49472 Federal Register / Vol. 86, No. 169 / Friday, September 3, 2021 / Rules and Regulations 

The Amendment 

Accordingly, under the authority 

delegated to me by the Administrator, 

the FAA amends 14 CFR part 39 as 

follows: 

PART 39—AIRWORTHINESS 

DIRECTIVES 

■ 1. The authority citation for part 39 

continues to read as follows: 

Authority: 49 U.S.C. 106(g), 40113, 44701. 

§ 39.13 [Amended] 

■ 2. The FAA amends § 39.13 by adding 

the following new airworthiness 

directive: 

2021–18–07 Leonardo S.p.a.: Amendment 

39–21708; Docket No. FAA–2021–0718; 

Project Identifier MCAI–2020–00601–R. 

(a) Effective Date 

This airworthiness directive (AD) is 

effective September 20, 2021. 

(b) Affected ADs 

None. 

(c) Applicability 

This AD applies to Leonardo S.p.a. Model 

AB412 and AB412 EP helicopters, 

certificated in any category, with a high skid 

landing gear assembly part number (P/N) 

412–050–012–(XXX), 412–050–014–(XXX), 

412–050–050–(XXX), or 412–050–059– 

(XXX), where ‘‘(XXX)’’ represents any 3-digit 

combination, installed. 

(d) Subject 

Joint Aircraft Service Component (JASC) 

Code: 3200, Landing Gear System. 

(e) Unsafe Condition 

This AD was prompted by the results of a 

fatigue review. The FAA is issuing this AD 

to prevent parts from remaining in service 

beyond their fatigue life. The unsafe 

condition, if not addressed, could result in 

failure of a part and subsequent damage to 

the helicopter and injuries to occupants. 

(f) Compliance 

Comply with this AD within the 

compliance times specified, unless already 

done. 

(g) Required Actions 

For high landing gear aft crosstube P/Ns 

412–050–010–101, 412–050–010–107, 412– 

050–010–111, and 412–050–045–107: 

(1) Before further flight after the effective 

date of this AD, determine the total number 

of landings. For purposes of this AD, a 

landing is counted anytime a helicopter lifts 

off into the air and then lands again 

regardless of the duration of the landing and 

regardless of whether the engine is 

shutdown. If the total number of landings 

cannot be determined, multiply the total 

hours time-in-service accumulated by the 

high landing gear aft crosstube by 4. Remove 

any high landing gear aft crosstube from 

service that has accumulated or exceeded 

10,000 total landings. 

(2) Create a component history card or 

equivalent record to establish a life limit of 

10,000 total landings. 

(3) Thereafter, remove any high landing 

gear aft crosstube from service before 

accumulating 10,000 total landings. 

(h) Alternative Methods of Compliance 

(AMOCs) 

(1) The Manager, International Validation 

Branch, FAA, has the authority to approve 

AMOCs for this AD, if requested using the 

procedures found in 14 CFR 39.19. In 

accordance with 14 CFR 39.19, send your 

request to your principal inspector or local 

Flight Standards District Office, as 

appropriate. If sending information directly 

to the manager of the International Validation 

Branch, send it to the attention of the person 

identified in paragraph (i)(1) of this AD. 

Information may be emailed to: 9-AVS-AIR730-AMOC@faa.gov. 

(2) Before using any approved AMOC, 

notify your appropriate principal inspector, 

or lacking a principal inspector, the manager 

of the local flight standards district office/ 

certificate holding district office. 

(i) Related Information 

(1) For more information about this AD, 

contact Kenneth Cook, Airframe/Structural/ 

Mechanical Engineer, Certification Section, 

Fort Worth ACO Branch, FAA, 10101 

Hillwood Pkwy., Fort Worth, TX 76177; 

telephone (817) 222–5475; email 

kenneth.a.cook@faa.gov. 

