[Federal Register Volume 87, Number 190 (Monday, October 3, 2022)]
[Rules and Regulations]
[Pages 59671-59674]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-21341]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 998

[Docket No. 220927-0201]
RIN 0648-BL23


Protected Communications; Prohibition of Retaliatory Personnel 
Actions

AGENCY: Office of Marine and Aviation Operations (OMAO), National 
Oceanic and Atmospheric Administration (NOAA), U.S. Department of 
Commerce.

ACTION: Final rule.

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SUMMARY: On December 23, 2020, the President signed into law the 
National Oceanic and Atmospheric Administration Commissioned Officer 
Corps Amendments Act of 2020, which applies the Military Whistleblower 
Protection Act to officers of the National Oceanic and Atmospheric 
Administration Commissioned Officer Corps (NOAA Corps). This final rule 
provides regulations pursuant to Section 207 of the National Oceanic 
and Atmospheric Administration Commissioned Officer Corps Amendments 
Act of 2020 and applies the Military Whistleblower Protection Act to 
the NOAA Corps to align Department of Commerce policy and procedure 
with this law.

DATES: This rule is effective November 2, 2022.

FOR FURTHER INFORMATION CONTACT: LCDR Zachary Cress, NOAA Corps, OMAO 
Strategic Management Division, (301) 713-1045.

SUPPLEMENTARY INFORMATION: 

Background

    As members of a uniformed service, NOAA Corps officers are not 
covered under the Whistleblower Protection Act (5 U.S.C. 2302). 
Furthermore, prior to the enactment of the National Oceanic and 
Atmospheric Administration Commissioned Officer Corps Amendments Act of 
2020 (Pub. L. 116-259, ``the NCAA''), NOAA Corps officers were also not 
covered by the Military Whistleblower Protection Act (10 U.S.C. 1034), 
leaving them without statutory protection for whistleblowing 
activities.

Protected Communications; Prohibition of Retaliatory Personnel Actions

    Section 207 of the NCAA applies the Military Whistleblower 
Protection Act to the NOAA Corps and authorizes the Secretary of 
Commerce to prescribe regulations to carry out the application of that 
law, including by prescribing such administrative procedures for 
investigation and appeal within the NOAA Corps as the Secretary 
considers appropriate. The Military Whistleblower Protection Act 
prohibits taking or threatening to take an unfavorable personnel 
action, or withholding or threatening to withhold a favorable personnel 
action, in reprisal against a member of the Armed Forces for protected 
communications. Protected communications are lawful communications to a 
Member of Congress, an Inspector General, any person or organization in 
the member's chain of command, and any other person or organization 
authorized to receive such protected communications. By contrast, a 
communication is unlawful, and is therefore not a protected 
communication, where it is prohibited by statute or regulation, 
including information that is classified, a trade secret, or commercial 
in nature, or information concerning a personal privacy interest. The 
Military Whistleblower Protection Act also permits the correction of 
military records when a prohibited personnel action is taken.
    NOAA Corps officers generally have a duty to report information 
evidencing 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. This final rule protects 
lawful disclosures of such information, and implements the Military 
Whistleblower Protection Act for the NOAA Corps pursuant to Section 207 
of the NCAA, prohibiting any NOAA Corps officer or employee of the 
Department of Commerce from taking or threatening to take a personnel 
action, or withholding or threatening to withhold a personnel action 
against a NOAA Corps officer for making or preparing or being perceived 
as making or preparing a protected communication.

[[Page 59672]]

