clarify whether certain recordkeeping and reporting requirements apply to tender vessels, buying stations, or both. Additionally, this rule removes the qualifier “land-based” from references to buying stations in the regulations because buying station is defined in the regulations as a land-based entity. Finally, NMFS revises the definition of “manager” to effectively include “stationary floating processor” managers.

Action 4 of this rule revises the definition of mothership in § 679.2 to simplify the structure of the definition by moving the text of paragraph (1) into the main body of the definition and deleting reserved paragraph (2). This minor technical correction does not substantively change the definition of a mothership.

NMFS received one comment letter from the public that contained one unique substantive comment during the public comment period for the proposed rule to implement these four actions. NMFS' response to this comment is presented below.

Comment: Will tender vessels that tender IFQ halibut need to use tLandings to submit landing reports?

Response: No. Tender vessels are not required to use tLandings for IFQ halibut. This rule does not alter the existing recordkeeping and reporting requirements for the Individual Fishing Quota (IFQ) Program. The final rule is modified as described below to clarify that tender vessels that take deliveries of non-IFQ groundfish will be subject to this rule.

This final rule includes changes to the regulatory text published in the proposed rule.

This final rule includes a change to the regulatory text that was made in response to the comment received on the proposed rule to clarify who is required to use tLandings under this rule. The proposed rule did not make clear that the tLandings rule will not apply to tender vessels that take IFQ halibut or sablefish, Community Development Quota (CDQ) halibut, or Crab Rationalization Program (CR) crab. While tenders are not regularly used in any of these fisheries, several minor modifications to the regulatory text in the final rule will make this distinction clear.

The tLandings application is not configured to accommodate reporting of IFQ species or CDQ halibut. In addition, the IFQ species and CDQ halibut are reported to NMFS on different landing reports than are used for non-IFQ groundfish species. IFQ halibut and sablefish and CDQ halibut are reported to NMFS on a Registered Buyer landing report. CR crab are reported on a Registered Crab Receiver IFQ crab landing report. Groundfish, other than IFQ sablefish, are required to be reported on a shoreside processor, stationary floating processor, or Community Quota Entity floating processor landing report. Only tender vessels that take deliveries of non-IFQ groundfish in the BSAI and GOA will be required to use and complete tLandings.

The regulatory language in the proposed rule specified that tLandings would be required for fish or shellfish required to be reported on a shoreside processor, stationary floating processor, or Community Quota Entity (CQE) floating processor landing report (“a landing report under § 679.5(e)(5)”). Therefore, to make the needed clarification in the final rule, NMFS revises the regulatory language at new paragraph § 679.5(e)(14) to refer to “groundfish” rather than “fish or shellfish” and to cross reference the deadlines specified for the shoreside processor, stationary floating processor or CQE floating processor landing report.

This final rule includes three changes to the regulatory text in the proposed rule specific to Action 2. Action 2 is intended to clarify the recordkeeping and reporting requirements applicable to tender vessels and land-based buying stations. As explained in the section “Action 2: Differentiate Tender Vessels from Buying Stations,” this rule revises the definitions of tender vessels and buying stations so that a tender vessel is a vessel and a buying station is a land-based entity. The difference in these two operation types requires differentiating the individual responsible for recordkeeping and reporting requirements for each entity to maintain consistency with how NMFS identifies the individual responsible for other operation types. For vessels that are mobile as a part of daily operations, NMFS identifies the individual responsible for recordkeeping and reporting requirements as the operator of that vessel. For shoreside and stationary floating processors (non-mobile operations), NMFS identifies the manager as the individual responsible. In this final rule, NMFS revises the regulatory text at § 679.5(a)(2)(i), (b), (c)(6)(i), and (e)(5)(iii) to clarify that the individual responsible for recordkeeping and reporting requirements on a vessel, including a tender vessel, is the operator, while the individual responsible at a buying station is the manager. This differentiation is consistent with the identification of the operator of a catcher vessel, catcher/processor, and mothership as the individual responsible and the manager of a shoreside processor or stationary floating processor as the individual responsible. These three revisions from the proposed to final rule are necessary to provide consistency with the intent of Action 2.

An additional minor revision to the regulatory text in this final rule will change the abbreviation required to be used in the mothership daily catch and production logbook at § 679.5(c)(6)(vi)(A) from “BS” to “TV.” This revision is necessary to maintain consistency with the proposed change from “buying station” to “tender vessel” in that paragraph.

In the proposed rule, NMFS proposed to revise Table 13 to 50 CFR part 679 to remove the notation for a buying station or tender vessel to complete a buying station report. In keeping with the intent of Action 3 of this rule, NMFS will remove the entire row pertaining to the buying station report rather than only removing the notation.

Pursuant to section 304(b)(1)(A) and section 305(d) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with the BSAI FMP, the GOA FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

This final rule has been determined to be not significant for the purposes of Executive Order 12866.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a final regulatory flexibility analysis, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. The preamble to the proposed rule (81 FR 50436; August 1, 2016) and the preamble to this final rule serve as the small entity compliance guide for this action. In addition, a user guide for tLandings is available on the NMFS Alaska Region Web site (https://elandings.atlassian.net/wiki/display/doc/tLandings).

Section 604 of the Regulatory Flexibility Act (RFA) requires an agency to prepare a final regulatory flexibility analysis (FRFA) after being required by that section or any other law to publish a general notice of proposed rulemaking and when an agency promulgates a final rule under section 553 of Title 5 of the U.S. Code. The following paragraphs constitute the FRFA for this action.

This FRFA incorporates the Initial Regulatory Flexibility Analysis (IRFA), a summary of the significant issues raised by the public comments, NMFS' responses to those comments, and a summary of the analyses completed to support the action. The FRFA describes the impacts on small entities, which are defined in the IRFA for this action and not repeated here. Analytical requirements for the FRFA are described in RFA, section 604(a)(1) through (6). The FRFA must contain:

1. A statement of the need for, and objectives of, the rule;

2. A statement of the significant issues raised by the public comments in response to the IRFA, a statement of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments;

3. The response of the agency to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA) in response to the proposed rule, and a detailed statement of any change made to the proposed rule in the final rule as a result of the comments;

4. A description and an estimate of the number of small entities to which the rule will apply, or an explanation of why no such estimate is available;

5. A description of the projected reporting, recordkeeping, and other compliance requirements of the rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; and

6. A description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.

The “universe” of entities to be considered in a FRFA generally includes only those small entities that can reasonably be expected to be directly regulated by the action. If the effects of the rule fall primarily on a distinct segment of the industry, or portion thereof (e.g., user group, gear type, geographic area), that segment will be considered the universe for purposes of this analysis.

In preparing a FRFA, an agency may provide either a quantifiable or numerical description of the effects of a rule (and alternatives to the rule), or more general descriptive statements, if quantification is not practicable or reliable.

The lack of electronic data from tenders reduces data reliability and timeliness. Data timeliness and reliability are paramount to effective inseason management. Almost real-time access to the data is particularly important for fast-paced fisheries that operate under small total allowable catch limits, constraining PSC limits, or that have inconsistent and unpredictable levels of fishing effort. NMFS requires timely data for the successful management of these fisheries. In addition, NMFS uses timely data for any catch share program that involves transferable allocations of target species. NMFS inseason management and Office of Law Enforcement rely on the data provided through eLandings to monitor compliance with requirements that quota holders not exceed their allocations. Management and enforcement of PSC-limited and catch share fisheries become more difficult when data access is delayed.

Additionally, with the lack of electronic data from tenders, NMFS is unable to differentiate deliveries to tender vessels from deliveries to processors unless the processor voluntarily enters the tender vessel identification number in the eLandings report. NMFS has, in the past, raised concerns about landings data reliability and timeliness in analyses presented to the North Pacific Fishery Management Council and fishery participants.

NMFS published the proposed rule on August 1, 2016 (81 FR 50436), with comments invited through August 31, 2016. An IRFA was prepared and summarized in the Classification section of the preamble to the proposed rule. The Chief Counsel for Advocacy of the SBA did not file any comments on the proposed rule. No comments were received that raised significant issues in response to the IRFA specifically; therefore, no changes were made to this rule as a result of comments on the IRFA. However, a comment was received on the entities affected by this rule. For a summary of this comment and the agency's response, refer to the section above titled “Comments and Responses.”

For Regulatory Flexibility Act purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide.

The SBA has established size criteria for all other major industry sectors in the United States, including fish processing businesses. A seafood processor is a small business if it is independently owned and operated, not dominant in its field of operation, and employs 750 or fewer persons on a full-time, part-time, temporary, or other basis, at all its affiliated operations worldwide. A wholesale business servicing the fishing industry is a small business if it employs 100 or fewer persons on a full-time, part-time, temporary, or other basis, at all its affiliated operations worldwide.

Action 1 of this rule affects tender vessels and processors that receive deliveries of groundfish from tender vessels. For the purposes of the FRFA, a tender vessel is categorized as a wholesale business servicing the fishing industry. Most tender vessels are independently owned and operated entities that are contracted with processors. The exceptions are tender vessels owned by processors. NMFS does not have data on the number of employees on tender vessels, and therefore conservatively assumes all tender vessels that are independently owned and operated are small entities.

Of the 30 tender vessels affected by this action, five are owned by processors that are large entities. Therefore, through affiliation, these five tender vessels are not small entities under the SBA definition. The additional 25 independently owned tender vessels are small entities under the SBA definition. In 2015, there were 8 processors that received groundfish deliveries from tender vessels. None of these processors directly regulated by this action qualify as small entities for the purposes of the SBA.

Action 2 of this rule does not add new requirements for tender vessels or buying stations; it only clarifies which requirements the entities are subject to. Therefore this action is expected to have a small positive impact. This action affects the 30 tender vessels and 54 buying stations that were active in 2015.

Action 3 of this rule removes a requirement on participants that is not currently used; therefore, it is expected to have no effect on participants.

Action 4 of this rule revises the definition of mothership to make it more straightforward and does not modify the definition in a substantive way; therefore, it has no effect on participants.

This rule requires modifications to the current recordkeeping and reporting requirements in the Alaska Interagency Electronic Reporting System collection (OMB Control Number 0648-0515). The modifications include requiring tender vessel operators to complete the data fields on the tLandings tender workstation application for each delivery the tender vessel accepts from a vessel. Additionally, the tender vessel operator is required to provide the completed tLandings application to the processor on delivery. The processor is then required to upload the information provided by the tender vessel operator in the tLandings application into the eLandings landing report.

This rule removes the Buying Station Report requirement. NMFS receives the landing data it needs through eLandings, and does not need the data submitted in the Buying Station Report. The Buying Station Report is discontinued from any future use. Removing the requirement to submit a Buying Station Report removes a duplicative reporting requirement and reduces the burden on the regulated public. Buying stations will continue to be required to submit landing reports using eLandings.

Under each action, NMFS considered two alternatives—the no action alternative and the action alternative. NMFS did not identify any other alternatives that meet the objectives of these actions at a lower cost and reduce economic impact on small entities. The no action alternative for Action 1 would have maintained the existing process of tender vessel operators completing paper fish tickets for each delivery and giving the information to the processor to transcribe and upload into eLandings. Maintaining the manual writing and submission of tender delivery data would not have met the objective of providing timely and accurate landing data.

To help reduce the burden of this regulation on small entities and minimize their costs, NMFS will develop the tLandings tender workstation application and provide that at no cost to participants to provide services and products useful to the industry. NMFS will also provide user support and training. Additionally, NMFS will share some of the training costs for processors to learn how to use tLandings.

The action alternatives for Actions 2, 3, and 4 have been determined to have either a small positive effect or no effect on participants, and therefore are not discussed further.

This rule contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA) and which have been approved by the Office of Management and Budget (OMB) under OMB Control Number 0648-0515. Public reporting burden is estimated to average per response: 15 minutes for IERS application processor registration; 35 minutes for eLandings landing report; 35 minutes for manual landing report; 15 minutes for catcher/processor or mothership eLandings production report; and 35 minutes for tLandings landing report.

Send comments regarding these burden estimates or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see ADDRESSES), and by email to [email protected], or fax to 202-395-5806.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number. All currently approved NOAA collections of information may be viewed at: http://www.cio.noaa.gov/services_programs/prasubs.html.

For the reasons set out in the preamble, NMFS amends 15 CFR part 902 and 50 CFR part 679 as follows:

I. Background

The Patient Protection and Affordable Care Act, Public Law 111-148, 124 Stat. 119, was signed into law on March 23, 2010 and was amended by the Health Care and Education Reconciliation Act of 2010, Public Law 111-152, 124 Stat. 1029, that was signed into law on March 30, 2010. The terms “Affordable Care Act,” or “Act,” or “ACA” are used in this rulemaking to refer to the final, amended version of the law.

Section 1558 of the Affordable Care Act amended the Fair Labor Standards Act (FLSA) to add section 18C, 29 U.S.C. 218C (section 18C), which provides protection to employees against retaliation by an employer for engaging in certain protected activities.

Under section 18C, an employer may not retaliate against an employee for receiving a credit under section 36B of the Internal Revenue Code of 1986 (Code) or cost-sharing reductions (referred to as a “subsidy” in section 18C) under the Affordable Care Act. In general, section 36B of the Code allows certain individuals to receive the premium tax credit for coverage under a qualified health plan through an Exchange if they are not eligible for health coverage (other than in the individual market) including an offer from their employer of affordable coverage that provides minimum value and if their household income is between 100% and 400% of the federal poverty line. In addition, individuals eligible for the premium tax credit may also qualify for cost-sharing reductions if certain other qualifications are met.

Individuals may qualify for advance payment of the premium tax credit (APTC), which is payment during the year to an individual's insurance provider that pays for part or all of the premiums for a qualified health plan through the Exchange covering the individual and his or her family. Eligibility for APTC is based on the Exchange's estimate of the premium tax credit to which the individual will be entitled on his or her tax return. Filing of an individual's federal income tax return is the process through which an individual claims the premium tax credit, and if APTC was paid for the individual or a member of his or her family, it is also the process through which the individual must reconcile the APTC with the premium tax credit.

Since 2015, under section 4980H of the Code, certain employers (referred to as applicable large employers) must either offer health coverage that is affordable and that provides minimum value to their full-time employees (and offer coverage to their dependents), or be subject to an assessable payment (referred to as an “employer shared responsibility payment”) payable to the IRS if any full-time employee receives the premium tax credit for coverage through an Exchange. Thus, the relationship between the employee's receipt of the premium tax credit and the potential employer shared responsibility payment imposed on an applicable large employer could create an incentive for an employer to retaliate against an employee. Section 18C protects employees against such retaliation.

Section 18C also protects employees against retaliation because they provided or are about to provide 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 employee reasonably believes to be a violation of, any provision of or amendment made by title I of the Affordable Care Act; testified or are about to testify in a proceeding concerning such violation; assisted or participated, or are about to assist or participate, in such a proceeding; or objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee reasonably believed to be in violation of any provision of title I of the Act (or amendment), or any order, rule, regulation, standard, or ban under title I of the Act (or amendment). Among other provisions, title I of the Affordable Care Act includes a range of health insurance market reforms such as: The prohibition on lifetime and annual dollar limits on essential health benefits, the requirement for non-grandfathered plans to cover certain recommended preventive services with no cost sharing, and a prohibition on pre-existing condition exclusions.

This final rule revises the procedures for the handling of whistleblower complaints under section 18C of the FLSA and sets forth the Secretary's interpretations of the ACA whistleblower provision on certain matters. To the extent possible within the bounds of applicable statutory language, these revised rules are designed to be consistent with the procedures applied to claims under other whistleblower statutes administered by OSHA. Responsibility for receiving and investigating complaints under section 18C has been delegated to the Assistant Secretary for Occupational Safety and Health (Assistant Secretary). Secretary of Labor'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 of Labor's Order No. 2-2012 (Oct. 19, 2012), 77 FR 69378 (Nov. 16, 2012).

Section 18C(b)(1) adopts the procedures, notifications, burdens of proof, remedies, and statutes of limitation in the Consumer Product Safety Improvement Act of 2008 (CPSIA), 15 U.S.C. 2087(b). Accordingly, a covered employee (complainant) may file a complaint with the Secretary of Labor (Secretary) within 180 days of the alleged retaliation. Upon receipt of the complaint, the Secretary must provide written notice to the person or persons named in the complaint alleged to have violated section 18C (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.

Section 18C, through the incorporation of CPSIA, provides that the Secretary may conduct an investigation only if the complainant has made a prima facie showing that 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. (See § 1984.104 for a summary of the investigative process). OSHA interprets the prima facie case requirement as allowing the complainant to meet this burden through the complaint as supplemented by interviews of the complainant.

