Whistleblower Protection for Federal Bureau of Investigation Employees, 18487-18496 [2023-05927]
Download as PDF
Federal Register / Vol. 88, No. 60 / Wednesday, March 29, 2023 / Proposed Rules
sized documents that may be included
as part of the AVA petition. Contact
TTB’s Regulations and Rulings Division
by email using the web form at https://
www.ttb.gov/contact-rrd, or by
telephone at 202–453–1039, ext. 175, to
request copies of comments or other
materials.
Regulatory Flexibility Act
TTB certifies that this proposed
regulation, if adopted, would not have
a significant economic impact on a
substantial number of small entities.
The proposed regulation imposes no
new reporting, recordkeeping, or other
administrative requirement. Any benefit
derived from the use of a viticultural
area name would be the result of a
proprietor’s efforts and consumer
acceptance of wines from that area.
Therefore, no regulatory flexibility
analysis is required.
Executive Order 12866
This proposed rule is not a significant
regulatory action as defined by
Executive Order 12866. Therefore, it
requires no regulatory assessment.
List of Subjects in 27 CFR Part 9
Wine.
Proposed Regulatory Amendment
For the reasons discussed in the
preamble, we propose to amend title 27,
chapter I, part 9, Code of Federal
Regulations, as follows:
PART 9—AMERICAN VITICULTURAL
AREAS
1. The authority citation for part 9
continues to read as follows:
■
Authority: 27 U.S.C. 205.
Subpart C—Approved American
Viticultural Areas
■
2. Add § 9.ll to read as follows:
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§ 9.ll
Comptche.
(a) Name. The name of the viticultural
area described in this section is
‘‘Comptche’’. For purposes of part 4 of
this chapter, ‘‘Comptche’’ is a term of
viticultural significance.
(b) Approved maps. The one United
States Geological Survey (USGS)
1:24,000 scale topographic map used to
determine the boundary of the
viticultural area is titled Comptche,
California (provisional edition 1991).
(c) Boundary. The Comptche
viticultural area is located in
Mendocino County, California. The
boundary of the Comptche viticultural
area is as described as follows:
(1) The beginning point is on the
Comptche map at the intersection of a
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north-south tributary of the Albion
River and an unnamed improved road
known locally as Comptche Ukiah Road,
section 12, T16N/R16W. From the
beginning point, proceed northwest in a
straight line, crossing an unnamed,
unimproved road known locally as
Surprise Valley Road, to the 400-foot
elevation contour, section 12, T16N/
R16W; then
(2) Proceed north, then easterly along
the 400-foot elevation contour to its
intersection with an unnamed,
unimproved road southeast of the
marked 517-foot peak in section 1,
T16N/R16W; then
(3) Proceed southeasterly along the
unnamed, unimproved road to its
intersection with an unnamed,
unimproved road known locally as
Surprise Valley Road, section 1, T16N/
R16W; then
(4) Proceed northeasterly along
Surprise Valley Road to its intersection
with an unnamed, unimproved road
known locally as North Fork Road,
section 1, T16N/R16 W; then
(5) Proceed northwesterly along North
Fork Road to its intersection with an
unnamed, unimproved road known
locally as Docker Hill Road in section
36, T17N/R16W; then
(6) Proceed north along Docker Hill
Road to its intersection with the 400foot elevation contour, section 36,
T17N/R16W; then
(7) Proceed easterly along the 400-foot
elevation contour to its intersection
with the North Fork of the Albion River
in section 37, T17N/R15W; then
(8) Continue in a generally southerly
direction along the 400-foot elevation
contour to its intersection with an
unnamed intermittent creek in section
6, T16N/R15W; then
(9) Proceed south in a straight line to
the 400-foot elevation contour, section
6, T16N/R15W; then
(10) Proceed southeasterly, then
north, then southeasterly along the
meandering 400-foot elevation contour
to its intersection with the Albion River
in section 8, T16N/R15W; then
(11) Proceed westerly along the
Albion River to its intersection with a
north-south tributary in section 12,
T16N/R16W; then
(12) Proceed northeasterly along the
tributary, returning to the beginning
point.
(d) Exclusion. The Comptche
viticultural area as described in this
section is not included within the North
Coast viticultural area as described in
§ 9.30.
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18487
Signed: March 17, 2023.
Mary G. Ryan,
Administrator.
Approved: March 20, 2023.
Thomas C. West, Jr.,
Deputy Assistant Secretary (Tax Policy).
[FR Doc. 2023–06349 Filed 3–28–23; 8:45 am]
BILLING CODE 4810–31–P
DEPARTMENT OF JUSTICE
28 CFR Parts 0 and 27
[Docket No. JMD 154; AG Order No. 5618–
2023]
RIN 1105–AB47
Whistleblower Protection for Federal
Bureau of Investigation Employees
Department of Justice.
Notice of proposed rulemaking;
request for comments.
AGENCY:
ACTION:
The Department of Justice
(‘‘Department’’) proposes to update its
regulations on the protection of
whistleblowers in the Federal Bureau of
Investigation (‘‘FBI’’). This update
reflects changes resulting from an
assessment conducted by the
Department in response to Presidential
Policy Directive-19 of October 10, 2012,
‘‘Protecting Whistleblowers with Access
to Classified Information’’ (‘‘PPD–19’’),
and the Federal Bureau of Investigation
Whistleblower Protection Enhancement
Act of 2016 (‘‘FBI WPEA of 2016’’). The
proposed changes include updating the
description of protected whistleblower
disclosures and covered personnel
actions to conform to the FBI WPEA of
2016; providing for more equal access to
witnesses; and specifying that
compensatory damages may be awarded
as appropriate. The proposed changes
also include new provisions to
formalize practices that have been
implemented informally, including
providing for the use of
acknowledgement and show-cause
orders, providing access to alternative
dispute resolution through the
Department’s FBI Whistleblower
Mediation Program, clarifying the
authority to adjudicate allegations of a
breach of a settlement agreement, and
reporting information about those
responsible for unlawful reprisals. The
proposed regulation reiterates that the
determinations by the Director of the
Office of Attorney Recruitment and
Management (‘‘OARM’’) must be
independent and impartial. Finally,
through this proposed rule, the
Department is inviting specific
comments on and recommendations for
SUMMARY:
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Federal Register / Vol. 88, No. 60 / Wednesday, March 29, 2023 / Proposed Rules
how the Department might further
revise the regulations to increase
fairness, effectiveness, efficiency, and
transparency, including to provide
enhanced protections for
whistleblowers, in addition to the
proposed changes identified above.
DATES: Written comments and related
material must be postmarked, and other
comments and related material must be
submitted, on or before May 30, 2023.
You should be aware that the Federal
eRulemaking Portal will accept
comments submitted prior to midnight
Eastern Time on the last day of the
comment period.
ADDRESSES: You should submit
comments identified by docket number
using any one of the following methods:
(1) Federal eRulemaking Portal:
https://www.regulations.gov;
(2) Mail or Delivery: Morton J. Posner,
General Counsel, Justice Management
Division, U.S. Department of Justice,
145 N St. NE, Suite 8E.500, Washington,
DC 20530.
FOR FURTHER INFORMATION CONTACT:
Morton J. Posner, General Counsel,
Justice Management Division, telephone
202–514–34; or Hilary S. Delaney,
Assistant Director, Office of Attorney
Recruitment and Management,
telephone 202–532–3188; email:
Morton.J.Posner@usdoj.gov or
Hilary.S.Delaney@usdoj.gov.
SUPPLEMENTARY INFORMATION:
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I. Public Participation and Request for
Comments
We encourage you to participate in
this rulemaking by submitting
comments and related materials, if any.
All comments received will be posted
without change to https://
www.regulations.gov and will include
any personal information you have
provided.
A. Submitting Comments
If you submit a comment, please
include the docket number for this
rulemaking, 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 at https://
www.regulations.gov or by email, mail,
or hand delivery, but please use only
one of these means. If you submit a
comment online, it will be considered
received by the Department when you
successfully transmit the comment. The
Department recommends that you
include your name and a mailing
address, an email address, or a
telephone number in the body of your
document.
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To submit your comment online, go to
https://www.regulations.gov, type the
docket number ‘‘JMD 154’’ in the
‘‘SEARCH’’ box, and click ‘‘SEARCH.’’
Click on ‘‘Submit a Comment’’ on the
line associated with this rulemaking.
B. Posting of Public Comments
Please note that all comments
received are considered part of the
public record and made available for
public inspection online at https://
www.regulations.gov. Such information
includes personal identifying
information (such as your name and
address) that you voluntarily submit,
unless the process described below is
followed.
You are not required to submit
personal identifying information in
order to comment on this rule.
Nevertheless, if you want to submit
personal identifying information (such
as your name and address) as part of
your comment, but do not want it to be
posted online, you must include the
phrase ‘‘PERSONAL IDENTIFYING
INFORMATION’’ in the first paragraph
of your comment. You also must place
all the personal identifying information
you do not want posted online in the
first paragraph of your comment and
identify what information you want
redacted.
If you want to submit confidential
business information as part of your
comment but do not want it to be posted
online, you must include the phrase
‘‘CONFIDENTIAL BUSINESS
INFORMATION’’ in the first paragraph
of your comment. You also must
prominently identify confidential
business information to be redacted
within the comment. If a comment has
so much confidential business
information that it cannot be effectively
redacted, the Department may make the
determination not to post all or part of
that comment on https://
www.regulations.gov.
Personal identifying information and
confidential business information
identified and located as set forth above
will be placed in the agency’s public
docket file but not posted online. If you
wish to inspect the agency’s public
docket file in person by appointment,
please see the paragraph above entitled
FOR FURTHER INFORMATION CONTACT.
C. Viewing Comments and Documents
To view comments, go to https://
www.regulations.gov, type the docket
number ‘‘JMD–154’’ in the ‘‘SEARCH’’
box, and click ‘‘SEARCH.’’ Click on
‘‘Open Docket Folder’’ on the line
associated with this rulemaking.
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D. 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
the individual signing the comment if
comments are submitted on behalf of an
association, business, labor union, etc.).
II. Executive Summary
On November 1, 1999, the Department
issued a final rule entitled
‘‘Whistleblower Protection For Federal
Bureau of Investigation Employees,’’
published in the Federal Register at 64
FR 58782, establishing procedures
under which (1) FBI employees or
applicants for employment with the FBI
may make disclosures of information
protected by the Civil Service Reform
Act of 1978, Public Law 95–454
(‘‘CSRA’’), and the Whistleblower
Protection Act of 1989 (‘‘WPA’’), Public
Law 101–12; and (2) the Department
will investigate allegations by FBI
employees and applicants for
employment of reprisal for making such
protected disclosures and take
appropriate corrective action. The rule
is codified at 28 CFR part 27.
On January 9, 2008, the Department
updated part 27 as well as 28 CFR 0.29d
primarily to conform to organizational
changes brought about by a
restructuring of relevant offices of the
FBI. Technical Amendments to the
Regulations Providing Whistleblower
Protection for Federal Bureau of
Investigation Employees, 73 FR 1493.
On October 10, 2012, President
Barack Obama issued PPD–19, which, in
part, directed that the Department
prepare a report that (1) assesses the
efficacy of the Department’s FBI
whistleblower protection regulations
found in 28 CFR part 27 in deterring the
personnel practices prohibited in 5
U.S.C. 2303, and in ensuring
appropriate enforcement of section
2303, and (2) describes any proposed
revisions to those regulations that
would increase their effectiveness in
fulfilling the purposes of section 2303.
PPD–19 at 5.
In response to this directive, the
Office of the Deputy Attorney General
conducted a comprehensive review of
the Department’s whistleblower
regulations and historical experience
with their operation.1 As part of that
process, the Department formed a
working group, seeking participation
from the other key participants in
1 On November 27, 2012, President Obama signed
the Whistleblower Protection Enhancement Act of
2012, Public Law 112–199, (‘‘WPEA of 2012’’). The
Department considered the WPEA of 2012 as part
of its PPD–19 review.
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administering the Department’s FBI
whistleblower regulations—the FBI,
OARM, the Office of the Inspector
General, and the Office of Professional
Responsibility—as well as the Justice
Management Division. In addition, the
Department consulted with the Office of
Special Counsel (‘‘OSC’’) and FBI
employees, as required by PPD–19. The
Department also consulted with
representatives of non-governmental
organizations that support
whistleblowers’ rights and with private
counsel for whistleblowers (collectively,
whistleblower advocates).2
With respect to consultation with FBI
employees, the FBI’s representatives on
the Department’s working group
consulted with various FBI entities: the
Ombudsman; the Office of Equal
Employment Opportunity Affairs; the
Office of Integrity and Compliance; the
Office of Professional Responsibility;
the Human Resources Division; and the
Inspection Division. The representatives
also solicited the views of each of the
FBI’s three official advisory committees
that represent FBI employees—the AllEmployees Advisory Committee, the
Agents Committee, and the MiddleManagement Committee.
In April 2014, after completion of the
PPD–19 review, the Department issued
a report, ‘‘Department of Justice Report
on Regulations Protecting FBI
Whistleblowers’’ (‘‘PPD–19 Report’’). (A
copy of this report is available at
www.regulations.gov in connection with
this rulemaking, or as provided above
under the heading FOR FURTHER
INFORMATION CONTACT.) The report
considered the historical context of the
Department’s efforts to protect FBI
whistleblowers from reprisal and the
Department’s current policies and
procedures for adjudicating claims of
reprisal against FBI whistleblowers;
summarized and analyzed statistics
regarding the use of these policies and
procedures in recent years; and
identified desired changes to existing
policies and procedures as a result of
this assessment.
The Department’s proposed rule
reflects the PPD–19 Report’s findings
and recommendations, as modified to
comply with the FBI WPEA of 2016,
discussed in further detail below in this
preamble, which President Obama
signed on December 16, 2016. In
addition, through this notice of
proposed rulemaking, the Department is
2 The Department convened a meeting with the
following whistleblower advocate organizations:
Project on Government Oversight; Kohn, Kohn &
Colapinto; Government Accountability Project;
American Civil Liberties Union; and a former chief
counsel to the chairman of the Merit Systems
Protection Board.
