79956 Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Rules and Regulations 

Dated: December 9, 2010. 

Steven D. Vaughn, 

Director, Office of New Animal Drug 

Evaluation, Center for Veterinary Medicine. 

[FR Doc. 2010–31952 Filed 12–20–10; 8:45 am] 

BILLING CODE 4160–01–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 53 

[USCG–2009–0239] 

RIN 1625–AB33 

Protection for Whistleblowers in the 

Coast Guard 

AGENCY: Coast Guard, DHS. 

ACTION: Direct final rule; request for 

comments. 

SUMMARY: By this direct final rule, the 

Coast Guard is amending its ‘‘Coast 

Guard Whistleblower Protection’’ 

regulations to conform to statutory 

protections for all members of the 

Armed Forces. The revised regulations 

broaden the protection already afforded 

uniformed members of the Coast Guard 

by: Providing that uniformed Coast 

Guard members may make protected 

communications to other persons and 

organizations in additiPn to Members of 

Congress or an Inspector General, and 

expanding the subject matter of 

protected communications to include 

information that the member reasonably 

believes constitutes evidence of sexual 

harassment and discrimination, among 

other subjects. Additionally, changes to 

the regulations update the 

responsibilities of the Inspector General 

of the Department of Homeland Security 

to conform to relevant statutory 

provisions. 

DATES: This rule is effective April 20, 

2011, unless an adverse comment or 

notice of intent to submit an adverse 

comment is either submitted to our 

online docket via http:// 

www.regulations.gov on or before 

February 22, 2011, or reaches the Docket 

Management Facility by that date. If an 

adverse comment or notice of intent to 

submit an adverse comment is received 

by February 22, 2011, we will withdraw 

this direct final rule and publish a 

timely notice of withdrawal in the 

Federal Register. 

ADDRESSES: You may submit comments 

identified by docket number USCG– 

2009–0239 using any one of the 

following methods: 

(1) Federal eRulemaking Portal: 

http://www.regulations.gov. 

(2) Fax: 202–493–2251. 

(3) Mail: Docket Management Facility 

(M–30), U.S. Department of 

Transportation, West Building Ground 

Floor, Room W12–140, 1200 New Jersey 

Avenue SE., Washington, DC 20590– 

0001. 

(4) Hand delivery: Same as mail 

address above, between 9 a.m. and 

5 p.m., Monday through Friday, except 

Federal holidays. The telephone number 

is 202–366–9329. 

To avoid duplication, please use only 

one of these four methods. See the 

‘‘Public Participation and Request for 

Comments’’ portion of the 

SUPPLEMENTARY INFORMATION section 

below for instructions on submitting 

comments. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, e-mail 

or call Commander Michael Cavallaro, 

U.S. Coast Guard Office of General Law, 

telephone 202–372–3777, e-mail 

Michael.S.Cavallaro@uscg.mil. If you 

have questions on viewing or submitting 

material to the docket, call Renee V. 

Wright, Program Manager, Docket 

Operations, telephone 202–366–9826. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Public Participation and Request for 

Comments 

A. Submitting Comments 

B. Viewing Comments and Documents 

C. Privacy Act 

D. Public Meeting 

II. Abbreviations 

III. Regulatory Information 

IV. Background 

V. Discussion of the Rule 

VI. Regulatory Analysis 

A. Regulatory Planning and Review 

B. Small Entities 

C. Collection of Information 

D. Federalism 

E. Unfunded Mandates Reform Act 

F. Taking of Private Property 

G. Civil Justice Reform 

H. Protection of Children 

I. Indian Tribal Governments 

J. Energy Effects 

K. Technical Standards 

L. Environment 

I. Public Participation and Request for 

Comments 

We encourage you to participate in 

this rulemaking by submitting 

comments and related materials. All 

comments received will be posted, 

without change, to http:// 

www.regulations.gov and will include 

any personal information you have 

provided. 