After investigating a complaint, the Secretary will issue written findings. If, as a result of the investigation, the Secretary finds that there is reasonable cause to believe that retaliation has occurred, the Secretary must notify the respondent of that finding, 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 section 18C of the FLSA 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 before an ALJ is held, the statute 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 will order 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.

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.

Section 18C 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.

Finally, section 18C(b)(2) of the FLSA provides that nothing in section 18C shall be deemed to diminish the rights, privileges, or remedies of any employee under any federal or state law or under any collective bargaining agreement, and the rights and remedies in section 18C may not be waived by any agreement, policy, form, or condition of employment.

On February 27, 2013, OSHA published in the Federal Register an IFR promulgating rules governing the employee protection provisions of section 1558 of the Affordable Care Act, which added section 18C of the FLSA. 78 FR 13222. OSHA included a request for public comment on the interim final rule by April 29, 2013.

Seven organizations and four individuals filed responsive comments with OSHA within the public comment period. OSHA received comments from Tate and Renner (Renner); the Blue Cross Blue Shield Association (BCBS); the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO); America's Health Insurance Plans (AHIP); the Service Employees International Union (SEIU); the National Federation of Independent Business (NFIB); the United States Chamber of Commerce (Chamber); Thomas O'Grady; DeAnna Beckner; J.I.M. Choate; and N. Menold.

OSHA has reviewed and considered the comments and now adopts this final rule with minor revisions. The following discussion addresses the comments, OSHA's responses, and any other changes to the provisions of the rule. The provisions in the IFR are adopted and continued in this final rule, unless otherwise noted below.

As OSHA explained in the preamble to the IFR (78 FR 13223), section 18C became effective on the date the health care law was enacted, March 23, 2010. The Affordable Care Act also added section 2706(b) to the Public Health Service Act (PHSA), 42 U.S.C. 300gg et seq., as amended by section 1201 of the Affordable Care Act, and section 2706 of the PHSA first became effective for plan years beginning on or after January 1, 2014. The Affordable Care Act added Code section 9815(a) and Employee Retirement Income Security Act (ERISA) section 715(a) to incorporate the provisions of part A of title XXVII of the PHS Act (which includes PHSA section 2706) into the Code and ERISA. Accordingly, PHSA section 2706 is subject to shared interpretive jurisdiction by the Departments of Health and Human Services (HHS), the Treasury (Treasury), and Labor (DOL). Section 2706 of the PHSA is titled “Non-Discrimination in Health Care” and provides, in relevant part: “(b) INDIVIDUALS.—The provisions of section 1558 of the Patient Protection and Affordable Care Act (relating to non-discrimination) shall apply with respect to a group health plan or health insurance issuer offering group or individual health insurance coverage.”

Four commenters (BCBS, AHIP, the Chamber, and AFL-CIO) commented on the discussion in the IFR of the relationship between section 18C and section 2706(b) of the PHSA. OSHA has reviewed these comments and referred them to HHS, Treasury and the DOL's Employee Benefits Security Administration, which share interpretive jurisdiction over section 2706. The IFR included a discussion on PHSA section 2706(b) in the preamble to the rule solely to put the public on notice that section PHSA section 2706(b) includes a reference to section 1558 of the Affordable Care Act. However, the IFR did not include any regulatory provisions aimed at implementing PHSA section 2706(b), nor do these final regulations. Accordingly, interpretive guidance regarding PHSA section 2706(b) is outside to the scope of these regulations.

NFIB commented that OSHA should re-issue the rule as a Notice of Proposed Rulemaking (NPRM), complete with an initial regulatory flexibility analysis and that OSHA should also examine whether a Small Business Advocacy Review panel is necessary. The Chamber likewise commented that OSHA has not sufficiently demonstrated that this rulemaking is interpretative and procedural and should have provided an economic analysis under Executive Orders 12866 and 13563, and an initial regulatory flexibility analysis under the Regulatory Flexibility Act (RFA). OSHA disagrees, and as explained below, OSHA continues to believe that this rule is procedural and interpretative, and that it has complied with the applicable requirements for promulgating this rule.

OSHA received additional general comments from several commenters. Menold expressed general support for the IFR. Choate commented that the final rule should use the word “judge” instead of “ALJ” when referring to administrative law judges. After consideration, the use of the abbreviation “ALJ” has been retained in the final rule as consistent with agency practice.

NFIB expressed general concern that section 18C would lead to an increase in whistleblower complaints that would impair small businesses and expressed the hope that OSHA would work to ensure that its procedures allow an opportunity at the outset for the small business and the employee to resolve a complaint without having to go through a formal investigation and adjudication.

Beckner supported the “implementation of `economic reinstatement' or `front pay' instead of preliminary reinstatement in situations w[h]ere the employer and employee relationship has deteriorated beyond repair” and the definition of employee to include former employees and applicants.

She also commented that the period of time that must transpire prior to a complainant filing for de novo review in district court is too long, as did O'Grady who suggested that the alternative procedural time periods that precede an employee's right to file a complaint to federal district court should be streamlined in the interest of the complainant who may be in a “precarious situation” during those times. He also commented that if the process cannot be streamlined, then once OSHA makes an initial determination that there is a valid complaint the employee should receive an injunction barring further retaliation.

SEIU and the AFL-CIO commented that the rules should include specific provisions requiring employers to post notices regarding whistleblower rights under section 18C.

Finally, Renner noted that section 1558 of the ACA, like other whistleblower laws, is a remedial law and should be construed and applied to further its remedial purposes. Renner also noted there may be some overlap between the protections provided in ERISA section 510 and FLSA section 18C and asked that the Department's comments on the final rule address this issue.

OSHA has not made any changes to the rule in response to these comments. The 90-day and 210-day time periods for filing a complaint in district court are established in the statute, and OSHA cannot change them by regulation. 15 U.S.C. 2087(b)(4). With regard to O'Grady's proposal for injunctive relief, OSHA notes that the statute already provides for the type of relief requested. If it finds reasonable cause to believe that retaliation occurred, the statute requires OSHA to issue findings and an order containing relief including, where appropriate, reinstatement. 15 U.S.C. 2087(b)(2). Under the statute, OSHA's order of reinstatement is not stayed by the employer's request for a hearing. Id. In addition, OSHA notes that it is unlawful for an employer to engage in further retaliation against employees who pursue whistleblower complaints under the ACA. See Benjamin v. Citationshares Mgmt., ARB No. 12-029, 2013 WL 6385831, at *6 (ARB Nov. 5, 2013) (noting “an employee engages in protected activity if he attempts to provide information of retaliation that violates [a whistleblower statute]” and holding that employee's recording of information in support of his retaliation claim was protected); Diaz-Robianas v. Fla. Power & Light Co., DOL No. 92-ERA-10, 1996 WL 171408, at *5 (Off. Admin. App. Jan. 19, 1996) (noting under prior version of Energy Reorganization Act that the statute “requires employers to refrain from unlawfully motivated employment discrimination, and a complaint that an employer has violated this requirement is protected”); McClendon v. Hewlett Packard, Inc., 2006-SOX-00029, 2006 WL 6577175 at *76 (ALJ Oct. 5, 2006) (holding that filing a Sarbanes-Oxley Act whistleblower complaint is in itself a protected activity); cf. Young v. CSX Transp., Inc., 42 F. Supp. 3d 388, 2014 WL 4367461, at *5 (N.D.NY. Sept. 4, 2014) (acknowledging employer's concession that filing a retaliation claim with OSHA is protected under the Federal Railroad Safety Act). If an employee believes an employer is retaliating against him for pursuing an ACA whistleblower complaint, the employee should contact OSHA.

With regard to NFIB's comments regarding the impact on small employers and the opportunities available for early resolution of whistleblower complaints, OSHA agrees that resolution of whistleblower complaints as early in the investigation process as possible is often the best outcome for both parties. Accordingly, OSHA's Whistleblower Investigations Manual encourages whistleblower investigators to actively assist parties in reaching an agreement, where possible. See OSHA Whistleblower Investigations Manual, at 6-12 (Jan. 28, 2016), available at http://www.osha.gov/OshDoc/Directive_pdf/CPL_02-03-007.pdf. Additionally, in August 2015, OSHA issued a directive allowing its regional offices to implement Early Resolution Programs in which, at the parties' request, OSHA would make a neutral ADR coordinator, unconnected with the investigation, available to assist the parties in achieving an early resolution to the whistleblower case either upon the filing of the whistleblower complaint or at any time up to the completion of OSHA's investigation. Alternative Dispute Resolution (ADR) Processes for Whistleblower Protection Program (Aug. 18, 2015), available at http://www.osha.gov/OshDoc/Directive_pdf/CPL_02-03-006.pdf.

With respect to SEIU and AFL-CIO's comment that OSHA should require employers to post notices regarding section 18C's protections, OSHA is not adding such a requirement to these rules. However, OSHA notes that posting of a notice regarding whistleblower rights is one of the common non-monetary remedies that OSHA orders in meritorious whistleblower cases. OSHA believes that such notices can play a significant role in ameliorating the chilling effect that retaliation has on employees who might otherwise report violations of the law. Additionally, OSHA has worked with other agencies that implement the Affordable Care Act to ensure that information about the whistleblower provision is included in notices and public information that those agencies provide to employees and employers.

Finally, OSHA generally agrees with Renner's observation that section 1558 of the ACA, like other whistleblower laws, is a remedial law and should be construed and applied to further its remedial purposes. With regard to Renner's comment regarding the potential overlap between ERISA section 510 and FLSA section 18C, OSHA notes that Renner is correct that some complainants may have claims under both ERISA section 510 and FLSA section 18C. Section 18C's whistleblower protections do not replace any protections that a whistleblower may have under ERISA section 510. Whistleblowers may bring claims under either or both statutes if their whistleblowing is protected under both. However, in order to pursue a claim under section 18C either in district court or before the Department of Labor (DOL), the complainant must file a complaint with OSHA within 180 days of the alleged adverse action. See 29 CFR 1984.103(d).

This section describes the purpose and scope of the regulations implementing FLSA section 18C and provides an overview of the procedures covered by these regulations. OSHA has added a statement in subparagraph (b) noting that these rules set forth the Secretary's interpretations of section 18C on certain statutory issues. AFL-CIO commented that OSHA should add a discussion of PHSA section 2706(b) to this section. However for the reasons previously explained, OSHA declines to add such a discussion.

This section includes general definitions applicable to FLSA section 18C. The definitions of the terms “employer,” “employee,” and “person” from section 3 of the FLSA, 29 U.S.C. 203, apply to these rules and are included here.

Consistent with the Secretary's interpretation of the term “employee” in the other whistleblower statutes administered by OSHA 1 and with the Secretary's interpretation of the term “employee” under the anti-retaliation provision found at section 15(a)(3) of the FLSA, 29 U.S.C. 215(a)(3),2 the definition of the term “employee” in section 1984.101 also includes former employees and applicants for employment. This interpretation is supported by section 18C's plain language which prohibits retaliation against “any employee” and provides that “[a]n employee who believes that he or she has been discharged or otherwise discriminated against by any employer in violation of this section” may file a complaint with the Secretary of Labor, (emphasis added). Section 18C's broad protection of “any employee” from retaliation and provision of a cause of action against “any employer” for retaliation makes clear that the parties need not have a current employment relationship. Section 18C's broad protections, like the protections in section 15(a)(3), contrast with the narrower protections of sections 6 and 7 of the FLSA. Sections 6 and 7 provide respectively that an employer must pay at least the minimum wage to “each of his employees” and must pay overtime to “any of his employees,” and thus require a current employment relationship. See 29 U.S.C. 206(a) and (b), 29 U.S.C. 207(a)(1) and (2). Congress chose to use the broad term “any” to modify employee and employer in sections 18C(a) and (b), rather than providing more restrictively that, for example, “no employer shall discharge or in any manner discriminate against any of his employees” or “an employee who believes that he or she has been discharged or otherwise discriminated against by his employer” may file a complaint with the Secretary of Labor. The Supreme Court has made clear that “any” has an expansive meaning that does not limit the word it modifies. See, e.g., Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1332 (2011) (noting that the use of “any” in the phrase “filed any complaint” in section 15(a)(3) of the FLSA “suggests a broad interpretation that would include an oral complaint”); U.S. v. Gonzales, 520 U.S. 1, 5 (1997) (“any” has an expansive meaning, that is, “one or some indiscriminately of whatever kind”) (internal citations omitted). In addition, the explicit inclusion of reinstatement and preliminary reinstatement (both of which can only be awarded to former employees) among the remedies available for whistleblowers under section 18C, which incorporates 15 U.S.C. 2087(b), confirms that the complainant and the respondent need not have a current employment relationship in order for the complainant to have a claim under section 18C. See Dellinger v. Science Applications Int'l Corp., 649 F.3d at 230 n.2 (section 15(a)(3) of the FLSA protects former employees); cf. Robinson v. Shell Oil Co., 519 U.S. 337 (1997) (term “employees” in anti-retaliation provision of Title VII of the Civil Rights Act of 1964 includes former employees).

No comments were made on this section, other than those discussed in the general comments suggesting additional definitions. OSHA made a minor clarification to the definition of “respondent” and added definitions of Exchange and advance payments of the premium tax credit or APTC but has made no other substantive changes to this section.

This section describes the activities that are protected under section 18C of the FLSA, and the conduct that is prohibited in response to any protected activities. Section 18C(a)(1) protects any employee from retaliation because the employee has “received a credit under section 36B of the Internal Revenue Code of 1986 or a subsidy under section 1402 of this Act.” The reference to “a subsidy under section 1402 of this Act” in section 18C(a)(1) refers to receipt of a cost-sharing reduction under the Affordable Care Act.

Under section 18C(a)(2), 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 this title (or an amendment made by this title).” Section 18C also protects employees who testify, assist or participate in proceedings concerning such violations or are about to do so. Sections 18C(a)(3) and (4), 29 U.S.C. 218C(a)(3) and (4). Finally, section 18C(a)(5) 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 this title (or amendment), or any order, rule, regulation, standard, or ban under this title (or amendment).” References to “this title” in section 18C(a)(2) and (5) refer to title I of the Affordable Care Act.

In order to have a “reasonable belief” under sections 18C(a)(2) and (5) of the FLSA, a complainant must have both a subjective, good faith belief and an objectively reasonable belief that the complained-of conduct violates one of the enumerated categories of law. See Lockheed Martin Corp. v. Admin. Review Bd., 717 F.3d 1121, 1132 (10th Cir. 2013) (discussing the reasonable belief standard under analogous language in the Sarbanes-Oxley Act whistleblower provision, 18 U.S.C. 1514A); Wiest v. Lynch, 710 F.3d 121, 131-32 (3d Cir. 2013) (same); Sylvester v. Parexel Int'l LLC, ARB No. 07-123, 2011 WL 2165854, at *12 (ARB May 25, 2011) (same). 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 Sylvester, 2011 WL 2165854, at *12 (citing Harp v. Charter Commc'ns, 558 F.3d 722, 723 (7th Cir. 2009)); Day v. Staples, Inc., 555 F.3d 42, 54 n.10 (1st Cir. 2009) (quoting Welch v. Chao, 536 F.3d 269, 277 n.4 (4th Cir. 2008) (“Subjective reasonableness requires that the employee `actually believed the conduct complained of constituted a violation of pertinent law.'”). The objective reasonableness of a complainant's belief “is evaluated based on the knowledge available to a reasonable person in the same factual circumstances with the same training and experience as the aggrieved employee.” Rhinehimer v. U.S. Bancorp Investments, Inc., 787 F.3d 797, 811 (6th Cir. 2015) (internal citations and quotations omitted); Sylvester, 2011 WL 2165854, at *12. 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 when it is based on a reasonable, but mistaken, belief that a violation of the relevant law has occurred or is likely to occur. See Sylvester, 2011 WL 2165854, at *13 (citing Welch, 536 F.3d at 277); Allen v. Admin. Review Bd., 514 F.3d 468, 476-77 (5th Cir. 2008); Melendez v. Exxon Chemicals Americas, ARB No. 96-051, slip op. at 21 (ARB July 14, 2000) (“It is also well established that the protection afforded whistleblowers who raise concerns regarding statutory violations is contingent on meeting the aforementioned `reasonable belief' standard rather than proving that actual violations have occurred.”).