(2) The subject of this AD is addressed in 

European Aviation Safety Agency (now 

European Union Aviation Safety Agency) 

(EASA) AD 2017–0097, dated June 7, 2017. 

You may view the EASA AD at https://

www.regulations.gov in Docket No. FAA– 

2021–0718. 

(j) Material Incorporated by Reference 

None. 

Issued on August 24, 2021. 

Gaetano A. Sciortino, 

Deputy Director for Strategic Initiatives, 

Compliance & Airworthiness Division, 

Aircraft Certification Service. 

[FR Doc. 2021–19032 Filed 9–2–21; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF LABOR 

Occupational Safety and Health 

Administration 

29 CFR Part 1977 

[Docket Number: OSHA–2021–0002] 

RIN 1218–AD35 

Discrimination Against Employees 

Exercising Rights Under the WilliamsSteiger Occupational Safety and Health 

Act of 1970 

AGENCY: Occupational Safety and Health 

Administration, Labor. 

ACTION: Final interpretive rule. 

SUMMARY: The Occupational Safety and 

Health Administration (OSHA) is 

amending one of the rules interpreting 

the anti-retaliation provision of the 

Occupational Safety and Health Act of 

1970 (OSH Act or Act) to clarify that the 

test for showing a nexus between 

protected activity and adverse action is 

‘‘but-for’’ causation. 

DATES: This final interpretive rule is 

effective on September 3, 2021. 

FOR FURTHER INFORMATION CONTACT: Rob 

Swick, Directorate of Whistleblower 

Protection Programs, Occupational 

Safety and Health Administration, U.S. 

Department of Labor; telephone: (202) 

693–2199; email: OSHA.DWPP@dol.gov. 

SUPPLEMENTARY INFORMATION: OSHA is 

revising the interpretive rule at 29 CFR 

1977.6(b), which addresses causation 

under the anti-retaliation (colloquially 

‘‘whistleblower’’) provision of the OSH 

Act, section 11(c), 29 U.S.C. 660(c). For 

the reasons explained in the following 

sections, the agency is removing 

outdated language to clarify that the 

only means by which the Secretary of 

Labor (Secretary) may prove a causal 

connection between protected activity 

and adverse action under the OSH Act 

is to show that ‘‘but for’’ the protected 

activity the employee would not have 

suffered the adverse action. 

I. Background 

Congress enacted the OSH Act, to 

assure so far as possible every working 

man and woman in the Nation safe and 

healthful working conditions and to 

preserve our human resources. 29 U.S.C. 

651(b). To achieve this goal, Congress 

authorized the Secretary, among other 

things, to set and enforce occupational 

safety and health standards. The 

Secretary’s assigned enforcement 

powers, including the power to inspect 

workplaces and issue citations and 

notifications of proposed penalties to 

employers who violate the standards 

developed under the OSH Act, have 

been delegated to OSHA. 29 U.S.C. 

657(a), 658, 666; Secretary of Labor’s 

Order No. 08–2020 (85 FR 58393, 

September 18, 2020). 

In addition, the Act affords employees 

and their representatives certain rights. 

For example, section 8(f)(1) of the Act 

provides employees and representatives 

of employees who believe that a 

violation of a safety or health standard 

that threatens physical harm exists or 

that an imminent danger exists with the 

right to request an inspection by giving 

notice to the Secretary or his authorized 

representative of such violation or 

danger. 29 U.S.C. 657(f)(1). Such 

employee complaints aid the agency in 

accomplishing the goal of assuring safe 


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Federal Register / Vol. 86, No. 169 / Friday, September 3, 2021 / Rules and Regulations 49473 

and healthful working conditions by 

alerting the agency to potential hazards 

that may not have been otherwise 

discovered and, thus, allowing those 

hazards to be corrected. 