    This final rule prescribes responsibilities of the Inspector 
General of the Department of Commerce to investigate claims of reprisal 
against NOAA Corps officers and to report those findings to the 
Secretary, the Administrator, the NOAA Deputy Under Secretary for 
Operations, the Director, and to the NOAA Corps officer or former NOAA 
Corps officer making the allegation. Based on the Inspector General's 
report, the Director or Deputy Under Secretary for Operations, as 
appropriate, are required to take appropriate administrative 
disciplinary action against the individual or individuals found to have 
taken, withheld, or threatened a personnel action as reprisal.
    This final rule prescribes procedures by which a NOAA Corps officer 
or former NOAA Corps officer who has filed a complaint investigated by 
the Inspector General alleging reprisal may request that the Director 
convene a Records Examination Board to determine whether information 
contained in a NOAA Corps officer's personnel files should be corrected 
and to make recommendations to the Director concerning corrections, 
deletions, or additions to the NOAA Corps officer or former NOAA Corps 
officer's personnel records. Under these procedures, the Director must 
then issue a decision concerning the correction of the NOAA Corps 
officer's or former NOAA Corps officer's records within 60 days and 
notify the Inspector General of their decision. If the NOAA Corps 
officer or former NOAA Corps officer disagrees with the Director's 
decision on a Records Examination Board's recommendations, the officer 
may request an additional level of review by the Deputy Under Secretary 
for Operations, whose decision constitutes the final agency action.

Classification

    Pursuant to 5 U.S.C. 553(a)(2), the provisions of the 
Administrative Procedure Act (APA) requiring notice of proposed 
rulemaking and the opportunity for public participation are 
inapplicable to this final rule because this rule falls within the 
agency management and personnel exception as it strictly regulates NOAA 
Corps personnel, addresses internal agency management, and affects only 
persons outside the agency through protecting certain communications to 
specified members of the public.
    This rule has been determined to be not significant for purposes of 
Executive Order 12866.
    Because this regulation is exempt from the notice and comment 
provisions of the APA, the requirements of the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.) do not apply. Accordingly, no Regulatory 
Flexibility Analysis is required and none has been prepared.
    This rule does not have any collection of information requirements 
under the Paperwork Reduction Act.

List of Subjects in 15 CFR Part 998

    Administrative practice and procedure, Government employees, 
Military personnel, Whistleblowing.

    Dated: September 27, 2022.
Richard W. Spinrad,
Under Secretary of Commerce for Oceans and Atmosphere and NOAA 
Administrator.
    For the reasons set out in the preamble, 15 CFR part 998 is amended 
as follows:

PART 998--NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION 
COMMISSIONED OFFICER CORPS

0
1. Add an authority citation for part 998 to read as follows:

    Authority: 33 U.S.C. 3001 et seq.


0
2. Add subpart D to read as follows:
Subpart D--National Oceanic and Atmospheric Administration Commissioned 
Officer Corps Whistleblower Protections
Sec.
998.40 Purpose.
998.41 Applicability.
998.42 Definitions.
998.43 Requirements.
998.44 Responsibilities.
998.45 Procedures.

Subpart D--National Oceanic and Atmospheric Administration 
Commissioned Officer Corps Whistleblower Protections

    Authority: 33 U.S.C. 3071(a)(8), (a)(13), (b), and (c); 10 
U.S.C. 1034 and 1090a.


Sec.  998.40  Purpose.

    This subpart--
    (a) Establishes policy and implements 33 U.S.C. 3071(a)(8), 
(a)(13), (b), and (c) to provide protection against reprisal to NOAA 
Corps officers for making or preparing or being perceived as making or 
preparing a protected communication.
    (b) Assigns responsibilities and delegates authority for such 
protection against reprisal and prescribes procedures.


Sec.  998.41  Applicability.

    This subpart applies to NOAA Corps officers, personnel boards 
convened by the Director of Office of Marine and Aviation Operations 
(OMAO) and the NOAA Corps (Director), and the Inspector General of the 
Department of Commerce.


Sec.  998.42  Definitions.

