Rule2022-21341
Protected Communications; Prohibition of Retaliatory Personnel Actions
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Published
October 3, 2022
Effective
November 2, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
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.
Full Text
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<title>Federal Register, Volume 87 Issue 190 (Monday, October 3, 2022)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="https://www.oig.doc.gov/Pages/Hotline.aspx">https://www.oig.doc.gov/Pages/Hotline.aspx</a> 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
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