A. Submitting Comments 

If you submit comments, please 

include the docket number for this 

rulemaking (USCG–2009–0239), 

indicate the specific section of this 

document to which each comment 

applies, and provide a reason for each 

suggestion or recommendation. You 

may submit your comments and 

material online, or by fax, mail or hand 

delivery, but please use only one of 

these means. We recommend that you 

include your name and a mailing 

address, an e-mail address, or a phone 

number in the body of your document 

so that we can contact you if we have 

questions regarding your submission. 

To submit your comment online, go to 

http://www.regulations.gov, and type 

‘‘USCG–2009–0239’’ in the ‘‘Keyword’’ 

box. If you submit your comments by 

mail or hand delivery, submit them in 

an unbound format, no larger than 81⁄2

by 11 inches, suitable for copying and 

electronic filing. If you submit them by 

mail and would like to know that they 

reached the Facility, please enclose a 

stamped, self-addressed postcard or 

envelope. We will consider all 

comments and material received during 

the comment period. 

B. Viewing Comments and Documents 

To view comments, as well as 

documents mentioned in this preamble 

as being available in the docket, go to 

http://www.regulations.gov, click on the 

‘‘read comments’’ box, which will then 

become highlighted in blue. In the 

‘‘Keyword’’ box type ‘‘USCG–2009–0239’’ 

and click ‘‘Search.’’ Click the ‘‘Open 

Docket Folder’’ in the ‘‘Actions’’ column. 

If you do not have access to the internet, 

you may also view the docket online by 

visiting the Docket Management Facility 

in Room W12–140 on the ground floor 

of the Department of Transportation 

West Building, 1200 New Jersey 

Avenue, SE., Washington, DC 20590, 

between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

We have an agreement with the 

Department of Transportation to use the 

Docket Management Facility. 

C. Privacy Act 

Anyone can search the electronic 

form of comments received into any of 

our dockets by the name of the 

individual submitting the comment (or 

signing the comment, if submitted on 

behalf of an association, business, labor 

union, etc.). You may review a Privacy 

Act notice regarding our public dockets 

in the January 17, 2008 issue of the 

Federal Register (73 FR 3316). 

D. Public Meeting 

We do not now plan to hold a public 

meeting for this rulemaking. But you 

may submit a request for one to the 

docket using one of the methods 

specified under ADDRESSES. In your 


jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Rules and Regulations 79957 

1See Department of Defense Directive 7050.06, 

‘‘Military Whistleblower Protection,’’ Enclosure 2, 

section E2.3 (July 23, 2007). 

request, explain why you believe a 

public meeting would be beneficial. If 

we determine that one would aid this 

rulemaking, we will hold one at a time 

and place announced by a later notice 

in the Federal Register. 

II. Abbreviations 

DHS Department of Homeland Security 

NEPA National Environmental Policy Act 

of 1969 

NPRM Notice of Proposed Rulemaking 

NTTAA National Technology Transfer and 

Advancement Act 

III. Regulatory Information 

We are publishing this direct final 

rule under 33 CFR 1.05–55 because we 

consider this rule to be noncontroversial 

and we do not expect adverse comments 

regarding this rulemaking. If no adverse 

comment or notice of intent to submit 

an adverse comment is received by 

February 22, 2011, this rule will become 

effective as stated in the DATES section. 

In that case, approximately 30 days 

before the effective date, we will 

publish a document in the Federal 

Register stating that no adverse 

comment was received and confirming 

that this rule will become effective as 

scheduled. However, if we receive an 

adverse comment or notice of intent to 

submit an adverse comment, we will 

publish a notice in the Federal Register 

announcing the withdrawal of all or part 

of this direct final rule. If an adverse 

comment applies only to part of this 

rule (e.g., to an amendment, a 

paragraph, or a section) and it is 

possible to remove that part without 

defeating the purpose of this rule, we 

may adopt, as final, those parts of this 

rule on which no adverse comment was 

received. We will withdraw the part of 

this rule that was the subject of an 

adverse comment. If we decide to 

proceed with a rulemaking following 

receipt of an adverse comment, we will 

publish a separate notice of proposed 

rulemaking (NPRM) and provide a new 

opportunity for comment. 