OSHA received several comments on this section of the interim final rule. For the reasons discussed below, the only change OSHA has made to this section is to revise the section to clarify that, under section 18C(a)(1), an employee has “received” a premium tax credit or cost-sharing reduction not only when a premium tax credit is allowed on the individual's tax return but also when an Exchange finds the employee eligible for APTC or for a cost-sharing reduction. At that point, the employee may apply financial assistance to reduce his or her share of the premium cost for coverage purchased through the Exchange, and the prices that the Exchange provides to the employee for plans take into account the employee's eligibility for such assistance. AFL-CIO and SEIU commented that OSHA should clarify that FLSA section 18C(a)(1) protects those who take the preliminary steps, such as gathering information, that are needed to apply for health insurance coverage on an Exchange and to apply for APTC. These commenters were particularly concerned about protecting employees who ask their employers about the health care coverage offered by their employers. These commenters noted that to apply for APTC for health insurance on an Exchange, individuals must provide certain information about their available employer-sponsored insurance options, if any. HHS has developed a form for employees to use in gathering information about any available employer-sponsored insurance options and this form instructs employees to get the information that they need from their employer. As SEIU explained “[a]s currently proposed, the system puts the burden on individuals to seek coverage information from their employer . . . in order to complete the exchange application. Because of this, it is imperative that the protection against retaliation extend to any preliminary actions taken to receive the tax credit.”

OSHA agrees that these commenters raise compelling concerns regarding the potential for retaliation against employees who seek information from their employer that they need to receive APTC when they purchase health insurance through an Exchange. OSHA declines to change the text of the rule, which generally mirrors the statutory language, in response to these comments. However, OSHA believes that, in certain circumstances, the existing case law under the other whistleblower protection statutes that OSHA administers supports protection for employees who seek information from their employer regarding employer-sponsored health coverage in order to receive APTC for health coverage through an Exchange.

When an employer believes that an employee has received a premium tax credit or cost-sharing reduction and takes action based on that belief, the employer's retaliatory motive is the same whether it arises from an employee's inquiry regarding employer-provided coverage in anticipation of applying for APTC or a cost-sharing reduction through the Exchange, or whether it arises once the applicable Exchange notifies the employer that the employee has qualified for a APTC or a cost-sharing reduction through the Exchange. OSHA's regulations under section 18C and case law under other anti-retaliation statutes make clear that an employer may not retaliate against an employee when the employer knows or suspects that the employee has engaged in activity protected by the statute. See 29 CFR 1984.104(e); see also Reich v. Hoy Shoe, Inc., 32 F.3d 361, 368 (8th Cir. 1994) (noting under section 11(c) of the Occupational Safety and Health Act (11(c)) that “[i] t seems clear to this Court that an employer that retaliates against an employee because of the employer's suspicion or belief that the employee filed an OSHA complaint has as surely committed a violation of § 11(c) as an employer that fires an employee because the employer knows that the employee filed an OSHA complaint”); Saffels v. Rice, 40 F.3d 1546, 1549 (8th Cir. 1994) (retaliation is unlawful under the FLSA if based on an employer's mistaken belief that employees engaged in FLSA-protected activity); Brock v. Richardson, 812 F.2d 121, 124-25 (3d Cir. 1987) (same).

Similarly, an employer retaliates against an employee when the employer threatens to take action if the employee engages in activity protected under section 18C. See 29 CFR 1984.102(a) (defining retaliation to include threats and intimidation). Indeed, courts have long recognized that acts taken in anticipation of an employee's protected activity to dissuade such activity can be actionable under the anti-retaliation provisions of many statutes. See, e.g., Sauers v. Salt Lake County, 1 F.3d 1122, 1128 (10th Cir. 1993) (noting under Title VII's anti-retaliation provision that “[a]ction taken against an individual in anticipation of that person engaging in protected opposition to discrimination is no less retaliatory than action taken after the fact”); Hashimoto v. Bank of Hawaii, 999 F.2d 408, 411 (9th Cir. 1993) (noting that anticipatory employer action that “discourages the whistle blower before the whistle is blown” would violate ERISA anti-retaliation statute, even though the employee has not yet filed any formal complaint); Perez v. Fatima/Zahra, Inc., No. 14-2337, 2014 WL 2154092 (N.D. Cal. May 22, 2014) (issuing temporary restraining order against employer who threatened employees that they would be fired for talking to investigators); Solis v. SCA Restaurant Corp., 938 F. Supp. 2d 380, 389 (E.D.N.Y. 2013) (finding retaliation where employer threatened employees with termination in anticipation of their testimony for Secretary of Labor).

Thus, OSHA believes that an employee's inquiry to his or her employer to gather the information necessary to apply for APTC for coverage on the Exchange may trigger protection under section 18C if the employee can show that either the employer's belief that the employee had received a premium tax credit, or the employer's desire to deter the employee from taking any further action that would result in the employee's receiving a premium tax credit, contributed to the employer's action against the employee.

Renner commented that the regulations should clarify that an employer's decision to reduce an employee's hours of work to evade application of the Affordable Care Act is unlawful under FLSA section 18C noting that “the reduction of hours directly reduces the employee's wages and is materially adverse.”

As explained earlier in this preamble, under section 4980H of the Code, applicable large employers must either offer health coverage that is affordable and that provides minimum value to their full-time employees (and offer coverage to their dependents), or be subject to assessment of an employer shared responsibility payment by the IRS if at least one full-time employee receives the premium tax credit. In general, for purposes of section 4980H of the Code, a full-time employee is an employee with an average of at least 30 hours of service per week. To the extent that Renner's comment implies that the whistleblower protections apply if an employer reduces an employee's hours of service to avoid or reduce liability under section 4980H of the Code, OSHA disagrees because section 4980H of the Code does not prohibit an employer from reducing an employee's hours of service in order to avoid a potential employer shared responsibility payment.

However, to the extent that Renner is commenting that reducing work hours in retaliation for activity protected under section 18C is unlawful, OSHA agrees. For instance, if an employer reduces the hours of an employee that the employer knows or suspects of receiving a premium tax credit or subsidy, the employer's actions may violate section 18C if the employee's receipt of the premium tax credit or subsidy was a contributing factor in the employer's decision to reduce the hours, and the employer is unable to show by clear and convincing evidence that it would have taken the same action in the absence of that protected activity. See 29 CFR 1984.104(e) (explaining the burdens of proof in Affordable Care Act whistleblower cases); see also 29 U.S.C. 218C(b)(1) (incorporating the burdens of proof in 15 U.S.C. 2087(b)(2)(B)). In addition, OSHA notes that an employer violates section 18C if it threatens employees with reductions in hours in order to dissuade them from applying for APTC for health insurance on an Exchange. See, e.g., Sauers, 1 F.3d at 1128. OSHA declines to change the rule in response to Renner's comment because OSHA believes that this issue is adequately addressed in the case law under analogous anti-retaliation provisions and the rule has been drafted to be consistent with OSHA's rules under other whistleblower-protection statutes.

The Chamber commented that OSHA should limit the definition of intimidation as a form of retaliation asserting that the term “intimidation” left undefined is overly broad and that “[t]he conduct that is considered intimidating should not be actionable unless it results in a tangible adverse employment action, such as demotion, negative performance review, failure to promote, assignment of undesirable job duties, a pattern of harassment, and termination.

The Chamber further commented that equitable treatment of the different parties requires OSHA to apply a reasonable belief standard to respondents as well as to complainants. BCBS raised similar concerns regarding the IFR, commenting that OSHA should apply the final rule keeping in mind the unique challenges of implementing the Affordable Care Act, which may make it difficult to determine whether an employer's or issuer's actions are justified by the Affordable Care Act guidance in effect at the time.

After consideration, OSHA declines to amend the rule in response to the Chamber and BCBS's comments. With regard to the Chamber's suggestion that OSHA adopt a reasonable belief requirement for respondents as well as complainants and BCBS's comment that an employer or issuer's actions may be justified based on the Affordable Care Act guidance in effect at the time, OSHA notes that the statutory language includes no “reasonable belief” standard for employers. However, OSHA believes that case law under analogous statutes adequately addresses these concerns. For example, the fact that an employer is following the ACA guidance available at the time that an employee blows the whistle may impact whether the employee can show that he had a reasonable belief that the employer was violating the law. Similarly, if an employer takes an action against an employee based on a reasonable, but mistaken, belief of misconduct or another circumstance unrelated to protected activity, the employee's subsequent whistleblower complaint may fail. See Ledure v. BNSF Rwy. Co., ARB No. 13-044, 2015 WL 4071574, at *6 (ARB Jun. 2, 2015) (affirming ALJ's conclusion that retaliation did not occur where employer's refusal to allow employee to return to work was based on reasonable, but mistaken, belief that employee was not medically qualified to return to work and not on protected whistleblowing).

With regard to the Chamber's comment that the rule should be changed to limit the definition of “intimidation,” OSHA believes that the circumstances in which intimidation constitutes an adverse action under section 18C are adequately addressed by case law under the Department's other whistleblower statutes. While intimidation may be linked with some other form of adverse action, intimidation that is more than trivial may, standing alone, qualify as adverse action. The phrase “terms, conditions, or other privileges of employment” does not indicate that actionable adverse action is limited to “economic” or “tangible” conditions of employment. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) (interpreting similar language in Title VII of the Civil Rights Act of 1964); see also Menendez v. Halliburton, Inc., ARB Nos. 09-002, 09-003, 2011 WL 4439090 at *11-12 (Sept. 13, 2011), aff'd, Halliburton, Inc. v. Admin. Rev. Bd., 771 F.3d 254 (5th Cir. 2014) (interpreting similar language in the Sarbanes-Oxley Act). Rather, adverse action is action that a reasonable employee would find “materially adverse,” that is, the action is more than trivial. Specifically, the evidence must show that the action at issue could well have dissuaded a reasonable worker from engaging in protected activity. See Burlington Northern & Santa Fe R. R. Co. v. White, 548, U.S. 53, 68 (2006); Halliburton, 771 F.3d at 261-62 (affirming ARB's finding of adverse action that was not a tangible employment action); Williams v. American Airlines, ARB No. 09-018, 2010 WL 5535815 at *6-8 (Dec. 29, 2010) (discussing adverse action under the Department's whistleblower statutes). Thus, under this case law, unlawful retaliation would include intimidating an employee for engaging in protected activity when the intimidation would dissuade a reasonable employee from engaging in protected activity.

This section explains the requirements for filing a retaliation complaint under section 18C. To be timely, a complaint must be filed within 180 days of when the alleged violation occurs. Under Delaware State College v. Ricks, 449 U.S. 250, 258 (1980), an alleged violation occurs 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. E.E.O.C. v. United Parcel Serv., Inc., 249 F.3d 557, 561-62 (6th Cir. 2001). However, the time for filing a complaint may be tolled for reasons warranted by applicable case law. For example, OSHA may consider the time for filing a section 18C complaint equitably tolled if the complainant mistakenly files a complaint with another agency instead of OSHA within 180 days after becoming aware of the alleged violation. OSHA has revised this section of the rule to note this example of when the time for filling a complaint would be equitably tolled.

Complaints filed under section 18C of the FLSA need not be in any particular form. They may be either oral or in writing. When a complaint is made orally, OSHA will put the complaint 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 the Affordable Care Act is not a formal document and need not conform to the pleading standards for complaints filed in federal district court articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). See Sylvester v. Parexel Int'l, Inc., ARB 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 OSHA to the existence of the alleged retaliation and the complainant's desire that OSHA investigate the complaint. Upon the filing of a complaint, OSHA 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 1984.104(e). As explained in § 1984.104(e), if the complaint, supplemented as appropriate, contains a prima facie showing, 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. See 15 U.S.C. 2087(b)(2); 29 CFR 1984.104(e).

No comments were received on this section of the IFR. However, in addition to adding the example noted above of when the time for filing a complaint might be tolled, OSHA changed the term “email” in paragraph (d) to “electronic communication transmittal” because OSHA has published an on-line complaint form on its Web site, http://www.whistleblowers.gov/complaint_page.html .

This section describes the procedures that apply to the investigation of complaints under section 18C. Paragraph (a) of this section outlines the procedures for notifying the parties and appropriate federal agencies 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) describes the sharing of information submitted to OSHA during the investigation and the opportunity that each party will have to provide information to OSHA. Paragraph (d) of this section discusses confidentiality of information provided during investigations. Paragraph (e) of this section sets forth the applicable burdens of proof. Paragraph (f) describes the procedures OSHA will follow prior to the issuance of findings and a preliminary order when OSHA has reasonable cause to believe that a violation has occurred.

Section 18C of the FLSA incorporates the burdens of proof set forth in CPSIA, 15 U.S.C. 2087(b). That 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. A complainant's burden may be satisfied, for example, if he or she shows that the adverse action took place shortly after the protected activity, or at the first opportunity available to the respondent, giving rise to the inference that it was a contributing factor in the adverse action. See, e.g., Porter v. Cal. Dep't of Corrs., 419 F.3d 885, 895 (9th Cir. 2005) (holding that years between the protected activity and the retaliatory actions did not defeat a finding of a causal connection where the defendant did not have the opportunity to retaliate until he was given responsibility for making personnel decisions).

If the complainant does not make the required prima facie showing, the investigation must be discontinued and the complaint dismissed. See Trimmer v. U.S. Dep't of Labor, 174 F.3d 1098, 1101 (10th Cir. 1999) (noting that the burden-shifting framework of the Energy Reorganization Act of 1974, which is the same framework now applicable to section 18C of the FLSA, 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 respondent 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 section 18C of the FLSA and not investigate further if either: (1) The complainant fails to make the prima facie showing that protected activity was a contributing factor in the adverse action; or (2) the respondent 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 statute requires OSHA to determine whether there is reasonable cause to believe that protected activity was a contributing factor in the alleged adverse action. 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.” Marano v. 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)); see, e.g., Lockheed Martin Corp., 717 F.3d at 1136. For protected activity to be 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 Klopfenstein v. PCC Flow Techs. Holdings, Inc., ARB No. 04-149, 2006 WL 3246904, at *13 (ARB May 31, 2006) (quoting Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)) (discussing contributing factor test under the Sarbanes-Oxley whistleblower provision), aff'd sub nom. Klopfenstein v. Admin. Review Bd., U.S. Dep't of Labor, 402 F. App'x 936, 2010 WL 4746668 (5th Cir. 2010).

If OSHA finds reasonable cause to believe that the alleged protected activity was a contributing factor in the adverse action, OSHA may not order relief if the employer demonstrates by “clear and convincing evidence” that it would have taken the same action in the absence of the protected activity. See 15 U.S.C. 2087(b)(2)(B)(ii). The “clear and convincing evidence” standard is a higher burden of proof than a “preponderance of the evidence” standard. Clear and convincing evidence is evidence indicating that the thing to be proved is highly probable or reasonably certain. See, e.g., Clarke v. Navajo Express, Inc., ARB No. 09-114, 2011 WL 2614326, at *3 (ARB June 29, 2011) (discussing burdens of proof under analogous whistleblower provision in Surface Transportation Assistance Act).

BCBS and the Chamber commented on this section. BCBS commented that the regulations should provide procedures for instances when the complaint names multiple respondents and suggests amending § 1984.104(e)(2)(ii) to read as follows: “Each respondent knew or suspected . . . .” BCBS also commented that OSHA should dismiss complaints against respondents who do not have the requisite knowledge of alleged retaliation to justify continuing the complaint process against them, and clarify in § 1984.104(e)(3) that a showing that the adverse action took place shortly after the protected activity would not give rise to the inference that it was a contributing factor in the adverse action in instances when the respondent did not know or suspect that the complainant engaged in a protected activity.

OSHA declines to make these changes because they are unnecessary and could cause confusion. The IFR already does not exclude multiple respondents and adding the word “each” to § 1984.104(e)(2)(ii) could be construed as allowing liability only when all respondents have the requisite knowledge or suspicion. Additionally, the IFR already provides a basis for dismissing claims against respondents who lack requisite knowledge or suspicion, such as at § 1984.104(e) where it provides that a “complaint, supplemented as appropriate by interviews of the complainant, must allege the existence of facts and evidence to make a prima facie showing that protected activity was a contributing factor in the alleged adverse action including that “[t]he respondent knew or suspected that the employee engaged in the protected activity . . . .”

