[Federal Register Volume 75, Number 244 (Tuesday, December 21, 2010)]
[Rules and Regulations]
[Pages 79956-79960]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32017]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 53

[USCG-2009-0239]
RIN 1625-AB33


Protection for Whistleblowers in the Coast Guard

AGENCY: Coast Guard, DHS.

ACTION: Direct final rule; request for comments.

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SUMMARY: By this direct final rule, the Coast Guard is amending its 
``Coast Guard Whistleblower Protection'' regulations to conform to 
statutory protections for all members of the Armed Forces. The revised 
regulations broaden the protection already afforded uniformed members 
of the Coast Guard by: Providing that uniformed Coast Guard members may 
make protected communications to other persons and organizations in 
additiPn to Members of Congress or an Inspector General, and expanding 
the subject matter of protected communications to include information 
that the member reasonably believes constitutes evidence of sexual 
harassment and discrimination, among other subjects. Additionally, 
changes to the regulations update the responsibilities of the Inspector 
General of the Department of Homeland Security to conform to relevant 
statutory provisions.

DATES: This rule is effective April 20, 2011, unless an adverse comment 
or notice of intent to submit an adverse comment is either submitted to 
our online docket via http://www.regulations.gov on or before February 
22, 2011, or reaches the Docket Management Facility by that date. If an 
adverse comment or notice of intent to submit an adverse comment is 
received by February 22, 2011, we will withdraw this direct final rule 
and publish a timely notice of withdrawal in the Federal Register.

ADDRESSES: You may submit comments identified by docket number USCG-
2009-0239 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: 202-493-2251.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue SE., Washington, DC 20590-0001.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, e-
mail or call Commander Michael Cavallaro, U.S. Coast Guard Office of 
General Law, telephone 202-372-3777, e-mail 
[email protected]. If you have questions on viewing or 
submitting material to the docket, call Renee V. Wright, Program 
Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation and Request for Comments
    A. Submitting Comments
    B. Viewing Comments and Documents
    C. Privacy Act
    D. Public Meeting
II. Abbreviations
III. Regulatory Information
IV. Background
V. Discussion of the Rule
VI. Regulatory Analysis
    A. Regulatory Planning and Review
    B. Small Entities
    C. Collection of Information
    D. Federalism
    E. Unfunded Mandates Reform Act
    F. Taking of Private Property
    G. Civil Justice Reform
    H. Protection of Children
    I. Indian Tribal Governments
    J. Energy Effects
    K. Technical Standards
    L. Environment

I. Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted, 
without change, to http://www.regulations.gov and will include any 
personal information you have provided.

A. Submitting Comments

    If you submit comments, please include the docket number for this 
rulemaking (USCG-2009-0239), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online, or by fax, mail or hand delivery, but please use only one of 
these means. We recommend that you include your name and a mailing 
address, an e-mail address, or a phone number in the body of your 
document so that we can contact you if we have questions regarding your 
submission.
    To submit your comment online, go to http://www.regulations.gov, 
and type ``USCG-2009-0239'' in the ``Keyword'' box. If you submit your 
comments by mail or hand delivery, submit them in an unbound format, no 
larger than 8\1/2\ by 11 inches, suitable for copying and electronic 
filing. If you submit them by mail and would like to know that they 
reached the Facility, please enclose a stamped, self-addressed postcard 
or envelope. We will consider all comments and material received during 
the comment period.

B. Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov, 
click on the ``read comments'' box, which will then become highlighted 
in blue. In the ``Keyword'' box type ``USCG-2009-0239'' and click 
``Search.'' Click the ``Open Docket Folder'' in the ``Actions'' column. 
If you do not have access to the internet, you may also view the docket 
online by visiting the Docket Management Facility in Room W12-140 on 
the ground floor of the Department of Transportation West Building, 
1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. We have an 
agreement with the Department of Transportation to use the Docket 
Management Facility.

C. Privacy Act

    Anyone can search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008 issue of the 
Federal Register (73 FR 3316).

D. Public Meeting

    We do not now plan to hold a public meeting for this rulemaking. 
But you may submit a request for one to the docket using one of the 
methods specified under ADDRESSES. In your

[[Page 79957]]

request, explain why you believe a public meeting would be beneficial. 
If we determine that one would aid this rulemaking, we will hold one at 
a time and place announced by a later notice in the Federal Register.