    As used in this subpart, the following terms shall have the meaning 
stated:
    Corrective action means any action deemed necessary to make the 
complainant whole, changes in agency regulations or practices, 
administrative or disciplinary action against offending personnel, and/
or referral to the United States Attorney General of any evidence of 
criminal violation.
    Inspector General means the Inspector General in the Office of 
Inspector General of the Department of Commerce or any other Inspector 
General, as appointed under the Inspector General Act of 1978, as 
amended.
    Investigation report means a report issued by the Inspector General 
of the Department of Commerce that includes a thorough review of the 
facts and circumstances relevant to an allegation of reprisal against a 
NOAA Corps officer, the relevant documents acquired during the 
investigation, and summaries of interviews conducted.
    Personnel action means an action taken, or the failure to take an 
action, that affects or has the potential to affect a NOAA Corps 
officer's position and/or career. Personnel actions include 
disciplinary or corrective actions; a transfer or reassignment; 
significant changes in the duties or responsibilities of a NOAA Corps 
officer not commensurate with their grade; an inaccurate assessment of 
an officer's performance, skills, qualities, aptitudes, potential, or 
value to the NOAA Corps in the NOAA Corps officer's annual or 
semiannual officer evaluation reports; a decision concerning promotion, 
pay, benefits, awards, or training; separation; discharge; referral for 
mental health evaluations in accordance with 10 U.S.C. 1090a; the 
failure of a superior to respond to a retaliatory or harassment action 
against a NOAA Corps officer by one or more subordinate when the 
superior had knowledge of the retaliatory or harassment action; and 
conducting a retaliatory investigation against a NOAA Corps officer.
    Protected communication means any lawful communication to a Member 
of Congress or an Inspector General; or a communication in which a NOAA 
Corps officer complains of, or discloses information that they 
reasonably believe 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

[[Page 59673]]

such communication is made to any of the following: a Member of 
Congress; an Inspector General; a member of a Department of Commerce 
audit, inspection, investigation, or law enforcement organization; 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.
    Records Examination Board means a NOAA Corps personnel board 
convened by the Director to determine whether information contained in 
a NOAA Corps officer's personnel files should be corrected.
    Reprisal means taking or threatening to take an unfavorable 
personnel action, or withholding or threatening to withhold a favorable 
personnel action against a NOAA Corps officer for making or preparing 
or being perceived as making or preparing a protected communication.
    Retaliatory investigation means an investigation requested, 
directed, initiated, or conducted for the purpose of punishing, 
harassing, or ostracizing a NOAA Corps officer for making a protected 
communication.


Sec.  998.43  Requirements.

    (a) No person within the Department of Commerce may restrict a NOAA 
Corps officer from making a lawful communication to a Member of 
Congress or an Inspector General.
    (b) A NOAA Corps officer shall be free from reprisal for making or 
preparing or being perceived as making or preparing a protected 
communication.
    (c) Any NOAA Corps officer or employee of the Department of 
Commerce who has the authority to take, direct others to take, or 
recommend or approve any personnel action shall not, under such 
authority, take or threaten to take a personnel action, or withhold or 
threaten to withhold a personnel action, as reprisal against any NOAA 
Corps officer for making or preparing or being perceived as making or 
preparing a protected communication.


Sec.  998.44  Responsibilities.