The Chamber commented that the IFR improperly treated respondents and complainants differently by allowing complainants to receive copies of documents submitted by the respondent, subject to privacy and confidentiality standards, but providing no similar entitlement for respondents. OSHA believes this is incorrect. The IFR and the statute both provide the respondent the right to receive the substance of the evidence supporting the complaint, and OSHA's investigation procedures, which ensure that each party's submissions are available to the other party during the investigation, are further explained in OSHA's Whistleblower Investigations Manual. Nonetheless, to clarify that respondents and complainants are afforded equal access to each other's submissions during the OSHA investigation, OSHA has revised paragraph (c) of this section to reflect its current information sharing practices. Also, throughout this section, minor changes were made as needed to clarify the remaining provisions without changing their meaning.

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, compensatory damages, attorney and expert witness fees, and costs. 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 fees not exceeding $1,000 from the ALJ, regardless of whether the respondent has filed objections, if 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.

This section also 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. In the Secretary's view, 26 U.S.C. 6621 provides the appropriate rate of interest to ensure that victims of unlawful retaliation under section 18C of the FLSA are made whole. The Secretary has long applied the interest rate in 26 U.S.C. 6621 to calculate interest on back pay in whistleblower cases. See Doyle v. Hydro Nuclear Servs., ARB Nos. 99-041, 99-042, 00-012, 2000 WL 694384, at *14-15, 17 (ARB May 17, 2000); see also Cefalu v. Roadway Express, Inc., ARB No. 09-070, 2011 WL 1247212, at *2 (ARB Mar. 17, 2011); Pollock v. Cont'l Express, ARB Nos. 07-073, 08-051, 2010 WL 1776974, at *8 (ARB Apr. 10, 2010); Murray v. Air Ride, Inc., ARB No. 00-045, 2000 WL 1920347 at *6 (ARB Dec. 29, 2000). Section 6621 of the Code provides the appropriate measure of compensation under section 18C and other DOL-administered whistleblower statutes because it ensures the complainant will be placed in the same position he or she would have been in if no unlawful retaliation occurred. See Ass't Sec'y v. Double R. Trucking, Inc., ARB No. 99-061, 1999 WL 529752 at *4 (ARB July 16, 1999) (interest awards pursuant to Code section 6621 are mandatory elements of complainant's make-whole remedy). Code section 6621 provides a reasonably accurate prediction of market outcomes (which represents the loss of investment opportunity by the complainant and the employer's benefit from use of the withheld money) and thus provides the complainant with appropriate make-whole relief. See E.E.O.C. v. County of Erie, 751 F.2d 79, 82 (2d Cir. 1984) (“[s]ince the goal of a suit under the [Fair Labor Standards Act] and the Equal Pay Act is to make whole the victims of the unlawful underpayment of wages, and since [Code section 6621] has been adopted as a good indicator of the value of the use of money, it was well within” the district court's discretion to calculate prejudgment interest under Code section 6621); New Horizons for the Retarded, Inc., 283 NLRB No. 181, 1987 WL 89652, at *2 (NLRB May 28, 1987) (observing that “the short-term Federal rate [used by Code section 6621] is based on average market yields on marketable Federal obligations and is influenced by private economic market forces”). Similarly, as explained in the IFR, daily compounding of the interest award ensures that complainants are made whole for unlawful retaliation in violation of section 18C. See 78 FR 13227.

Finally, this section has been revised to note that when ordering back pay, OSHA also will require the respondent to submit the appropriate documentation to the Social Security Administration allocating the back pay to the appropriate period. Requiring the reporting of back pay allocation to the Social Security Administration serves the remedial purposes of section 18C by ensuring that employees subjected to retaliation are truly made whole. See Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10, 2014 WL 3897178, at *4-5 (NLRB Aug. 8, 2014) (holding that back pay awards under the National Labor Relations Act should include the allocation of back pay to the appropriate calendar quarters). As the NLRB has explained, when back pay is not properly allocated to the years covered by the award, a complainant may be disadvantaged in several ways. First, improper allocation may interfere with a complainant's ability to qualify for any old-age Social Security benefit. Id. at *4 (“Unless a [complainant's] multiyear back pay award is allocated to the appropriate years, she will not receive appropriate credit for the entire period covered by the award, and could therefore fail to qualify for any old-age social security benefit”). Second, improper allocation may reduce the complainant's eventual monthly benefit. Id. “[I]f a backpay award covering a multi-year period is posted as income for 1 year, it may result in SSA treating the [complainant] as having received wages in that year in excess of the annual contribution and benefit base.” Id. Wages above this base are not subject to Social Security taxes, which reduces the amount paid on the employee's behalf. “As a result, the [complainant's] eventual monthly benefit will be reduced because participants receive a greater benefit when they have paid more into the system.” Id. Finally, “social security benefits are calculated using a progressive formula: although a participant receives more in benefits when she pays more into the system, the rate of return diminishes at higher annual incomes.” Therefore, a complainant may “receive a smaller monthly benefit when a multiyear award is posted to 1 year rather than being allocated to the appropriate periods, even if social security taxes were paid on the entire amount.” Id. The purpose of a make-whole remedy such as back pay is to restore the complainant to the same position the complainant would have occupied absent the prohibited retaliation. That purpose is not achieved when the complainant suffers the disadvantages described above. The Secretary believes that requiring proper social security allocation is necessary to achieve the make-whole purpose of a back pay award. In addition to adding the requirement that the respondent submit the appropriate documentation to the Social Security Administration allocating the back pay to the appropriate period, OSHA has made minor changes throughout this section as needed to clarify the provision without changing its meaning.

OSHA received two comments on the remedy of reinstatement provided for in this section. In the preamble to the IFR, OSHA noted that, while the statute is clear that reinstatement is the presumptive remedy under section 18C of the FLSA, in rare circumstances economic reinstatement or front pay in lieu of actual reinstatement may be appropriate and that reinstatement includes restoration of the terms, conditions, and privileges associated with the complainant's employment as necessary to put the employee in the same position or a position equivalent to the position that the employee held prior to the retaliation. Beckner commented in support of the use of economic reinstatement where the employer-employee relationship has broken down beyond repair.

SEIU commented that OSHA should amend the rule to clarify that reinstatement, including preliminary reinstatement, means full restoration of pay and benefits. SEIU stated that reinstatement requires full restoration to the status quo and includes restoration of duties and hours where those were reduced to reduce an employee's pay. As SEIU correctly noted, OSHA's Whistleblower Investigations Manual, as well as relevant case law under the whistleblower protection statutes that OSHA administers, makes clear that reinstatement is reinstatement to the full status quo prior to the retaliation and would include a restoration of hours and duties as necessary to ensure that the whistleblower is returned to the same position that he or she would have been in absent the retaliation. The statute explicitly requires that the Secretary order the employer “to reinstate the complainant to his or her former position together with compensation (including back pay) and restore the terms, conditions, and privileges associated with his or her employment.” 15 U.S.C. 2087(b)(3)(B)(ii). If the employee's original position is not available, the employer may return the employee to an equivalent position. See, e.g., Hobby v. Georgia Power Co., ARB Nos. 98-166, 98-169, 2001 WL 168898 at *10 (ARB Feb. 9, 2001) (noting that “[w]hile the remedies section of the Energy Reorganization Act whistleblower provision states that the Secretary `shall . . . reinstate the [prevailing] complainant to his former position . . .', this text has been construed to mean reinstatement to the same or a similar position to the job that was formerly held”) (emphasis original, citations omitted). Because the statutory text and the applicable case law make clear that reinstatement must restore the complainant to the position he would have occupied absent the retaliation or an equivalent position, OSHA has not made any changes to the rule to clarify the term reinstatement in response to SEIU's comment.

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 Shirani v. Calvert Cliffs Nuclear Power Plant, Inc., ARB No. 04-101, 2005 WL 2865915, at *7 (ARB Oct. 31, 2005).

In this section, SEIU repeated its comment that the regulations should clarify that the term “reinstatement,” including “preliminary reinstatement,” means full restoration of pay and benefits. OSHA's response to this comment is addressed in the discussion of § 1984.105. No substantive changes have been made to this section.

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. Hearings are 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. ALJs continue to have broad discretion to limit discovery where necessary to expedite the hearing. Formal rules of evidence will not apply, but rules or principles designed to assure production of the most probative evidence will be applied. The ALJ may exclude evidence that is immaterial, irrelevant, or unduly repetitious.

No comments were received on this section and no changes were made.

The Assistant Secretary, at his or her discretion, may participate as a party or amicus curiae at any time in the administrative proceedings under section 18C of the FLSA. 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 Internal Revenue Service of the United States Department of the Treasury, the United States Department of Health and Human Services, and the Employee Benefits Security Administration of the United States Department of Labor, if interested in a proceeding, also may participate as amicus curiae at any time in the proceedings.

No comments were received on this section. Throughout this section, minor changes were made as needed to clarify the provision without changing its meaning.

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 section 18C. Specifically, the complainant must demonstrate (i.e. prove by a preponderance of the evidence) that the protected activity was a “contributing factor” in the adverse action. See, e.g. , Allen, 514 F.3d at 475 n.1 (“The term `demonstrates' means to prove by a preponderance of the evidence.”). If the employee demonstrates that the protected activity was a contributing factor in the adverse action, the employer, to escape liability, must demonstrate by “clear and convincing evidence” that it would have taken the same action in the absence of the protected activity. See id.

Paragraph (c) of this section provides that OSHA's determinations regarding whether to proceed with an investigation under section 18C 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 OSHA to conduct an investigation or make further factual findings. Paragraph (c) also notes that the ALJ can dispose of a matter without a hearing if the facts and circumstances warrant.

Paragraph (d) notes the remedies that the ALJ may order under section 18C and 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 (d) has been revised to note that when back pay is ordered, the order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate period. 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. 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.

No comments were received on this section. In addition to the revision noted above regarding the allocation of back pay to the appropriate period, minor changes were made as needed to clarify the provision without changing its meaning.

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 ordered by 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. 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 section 18C, 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 section 18C 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 order the remedies listed in paragraph (d). 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 (d) has been revised to note that when back pay is ordered, the order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate period. If the ARB determines that the respondent has not violated the law, an order will be issued denying the complaint.

Beckner and Renner commented that the time period for filing a petition for review with the ARB of an ALJ's decision is too short. Beckner commented that allowing both parties only 14 days to petition the ARB to review an ALJ decision appeal is too short and inconsistent with the rule's allowing 30 days to determine whether an ALJ's decision was in error. Renner commented that “[t]he proper adjudication of whistleblower matters would be enhanced if parties and their counsel can prepare their briefs, and select their issues, thoughtfully. . . . When faced with the unusually short time limit of fourteen (14) days to submit a petition that must list all issues, advocates are likely to overselect. To preserve issues and avoid missing a meritorious claim, they are likely to list every issue that might conceivably apply. While counsel could choose to drop issues between the petition and the brief, requiring counsel to list all the issues in the petition makes it more likely that counsel will then face pressure to brief those issues.” He added that “some whistleblowers or their counsel may find the task of reviewing the record to identify all appealable issues so consuming that they miss the short deadline for filing the petition for review.”

Renner also commented that the provision that objections to legal conclusions not raised in petitions for review may be deemed waived should be changed. He specifically suggested that section 1984.110(a) should be amended to read as follows: “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 so that the Administrative Review Board may determine that the review presents issues worthy of full briefing.” He stated that the provision as written could work against the remedial purpose of the law.

After consideration, OSHA declines to alter the time period within which to appeal the decision of an ALJ. We believe that 14 days is sufficient and note that it is consistent with the time periods available under various other whistleblower provisions for which OSHA is responsible, which range from ten business days to 14 calendar days. Compare 29 CFR 1983.109(e) with 29 CFR 1985.109(e); 29 CFR 1987.109(e). OSHA also declines to adopt Renner's additional suggestions relating to this section. First, OSHA declines to extend the time limit to petition for review 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.

OSHA also declines to change the provision that objections to legal conclusions not raised in petitions for review “may” be deemed waived. OSHA first notes that the use of the term “may” in the IFR was made as a result of comments submitted by Renner on other whistleblower rules recently published by OSHA. See, e.g., Procedures for the Handling of Retaliation Complaints Under Section 219 of the Consumer Product Safety Improvement Act of 2008, 77 FR 40494, 40500-01 (July 10, 2012); Procedures for the Handling of Retaliation Complaints Under the Employee Protection Provision of the Surface Transportation Assistance Act of 1982, as amended, 77 FR 44121, 44131-32 (July 27, 2012). OSHA believes that use of the non-mandatory word “may” adequately addresses Renner's underlying concern that grounds not raised in a petition for review may be barred from consideration before the ARB.

In addition to the revision noted above regarding the allocation of back pay to the appropriate period, minor changes were made as needed to clarify this section without changing its meaning.

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. Minor changes were made as needed to this section to clarify the provision without changing its meaning.

This section describes the statutory provisions of CPSIA, incorporated into section 18C of the FLSA, 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 and no changes were made.

This section describes the Secretary's power under section 18C to obtain judicial enforcement of orders and the terms of settlement agreements. Section 18C incorporates the procedures, notifications, burdens of proof, remedies, and statutes of limitations set forth in CPSIA, 15 U.S.C. 2087(b), which expressly authorizes district courts to enforce orders, including preliminary orders of reinstatement, issued by the Secretary. See 15 U.S.C. 2087(b)(6) (“Whenever any 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 are immediately enforceable in district court pursuant to 15 U.S.C. 2087(b)(6) and (7). Section 18C of the FLSA provides, through CPSIA, that the Secretary shall order the person who has committed a violation to reinstate the complainant to his or her former position. See 15 U.S.C. 2087(b)(3)(B)(ii). Section 18C of the FLSA also provides, through CPSIA, that the Secretary shall accompany any reasonable cause finding that a violation occurred with a preliminary order containing the relief prescribed by subsection (b)(3)(B) of CPSIA, which includes reinstatement where appropriate, and that any preliminary order of reinstatement shall not be stayed upon the filing of objections. See 15 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 section 18C of the FLSA, enforceable orders include preliminary orders that contain the relief of reinstatement prescribed by 15 U.S.C. 2087(b)(3)(B). This statutory interpretation is consistent with the Secretary's interpretation of similar language in the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century and Sarbanes-Oxley. See Brief for the Intervenor/Plaintiff-Appellee Secretary of Labor, Solis v. Tenn. Commerce Bancorp, Inc., No. 10-5602 (6th Cir. 2010); Solis v. Tenn. Commerce Bancorp, Inc., 713 F. Supp. 2d 701 (M.D. Tenn. 2010); but see Bechtel v. Competitive Techs., Inc., 448 F.3d 469 (2d Cir. 2006); Welch v. Cardinal Bankshares Corp., 454 F. Supp. 2d 552 (W.D. Va. 2006) (decision vacated, appeal dismissed, No. 06-2295 (4th Cir. Feb. 20, 2008)). Also, through application of CPSIA, section 18C of the FLSA permits the person on whose behalf the order was issued to obtain judicial enforcement of the order. See 15 U.S.C. 2087(b)(7).

No comments were received on this section. OSHA has revised this section slightly to more closely parallel the provisions of the statute regarding the proper venue for an enforcement action.

This section sets forth the statutory provisions that allow a complainant to bring an original de novo action in district court, alleging the same allegations contained in the complaint filed with OSHA, under certain circumstances. By incorporating the procedures, notifications, burdens of proof, remedies, and statutes of limitations set forth in CPSIA, 15 U.S.C. 2087(b), section 18C permits a complainant to file an action for de novo review in the appropriate district court 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 issued at the close of OSHA's investigation under section 1984.105(a). 15 U.S.C. 2087(b)(4). The Secretary's final decision is generally the decision of the ARB issued under section 1984.110. 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 section 1984.105(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, in the Secretary's view, 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.

Under section 18C of the FLSA, the Assistant Secretary's written findings become the final order of the Secretary, not subject to judicial review, if no objection is filed within 30 days. See 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.

This section also requires 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. In all cases, a copy of the complaint also must be provided to the OSHA official who issued the findings and/or preliminary order, the Assistant Secretary, 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. The section also incorporates the statutory provisions which allow for a jury trial at the request of either party in a district court action, and which specify the remedies and burdens of proof in a district court action.

OSHA received two comments on this section that are addressed in the general comments discussion. OSHA made minor changes to this section, substituting the term “retaliation” for “discrimination” and clarifying that in all cases parties must provide a copy of the district court complaint to the OSHA official who issued the findings and/or preliminary order, the Assistant Secretary, and the U.S. Department of Labor's Associate Solicitor for Fair Labor Standards. Section 1984.115 Special Circumstances; Waiver of Rules.

This section provides that in circumstances not contemplated by these rules or for good cause the ALJ or the ARB may, upon application and notice to the parties, waive any rule as justice or the administration of section 18C of the FLSA requires.

No comments were made on this section and no substantive changes were made.