Congress also included an antiretaliation (colloquially 

‘‘whistleblower’’) provision in the Act to 

protect individual employees from 

retaliation for reporting safety 

deficiencies or participating in OSH Act 

proceedings. 29 U.S.C. 660(c)(1). This 

provision, which is included in section 

11(c)(1), provides that no person may 

discharge or otherwise discriminate—in 

other words, take an adverse action— 

against any employee ‘‘because’’ such 

employee has filed any complaint or 

instituted or caused to be instituted any 

proceeding under or related to the Act, 

or has testified or was about to testify 

in any such proceeding, or because of 

the exercise by such employee on behalf 

of himself or herself or others of any 

right afforded by the Act. 29 U.S.C. 

660(c)(1). 

Section 11(c)(2) contains the remedies 

for any such retaliation. Specifically, 

section 11(c)(2) provides that if an 

employee believes that they have been 

discharged, or otherwise discriminated 

against, in violation of section 11(c)(1), 

such an employee may file a complaint 

with the Secretary. 29 U.S.C. 660(c)(2). 

The Secretary, upon receipt of such a 

complaint, ‘‘shall cause such 

investigation to be made as he deems 

appropriate,’’ and if upon investigation, 

the Secretary determines that section 

11(c) has been violated, the Secretary 

shall bring suit in district court against 

any person who discharges or 

discriminates against any employee for 

the exercise of protected rights under 

the OSH Act. 29 U.S.C. 660(c)(2). 

Section 11(c)(2) also provides district 

courts with jurisdiction over such 

actions and empowers them for cause 

shown to ‘‘order all appropriate relief, 

including rehiring or reinstatement of 

the employee to his or her former 

position with back pay.’’ 29 U.S.C. 

660(c)(2). 

In 1973, OSHA issued rules 

implementing and interpreting section 

11(c). 38 FR 2681 (Jan. 29, 1973). The 

rules were published in 29 CFR part 

1977. Their purpose was to make 

available in one place interpretations of 

section 11(c) which guide the Secretary 

in carrying out the provision unless and 

until otherwise directed by authoritative 

decisions of the courts, or concluding, 

upon reexamination of an 

interpretation, that it is incorrect. 29 

CFR 1977.2. 

As noted above, section 11(c) protects 

employees from retaliation, i.e., adverse 

action, for engaging in certain 

delineated activities. See 29 CFR 1977.3 

(listing activities protected by section 

11(c)). Those activities are known as 

‘‘protected activities.’’ However, as 

discussed in 29 CFR 1977.6(a), adverse 

actions taken by an employer may be 

predicated upon ‘‘nondiscriminatory 

grounds’’ and such actions would not 

necessarily violate section 11(c). Or, put 

another way, section 11(c) of the OSH 

Act does not prohibit an employer from 

discharging or disciplining an employee 

for engaging in ‘‘unprotected activities,’’ 

i.e., discharge or discipline for 

‘‘legitimate reasons’’ or ‘‘non-prohibited 

considerations.’’ See 29 CFR 1977.6(a). 

Section 1977.6(b) recognizes that an 

employer’s adverse action against an 

employee may have more than one 

cause. For example, an employer’s 

termination of an employee may be 

motivated in part by the employee’s 

complaint about an unsafe workplace 

condition and in part by the employee’s 

poor work performance. As stated in 

section 1977.6(b), an employer’s mixed 

motivation for an adverse action does 

not necessarily invalidate an employee’s 

section 11(c) complaint. See 29 CFR 

1977.6(b) (‘‘[T]o establish a violation of 

section 11(c), [a]n employee’s 

engagement in protected activity need 

not be the sole consideration behind 

discharge or other adverse action.’’). 

Section 1977.6(b) provided two ways 

in which a causal connection between 

protected activity and adverse action 

could be established: (1) If protected 

activity was a substantial reason for the 

adverse action; or (2) if the adverse 

action would not have taken place ‘‘but 

for’’ engagement in protected activity. In 

support of this two-pronged test, the 

regulation cited two court of appeals 

decisions finding violations of the 

whistleblower provision of the Fair 

Labor Standards Act, 29 U.S.C. 