II. Abbreviations

DHS Department of Homeland Security
NEPA National Environmental Policy Act of 1969
NPRM Notice of Proposed Rulemaking
NTTAA National Technology Transfer and Advancement Act

III. Regulatory Information

    We are publishing this direct final rule under 33 CFR 1.05-55 
because we consider this rule to be noncontroversial and we do not 
expect adverse comments regarding this rulemaking. If no adverse 
comment or notice of intent to submit an adverse comment is received by 
February 22, 2011, this rule will become effective as stated in the 
DATES section. In that case, approximately 30 days before the effective 
date, we will publish a document in the Federal Register stating that 
no adverse comment was received and confirming that this rule will 
become effective as scheduled. However, if we receive an adverse 
comment or notice of intent to submit an adverse comment, we will 
publish a notice in the Federal Register announcing the withdrawal of 
all or part of this direct final rule. If an adverse comment applies 
only to part of this rule (e.g., to an amendment, a paragraph, or a 
section) and it is possible to remove that part without defeating the 
purpose of this rule, we may adopt, as final, those parts of this rule 
on which no adverse comment was received. We will withdraw the part of 
this rule that was the subject of an adverse comment. If we decide to 
proceed with a rulemaking following receipt of an adverse comment, we 
will publish a separate notice of proposed rulemaking (NPRM) and 
provide a new opportunity for comment.
    A comment is considered ``adverse'' if the comment explains why 
this rule or a part of this rule would be inappropriate, including a 
challenge to its underlying premise or approach, or would be 
ineffective or unacceptable without a change.

IV. Background

    Section 1034 of Title 10 of the United States Code protects 
communications made by members of the Armed Forces to Members of 
Congress, Inspectors General, and certain other persons and 
organizations. It prohibits any person from taking, withholding, or 
threatening any personnel action against a member of the Armed Forces 
as reprisal for making or preparing any protected communications. 
Uniformed members of the Coast Guard are members of the Armed Forces 
and are covered by section 1034. See 10 U.S.C. 101(a)(4) (defining 
``Armed Forces'' to mean ``the Army, Navy, Air Force, Marine Corps, and 
Coast Guard''). Section 1034 covers allegations and disclosures of 
sexual harassment and unlawful discrimination, and gives specific 
procedural rights to a complainant alleging reprisal for making a 
protected communication. Amending 33 CFR part 53 is necessary to 
conform Coast Guard regulations to 10 U.S.C. 1034.