This rule contains a reporting provision (filing a retaliation complaint, Section 1984.103) 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.

NFIB and the Chamber commented that the IFR should be reissued as a Notice of Proposed Rulemaking. However, 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 rule is a rule of agency procedure, practice, and interpretation within the meaning of that section.

This rule is “procedural on its face,” because it sets forth procedures for OSHA to use in investigating complaints under the whistleblower provisions of the ACA, and procedures for the Secretary's adjudication of ACA whistleblower cases. See U.S. Dep't of Labor v. Kast Metals Corp., 744 F.2d 1145, 1150, 1152 (5th Cir.1984) (OSHA rule which “set[] forth procedural steps to guide the agency in exercise of its statutory authority to conduct investigations,” was “procedural on its face.”); see also American Hosp. Assoc. v. Bowen, 834 F.2d 1037, 1050-51 (D.C. Cir. 1987) (holding the same with regard to HHS enforcement plan). The rule is “primarily directed toward improving the efficient and effective operations of” the agency. See Mendoza v. Perez, 754 F.3d 1002, 1023 (D.C. Cir. 2014) (citations omitted) (explaining the difference between procedural and legislative rules). The rule does not alter the rights or interests of the parties to an ACA whistleblower proceeding, which are set forth in the statute and relevant case law. Rather, the rule sets forth the procedures under which the Secretary will investigate and adjudicate ACA whistleblower disputes.

The rule is also interpretative, in part, since it also clarifies certain statutory terms, reminds parties of their existing obligations under the statute, and explains preexisting requirements under the statute. See Perez v. Mortgage Bankers Ass'n, 135 S. Ct. 1199, 1204 (2015), quoting Shalala v. Guernsey Mem'l Hosp., 514 U.S. 87, 99 (1995) (noting that interpretative rules are “issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers'); see also Mendoza, 754 F.3d at 1021 (“Interpretative rules are those that clarify a statutory or regulatory term, remind parties of existing statutory or regulatory duties, or merely track preexisting requirements and explain something the statute or regulation already required.”) (internal citations and quotations omitted). Therefore, OSHA was not required to publish a notice of proposed rulemaking in the Federal Register and request public comments on this rule. Although it was not required to do so for this procedural and interpretative rule, OSHA sought and considered comments to enable the agency to improve the rules by taking into account the concerns of interested persons.

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. It is in the public interest that the rule be effective immediately so that parties may know what procedures are applicable to pending cases. Furthermore, most of the provisions of this rule were in the IFR and have already been in effect since February 27, 2013 so a delayed effective date is unnecessary.

NFIB and the Chamber commented that the IFR failed to comply with Executive Orders 12866 and 13563. OSHA disagrees. The Office of Management and Budget has concluded that this rule is a “significant regulatory action” within the meaning of section 3(f)(4) of Executive Order 12866. Executive Order 12866, reaffirmed by Executive Order 13563, requires a full economic impact analysis only for “economically significant” rules, which are defined in Section 3(f)(1) of Executive Order 12866 as rules that may “[h]ave 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.” The rule is procedural and interpretative in nature. Because it simply implements procedures necessitated by enactment of section 18C of the FLSA, the rule is expected to have a negligible economic impact and no economic impact analysis under Section 6(a)(3)(C) of Executive Order 12866 has been prepared. For the same reason, and the fact that no notice of proposed rulemaking has been published, the rule does not require a Section 202 statement under the Unfunded Mandates Reform Act of 1995. 2 U.S.C. 1531 et seq. Finally, this rule does not have “federalism implications,” in that it 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).

NFIB and the Chamber commented that the IFR did not comply with the requirements of the Regulatory Flexibility Act (RFA) and that OSHA should have produced an Initial Regulatory Flexibility Analysis (IRFA). NFIB also asserts that a Small Business Advocacy Review panel is warranted. OSHA disagrees. 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 RFA. See SBA Office of Advocacy, A Guide for Government Agencies: How to Comply with the Regulatory Flexibility Act, at 9 (May 2012); available at: http://www.sba.gov/sites/default/files/rfaguide_0512_0.pdf*. 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. For similar reasons, OSHA does not agree that a Small Business Advocacy Review panel is warranted.

This document was prepared under the direction and control of David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health.

The EPA is approving all revisions as submitted by the State of South Dakota on October 23, 2015, with the exception of the revisions that we are not acting on, as outlined in section III of our proposed rulemaking published on August 8, 2016 (81 FR 52388). We are taking final action to approve the following revisions: (1) 74:36:01:01 (Definitions) - 74:36:01:01(8), 74:36:01:01(29), 74:36:01:01(67), 74:36:01:01(73), 74:36:01:05, and 74:36:01:20 ; 74:36:02 (Ambient Air Quality)—74:36:02:02, 74:36:02:03, 74:36:02:04 and 74:36:02:05; 74:36:03 (Air Quality Episodes)—74:36:03:01 and 74:36:03:02; 74:36:04 (Operating Permits for Minor Sources)—74:36:04:04, 74:36:04:03 and 74:36:04:21.01; 74:36:09 (Prevention of Significant Deterioration)— 74:36:09:02, 74:36:09:03, 74:36:09:02(7), 74:36:09:02(8) and 74:36:09:02(9); 74:36:10 (New Source Review)— 74:36:10:02, 74:36:10:03.01, 74:36:10:05, 74:36:10:07 and 74:36:10:08; 74:36:11 (Performance Testing)—74:36:11:01; 74:36:12 (Control of Visible Emissions)—74:36:12:01 and 74:36:12:03; 74:36:18 (Regulations for State Facilities in the Rapid City Area)—74:36:18:10; 74:36:20 (Construction Permits for New Sources or Modifications)—74:36:20:05; 74:36:01:01(73) (Subject to Regulation); and the deletion of 74:36:04:03.01 (Minor Source Operating Permit Variance).

We provided a detailed explanation of the bases for our proposal. See 81 FR 52388. We invited comment on all aspects of our proposal and provided a 30-day comment period. The comment period ended on September 8, 2016.

In this action, we are responding to the comments we received and taking final rulemaking action on the rules from the State's July 29, 2013 and October 23, 2015, submittals.

The changes we are taking final action to approve are consistent with the CAA and EPA regulations. Specifically:

1. CAA section 110(a)(2)(C), requires each state plan to include “a program to provide for the . . . regulation of the modification and construction of any stationary source within the areas covered by the plan as necessary to assure that the National Ambient Air Quality Standards [NAAQS] are achieved, including a permit program as required in parts C and D of this subchapter.”

2. CAA section 165, lays out the requirements for obtaining a permit that must be included in a state's SIP-approved permit program. South Dakota's Air Pollution Control Program imposes these requirements on sources, and the State's proposed plan clearly satisfies the requirements of these statutory provisions.

3. CAA section 110(a)(2)(A), requires that SIPs contain enforceable emissions limitations and other control measures. Under section CAA section 110(a)(2), the enforceability requirement in section 110(a)(2)(A) applies to all plans submitted by a state. Chapter 6, section 13 creates enforceable obligations for sources by removing phrases such as “the plan shall provide” and “the plan may provide.”

4. CAA section 110(i), (with certain limited exceptions) prohibits states from modifying SIP requirements for stationary sources except through the SIP revision process. By eliminating unspecified procedures that were referenced in the May 10, 2011 submittal, the November 6, 2015 submittal addresses this issue.

In addition, the CAA (section 110(a)(2)(C)) and 40 CFR 51.160 require states to have legally enforceable procedures to prevent construction or modification of a source if it would violate any SIP control strategies or interfere with attainment or maintenance of the NAAQS. Such minor New Source Review (NSR) programs are for pollutants from stationary sources that do not require prevention of significant deterioration (PSD) or nonattainment NSR permits. States may customize the requirements of the minor NSR program as long as their program meets minimum requirements.

Section 110(l) of the CAA states: “[e]ach revision to an implementation plan submitted by a State under this Act shall be adopted by such State after reasonable notice and public hearing. The Administrator shall not approve a revision to a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 171), or any other applicable requirement of this chapter.”

The states' obligation to comply with each of the NAAQS is considered as “any applicable requirement(s) concerning attainment.” A demonstration is necessary to show that this SIP revision will not interfere with attainment or maintenance of the NAAQS, including those for ozone, particulate matter, carbon monoxide (CO), sulfur dioxide (SO2), lead, nitrogen oxides (NOX) or any other requirement of the Act. South Dakota's demonstration of noninterference (see docket), provides sufficient basis that new revisions to ARSD 74:36 will not interfere with attainment, reasonable further progress (RFP), or any other applicable requirement of the CAA. Further details can be found in our proposed rulemaking.

We received one comment during the public comment period. This comment was not related to the EPA's proposed rulemaking for South Dakota's permitting program changes which was published on August 8, 2016. As such, we are not providing a response to this comment.

As outlined in our proposed rulemaking, the EPA finds that the addition of new, revised and removed rules to ARSD 74:36 will not interfere with attainment or maintenance of any of the NAAQS in the State of South Dakota and will not interfere with any other applicable requirement of the Act or the EPA regulations as outlined in section II of this rulemaking (see proposed rulemaking for detailed rational); and thus, are approvable under CAA section 110(l). Therefore, we are taking final action to approve South Dakota's revisions as submitted on October 23, 2015. We are not taking action on South Dakota's July 29, 2013 submittal because it was superseded.

In our final rule published in the Federal Register on February 16, 2016 (81 FR 7706) we inadvertently used an incorrect approval date in the updates to the South Dakota regulatory table. The EPA is taking final action to correct this error with this action. The IBR material for our February 16, 2016 action is contained within this docket.

In this rule, the EPA is taking final action to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is taking final action to incorporate by reference the Administrative Rules of South Dakota pertaining to their permitting rules as outlined in section I. The EPA has made, and will continue to make, these documents generally available electronically through http://www.regulations.gov and/or at the EPA Region 8 Office (please contact the person identified in the “For Further Information Contact” section of this preamble for more information).

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4);

• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

The Congressional Review Act (CRA), 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 12, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2)).

40 CFR part 52 is amended as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

Organization of this document. The following outline is provided to aid in locating information in this preamble.

This rulemaking approves SIP submissions from the ME DEP, the NH DES, the RI DEM, and the VT DEC. The SIP revisions were submitted on the following dates: October 26, 2015 (Maine); November 17, 2015 (New Hampshire); June 23, 2015 (Rhode Island) and November 2, 2015 (Vermont). These SIP submissions address the requirements of Clean Air Act (CAA) section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS.1

On August 23, 2016 (81 FR 57519), EPA published a notice of proposed rulemaking (NPR) proposing approval of these four SIP submissions. The specific details of each state's SIP submission and the rationale for EPA's approval of each SIP submission are discussed in the NPR and will not be restated here.

EPA did not receive any comments in response to the NPR.

III. Final Action

EPA is approving the SIP revisions submitted by the states on the following dates as meeting the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS: October 26, 2015 (Maine); November 7, 2015 (New Hampshire); June 23, 2015 (Rhode Island); and November 2, 2015 (Vermont). EPA has reviewed these SIP revisions and has found that they satisfy the relevant CAA requirements.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 12, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:

This Final Rule is organized as follows:

For access to docket FMCSA-2016-0051 to read background documents and comments received, go to http://www.regulations.gov at any time, or to Docket Services at U.S. Department of Transportation, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

Section 32308 of the Moving Ahead for Progress in the 21st Century Act (MAP-21) [Pub. L. 112-141, 126 Stat. 405, 794, July 6, 2012] required FMCSA to undertake a study to assess Federal and State regulatory, economic, and administrative challenges faced by current and former members of the armed forces, who operated qualifying motor vehicles during their service, in obtaining CDLs. As a result of this study, FMCSA provided a report to Congress titled “Program to Assist Veterans to Acquire Commercial Driver's Licenses” (November 2013) (available in the docket for this rulemaking). The report contained six recommended actions, and two elements of the report comprise the main parts of this rulemaking. These actions are: (1) Revise 49 CFR 383.77(b)(1) governing the military skills test waiver to extend the time period to apply for a waiver from 90 days to 1 year within which service members were regularly employed in a position requiring operation of a CMV; and (2) Revise the definitions of CLP and CDL in 49 CFR 383.5 and 384.301 and related provisions governing the domicile requirement, in order to implement the statutory waiver enacted by the Military Commercial Driver's License Act of 2012 (Pub. L. 112-196, 126 Stat. 1459, Oct. 19, 2012).

This rule eases the current burdens on military personnel applying for CLPs and CDLs issued by a State Driver Licensing Agency (SDLA) in two ways. First, it extends the time in which States are allowed (but not required) by 49 CFR 383.77 to waive the skills test for certain military personnel from 90 days to 1 year. On July 8, 2014, FMCSA issued a temporary exemption under 49 CFR part 381 that extended the skills test waiver to 1 year [79 FR 38659].1 On June 29, 2016, FMCSA extended the temporary exemption for another two years, through July 8, 2018 (81 FR 42391). This final rule makes the waiver extension permanent. Second, this rule allows States to accept applications and administer all necessary tests for a CLP or CDL from active duty service members stationed in that State who are operating in a Military Occupational Specialty as full-time CMV drivers. States that choose to exercise this option are required to transmit the application and test results electronically to the SDLA in the service member's State of domicile, which would then issue the CLP or CDL. This enables service members to complete their licensing requirements without incurring the time and expense of returning to their State of domicile. FMCSA encourages, but does not require, the State of domicile to issue the CLP or CDL on the basis of this information in accordance with otherwise applicable procedures.

FMCSA evaluated potential costs and benefits associated with this rulemaking and estimates that these changes could result in net benefits between $3.2 million and $7.7 million over 10 years, discounted at 7%.

This rulemaking rests on the authority of the Commercial Motor Vehicle Safety Act of 1986 (CMVSA), as amended, codified at 49 U.S.C. chapter 313 and implemented by 49 CFR parts 382, 383, and 384. It responds to section 5401(b) of the Fixing America's Surface Transportation Act (FAST Act) [Pub. L. 114-94, 129 Stat. 1312, 1547, December 4, 2015], which requires FMCSA to implement the recommendations included in the report submitted pursuant to section 32308 of MAP-21, discussed above. Section 5401(c) of the FAST Act also requires FMCSA to implement the Military Commercial Driver's License Act of 2012 [49 U.S.C. 31311(a)(12)(C)]. As explained later in the preamble, this rule will give military personnel all of the benefits of the Military CDL Act, while providing options.

The CMVSA provides broadly that “[t]he Secretary of Transportation shall prescribe regulations on minimum standards for testing and ensuring the fitness of an individual operating a commercial motor vehicle” (49 U.S.C. 31305(a)). Those regulations shall ensure that “(1) an individual issued a commercial driver's license [must] pass written and driving tests for the operation of a commercial motor vehicle that comply with the minimum standards prescribed by the Secretary under section 31305(a) of this title” (49 U.S.C. 31308(1)). To avoid the withholding of certain Federal-aid funds, States must adopt a testing program “consistent with the minimum standards prescribed by the Secretary of Transportation under section 31305(a) of this title” (49 U.S.C. 31311(a)(1)).

Potential CMV drivers often obtain CDL training outside their State of domicile. Driver training schools typically provide their students with a “representative” vehicle to use for the required skills test (see 49 U.S.C. 31305(a)(2)), as well as a CDL holder to accompany the applicant to the test site. Until 2012, however, the CMVSA provided that a CDL could be issued only by the driver's State of domicile (49 U.S.C. 31311(a)(12)(A)). The cost to applicants trained out-of-State of traveling to their State of domicile to be skills tested can be substantial in terms of both personal time and financial expense. Therefore, on the basis of the authority cited in the previous paragraph, FMCSA's final rule on “Commercial Driver's License Testing and Commercial Learner's Permit Standards” (76 FR 26854, May 9, 2011) required States where a driver is domiciled to accept the result of skills tests administered by a different State where the driver completed training (49 CFR 383.79).

Legal residence or “domicile” is the State that individuals consider their permanent home, where they pay taxes, vote, and get a driver's license. Military personnel are frequently stationed outside their State of domicile. The Military CDL Act allows a State to issue CDLs to certain military personnel not domiciled in the State, if their temporary or permanent duty stations are located in that State (49 U.S.C. 31312(a)(12)(C)). However, this procedure creates problems for service members trying to maintain legal domicile in another State. Because drivers' licenses are often treated as proof of domicile, obtaining a CDL from the State where they are stationed could result in the loss of domicile and corresponding benefits (e.g., tax breaks) in what they consider their “home” State.