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inviting specific comments on and
recommendations for how the
Department might further revise the
regulations to increase fairness,
effectiveness, efficiency, and
transparency, including to provide
enhanced protections for
whistleblowers.
III. Historical Background on FBI
Whistleblower Protection
Legislative protection of civilian
Federal whistleblowers from reprisal
began in 1978 with passage of the
CSRA, and was expanded by the WPA
and the WPEA of 2012. Currently,
Federal employees fall into three
categories. Most civilian Federal
employees are fully covered by the
statutory regime established by the
CSRA, which permits them to challenge
alleged reprisals through the OSC and
the Merit Systems Protection Board
(‘‘MSPB’’). By contrast, some Federal
agencies that deal with intelligence are
expressly excluded from the
whistleblower protection scheme
established by these statutes.
The FBI is in an intermediate
position: Although it is one of the
agencies expressly excluded from the
scheme established for Federal
employees generally, its employees
nevertheless are protected by a separate
statutory provision and special
regulations promulgated pursuant to
that provision, which forbid reprisals
against FBI whistleblowers and provide
an administrative remedy within the
Department. See 28 CFR part 27.
To elaborate, the CSRA sets forth
‘‘prohibited personnel practices,’’ which
are a range of personnel actions that the
Federal Government may not take
against Federal employees. One such
prohibited personnel practice is
retaliating against an employee for
revealing certain agency information.
Specifically, the CSRA originally made
it illegal for an agency to take or fail to
take a personnel action with respect to
any employee or applicant for
employment as a reprisal for disclosure
of information that the employee or
applicant reasonably believed
evidenced a violation of any law, rule,
or regulation, or mismanagement, a
gross waste of funds, an abuse of
authority, or a substantial and specific
danger to public health or safety. Public
Law 95–454, sec. 101(a), codified at 5
U.S.C. 2302(b)(8). The CSRA also
created the MSPB and OSC to enforce
the prohibitions on specified personnel
practices.
The CSRA, however, expressly
excluded from this scheme the FBI, the
Central Intelligence Agency, various
intelligence elements of the Department
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18489
of Defense, and any other executive
agency or unit thereof as determined by
the President with the principal
function of conducting foreign
intelligence or counterintelligence
activities. Public Law 95–454, sec.
101(a), codified at 5 U.S.C.
2302(a)(2)(C)(ii).
For the FBI alone, the CSRA
specifically prohibited taking a
personnel action against employees or
applicants for employment as a reprisal
for disclosing information that the
employee or applicant reasonably
believed evidenced a violation of any
law, rule, or regulation, or
mismanagement, a gross waste of funds,
an abuse of authority, or a substantial
and specific danger to public health or
safety. Id., codified at 5 U.S.C.
2303(a)(1), (2). The CSRA defined a
‘‘personnel action’’ for the purpose of
the FBI-specific prohibition as any
action specifically described in clauses
(i) through (x) of 5 U.S.C. 2302(a)(2)(A),
taken with respect to an employee in—
or an applicant for—a position other
than one of a confidential, policydetermining, policymaking, or policyadvocating character. Id., codified at 5
U.S.C. 2303(a). In addition, the CSRA
limited the protection of the FBIspecific prohibition to only those
disclosures that the FBI employee made
through narrowly defined internal
channels—i.e., to the Attorney General
or the Attorney General’s designee. Id.
Finally, the CSRA directed the President
to provide for the enforcement of the
provision relating to FBI whistleblowers
in a manner consistent with applicable
provisions of 5 U.S.C. 1206, the section
of the CSRA that originally set out the
responsibilities of the OSC, the MSPB,
and agency heads in response to a
whistleblower complaint and provided
for various remedies. Id., codified at 5
U.S.C. 2303(c).
In April 1980, the Department
published a final rule implementing
section 2303. The rule provided, among
other things, for a stay of any personnel
action if there were reasonable grounds
to believe that the personnel action was
taken, or was to be taken, as a reprisal
for a disclosure of information by the
employee to the Attorney General or the
Attorney General’s designee that the
employee reasonably believed
evidenced wrongdoing covered by
section 2303. Office of Professional
Responsibility; Protection of
Department of Justice Whistleblowers,
45 FR 27754, 27755 (Apr. 24, 1980).
In 1989, the statutory scheme for most
civilian employees changed in some
respects when Congress passed the
WPA, which significantly expanded the
avenues of redress generally available to
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civilian Federal employees. In doing so,
it replaced section 1206 with sections
1214 and 1221; these new sections set
forth the procedures under which OSC
would investigate prohibited personnel
practices and recommend or seek
corrective action, and the circumstances
under which an individual right of
action before the MSPB would be
available. Public Law 101–12, sec. 3.
Consistent with this change, the WPA
amended section 2303, governing FBI
whistleblowers, to replace the
requirement that enforcement of
whistleblower protections be consistent
with applicable provisions of section
1206 with a requirement that
enforcement be consistent with
applicable provisions of newly-added
sections 1214 and 1221. Public Law
101–12, sec. 9(a)(1).
The WPA also amended the regime
generally applicable to civil service
employees by revising section 2302 to
protect only disclosures of information
the employee reasonably believes
evidences ‘‘gross mismanagement,’’
rather than ‘‘mismanagement,’’ as
originally provided by the CSRA. Pub.
L. 101–12, sec. 4(a). However, the WPA
did not make a corresponding change to
section 2303, the statute applicable to
FBI whistleblowers.
On April 14, 1997, President William
J. Clinton issued a memorandum
delegating to the Attorney General the
functions concerning employees of the
FBI vested in the President by the
CSRA, and directing the Attorney
General to establish appropriate
processes within the Department to
carry out these functions. Delegation of
Responsibilities Concerning FBI
Employees Under the Civil Service
Reform Act of 1978, 62 FR 23123 (Apr.
28, 1997). In November 1999, the
Department published a final rule
establishing procedures under which
FBI employees or applicants for
employment may make disclosures of
wrongdoing. 64 FR 58782 (Nov. 1,
1991). The rule created a remedial
scheme within the Department through
which FBI employees can seek redress
when they believe they have suffered
reprisal for making a protected
disclosure. Subject to minor
amendments in 2001 and 2008, the rule,
codified at 28 CFR part 27, remains in
force.
On November 27, 2012, the month
following President Obama’s issuance of
PPD–19, he signed the WPEA of 2012
into law. That act, among other things,
amended 5 U.S.C. 1214 and 5 U.S.C.
1221 to authorize awards of
compensatory damages. Although the
FBI is expressly excluded from coverage
under these statutory provisions and is
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instead covered by 5 U.S.C. 2303,
section 2303 directs that the President
ensure enforcement of section 2303 in a
‘‘manner consistent with the applicable
provisions of sections 1214 and 1221.’’
5 U.S.C. 2303(c). The WPEA of 2012
also expanded the number of prohibited
personnel actions set out in section
2302(a)(2), but made no corresponding
change to the cross-reference in section
2303(a). Accordingly, the Department
has considered the WPEA of 2012’s
changes to sections 1214, 1221, and
2302(a) and their impact on the FBI’s
whistleblower protection program under
section 2303 and has concluded that
corresponding technical amendments to
the current regulations are appropriate,
as described further below.
On December 16, 2016, President
Obama signed Public Law 114–302, the
FBI WPEA of 2016. That statute made
two changes to the statutory
whistleblower protection scheme
applicable to FBI employees. First, it
expanded the list of recipients set forth
in 5 U.S.C. 2303(a) to whom a
disclosure could be made to be
protected (assuming the substantive
requirements are met). Protected
disclosures now may be made to an
employee’s supervisor in the employee’s
direct chain of command, up to and
including the Attorney General; the
Inspector General; the Department’s
Office of Professional Responsibility;
the FBI Office of Professional
Responsibility; the FBI Inspection
Division; Congress, as described in 5
U.S.C. 7211; OSC; or an employee
designated to receive such disclosures
by any officer, employee, office, or
division of the listed entities. See Public
Law 114–302, sec. 2.
Second, the FBI WPEA of 2016
changed the substantive requirement for
a protected disclosure, requiring that the
disclosure be one that the discloser
reasonably believes evidences any
violation (previously, ‘‘a violation’’) of
any law, rule, or regulation, or gross
mismanagement (previously, just
‘‘mismanagement’’), in addition to the
previous (and unchanged) provision for
disclosures of a gross waste of funds, an
abuse of authority, or a substantial and
specific danger to public health or
safety. Id.
And most recently, Public Law 117–
263, the James M. Inhofe National
Defense Authorization Act for Fiscal
Year 2023, amended section 2303,
specifically allowing FBI employees to
appeal a final determination or
corrective action order to the MSPB
pursuant to section 1221. See Public
Law 117–263, sec. 5304(a), codified at 5
U.S.C. 2303(d).
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The changes contemplated by this
proposed rule are intended to (1)
improve, pursuant to PPD–19 and
consistent with the Department’s
recommendations in the PPD–19 Report,
the internal investigation and
adjudication of whistleblower
retaliation claims by FBI employees and
applicants for employment under the
remedial scheme initially established in
1999 and codified at 28 CFR parts 0 and
27; and (2) ensure that this process is
consistent with changes enacted by the
WPEA of 2012 and the FBI WPEA of
2016.
Finally, through this notice of
proposed rulemaking, the Department is
inviting specific comments on and
recommendations for how the
Department might further revise the
regulations to increase fairness,
effectiveness, efficiency, and
transparency, including to provide
enhanced protections for
whistleblowers, in addition to the
proposed changes.
IV. Proposed Changes in This Rule
A. Revising the Description of a
Protected Disclosure in Part 0.29d To
Conform to the Requirements of the FBI
WPEA of 2016
The Department proposes
amendments to 28 CFR 0.29d to
conform to the substantive requirements
of a protected disclosure found in 5
U.S.C. 2303(a)(2)(A) and (B), as
amended by the FBI WPEA of 2016.
Specifically, the Department proposes
that, in the first sentence of 28 CFR
0.29d(a), the phrase ‘‘a violation of any
law, rule, or regulation, or
mismanagement’’ be changed to ‘‘any
violation of any law, rule, or regulation,
or gross mismanagement’’ to conform to
the statutory text. The Department
invites comments on this proposed
change.
B. Proposed Changes to Part 27
1. Expanding the Definition of Persons
to Whom a Protected Disclosure Must
Be Made To Conform to the
Requirements of the FBI WPEA of 2016
To conform to the requirements of the
FBI WPEA of 2016, the Department
proposes to expand the set of offices and
officials to whom a ‘‘protected
disclosure’’ must be made. Under the
current rule, a disclosure is considered
protected if (1) its content qualifies for
protection, and (2) it was made to one
of these identified entities or
individuals:
• the Department’s Office of
Professional Responsibility;
• the Department’s Office of the
Inspector General;
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• the FBI Office of Professional
Responsibility;
• the FBI Inspection Division Internal
Investigations Section;
• the Attorney General;
• the Deputy Attorney General;
• the Director of the FBI;
• the Deputy Director of the FBI; or
• the highest ranking official in any
FBI field office.
See 28 CFR 27.1(a). The proposed rule
would expand this list to comply with
the changes made by the FBI WPEA of
2016. See Public Law 114–302, sec. 2.
Specifically, the proposed rule would
require that, to be protected, a
disclosure must be made to:
• a supervisor in the direct chain of
command of the employee, up to and
including the Attorney General;
• the Inspector General;
• the Department’s Office of
Professional Responsibility;
• the FBI Office of Professional
Responsibility;
• the FBI Inspection Division;
• Congress, as described in section
7211;
• OSC; or
• an employee of any of the above
entities, when designated by any officer,
employee, office, or division thereof for
the purpose of receiving such
disclosures.
In addition, in order to emphasize the
necessity of making a disclosure to a
designated recipient for it to be
protected (where it meets the
substantive requirements), the
Department proposes adding paragraph
(c) in § 27.1, stating expressly that a
disclosure must be made to one of the
offices or officials specified in
paragraph (a) in § 27.1 in order to
qualify as a protected disclosure under
part 27. This change would not alter the
substantive requirements of the current
§ 27.1, and does not restrict the
expanded list of offices and officials to
whom a disclosure may be made as
described immediately above, but is
added to avoid any potential
misunderstanding regarding this key
procedural element of a protected
disclosure covered by part 27. FBI
whistleblowers are only entitled to
statutory protection from reprisals for
making protected disclosures when they
make disclosures to offices or officials
specifically listed in the FBI WPEA of
2016. To ensure FBI whistleblowers are
fully protected, this change clearly
identifies the expanded list of offices
and officials to whom disclosures must
be made. The Department invites
comments on this proposed change.
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2. Revising the Substantive
Requirements of a Protected Disclosure
To Conform to the Requirements of the
FBI WPEA of 2016
The Department proposes
amendments to 28 CFR 27.1(a)(1) and
(a)(2) to conform to the substantive
requirements of a protected disclosure
found in 5 U.S.C. 2303(a)(2)(A) and (B),
as amended by the FBI WPEA of 2016.
Specifically, the Department proposes
that 28 CFR 27.1(a)(1) be changed from
‘‘A violation of any law, rule, or
regulation’’ to ‘‘Any violation of any
law, rule, or regulation.’’ The
Department also proposes that, for the
same reason, ‘‘Mismanagement’’ in 28
CFR 27.1(a)(2) be removed and replaced
with ‘‘Gross mismanagement.’’ The
Department invites comments on this
proposed change.
3. Revising the Definition of ‘‘Prohibited
Personnel Practice’’ Following
Enactment of the WPEA of 2012
The Department also proposes an
amendment to 28 CFR 27.2(b) to
conform § 27.2(b)’s definition of
‘‘personnel action’’ to the definition
now found in 5 U.S.C. 2302(a)(2)(A).