215(a)(3), prohibiting discharge or other 

discrimination against an employee 

‘‘because’’ such employee has filed a 

complaint under or related to that 

statute or engaged in related protected 

activities. Mitchell v. Goodyear Tire & 

Rubber Co., 278 F.2d 562, 565 (8th Cir. 

1960) (employee would not have been 

fired ‘‘but for’’ his complaint to the 

Wage-Hour Division); Goldberg v. Bama 

Mfg. Corp., 302 F.2d 152 (5th Cir. 1962). 

Since the issuance of the section 11(c) 

interpretive rules in 1973, the test under 

other statutes for determining whether 

an adverse action occurred ‘‘because of’’ 

a protected activity, i.e., the causation 

test, has gone through a number of 

changes. In 2009, the Supreme Court 

considered the causation test under the 

Age Discrimination in Employment Act 

(ADEA), which makes it unlawful for an 

employer to take adverse action against 

an employee ‘‘because of such 

individual’s age.’’ 29 U.S.C. 623(a); 

Gross v. FBL Financial Services, Inc., 

557 U.S. 167 (2009). In so doing, the 

Court explained that the ordinary 

meaning of the ADEA’s requirement that 

an employer took adverse action 

‘‘because of’’ age is that age was the 

‘‘reason’’ that the employer decided to 

act. Therefore, the Court held that to 

establish a disparate treatment claim 

under the plain language of the ADEA, 

the plaintiff had to prove that age was 

the ‘‘but for’’ cause of the employer’s 

adverse action; the burden of persuasion 

does not shift to the employer to show 

that it would have taken the same action 

regardless of age. Gross, 557 U.S. at 

175–77, 180. 

The Gross decision was followed in 

Univ. of Tex. Sw. Med. Ctr. v. Nassar, 

570 U.S. 338 (2013). In that case, the 

Supreme Court interpreted the antiretaliation provision of Title VII, which 

bans discrimination against an 

employee ‘‘because’’ he or she has 

opposed any practice made unlawful by 

Title VII or engaged in related activities. 

In the decision, the Court relied first on 

the default rule in tort law which 

applies absent contrary statutory 

language, i.e., that a plaintiff must show 

that but for the defendant’s conduct the 

harm would not have occurred. Nassar, 

570 U.S. at 348, 350. The Court then 

reiterated what it had held in Gross— 

that the ordinary meaning of the word 

‘‘because of’’ means that the plaintiff 

must prove but-for causation. Id. at 350. 

It emphasized that although Gross 

concerned an interpretation of the 

ADEA, it had some persuasive force 

because of its textual basis and the 

concern in both cases with the meaning 

of the word ‘‘because.’’ Id. at 351. 

Therefore, the Court held that because 

there was no meaningful difference 

between the text in the ADEA and that 

in the Title VII anti-retaliation 

provision, the proper conclusion, as in 

Gross, is that the Title VII antiretaliation provision requires a showing 

of but-for causation. Id. at 352. 

The Supreme Court has continued to 

apply the ‘‘but for’’ formulation as the 

proper test for causation for a variety of 

statutes in which causation is an 

element. For example, most recently, in 

Bostock v. Clay County, Georgia, 140 S 

Ct. 1731, 1739 (2020), the Supreme 

Court held that the phrase ‘‘because of’’ 

means but-for causation and then 

offered more direction on the meaning 

of the but-for causation standard. The 

dispute in Bostock arose under Title VII 

of the Civil Rights Act of 1964, which 

makes it unlawful for an employer to 

fail or refuse to hire or to discharge any 

individual, or otherwise to discriminate 


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49474 Federal Register / Vol. 86, No. 169 / Friday, September 3, 2021 / Rules and Regulations 

1The WIM outlines procedures, and other 

information relative to the handling of retaliation 

complaints under the various whistleblower 

statutes delegated to OSHA. 

against any individual, ‘‘because of’’ 

such individual’s race, color, religion, 

sex, or national origin. 42 U.S.C. 2000e– 

2(a)(1). Citing Nassar, the Supreme 

Court reiterated that Title VII’s ‘‘because 

of’’ test incorporates the ‘‘simple’’ and 

‘‘traditional’’ standard of but-for 

causation. Bostock, 140 S Ct. at 1738. 