V. Discussion of the Rule

    The Coast Guard is amending paragraph (a) of section 53.1, Purpose, 
to expand the list of organizations and persons to whom protected 
communications may be made. The existing language limits protection to 
communications made to a Member of Congress or an Inspector General. 
Under amended paragraph (a), protected communications may also be made 
to ``a member of a Department of Defense or Department of Homeland 
Security audit, inspection, investigation, or law enforcement 
organization (e.g., the Coast Guard Investigative Service); any person 
or organization in the chain of command; and any other person or 
organization designated pursuant to regulations or other established 
administrative procedures for such communications.'' Through this 
amendment to paragraph (a), the Coast Guard is designating the Coast 
Guard Investigative Service as an organization to which a uniformed 
member of the Coast Guard may make a protected communication. The Coast 
Guard Investigative Service is a Federal investigative and protective 
program established to carry out the Coast Guard's internal and 
external criminal investigations; to assist in providing personal 
security services; to protect the welfare of Coast Guard personnel; to 
aid in preserving the internal integrity of the Coast Guard; and to 
support Coast Guard missions worldwide.
    The Coast Guard is amending section 53.5 to revise and add several 
definitions, including adding a definition of ``Protected 
Communication,'' which defines the communications covered by 33 CFR 
part 53. A ``Protected Communication'' is (1) any lawful communication 
to a Member of Congress or an Inspector General; or (2) a communication 
in which a member of the Coast Guard communicates information that the 
member reasonably believes evidences a violation of law or regulation 
(including sexual harassment or unlawful discrimination), gross 
mismanagement, a gross waste of funds, an abuse of authority, or a 
substantial and specific danger to public health or safety, when such 
communication is made to any of the following: A Member of Congress, an 
Inspector General, or a member of a Department of Defense or Department 
of Homeland Security audit, inspection, investigation, or law 
enforcement organization (e.g., the Coast Guard Investigative Service); 
any person or organization in the chain of command; and any other 
person or organization designated pursuant to regulations or other 
established administrative procedures to receive such communications. 
The Coast Guard is also adding a definition for ``Chain of Command,'' 
which tracks a similar definition used by the Department of Defense in 
implementing 10 U.S.C. 1034.\1\
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    \1\ See Department of Defense Directive 7050.06, ``Military 
Whistleblower Protection,'' Enclosure 2, section E2.3 (July 23, 
2007).
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    The definition for ``Inspector General'' is revised to include any 
other Inspector General appointed under the Inspector General Act of 
1978, in addition to the Inspector General in the Office of the 
Inspector General of the Department of Homeland Security. The revised 
definition of ``Reprisal'' now uses the defined term ``protected 
communications.'' The Coast Guard is also removing the definition of 
``Law Specialist'' and replacing it with a definition for ``Judge 
Advocate,'' which reflects a nomenclature change within the Coast Guard 
legal program. A similar nomenclature change is made in section 
53.9(c)(2): the parenthetical phrase ``(who may also be serving as the 
Judge Advocate General of the Coast Guard)'' is added after the term 
``Chief Counsel.''
    The Coast Guard is amending 33 CFR part 53 to utilize these new and 
revised definitions and to make conforming changes throughout part 53. 
Sections 53.7 and 53.11 are amended to incorporate the new and revised 
definitions, and section 53.11 is revised to update the contact 
information for the DHS Office of the Inspector General. Sections 53.9 
and 53.11 are amended to ensure that part 53 consistently covers 
allegations of personnel action that was taken, withheld, or threatened 
in reprisal by making consistent use of the terms ``taken, withheld, or 
threatened.'' Section 53.9 is also amended to consistently indicate 
that the ``Secretary'' referred to is the ``Secretary of the Department 
of Homeland Security.'' Finally, section 53.11(b) is

[[Page 79958]]

amended by adding the words ``name(s) of the'' before the words 
``individual(s) believed to be responsible'' to clarify what 
information is required to be included in the complaint to identify the 
individual or individuals believed to be responsible for the alleged 
reprisal.
    In 33 CFR 53.9, the Coast Guard is revising slightly the 
responsibilities of the Inspector General to conform to those 
responsibilities as set forth in 10 U.S.C. 1034. In paragraphs (a)(1) 
and (2), the Inspector General now must determine whether there is 
sufficient evidence to warrant an investigation before initiating an 
investigation of the alleged reprisal. See 10 U.S.C. 1034(c)(3)(A). 
Such an investigation is necessary only if there was no prior 
investigation or if the prior investigation was biased or inadequate. 
See 10 U.S.C. 1034(d). In paragraph (a)(2), the word ``reasonably'' is 
inserted to show that information that a Coast Guard member presents as 
evidence of a reprisal need only be information that the member 
``reasonably believes'' evidences wrongdoing. See 10 U.S.C. 1034(c)(2). 
Additionally, the last sentence of paragraph (a)(2), which states ``The 
Inspector General is not required to make such an investigation if the 
information that the Coast Guard member reasonably believes evidences 
wrongdoing relates to actions that took place during combat,'' is 
removed because similar language was removed from section 1034. See 
Pub. L. 103-337, 531(c)(2) (replacing 10 U.S.C. 1043(c)(4)).
    The time period in which the Inspector General must complete the 
investigation is revised from ``90 days'' to ``180 days'' in 33 CFR 
53.9(a)(3) and (a)(5) to align with the statute's requirements. See 10 
U.S.C. 1034(e)(3). The Coast Guard is also eliminating the requirement 
of a final interview of the member alleging reprisal by removing 
paragraph (a)(7) because a similar requirement was removed from 10 
U.S.C. 1034.
    Additionally, in section 53.9, the following text is being added to 
paragraph (a)(4) to clarify what information will be made available to 
an individual pursuant to a Freedom of Information Act request: 
``However, the copy need not contain summaries of interviews conducted, 
nor any document acquired, during the course of the investigation. Such 
items shall be transmitted to the member, if the member requests the 
items, with the copy of the report or after the transmittal to the 
member of the copy of the report, regardless of whether the request for 
those items is made before or after the copy of the report is 
transmitted to the member.'' See 10 U.S.C. 1034(e)(2).