Section 2303 provides that, ‘‘[f]or the
purpose of this subsection, ‘personnel
action’ means any action described in
clauses (i) through (x) of section
2302(a)(2)(A).’’ When section 2303 was
first enacted, section 2302(a)(2)(A)
contained only ten clauses, designated
(i) through (x), and thus the definition
of ‘‘personnel action’’ was identical for
both sections. Clause (x) was a ‘‘catchall’’ provision covering ‘‘any other
significant change in duties,
responsibilities, or working conditions.’’
In 1994, Congress added an additional
personnel action to section
2302(a)(2)(A), a decision to order
psychiatric testing or examination. See
Public Law 103–424, sec. 5(a) (1994).
The additional personnel action was
designated as clause (x), and the catchall provision was re-designated as
clause (xi). Id. sec. 5(a)(2). This change
did not alter section 2303, which
continued to refer only to ‘‘clauses (i)
through (x) of section 2302(a)(2)(A).’’
Pursuant to the Attorney General’s
authority under 5 U.S.C. 301 to
‘‘prescribe regulations for the
government of [the] department [and]
the conduct of its employees,’’ the
Department accepted commenters’
recommendations to define ‘‘personnel
action’’ to include all eleven personnel
actions in section 2302(a)(2)(A),
including the catch-all provision, in its
1999 final rule, as codified at 28 CFR
27.2(b). See 64 FR 58784–85
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Several years after this change, the
WPEA of 2012 added a twelfth
personnel action to section
2302(a)(2)(A): ‘‘the implementation or
enforcement of any nondisclosure
policy, form, or agreement’’ (the
nondisclosure provision). Public Law
112–199, sec. 104(a)(2). This new
provision was designated as clause (xi),
while the catch-all provision, formerly
clause (xi), became clause (xii).
The Department proposes to define
‘‘personnel action’’ in § 27.2(b) to
include all twelve personnel actions
currently listed in section 2302(a)(2)(A),
including the nondisclosure provision
added by the WPEA of 2012. Doing so
will ensure that FBI employees making
protected disclosures are shielded
against the same adverse personnel
actions as other Federal civilian
employees, which appears to have been
the underlying purpose of incorporating
section 2302’s definition of ‘‘personnel
action’’ into section 2303. The Attorney
General has the authority to incorporate
the nondisclosure provision into the
definition of ‘‘personnel action’’ in
§ 27.2(b) pursuant to 5 U.S.C. 301,
which authorizes the Attorney General
to ‘‘prescribe regulations for the
government of [the] department [and]
the conduct of its employees.’’ See In re
Boeh, 25 F.3d 761, 763 (9th Cir. 1994)
(explaining that section 301 permits the
Department of Justice to regulate ‘‘the
conduct of employees, the performance
of the agency’s business, and the use of
its records’’). The Attorney General
invoked the same authority in the 1999
final rule discussed above. 64 FR
58784–85. The net effect of the
proposed revisions to the definition of
‘‘personnel action’’ in § 27.2(b) will be
to retain the catch-all provision, while
also including the non-disclosure
provision added by the WPEA of 2012.
The Department invites comments on
this proposed change.
4. Equalizing Access to Witnesses
During the PPD–19 review,
whistleblower advocate groups raised
concerns that, in an unspecified number
of cases, the FBI has been able to obtain
evidence from FBI management officials
or employees as witnesses, either
through affidavits or testimony at a
hearing, but that complainants were
unable to obtain similar access to FBI
witnesses, particularly former
employees. Because the Director of
OARM (‘‘OARM Director’’) lacks the
authority to compel attendance at a
hearing, appearance at a deposition, or
the production of documentary
evidence from individuals not currently
employed by the Department, the
groups asked the Department to
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consider a regulatory provision that
would help all parties equalize access to
witnesses. Therefore, the Department
proposes adding a sentence to
§ 27.4(e)(3) to give the OARM Director
the discretion to prohibit a party from
adducing or relying on evidence from a
person whom the opposing party does
not have an opportunity to examine or
to give less weight to such evidence.
The Department invites comments on
this proposed change.
5. Improving Case Processing by Use of
Acknowledgement and Show-Cause
Orders
The Department proposes to formalize
the use of acknowledgement and showcause orders by the OARM Director to
assist in the management and
adjudication of whistleblower reprisal
claims.
Under OARM’s current procedures,
28 CFR 27.4(c)(1), when a complainant
files a request for corrective action
(‘‘RCA’’) with OARM, the OARM
Director is to notify the FBI of the
RCA—usually by forwarding the RCA to
the FBI—and provide the FBI 25
calendar days to file its response. In
some instances, however, the allegations
in a complainant’s RCA are insufficient
to allow either the OARM Director or
the FBI to reasonably construe the
specific claims raised. In such cases, the
agency’s usual practice is for the OARM
Director to issue an order requiring the
complainant to supplement the RCA to
specifically address the elements of a
whistleblower claim necessary for
OARM’s jurisdiction. The OARM
Director then forwards the RCA, as
supplemented, to the FBI for a response.
The complainant is afforded an
opportunity to file a reply to the FBI’s
response, and the FBI is afforded time
to file a surreply. The OARM Director
then makes a jurisdictional
determination regarding the
complainant’s RCA. If the OARM
Director finds that it has jurisdiction to
consider all or some of the
complainant’s claims, the parties are so
notified and are directed to engage in
relevant discovery.
The MSPB’s analogous procedures
illustrate how the use of
acknowledgment and show-cause orders
may expedite the process. See Merit
Sys. Protection Bd., Judges’ Handbook
19–21 (2019), https://www.mspb.gov/
appeals/files/ALJHandbook.pdf. At the
MSPB, an administrative judge must
ordinarily issue an acknowledgment
order within three business days of
receipt of an appeal; that order
acknowledges receipt of the appeal and
informs the parties of the MSPB’s case
processing procedures regarding, for
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example, designation of a
representative, discovery, and
settlement. Id. at 20.
The proposed amendments at § 27.4(f)
would formalize the OARM Director’s
existing use of acknowledgment and
show-cause orders similar to those
issued by the MSPB. The current
language pertaining to OARM’s initial
case processing procedures in 28 CFR
27.4(c)(1) would be revised accordingly
to reflect the practice used by the
OARM Director in issuing an
acknowledgment order, which would
also be reflected in a new paragraph (f)
in § 27.4. The new paragraph (f) would
also formalize the practice of issuing a
show-cause order where the OARM
Director determines that there is an
initial question of jurisdiction and
would contain procedures relating
thereto. The Department invites
comments on this proposed change.
6. Awarding Compensatory Damages
In directing agency heads to consider
corrective actions in cases in which
reprisal for whistleblowing is found to
have occurred, PPD–19 provided that
corrective action may include
compensatory damages, to the extent
authorized by law. PPD–19 at 2.
Accordingly, the Department proposes
amending paragraph (g) of § 27.4 to
provide that the OARM Director may
award compensatory damages to the
extent authorized by law, in addition to
other available relief. Currently, under
§ 27.4(f), permissible OARM corrective
action includes: placing the
Complainant, as nearly as possible, in
the position he would have been in had
the reprisal not taken place;
reimbursement for attorney’s fees,
reasonable costs, medical costs
incurred, and travel expenses; back pay
and related benefits; and any other
reasonable and foreseeable
consequential damages. The Department
invites comments on this proposed
change.
7. Reporting Findings of Unlawful
Reprisal
In drafting the PPD–19 Report, the
Department considered a
recommendation that any final decision
that includes a finding of unlawful
reprisal be forwarded to the appropriate
authority for consideration of whether
disciplinary action is warranted against
the officials responsible for the reprisal.
In 2013, the OARM Director
implemented a policy of forwarding to
the FBI Office of Professional
Responsibility, the FBI Inspection
Division, and the FBI Director a copy of
the final determination in cases where
the OARM Director finds reprisal. That
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decision includes citations to the
supporting evidence of record as well as
the names of the officials found to be
responsible for the reprisal. The
Department proposes to formalize this
process through the addition of
paragraph (h) in § 27.4. The Department
invites comments on this proposed
change.
8. Proposed Statement: Independence
and Impartiality of OARM
Determinations
During the Department’s PPD–19
review, whistleblower advocates
expressed concern with the internal
Departmental adjudication of FBI
reprisal cases brought under part 27. In
drafting the PPD–19 Report, the
Department considered whether to
amend part 27 to make explicit what has
always been implicit regarding the
independence and impartiality of the
determinations made by the OARM
Director. The Department thus proposes
adding language to § 27.4(e)(1) to note
expressly that the determinations made
by the OARM Director shall be
independent and impartial. The
Department invites comments on this
proposed change.
9. Providing Access to Alternative
Dispute Resolution (‘‘ADR’’)
As a result of its review under PPD–
19, the Department determined that
ADR should be made more readily
available in whistleblower cases
because ADR can focus the parties’
attention at early stages of a proceeding,
enabling each side to learn more about
the other side’s goals in a manner that
may facilitate early resolution. PPD–19,
at 11. Accordingly, the Department
created a voluntary mediation program
for FBI whistleblower cases using the
existing Department of Justice Mediator
Corps (‘‘DOJMC’’).
The Department’s Equal Employment
Opportunity (‘‘EEO’’) community
created the DOJMC Program in 2009 as
a means of informal resolution to
address and, when possible, resolve
workplace disputes. Although the
program focuses on EEO issues, the
mediators are available to help resolve
any type of dispute. The FBI Office of
Equal Employment Opportunity Affairs
is responsible for the operational
management of the DOJMC Program, the
scope of which is Department-wide. The
DOJMC currently has approximately 70
collateral-duty mediators. Roughly twothirds are FBI employees; the remaining
mediators are drawn from across other
Department components. Current
mediator resources are expected to be
sufficient to make available a mediator
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from outside the FBI should the
complainant so desire.
The Department launched the
mediation program for FBI
whistleblower cases in April 2014,
staffed by a cadre of skilled mediators
trained by the Department for that
purpose. The Department proposes to
formalize inclusion of the ADR program
by amending part 27 to add § 27.7,
which would provide that the
complainant may request ADR from the
time of the filing of the initial claim
with the office that will conduct the
investigation (‘‘Conducting Office’’), see
28 CFR 27.3(c), and at any subsequent
point thereafter throughout the process.
Under proposed new paragraph (b) of
§ 27.7, if the Complainant elects ADR,
the FBI, represented by the Office of
General Counsel, will participate. When
ADR is elected, under proposed new
paragraph (c) of § 27.7, proceedings will
be stayed upon transmittal of the matter
to the DOJMC Program office. The initial
period of the stay will be 90 days and
may be extended for up to 45 additional
days upon joint request from the parties
to the office before which the matter is
stayed. Additional requests for an
extension of the stay would be available
only by grant of the OARM Director,
regardless of the office before which the
matter is pending, and only upon joint
request by the parties showing good
cause. The Department invites
comments on this proposed change.
10. Authority of the OARM Director To
Adjudicate Allegations of a Breach of a
Settlement Agreement
The Department has concluded that
the OARM Director should adjudicate
allegations of a breach of any settlement
agreement reached in proceedings and
in a forum under this part 27. Arguably,
the OARM Director would have the
authority to do so under the change
proposed for § 27.4(e)(4) because the
provision includes the broad authority
to manage the adjudication of claims of
reprisal. The Department nonetheless
proposes to add § 27.8 making clear that
the OARM Director has authority to
adjudicate allegations of a breach of a
settlement agreement reached in
proceedings and in a forum under this
part 27. In addition, § 27.8 would state
that, in carrying out the function of
adjudicating claims of a breach of such
settlement agreements, the OARM
Director shall exercise the authorities
granted under the change proposed for
§ 27.4(e)(4), in accordance with any
procedures the OARM Director may
establish to facilitate the efficient
discharge of that function. The new
§ 27.8 also would provide the parties
with a right of review by the Deputy
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Attorney General of any decision by the
OARM Director on a breach of
settlement claim. The Department
invites comment on this proposed
change.
11. Invitation To Submit Comments and
Recommendations To Enhance Fairness,
Efficiency and Transparency Regarding
Whistleblower Activity, Including To
Provide Enhanced Protections for
Whistleblowers
The Department believes that the
process by which it adjudicates
allegations that the FBI has retaliated
against whistleblowers should be as fair,
effective, efficient, and transparent as
possible. The Department therefore
invites specific comments on and
recommendations for how the
Department might revise part 27 to
increase fairness, effectiveness,
efficiency, and transparency, including
to provide enhanced protections for
whistleblowers, in addition to the
proposed changes described above.
V. Regulatory Analyses
In developing this proposed rule, the
Department considered numerous
statutes and executive orders applicable
to rulemaking. The Department’s
analysis of the applicability of those
statutes and executive orders to this
rulemaking is summarized below.
A. Executive Orders 12866 (Regulatory
Planning and Review) and E.O. 13563
(Improving Regulation and Regulatory
Review)
This proposed rule is not a significant
regulatory action under section 3(f) of
Executive Order 12866, as
supplemented by Executive Order
13563. The proposed rule proposes
procedural changes to the existing
regulatory framework for resolving
claims of whistleblower retaliation by
FBI employees and applicants. The
proposed changes will not materially
affect the number of claims or the time,
cost, or resources required to address
them. The proposed rule if adopted
would not have an annual effect on the
economy of $100 million or more,
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal governments or
communities; would not create a serious
inconsistency or otherwise interfere
with an action taken or planned by
another agency; would not materially
alter the budgetary impact of
entitlements, grants, user fees, or loan
programs or the rights and obligations of
recipients thereof; and would not raise
novel legal or policy issues.
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Accordingly, this rule does not require
an assessment of potential costs and
benefits under section 6(a)(3) of
Executive Order 12866. The Office of
Management and Budget has not
reviewed this rule under these Orders.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of
1980, 5 U.S.C. 601–12, as amended,
requires Federal agencies to consider
the potential impact of regulations on
small entities during rulemaking. 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. 5
U.S.C. 601.
