PART 998—MARINE AND AVIATION OPERATIONS Authority: 33 U.S.C. 3001 et seq. Source: 87 FR 31708, May 25, 2022, unless otherwise noted. Subpart A—Administrative Authority: 33 U.S.C. 3001 et seq. § 998.1 Definitions. As used in this part: Administration Administrator ADSO Chain of command Civilian training and advanced education Director Officer candidate NOAA Corps Secretary Written agreement Subpart B—Appointment of Officer Candidates of the Commissioned Officer Corps of the National Oceanic and Atmospheric Administration Authority: 33 U.S.C. 3006, 3021, 3034; 37 U.S.C. 203(f). § 998.10 Appointments of officer candidates. (a) The Secretary shall determine the number of appointments of officer candidates annually. (b) Applicants for an appointment as an officer candidate shall meet all qualifications described in § 998.11. (c) Selection and appointment of officer candidates shall be made according to the procedures described in § 998.12. (d) The Secretary may dismiss any officer candidate from the NOAA Corps Basic Officer Training Class who, during the candidate's term as an officer candidate, the Secretary considers unsatisfactory in either academics or conduct, or not adapted for a career in the NOAA Corps. Officer candidates shall be subject to all rules governing discipline prescribed by the Director. (e) Each officer candidate shall sign an agreement with the Secretary regarding the officer candidate's term of service in the NOAA Corps, which shall provide that the candidate agrees to: (1) Complete the course of instruction of the NOAA Corps Basic Officer Training Class; (2) Upon graduation from the Basic Officer Training Class program, accept an appointment, if tendered, to the grade of ensign; and (3) Serve on active duty in the NOAA Corps for at least four years immediately after such appointment. (f) An officer candidate or former officer candidate who is on active duty but who has not yet met their initial service obligation under paragraph (e)(3) of this section shall be considered to be in breach of their written agreement if they do not fulfill the terms of their service. (g) An individual found to be in breach of their written agreement shall be subject to the repayment provisions of § 998.30. § 998.11 Qualifications of officer candidates. (a) Original appointments to the NOAA Corps are made based on the qualifications of individual applicants and the needs of the NOAA Corps. Each applicant must: (1) Be a citizen of the United States of good moral character; (2) Be able to obtain and maintain a security clearance level of Secret; (3) Meet physical and mental qualifications as the Secretary may direct, such as physical fitness, medical, dental, and mental examinations; (4) Hold a baccalaureate degree, preferably in a major course of study related to NOAA's scientific or technical activities, awarded from an accredited postsecondary institution. All applicants, regardless of degree(s) awarded, must have completed at least 48 semester (72 quarter) hours in math, science, or engineering coursework pertaining to NOAA's mission unless waived by the Director based on the needs of the NOAA Corps; and (5) Have not twice failed selection for promotion in another uniformed service. (b) [Reserved] § 998.12 Selection of officer candidates. (a) The Secretary shall prescribe the number of applicants to be selected for officer candidates and the basic qualifications necessary to fulfill the needs of the NOAA Corps. (b) A personnel board convened pursuant to 33 U.S.C. 3022 shall review all qualified applicants and make recommendations for appointment to the Secretary and the President. Applicants shall be rated on collegiate record, work experience, references, the report of the interviewing officer, and all other available information. (c) Upon review of the recommendations of the personnel board, the Secretary shall make those temporary appointments in the grade of officer candidate as deemed appropriate. An original appointment of an officer candidate, upon graduation from the Basic Officer Training Class program of the NOAA Corps, may not be made in any other grade than ensign. (d) Officer candidates receiving appointments as ensigns upon graduation from the Basic Officer Training Class program shall take rank according to their proficiency as shown by the order of their merit at date of graduation. Subpart C—Active Duty Service Obligations of NOAA Corps Officers Authority: 10 U.S.C. 2005; 33 U.S.C. 3006, 3071(a)(22); 37 U.S.C. 303a(e), 373. § 998.20 Applicability. This subpart applies to all active duty NOAA Corps officers and officer candidates. § 998.21 Purpose. (a) This subpart establishes policies and procedures for the receipt, computation, and notice of ADSOs for all commissioned officers on the active duty lineal list. It also describes how multiple ADSOs incurred by the same officer are managed. (b) The ADSOs are intended to assist the NOAA Corps in: (1) Effectively managing its resources and workforce; (2) Accomplishing its assigned missions; (3) Maintaining an experienced and well-qualified officer force; and (4) Ensuring a reasonable return to the NOAA Corps following an expenditure of public funds. (c) Public funds are expended starting with the commissioning phase through the NOAA Corps Basic Officer Training Class and other commissioning programs. It continues when an officer enters active duty and enters training or education programs to qualify for specialized knowledge and skills. § 998.22 Policy. (a) In general, individuals entering active duty in the NOAA Corps must complete at least four years of obligated service upon appointment. (b) NOAA Corps officers who complete Government-funded or -sponsored formal education and training programs shall incur an ADSO. Officers must fulfill ADSOs before they are eligible for voluntary separation. The Director may grant a waiver of the ADSO as described in § 998.29. Officers will not be further obligated beyond the dates that ADSOs are fulfilled without their written consent. Officers who attend NOAA Corps and officer training programs, or civilian courses of instruction as stated in this Subpart may incur