The Court explained that but-for 

causation is established whenever a 

particular outcome would not have 

happened ‘‘but for’’ the purported 

cause. Id. at 1739 (citing Gross, 557 U.S. 

at 176). Put another way, the Court 

added, the but-for causation test 

‘‘directs us to change one thing at a time 

and see if the outcome changes. If it 

does, we have found a but-for cause.’’ 

Id. at 1739. Importantly, the Court made 

clear that events often have multiple 

but-for causes. Id. The but-for causation 

test does not require that the prohibited 

factor be the sole or primary reason for 

the adverse action. Id. 

Federal courts of appeals have 

followed Nassar and Gross in applying 

the but-for causation test under other 

statutes using the word ‘‘because.’’ See, 

e.g., Lestage v. Coloplast Corp., 982 F.3d 

37, 46 (1st Cir. 2020) (joining the Third, 

Fourth, Fifth, and Eleventh Circuit 

Courts of Appeals in holding that the 

False Claims Act’s prohibition against 

discriminating against an employee 

‘‘because of’’ that employee’s protected 

conduct is a but-for standard); Natofsky 

v. City of New York, 921 F.3d 337, 347– 

50, 348 (2d Cir. 2019), cert. denied, 140 

S Ct. 2668 (2020) (holding that the 

Rehabilitation Act incorporates by 

reference the Americans with 

Disabilities Act’s (ADA) ‘‘but-for’’ 

causation standard; ‘‘Gross and Nassar 

dictate our decision here.’’); Acosta v. 

Brain, 910 F.3d 502, 514 (9th Cir. 2018) 

(assuming, without deciding, that the 

but-for causation standard applies to 

cases under section 510 of the Employee 

Retirement Income Security Act, which 

uses the word ‘‘because’’). 

As noted above, section 11(c)(1) of the 

OSH Act provides that ‘‘[n]o person 

shall discharge or in any manner 

discriminate against any employee 

because such employee has’’ engaged in 

certain protected activities. 29 U.S.C. 

660(c)(1). After the Nassar decision, 

OSHA recognized that the correct 

causation standard under this provision 

would be ‘‘but-for.’’ Therefore, OSHA 

included the but-for causation standard 

in the 2016 revision to the 

Whistleblower Investigations Manual 

(WIM).1 See https://

www.whistleblowers.gov/manual. 

Specifically, the agency revised the WIM 

to require that in a section 11(c) case 

OSHA must have reasonable cause to 

believe that the employer would not 

have carried out the adverse action ‘‘but 

for’’ the protected activity (Chapter 3 

par. V.B.i.). 

Similarly, OSHA included the but-for 

causation standard in the 2018 OSHA 

Fact Sheet, Filing Whistleblower 

Complaints under Section 11(c) of the 

OSH Act of 1970. See https://

www.osha.gov/Publications/ 

OSHA3812.pdf. The Fact Sheet states 

that a person taking adverse action 

against an employee may be found to 

have violated section 11(c) if the 

employee would not have experienced 

the adverse action ‘‘but for’’ protected 

activity. OSHA’s Investigator’s Desk Aid 

to the Occupational Safety and Health 

Act (OSH Act) Whistleblower Provision, 

issued in 2019, also states that the 

Secretary has the burden of proving butfor causation in a section 11(c) case. See 

https://www.osha.gov/sites/default/ 

files/11cDeskAid.pdf. 