The Department certifies under 5
U.S.C. 605(b) that this proposed rule
will not have a significant economic
impact on a substantial number of small
entities. The proposed rule addresses
the Department’s internal process for
addressing allegations of retaliation for
protected whistleblowing by FBI
employees and applicants. It has no
application to small entities as defined
above. The proposed rule, if adopted,
would perhaps have tangential, indirect,
and transitory impact on law firms and
advocacy organizations representing FBI
whistleblowers inasmuch as they would
have to become familiar with the
changes in procedure.
If your business, organization, or
governmental jurisdiction qualifies as a
small entity and you believe this rule
would have a significant economic
impact on it, please submit a comment
(see ADDRESSES list, page 2, supra)
explaining why you think your entity
qualifies and how and to what degree
this rule would economically affect it.
C. Small Business Regulatory
Enforcement Fairness Act of 1996
In accordance with section 213(a) of
the Small Business Regulatory
Enforcement Fairness Act of 1996 (Pub.
L. 104–121), the Department will assist
small entities in understanding this
proposed rule. If you believe the rule
would affect your small business,
organization, or governmental
jurisdiction and you have questions
concerning its provisions or options for
compliance, please contact the persons
listed in the FOR FURTHER INFORMATION
CONTACT section, above.
D. Paperwork Reduction Act
This proposed rule will not call for a
new collection of information under the
Paperwork Reduction Act of 1995, 44
U.S.C. 3501–20. Specifically, the
existing and proposed rules regulate
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administrative actions or investigations
involving an agency against specific
individuals or entities and thus fall
outside the scope of the Paperwork
Reduction Act. See 44 U.S.C.
3518(c)(1)(B)(ii).
E. Executive Order 13132 (Federalism)
A rule has federalism implications
under Executive Order 13132 if it has a
substantial direct effect on the States, on
the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. E.O. 13132, sec.
1(a). The Department has analyzed this
proposed rule under that Order and
determined that this rule does not have
federalism implications.
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F. Unfunded Mandates Reform Act of
1995
The Unfunded Mandates Reform Act
of 1995, 2 U.S.C. 1531–38, requires
Federal agencies to determine whether a
rule, if promulgated, will result in the
expenditure by State, local, or tribal
government, in the aggregate, or by the
private sector, of $100 million (adjusted
for inflation) or more in any one year.
2 U.S.C. 1532(a). This proposed rule
would not require or result in
expenditures by any of the above-named
entities. The rule addresses the
Department’s internal procedures
related to protected disclosures.
employees, these parties are a small
subset of the cases subject to the
proposed rule, and the rule does not
substantially affect such parties’
substantive rights or obligations. Id.
803(3)(C). Instead, the rule makes
changes primarily related to
administrative processing of
whistleblower retaliation cases. This
action is accordingly not a ‘‘rule’’ as that
term is used by the Congressional
Review Act, see 5 U.S.C. 804(3), and the
reporting requirement of 5 U.S.C. 801
does not apply.
List of Subjects
28 CFR Part 0
Authority delegations (Government
agencies), Government employees,
National defense, Organization and
functions (Government agencies),
Privacy, Reporting and recordkeeping
requirements, Whistleblowing.
28 CFR Part 27
Government Employees; Justice
Department; Organization and functions
(Government agencies); Whistleblowing.
Authority and Issuance
For the reasons stated above, the
Department of Justice proposes to
amend 28 CFR parts 0 and 27 as follows:
PART 0 ORGANIZATION OF THE
DEPARTMENT OF JUSTICE
1. The authority citation for part 0
continues to read as follows:
G. Executive Order 12988 (Civil Justice
Reform)
This proposed rule meets applicable
standards in sections 3(a) and 3(b)(2) of
Executive Order 12988.
■
H. Executive Order 13175 (Consultation
and Coordination With Indian Tribal
Governments)
This proposed rule does not have
tribal implications under Executive
Order 13175 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 responsibilities between the
Federal Government and Indian tribes.
■
I. Congressional Review Act
The reporting requirements of the
Congressional Review Act (Subtitle E of
the Small Business Regulatory
Enforcement Fairness Act of 1996), 5
U.S.C. 801–08, do not apply to the
proposed rule. First, this rule relates
primarily to agency management,
personnel, and organization. 5 U.S.C.
804(3)(B). Second, to the extent that the
rule affects non-agency parties such as
applicants for employment and former
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Authority: 5 U.S.C. 301; 28 U.S.C. 509,
510, 515–519.
§ 0.29d
[Amended]
2. Amend § 0.29d, in paragraph (a),
by:
■ a. Removing the words ‘‘a violation’’
and adding in their place the words
‘‘any violation’’;
■ b. Removing the word
‘‘mismanagement’’ and adding in its
place the words ‘‘gross
mismanagement’’.
PART 27—WHISTLEBLOWER
PROTECTION FOR FEDERAL BUREAU
OF INVESTIGATION EMPLOYEES
3. The authority citation for part 27 is
revised to read as follows:
■
Authority: 5 U.S.C. 301, 3151; 28 U.S.C.
509, 510, 515–519; 5 U.S.C. 2303; President’s
Memorandum to the Attorney General,
Delegation of Responsibilities Concerning
FBI Employees Under the Civil Service
Reform Act of 1978, 3 CFR p. 284 (1997);
Presidential Policy Directive 19, ‘‘Protecting
Whistleblowers with Access to Classified
Information’’ (October 10, 2012).
■
4. Amend § 27.1 by:
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a. Revising the introductory text of
paragraph (a)
■ b. In paragraph (a)(1), removing the
words ‘‘A violation,’’ and adding in
their place ‘‘Any violation’’;
■ c. In paragraph (a)(2), removing the
word ‘‘Mismanagement,’’ and adding in
its place ‘‘Gross mismanagement’’;
■ d. Adding paragraph (c).
The revisions and addition read as
follows.
■
§ 27.1
Making a protected disclosure.
(a) When an employee of, or applicant
for employment with, the Federal
Bureau of Investigation (FBI) (FBI
employee) makes a disclosure of
information to a supervisor in the direct
chain of command of the employee, up
to and including the Attorney General;
to the Department of Justice’s
(Department’s) Office of the Inspector
General (OIG), the Department’s Office
of Professional Responsibility (OPR), the
FBI Office of Professional Responsibility
(FBI OPR), or the FBI Inspection
Division (FBI–INSD) (collectively,
Receiving Offices); to Congress as
described in 5 U.S.C. 7211; to the Office
of Special Counsel; or to an employee of
any of the foregoing entities when
designated by any officer, employee,
office, or division named in this
subsection for the purpose of receiving
such disclosures, the disclosure will be
a ‘‘protected disclosure’’ if the person
making it reasonably believes that it
evidences:
*
*
*
*
*
(c) To be a ‘‘protected disclosure’’
under this part, the disclosure must be
made to an office or official specified in
paragraph (a) of this section.
§ 27.2
[Amended]
5. Amend § 27.2, in paragraph (b), by
removing ‘‘(xi)’’ and adding in its place
‘‘(xii)’’.
■ 6. Amend § 27.4 by:
■ a. In paragraph (a), removing the term
‘‘paragraph (e)’’ and adding in its place
‘‘paragraphs (e) and (f)’’;
■ b. Revising the second sentence of
paragraph (c)(1);
■ c. Adding a sentence at the end of
paragraph (e)(1), revising paragraph
(e)(3), and adding paragraph (e)(4); and
■ d. Revising paragraphs (f) and (g);
■ e. Adding paragraphs (h) and (i).
The revisions and the additions read
as follows:
■
§ 27.4 Corrective action and other relief;
Director, Office of Attorney Recruitment and
Management.
*
*
*
*
*
(c) * * *
(1) * * * Within 5 business days of
the receipt of the request, the Director
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shall issue an Acknowledgment Order
in accordance with paragraph (f)(1) of
this section. * * *
*
*
*
*
*
(e)(1) * * * The determinations made
by the Director shall be independent
and impartial.
*
*
*
*
*
(3) In making the determinations
required under this paragraph, the
Director may hold a hearing at which
the Complainant may present evidence
in support of his or her claim, in
accordance with such procedures as the
Director may adopt. The Director is
hereby authorized to compel the
attendance and testimony of, or the
production of documentary or other
evidence from, any person employed by
the Department if doing so appears
reasonably calculated to lead to the
discovery of admissible evidence, is not
otherwise prohibited by law or
regulation, and is not unduly
burdensome. The Director may prohibit
a party from adducing or relying on
evidence from a person whom the
opposing party does not have an
opportunity to examine, or the Director
may give less weight to such evidence.
Any privilege available in judicial and
administrative proceedings relating to
the disclosure of documents or the
giving of testimony shall be available
before the Director. All assertions of
such privileges shall be decided by the
Director. The Director may, upon
request, certify a ruling on an assertion
of privilege for review by the Deputy
Attorney General.
(4) Subject to paragraph (f) of this
section, the Director may establish such
procedures as he or she deems
reasonably necessary to carry out the
functions assigned under this
paragraph.
(f)(1) Within 5 business days of
receipt by the Director under paragraph
(a) of this section of a report from a
Conducting Office, or a request for
corrective action from a Complainant
under paragraph (c)(1) of this section,
the Director shall issue an
Acknowledgement Order that:
(i) Acknowledges receipt of the report
or request;
(ii) Informs the parties of the relevant
case processing procedures and
timelines, including the manner of
designation of a representative, the time
periods for and methods of discovery,
the process for resolution of discovery
disputes, and the form and method of
filing of pleadings;
(iii) Informs the parties of the
jurisdictional requirements for full
adjudication of the request; and
(iv) Informs the parties of their
respective burdens of proof.
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18:08 Mar 28, 2023
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(2) In cases where the Director
determines that there is a question about
the Director’s jurisdiction to review a
request from the Complainant, the
Director shall, simultaneously with the
issuance of the Acknowledgement
Order, issue a Show-Cause Order
explaining the grounds for such
determination and directing that the
Complainant, within 10 calendar days
of receipt of such order, submit a
written statement, accompanied by
evidence, to explain why the request
should not be dismissed for lack of
jurisdiction. The Complainant’s written
statement must provide the following
information as necessary to address the
jurisdictional question or as otherwise
directed:
(i) The alleged protected disclosure or
disclosures;
(ii) The date on which the
Complainant made any such disclosure;
(iii) The name and title of any
individual or office to whom the
Complainant made any such disclosure;
(iv) The basis for the Complainant’s
reasonable belief that any such
disclosure evidenced any violation of
law, rule, or regulation; gross
mismanagement; a gross waste of funds;
an abuse of authority; or a substantial
and specific danger to public health or
safety;
(v) Any action the FBI allegedly took
or failed to take, or threatened to take
or fail to take, against the Complainant
because of any such disclosure, the
name and title of all officials
responsible for each action, and the date
of each action;
(vi) The basis for the Complainant’s
belief that any official responsible for an
action knew of any protected disclosure,
and the date on which the official
learned of the disclosure;
(vii) The relief sought; and
(viii) The date the reprisal complaint
was filed with the Investigative Office
and the date on which the Conducting
Office notified the Complainant that it
was terminating its investigation into
the complaint, or if the Complainant has
not received such notice, evidence that
120 days have passed since the
Complainant filed a complaint of
reprisal with the Investigative Office.
(3) The FBI shall file a reply to the
Complainant’s response to the ShowCause Order within 20 calendar days of
receipt of such reply.
(i) The reply shall address issues
identified by the Director in the ShowCause Order and matters raised in the
Complainant’s response to that order
under paragraph (f)(2) of this section,
and shall include: a statement
identifying any FBI actions taken
against the Complainant and the reasons
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Fmt 4702
Sfmt 4702
18495
for taking such actions; designation of
and signature by the FBI legal
representative; and any other
documents or information requested by
the Director.
(ii) The reply may also include any
and all documents contained in the FBI
record of the action or actions.
(4) After receipt of the FBI’s response,
the record on the jurisdictional issue
will close, absent a request from either
party establishing exigent circumstances
requiring the need for the presentation
of additional evidence or arguments.
(g) If the Director orders corrective
action, such corrective action may
include: placing the Complainant, as
nearly as possible, in the position he or
she would have been in had the reprisal
not taken place; reimbursement for
attorney’s fees, reasonable costs,
medical costs incurred, and travel
expenses; back pay and related benefits;
compensatory damages to the extent
authorized by law; and any reasonable
and foreseeable consequential damages.
(h) Whenever the Director determines
that there has been a reprisal prohibited
by § 27.2 of this part, the Director, in
addition to ordering any corrective
action as authorized by § 27.4(g), above,
shall forward to the FBI OPR and the
FBI–INSD, with a copy to the Director
of the FBI, a written summary of the
Director’s findings of reprisal, the
evidence supporting the findings, and
the officials responsible for the reprisal.
FBI OPR shall make a determination of
whether disciplinary action is
warranted against any officials the
Director identified as responsible for the
reprisal.
(i) If the Director determines that
there has not been any reprisal
prohibited by § 27.2, the Director shall
report this finding in writing to the
Complainant, the FBI, and the
Conducting Office.
■ 7. Revise § 27.5 to read as follows:
§ 27.5
Review.
(a) Within 30 calendar days of a
finding of a lack of jurisdiction, a final
determination on the merits, or
corrective action ordered by the
Director, the Complainant or the FBI
may request review by the Deputy
Attorney General of that determination
or order. The Deputy Attorney General
shall set aside or modify the Director’s
actions, findings, or conclusions found
to be arbitrary, capricious, an abuse of
discretion, or otherwise not in
accordance with law; obtained without
procedures required by law, rule, or
regulation having been followed; or
unsupported by substantial evidence.
The Deputy Attorney General has full
discretion to review and modify
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corrective action ordered by the
Director, provided, however that if the
Deputy Attorney General upholds a
finding that there has been a reprisal,
then the Deputy Attorney general shall
order appropriate corrective action.