an ADSO for up to six years upon completion or termination from the course(s). (c) All NOAA Corps officers shall enter into written agreements that describe the officer's obligated service requirements prescribed in this subpart in return for such Government-funded or -sponsored education and training. The written agreement shall document the total cost of training that may be subject to the repayment provisions of § 998.30. § 998.23 Service obligations for original appointments. Officer candidates accepting an original appointment in the NOAA Corps upon graduation from the NOAA Corps Basic Officer Training Class as described in subpart B of this part shall incur an ADSO of 4 years. § 998.24 Service obligations for NOAA Corps or officer training and education. (a) NOAA Corps officers who attend any NOAA Corps or uniformed service officer training or education whose course of instruction is longer than 60 days or produces a duty under instruction officer evaluation report for long term training shall incur an ADSO to begin upon completion of the course or termination of attendance. If the officer does not complete the NOAA Corps or officer training, the ADSO shall still apply. The ADSO shall be calculated according to § 998.26. For the purpose of determining ADSOs, all aviation and maritime training longer than 60 days, not including the Basic Officer Training Class, shall be considered to be NOAA Corps or officer training. Exceptions to the computation standards in § 998.26 for NOAA Corps and officer training are as follows: (1) Officers who attend initial fixed-wing multi-engine flight training shall incur a six-year ADSO upon completion of the course or termination of attendance; (2) Officers who attend heavy aircraft flight training for the first time shall incur a four-year ADSO upon completion of the course or termination of attendance; (3) Officers who attend heavy aircraft flight training for a second time for the purpose of qualification on new airframes shall incur a three-year ADSO upon completion of the course or termination of attendance; (4) Officers who attend a test pilot school longer than six months (including the U.S. Naval Test Pilot School and U.S. Air Force Test Pilot School) shall incur a four-year ADSO upon completion of the course or termination of attendance; and (5) Officers selected as candidates for the National Aeronautics and Space Administration Astronaut Corps shall incur a three-year ADSO upon the conclusion of their detail and return to the NOAA Corps. (b) Concurrent obligations. (c) Consideration of NOAA Corps and officer training toward fulfillment of other service obligations. § 998.25 Service obligations for civilian training and advanced education. (a) Full-time courses. (b) Part-time courses. (c) NOAA Leadership Competencies Development Program. (d) Voluntary disenrollment or disenrollment for poor performance. (e) Disenrollment for mission needs. (f) Consecutive obligations. (g) Concurrent obligations. (h) Consideration of civilian education and training toward fulfillment of other service obligations. § 998.26 Computation of service obligations for NOAA Corps and officer training and civilian training and advanced education. Service obligations incurred under §§ 998.24 and 998.25(a) are computed as shown in this section, with the exception of fixed-period ADSOs as provided under § 998.24(a)(1) through (5). Officers may accumulate more than one ADSO from multiple obligating events. When an officer incurs an ADSO, compute the ADSO using the following rules: (a) For obligating events that require calculation: (1) For training greater than 60 days but equal to or fewer than 365 days: (i) Step 1. (ii) Step 2. (iii) Step 3. (iv) Example. (A) Step 1. (B) Step 2. (C) Step 3. (2) For training greater than 365 days: (i) Step 1. (ii) Step 2. (iii) Step 3. (iv) Step 4. (v) Example. (A) Step 1. (B) Step 2. (C) Step 3. (D) Step 4. (b) The officer will ensure that supporting documents for each event are submitted to the NOAA Commissioned Personnel Center for review and verification for accurate calculation of their ADSO. The length of the ADSO shall be identified in the written agreement with the officer described in § 998.22(c). § 998.27 Service obligations for undergraduate assistance programs. (a) Education Loan Repayment Program. (b) Student Pre-Commissioning Assistance Program. (1) Three years if the individual received fewer than three years of assistance; and (2) Five years if the individual received at least three years of assistance. (c) Concurrent obligations. § 998.28 Notification and verification of active duty service obligations. NOAA Corps officers will be informed of their ADSOs under this part as indicated: (a) The NOAA Corps Commissioned Personnel Center shall— (1) Maintain and make available for review to the officer a copy of the written agreement specifying the length of service obligation incurred; and (2) Verify that officers meet the requirements of their written agreements and determine if a breach has occurred and, if so, notify the officer of such determination in writing. (b) [Reserved] § 998.29 Waivers or suspension of compliance. (a) The Secretary may waive the service obligations of an officer incurred under § 998.23, § 998.24, and § 998.27 who: (1) Becomes unqualified to serve on active duty in the NOAA Corps because of a circumstance not within the control of that officer; or (2) Is: (i) Not physically qualified for appointment; and (ii) Determined to be unqualified for service in the NOAA Corps because of a physical or medical condition that was not the result of the officer's own misconduct or grossly negligent conduct. (b) The Secretary may waive the service obligations of an officer incurred under § 998.25 who fails to satisfy the eligibility requirements if the Secretary determines that the imposition of the repayment requirement and the termination of unpaid amounts of such assistance would be— (1) Contrary to personnel policy or management objective; (2) Against equity and good conscience; or (3) Contrary to the best interest of the United States. (c) With respect to a service obligation under § 998.27(a), the Secretary may relieve an officer's ADSO and provide an alternative obligation at the discretion of the Secretary, the terms of which will be documented in a new written agreement. (d) The authorities provided in this part to grant waivers or exceptions will be referenced in all written agreements. § 998.30 Repayment for failure to satisfy service requirements. (a) An officer who fails to satisfy eligibility requirements or to meet the service requirements prescribed in §§ 998.23, 998.24, 998.25, 998.27(a), and 998.27(b) is required to reimburse the Government in an amount that bears the same ratio of the total costs of the training or education provided to that officer as the unserved portion of active duty bears to the total period of active duty the officer agreed to serve, unless waived by the Secretary under § 998.29(a) or (b). Calculation of the total cost of training subject to repayment includes tuition and matriculation fees, library and laboratory services, purchase or rental of books, materials, and supplies, but does not include travel, lodging, salary, or other allowances otherwise entitled to the individual. The total cost shall be calculated by the NOAA Commissioned Personnel Center and included in any written agreement. (b) An obligation to reimburse the Government under this Section is, for all purposes, a debt owed to the United States. (c) A discharge in bankruptcy under title 11 of the U.S. Code that is entered less than 5 years after the termination of a written agreement entered into under this part does not discharge the individual signing the agreement from a debt arising under such agreement. 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. Source: 87 FR 59672, Oct. 3, 2022, unless otherwise noted. § 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 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 Inspector General Investigation report Personnel action Protected communication Records Examination Board Reprisal Retaliatory investigation § 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. § 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. et seq. (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 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. § 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 (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. Subpart E—Shore Leave Authority: 33 U.S.C. 3079b. Source: 88 FR 48725, July 28, 2023, unless otherwise noted. § 998.50 Applicability. This subpart applies to professional mariners as defined in section 3079b(c) of title 33, United States Code, and in § 998.51, who are regularly assigned duties aboard a NOAA ship. An employee is considered to be regularly assigned when his or her continuing duties are such that all or a significant part of them require that he or she serve aboard a NOAA ship. Temporary assignments of a shore-based employee of the Administration, such as for limited work projects or for training, do not constitute a regular assignment. This subpart does not apply to commissioned officers of the NOAA Corps serving on NOAA ships. § 998.51 Definitions. NOAA ship Professional mariner Shore leave § 998.52 Computation of shore leave. (a) A professional mariner earns shore leave at the rate of one day of shore leave for each 3 and one-half consecutive days of assignment to a NOAA ship such that a total of up to 4 days of shore leave may be earned in any given pay period. (b) For a professional mariner, an assignment begins either on the date he or she assumes their duties aboard a NOAA ship or on the date he or she comes aboard when a voyage is in progress. The assignment terminates on the date he or she ceases to be assigned to a NOAA ship or on the date on which he or she is released from assignment of their duties. (c) In computing days of assignment, the Administration shall also include: (1) The days a professional mariner spends traveling to join a NOAA ship to which assigned; (2) The days a professional mariner spends traveling between NOAA ships when the employee is assigned from one NOAA ship to another; and (3) The days on which the professional mariner is on sick leave when he or she becomes sick during an assignment (whether or not continued as a member of the crew) but not beyond the termination date of the assignment to the NOAA ship. (d) In computing days of assignment, the Administration shall not include days the professional mariner is on any kind of leave other than sick leave. § 998.53 Granting shore leave. (a) Authority. (2) A professional mariner shall submit his or her request for shore leave in writing and whenever such a request for shore leave is denied, the denial shall be in writing. (b) Accumulation. (c) Charge for shore leave. (d) Lump-sum payment. (e) Terminal leave. (2) NOAA shall grant shore leave as terminal leave when the professional mariner's inability to use shore leave was due to circumstances beyond his or her control and not due to his or her own act or omission. (f) Forfeiture of shore leave. (1) Separation from employment with the Administration, or (2) Official assignment (other than by temporary detail) to a position within NOAA in which the employee does not earn shore leave, is forfeited. When an official assignment will result in forfeiture of shore leave, NOAA, to the extent administratively practicable shall give an employee an opportunity to use the shore leave he or she has to his or her credit either before the reassignment or not later than 6 months after the date of his reassignment when the agency is unable to grant the shore leave before the reassignment. § 998.54 Pay for temporary promotion. Professional mariners serving in a position aboard a NOAA ship to which they have been temporarily promoted pursuant to 5 CFR 335.102(f) shall be paid the difference between their temporary and permanent rates of pay for leave accrued while serving in the temporary promotion position unless: (a) The professional mariner uses the leave before returning to their permanent position; or (b) The professional mariner is permanently promoted to the higher position without further competition.