Discussion of Update to 29 CFR 

1977.6(b) 

This final interpretive rule updates 

OSHA’s 1973 section 11(c) interpretive 

rule at 29 CFR 1977.6(b) to bring it in 

line with the Supreme Court’s holdings 

in Gross, Nassar, and Bostock. Prior to 

this rule, the provision had not yet been 

updated to reflect the newer causation 

test compelled by the Supreme Court; 

until the revision in this rule, the 

interpretive rule stated in part that if 

protected activity was merely a 

‘‘substantial reason’’ for the adverse 

action, section 11(c) has been violated. 

That interpretation is not in alignment 

with Gross, Nassar, and Bostock, and it 

is inconsistent with OSHA’s policy 

documents stating (on the basis of 

Nassar) that but-for causation must be 

shown to prove a section 11(c) violation. 

To bring the interpretive rule in line 

with Supreme Court precedent and 

OSHA’s current interpretation, the 

agency is revising § 1977.6(b) in three 

ways. First, and most importantly, this 

rule revises the second sentence of the 

provision by removing the ‘‘substantial 

reason’’ language. As explained above, 

that sentence previously provided two 

ways in which a causal connection 

between protected activity and adverse 

action could be established in mixed 

motive cases: (1) If protected activity 

was a substantial reason for the adverse 

action; or (2) if the adverse action would 

not have taken place ‘‘but for’’ 

engagement in protected activity. By 

removing the ‘‘substantial reason’’ 

option, OSHA is clarifying that to 

prevail in a section 11(c) case the 

Secretary must show that but for the 

protected activity the employee would 

not have suffered the adverse action. 

Second, this rule deletes the citations 

to the two cases that appeared after the 

previous second sentence (Mitchell v. 

Goodyear Tire & Rubber Co., 278 F.2d 

562, 565 (8th Cir. 1960) and Goldberg v. 

Bama Mfg. Corp., 302 F.2d 152 (5th Cir. 

1962)) and the parenthetical 

accompanying the reference to Mitchell 

and replaces those cases with citations 

to Bostock (Bostock v. Clay County, 

Georgia, U.S., 140 S Ct. 1731, 1739 

(2020)) and Nassar (Univ. of Tex. Sw. 

Med. Ctr. v. Nassar, 570 U.S. 338 

(2013)). Deleting the references to the 

older cases should reduce the chance of 

any confusion about the appropriate 

causation standard. In addition, the 

updated citations should help 

employers and other stakeholders easily 

access information about the relevant 

causation standard should they wish to 

know more. 

Third, this rule amends the first 

sentence of § 1977.6(b) by adding the 

words ‘‘or primary’’ before the word 

‘‘consideration.’’ Prior to this change, 

that sentence stated: ‘‘At the same time, 

to establish a violation of section 11(c), 

the employee’s engagement in protected 

activity need not be the sole 

consideration behind discharge or other 

adverse action.’’ Adding ‘‘or primary’’ 

further emphasizes the Supreme Court’s 

holdings and reflects the language in 

Bostock that the protected factor need 

not be the primary reason for the 

adverse action. See Bostock, 140 S Ct. at 

1739. 

In addition, OSHA is making one 

clarifying change to the last sentence of 

29 CFR 1977.6(b), which is unrelated to 

the issues regarding the but-for 

causation standard. The previous 

version of that sentence stated that the 

issue as to whether a ‘‘discharge’’ was 

because of protected activity will have 

to be determined on the basis of the 

facts in the particular case. This rule 

revises that sentence to add the words 

‘‘or other adverse action’’ to reflect the 

full scope of section 11(c)’s prohibition 

against retaliation. 

OSHA notes that these changes do not 

affect the interpretation in 29 CFR 

1977.6(b) that the employee’s 

engagement in protected activity need 

not be the sole consideration for the 

adverse action in order for a violation of 

section 11(c) to be established. That 

language is consistent with Bostock. See 

140 S Ct. at 1739. Likewise, this revision 

does not affect any of the whistleblower 

provisions of other statutes enforced by 

OSHA that have special language on the 


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2OSHA 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. 42121(b)(2)(B)(iii) 

and (iv). 