(b) The parties may not file an
interlocutory appeal to the Deputy
Attorney General from a procedural
ruling made by the Director during
proceedings pursuant to section 27.4 of
this part. The Deputy Attorney General
has full discretion to review such
rulings by the Director during the course
of reviewing an appeal of the Director’s
finding of a lack of jurisdiction, final
determination, or corrective action order
brought under paragraph (a).
(c) In carrying out the functions set
forth in this section, the Deputy
Attorney General may issue written
directives or orders to the parties as
necessary to ensure the efficient and fair
administration and management of the
review process.
■ 8. Add § 27.7 to read as follows:
ddrumheller on DSK120RN23PROD with PROPOSALS1
§ 27.7
Alternative dispute resolution.
(a) At any stage in the process set
forth in §§ 27.3 through 27.5 of this part,
the Complainant may request
Alternative Dispute Resolution (ADR)
through the Department of Justice
Mediator Corps (DOJMC) Program. The
Complainant may elect to participate in
ADR by notifying in writing the office
before which the matter is then pending.
(b) If the Complainant elects
mediation, the FBI, represented by the
Office of General Counsel, will
participate.
(c) When the Complainant requests to
engage in ADR, the process set forth in
§§ 27.3 through 27.5, as applicable,
including all time periods specified
therein, will be stayed for an initial
period of 90 days, beginning on the date
of transmittal of the matter to the
DOJMC Program office. Upon joint
request by the parties to the office before
which the matter is stayed, the period
of the stay may be extended up to an
additional 45 days. Further requests for
extension of the stay may be granted
only by the Director, regardless of the
office before which the matter is
pending, upon a joint request showing
good cause. The stay otherwise will be
lifted if the DOJMC Program notifies the
office before which the matter is stayed
that the Complainant no longer wishes
to engage in mediation, or that the
parties are unable to reach agreement on
resolution of the complaint and that
continued efforts at mediation would
not be productive.
■ 9. Add § 27.8 to read as follows:
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18:08 Mar 28, 2023
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§ 27.8 Authority of the Director to review
and decide claims of a breach of a
settlement agreement.
(a) Any party to a settlement
agreement reached in proceedings and
in a forum under this part may file a
claim of a breach of that settlement
agreement with the Director within 30
days of the date on which the grounds
for the claim of breach were known.
(b) The Director shall adjudicate any
timely claim of a breach of a settlement
agreement. The Director shall exercise
the authority granted under § 27.4(e)(4)
to ensure the efficient administration
and management of the adjudication of
the breach claim, pursuant to any
procedures the Director deems
reasonably necessary to carry out the
functions assigned under this
paragraph.
(c) A party may request, within 30
calendar days of a decision on a claim
of a breach of a settlement agreement by
the Director, review of that decision by
the Deputy Attorney General.
Dated: March 17, 2023.
Merrick B. Garland,
Attorney General.
[FR Doc. 2023–05927 Filed 3–28–23; 8:45 am]
BILLING CODE 4410–AR–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R09–OAR–2023–0092; FRL–10674–
01–R9]
Air Plan Revisions; California; Eastern
Kern Air Pollution Control District;
Oxides of Nitrogen
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing a limited
approval and limited disapproval of a
revision to the Eastern Kern Air
Pollution Control District (EKAPCD)
portion of the California State
Implementation Plan (SIP). These
revisions concern emissions of oxides of
nitrogen (NOX) from stationary gas
turbines. We are proposing action on a
local rule that regulates these emissions
sources under the Clean Air Act (CAA).
We are taking comments on this
proposal and plan to follow with a final
action.
DATES: Comments must be received on
or before April 28, 2023.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R09–
OAR–2023–0092 at https://
SUMMARY:
PO 00000
Frm 00053
Fmt 4702
Sfmt 4702
www.regulations.gov. For comments
submitted at Regulations.gov, follow the
online instructions for submitting
comments. Once submitted, comments
cannot be edited or removed from
Regulations.gov. The EPA may publish
any comment received to its public
docket. Do not submit electronically any
information you consider to be
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. The EPA will generally not
consider comments or comment
contents located outside of the primary
submission (i.e., on the web, cloud, or
other file sharing system). For
additional submission methods, please
contact the person identified in the FOR
FURTHER INFORMATION CONTACT section.
For the full EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www.epa.gov/dockets/
commenting-epa-dockets. If you need
assistance in a language other than
English or if you are a person with
disabilities who needs a reasonable
accommodation at no cost to you, please
contact the person identified in the FOR
FURTHER INFORMATION CONTACT section.
La
Kenya Evans-Hopper, EPA Region IX, 75
Hawthorne St., San Francisco, CA
94105. By phone: (415) 972–3245 or by
email at evanshopper.lakenya@epa.gov.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
Throughout this document, ‘‘we,’’ ‘‘us’’
and ‘‘our’’ refer to the EPA.
Table of Contents
I. The State’s Submittal
A. What rule did the State submit?
B. Are there other versions of this rule?
C. What is the purpose of the submitted
rule revision?
II. The EPA’s Evaluation and Action
A. How is the EPA evaluating the rule?
B. Does the rule meet the evaluation
criteria?
C. What are the rule deficiencies?
D. The EPA’s Recommendations to Further
Improve the Rule
E. Public Comment and Proposed Action
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews
I. The State’s Submittal
A. What rule did the State submit?
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Agencies
[Federal Register Volume 88, Number 60 (Wednesday, March 29, 2023)]
[Proposed Rules]
[Pages 18487-18496]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-05927]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
28 CFR Parts 0 and 27
[Docket No. JMD 154; AG Order No. 5618-2023]
RIN 1105-AB47
Whistleblower Protection for Federal Bureau of Investigation
Employees
AGENCY: Department of Justice.
ACTION: Notice of proposed rulemaking; request for comments.
-----------------------------------------------------------------------
SUMMARY: The Department of Justice (``Department'') proposes to update
its regulations on the protection of whistleblowers in the Federal
Bureau of Investigation (``FBI''). This update reflects changes
resulting from an assessment conducted by the Department in response to
Presidential Policy Directive-19 of October 10, 2012, ``Protecting
Whistleblowers with Access to Classified Information'' (``PPD-19''),
and the Federal Bureau of Investigation Whistleblower Protection
Enhancement Act of 2016 (``FBI WPEA of 2016''). The proposed changes
include updating the description of protected whistleblower disclosures
and covered personnel actions to conform to the FBI WPEA of 2016;
providing for more equal access to witnesses; and specifying that
compensatory damages may be awarded as appropriate. The proposed
changes also include new provisions to formalize practices that have
been implemented informally, including providing for the use of
acknowledgement and show-cause orders, providing access to alternative
dispute resolution through the Department's FBI Whistleblower Mediation
Program, clarifying the authority to adjudicate allegations of a breach
of a settlement agreement, and reporting information about those
responsible for unlawful reprisals. The proposed regulation reiterates
that the determinations by the Director of the Office of Attorney
Recruitment and Management (``OARM'') must be independent and
impartial. Finally, through this proposed rule, the Department is
inviting specific comments on and recommendations for
[[Page 18488]]
how the Department might further revise the regulations to increase
fairness, effectiveness, efficiency, and transparency, including to
provide enhanced protections for whistleblowers, in addition to the
proposed changes identified above.
DATES: Written comments and related material must be postmarked, and
other comments and related material must be submitted, on or before May
30, 2023. You should be aware that the Federal eRulemaking Portal will
accept comments submitted prior to midnight Eastern Time on the last
day of the comment period.
ADDRESSES: You should submit comments identified by docket number using
any one of the following methods:
(1) Federal eRulemaking Portal: https://www.regulations.gov;
(2) Mail or Delivery: Morton J. Posner, General Counsel, Justice
Management Division, U.S. Department of Justice, 145 N St. NE, Suite
8E.500, Washington, DC 20530.
FOR FURTHER INFORMATION CONTACT: Morton J. Posner, General Counsel,
Justice Management Division, telephone 202-514-34; or Hilary S.
Delaney, Assistant Director, Office of Attorney Recruitment and
Management, telephone 202-532-3188; email: [email protected] or
[email protected].
SUPPLEMENTARY INFORMATION:
I. Public Participation and Request for Comments
We encourage you to participate in this rulemaking by submitting
comments and related materials, if any. All comments received will be
posted without change to https://www.regulations.gov and will include
any personal information you have provided.
A. Submitting Comments
If you submit a comment, please include the docket number for this
rulemaking, 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 at
https://www.regulations.gov or by email, mail, or hand delivery, but
please use only one of these means. If you submit a comment online, it
will be considered received by the Department when you successfully
transmit the comment. The Department recommends that you include your
name and a mailing address, an email address, or a telephone number in
the body of your document.
To submit your comment online, go to https://www.regulations.gov,
type the docket number ``JMD 154'' in the ``SEARCH'' box, and click
``SEARCH.'' Click on ``Submit a Comment'' on the line associated with
this rulemaking.
B. Posting of Public Comments
Please note that all comments received are considered part of the
public record and made available for public inspection online at https://www.regulations.gov. Such information includes personal identifying
information (such as your name and address) that you voluntarily
submit, unless the process described below is followed.
You are not required to submit personal identifying information in
order to comment on this rule. Nevertheless, if you want to submit
personal identifying information (such as your name and address) as
part of your comment, but do not want it to be posted online, you must
include the phrase ``PERSONAL IDENTIFYING INFORMATION'' in the first
paragraph of your comment. You also must place all the personal
identifying information you do not want posted online in the first
paragraph of your comment and identify what information you want
redacted.
If you want to submit confidential business information as part of
your comment but do not want it to be posted online, you must include
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
of your comment. You also must prominently identify confidential
business information to be redacted within the comment. If a comment
has so much confidential business information that it cannot be
effectively redacted, the Department may make the determination not to
post all or part of that comment on https://www.regulations.gov.
Personal identifying information and confidential business
information identified and located as set forth above will be placed in
the agency's public docket file but not posted online. If you wish to
inspect the agency's public docket file in person by appointment,
please see the paragraph above entitled FOR FURTHER INFORMATION
CONTACT.
C. Viewing Comments and Documents
To view comments, go to https://www.regulations.gov, type the docket
number ``JMD-154'' in the ``SEARCH'' box, and click ``SEARCH.'' Click
on ``Open Docket Folder'' on the line associated with this rulemaking.
D. 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
the individual signing the comment if comments are submitted on behalf
of an association, business, labor union, etc.).
II. Executive Summary
On November 1, 1999, the Department issued a final rule entitled
``Whistleblower Protection For Federal Bureau of Investigation
Employees,'' published in the Federal Register at 64 FR 58782,
establishing procedures under which (1) FBI employees or applicants for
employment with the FBI may make disclosures of information protected
by the Civil Service Reform Act of 1978, Public Law 95-454 (``CSRA''),
and the Whistleblower Protection Act of 1989 (``WPA''), Public Law 101-
12; and (2) the Department will investigate allegations by FBI
employees and applicants for employment of reprisal for making such
protected disclosures and take appropriate corrective action. The rule
is codified at 28 CFR part 27.
On January 9, 2008, the Department updated part 27 as well as 28
CFR 0.29d primarily to conform to organizational changes brought about
by a restructuring of relevant offices of the FBI. Technical Amendments
to the Regulations Providing Whistleblower Protection for Federal
Bureau of Investigation Employees, 73 FR 1493.
On October 10, 2012, President Barack Obama issued PPD-19, which,
in part, directed that the Department prepare a report that (1)
assesses the efficacy of the Department's FBI whistleblower protection
regulations found in 28 CFR part 27 in deterring the personnel
practices prohibited in 5 U.S.C. 2303, and in ensuring appropriate
enforcement of section 2303, and (2) describes any proposed revisions
to those regulations that would increase their effectiveness in
fulfilling the purposes of section 2303. PPD-19 at 5.
In response to this directive, the Office of the Deputy Attorney
General conducted a comprehensive review of the Department's
whistleblower regulations and historical experience with their
operation.\1\ As part of that process, the Department formed a working
group, seeking participation from the other key participants in
[[Page 18489]]
administering the Department's FBI whistleblower regulations--the FBI,
OARM, the Office of the Inspector General, and the Office of
Professional Responsibility--as well as the Justice Management
Division. In addition, the Department consulted with the Office of
Special Counsel (``OSC'') and FBI employees, as required by PPD-19. The
Department also consulted with representatives of non-governmental
organizations that support whistleblowers' rights and with private
counsel for whistleblowers (collectively, whistleblower advocates).\2\
---------------------------------------------------------------------------
\1\ On November 27, 2012, President Obama signed the
Whistleblower Protection Enhancement Act of 2012, Public Law 112-
199, (``WPEA of 2012''). The Department considered the WPEA of 2012
as part of its PPD-19 review.
\2\ The Department convened a meeting with the following
whistleblower advocate organizations: Project on Government
Oversight; Kohn, Kohn & Colapinto; Government Accountability
Project; American Civil Liberties Union; and a former chief counsel
to the chairman of the Merit Systems Protection Board.
---------------------------------------------------------------------------
With respect to consultation with FBI employees, the FBI's
representatives on the Department's working group consulted with
various FBI entities: the Ombudsman; the Office of Equal Employment
Opportunity Affairs; the Office of Integrity and Compliance; the Office
of Professional Responsibility; the Human Resources Division; and the
Inspection Division. The representatives also solicited the views of
each of the FBI's three official advisory committees that represent FBI
employees--the All-Employees Advisory Committee, the Agents Committee,
and the Middle-Management Committee.
In April 2014, after completion of the PPD-19 review, the
Department issued a report, ``Department of Justice Report on
Regulations Protecting FBI Whistleblowers'' (``PPD-19 Report''). (A
copy of this report is available at www.regulations.gov in connection
with this rulemaking, or as provided above under the heading FOR
FURTHER INFORMATION CONTACT.) The report considered the historical
context of the Department's efforts to protect FBI whistleblowers from
reprisal and the Department's current policies and procedures for
adjudicating claims of reprisal against FBI whistleblowers; summarized
and analyzed statistics regarding the use of these policies and
procedures in recent years; and identified desired changes to existing
policies and procedures as a result of this assessment.