VI. Regulatory Analysis

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analysis 
based on 12 of these statutes or executive orders.

A. Regulatory Planning and Review

    This rule is a significant regulatory action under section 3(f) of 
Executive Order 12866, Regulatory Planning and Review. The Office of 
Management and Budget has reviewed it under that Order. It requires an 
assessment of potential costs and benefits under section 6(a)(3) of 
that Order. However, we believe that a full regulatory analysis is 
unnecessary because this rule only affects uniformed members of the 
Coast Guard and DHS personnel and has no economic impact on U.S. 
industry or the general public.
    This rule will benefit the Coast Guard. Because the rule provides 
protection for uniformed Coast Guard members from retaliation by 
supervisors or any other member of the Coast Guard, the Coast Guard may 
now receive information from Coast Guard members on potential breaches 
of government policies and regulations that they would not otherwise 
have received. This will ensure that uniformed Coast Guard members 
receive the same protections Congress affords other uniformed members 
of the Armed Forces.

B. Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule would have a significant economic impact 
on a substantial number of small entities. The term ``small entities'' 
comprises small businesses, 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.
    This rule provides protection for uniformed Coast Guard members 
from retaliation and addresses responsibilities of the DHS Inspector 
General. Because this rule only affects uniformed Coast Guard members 
and DHS personnel, it is unlikely to have any effect on small 
businesses.
    Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that 
this rule will not have a significant economic impact on a substantial 
number of small entities.

C. Collection of Information

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

D. Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this rule under 
that Order and have determined that it does not have implications for 
federalism.

E. Unfunded Mandates Reform Act

    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, in 
the aggregate, or by the private sector of $100,000,000 (adjusted for 
inflation) or more in any one year. Although this rule will not result 
in such an expenditure, we do discuss the effects of this rule 
elsewhere in this preamble.

F. Taking of Private Property

    This rule will not effect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

G. Civil Justice Reform

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

H. Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This rule 
is not an economically significant rule and will not create an 
environmental risk to health or risk to safety that might 
disproportionately affect children.

I. Indian Tribal Governments

    This rule does not have tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it would 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

[[Page 79959]]

responsibilities between the Federal Government and Indian tribes.

J. Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order. Although it is a ``significant 
regulatory action'' under Executive Order 12866, it is not 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 as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

K. Technical Standards

    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 the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

L. Environment

    We have analyzed this rule under Department of Homeland Security 
Directive 023-01 and Commandant Instruction M16475.lD, which guide the 
Coast Guard in complying with the National Environmental Policy Act of 
1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that this action 
is one of a category of actions which do not individually or 
cumulatively have a significant effect on the human environment. This 
rule is categorically excluded under section 2.B.2, Figure 2-1, 
paragraph 34(b), of the Instruction. Paragraph 34(b) covers 
promulgation of regulations concerning internal agency function or 
organization or personnel administration. This rule only affects 
uniformed Coast Guard members and DHS personnel and provides protection 
from retaliation, and as such concerns internal agency operations. An 
environmental analysis checklist and a categorical exclusion 
determination are available in the docket where indicated under the 
``Public Participation and Request for Comments'' section of this 
preamble.

List of Subjects in 33 CFR Part 53

    Administrative practice and procedure, Investigations, Military 
personnel, Whistleblowing.

0
For the reasons discussed in the preamble, the Coast Guard amends 33 
CFR part 53 as follows:

PART 53--COAST GUARD WHISTLEBLOWER PROTECTION

0
1. The authority citation for part 53 continues to read as follows:

    Authority: 10 U.S.C. 1034, Pub. L. 100-456, 102 Stat. 1918; Pub. 
L. 101-225, 103 Stat. 1908; Pub. L. 107-296, 116 Stat. 2135.


0
2. In Sec.  53.1, revise paragraph (a) to read as follows:


Sec.  53.1  Purpose.

