[Federal Register Volume 88, Number 48 (Monday, March 13, 2023)]
[Rules and Regulations]
[Pages 15271-15274]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-05076]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1989
[Docket Number: OSHA-2020-0006]
RIN 1218-AD27
Procedures for the Handling of Retaliation Complaints Under the
Taxpayer First Act (TFA)
AGENCY: Occupational Safety and Health Administration, Labor.
ACTION: Final rule.
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SUMMARY: On March 7, 2022, the Occupational Safety and Health
Administration (OSHA) of the U.S. Department of Labor (Department)
issued an interim final rule (IFR) that provided procedures for the
Department's processing of complaints under the employee protection
(retaliation or whistleblower) provisions of Section 7623(d) of the
Taxpayer First Act (TFA or Act). The IFR established procedures and
time frames for the handling of retaliation complaints under
TFA, including procedures and time frames for employee complaints to
OSHA, investigations by OSHA, appeals of OSHA determinations to an
administrative law judge (ALJ) for a hearing de novo, hearings by ALJs,
review of ALJ decisions by the Administrative Review Board (ARB)
(acting on behalf of the Secretary of Labor) and judicial review of the
Secretary's final decision. It also set forth the Department's
interpretations of the TFA whistleblower provisions on certain matters.
This final rule adopts the IFR with one technical change.
DATES: This final rule is effective on March 13, 2023.
FOR FURTHER INFORMATION CONTACT: Ms. Meghan Smith, Program Analyst,
Directorate of Whistleblower Protection Programs, Occupational Safety
and Health Administration, U.S. Department of Labor; telephone (202)
693-2199 (this is not a toll-free number) or email: OSHA.DWPP@dol.gov.
This Federal Register publication is available in alternative formats.
SUPPLEMENTARY INFORMATION:
I. Background
The Taxpayer First Act (TFA or Act), Public Law 116-25, 133 Stat.
981, was enacted on July 1, 2019. Section 1405(b) of the Act, codified
at 26 U.S.C. 7623(d) and referred to throughout the interim final rule
and this final rule as the TFA ``anti-retaliation,'' ``employee
protection,'' or ``whistleblower'' provision, prohibits retaliation by
an employer, or any officer, employee, contractor, subcontractor, or
agent of such employer against an employee in the terms and conditions
of employment in reprisal for the employee having engaged in protected
activity. Protected activity under the TFA includes any lawful act done
by an employee to provide information, cause information to be
provided, or otherwise assist in an investigation regarding
underpayment of tax or conduct which the employee reasonably believes
constitutes a violation of the internal revenue laws or any provision
of Federal law relating to tax fraud. To be protected, the information
or assistance must be provided to one of the persons or entities listed
in the statute, which include the Internal Revenue Service (IRS), the
Secretary of the Treasury, the Treasury Inspector General for Tax
Administration, the Comptroller General of the United States, the
Department of Justice, the United States Congress, a person with
supervisory authority over the employee, or any other person working
for the employer who has the authority to investigate, discover, or
terminate misconduct. The Act also protects employees from retaliation
in reprisal for any lawful act done to testify, participate in, or
otherwise assist in any administrative or judicial action taken by the
IRS relating to an alleged underpayment of tax or any violation of the
internal revenue laws or any provision of Federal law relating to tax
fraud. The interim final rules established procedures for the handling
of retaliation complaints under the Act, which OSHA is finalizing with
one technical correction in this final rule.
II. Interim Final Rule, Comments Received and OSHA's Response
On March 7, 2022, OSHA published in the Federal Register an IFR
establishing procedures for the handling of whistleblower retaliation
complaints under the TFA. 81 FR 13976. The IFR also requested public
comments. The prescribed comment period closed on May 6, 2022. OSHA
received two comments responsive to the IFR.
The first commenter, a private citizen, stated their opinion that
the proposed regulation was ``totally outside the purview of OSHA and
Safety and Health concerns,'' and that ``OSHA and other government
agencies'' are ``unconstitutional.'' OSHA disagrees with this comment.
The TFA rule is a procedural and interpretative rule that implements a
statutory provision lawfully enacted by Congress in which Congress
assigned to the Secretary of Labor the responsibility to receive and
adjudicate TFA retaliation complaints. The Secretary of Labor in turn
assigned to OSHA the responsibility to administer the whistleblower
program with respect to TFA retaliation complaints. See Sec'y's Order
No. 8-2020 (May 15, 2020), 85 FR 58,393, 2020 WL 5578580 (Sept. 18,
2020). In OSHA's experience, promulgating procedural and interpretative
rules governing the more than twenty whistleblower protection statutes
that OSHA administers aids the public in understanding the procedures
applicable to whistleblower cases and the standards that will apply to
adjudication of such cases. As such, OSHA is making no revisions to the
TFA rule in response to this comment.