The Department's proposed rule reflects the PPD-19 Report's
findings and recommendations, as modified to comply with the FBI WPEA
of 2016, discussed in further detail below in this preamble, which
President Obama signed on December 16, 2016. In addition, through this
notice of proposed rulemaking, the Department is inviting specific
comments on and recommendations for how the Department might further
revise the regulations to increase fairness, effectiveness, efficiency,
and transparency, including to provide enhanced protections for
whistleblowers.
III. Historical Background on FBI Whistleblower Protection
Legislative protection of civilian Federal whistleblowers from
reprisal began in 1978 with passage of the CSRA, and was expanded by
the WPA and the WPEA of 2012. Currently, Federal employees fall into
three categories. Most civilian Federal employees are fully covered by
the statutory regime established by the CSRA, which permits them to
challenge alleged reprisals through the OSC and the Merit Systems
Protection Board (``MSPB''). By contrast, some Federal agencies that
deal with intelligence are expressly excluded from the whistleblower
protection scheme established by these statutes.
The FBI is in an intermediate position: Although it is one of the
agencies expressly excluded from the scheme established for Federal
employees generally, its employees nevertheless are protected by a
separate statutory provision and special regulations promulgated
pursuant to that provision, which forbid reprisals against FBI
whistleblowers and provide an administrative remedy within the
Department. See 28 CFR part 27.
To elaborate, the CSRA sets forth ``prohibited personnel
practices,'' which are a range of personnel actions that the Federal
Government may not take against Federal employees. One such prohibited
personnel practice is retaliating against an employee for revealing
certain agency information. Specifically, the CSRA originally made it
illegal for an agency to take or fail to take a personnel action with
respect to any employee or applicant for employment as a reprisal for
disclosure of information that the employee or applicant reasonably
believed evidenced a violation of any law, rule, or regulation, or
mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety. Public Law
95-454, sec. 101(a), codified at 5 U.S.C. 2302(b)(8). The CSRA also
created the MSPB and OSC to enforce the prohibitions on specified
personnel practices.
The CSRA, however, expressly excluded from this scheme the FBI, the
Central Intelligence Agency, various intelligence elements of the
Department of Defense, and any other executive agency or unit thereof
as determined by the President with the principal function of
conducting foreign intelligence or counterintelligence activities.
Public Law 95-454, sec. 101(a), codified at 5 U.S.C. 2302(a)(2)(C)(ii).
For the FBI alone, the CSRA specifically prohibited taking a
personnel action against employees or applicants for employment as a
reprisal for disclosing information that the employee or applicant
reasonably believed evidenced a violation of any law, rule, or
regulation, or mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public health or
safety. Id., codified at 5 U.S.C. 2303(a)(1), (2). The CSRA defined a
``personnel action'' for the purpose of the FBI-specific prohibition as
any action specifically described in clauses (i) through (x) of 5
U.S.C. 2302(a)(2)(A), taken with respect to an employee in--or an
applicant for--a position other than one of a confidential, policy-
determining, policymaking, or policy-advocating character. Id.,
codified at 5 U.S.C. 2303(a). In addition, the CSRA limited the
protection of the FBI-specific prohibition to only those disclosures
that the FBI employee made through narrowly defined internal channels--
i.e., to the Attorney General or the Attorney General's designee. Id.
Finally, the CSRA directed the President to provide for the enforcement
of the provision relating to FBI whistleblowers in a manner consistent
with applicable provisions of 5 U.S.C. 1206, the section of the CSRA
that originally set out the responsibilities of the OSC, the MSPB, and
agency heads in response to a whistleblower complaint and provided for
various remedies. Id., codified at 5 U.S.C. 2303(c).
In April 1980, the Department published a final rule implementing
section 2303. The rule provided, among other things, for a stay of any
personnel action if there were reasonable grounds to believe that the
personnel action was taken, or was to be taken, as a reprisal for a
disclosure of information by the employee to the Attorney General or
the Attorney General's designee that the employee reasonably believed
evidenced wrongdoing covered by section 2303. Office of Professional
Responsibility; Protection of Department of Justice Whistleblowers, 45
FR 27754, 27755 (Apr. 24, 1980).
In 1989, the statutory scheme for most civilian employees changed
in some respects when Congress passed the WPA, which significantly
expanded the avenues of redress generally available to
[[Page 18490]]
civilian Federal employees. In doing so, it replaced section 1206 with
sections 1214 and 1221; these new sections set forth the procedures
under which OSC would investigate prohibited personnel practices and
recommend or seek corrective action, and the circumstances under which
an individual right of action before the MSPB would be available.
Public Law 101-12, sec. 3. Consistent with this change, the WPA amended
section 2303, governing FBI whistleblowers, to replace the requirement
that enforcement of whistleblower protections be consistent with
applicable provisions of section 1206 with a requirement that
enforcement be consistent with applicable provisions of newly-added
sections 1214 and 1221. Public Law 101-12, sec. 9(a)(1).
The WPA also amended the regime generally applicable to civil
service employees by revising section 2302 to protect only disclosures
of information the employee reasonably believes evidences ``gross
mismanagement,'' rather than ``mismanagement,'' as originally provided
by the CSRA. Pub. L. 101-12, sec. 4(a). However, the WPA did not make a
corresponding change to section 2303, the statute applicable to FBI
whistleblowers.
On April 14, 1997, President William J. Clinton issued a memorandum
delegating to the Attorney General the functions concerning employees
of the FBI vested in the President by the CSRA, and directing the
Attorney General to establish appropriate processes within the
Department to carry out these functions. Delegation of Responsibilities
Concerning FBI Employees Under the Civil Service Reform Act of 1978, 62
FR 23123 (Apr. 28, 1997). In November 1999, the Department published a
final rule establishing procedures under which FBI employees or
applicants for employment may make disclosures of wrongdoing. 64 FR
58782 (Nov. 1, 1991). The rule created a remedial scheme within the
Department through which FBI employees can seek redress when they
believe they have suffered reprisal for making a protected disclosure.
Subject to minor amendments in 2001 and 2008, the rule, codified at 28
CFR part 27, remains in force.
On November 27, 2012, the month following President Obama's
issuance of PPD-19, he signed the WPEA of 2012 into law. That act,
among other things, amended 5 U.S.C. 1214 and 5 U.S.C. 1221 to
authorize awards of compensatory damages. Although the FBI is expressly
excluded from coverage under these statutory provisions and is instead
covered by 5 U.S.C. 2303, section 2303 directs that the President
ensure enforcement of section 2303 in a ``manner consistent with the
applicable provisions of sections 1214 and 1221.'' 5 U.S.C. 2303(c).
The WPEA of 2012 also expanded the number of prohibited personnel
actions set out in section 2302(a)(2), but made no corresponding change
to the cross-reference in section 2303(a). Accordingly, the Department
has considered the WPEA of 2012's changes to sections 1214, 1221, and
2302(a) and their impact on the FBI's whistleblower protection program
under section 2303 and has concluded that corresponding technical
amendments to the current regulations are appropriate, as described
further below.
On December 16, 2016, President Obama signed Public Law 114-302,
the FBI WPEA of 2016. That statute made two changes to the statutory
whistleblower protection scheme applicable to FBI employees. First, it
expanded the list of recipients set forth in 5 U.S.C. 2303(a) to whom a
disclosure could be made to be protected (assuming the substantive
requirements are met). Protected disclosures now may be made to an
employee's supervisor in the employee's direct chain of command, up to
and including the Attorney General; the Inspector General; the
Department's Office of Professional Responsibility; the FBI Office of
Professional Responsibility; the FBI Inspection Division; Congress, as
described in 5 U.S.C. 7211; OSC; or an employee designated to receive
such disclosures by any officer, employee, office, or division of the
listed entities. See Public Law 114-302, sec. 2.
Second, the FBI WPEA of 2016 changed the substantive requirement
for a protected disclosure, requiring that the disclosure be one that
the discloser reasonably believes evidences any violation (previously,
``a violation'') of any law, rule, or regulation, or gross
mismanagement (previously, just ``mismanagement''), in addition to the
previous (and unchanged) provision for disclosures of a gross waste of
funds, an abuse of authority, or a substantial and specific danger to
public health or safety. Id.
And most recently, Public Law 117-263, the James M. Inhofe National
Defense Authorization Act for Fiscal Year 2023, amended section 2303,
specifically allowing FBI employees to appeal a final determination or
corrective action order to the MSPB pursuant to section 1221. See
Public Law 117-263, sec. 5304(a), codified at 5 U.S.C. 2303(d).
The changes contemplated by this proposed rule are intended to (1)
improve, pursuant to PPD-19 and consistent with the Department's
recommendations in the PPD-19 Report, the internal investigation and
adjudication of whistleblower retaliation claims by FBI employees and
applicants for employment under the remedial scheme initially
established in 1999 and codified at 28 CFR parts 0 and 27; and (2)
ensure that this process is consistent with changes enacted by the WPEA
of 2012 and the FBI WPEA of 2016.
Finally, through this notice of proposed rulemaking, the Department
is inviting specific comments on and recommendations for how the
Department might further revise the regulations to increase fairness,
effectiveness, efficiency, and transparency, including to provide
enhanced protections for whistleblowers, in addition to the proposed
changes.
IV. Proposed Changes in This Rule
A. Revising the Description of a Protected Disclosure in Part 0.29d To
Conform to the Requirements of the FBI WPEA of 2016
The Department proposes amendments to 28 CFR 0.29d to conform to
the substantive requirements of a protected disclosure found in 5
U.S.C. 2303(a)(2)(A) and (B), as amended by the FBI WPEA of 2016.
Specifically, the Department proposes that, in the first sentence of 28
CFR 0.29d(a), the phrase ``a violation of any law, rule, or regulation,
or mismanagement'' be changed to ``any violation of any law, rule, or
regulation, or gross mismanagement'' to conform to the statutory text.
The Department invites comments on this proposed change.
B. Proposed Changes to Part 27
1. Expanding the Definition of Persons to Whom a Protected Disclosure
Must Be Made To Conform to the Requirements of the FBI WPEA of 2016
To conform to the requirements of the FBI WPEA of 2016, the
Department proposes to expand the set of offices and officials to whom
a ``protected disclosure'' must be made. Under the current rule, a
disclosure is considered protected if (1) its content qualifies for
protection, and (2) it was made to one of these identified entities or
individuals:
the Department's Office of Professional Responsibility;
the Department's Office of the Inspector General;
[[Page 18491]]
the FBI Office of Professional Responsibility;
the FBI Inspection Division Internal Investigations
Section;
the Attorney General;
the Deputy Attorney General;
the Director of the FBI;
the Deputy Director of the FBI; or
the highest ranking official in any FBI field office.
See 28 CFR 27.1(a). The proposed rule would expand this list to
comply with the changes made by the FBI WPEA of 2016. See Public Law
114-302, sec. 2. Specifically, the proposed rule would require that, to
be protected, a disclosure must be made to:
a supervisor in the direct chain of command of the
employee, up to and including the Attorney General;
the Inspector General;
the Department's Office of Professional Responsibility;
the FBI Office of Professional Responsibility;
the FBI Inspection Division;
Congress, as described in section 7211;
OSC; or
an employee of any of the above entities, when designated
by any officer, employee, office, or division thereof for the purpose
of receiving such disclosures.
In addition, in order to emphasize the necessity of making a
disclosure to a designated recipient for it to be protected (where it
meets the substantive requirements), the Department proposes adding
paragraph (c) in Sec. 27.1, stating expressly that a disclosure must
be made to one of the offices or officials specified in paragraph (a)
in Sec. 27.1 in order to qualify as a protected disclosure under part
27. This change would not alter the substantive requirements of the
current Sec. 27.1, and does not restrict the expanded list of offices
and officials to whom a disclosure may be made as described immediately
above, but is added to avoid any potential misunderstanding regarding
this key procedural element of a protected disclosure covered by part
27. FBI whistleblowers are only entitled to statutory protection from
reprisals for making protected disclosures when they make disclosures
to offices or officials specifically listed in the FBI WPEA of 2016. To
ensure FBI whistleblowers are fully protected, this change clearly
identifies the expanded list of offices and officials to whom
disclosures must be made. The Department invites comments on this
proposed change.
2. Revising the Substantive Requirements of a Protected Disclosure To
Conform to the Requirements of the FBI WPEA of 2016
The Department proposes amendments to 28 CFR 27.1(a)(1) and (a)(2)
to conform to the substantive requirements of a protected disclosure
found in 5 U.S.C. 2303(a)(2)(A) and (B), as amended by the FBI WPEA of
2016. Specifically, the Department proposes that 28 CFR 27.1(a)(1) be
changed from ``A violation of any law, rule, or regulation'' to ``Any
violation of any law, rule, or regulation.'' The Department also
proposes that, for the same reason, ``Mismanagement'' in 28 CFR
27.1(a)(2) be removed and replaced with ``Gross mismanagement.'' The
Department invites comments on this proposed change.