A comment is considered ‘‘adverse’’ if 

the comment explains why this rule or 

a part of this rule would be 

inappropriate, including a challenge to 

its underlying premise or approach, or 

would be ineffective or unacceptable 

without a change. 

IV. Background 

Section 1034 of Title 10 of the United 

States Code protects communications 

made by members of the Armed Forces 

to Members of Congress, Inspectors 

General, and certain other persons and 

organizations. It prohibits any person 

from taking, withholding, or threatening 

any personnel action against a member 

of the Armed Forces as reprisal for 

making or preparing any protected 

communications. Uniformed members 

of the Coast Guard are members of the 

Armed Forces and are covered by 

section 1034. See 10 U.S.C. 101(a)(4) 

(defining ‘‘Armed Forces’’ to mean ‘‘the 

Army, Navy, Air Force, Marine Corps, 

and Coast Guard’’). Section 1034 covers 

allegations and disclosures of sexual 

harassment and unlawful 

discrimination, and gives specific 

procedural rights to a complainant 

alleging reprisal for making a protected 

communication. Amending 33 CFR part 

53 is necessary to conform Coast Guard 

regulations to 10 U.S.C. 1034. 

V. Discussion of the Rule 

The Coast Guard is amending 

paragraph (a) of section 53.1, Purpose, 

to expand the list of organizations and 

persons to whom protected 

communications may be made. The 

existing language limits protection to 

communications made to a Member of 

Congress or an Inspector General. Under 

amended paragraph (a), protected 

communications may also be made to ‘‘a 

member of a Department of Defense or 

Department of Homeland Security audit, 

inspection, investigation, or law 

enforcement organization (e.g., the Coast 

Guard Investigative Service); any person 

or organization in the chain of 

command; and any other person or 

organization designated pursuant to 

regulations or other established 

administrative procedures for such 

communications.’’ Through this 

amendment to paragraph (a), the Coast 

Guard is designating the Coast Guard 

Investigative Service as an organization 

to which a uniformed member of the 

Coast Guard may make a protected 

communication. The Coast Guard 

Investigative Service is a Federal 

investigative and protective program 

established to carry out the Coast 

Guard’s internal and external criminal 

investigations; to assist in providing 

personal security services; to protect the 

welfare of Coast Guard personnel; to aid 

in preserving the internal integrity of 

the Coast Guard; and to support Coast 

Guard missions worldwide. 

The Coast Guard is amending section 

53.5 to revise and add several 

definitions, including adding a 

definition of ‘‘Protected 

Communication,’’ which defines the 

communications covered by 33 CFR part 

53. A ‘‘Protected Communication’’ is (1) 

any lawful communication to a Member 

of Congress or an Inspector General; or 

(2) a communication in which a member 

of the Coast Guard communicates 

information that the member reasonably 

believes evidences a violation of law or 

regulation (including sexual harassment 

or unlawful discrimination), gross 

mismanagement, a gross waste of funds, 

an abuse of authority, or a substantial 

and specific danger to public health or 

safety, when such communication is 

made to any of the following: A Member 

of Congress, an Inspector General, or a 

member of a Department of Defense or 

Department of Homeland Security audit, 

inspection, investigation, or law 

enforcement organization (e.g., the Coast 

Guard Investigative Service); any person 

or organization in the chain of 

command; and any other person or 

organization designated pursuant to 

regulations or other established 

administrative procedures to receive 

such communications. The Coast Guard 

is also adding a definition for ‘‘Chain of 

Command,’’ which tracks a similar 

definition used by the Department of 

Defense in implementing 10 U.S.C. 