The second commenter, the United Brotherhood of Carpenters and
Joiners of America, expressed support for the rule and recommended
adding ``making referrals to immigration authorities'' in the list of
prohibited conduct outlined in 29 CFR 1989.102(a). OSHA agrees with the
commenter that referring a worker to immigration authorities in
retaliation for the worker's complaint about the employer's tax law
violation would violate the TFA anti-retaliation provision. OSHA has
reaffirmed this view in recent public guidance regarding retaliation in
violation of the whistleblower protection laws it administers. See,
e.g., OSHA Whistleblower Protection Program Fact Sheet (August 2022),
available at https://www.osha.gov/sites/default/files/publications/OSHA3638.pdf (``Retaliation can involve several types of actions, such
as . . . [r]eporting the employee to the police or immigration
authorities''), Whistleblower Investigations Manual, p. 29 (April 29,
2022), available at https://www.osha.gov/sites/default/files/enforcement/directives/CPL_02-03-011.pdf (noting adverse action can
include ``[r]eporting or threatening to report an employee to the
police or immigration authorities''). However, because the list of
prohibited conduct in 29 CFR 1989.102(a) is not exhaustive, OSHA
believes that the language in the IFR is expansive enough to encompass
retaliatory referrals to immigration authorities.
Additionally, OSHA has drafted the regulatory text of 29 CFR
1989.102 to be consistent with its rules governing other OSHA-enforced
whistleblower statutes to the extent possible under the applicable
statutory language. See, e.g., 29 CFR 1987.102 (listing examples of
retaliatory conduct prohibited under the FDA Food Safety Modernization
Act whistleblower provision); 29 CFR 1980.102 (listing examples of
retaliatory conduct prohibited under the Sarbanes-Oxley Act
whistleblower provision). OSHA's rules implementing other whistleblower
statutes do not include the suggested language and adding the language
in this rule could lead to confusion regarding whether this conduct is
prohibited under the other whistleblower-protection statutes.
Accordingly, OSHA is making no revisions to the TFA rule in response to
this comment.
III. Discussion of Change
This final rule corrects one section of the Code of Federal
Regulations, 29 CFR 1989.110(a), to harmonize the final rule with 29
CFR part 26. Under that part, pro se litigants do not have to
electronically file petitions with the ARB, or show ``good cause'' to
file by mail or some other non-electronic method. Therefore, OSHA is
revising 29 CFR 1989.110(a) to be consistent with 29 CFR part 26.
Accordingly, this rule modifies the IFR published on March 7, 2022. In
all other respects, this rule adopts as final, without change, the IFR
published on March 7, 2022.
IV. Paperwork Reduction Act
This rule contains a reporting provision (filing a retaliation
complaint, Sec. 1989.103) which was previously reviewed as a statutory
requirement of TFA and approved for use by the Office of Management and
Budget (OMB), as part of the Information Collection Request (ICR)
assigned OMB control number 1218-0236 under the provisions of the
Paperwork Reduction Act of 1995 (PRA). See Public Law 104-13, 109 Stat.
163 (1995). A non-material change has been submitted to OMB to include
the regulatory citation.
V. Administrative Procedure Act
The notice and comment rulemaking procedures of Sec. 553 of the
Administrative Procedure Act (APA) do not apply ``to interpretative
rules, general statements of policy, or rules of agency organization,
procedure, or practice.'' 5 U.S.C. 553(b)(A). This is a rule of agency
procedure, practice, and interpretation within the meaning of that
section. Therefore, publication in the Federal Register of a notice of
proposed rulemaking and request for comments was not required for this
rulemaking. Although this is a procedural and interpretative rule not
subject to the notice and comment procedures of the APA, OSHA provided
persons interested in the IFR 60 days to submit comments and considered
the two comments pertinent to the IFR that it received in deciding to
finalize the procedures in the IFR.
Furthermore, because this rule is procedural and interpretative
rather than substantive, the normal requirement of 5 U.S.C. 553(d) that
a rule be effective 30 days after publication in the Federal Register
is inapplicable. OSHA also finds good cause to provide an immediate
effective date for this final rule, which makes one technical change
and otherwise simply finalizes without change the procedures that have
been in place since publication of the IFR. It is in the public
interest that the rule be effective immediately so that parties know
with the certainty afforded by a final rule what procedures are
applicable to pending cases.
