Protected Communications; Prohibition of Retaliatory Personnel Actions, 59671-59674 [2022-21341]
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Federal Register / Vol. 87, No. 190 / Monday, October 3, 2022 / Rules and Regulations
unlikely to result in adverse or negative
comments. It therefore: (1) is not a
‘‘significant regulatory action’’ under
Executive Order 12866; (2) is not a
‘‘significant rule’’ under DOT
Regulatory Policies and Procedures (44
FR 11034; February 26, 1979); and (3)
does not warrant preparation of a
regulatory evaluation as the anticipated
impact is so minimal. Since this is a
routine matter that will only affect air
traffic procedures and air navigation, it
is certified that this rule, when
promulgated, would not have a
significant economic impact on a
substantial number of small entities
under the criteria of the Regulatory
Flexibility Act.
Environmental Review
The FAA has determined that this
action qualifies for categorical exclusion
under the National Environmental
Policy Act in accordance with FAA
Order 1050.1F, Environmental Impacts:
Policies and Procedures, paragraph 5–
6.5a. This airspace action is not
expected to cause any potentially
significant environmental impacts, and
no extraordinary circumstances exist
that warrant the preparation of an
environmental assessment.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference,
Navigation (air).
Adoption of the Amendment
In consideration of the foregoing, the
FAA amends 14 CFR part 71 as follows:
PART 71—DESIGNATION OF CLASS A,
B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND
REPORTING POINTS
1. The authority citation for 14 CFR
part 71 continues to read as follows:
■
Authority: 49 U.S.C. 106(f), 106(g), 40103,
40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR,
1959–1963 Comp., p. 389.
§ 71.1
[Amended]
2. The incorporation by reference in
14 CFR 71.1 of FAA Order JO 7400.11G,
Airspace Designations and Reporting
Points, dated August 19, 2022, and
effective September 15, 2022, is
amended as follows:
■
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Paragraph 6005 Class E Airspace Areas
Extending Upward From 700 Feet or More
Above the Surface of the Earth.
*
*
*
*
18:19 Sep 30, 2022
Jkt 259001
Issued in Des Moines, Washington, on
September 27, 2022.
B.G. Chew,
Group Manager, Operations Support Group,
Western Service Center.
[FR Doc. 2022–21346 Filed 9–30–22; 8:45 am]
BILLING CODE 4910–13–P
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
Office of Marine and Aviation
Operations (OMAO), National Oceanic
and Atmospheric Administration
(NOAA), U.S. Department of Commerce.
ACTION: Final rule.
AGENCY:
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:
SUMMARY:
Background
*
AWP AZ E5 Grand Canyon, AZ [Amended]
Valle Airport, AZ
(Lat. 35°39′02″ N, long. 112°08′53″ W)
That airspace extending upward from 700
feet above the surface within a 6.8-mile
VerDate Sep<11>2014
radius of the airport beginning at the 020°
bearing from the airport clockwise to the 190°
bearing from the airport, and within a 6.4mile radius of the airport beginning at the
190° bearing from the airport clockwise to the
020° bearing from the airport.
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
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Fmt 4700
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59671
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.
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Federal Register / Vol. 87, No. 190 / Monday, October 3, 2022 / Rules and Regulations
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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
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17:54 Sep 30, 2022
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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
1. Add an authority citation for part
998 to read as follows:
■
Authority: 33 U.S.C. 3001 et seq.
■
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.
§ 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.
§ 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
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Frm 00040
Fmt 4700
Sfmt 4700
Inspector General of the Department of
Commerce.
§ 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
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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.
§ 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.
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§ 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
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17:54 Sep 30, 2022
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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
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Sfmt 4700
59673
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
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Federal Register / Vol. 87, No. 190 / Monday, October 3, 2022 / Rules and Regulations
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
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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.
§ 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
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Fmt 4700
Sfmt 9990
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]
BILLING CODE 3510–12–P
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]]>Agencies
[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.
-----------------------------------------------------------------------
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]
BILLING CODE 3510-12-P