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. 553(b)(A). 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. 553(d) 

that a rule be effective 30 days after 

publication in the Federal Register is 

inapplicable. 

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. 

667(c)(2). One of the mandatory criteria 

for ‘‘at least as effective’’ enforcement is 

a provision, similar to section 11(c), 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 1902.4(c)(2)(v) and 

1956.11(c)(2)(v). This provision must be 

enforced at least as effectively as 

Federal OSHA enforces section 11(c). 29 

CFR 1902.3(d) (provisions of a State 

Plan must be enforced as effectively as 

Federal OSHA enforces analogous 

provisions); 29 CFR 1956.10(d) (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 employee’s protected 

activity and the discharge or other 

adverse action needed to establish a 

violation of section 11(c) of the OSH 

Act. This revised interpretive rule 

(interpreting the word ‘‘because’’ in 

section 11(c) to mean ‘‘but for’’ 

causation) is narrower than OSHA’s 

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 State’s 

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 

OSH Act (29 U.S.C. 655). Therefore, 

pursuant to section 18 of the OSH Act 

(29 U.S.C. 667(a)), 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 

3(f)(4) 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 President’s 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 421(f) of the UMRA 

(2 U.S.C. 658(5)). 

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 at 5 U.S.C. 553 

are also exempt from the Regulatory 

Flexibility Act (RFA) (see 5 U.S.C. 

604(a); 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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49476 Federal Register / Vol. 86, No. 169 / Friday, September 3, 2021 / Rules and Regulations 

the APA and the requirements of the 

RFA. 

List of Subjects in 29 CFR Part 1977 

Administrative practice and 

procedure, Employment, Investigations, 

Safety, Whistleblowing. 

Authority and Signature 

James S. Frederick, Acting Assistant 

Secretary for Occupational Safety and 

Health, authorized the preparation of 

this document under the authority 

granted by Secretary’s Order 08–2020 

(May 15, 2020). 

Signed at Washington, DC. 

James S. Frederick, 

Acting Assistant Secretary for Occupational 

Safety and Health. 

For the reasons stated in the 

preamble, OSHA amends part 1977 of 

chapter XVII of title 29 as follows: 

PART 1977—[AMENDED] 

■ 1. Revise the authority citation for part 

1977 to read as follows: 

Authority: 29 U.S.C. 657, 660; 5 U.S.C. 

553; and Secretary of Labor’s Order No. 08– 

2020 (85 FR 58393), 9–83 (48 FR 35736), or 

12–71 (36 FR 8754), as applicable. 

■ 2. In § 1977.6, revise paragraph (b) to 

read as follows: 

§ 1977.6 Unprotected activities 

distinguished. 

* * * * * 

(b) At the same time, to establish a 

violation of section 11(c), the 

employee’s engagement in protected 

activity need not be the sole or primary 

consideration behind discharge or other 

adverse action. If the discharge or other 

adverse action would not have taken 

place ‘‘but for’’ engagement in protected 

activity, section 11(c) has been violated. 

See Bostock v. Clay County, Ga., 140 S 

Ct. 1731, 1739 (2020); Univ. of Tex. Sw. 

Med. Ctr. v. Nassar, 570 U.S. 338 (2013). 

Ultimately, the issue as to whether a 

discharge or other adverse action was 

because of protected activity will have 

to be determined on the basis of the 

facts in the particular case. 

[FR Doc. 2021–19071 Filed 9–2–21; 8:45 am] 

BILLING CODE 4510–26–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 100 

[Docket Number USCG–2021–0505] 

RIN 1625–AA08 

Special Local Regulation; Chesapeake 

Bay, Between Sandy Point and Kent 

Island, MD 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard is 

establishing a temporary special local 

regulation for certain waters of the 

Chesapeake Bay. This action is 

necessary to provide for the safety of life 

on these navigable waters located 

between Sandy Point, Anne Arundel 

County, MD, and Kent Island, Queen 

Anne’s County, MD, during a paddling 

event on September 26, 2021. This 

regulation prohibits persons and vessels 

from entering the regulated area unless 

authorized by the Captain of the Port 

Maryland-National Capital Region or the 

Coast Guard Event Patrol Commander. 