1034.1

The definition for ‘‘Inspector General’’ 

is revised to include any other Inspector 

General appointed under the Inspector 

General Act of 1978, in addition to the 

Inspector General in the Office of the 

Inspector General of the Department of 

Homeland Security. The revised 

definition of ‘‘Reprisal’’ now uses the 

defined term ‘‘protected 

communications.’’ The Coast Guard is 

also removing the definition of ‘‘Law 

Specialist’’ and replacing it with a 

definition for ‘‘Judge Advocate,’’ which 

reflects a nomenclature change within 

the Coast Guard legal program. A 

similar nomenclature change is made in 

section 53.9(c)(2): the parenthetical 

phrase ‘‘(who may also be serving as the 

Judge Advocate General of the Coast 

Guard)’’ is added after the term ‘‘Chief 

Counsel.’’ 

The Coast Guard is amending 33 CFR 

part 53 to utilize these new and revised 

definitions and to make conforming 

changes throughout part 53. Sections 

53.7 and 53.11 are amended to 

incorporate the new and revised 

definitions, and section 53.11 is revised 

to update the contact information for the 

DHS Office of the Inspector General. 

Sections 53.9 and 53.11 are amended to 

ensure that part 53 consistently covers 

allegations of personnel action that was 

taken, withheld, or threatened in 

reprisal by making consistent use of the 

terms ‘‘taken, withheld, or threatened.’’ 

Section 53.9 is also amended to 

consistently indicate that the 

‘‘Secretary’’ referred to is the ‘‘Secretary 

of the Department of Homeland 

Security.’’ Finally, section 53.11(b) is 


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79958 Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Rules and Regulations 

amended by adding the words ‘‘name(s) 

of the’’ before the words ‘‘individual(s) 

believed to be responsible’’ to clarify 

what information is required to be 

included in the complaint to identify 

the individual or individuals believed to 

be responsible for the alleged reprisal. 

In 33 CFR 53.9, the Coast Guard is 

revising slightly the responsibilities of 

the Inspector General to conform to 

those responsibilities as set forth in 10 

U.S.C. 1034. In paragraphs (a)(1) and (2), 

the Inspector General now must 

determine whether there is sufficient 

evidence to warrant an investigation 

before initiating an investigation of the 

alleged reprisal. See 10 U.S.C. 

1034(c)(3)(A). Such an investigation is 

necessary only if there was no prior 

investigation or if the prior investigation 

was biased or inadequate. See 10 U.S.C. 

1034(d). In paragraph (a)(2), the word 

‘‘reasonably’’ is inserted to show that 

information that a Coast Guard member 

presents as evidence of a reprisal need 

only be information that the member 

‘‘reasonably believes’’ evidences 

wrongdoing. See 10 U.S.C. 1034(c)(2). 

Additionally, the last sentence of 

paragraph (a)(2), which states ‘‘The 

Inspector General is not required to 

make such an investigation if the 

information that the Coast Guard 

member reasonably believes evidences 

wrongdoing relates to actions that took 

place during combat,’’ is removed 

because similar language was removed 

from section 1034. See Pub. L. 103–337, 

531(c)(2) (replacing 10 U.S.C. 

1043(c)(4)). 

The time period in which the 

Inspector General must complete the 

investigation is revised from ‘‘90 days’’ 

to ‘‘180 days’’ in 33 CFR 53.9(a)(3) and 

(a)(5) to align with the statute’s 

requirements. See 10 U.S.C. 1034(e)(3). 

The Coast Guard is also eliminating the 

requirement of a final interview of the 

member alleging reprisal by removing 

paragraph (a)(7) because a similar 

requirement was removed from 10 

U.S.C. 1034. 

Additionally, in section 53.9, the 

following text is being added to 

paragraph (a)(4) to clarify what 

information will be made available to an 

individual pursuant to a Freedom of 

Information Act request: ‘‘However, the 

copy need not contain summaries of 

interviews conducted, nor any 

document acquired, during the course of 

the investigation. Such items shall be 

transmitted to the member, if the 

member requests the items, with the 

copy of the report or after the 

transmittal to the member of the copy of 

the report, regardless of whether the 

request for those items is made before or 

after the copy of the report is 

transmitted to the member.’’ See 10 

U.S.C. 1034(e)(2). 

VI. Regulatory Analysis 

We developed this rule after 

considering numerous statutes and 

executive orders related to rulemaking. 