VI. Executive Orders 12866, and 13563; Unfunded Mandates Reform Act of
1995; Executive Order 13132
The Office of Information and Regulatory Affairs has concluded that
this rule is not a ``significant regulatory action'' within the meaning
of Executive Order 12866, reaffirmed by Executive Order 13563, because
it is not likely to: (1) have an annual effect on the economy of $100
million or more or adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or Tribal
governments or communities; (2) create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
Executive Order 12866. Therefore, no economic impact analysis under
Sec. 6(a)(3)(C) of Executive Order 12866 has been prepared.
Also, because this rule is not significant under Executive Order
12866, and because no notice of proposed rulemaking has been published,
no statement is required under section 202 of the Unfunded Mandates
Reform Act of 1995, 2 U.S.C. 1532. In any event, this rulemaking is
procedural and interpretative in nature and is thus not expected to
have a significant economic impact. Finally, this rule does not have
``federalism implications.'' The rule does not have ``substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government[,]'' and
therefore, is not subject to Executive Order 13132 (Federalism).
VII. Regulatory Flexibility Analysis
The notice and comment rulemaking procedures of section 553 of the
APA do not apply ``to interpretative rules, general statements of
policy, or rules of agency organization, procedure, or practice.'' 5
U.S.C. 553(b)(A). Rules that are exempt from APA notice and comment
requirements are also exempt from the Regulatory Flexibility Act (RFA).
See Small Business Administration Office of Advocacy, A Guide for
Government Agencies: How to Comply with the Regulatory Flexibility Act,
at 9; also found at https://www.sba.gov/advocacy/guide-government-agencies-how-comply-regulatory-flexibility-act. This is a rule of
agency procedure, practice, and interpretation within the meaning of 5
U.S.C. 553; and, therefore, the rule is exempt from both the notice and
comment rulemaking procedures of the APA and the requirements under the
RFA. Nonetheless, OSHA, in the IFR, provided interested persons 60 days
to comment on the procedures applicable to retaliation complaints under
TFA and considered the two comments pertinent to the IFR that it
received in deciding to finalize the procedures in the IFR.
List of Subjects in 29 CFR Part 1989
Administrative practice and procedure, Employment, Taxation,
Whistleblower.
Authority and Signature
This document was prepared under the direction and control of
Douglas L. Parker, Assistant Secretary of Labor for Occupational Safety
and Health.
Signed at Washington, DC, on February 27, 2023.
Douglas L. Parker,
Assistant Secretary of Labor for Occupational Safety and Health.
For the reasons set forth in the preamble, the Department of Labor
amends 29 CFR part 1989, which was published as an interim final rule
at 87 FR 12575 on March 7, 2022, as follows:
PART 1989--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS
UNDER THE TAXPAYER FIRST ACT (TFA)
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1. The authority citation for part 1989 continues to read as follows:
Authority: 26 U.S.C. 7623(d); Secretary of Labor's Order 08-
2020 (May 15, 2020), 85 FR 58393 (September 18, 2020); Secretary of
Labor's Order 01-2020 (Feb. 21, 2020), 85 FR 13024-01 (Mar. 6,
2020).
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2. Amend Sec. 1989.110 by revising paragraph (a) to read as follows:
Sec. 1989.110 Decisions and orders of the Administrative Review
Board.
(a) Any party desiring to seek review, including judicial review,
of a decision of the ALJ, or a respondent alleging that the complaint
was frivolous or brought in bad faith who seeks an award of attorney
fees, must file a written petition for review with the ARB, which has
been delegated the authority to act for the Secretary and issue
decisions under this part subject to the Secretary's discretionary
review. The parties should identify in their petitions for review the
legal conclusions or orders to which they object, or the objections may
be deemed waived. A petition must be filed within 30 days of the date
of the decision of the ALJ. All petitions and documents submitted to
the ARB must be filed in accordance with 29 CFR part 26. The date of
the postmark, facsimile transmittal, or electronic transmittal will be
considered to be the date of filing; if the petition is filed in
person, by hand delivery, or other means, the petition is considered
filed upon receipt. The petition must be served on
all parties and on the Chief Administrative Law Judge at the time it is
filed with the ARB. The petition for review must also be served on the
Assistant Secretary and on the Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of Labor. OSHA and the Associate
Solicitor for Fair Labor Standards may specify the means, including
electronic means, for service of petitions for review on them under
this section.
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[FR Doc. 2023-05076 Filed 3-10-23; 8:45 am]
BILLING CODE 4510-26-P
