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Federal Register / Vol. 86, No. 169 / Friday, September 3, 2021 / Rules and Regulations proof of causation in clarifying the word because. 2
II. Paperwork Reduction Act This rule does not require any collection of information within the meaning of the Paperwork Reduction Act 44 U.S.C. 3501 et seq..
III. Administrative Procedure Act The notice and comment rulemaking procedures of 5 U.S.C. 553, a provision 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. 553bA. This rule is an interpretive rule compelled by Supreme Court case law. Therefore, publication in the Federal Register of a notice of proposed rulemaking and request for comments was not required.
Furthermore, because this rule is interpretive, rather than substantive, the normal requirement of 5 U.S.C. 553d that a rule be effective 30 days after publication in the Federal Register is inapplicable.

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IV. State Plans Pursuant to section 18 of the Act, 29
U.S.C. 667, a State may assume responsibility for the promulgation and enforcement of occupational safety and health standards relating to any issue with respect to which a Federal standard has been promulgated if OSHA
approves a plan submitted by the State.
To be approved, the State Plan must provide for standards, and the enforcement of those standards, which are at least as effective as Federal OSHA
standards and enforcement. 29 U.S.C.
667c2. One of the mandatory criteria for at least as effective enforcement is a provision, similar to section 11c, for necessary and appropriate protection to an employee against discharge or discrimination because the employee has filed a complaint, testified, or otherwise acted to exercise rights under the Act for himself or herself or others.
29 CFR 1902.4c2v and 1956.11c2v. This provision must be enforced at least as effectively as Federal OSHA enforces section 11c. 29
CFR 1902.3d provisions of a State 2 OSHA enforces other whistleblower provisions under which a violation is proved if it has been shown by a preponderance of the evidence that protected activity was a contributing factor in the adverse action, but relief may not be ordered if the respondent demonstrates by clear and convincing evidence that the adverse action would have been taken in the absence of the protected activity. An example of one of these provisions is the whistleblower provision of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century AIR21. The specific language on causation is set forth at 49 U.S.C. 42121b2Biii and iv.

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Plan must be enforced as effectively as Federal OSHA enforces analogous provisions; 29 CFR 1956.10d similar provision for State Plans which cover only State and local government employees.
OSHA is revising the interpretive rule regarding the causal connection between an employees protected activity and the discharge or other adverse action needed to establish a violation of section 11c of the OSH
Act. This revised interpretive rule interpreting the word because in section 11c to mean but for causation is narrower than OSHAs prior interpretive rule which merely required that the protected activity be a substantial reason for the adverse action. A State Plan, acting under State law, is not obligated to follow the causation test adopted by the United States Supreme Court in interpreting Federal statutes. Thus, a State Plan would not be required to adopt this change in order to remain at least as effective as Federal OSHA. The States test for establishing causation under the occupational safety and health antiretaliation provision must not be less effective than the Federal but for causation test that this rule establishes.
Thus, the State Plan test cannot further narrow the causation requirement beyond but for causation.
Of the 28 States and territories with OSHA-approved State Plans, 22 cover State and local government, as well as private-sector, employees: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming.
The remaining five states and one territory cover only State and local government employees: Connecticut, Illinois, Maine, New Jersey, New York, and the Virgin Islands.
V. Federalism The agency reviewed this rule in accordance with the most recent Executive order on Federalism, Executive Order 13132, which requires that Federal agencies, to the extent possible, refrain from limiting State policy options, consult with States before taking actions that would restrict States policy options, and take such actions only when clear constitutional authority exists and the problem is of national scope 64 FR 43255. The final rule involves an interpretive regulation issued under sections 8 and 11 of the OSH Act 29 U.S.C. 657, 660 and not an occupational safety and health standard issued under section 6 of the
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OSH Act 29 U.S.C. 655. Therefore, pursuant to section 18 of the OSH Act 29 U.S.C. 667a, the rule does not preempt state law. The effect of the final rule on State Plans is discussed in section IV, State Plans.
VI. Executive Orders 12866 and 13563;
Unfunded Mandates Reform Act of 1995
The Department has concluded that this rule is not a significant regulatory action within the meaning of section 3f4 of Executive Order 12866, as 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 Presidents priorities, or the principles set forth in Executive Order 12866. Therefore, no regulatory impact analysis has been prepared.
OSHA has also determined that this interpretive rule will not impose costs of more than $100 million per year and is not a significant regulatory action within the meaning of section 202 of the Unfunded Mandates Reform Act of 1995
UMRA, 2 U.S.C. 1532 and does not meet the definition of a Federal intergovernmental mandate within the meaning of section 421f of the UMRA
2 U.S.C. 6585.
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. 553bA. Rules that are exempt from APA notice and comment requirements at 5 U.S.C. 553
are also exempt from the Regulatory Flexibility Act RFA see 5 U.S.C.
604a; 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-agencieshow-comply-regulatory-flexibility-act.
This is a rule of agency interpretation within the meaning of 5 U.S.C. 553 and therefore is exempt from both the notice and comment rulemaking procedures of
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