Below we summarize our analysis based 

on 12 of these statutes or executive 

orders. 

A. Regulatory Planning and Review 

This rule is a significant regulatory 

action under section 3(f) of Executive 

Order 12866, Regulatory Planning and 

Review. The Office of Management and 

Budget has reviewed it under that 

Order. It requires an assessment of 

potential costs and benefits under 

section 6(a)(3) of that Order. However, 

we believe that a full regulatory analysis 

is unnecessary because this rule only 

affects uniformed members of the Coast 

Guard and DHS personnel and has no 

economic impact on U.S. industry or the 

general public. 

This rule will benefit the Coast Guard. 

Because the rule provides protection for 

uniformed Coast Guard members from 

retaliation by supervisors or any other 

member of the Coast Guard, the Coast 

Guard may now receive information 

from Coast Guard members on potential 

breaches of government policies and 

regulations that they would not 

otherwise have received. This will 

ensure that uniformed Coast Guard 

members receive the same protections 

Congress affords other uniformed 

members of the Armed Forces. 

B. Small Entities 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601–612), we have considered 

whether this rule would have a 

significant economic impact on a 

substantial number of small entities. 

The term ‘‘small entities’’ comprises 

small businesses, not-for-profit 

organizations that are independently 

owned and operated and are not 

dominant in their fields, and 

governmental jurisdictions with 

populations of less than 50,000. 

This rule provides protection for 

uniformed Coast Guard members from 

retaliation and addresses 

responsibilities of the DHS Inspector 

General. Because this rule only affects 

uniformed Coast Guard members and 

DHS personnel, it is unlikely to have 

any effect on small businesses. 

Therefore, the Coast Guard certifies 

under 5 U.S.C. 605(b) that this rule will 

not have a significant economic impact 

on a substantial number of small 

entities. 

C. Collection of Information 

This rule calls for no new collection 

of information under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501– 

3520). 

D. Federalism 

A rule has implications for federalism 

under Executive Order 13132, 

Federalism, if it has a substantial direct 

effect on State or local governments and 

would either preempt State law or 

impose a substantial direct cost of 

compliance on them. We have analyzed 

this rule under that Order and have 

determined that it does not have 

implications for federalism. 

E. Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act 

of 1995 (2 U.S.C. 1531–1538) requires 

Federal agencies to assess the effects of 

their discretionary regulatory actions. In 

particular, the Act addresses actions 

that may result in the expenditure by a 

State, local, or tribal government, in the 

aggregate, or by the private sector of 

$100,000,000 (adjusted for inflation) or 

more in any one year. Although this rule 

will not result in such an expenditure, 

we do discuss the effects of this rule 

elsewhere in this preamble. 

F. Taking of Private Property 

This rule will not effect a taking of 

private property or otherwise have 

taking implications under Executive 

Order 12630, Governmental Actions and 

Interference with Constitutionally 

Protected Property Rights. 

G. Civil Justice Reform 

This rule meets applicable standards 

in sections 3(a) and 3(b)(2) of Executive 

Order 12988, Civil Justice Reform, to 

minimize litigation, eliminate 

ambiguity, and reduce burden. 

H. Protection of Children 

We have analyzed this rule under 

Executive Order 13045, Protection of 

Children from Environmental Health 

Risks and Safety Risks. This rule is not 

an economically significant rule and 

will not create an environmental risk to 

health or risk to safety that might 

disproportionately affect children. 

I. Indian Tribal Governments 

This rule does not have tribal 

implications under Executive Order 

13175, Consultation and Coordination 

with Indian Tribal Governments, 

because it would not have a substantial 

direct effect on one or more Indian 

tribes, on the relationship between the 

Federal Government and Indian tribes, 

or on the distribution of power and 


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Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Rules and Regulations 79959 

responsibilities between the Federal 

Government and Indian tribes. 

J. Energy Effects 

We have analyzed this rule under 

Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. We have 

determined that it is not a ‘‘significant 

energy action’’ under that order. 