This final rule therefore utilizes the CMVSA's broader authority to allow the State where military personnel are stationed to accept CLP or CDL applications and to administer written and skills tests for the CDL. The rule requires a State that utilizes this procedure to transmit the application and test results electronically to the State of domicile, which is permitted, but is not required, to issue the CLP or CDL. This maintains the link between the issuing State and the driver's State of domicile that was mandated by the CMVSA [49 U.S.C. 31311(a)(12)] until the Military CDL Act authorized an exception (with problematical implications) for military personnel.

Section 5401(a) of the FAST Act added to 49 U.S.C. 31305 a new paragraph (d), which requires FMCSA to (1) exempt certain ex-military personnel from the CDL skills test if they had military experience driving heavy military vehicles; (2) extend the skills test waiver to one year; and (3) credit the CMV training military drivers receive in the armed forces toward applicable CDL training and knowledge requirements. This rule addresses the first and second of these requirements in considerable detail; the third, however, will require subsequent rulemaking.

Section 5302 of the FAST Act requires FMCSA to give priority to statutorily required rules before beginning other rulemakings, unless it determines that there is a significant need for the other rulemaking and so notifies Congress. This rule is required by the provisions of section 5401. Even in the absence of those mandates, however, FMCSA believes the need to improve employment opportunities for military personnel returning to civilian life justifies the publication of this rule.

States are allowed to waive the skills test for current or former military personnel who meet certain conditions and are or were regularly employed in the preceding 90 days in a military position requiring the operation of a CMV (49 CFR 383.77(b)(1)). Between May 2011 and February 2015, more than 10,100 separated military personnel took advantage of the skills test waiver. In the November 2013 Report to Congress titled, “Program to Assist Veterans to Acquire Commercial Driver's Licenses,” FMCSA concluded that lengthening that 90-day period would ease the transition of service members and veterans 2 to civilian life with no impact to safety. FMCSA recommended an extension of the period of availability to 1 year.

The Virginia Department of Motor Vehicles (DMV) subsequently requested an exemption from § 383.77(b)(1) to allow a 1-year waiver period for military personnel (available in docket FMCSA-2014-0096). On April 7, 2014, FMCSA published a Federal Register notice announcing the request (79 FR 19170). Five comments were received; all supported the application, agreeing that extending the waiver period to 1 year would enable more military personnel to obtain CDLs. In addition, the New York Department of Motor Vehicles (DMV) suggested “broader application of this exemption to all jurisdictions.” The American Association of Motor Vehicle Administrators (AAMVA), which represents State and Provincial officials in the United States and Canada who administer and enforce motor vehicle laws, also requested that FMCSA consider a blanket exemption for all U.S. jurisdictions.

FMCSA determined that the exemption requested by the Virginia DMV would maintain a level of safety equivalent to, or greater than, the level that would be achieved without the exemption, as required by 49 CFR 381.305(a). The Agency, therefore, approved the exemption and made it available to all SDLAs (79 FR 38645, July 8, 2014). That nationwide exemption was extended for an additional 2 years by a notice published June 29, 2016 (81 FR 42391). However, neither exemption changed the language of § 383.77(b)(1) and the current exemption remains effective only until July 8, 2018.

On March 16, 2016, FMCSA published a notice of proposed rulemaking (NPRM) titled “Commercial Driver's License Requirements of the Moving Ahead for Progress in the 21st Century Act and the Military Commercial Driver's License Act of 2012” (81 FR 14052). The proposed changes in 49 CFR parts 383 and 384 were intended to ease the process of getting a CLP or CDL for both active duty and recently separated military personnel.

The NPRM elicited 16 comments, the majority from SDLAs. Several SDLAs and individuals suggested changes to the proposal, but no commenters opposed the rule.

Issue: The NPRM proposed adding a definition in § 383.5 of “military services” to the list of definitions in that section. A definition for “military services” is needed in order to interpret the new requirements in part 383 in this rulemaking.

Comments: The Virginia DMV requested guidance on the meaning of the term “auxiliary units,” and suggested mirroring United States Code language.

FMCSA Response: FMCSA has removed the reference to “auxiliary units.” It was used to cover the Coast Guard Auxiliary, but should not have been included because the Auxiliary is a non-military organization [see 14 U.S.C. 821(a)] and its members are civilians. The definition of “military services” proposed in the NPRM follows the relevant definitions in the Armed Forces title of the United States Code (10 U.S.C. 101). Those definitions do not use the term “auxiliary units.”

Issue: The NPRM would have amended § 383.77(b)(1) to allow States to accept skills test waiver applications from military personnel for up to 1 year after they were regularly employed in a military position requiring operation of a CMV.

Comments: The Virginia DMV and AAMVA reaffirmed their support for the proposal. The American Bus Association (ABA) stated that the proposal would “ease the administrative burden on state licensing agencies in no longer having to periodically apply for these extensions, but it would have a practical benefit to transitioning military CMV drivers looking for a new civilian CMV driving career.” The New York DMV favored the extension because it would alleviate some of the problems identified by FMCSA in its 2013 Report to Congress. The Montana Department of Justice, Motor Vehicle Division (DOJ/MVD), supported codifying the regulatory exemption. The Minnesota Department of Public Safety, Driver and Vehicles (DPS/DV), favored the extension, as it mirrors Minnesota law. The Michigan Department of State (DOS), the Arizona Department of Transportation (DOT), and the American Trucking Associations (ATA) supported the proposal.

One individual commenter agreed with the concept but suggested an eight month timeframe instead of one year.

FMCSA Response: FMCSA adopts the proposal as drafted. FMCSA will extend the 90-day skills test waiver period to 1 year from the date the driver was last employed in a military position regularly requiring the operation of a CMV. This does not otherwise change the eligibility criteria for the exemption.

Issue: Section 383.77 implies that a military or ex-military applicant would need a certain level of experience, but the proposal did not mandate any training.

Comments: One individual commenter stated that, although she supported the rulemaking and easing the transition for returning veterans, CDL schools have a value. She stated that many veterans currently use the GI Bill to attend a CDL school. She also stated that the CDL curriculum is only 20 days.

The New York DMV asked if proof of CMV driving would replace the Entry-Level Driver Training requirements, and if it could, how much would be required.

ATA favored allowing non-military drivers, in addition to military personnel, to take the written and skills tests outside their State of domicile, and requested that FMCSA issue a supplemental NPRM on that subject.

FMCSA Response: FMCSA agrees that driver training is important, and recently published an NPRM that would require training for entry-level drivers (81 FR 11944, March 7, 2016). Under that proposal, entry-level driver training would not be required for “Veterans with military CMV experience who meet all the requirements and conditions of § 383.77 of this chapter” (49 CFR 380.603(a)(3)). Today's final rule extends the waiver period allowed by § 383.77, but does not address substantive training issues. Giving non-military drivers the same testing flexibility granted to military personnel is beyond the scope of this rule, and FMCSA declines to consider the ATA request at this time.

The NPRM would have allowed a State where active-duty military personnel are stationed to accept applications and administer CLP knowledge and CDL skills tests. That State would then have been required to transmit the application and test results to the driver's State of domicile, which would have been required to accept these documents and issue the CLP or CDL.

Issue: The proposal did not account for licensing variations among the States, relying on the 2011 CDL rulemaking that standardized the elements of a license.

Comments: Several commenters pointed out that States have different procedures for issuing CLPs and CDLs. AAMVA requested a list of data elements that needed to be transferred, as many States have variations. The Missouri Department of Revenue (DOR) asked which SDLA (the State where the driver is stationed or the State of domicile) would handle the verification processes. The California DMV asked how to convert a CLP to a CDL under §§ 383.25 and 383.153, and did not address a non-domiciled variation. ATA supported allowing jurisdictions to test on behalf of each other, and stated that the knowledge and skills test should be standardized, per FMCSA's statements in the NPRM. Because of the standardization, ATA did not believe there would be any change or reduction in safety, and pointed out that costs for service members who want to obtain a CLP or CDL would likely decrease.

FMCSA Response: The 2011 CLP/CDL rule (89 FR 26853) required States to adopt new minimum Federal standards for the CDL knowledge and skills tests and established new minimum procedures for States to issue the CLP. FMCSA has confirmed that all States meet those minimum standards. In addition, some States have adopted more stringent standards. While that is allowed by part 383, it does create variations among States.

As proposed in the NPRM, the State of domicile will issue the CLP or CDL; this has always been a fundamental principle of the program. However, in response to comments, the NPRM requirement that the State of domicile must accept and act on information transmitted by the State where the driver is stationed has been removed. The final rule is entirely permissive. In other words, the State where the military driver is stationed may (but is not required to) administer the written and skills tests for the CLP and CDL—as proposed in the NPRM—and the State of domicile may (but is not required to) accept the testing information and documentation provided by the State where the driver is stationed and issue the CLP or CDL on that basis. This permissive approach will require coordination between two States, and among many pairs of States. At a minimum, the State where the driver is stationed will have to use administrative procedures, forms, etc., that are acceptable to the State of domicile, since that State would ultimately issue (or refuse to issue) the CLP or CDL. The Agency recognizes that States will have to harmonize different practices. If two SDLAs find that their licensing standards are incompatible, they will not reach agreement and military drivers will not be able to use the application and testing alternatives allowed by this rule. However, we are confident that most States will work out their mutual differences in order to help military personnel transition to civilian careers in the motor carrier industry.

This final rule does not change the requirements for converting a CLP to a CDL. If eligible military CLP holders want to apply for a CDL, they could do so where they are stationed (assuming that State uses the option granted by this rule), but the CDL itself must still be issued by the State of domicile.

Participating States have a 3 year period to adopt the framework of the rule. FMCSA, AAMVA, and the States will work together to reach agreement to implement the procedures after this time.

Issue: The proposal was silent on the topic of fees charged by SDLAs for services rendered under proposed § 383.79.

Comments: The New York DMV asked how the State of domicile will collect fees if the process is entirely electronic. The Oregon DMV voiced concern that drivers might be forced to pay both the State where the driver's application is filed and processed and the State of domicile, and stated that it was required by statute to collect fees before issuing CLPs and CDLs. The Michigan DOS asked for clarify concerning fees, and said there was an assumption of shared cost between the State of domicile and State of station. North Dakota stated that its fee has to be paid in person. The Minnesota DPS/DV wanted the issue of fees to be addressed explicitly. The California DMV stated that fees were not addressed in the proposal.

FMCSA Response: Driver licensing fees are left to the discretion of the States, and FMCSA believes that States are best equipped to determine such fees. Some SDLAs currently waive fees for active-duty military personnel and may well continue to do so while utilizing this rule. On the other hand, it is possible that both States involved in the new testing and licensing procedures allowed by this rule may charge for their services. Even in that worst-case scenario, however, the driver is likely to find the new procedures cheaper than returning to his/her State of domicile to complete the necessary applications and tests. In cases where one State has to transmit all or part of a fee to another State, FMCSA is confident that current financial systems will be able to provide solutions. The reciprocal transfers among States required by the International Registration Plan and the International Fuel Tax Agreement suggest that options may be readily available.

As discussed below in connection with Executive Order 12866, military drivers will retain the options: (1) To return to their State of domicile to apply for a CLP or CDL; and (2) to change their State of domicile to the State where they are stationed. If the distance between two States is small enough, and cost of returning to the State of domicile is cheaper than the fees charged, then the military driver may wish to apply for the CLP or CDL in person in the State of domicile. This rulemaking does not alter that ability.

FMCSA believes the rule offers significant flexibility that will reduce the cost to most military drivers of obtaining a CDL. Nonetheless, each driver will have to balance application fees versus travel costs, and the advantages of maintaining and switching State of domicile.

Issue: The NPRM was silent on which State (State of domicile or State of station) would supply the application for a CLP or a CDL.

Comments: Several SDLAs had concerns about issuing or processing CLPs and CDLs on behalf of another State. Several mentioned that different States require different information.

The Arizona DOT said that it could not enforce another State's standard. The Oregon DMV stated that CLP and CDL applications are not uniform, and neither are the skills and knowledge tests. The Oregon DMV is prohibited by statute from using another State's application to issue an Oregon license. Oregon also stated that any expectation of enforcing another State's applications and forms is unreasonable. The New York DMV stated that the applications are too varied, and requested guidelines to ensure each State receives the data it needs. The Arizona DOT argued that requiring States to handle other States' applications infringes upon State laws, and it is not realistic for personnel to handle forms from other SDLAs, as they would require different information. Arizona also noted that States might require legislative changes in order to implement the regulatory revisions adopted here. Minnesota DPS/DV pointed out that each SDLA has a different form; Minnesota does not use an electronic form. The Michigan DOS and Virginia DMV suggested national forms and applications as possible solutions for consistency. The Michigan DOS also asked how the State where the driver is stationed would verify a credential in the State of domicile. Virginia requested AAMVA's involvement in developing a national application, if one were to be developed. AAMVA asked for clarification about which elements needed standardization.

The Nebraska DMV requested clarification of what parts of the application would be mandatory for transmission. North Dakota said that the process in the NPRM did not provide enough information for a State of station to adequately maintain records and process records for the State of domicile. North Dakota said that its own application must be used.

FMCSA Response: The Agency agrees that clarification would be needed if FMCSA were adopting forms, applications, and procedures. However, FMCSA is not adopting national forms that States must use when implementing this final rule. The outlines of a national standard are already specified in considerable detail in §§ 383.25 Commercial learner's permit (CLP) and 383.71 Driver application and certification procedures. As indicated above, the Agency is allowing any two States involved in the issuance of a CLP or CDL to military personnel stationed outside their State of domicile to work out between themselves any remaining differences in their respective procedures and requirements. The most obvious solution would be for the State where the driver is stationed to use the forms and follow the procedures required by the State of domicile. FMCSA will work with the SDLAs and AAMVA during the implementation period to assist in determining common data points that meet the needs of the States that wish to participate.

Some States may decide not to process or accept CLP and/or CDL applications transmitted by another State. The rule does not require any State to enforce another State's standard. The State of station will collect applications on behalf of the State of domicile. It will be the applicant's responsibility to ensure both that the State where he/she is stationed will entertain an application and that his/her State of domicile will accept and process the application and test results provided by the former and issue a CLP or CDL.

Again, the final rule is entirely permissive. Each pair of States potentially involved in the licensing procedures allowed by this rule can opt out if the involved States are unable to reach agreement. The Agency believes that many States will find ways to harmonize their forms, procedures, and other requirements—but we recognize that some States will not be able to do so. FMCSA has expanded the description of the requirements in today's final rule, including making it clear that States have the option—but are not required—to process applications and test results on behalf of other States and to accept those applications and test results collected by other States.

Issue: The NPRM was silent on the topic of licenses being used for purposes other than driving.

Comments: The Montana DOJ/MVD asked how this proposed rule would impact voting. The New York DMV asked if there would be an impact on drivers who no longer have current addresses within the State of domicile. The Oregon DMV stated that each SDLA has its own standards for domicile, and it will be impossible for another State's SDLA to verify them.

FMCSA Response: The Agency notes the concerns about voting rights, as well as the domicile status and addresses of applicants, but believes that most States will be able to resolve such questions in cooperation with other States. Drivers who obtain a CLP or CDL through this process will retain their State of domicile, and will therefore never be entered into the pool of voters in the State where they are stationed, or need to update their addresses. From the perspective of the SDLA in the driver's State of domicile, nothing has changed.

Issue: FMCSA did not address photo or other in-person licensing requirements.

Comments: Several SDLAs pointed to inconsistencies in procedures between States for parts of the license that must be done in person, such as facial recognition and signature.

AAMVA asked for clarification on which jurisdiction would be responsible for the photography element; it also mentioned the REAL ID Act provision that requires digital pictures on a driver's license, as well as tracking of denied REAL ID applications. AAMVA said that all SDLAs are not following the REAL ID requirements, and that if the driver's picture is taken in the State where he/she is stationed, this could have an additional cost. When a license is issued, the Oregon DMV takes a photograph which is digitized and compared to a database with facial recognition software. The New York DMV mentioned other in-person requirements in addition to a photograph, including a Social Security Number and other State-specific identity confirmation.

The Virginia DMV stated its concern about a driver using the new provisions of § 383.79 if he or she did not have an existing license; Virginia mentioned that this might be a concern for issuing a photograph of the driver on the license. The Montana DOJ/MVD mentioned that the initial issuance of a license can only take place in person; an in-person signature may also be required from those drivers who are domiciled in Montana, but have not provided a digital signature recently, and this would require a data base modification.