    (a) The Inspector General of the Department of Commerce:
    (1) Shall expeditiously determine whether there is sufficient 
evidence to warrant an investigation of an allegation that a personnel 
action has been taken, withheld, or threatened as reprisal for making 
or preparing or being perceived as making or preparing a protected 
communication. No investigation is required when such allegation is 
submitted more than 1 year after the NOAA Corps officer or former NOAA 
Corps officer became aware of the personnel action that is the subject 
of the allegation. However, the Inspector General of the Department of 
Commerce may consider a complaint of reprisal received more than 1 year 
later based on compelling reasons or circumstances. These circumstances 
may include situations in which the NOAA Corps officer or former NOAA 
Corps officer:
    (i) Was actively misled regarding their rights; or
    (ii) Was prevented from exercising their rights.
    (2) Shall, if an investigation described in paragraph (a)(1) of 
this section is warranted, initiate a separate investigation of the 
underlying allegations contained in the protected communication if a 
prior investigation has not already been initiated, or if the Inspector 
General of the Department of Commerce determines that the prior 
investigation was biased or inadequate.
    (3) Shall, except as provided in paragraph (a)(5) of this section, 
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 report may 
also include a recommendation as to the disposition of the complaint.
    (4) Shall submit a copy of the investigation report to the 
Secretary, the Administrator, the NOAA Deputy Under Secretary for 
Operations, the Director, and to the NOAA Corps officer or former NOAA 
Corps officer making the allegation. In the copy of the investigation 
report transmitted to the NOAA Corps officer or former NOAA Corps 
officer, the Inspector General of the Department of Commerce shall 
ensure the maximum disclosure of information possible, with the 
exception of information that is not required to be disclosed under the 
Freedom of Information Act (5 U.S.C. 552 et seq.). The Inspector 
General of the Department of Commerce may withhold the summaries of 
interviews conducted and documents acquired during the course of the 
investigation in the copy of the investigation report transmitted to 
the NOAA Corps officer or former NOAA Corps officer. If requested under 
this paragraph (a)(4), the summaries of interviews conducted and 
documents acquired during the course of the investigation shall be 
transmitted to the NOAA Corps officer or former NOAA Corps officer, 
with the exception of information that is not required to be disclosed 
under the Freedom of Information Act. This disclosure is separate from 
a disclosure resulting from a request submitted pursuant to the Freedom 
of Information Act or the Privacy Act (5 U.S.C. 552a et seq.). All 
other releases of information not made in accordance with this 
paragraph (a)(4) shall be processed pursuant to the respective 
disclosure statute that governs the request seeking those records. The 
items may be transmitted with the copy of the investigation report or 
within a reasonable time after the transmittal of the copy of the 
investigation report to the NOAA Corps officer or former NOAA Corps 
officer, regardless of whether the request for those items is made 
before or after the copy of the investigation report is transmitted to 
the NOAA Corps officer or former NOAA Corps officer.
    (5) Shall, if a determination is made that the investigation report 
cannot be issued within 180 days of receipt of the allegation, notify 
the Secretary and the NOAA Corps officer or former NOAA Corps officer 
making the allegation of the current progress of the investigation, the 
reasons why the investigation report will not be submitted within that 
time, and estimate the time remaining until completion and transmittal. 
Every 180 days thereafter until the transmission of the investigation 
report, the Inspector General of the Department of Commerce shall 
notify the Secretary and NOAA Corps officer or former NOAA Corps 
officer making the allegation of the current progress of the 
investigation and estimated time remaining until completion and 
transmittal of the investigation report.
    (6) At the request of the Records Examination Board, shall submit a 
copy of the investigation report to the Records Examination Board. If 
the Records Examination Board requests further evidence and a further 
report as provided in paragraph (b)(3) of this section, the Inspector 
General of the Department of Commerce shall respond within 30 days, and 
not later than every 30 days thereafter, until the transmission of the 
further report.
    (b) The Records Examination Board, under directions prescribed by 
the Director:
    (1) Shall consider an application for the correction of records 
made by a NOAA Corps officer or former NOAA Corps officer who has filed 
a complaint investigated by the Inspector General of the Department of 
Commerce alleging that a personnel action was taken, withheld, or 
threatened in reprisal for making or preparing or being perceived

[[Page 59674]]