Although it is a ‘‘significant regulatory 

action’’ under Executive Order 12866, it 

is not likely to have a significant 

adverse effect on the supply, 

distribution, or use of energy. The 

Administrator of the Office of 

Information and Regulatory Affairs has 

not designated it as a significant energy 

action. Therefore, it does not require a 

Statement of Energy Effects under 

Executive Order 13211. 

K. Technical Standards 

The National Technology Transfer 

and Advancement Act (NTTAA) (15 

U.S.C. 272 note) directs agencies to use 

voluntary consensus standards in their 

regulatory activities unless the agency 

provides Congress, through the Office of 

Management and Budget, with an 

explanation of why using these 

standards would be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., specifications 

of materials, performance, design, or 

operation; test methods; sampling 

procedures; and related management 

systems practices) that are developed or 

adopted by voluntary consensus 

standards bodies. 

This rule does not use technical 

standards. Therefore, we did not 

consider the use of voluntary consensus 

standards. 

L. Environment 

We have analyzed this rule under 

Department of Homeland Security 

Directive 023–01 and Commandant 

Instruction M16475.lD, which guide the 

Coast Guard in complying with the 

National Environmental Policy Act of 

1969 (NEPA) (42 U.S.C. 4321–4370f), 

and have concluded that this action is 

one of a category of actions which do 

not individually or cumulatively have a 

significant effect on the human 

environment. This rule is categorically 

excluded under section 2.B.2, Figure 2– 

1, paragraph 34(b), of the Instruction. 

Paragraph 34(b) covers promulgation of 

regulations concerning internal agency 

function or organization or personnel 

administration. This rule only affects 

uniformed Coast Guard members and 

DHS personnel and provides protection 

from retaliation, and as such concerns 

internal agency operations. An 

environmental analysis checklist and a 

categorical exclusion determination are 

available in the docket where indicated 

under the ‘‘Public Participation and 

Request for Comments’’ section of this 

preamble. 

List of Subjects in 33 CFR Part 53 

Administrative practice and 

procedure, Investigations, Military 

personnel, Whistleblowing. 

■ For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 53 as follows: 

PART 53—COAST GUARD 

WHISTLEBLOWER PROTECTION 

■ 1. The authority citation for part 53 

continues to read as follows: 

Authority: 10 U.S.C. 1034, Pub. L. 100– 

456, 102 Stat. 1918; Pub. L. 101–225, 103 

Stat. 1908; Pub. L. 107–296, 116 Stat. 2135. 

■ 2. In § 53.1, revise paragraph (a) to 

read as follows: 

§ 53.1 Purpose. 

* * * * * 

(a) Establishes policy and implements 

section 1034 of title 10 of the United 

States Code to provide protection 

against reprisal to members of the Coast 

Guard for making a protected 

communication to a Member of 

Congress; an Inspector General; a 

member of a Department of Defense or 

Department of Homeland Security audit, 

inspection, investigation, or law 

enforcement organization (e.g., the Coast 

Guard Investigative Service); any person 

or organization in the chain of 

command; and any other person or 

organization designated pursuant to 

regulations or other established 

administrative procedures for such 

communications. 

* * * * * 

■ 3. Amend § 53.5 as follows: 

■ a. Remove the definition for ‘‘Law 

Specialist’’; and 

■ b. Revise the definitions for ‘‘Inspector 

General’’ and ‘‘Reprisal’’ and add the 

definitions for ‘‘Chain of Command’’, 

‘‘Judge Advocate’’, and ‘‘Protected 

Communications’’ in alphabetical order 

to read as follows: 

§ 53.5 Definitions. 

* * * * * 

Chain of Command. The succession 

of commanding officers from a superior 

to a subordinate through which 

command is exercised; and the 

succession of officers, enlisted 

members, or civilian personnel through 

whom administrative control is 

exercised, including supervision and 

rating of performance. 

* * * * * 

Inspector General. The Inspector 

General in the Office of Inspector 

General of the Department of Homeland 

Security, or any other Inspector General, 

as appointed under the Inspector 

General Act of 1978. 