North Dakota stated that many of its requirements, like digital photo processing, eye exams, and fees, must be done in person; not allowing the State of domicile to insist on these requirements is “unacceptable.” The Michigan DOS mentioned that facial recognition, fingerprinting, and retinal scanning often occur in the State of domicile when a new CLP or CDL is issued. The California DMV asked whether a State that requires facial recognition would process a CLP or CDL application without the applicant appearing in person. The Arizona DOT listed a number of in-person-only requirements. These included facial recognition, original documents for citizenship verification, and digital signatures.

FMCSA Response: As explained above, this final rule is permissive, not mandatory. If a State of domicile concludes that another SDLA cannot properly administer its processing procedures, it can decline to issue CLPs/CDLs to military personnel stationed in that State. And a State that knows its processing standards are inconsistent with those of another State can decline even to accept CLP/CDL applications from military personnel domiciled in that State.

It is worth noting, however, that there is no Federal requirement on where a photograph is taken. That factor alone should not impede a State of domicile from accepting a CLP/CDL application from a State where a military driver is stationed.

FMCSA disagrees with the Virginia DMV's comment concerning drivers who do not have existing licenses; only drivers who have an existing license are eligible for relief under § 383.79. As for Montana's comment, today's final rule applies only to a driver with an existing license from his/her State of domicile. An initial license would never be issued by the State where the individual is stationed.

Other in-person procedures would be left to the discretion of the two SDLAs; they could determine whether it would be possible to meet criteria for facial recognition, digital signatures, REAL ID Act requirements, and other processes normally done in-person. The Agency declines to add these provisions to a final rule, as it believes that the best practices will be implemented at the State level. If our assistance is sought, FMCSA will work with AAMVA to create best practices.

Issue: The proposed rule did not address how to verify the military station or status of applicants.

Comments: AAMVA pointed out that proof of State of station should be provided, and asked FMCSA to issue guidance on this topic. The New York DMV and the Nebraska DMV asked for clarification on how to prove the State of station.

FMCSA Response: The applicant must provide proof of his or her active duty status in the form of a valid active duty military identification card. In addition, the applicant must show the driver licensing agency either a copy of his or her current orders or a current Military Leave and Earning Statement (Jan 2002) to prove where he or she is stationed.

Issue: Due to the issuance of the 2011 CDL and CLP rule referenced previously, FMCSA believed that all States met the same minimum standard when issuing CLPs and CDLs.

Comments: Several SDLAs mentioned credentialing concerns. The California DMV asked how to destroy another State's license in accordance with § 383.73(c)(6). AAMVA stated that it was concerned there was no mechanism to issue a new CLP or CDL. AAMVA stated that some SDLAs mail licenses to the applicants, but there is no standardized process. AAMVA also expressed concerns about multiple-document retention, and gave an example where an applicant ended up with several licenses at the same time; AAMVA said that the rule should address the surrendering of licenses. The Minnesota DPS/DV wanted a clear explanation of which State should destroy the old credentials. The Arizona DOT pointed to § 384.211 and stated that it requires the destruction of old credentials before the issuance of new credentials; that process would leave drivers not present in that State without a license in the interim.

ATA stated that if there was a lag time in issuing new credentials, the driver should be given an alternate document (coordinated by the two States involved) for proof of licensure during that time. ATA suggested allowing the State where the driver is stationed to issue CLPs and CDLs on behalf of the State of domicile.

FMCSA Response: The application and testing procedures allowed by this rule are available only to military drivers who already have a non-CDL license from their State of domicile. That State is responsible for issuing the new CLP or CDL. Although this rule leaves the repossession of the previous license (usually a standard automobile license) to the discretion of the States involved, there would seem to be two basic alternatives. Either the State of domicile would send the CDL document to the State where the driver is stationed, which in turn would demand and destroy the previous license when it delivered the CDL to the driver; or the State of domicile would require the driver to mail his/her previous license to that SDLA, which would destroy it and then mail the CDL back to the driver. The second procedure would leave the driver without a driver's license for a few days. FMCSA believes that participating States will be able to utilize these or other agreed-upon procedures without incurring any serious risk that a driver could hold multiple driving credentials or would be without any credentials for an interim period.

Issue: The proposed rule did not address citizenship.

Comments: The Montana DOJ/MVD and the New York DMV asked which State would verify citizenship or lawful permanent residency, since not all holders of automobile licenses will be United States citizens. New York asked how a processing State would send citizenship information to a domicile State, if that was the procedure chosen. New York DMV pointed out that checking this information is required under §§ 383.71 and 383.73. The Virginia DMV asked for clarification of “legal presence” as well. Referring to § 383.71, the Arizona DOT said that its policy was to require original documents to verify citizenship, and that this could not be done through the mail.

FMCSA Response: Proof of citizenship or lawful permanent residency will necessarily be included in the application process. Ultimately, the responsibility for verifying the driver's status rests with the State of domicile, since it will issue the CLP or CDL, but the State where the applicant is stationed can verify these matters on behalf of the State of domicile. The two States involved will have to work out the necessary administrative steps between themselves. It must be noted that § 383.71(a)(2)(v) and § 383.73(a)(2)(vi) both require proof of citizenship or lawful permanent residency. This rule does not change either of these requirements, and the CLP/CDL remains available only to citizens and lawful permanent residents.

Issue: The results of the completed knowledge and skills test would be transmitted the same way the skills test scores are transmitted today for out of state testers—electronically. Only passing results would be transmitted.

Comments: Several SDLAs voiced concern about variances in data between States and asked the Agency to identify the system to be used for data transfer. The California DMV mentioned that the system used would have to protect personally identifiable information (PII), and should have standardized data elements. AAMVA stated that the systems developed to transmit skills test results pursuant to the 2011 CLP/CDL rule would have to be modified to accommodate the knowledge test results and the application itself. The New York DMV echoed this point and asked what format would be used to transfer applications and test results, as the current systems do not do this. The Virginia DMV stated that transmittal must be done electronically for security, and requested the enhancement and explicit requirement for use of the Commercial Skills Test Information Management System (CSTIMS) and the Report Out-Of-State Test Results (ROOSTR) system. The Nebraska DMV also requested an explicit CSTIMS and ROOSTR transmission requirement.

The Montana DOJ/MVD stated that current information transmission systems were inadequate and that there would be technical, procedural, and legal issues. It referred to several AAMVA-run systems, and stated that digital image access would need to be added, as would a method of transferring knowledge test scores. The Missouri DOR mentioned that it did not use REAL ID, or any of the AAMVA systems. ABA supports the use of data systems to speed up the licensing process, but has concerns about the systems' infrastructure.

FMCSA Response: FMCSA will not require the use of any specific system for transferring licensing information between States. However, the AAMVA-maintained CSTIMS and ROOSTR systems could be appropriate methods of electronic transfer. FMCSA agrees with the need to protect PII, but does not establish any new procedures for doing so. In any case, no Federal records are created by this rule. The information transferred by the State where the military driver is stationed to his or her State of domicile will be entered into the Commercial Driver's License Information System (CDLIS). That system, however, involves records created and maintained by the States. This rule does not result in a new or revised Privacy Act System of Records for FMCSA.

Issue: The NPRM concluded that there would be a cost for using AAMVA-run systems, but that the cost would be included in the existing arrangements for States to maintain and use these systems.

Comments: Both the Missouri DOR and AAMVA stated that using AAMVA systems to transfer skills tests electronically would involve a cost. AAMVA also mentioned that the CLP/CDL application and the electronic-transfer requirement would have a cost as well. The Missouri DOR stated that several SDLAs have opted not to use an electronic system; reversing that policy would generate costs, including training for the system. The Montana DOJ/MVD mentioned that the cost to upgrade the systems would be substantial.

FMCSA Response: Today's final rule requires electronic transfer of test results, but does not specify the methods of that transfer. There is no requirement to procure and use a data system not already in place. States are currently required to transmit the results of skills test electronically, and FMCSA assumes that the States will use the same method of transfer for the knowledge test results. Forty-seven SDLAs use the AAMVA-owned and -operated CSTIMs and/or ROOSTR systems to transfer skills test results. FMCSA anticipates that AAMVA will update these systems to allow for transmission of knowledge test results during a routine IT upgrade cycle, with minimal additional cost. In the regulatory analyses section below, FMCSA estimates that drivers affected by this rule will pay a processing fee to their State of station that will cover the costs of information transfer between the State of station and the State of domicile.

Issue: FMCSA did not discuss fraud in the NPRM, as the proposal relied upon existing systems that have built-in protection against fraud.

Comments: Several SDLAs thought that the proposal did not adequately address concerns over fraud. Oregon took issue with the fact that it would have to rely upon other SDLAs to verify information. The Montana DOJ/MVD thought the NPRM downplayed the risk of fraud, especially due to the photography and documentation requirements, and argued that the rule would need fine-tuning.

FMCSA Response: FMCSA believes that States will take appropriate steps to protect against attempted fraud by applicants. FMCSA takes fraudulent behaviors seriously, has conducted yearly audits of all States for the past three years, and will continue to be vigilant in this regard.

Issue: The proposal did not address the transfer of additional certifications between States.

Comments: The New York DMV asked how the processing State would collect a driver's medical certification and self-certification and submit it to the State of domicile.

FMCSA Response: FMCSA expects SDLAs to coordinate the transfer of certifications, presumably in the same way that they transfer the CLP/CDL applications and test results.

Issues: The Oregon DMV suggested that the proposal overstepped the requirements of the Military CDL Act, which should be followed instead. Oregon felt that the NPRM was unnecessarily complex and should more closely track with the statutory language.

The New York DMV believes that the proposal contradicted the recent CDL rulemaking, and undermined the work States have done to meet its requirements.

The Minnesota DPS/DV raised a concern that the requirement to accept applications on behalf of other States violated State laws. The Montana DOJ/MVD referenced a Montana State law that requires “verification through the Federal Systematic Alien Verification for Entitlements program (SAVE).”

FMCSA Response: The Military CDL Act of 2012 does indeed allow States to issue CDLs to military personnel who are stationed, but not domiciled, there. As discussed in this rule, however, obtaining a CDL where he or she is stationed may void the driver's domicile in his/her “home” State and with it certain benefits, e.g., lower taxes, in-State tuition, etc. The Agency determined in the 2011 final rule that the general CDL statute—the Commercial Motor Vehicle Safety Act of 1986, as amended—is sufficiently broad to authorize a rule requiring States to accept the results of skills tests administered outside the driver's State of domicile. The NPRM in this rulemaking expanded that analysis and conclusion to require States of domicile to accept the results of CDL written and skills tests administered to military personnel by States where these personnel are stationed but not domiciled. That approach allowed the State of domicile to issue the CLP and CDL, thus eliminating any inadvertent transfer of domicile that might occur if a military driver received a CDL from the State where he/she was stationed. However, in view of the comments submitted to the docket, the Agency has decided—as described above—not to require the State of domicile to accept the test results recorded by another State, but rather to allow the State of domicile to do so. With this change, the argument that the NPRM requires the violation of certain State laws simply disappears. The success of this final rule will depend on the willingness and ability of the State of domicile and the State where the driver is stationed to work out mutual differences in their forms, procedures, and other requirements. We are confident that most States will manage that task effectively. This final rule provides relief for a very limited population of military service members who want to become commercial drivers. Additionally, the rule relies heavily on the standardization of licensing and other requirements put into place by the 2011 CDL rule.

Issue: FMCSA did not suggest any regulatory alternatives to this proposal.

Comments: The New York DMV suggested an FMCSA-Department of Defense (DOD) partnership using an AAMVA CDL test model, or allowing transfer of current, non-CDL licenses to their State of station as a non-domiciled driver. The second alternative process suggested would allow military drivers to transfer domicile to any State after leaving the service. New York thought that these would provide sufficient relief as well as not impose additional burdens on the SDLAs.

FMCSA Response: New York's suggestions are beyond the scope of the NPRM. The Agency believes the relief provided by this final rule will be substantial. FMCSA, AAMVA, and the States will work together to reach agreement to implement the procedures during the implementation period.

Issue: The executive summary in the NPRM included the following proposal: “Revise 49 CFR 383.77(b)(3) to add the option to qualify for a CDL based on training and experience in an MOC [Military Occupational Specialty] dedicated to military CMV operation.” However, this proposal was not in the regulatory language or discussed at any level in the preamble. Additionally, the MOC was incorrectly referenced in proposed § 383.79.

Comments: ABA requested either guidance or a list of which MOCs would be able to take advantage of relief from the regulation, referring to a proposal in § 383.77(b)(3).

The Virginia DMV asked for clarification on how to confirm the MOC of the applicants under § 383.79. The New York DMV also asked why proof of a military CMV status would be necessary for the provisions of § 383.79. The Michigan DOS/MVD stated that if military testing meets or exceeds CDL requirements, a CDL should be issued without testing. The California DMV understood the § 383.79 proposal to include a requirement that drivers wishing to seek a CDL in their State of domicile via a State where they are stationed would need to be operating in a CMV-driving MOC, and asked for clarification of which MOCs would be included.

FMCSA Response: The § 383.77(b)(3) proposal was inadvertently left in the executive summary for the NPRM; it was not intended to be a part of this rulemaking, was not in the proposed regulatory language, and is not included in today's final rule. FMCSA will consider this as a potential topic for a future rulemaking.

The provisions under § 383.79 pertain to anyone in the military; they do not waive any of the requirements for obtaining a CLP or CDL. This section simply allows drivers to seek CDLs in the State of station rather than the State of domicile.

Comments: The ATA requested an extension of the proposal in § 383.79 to non-military personnel as well, and requested that CDL schools outside the State of licensure be allowed to teach drivers.

The Nebraska DMV asked several questions about service members who pass the knowledge test in their States of station returning to their State of domicile, and about passing the knowledge tests in other States. AAMVA asked a similar question, about applicants who begin the testing process in one State and then are transferred to another State.

FMCSA Response: FMCSA declines ATA's request for a Supplemental NPRM. The comments to this rulemaking docket identified challenges to out-of-State testing which persuaded the Agency to adopt a more modest, permissive approach. ATA's request would significantly exacerbate the difficulties outlined by State commenters. Training schools routinely enroll students from other States, but allowing large numbers of civilian students to be knowledge-tested outside their State of domicile is well beyond the scope of this rulemaking. Military drivers are a special class being accommodated in this rule because of the Military CDL Act of 2012, which was intended to ease their transition to civilian life.

The rulemaking did not discuss the knowledge test requirements. FMCSA's intent was to make the licensing process easier for service members. Ultimately, however, the SDLAs control their own processes. While it is possible, though not likely, that a service member may be transferred from one duty station to another between the time he/she applies for the CLP and wants to take the skills test, the national uniformity of skills test procedures should make no difference to the acceptability of the results to the State of domicile.

Section 383.5. Definitions. A new definition of “military service member” was added, along with a revised definition of “military services,” where the phrase “auxiliary units” was removed.

Section 383.77 Substitute for driving skills tests for drivers with military CMV experience, is adopted as proposed in the NPRM.

Section 383.79 Skills testing of out-of-State students; Knowledge and skills testing of military personnel. The title of this section has been revised to differentiate the two concepts addressed within it. The discussion of electronic transmission of documents has been somewhat expanded.

Section 384.301 Substantial compliance general requirements. This section is adopted as proposed.

Eligible Military Personnel. The first part of the rule addresses military personnel recently separated from active duty. These veterans must have been operating in a position where they regularly drove a military CMV.

Current Procedures. Currently, the standard at § 383.77 authorizes States to allow these drivers up to 90 days following separation from a military position requiring operation of a CMV to apply to waive the skills test. In 2015 the Agency granted relief through an exemption that allowed a 1-year waiver period, without changing the regulation.

Changes today. Today's regulation would codify that extension, meaning that States would be authorized to accept applications for a skills test waiver for up to 1 year rather than 90 days.

Requirements for States. All States currently waive the skills test for this population of applicants; this rule changes neither the eligible population nor State procedures. Only the duration of the allowable waiver period is changed.

Eligible military personnel. The second part of the rule addresses active duty military service members who are stationed in a State different from the State in which they claim domicile. These members would need to verify with the State of station and the State of domicile that both States plan to participate in the licensing procedures allowed by this rule.

Current procedures. Currently, if active duty service members wish to obtain a CLP or CDL, they must either (1) apply for a CLP or CDL in person in their State of domicile, or (2) transfer their existing license, and thereby State of domicile, to the State where they now live or are stationed.

Changes today. Today's final rule enables States to allow eligible military personnel to apply and be tested for a CLP or CDL in the State where they are stationed, without having to travel to or change their State of domicile.