as making or preparing a protected communication.
    (2) Shall review the investigation report issued by the Inspector 
General of the Department of Commerce.
    (3) May ask the Inspector General to gather further evidence and 
issue a further report to the Records Examination Board.
    (4) Shall provide a summary of the record of its proceedings, along 
with its recommendations, to the NOAA Corps officer or former NOAA 
Corps officer who has filed a complaint not later than 90 days after 
the NOAA Corps officer or former NOAA Corps officer made a request to 
convene such a Records Examination Board.
    (5) Shall issue an appropriate recommendation to the Director 
concerning corrections, deletions, or additions to the NOAA Corps 
officer or former NOAA Corps officer's records not later than 90 days 
after the NOAA Corps officer or former NOAA Corps officer made a 
request to the Director to convene such a Records Examination Board. If 
the Records Examination Board requests a further report as provided 
under paragraph (b)(3) of this section and determines that it cannot 
issue recommendations within 90 days, the Records Examination Board 
shall notify the officer or former officer and the Director and provide 
an estimate of time remaining until completion.
    (c) If the Records Examination Board determines that a personnel 
action was taken, withheld, or threatened in reprisal for a NOAA Corps 
officer making or preparing or being perceived as making or preparing a 
protected communication, the Records Examination Board shall forward 
its recommendation to the Director for appropriate correction of the 
NOAA Corps officer's or former NOAA Corps officer's records.
    (d) When reprisal is found, the Director:
    (1) Shall issue a decision concerning the correction of the NOAA 
Corps officer's or former NOAA Corps officer's records within 60 days 
of receiving the Records Examination Board's decision, but no sooner 
than 20 days after receiving the Records Examination Board decision to 
allow sufficient time for the NOAA Corps officer or former NOAA Corps 
officer to submit any written disagreement with the Records Examination 
Board's recommendations under paragraph (c) of this section, and ensure 
that appropriate corrective action is taken;
    (2) Shall notify the Inspector General of his or her decision 
concerning an application for the correction of personnel records of a 
NOAA Corps officer or former NOAA Corps officer who alleged reprisal 
for making or preparing or being perceived as making or preparing a 
protected communication at the time the Director issues a decision 
under paragraph (d)(1) of this section; and
    (3) Shall take appropriate administrative disciplinary action 
against the individual or individuals found to have taken, withheld, or 
threatened a personnel action as reprisal if those individuals are 
under the Director's chain of command. If those individuals are not 
under the Director's chain of command, refer those individuals to the 
Deputy Under Secretary for Operations for appropriate administrative 
disciplinary action against the individual or individuals found to have 
taken, withheld, or threatened a personnel action in reprisal.
    (e) The Deputy Under Secretary for Operations:
    (1) Shall provide an additional level of review concerning an 
application for the correction of personnel records of a NOAA Corps 
officer or former NOAA Corps officer within 90 days of the Director's 
decision if requested by the officer. If the Deputy Under Secretary for 
Operations fails to issue such a decision within that time, the NOAA 
Corps officer or former NOAA Corps officer shall be deemed to have 
exhausted their administrative remedies and the Director's decision 
constitutes the final agency action.
    (2) Shall take appropriate administrative disciplinary action 
against the individual or individuals found to have taken, withheld, or 
threatened a personnel action as reprisal if referred by the Director 
under paragraph (d) of this section.


Sec.  998.45  Procedures.

    (a) Any NOAA Corps officer or former NOAA Corps officer who 
reasonably believes a personnel action was taken, withheld, or 
threatened in reprisal for making or preparing or being perceived as 
making or preparing a protected communication may file a complaint with 
the Department of Commerce Office of Inspector General Hotline online 
at https://www.oig.doc.gov/Pages/Hotline.aspx by phone at (800) 424-
5197, or by mail addressed to: United States Department of Commerce, 
Office of Inspector General, 1401 Constitution Avenue NW, Washington, 
DC 20230.
    (b) The complaint should include relevant and specific details, 
including 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; the date when the NOAA Corps officer or 
former NOAA Corps officer became aware of the personnel action; 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. Where the 
complaint is submitted more than 1 year after the date when the NOAA 
Corps officer or former NOAA Corps officer became aware of the 
personnel action, the complainant should include an explanation of any 
circumstances which caused the complaint to be submitted more than 1 
year after the complainant became aware of the personnel action. These 
circumstances may include descriptions of how the NOAA Corps officer or 
former NOAA Corps officer was actively misled regarding their rights, 
or was prevented from exercising their rights.
    (c) A NOAA Corps officer or former NOAA Corps officer who alleges 
reprisal for making or preparing or being perceived as making or 
preparing a protected communication may, within 20 days of receiving an 
investigation report, request in writing that the Director convene a 
Records Examination Board to consider an application for the correction 
of records.
    (d) A NOAA Corps officer or former NOAA Corps officer who disagrees 
with the recommendations of a Records Examination Board may submit in 
writing the reasons for disagreement to the Director within 20 days of 
receiving the Records Examination Board's recommendations.
    (e) A NOAA Corps officer or former NOAA Corps officer who disagrees 
with the Director's decision on a Records Examination Board's 
recommendations may request in writing a second level of review by the 
Deputy Under Secretary for Operations within 20 days of the Director's 
decision.
[FR Doc. 2022-21341 Filed 9-30-22; 8:45 am]
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