Judge Advocate. A commissioned 

officer of the Coast Guard designated for 

the special duty of law. 

* * * * * 

Protected Communication. Any 

lawful communication to a Member of 

Congress or an Inspector General; or a 

communication in which a member of 

the Coast Guard communicates 

information that the member reasonably 

believes evidences a violation of law or 

regulation (including sexual harassment 

or discrimination), gross 

mismanagement, a gross waste of funds 

or other resources, an abuse of 

authority, or a substantial and specific 

danger to public health or safety, when 

such communication is made to any of 

the following: A Member of Congress; 

an Inspector General; a member of a 

Department of Defense or Department of 

Homeland Security audit, inspection, 

investigation, or law enforcement 

organization (e.g., the Coast Guard 

Investigative Service); any person or 

organization in the chain of command; 

and any other person or organization 

designated pursuant to regulations or 

other established administrative 

procedures to receive such 

communications. 

Reprisal. Taking or threatening to take 

an unfavorable personnel action, or 

withholding or threatening to withhold 

a favorable personnel action, against a 

member of the Coast Guard for making 

or preparing to make a protected 

communication. 

* * * * * 

■ 4. In § 53.7, revise paragraphs (b) and 

(c) to read as follows: 

§ 53.7 Requirements. 

* * * * * 

(b) A member of the Coast Guard shall 

be free from reprisal for making or 

preparing to make a protected 

communication. 

(c) Any employee or member of the 

Coast Guard who has the authority to 

take, direct others to take, or 

recommend or approve any personnel 

action shall not, under such authority, 

take, withhold, threaten to take, or 

threaten to withhold a personnel action 

regarding any member of the Coast 

Guard in reprisal for making or 

preparing to make a protected 

communication. 


jlentini on DSKJ8SOYB1PROD with RULES
79960 Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Rules and Regulations 

■ 5. Amend § 53.9 as follows: 

■ a. Remove paragraph (a)(7); and 

■ b. Revise paragraphs (a)(1) through 

(a)(5), (b)(1), (c) introductory text, (c)(1) 

and (2), (e), and (f) to read as follows: 

§ 53.9 Responsibilities. 

(a) * * * 

(1) Expeditiously determine whether 

there is sufficient evidence to warrant 

an investigation of an allegation that a 

personnel action has been taken, 

withheld, or threatened in reprisal for 

making or preparing to make a protected 

communication. No investigation is 

required when such allegation is 

submitted more than 60 days after the 

Coast Guard member became aware of 

the personnel action that is the subject 

of the allegation. 

(2) If such investigation is warranted, 

initiate a separate investigation of the 

information the Coast Guard member 

reasonably believes evidences 

wrongdoing if a prior investigation has 

not already been initiated, or if the prior 

investigation was biased or inadequate. 

(3) Complete the investigation of the 

allegation of reprisal and issue a report 

not later than 180 days after receipt of 

the allegation, which shall include a 

thorough review of the facts and 

circumstances relevant to the allegation, 

the relevant documents acquired during 

the investigation, and summaries of 

interviews conducted. The Inspector 

General may forward a recommendation 

as to the disposition of the complaint. 

(4) Submit a copy of the investigation 

report to the Secretary of the 

Department of Homeland Security and 

to the Coast Guard member making the 

allegation not later than 30 days after 

the completion of the investigation. In 

the copy of the report transmitted to the 

member, the Inspector General shall 

ensure the maximum disclosure of 

information possible, with the exception 

of information that is not required to be 

disclosed under 5 U.S.C. 552. However, 

the copy transmitted to the member 

need not contain summaries of 

interviews conducted, nor any 

document acquired, during the course of 

the investigation. Such items shall be 

transmitted to the member, if the 

member requests the items, with the 

copy of the report or after the 

transmittal to the member of the copy of 

the report, regardless of whether the 

request for those items is made before or 

after the copy of the report is 

transmitted to the member. 