3. Revising the Definition of ``Prohibited Personnel Practice''
Following Enactment of the WPEA of 2012
The Department also proposes an amendment to 28 CFR 27.2(b) to
conform Sec. 27.2(b)'s definition of ``personnel action'' to the
definition now found in 5 U.S.C. 2302(a)(2)(A). Section 2303 provides
that, ``[f]or the purpose of this subsection, `personnel action' means
any action described in clauses (i) through (x) of section
2302(a)(2)(A).'' When section 2303 was first enacted, section
2302(a)(2)(A) contained only ten clauses, designated (i) through (x),
and thus the definition of ``personnel action'' was identical for both
sections. Clause (x) was a ``catch-all'' provision covering ``any other
significant change in duties, responsibilities, or working
conditions.'' In 1994, Congress added an additional personnel action to
section 2302(a)(2)(A), a decision to order psychiatric testing or
examination. See Public Law 103-424, sec. 5(a) (1994). The additional
personnel action was designated as clause (x), and the catch-all
provision was re-designated as clause (xi). Id. sec. 5(a)(2). This
change did not alter section 2303, which continued to refer only to
``clauses (i) through (x) of section 2302(a)(2)(A).'' Pursuant to the
Attorney General's authority under 5 U.S.C. 301 to ``prescribe
regulations for the government of [the] department [and] the conduct of
its employees,'' the Department accepted commenters' recommendations to
define ``personnel action'' to include all eleven personnel actions in
section 2302(a)(2)(A), including the catch-all provision, in its 1999
final rule, as codified at 28 CFR 27.2(b). See 64 FR 58784-85
Several years after this change, the WPEA of 2012 added a twelfth
personnel action to section 2302(a)(2)(A): ``the implementation or
enforcement of any nondisclosure policy, form, or agreement'' (the
nondisclosure provision). Public Law 112-199, sec. 104(a)(2). This new
provision was designated as clause (xi), while the catch-all provision,
formerly clause (xi), became clause (xii).
The Department proposes to define ``personnel action'' in Sec.
27.2(b) to include all twelve personnel actions currently listed in
section 2302(a)(2)(A), including the nondisclosure provision added by
the WPEA of 2012. Doing so will ensure that FBI employees making
protected disclosures are shielded against the same adverse personnel
actions as other Federal civilian employees, which appears to have been
the underlying purpose of incorporating section 2302's definition of
``personnel action'' into section 2303. The Attorney General has the
authority to incorporate the nondisclosure provision into the
definition of ``personnel action'' in Sec. 27.2(b) pursuant to 5
U.S.C. 301, which authorizes the Attorney General to ``prescribe
regulations for the government of [the] department [and] the conduct of
its employees.'' See In re Boeh, 25 F.3d 761, 763 (9th Cir. 1994)
(explaining that section 301 permits the Department of Justice to
regulate ``the conduct of employees, the performance of the agency's
business, and the use of its records''). The Attorney General invoked
the same authority in the 1999 final rule discussed above. 64 FR 58784-
85. The net effect of the proposed revisions to the definition of
``personnel action'' in Sec. 27.2(b) will be to retain the catch-all
provision, while also including the non-disclosure provision added by
the WPEA of 2012. The Department invites comments on this proposed
change.
4. Equalizing Access to Witnesses
During the PPD-19 review, whistleblower advocate groups raised
concerns that, in an unspecified number of cases, the FBI has been able
to obtain evidence from FBI management officials or employees as
witnesses, either through affidavits or testimony at a hearing, but
that complainants were unable to obtain similar access to FBI
witnesses, particularly former employees. Because the Director of OARM
(``OARM Director'') lacks the authority to compel attendance at a
hearing, appearance at a deposition, or the production of documentary
evidence from individuals not currently employed by the Department, the
groups asked the Department to
[[Page 18492]]
consider a regulatory provision that would help all parties equalize
access to witnesses. Therefore, the Department proposes adding a
sentence to Sec. 27.4(e)(3) to give the OARM Director the discretion
to prohibit a party from adducing or relying on evidence from a person
whom the opposing party does not have an opportunity to examine or to
give less weight to such evidence. The Department invites comments on
this proposed change.
5. Improving Case Processing by Use of Acknowledgement and Show-Cause
Orders
The Department proposes to formalize the use of acknowledgement and
show-cause orders by the OARM Director to assist in the management and
adjudication of whistleblower reprisal claims.
Under OARM's current procedures, 28 CFR 27.4(c)(1), when a
complainant files a request for corrective action (``RCA'') with OARM,
the OARM Director is to notify the FBI of the RCA--usually by
forwarding the RCA to the FBI--and provide the FBI 25 calendar days to
file its response. In some instances, however, the allegations in a
complainant's RCA are insufficient to allow either the OARM Director or
the FBI to reasonably construe the specific claims raised. In such
cases, the agency's usual practice is for the OARM Director to issue an
order requiring the complainant to supplement the RCA to specifically
address the elements of a whistleblower claim necessary for OARM's
jurisdiction. The OARM Director then forwards the RCA, as supplemented,
to the FBI for a response. The complainant is afforded an opportunity
to file a reply to the FBI's response, and the FBI is afforded time to
file a surreply. The OARM Director then makes a jurisdictional
determination regarding the complainant's RCA. If the OARM Director
finds that it has jurisdiction to consider all or some of the
complainant's claims, the parties are so notified and are directed to
engage in relevant discovery.
The MSPB's analogous procedures illustrate how the use of
acknowledgment and show-cause orders may expedite the process. See
Merit Sys. Protection Bd., Judges' Handbook 19-21 (2019), https://www.mspb.gov/appeals/files/ALJHandbook.pdf. At the MSPB, an
administrative judge must ordinarily issue an acknowledgment order
within three business days of receipt of an appeal; that order
acknowledges receipt of the appeal and informs the parties of the
MSPB's case processing procedures regarding, for example, designation
of a representative, discovery, and settlement. Id. at 20.
The proposed amendments at Sec. 27.4(f) would formalize the OARM
Director's existing use of acknowledgment and show-cause orders similar
to those issued by the MSPB. The current language pertaining to OARM's
initial case processing procedures in 28 CFR 27.4(c)(1) would be
revised accordingly to reflect the practice used by the OARM Director
in issuing an acknowledgment order, which would also be reflected in a
new paragraph (f) in Sec. 27.4. The new paragraph (f) would also
formalize the practice of issuing a show-cause order where the OARM
Director determines that there is an initial question of jurisdiction
and would contain procedures relating thereto. The Department invites
comments on this proposed change.
6. Awarding Compensatory Damages
In directing agency heads to consider corrective actions in cases
in which reprisal for whistleblowing is found to have occurred, PPD-19
provided that corrective action may include compensatory damages, to
the extent authorized by law. PPD-19 at 2. Accordingly, the Department
proposes amending paragraph (g) of Sec. 27.4 to provide that the OARM
Director may award compensatory damages to the extent authorized by
law, in addition to other available relief. Currently, under Sec.
27.4(f), permissible OARM corrective action includes: placing the
Complainant, as nearly as possible, in the position he would have been
in had the reprisal not taken place; reimbursement for attorney's fees,
reasonable costs, medical costs incurred, and travel expenses; back pay
and related benefits; and any other reasonable and foreseeable
consequential damages. The Department invites comments on this proposed
change.
7. Reporting Findings of Unlawful Reprisal
In drafting the PPD-19 Report, the Department considered a
recommendation that any final decision that includes a finding of
unlawful reprisal be forwarded to the appropriate authority for
consideration of whether disciplinary action is warranted against the
officials responsible for the reprisal. In 2013, the OARM Director
implemented a policy of forwarding to the FBI Office of Professional
Responsibility, the FBI Inspection Division, and the FBI Director a
copy of the final determination in cases where the OARM Director finds
reprisal. That decision includes citations to the supporting evidence
of record as well as the names of the officials found to be responsible
for the reprisal. The Department proposes to formalize this process
through the addition of paragraph (h) in Sec. 27.4. The Department
invites comments on this proposed change.
8. Proposed Statement: Independence and Impartiality of OARM
Determinations
During the Department's PPD-19 review, whistleblower advocates
expressed concern with the internal Departmental adjudication of FBI
reprisal cases brought under part 27. In drafting the PPD-19 Report,
the Department considered whether to amend part 27 to make explicit
what has always been implicit regarding the independence and
impartiality of the determinations made by the OARM Director. The
Department thus proposes adding language to Sec. 27.4(e)(1) to note
expressly that the determinations made by the OARM Director shall be
independent and impartial. The Department invites comments on this
proposed change.
9. Providing Access to Alternative Dispute Resolution (``ADR'')
As a result of its review under PPD-19, the Department determined
that ADR should be made more readily available in whistleblower cases
because ADR can focus the parties' attention at early stages of a
proceeding, enabling each side to learn more about the other side's
goals in a manner that may facilitate early resolution. PPD-19, at 11.
Accordingly, the Department created a voluntary mediation program for
FBI whistleblower cases using the existing Department of Justice
Mediator Corps (``DOJMC'').
The Department's Equal Employment Opportunity (``EEO'') community
created the DOJMC Program in 2009 as a means of informal resolution to
address and, when possible, resolve workplace disputes. Although the
program focuses on EEO issues, the mediators are available to help
resolve any type of dispute. The FBI Office of Equal Employment
Opportunity Affairs is responsible for the operational management of
the DOJMC Program, the scope of which is Department-wide. The DOJMC
currently has approximately 70 collateral-duty mediators. Roughly two-
thirds are FBI employees; the remaining mediators are drawn from across
other Department components. Current mediator resources are expected to
be sufficient to make available a mediator
[[Page 18493]]
from outside the FBI should the complainant so desire.
The Department launched the mediation program for FBI whistleblower
cases in April 2014, staffed by a cadre of skilled mediators trained by
the Department for that purpose. The Department proposes to formalize
inclusion of the ADR program by amending part 27 to add Sec. 27.7,
which would provide that the complainant may request ADR from the time
of the filing of the initial claim with the office that will conduct
the investigation (``Conducting Office''), see 28 CFR 27.3(c), and at
any subsequent point thereafter throughout the process. Under proposed
new paragraph (b) of Sec. 27.7, if the Complainant elects ADR, the
FBI, represented by the Office of General Counsel, will participate.
When ADR is elected, under proposed new paragraph (c) of Sec. 27.7,
proceedings will be stayed upon transmittal of the matter to the DOJMC
Program office. The initial period of the stay will be 90 days and may
be extended for up to 45 additional days upon joint request from the
parties to the office before which the matter is stayed. Additional
requests for an extension of the stay would be available only by grant
of the OARM Director, regardless of the office before which the matter
is pending, and only upon joint request by the parties showing good
cause. The Department invites comments on this proposed change.
10. Authority of the OARM Director To Adjudicate Allegations of a
Breach of a Settlement Agreement
The Department has concluded that the OARM Director should
adjudicate allegations of a breach of any settlement agreement reached
in proceedings and in a forum under this part 27. Arguably, the OARM
Director would have the authority to do so under the change proposed
for Sec. 27.4(e)(4) because the provision includes the broad authority
to manage the adjudication of claims of reprisal. The Department
nonetheless proposes to add Sec. 27.8 making clear that the OARM
Director has authority to adjudicate allegations of a breach of a
settlement agreement reached in proceedings and in a forum under this
part 27. In addition, Sec. 27.8 would state that, in carrying out the
function of adjudicating claims of a breach of such settlement
agreements, the OARM Director shall exercise the authorities granted
under the change proposed for Sec. 27.4(e)(4), in accordance with any
procedures the OARM Director may establish to facilitate the efficient
discharge of that function. The new Sec. 27.8 also would provide the
parties with a right of review by the Deputy Attorney General of any
decision by the OARM Director on a breach of settlement claim. The
Department invites comment on this proposed change.
11. Invitation To Submit Comments and Recommendations To Enhance
Fairness, Efficiency and Transparency Regarding Whistleblower Activity,
Including To Provide Enhanced Protections for Whistleblowers
The Department believes that the process by which it adjudicates
allegations that the FBI has retaliated against whistleblowers should
be as fair, effective, efficient, and transparent as possible. The
Department therefore invites specific comments on and recommendations
for how the Department might revise part 27 to increase fairness,
effectiveness, efficiency, and transparency, including to provide
enhanced protections for whistleblowers, in addition to the proposed
changes described above.
V. Regulatory Analyses
In developing this proposed rule, the Department considered
numerous statutes and executive orders applicable to rulemaking. The
Department's analysis of the applicability of those statutes and
executive orders to this rulemaking is summarized below.
A. Executive Orders 12866 (Regulatory Planning and Review) and E.O.
13563 (Improving Regulation and Regulatory Review)
This proposed rule is not a significant regulatory action under
section 3(f) of Executive Order 12866, as supplemented by Executive
Order 13563. The proposed rule proposes procedural changes to the
existing regulatory framework for resolving claims of whistleblower
retaliation by FBI employees and applicants. The proposed changes will
not materially affect the number of claims or the time, cost, or
resources required to address them. The proposed rule if adopted would
not have an annual effect on the economy of $100 million or more,
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities; would not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency; would not
materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; and would not raise novel legal or policy issues. Accordingly,
this rule does not require an assessment of potential costs and
benefits under section 6(a)(3) of Executive Order 12866. The Office of
Management and Budget has not reviewed this rule under these Orders.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-12, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. 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. 5 U.S.C. 601.
The Department certifies under 5 U.S.C. 605(b) that this proposed
rule will not have a significant economic impact on a substantial
number of small entities. The proposed rule addresses the Department's
internal process for addressing allegations of retaliation for
protected whistleblowing by FBI employees and applicants. It has no
application to small entities as defined above. The proposed rule, if
adopted, would perhaps have tangential, indirect, and transitory impact
on law firms and advocacy organizations representing FBI whistleblowers
inasmuch as they would have to become familiar with the changes in
procedure.
If your business, organization, or governmental jurisdiction
qualifies as a small entity and you believe this rule would have a
significant economic impact on it, please submit a comment (see
ADDRESSES list, page 2, supra) explaining why you think your entity
qualifies and how and to what degree this rule would economically
affect it.
C. Small Business Regulatory Enforcement Fairness Act of 1996
In accordance with section 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Department will
assist small entities in understanding this proposed rule. If you
believe the rule would affect your small business, organization, or
governmental jurisdiction and you have questions concerning its
provisions or options for compliance, please contact the persons listed
in the FOR FURTHER INFORMATION CONTACT section, above.
D. Paperwork Reduction Act
This proposed rule will not call for a new collection of
information under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-
20. Specifically, the existing and proposed rules regulate
[[Page 18494]]
administrative actions or investigations involving an agency against
specific individuals or entities and thus fall outside the scope of the
Paperwork Reduction Act. See 44 U.S.C. 3518(c)(1)(B)(ii).