* * * * *
    (a) Establishes policy and implements section 1034 of title 10 of 
the United States Code to provide protection against reprisal to 
members of the Coast Guard for making a protected communication to a 
Member of Congress; an Inspector General; a member of a Department of 
Defense or Department of Homeland Security audit, inspection, 
investigation, or law enforcement organization (e.g., the Coast Guard 
Investigative Service); any person or organization in the chain of 
command; and any other person or organization designated pursuant to 
regulations or other established administrative procedures for such 
communications.
* * * * *

0
3. Amend Sec.  53.5 as follows:
0
a. Remove the definition for ``Law Specialist''; and
0
b. Revise the definitions for ``Inspector General'' and ``Reprisal'' 
and add the definitions for ``Chain of Command'', ``Judge Advocate'', 
and ``Protected Communications'' in alphabetical order to read as 
follows:


Sec.  53.5  Definitions.

* * * * *
    Chain of Command. The succession of commanding officers from a 
superior to a subordinate through which command is exercised; and the 
succession of officers, enlisted members, or civilian personnel through 
whom administrative control is exercised, including supervision and 
rating of performance.
* * * * *
    Inspector General. The Inspector General in the Office of Inspector 
General of the Department of Homeland Security, or any other Inspector 
General, as appointed under the Inspector General Act of 1978.
    Judge Advocate. A commissioned officer of the Coast Guard 
designated for the special duty of law.
* * * * *
    Protected Communication. Any lawful communication to a Member of 
Congress or an Inspector General; or a communication in which a member 
of the Coast Guard communicates information that the member reasonably 
believes evidences a violation of law or regulation (including sexual 
harassment or discrimination), gross mismanagement, a gross waste of 
funds or other resources, an abuse of authority, or a substantial and 
specific danger to public health or safety, when such communication is 
made to any of the following: A Member of Congress; an Inspector 
General; a member of a Department of Defense or Department of Homeland 
Security audit, inspection, investigation, or law enforcement 
organization (e.g., the Coast Guard Investigative Service); any person 
or organization in the chain of command; and any other person or 
organization designated pursuant to regulations or other established 
administrative procedures to receive such communications.
    Reprisal. Taking or threatening to take an unfavorable personnel 
action, or withholding or threatening to withhold a favorable personnel 
action, against a member of the Coast Guard for making or preparing to 
make a protected communication.
* * * * *

0
4. In Sec.  53.7, revise paragraphs (b) and (c) to read as follows:


Sec.  53.7  Requirements.

* * * * *
    (b) A member of the Coast Guard shall be free from reprisal for 
making or preparing to make a protected communication.
    (c) Any employee or member of the Coast Guard who has the authority 
to take, direct others to take, or recommend or approve any personnel 
action shall not, under such authority, take, withhold, threaten to 
take, or threaten to withhold a personnel action regarding any member 
of the Coast Guard in reprisal for making or preparing to make a 
protected communication.

[[Page 79960]]


0
5. Amend Sec.  53.9 as follows:
0
a. Remove paragraph (a)(7); and
0
b. Revise paragraphs (a)(1) through (a)(5), (b)(1), (c) introductory 
text, (c)(1) and (2), (e), and (f) to read as follows:


Sec.  53.9  Responsibilities.