DATES: This rule is effective from 7 a.m. 

to 1 p.m. on September 26, 2021. 

ADDRESSES: To view documents 

mentioned in this preamble as being 

available in the docket, go to https://

www.regulations.gov, type USCG–2021– 

0505 in the ‘‘SEARCH’’ box and click 

‘‘SEARCH.’’ Next, in the Document 

Type column, select ‘‘Supporting & 

Related Material.’’ 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, call or 

email Mr. Ron Houck, U.S. Coast Guard 

Sector Maryland-National Capital 

Region; telephone 410–576–2674, email 

D05-DG-SectorMD-NCR-MarineEvents@

uscg.mil. 

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations 

CFR Code of Federal Regulations 

COTP Captain of the Port 

DHS Department of Homeland Security 

FR Federal Register 

NPRM Notice of proposed rulemaking 

PATCOM Patrol Commander 

§ Section 

U.S.C. United States Code 

II. Background Information and 

Regulatory History 

ABC Events, Inc. of Arnold, MD, 

notified the Coast Guard that from 8 

a.m. to noon on September 26, 2021, it 

will be conducting the Bay Bridge 

Paddle on the Chesapeake Bay, under 

and between the north and south 

bridges that consist of the William P. 

Lane, Jr. (US–50/301) Memorial Bridges, 

located between Sandy Point, Anne 

Arundel County, MD and Kent Island, 

Queen Anne’s County, MD. In response, 

on July 15, 2021, the Coast Guard 

published a notice of proposed 

rulemaking (NPRM) titled ‘‘Special 

Local Regulation; Chesapeake Bay, 

Between Sandy Point and Kent Island, 

MD’’ (86 FR 37270). There we stated 

why we issued the NPRM, and invited 

comments on our proposed regulatory 

action related to this paddle racing 

event. During the comment period that 

ended August 16, 2021, we received no 

comments. 

Under 5 U.S.C. 553(d)(3), the Coast 

Guard finds that good cause exists for 

making this rule effective less than 30 

days after publication in the Federal 

Register. Due to the date of the event, 

it would be impracticable to make the 

regulation effective 30 days after 

publication in the Federal Register. 

Delaying the effective date date of this 

rule would be impracticable and 

contrary to the public interest because 

immediate action is needed to respond 

to the potential safety hazards 

associated with the ‘‘Bay Bridge Paddle’’ 

event. 

III. Legal Authority and Need for Rule 

The Coast Guard is issuing this rule 

under authority in 46 U.S.C. 70041. The 

Captain of the Port Maryland-National 

Capital Region (COTP) has determined 

that potential hazards associated with 

the paddle races will be a safety concern 

for anyone intending to participate in 

this event or for vessels that operate 

within specified waters of the 

Chesapeake Bay between Sandy Point 

and Kent Island, MD. These hazards 

include numerous event participants 

crossing designated navigation channels 

and interfering with vessels operating 

within those channels, as well as 

operating within approaches to the 

Sandy Point State Park public boat 

launch facility and marina. The purpose 

of this rule is to protect event 

participants, non-participants and 

transiting vessels before, during, and 

after the scheduled event. 

IV. Discussion of Comments, Changes, 

and the Rule 

As noted above, we received no 

comments on our NPRM published July 

15, 2021. There are no changes in the 

regulatory text of this rule from the 

proposed rule in the NPRM. 

This rule establishes special local 

regulations from 7 a.m. to 1 p.m. on 

September 26, 2021. The regulated area 

will cover all navigable waters of the 

Chesapeake Bay, adjacent to the 


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