E. Executive Order 13132 (Federalism)
A rule has federalism implications under Executive Order 13132 if
it has a substantial direct effect on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government.
E.O. 13132, sec. 1(a). The Department has analyzed this proposed rule
under that Order and determined that this rule does not have federalism
implications.
F. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-38,
requires Federal agencies to determine whether a rule, if promulgated,
will result in the expenditure by State, local, or tribal government,
in the aggregate, or by the private sector, of $100 million (adjusted
for inflation) or more in any one year. 2 U.S.C. 1532(a). This proposed
rule would not require or result in expenditures by any of the above-
named entities. The rule addresses the Department's internal procedures
related to protected disclosures.
G. Executive Order 12988 (Civil Justice Reform)
This proposed rule meets applicable standards in sections 3(a) and
3(b)(2) of Executive Order 12988.
H. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
This proposed rule does not have tribal implications under
Executive Order 13175 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 responsibilities between the Federal Government and Indian tribes.
I. Congressional Review Act
The reporting requirements of the Congressional Review Act
(Subtitle E of the Small Business Regulatory Enforcement Fairness Act
of 1996), 5 U.S.C. 801-08, do not apply to the proposed rule. First,
this rule relates primarily to agency management, personnel, and
organization. 5 U.S.C. 804(3)(B). Second, to the extent that the rule
affects non-agency parties such as applicants for employment and former
employees, these parties are a small subset of the cases subject to the
proposed rule, and the rule does not substantially affect such parties'
substantive rights or obligations. Id. 803(3)(C). Instead, the rule
makes changes primarily related to administrative processing of
whistleblower retaliation cases. This action is accordingly not a
``rule'' as that term is used by the Congressional Review Act, see 5
U.S.C. 804(3), and the reporting requirement of 5 U.S.C. 801 does not
apply.
List of Subjects
28 CFR Part 0
Authority delegations (Government agencies), Government employees,
National defense, Organization and functions (Government agencies),
Privacy, Reporting and recordkeeping requirements, Whistleblowing.
28 CFR Part 27
Government Employees; Justice Department; Organization and
functions (Government agencies); Whistleblowing.
Authority and Issuance
For the reasons stated above, the Department of Justice proposes to
amend 28 CFR parts 0 and 27 as follows:
PART 0 ORGANIZATION OF THE DEPARTMENT OF JUSTICE
0
1. The authority citation for part 0 continues to read as follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.
Sec. 0.29d [Amended]
0
2. Amend Sec. 0.29d, in paragraph (a), by:
0
a. Removing the words ``a violation'' and adding in their place the
words ``any violation'';
0
b. Removing the word ``mismanagement'' and adding in its place the
words ``gross mismanagement''.
PART 27--WHISTLEBLOWER PROTECTION FOR FEDERAL BUREAU OF
INVESTIGATION EMPLOYEES
0
3. The authority citation for part 27 is revised to read as follows:
Authority: 5 U.S.C. 301, 3151; 28 U.S.C. 509, 510, 515-519; 5
U.S.C. 2303; President's Memorandum to the Attorney General,
Delegation of Responsibilities Concerning FBI Employees Under the
Civil Service Reform Act of 1978, 3 CFR p. 284 (1997); Presidential
Policy Directive 19, ``Protecting Whistleblowers with Access to
Classified Information'' (October 10, 2012).
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4. Amend Sec. 27.1 by:
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a. Revising the introductory text of paragraph (a)
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b. In paragraph (a)(1), removing the words ``A violation,'' and adding
in their place ``Any violation'';
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c. In paragraph (a)(2), removing the word ``Mismanagement,'' and adding
in its place ``Gross mismanagement'';
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d. Adding paragraph (c).
The revisions and addition read as follows.
Sec. 27.1 Making a protected disclosure.
(a) When an employee of, or applicant for employment with, the
Federal Bureau of Investigation (FBI) (FBI employee) makes a disclosure
of information to a supervisor in the direct chain of command of the
employee, up to and including the Attorney General; to the Department
of Justice's (Department's) Office of the Inspector General (OIG), the
Department's Office of Professional Responsibility (OPR), the FBI
Office of Professional Responsibility (FBI OPR), or the FBI Inspection
Division (FBI-INSD) (collectively, Receiving Offices); to Congress as
described in 5 U.S.C. 7211; to the Office of Special Counsel; or to an
employee of any of the foregoing entities when designated by any
officer, employee, office, or division named in this subsection for the
purpose of receiving such disclosures, the disclosure will be a
``protected disclosure'' if the person making it reasonably believes
that it evidences:
* * * * *
(c) To be a ``protected disclosure'' under this part, the
disclosure must be made to an office or official specified in paragraph
(a) of this section.
Sec. 27.2 [Amended]
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5. Amend Sec. 27.2, in paragraph (b), by removing ``(xi)'' and adding
in its place ``(xii)''.
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6. Amend Sec. 27.4 by:
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a. In paragraph (a), removing the term ``paragraph (e)'' and adding in
its place ``paragraphs (e) and (f)'';
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b. Revising the second sentence of paragraph (c)(1);
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c. Adding a sentence at the end of paragraph (e)(1), revising paragraph
(e)(3), and adding paragraph (e)(4); and
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d. Revising paragraphs (f) and (g);
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e. Adding paragraphs (h) and (i).
The revisions and the additions read as follows:
Sec. 27.4 Corrective action and other relief; Director, Office of
Attorney Recruitment and Management.
* * * * *
(c) * * *
(1) * * * Within 5 business days of the receipt of the request, the
Director
[[Page 18495]]
shall issue an Acknowledgment Order in accordance with paragraph (f)(1)
of this section. * * *
* * * * *
(e)(1) * * * The determinations made by the Director shall be
independent and impartial.
* * * * *
(3) In making the determinations required under this paragraph, the
Director may hold a hearing at which the Complainant may present
evidence in support of his or her claim, in accordance with such
procedures as the Director may adopt. The Director is hereby authorized
to compel the attendance and testimony of, or the production of
documentary or other evidence from, any person employed by the
Department if doing so appears reasonably calculated to lead to the
discovery of admissible evidence, is not otherwise prohibited by law or
regulation, and is not unduly burdensome. The Director may prohibit a
party from adducing or relying on evidence from a person whom the
opposing party does not have an opportunity to examine, or the Director
may give less weight to such evidence. Any privilege available in
judicial and administrative proceedings relating to the disclosure of
documents or the giving of testimony shall be available before the
Director. All assertions of such privileges shall be decided by the
Director. The Director may, upon request, certify a ruling on an
assertion of privilege for review by the Deputy Attorney General.
(4) Subject to paragraph (f) of this section, the Director may
establish such procedures as he or she deems reasonably necessary to
carry out the functions assigned under this paragraph.
(f)(1) Within 5 business days of receipt by the Director under
paragraph (a) of this section of a report from a Conducting Office, or
a request for corrective action from a Complainant under paragraph
(c)(1) of this section, the Director shall issue an Acknowledgement
Order that:
(i) Acknowledges receipt of the report or request;
(ii) Informs the parties of the relevant case processing procedures
and timelines, including the manner of designation of a representative,
the time periods for and methods of discovery, the process for
resolution of discovery disputes, and the form and method of filing of
pleadings;
(iii) Informs the parties of the jurisdictional requirements for
full adjudication of the request; and
(iv) Informs the parties of their respective burdens of proof.
(2) In cases where the Director determines that there is a question
about the Director's jurisdiction to review a request from the
Complainant, the Director shall, simultaneously with the issuance of
the Acknowledgement Order, issue a Show-Cause Order explaining the
grounds for such determination and directing that the Complainant,
within 10 calendar days of receipt of such order, submit a written
statement, accompanied by evidence, to explain why the request should
not be dismissed for lack of jurisdiction. The Complainant's written
statement must provide the following information as necessary to
address the jurisdictional question or as otherwise directed:
(i) The alleged protected disclosure or disclosures;
(ii) The date on which the Complainant made any such disclosure;
(iii) The name and title of any individual or office to whom the
Complainant made any such disclosure;
(iv) The basis for the Complainant's reasonable belief that any
such disclosure evidenced any violation of law, rule, or regulation;
gross mismanagement; a gross waste of funds; an abuse of authority; or
a substantial and specific danger to public health or safety;
(v) Any action the FBI allegedly took or failed to take, or
threatened to take or fail to take, against the Complainant because of
any such disclosure, the name and title of all officials responsible
for each action, and the date of each action;
(vi) The basis for the Complainant's belief that any official
responsible for an action knew of any protected disclosure, and the
date on which the official learned of the disclosure;
(vii) The relief sought; and
(viii) The date the reprisal complaint was filed with the
Investigative Office and the date on which the Conducting Office
notified the Complainant that it was terminating its investigation into
the complaint, or if the Complainant has not received such notice,
evidence that 120 days have passed since the Complainant filed a
complaint of reprisal with the Investigative Office.
(3) The FBI shall file a reply to the Complainant's response to the
Show-Cause Order within 20 calendar days of receipt of such reply.
(i) The reply shall address issues identified by the Director in
the Show-Cause Order and matters raised in the Complainant's response
to that order under paragraph (f)(2) of this section, and shall
include: a statement identifying any FBI actions taken against the
Complainant and the reasons for taking such actions; designation of and
signature by the FBI legal representative; and any other documents or
information requested by the Director.
(ii) The reply may also include any and all documents contained in
the FBI record of the action or actions.
(4) After receipt of the FBI's response, the record on the
jurisdictional issue will close, absent a request from either party
establishing exigent circumstances requiring the need for the
presentation of additional evidence or arguments.
(g) If the Director orders corrective action, such corrective
action may include: placing the Complainant, as nearly as possible, in
the position he or she would have been in had the reprisal not taken
place; reimbursement for attorney's fees, reasonable costs, medical
costs incurred, and travel expenses; back pay and related benefits;
compensatory damages to the extent authorized by law; and any
reasonable and foreseeable consequential damages.
(h) Whenever the Director determines that there has been a reprisal
prohibited by Sec. 27.2 of this part, the Director, in addition to
ordering any corrective action as authorized by Sec. 27.4(g), above,
shall forward to the FBI OPR and the FBI-INSD, with a copy to the
Director of the FBI, a written summary of the Director's findings of
reprisal, the evidence supporting the findings, and the officials
responsible for the reprisal. FBI OPR shall make a determination of
whether disciplinary action is warranted against any officials the
Director identified as responsible for the reprisal.
(i) If the Director determines that there has not been any reprisal
prohibited by Sec. 27.2, the Director shall report this finding in
writing to the Complainant, the FBI, and the Conducting Office.
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7. Revise Sec. 27.5 to read as follows:
Sec. 27.5 Review.
(a) Within 30 calendar days of a finding of a lack of jurisdiction,
a final determination on the merits, or corrective action ordered by
the Director, the Complainant or the FBI may request review by the
Deputy Attorney General of that determination or order. The Deputy
Attorney General shall set aside or modify the Director's actions,
findings, or conclusions found to be arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; obtained without
procedures required by law, rule, or regulation having been followed;
or unsupported by substantial evidence. The Deputy Attorney General has
full discretion to review and modify
[[Page 18496]]
corrective action ordered by the Director, provided, however that if
the Deputy Attorney General upholds a finding that there has been a
reprisal, then the Deputy Attorney general shall order appropriate
corrective action.
(b) The parties may not file an interlocutory appeal to the Deputy
Attorney General from a procedural ruling made by the Director during
proceedings pursuant to section 27.4 of this part. The Deputy Attorney
General has full discretion to review such rulings by the Director
during the course of reviewing an appeal of the Director's finding of a
lack of jurisdiction, final determination, or corrective action order
brought under paragraph (a).
(c) In carrying out the functions set forth in this section, the
Deputy Attorney General may issue written directives or orders to the
parties as necessary to ensure the efficient and fair administration
and management of the review process.
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8. Add Sec. 27.7 to read as follows:
Sec. 27.7 Alternative dispute resolution.
(a) At any stage in the process set forth in Sec. Sec. 27.3
through 27.5 of this part, the Complainant may request Alternative
Dispute Resolution (ADR) through the Department of Justice Mediator
Corps (DOJMC) Program. The Complainant may elect to participate in ADR
by notifying in writing the office before which the matter is then
pending.
(b) If the Complainant elects mediation, the FBI, represented by
the Office of General Counsel, will participate.
(c) When the Complainant requests to engage in ADR, the process set
forth in Sec. Sec. 27.3 through 27.5, as applicable, including all
time periods specified therein, will be stayed for an initial period of
90 days, beginning on the date of transmittal of the matter to the
DOJMC Program office. Upon joint request by the parties to the office
before which the matter is stayed, the period of the stay may be
extended up to an additional 45 days. Further requests for extension of
the stay may be granted only by the Director, regardless of the office
before which the matter is pending, upon a joint request showing good
cause. The stay otherwise will be lifted if the DOJMC Program notifies
the office before which the matter is stayed that the Complainant no
longer wishes to engage in mediation, or that the parties are unable to
reach agreement on resolution of the complaint and that continued
efforts at mediation would not be productive.
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9. Add Sec. 27.8 to read as follows:
Sec. 27.8 Authority of the Director to review and decide claims of a
breach of a settlement agreement.
(a) Any party to a settlement agreement reached in proceedings and
in a forum under this part may file a claim of a breach of that
settlement agreement with the Director within 30 days of the date on
which the grounds for the claim of breach were known.
(b) The Director shall adjudicate any timely claim of a breach of a
settlement agreement. The Director shall exercise the authority granted
under Sec. 27.4(e)(4) to ensure the efficient administration and
management of the adjudication of the breach claim, pursuant to any
procedures the Director deems reasonably necessary to carry out the
functions assigned under this paragraph.
(c) A party may request, within 30 calendar days of a decision on a
claim of a breach of a settlement agreement by the Director, review of
that decision by the Deputy Attorney General.
Dated: March 17, 2023.
Merrick B. Garland,
Attorney General.
[FR Doc. 2023-05927 Filed 3-28-23; 8:45 am]
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