(5) If a determination is made that the 

report cannot be issued within 180 days 

of receipt of the allegation, notify the 

Secretary and the Coast Guard member 

making the allegation of the reasons 

why the report will not be submitted 

within that time, and state when the 

report will be submitted. 

* * * * * 

(b) * * * 

(1) Consider under 10 U.S.C. 1552 and 

33 CFR part 52 an application for the 

correction of records made by a Coast 

Guard member who has filed a timely 

complaint with the Inspector General 

alleging that a personnel action was 

taken in reprisal for making or preparing 

to make a protected communication. 

This may include oral argument, 

examining and cross-examining 

witnesses, taking depositions, and 

conducting an evidentiary hearing at the 

Board’s discretion. 

* * * * * 

(c) If the Board elects to hold an 

administrative hearing, the Coast Guard 

member may be represented by a Judge 

Advocate if: 

(1) The Inspector General, in the 

report of the investigation, finds there is 

probable cause to believe that a 

personnel action was taken, withheld, 

or threatened in reprisal for the Coast 

Guard member making or preparing to 

make a protected communication; 

(2) The Chief Counsel of the Coast 

Guard (who may also be serving as the 

Judge Advocate General of the Coast 

Guard) determines that the case is 

unusually complex or otherwise 

requires the assistance of a Judge 

Advocate to ensure proper presentation 

of the legal issues in the case; and 

* * * * * 

(e) If the Board determines that a 

personnel action was taken, withheld, 

or threatened as a reprisal for a Coast 

Guard member making or preparing to 

make a protected communication, the 

Board may forward its recommendation 

to the Secretary of the Department of 

Homeland Security for appropriate 

administrative or disciplinary action 

against the individual or individuals 

found to have taken, withheld, or 

threatened a personnel action as a 

reprisal, and direct any appropriate 

correction of the member’s records. 

(f) The Board shall notify the 

Inspector General of the Board’s 

decision concerning an application for 

the correction of military records of a 

Coast Guard member who alleged 

reprisal for making or preparing to make 

a protected communication, and of any 

recommendation to the Secretary of the 

Department of Homeland Security for 

appropriate administrative or 

disciplinary action against the 

individual or individuals found to have 

taken, withheld, or threatened a 

personnel action as a reprisal. 

* * * * * 

■ 6. In § 53.11, revise paragraphs (a), (b), 

and (c) to read as follows: 

§ 53.11 Procedures. 

(a) Any member of the Coast Guard 

who reasonably believes a personnel 

action was taken, withheld, or 

threatened in reprisal for making or 

preparing to make a protected 

communication may file a complaint 

with the Department of Homeland 

Security Inspector General Hotline at 

1–800–323–8603. Such a complaint may 

be filed: By letter addressed to the 

Department of Homeland Security, 

Office of Inspector General, Hotline, 

Washington, DC 20528; By faxing the 

complaint to 202–254–4292; or by 

e-mailing DHSOIGHOTLINE@dhs.gov. 

(b) The complaint should include the 

name, address, and telephone number of 

the complainant; the name and location 

of the activity where the alleged 

violation occurred; the personnel action 

taken, withheld, or threatened that is 

alleged to be motivated by reprisal; the 

name(s) of the individual(s) believed to 

be responsible for the personnel action; 

the date when the alleged reprisal 

occurred; and any information that 

suggests or evidences a connection 

between the protected communication 

and reprisal. The complaint should also 

include a description of the protected 

communication, including a copy of any 

written communication and a brief 

summary of any oral communication 

showing the date of communication, the 

subject matter, and the name of the 

person or official to whom the 

communication was made. 

(c) A member of the Coast Guard who 

alleges reprisal for making or preparing 

to make a protected communication 

may submit an application for the 

correction of military records to the 

Board, in accordance with regulations 

governing the Board. See 33 CFR part 

52. 

* * * * * 

Dated: December 15, 2010. 

Robert J. Papp, Jr., 

Admiral, U.S. Coast Guard Commandant. 

[FR Doc. 2010–32017 Filed 12–20–10; 8:45 am] 

BILLING CODE 9110–04–P 


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