    (a) * * *
    (1) Expeditiously determine whether there is sufficient evidence to 
warrant an investigation of an allegation that a personnel action has 
been taken, withheld, or threatened in reprisal for making or preparing 
to make a protected communication. No investigation is required when 
such allegation is submitted more than 60 days after the Coast Guard 
member became aware of the personnel action that is the subject of the 
allegation.
    (2) If such investigation is warranted, initiate a separate 
investigation of the information the Coast Guard member reasonably 
believes evidences wrongdoing if a prior investigation has not already 
been initiated, or if the prior investigation was biased or inadequate.
    (3) Complete the investigation of the allegation of reprisal and 
issue a report not later than 180 days after receipt of the allegation, 
which shall include a thorough review of the facts and circumstances 
relevant to the allegation, the relevant documents acquired during the 
investigation, and summaries of interviews conducted. The Inspector 
General may forward a recommendation as to the disposition of the 
complaint.
    (4) Submit a copy of the investigation report to the Secretary of 
the Department of Homeland Security and to the Coast Guard member 
making the allegation not later than 30 days after the completion of 
the investigation. In the copy of the report transmitted to the member, 
the Inspector General shall ensure the maximum disclosure of 
information possible, with the exception of information that is not 
required to be disclosed under 5 U.S.C. 552. However, the copy 
transmitted to the member need not contain summaries of interviews 
conducted, nor any document acquired, during the course of the 
investigation. Such items shall be transmitted to the member, if the 
member requests the items, with the copy of the report or after the 
transmittal to the member of the copy of the report, regardless of 
whether the request for those items is made before or after the copy of 
the report is transmitted to the member.
    (5) If a determination is made that the report cannot be issued 
within 180 days of receipt of the allegation, notify the Secretary and 
the Coast Guard member making the allegation of the reasons why the 
report will not be submitted within that time, and state when the 
report will be submitted.
* * * * *
    (b) * * *
    (1) Consider under 10 U.S.C. 1552 and 33 CFR part 52 an application 
for the correction of records made by a Coast Guard member who has 
filed a timely complaint with the Inspector General alleging that a 
personnel action was taken in reprisal for making or preparing to make 
a protected communication. This may include oral argument, examining 
and cross-examining witnesses, taking depositions, and conducting an 
evidentiary hearing at the Board's discretion.
* * * * *
    (c) If the Board elects to hold an administrative hearing, the 
Coast Guard member may be represented by a Judge Advocate if:
    (1) The Inspector General, in the report of the investigation, 
finds there is probable cause to believe that a personnel action was 
taken, withheld, or threatened in reprisal for the Coast Guard member 
making or preparing to make a protected communication;
    (2) The Chief Counsel of the Coast Guard (who may also be serving 
as the Judge Advocate General of the Coast Guard) determines that the 
case is unusually complex or otherwise requires the assistance of a 
Judge Advocate to ensure proper presentation of the legal issues in the 
case; and
* * * * *
    (e) If the Board determines that a personnel action was taken, 
withheld, or threatened as a reprisal for a Coast Guard member making 
or preparing to make a protected communication, the Board may forward 
its recommendation to the Secretary of the Department of Homeland 
Security for appropriate administrative or disciplinary action against 
the individual or individuals found to have taken, withheld, or 
threatened a personnel action as a reprisal, and direct any appropriate 
correction of the member's records.
    (f) The Board shall notify the Inspector General of the Board's 
decision concerning an application for the correction of military 
records of a Coast Guard member who alleged reprisal for making or 
preparing to make a protected communication, and of any recommendation 
to the Secretary of the Department of Homeland Security for appropriate 
administrative or disciplinary action against the individual or 
individuals found to have taken, withheld, or threatened a personnel 
action as a reprisal.
* * * * *

0
6. In Sec.  53.11, revise paragraphs (a), (b), and (c) to read as 
follows:


Sec.  53.11  Procedures.

    (a) Any member of the Coast Guard who reasonably believes a 
personnel action was taken, withheld, or threatened in reprisal for 
making or preparing to make a protected communication may file a 
complaint with the Department of Homeland Security Inspector General 
Hotline at 1-800-323-8603. Such a complaint may be filed: By letter 
addressed to the Department of Homeland Security, Office of Inspector 
General, Hotline, Washington, DC 20528; By faxing the complaint to 202-
254-4292; or by e-mailing [email protected].
    (b) The complaint should include the name, address, and telephone 
number of the complainant; the name and location of the activity where 
the alleged violation occurred; the personnel action taken, withheld, 
or threatened that is alleged to be motivated by reprisal; the name(s) 
of the individual(s) believed to be responsible for the personnel 
action; the date when the alleged reprisal occurred; and any 
information that suggests or evidences a connection between the 
protected communication and reprisal. The complaint should also include 
a description of the protected communication, including a copy of any 
written communication and a brief summary of any oral communication 
showing the date of communication, the subject matter, and the name of 
the person or official to whom the communication was made.
    (c) A member of the Coast Guard who alleges reprisal for making or 
preparing to make a protected communication may submit an application 
for the correction of military records to the Board, in accordance with 
regulations governing the Board. See 33 CFR part 52.
* * * * *

    Dated: December 15, 2010.
Robert J. Papp, Jr.,
Admiral, U.S. Coast Guard Commandant.
[FR Doc. 2010-32017 Filed 12-20-10; 8:45 am]
BILLING CODE 9110-04-P