Requirements for States. Today's final rule is permissive. SDLAs are permitted (but not required) to accept CLP/CDL applications from eligible military personnel stationed there. However, the information, forms, and procedures used by the State where the driver is stationed would have to be acceptable to the State of domicile. If either State in this pair decided not to cooperate with the other State, the licensing alternative allowed by this rule would not be possible with respect to those two States.

Description of the procedure for exchanging a CLP or CDL. As noted elsewhere in this rule, FMCSA is allowing flexibility for individual States to reach agreements on the most efficient means of allowing a military member stationed outside his or her domicile State to obtain a CDL without physically returning to that State. FMCSA recognizes that States might have unique CDL licensing requirements or processes and is therefore not establishing a single process that all States must follow. One possible scenario for how this could work is presented below, but other alternatives may also work. FMCSA encourages the States to find the most efficient process that minimizes variations in their individual licensing procedures to support the affected military members.

Example: An active duty member of the armed forces is stationed at State 1 (State of station) but domiciled in State 2 (State of domicile or home State). The driver has a current non-CDL driver's license in the State of domicile, and wants to get a CDL while maintaining his or her current State of domicile.

Step One: The service member contacts both State 1 and State 2 SDLAs to determine if State 1 will give the knowledge and skills tests, and if State 2 will accept the results of those tests administered by State 1 and issue a CDL.

If both States do not agree to the process, then the service member cannot use this exemption, and must either change his or her State of domicile, or return to the State of domicile for issuance of a CLP or CDL.

Step Two: If both SDLAs agree to the licensing alternative allowed by this rule, the service member fills out State 2's CLP application which can be on line or hard copy, whichever is State 2's preference.

If State 2 charges a fee, the service member pays State 2.

Step Three: The service member goes to State 1's SDLA with his/her military ID and proof of being stationed in State 1 and shows either his/her paper application from State 2 or proof of filling out State 2's application electronically.

If State 1 charges a fee, the service member pays State 1.

If the service member seeks a CDL, State 1 validates his/her identity at the counter, as well as proof of citizenship or lawful permanent residency; valid CDL medical certification; and expected interstate or intrastate operation.

Step Four: For a CLP, State 1 gives the knowledge test, and transmits passing results to State 2 electronically.

Step Five (a): State 2 sends a CLP document to State 1; or Step Five (b): State 2 sends a CLP document directly to the service member.

Step Six: If following Step Five (a), the service member goes to State 1's SDLA where he or she took the knowledge test and receives the CLP document.

Step Seven: The service member trains and practices driving, and presents himself/herself to State 1 to take the skills test, where his/her identity and citizenship are again verified by the State 1 SDLA. If the driver passes the skills test, the result is transmitted to State 2 electronically.

Step Eight: Either

a. State 2 SDLA sends a CDL to State 1's SDLA. or

b. The service member mails his/her CLP and non-CDL license issued by State 2, to State 2, and State 2 sends the new State 2-issued CDL by mail to the applicant.

Step Nine: If option a. is followed, the service member goes to the State 1 SDLA where he or she took the skills test, and surrenders his/her CLP and non-CDL license issued by State 2 (which State 1 then destroys), and receives the State 2-issued CDL.

The FMCSRs, and any exceptions to the FMCSRs, apply only within the United States (and, in some cases, United States territories). Motor carriers and drivers are subject to the laws and regulations of the countries that they operate in, unless an international agreement states otherwise. Drivers and carriers should be aware of the regulatory differences amongst nations.

Section 383.5 adds definitions of “military service member” and “military services” in alphabetical order.

Section 383.77 extends the period during which States may waive the skills test of certain former military drivers from 90 days to 1 year in § 383.77(b)(1).

Section 383.79 is slightly revised. The title of this section is changed to reflect the expanded content: “Skills testing of out-of-State students; Knowledge and skills testing of military personnel.”

Section 383.79(a)(1) and (2) contain the material previously designated as § 383.79(a) and (b), concerning CDL applicants trained out-of-State.

New § 383.79(b), Military service member applicants for a CLP or CDL, includes the licensing options described above. Paragraph (b)(1), State of duty station, along with its three subparagraphs, authorize (but do not require) States where active-duty military personnel are stationed, but not domiciled, to accept and process CLP and CDL applications from such personnel, to administer the required tests for these licenses, and to destroy existing licenses. Paragraph (b)(2), Electronic transmission of the application and test results, details the process for the State where these military personnel are stationed to transmit the necessary forms and test results to the applicant's State of domicile. Paragraph (b)(3), State of domicile, along with its two subparagraphs, explains that the State of domicile may (but is not required to) accept such forms and test results; if it does so, it will issue the appropriate CLP or CDL.

Section 384.301 is amended by adding new paragraph (j) to require substantial compliance by States three years from the effective date of the final rule.

FMCSA determined that this final rule is not a significant regulatory action under section 3(f) of E.O. 12866 or significant within the meaning of Department of Transportation regulatory policies and procedures (DOT Order 2100.5 dated May 22, 1980; 44 FR 11034, February 26, 1979) and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. However, FMCSA did evaluate the costs and benefits of this rulemaking. This rulemaking will not result in an annual effect on the economy of $100 million or more, lead to a major increase in costs or prices, or have significant adverse effects on the United States economy. This rule amends existing procedures and practices governing administrative licensing actions.

FMCSA evaluated potential costs and benefits associated with this rulemaking and estimates that these changes could result in net benefits between $3.2 million and $7.7 million over 10 years, discounted at 7%. The following sections provide an overview of this analysis.

The final rule will extend the time States are allowed to accept applications for a skills test waiver from certain former service members from 90 days to 1 year. This action codifies an existing exemption published on July 8, 2014 (79 FR 38645). That notice granted immediate relief from 49 CFR 383.77(b)(1) to certain military service members separating from active duty. The exemption did not change the CFR language and is effective for only 2 years, although it could be extended.

As the final rule will codify an existing practice, FMCSA does not expect this revision to have any significant economic impact. However, the Agency believes that permanently granting military personnel with CMV driving experience more time to apply for a CDL after separation from service will be beneficial to both service members and prospective employers by creating more employment opportunities.

This rule will allow States to accept CLP and CDL applications from certain military drivers stationed in that State; to test their knowledge and skills; and to submit the results of both tests to the drivers' State of domicile for issuance of the CLP and CDL. This information can be transmitted using the same electronic system that was previously established for the skills test. The rule will not require States to use either the CSTIMS or ROOSTR. Both of these systems are currently managed by AAMVA, and States that are already using them would incur minimal costs to use them to transmit CLP/CDL test results. While some software modifications and updates may be required to allow transmission of the knowledge test results (as only skills test results are presently transmitted via these systems), FMCSA anticipates that AAMVA will update CSTIMS and ROOSTR to allow for transmission of knowledge test results during a routine IT upgrade cycle, with minimal additional cost. However, the final rule does not require use of either of these systems. States may incur costs for working out the details of application transmission between States. FMCSA expects that States will take advantage of the flexibilities allowed in the final rule, and participate when it is cost effective to do so. Additionally, the State of station can charge a processing fee to recoup the cost of providing this service.

FMCSA expects that this rule will ultimately result in a cost savings for drivers, but some of the cost savings will be offset by the additional processing fee. Based on comments received on the NPRM, FMCSA anticipates that drivers will continue to pay the CDL licensing and application fee to their State of domicile, and will pay an additional processing fee to the State of station. FMCSA estimates that the processing fee will be similar to the State CDL application fee. Many States do not publish their application fee separately, but bundle it with the license fees. The average CDL application and license fee for all 50 States and the District of Columbia is $50. However, the CDL term for States ranges from 4 to 8 years. On an annual basis, the cost of the average CDL application for all 50 States and the District of Columbia is $10. Therefore, FMCSA estimates that the one-time processing fee will range from $10 to $50 per driver, and conservatively estimates a fee of $50 for the purposes of this analysis. Both States utilizing the alternative licensing procedures allowed by this rule might charge fees, but some currently waive their normal fees for veterans or active-duty military personnel and may continue to do so. Because FMCSA cannot predict the number of military drivers who would have their additional processing fee waived by the State of Station, we have based our calculations on each military driver paying an extra fee.

To estimate how many drivers might take advantage of this provision, FMCSA started with the number of drivers who have used the military skills test waiver. Between May 2011 and February 2015, more than 10,100 skills test waivers were granted for military drivers, or an average of approximately 2,460 per year.3 For purposes of this analysis, FMCSA assumed that number would remain constant in future years. To estimate the number of drivers who may be stationed in a State other than their State of domicile and who, thus, could potentially take advantage of this provision, FMCSA used an estimate of the number of drivers who attend training outside their State of domicile from the Regulatory Evaluation conducted for the 2011 “Commercial Driver's License Testing and Commercial Learner's Permit Standards” final rule.4 According to this evaluation, approximately 25 percent of drivers obtained training outside their State of domicile. It is likely that more than 25 percent of military personnel are stationed outside their State of domicile. However, for purposes of this analysis FMCSA used the 25 percent estimate to calculate the population of drivers who may apply for a CLP/CDL outside their State of domicile. Based on these assumptions, this provision affects approximately 660 drivers each year.

FMCSA estimated the processing fee by multiplying the 660 drivers by the per-driver processing fee of $50. The 10-year costs for the additional processing fee total $330,000 undiscounted, $290,000 discounted at 3%, and $248,000 discounted at 7%.

This rule will also result in cost savings, or benefits, for drivers in the form of reduced travel costs. The rule will allow States where active-duty military personnel are stationed to accept CLP or CDL applications and administer knowledge and skills tests for those personnel. The rule will allow any such State to transmit copies of the application and test results for military personnel to the driver's State of domicile, which in turn may—but is not required to—issue a CLP or CDL on the basis of that information. Absent this rule, drivers would be required to travel to the State of domicile in order to apply for a CLP or CDL. For example, if the driver is stationed in Virginia but his/her State of domicile is Texas (and both States use the licensing alternative allowed by this rule), Texas will be able to issue the driver a CLP and CDL based on an application and successful testing conducted in Virginia. The driver would be spared the travel costs of returning to Texas in order to file an application for a CLP or CDL.

FMCSA does not have information on the States where these drivers are domiciled or stationed. To estimate the potential costs savings, FMCSA used the scenario of a driver who is stationed in Virginia but domiciled in Texas. To present an upper and lower bound estimate of the potential cost savings, FMCSA evaluated two scenarios in which the driver travels between Norfolk, Virginia, and Houston, Texas. In the first scenario, the driver takes a commercial flight. FMCSA estimates that a typical roundtrip flight between Norfolk and Houston costs approximately $700.5 In the second scenario, the driver drives a private vehicle between these locations. The current private vehicle mileage rate from the General Services Administration (GSA) is $0.575 per mile 6 and the distance between Norfolk and Houston is approximately 2,800 miles, roundtrip. FMCSA estimates that it would cost the driver approximately $1,610 to drive between Virginia and Texas for CDL testing.

To estimate the potential cost savings, FMCSA multiplied the round trip flight price by the annual affected driver population to calculate the lower-bound estimate, and multiplied the mileage cost by the annual affected driver population to calculate the upper-bound estimate. Based on the estimated participation rates, the total savings would be between $4.6 million and $10.6 million undiscounted, $4.1 million and $9.3 million discounted at 3%, $3.5 million and $8.0 million discounted at 7%. In addition, the driver might incur lodging costs and other expenses depending on the location of the testing; however, these potential cost savings were not included in this analysis.

FMCSA calculated the net benefits of this rule by subtracting the processing fee cost from the travel cost savings. As shown in Table 1, the per driver benefits range from $650 to $1,560. The total 10-year net benefits range from $3.2 million to $7.7 million, discounted at 7%.

In addition to the cost savings described above, there may be other non-quantified benefits associated with these provisions. For example, this proposal also allows military personnel to enter the job market more quickly after separation from service. This rulemaking may also increase the availability of drivers qualified to work for motor carriers, since military personnel would be able to complete their testing and licensing during their separation process. Finally, reducing unemployment for former military personnel may also reduce the amount of unemployment compensation paid by the Department of Defense to former service members.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612) requires Federal agencies to consider the effects of the regulatory action on small business and other small entities and to minimize any significant economic impact. The term “small entities” comprises small businesses and not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. Accordingly, DOT policy requires an analysis of the impact of all regulations on small entities, and mandates that agencies strive to lessen any adverse effects on these businesses.

Under the standards of the RFA, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857) (SBREFA), this rule will not impose a significant economic impact on a substantial number of small entities because the revisions would either codify an existing practice or allow States to provide more flexibility for military personnel seeking to obtain a CDL. FMCSA does not expect the changes to impose any new or increased costs on small entities. Consequently, I certify that this action will not have a significant economic impact on a substantial number of small entities.

In accordance with section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, FMCSA wants to assist small entities in understanding this final rule so that they can better evaluate its effects on themselves and participate in the rulemaking initiative. If the final rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance; please consult the FMCSA point of contact, Selden Fritschner, listed in the FOR FURTHER INFORMATION CONTACT section of this final rule.

Small businesses may send comments on the actions of Federal employees who enforce or otherwise determine compliance with Federal regulations to the Small Business Administration's Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of FMCSA, call 1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights of small entities to regulatory enforcement fairness and an explicit policy against retaliation for exercising these rights.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, taken together, or by the private sector of $155 million (which is the value of $100 million in 1995 after adjusting for inflation to 2014 levels) or more in any 1 year. Though this final rule will not result in such an expenditure, the Agency does discuss the effects of this rule elsewhere in this preamble.

This final rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for Federalism under Section 1(a) of E.O. 13132 if it has “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.” FMCSA has determined that this rule will not have substantial direct costs on or for States, nor will it limit the policymaking discretion of States. Nothing in this document preempts any State law or regulation. Therefore, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Impact Statement.

This final rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), requires agencies issuing “economically significant” rules, if the regulation also concerns an environmental health or safety risk that an agency has reason to believe may disproportionately affect children, to include an evaluation of the regulation's environmental health and safety effects on children. The Agency determined this final rule is not economically significant. Therefore, no analysis of the impacts on children is required. In any event, the Agency does not anticipate that this regulatory action could present an environmental or safety risk that could disproportionately affect children.

FMCSA reviewed this final rule in accordance with E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, and has determined it will not effect a taking of private property or otherwise have taking implications.

Section 522 of title I of division H of the Consolidated Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447, 118 Stat. 2809, 3268, 5 U.S.C. 552a note), requires the Agency to conduct a privacy impact assessment (PIA) of a regulation that will affect the privacy of individuals. This rule does not require the collection of PII.

The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies and any non-Federal agency which receives records contained in a system of records from a Federal agency for use in a matching program. All records associated with this rulemaking are State, not Federal, records.

The E-Government Act of 2002, Public Law 107-347, 208, 116 Stat. 2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct a PIA for new or substantially changed technology that collects, maintains, or disseminates information in an identifiable form. No new or substantially changed technology would collect, maintain, or disseminate information as a result of this rule. As a result, FMCSA has not conducted a privacy impact assessment.

The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this rule.

FMCSA has analyzed this final rule under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Agency has determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

This rule does not have tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) are standards that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, FMCSA did not consider the use of voluntary consensus standards.

FMCSA analyzed this rule for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and determined this action is categorically excluded from further analysis and documentation in an environmental assessment or environmental impact statement under FMCSA Order 5610.1 (69 FR 9680, March 1, 2004), Appendix 2, paragraph 6.s.(6). The Categorical Exclusion (CE) in paragraph 6.s.(6) covers a requirement for States to give knowledge and skills tests to all qualified applicants for commercial drivers' licenses which meet the Federal standard. The content in this rule is covered by this CE and the final action does not have any effect on the quality of the environment. The CE determination is available for inspection or copying in the Regulations.gov Web site listed under I. Rulemaking Documents.

FMCSA also analyzed this rule under the Clean Air Act, as amended (CAA), section 176(c) (42 U.S.C. 7401 et seq.), and implementing regulations promulgated by the Environmental Protection Agency. Approval of this action is exempt from the CAA's general conformity requirement since it does not affect direct or indirect emissions of criteria pollutants.

Under E.O. 12898, each Federal agency must identify and address, as appropriate, “disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations” in the United States, its possessions, and territories. FMCSA evaluated the environmental justice effects of this final rule in accordance with the E.O., and has determined that it has no environmental justice implications, nor is there any collective environmental impact that will result from its promulgation.

In consideration of the foregoing, FMCSA amends 49 CFR chapter III, parts 383 and 384 to read as follows: