FAS | Government Secrecy | November 1999 News ||| Index | Search | Join FAS


Federal Register: November 1, 1999 (Volume 64, Number 210)
Rules and Regulations
Page 58782-58788


DEPARTMENT OF JUSTICE

28 CFR Parts 0 and 27

[A.G. Order No. 2264-99]
RIN 1105-AA60

 
Whistleblower Protection For Federal Bureau of Investigation 
Employees

AGENCY: Department of Justice.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Justice (Department) adopts as final, with 
certain changes discussed below, the interim rule published last year 
in the Federal Register establishing procedures under which employees 
of the Federal Bureau of Investigation (FBI) may make disclosures of 
information protected by the Civil Service Reform Act of 1978 and the 
Whistleblower Protection Act of 1989. The interim rule also established 
procedures under which the Department will investigate allegations by 
FBI employees of reprisal for making such protected disclosures, and 
under which it will take appropriate corrective action.

DATES: This rule is effective November 1, 1999.

FOR FURTHER INFORMATION CONTACT:
Stuart Frisch, General Counsel, or John Caterini, Attorney-Advisor, 
Office of the General Counsel, Justice Management Division, U.S. 
Department of Justice, 950 Pennsylvania Ave., NW, Washington, DC 20530; 
telephone: (202) 514-3452; e-mail: [email protected]

SUPPLEMENTARY INFORMATION:

A. Background

    On November 10, 1998, the Department issued an interim rule 
establishing procedures under which FBI employees may make disclosures 
of information protected by the Civil Service Reform Act of 1978, Pub. 
L. 95-454, and the Whistleblower Protection Act of 1989, Pub. L. 101-
12, codified at 5 U.S.C. 2303. The interim rule also established 
procedures under which the Department will investigate allegations by 
FBI employees of reprisal for making such protected disclosures and 
under which it will take appropriate corrective action.
    Under sections 1214 and 1221 of title 5 of the United States Code, 
most federal employees who believe they have been subjected to a 
prohibited personnel practice, including reprisal for whistleblowing, 
may request an investigation by the Office of Special Counsel (OSC) 
(section 1214) or, in appropriate circumstances, pursue an individual 
right of action before the

[[Page 58783]]

Merit Systems Protection Board (MSPB) (sections 1214(a)(3) and 1221). 
Although Congress expressly excluded the FBI from the scheme 
established by those provisions, see 5 U.S.C. 2302(a)(2)(C)(ii), 
section 2303(a) of title 5 contains a separate provision that prohibits 
reprisals against whistleblowers in the FBI. Section 2303(b) directs 
the Attorney General to prescribe regulations to ensure that such 
reprisal not be taken, and section 2303(c) directs the President to 
provide for the enforcement of section 2303 ``in a manner consistent 
with applicable provisions of section 1214 and 1221.'' On April 14, 
1997, the President delegated to the Attorney General the ``functions 
concerning employees of the Federal Bureau of Investigation vested in 
(him) by * * * section 2303(c) of title 5, United States Code,'' and 
directed the Attorney General to establish ``appropriate processes 
within the Department of Justice to carry out these functions.'' See 62 
FR 23123 (1997).
    The interim rule implements section 2303(b) and (c) and the 
President's April 1997 directive, superseding and replacing 28 CFR 
0.39c, which gave the Counsel for the Department's Office of 
Professional Responsibility authority to request a stay of a personnel 
action against an FBI employee when he determined that there were 
reasonable grounds to believe that the action was taken as a reprisal 
for whistleblowing. The interim rule designates specific offices--the 
Department's Office of Professional Responsibility (OPR), the 
Department's Office of Inspector General (OIG), and the FBI's Office of 
Professional Responsibility (FBI OPR) (collectively, Receiving 
Offices)--to which an FBI employee (or applicant for employment with 
the FBI) may disclose information that the employee or applicant 
reasonably believes evidences violation of any law, rule or regulation; 
mismanagement; a gross waste of funds; an abuse of authority; or a 
substantial and specific danger to public health or safety. (Such 
disclosures are referred to herein as ``whistleblower disclosures.'') 
In accordance with section 2303(a), the interim rule prohibits 
reprisals against persons who make such disclosures.
    The interim rule further provides that OPR or OIG (the Conducting 
Office) will investigate whistleblower reprisal claims and may 
recommend corrective action, where appropriate, to the Director, Office 
of Attorney Personnel Management (the Director). Under the interim 
rule, the Director may decide whistleblower reprisal claims presented 
to her by OPR or OIG (or, in appropriate circumstances, by a 
complainant directly). The Director may also, among other things, 
authorize a temporary stay, rule on evidentiary matters, and hold a 
hearing. Under the interim rule, the roles and functions of the 
Conducting Office and the Director are thus analogous to those of the 
OSC and MSPB, respectively, in whistleblower cases involving federal 
employees generally. In addition, the interim rule imports time frames 
specified in the statute for the OSC/MSPB system whenever possible.
    One fundamental difference, however, between the two systems is 
that the procedures provided in the interim rule are entirely internal 
to the Department. This is because section 2303 (the source of 
authority for the interim rule) identifies the Attorney General or her 
designee as recipients of protected whistleblower disclosures, rather 
than any outside person or entity. In addition, the President's April 
1997 directive, consistent with the statute and its legislative 
history, directs that the Attorney General establish appropriate 
processes within the Department of Justice. See, e.g., 124 Cong. Rec. 
28770 (1978) (``We gave (the FBI) special authority * * * to let the 
President set up their own whistle-blower (sic) system so that appeals 
would not be to the outside but to the Attorney General.'') (statement 
of Representative Udall).
    Although the interim rule was effective upon publication in the 
Federal Register, the Department invited post-promulgation comments. 
The Department received three sets of comments, which are discussed 
below.

B. Discussion of Comments and Changes to the Interim Rule

1. Definition of Protected Disclosure

    Unlike section 2303, section 2302 (which sets forth the scheme for 
federal employees generally) creates two types of protected 
disclosures. Section 2302(b)(8)(A) protects whistleblower disclosures, 
regardless of whom they are made to, provided that they are not 
otherwise specifically prohibited by law or required by Executive Order 
to be kept secret. Section 2302(b)(8)(B), by contrast, protects 
whistleblower disclosures, without qualification or exception, only if 
they are made to certain specific persons or entities--the OSC, an 
agency Inspector General, or other designee appointed by the head of 
the agency. Section 2303 adopts the approach set forth in 
2302(b)(8)(B), in that it protects whistleblower disclosures that are 
made to particular persons or entities (namely, the Attorney General or 
her designee).
    One commenter suggested that the final rule should follow the 
approach set forth in section 2302(b)(8)(A), under which disclosures 
that do not otherwise violate law or Executive Order would be protected 
regardless of to whom they are made. We have not adopted this 
suggestion. The operative statutory provision, section 2303(a), 
protects whistleblowing disclosures only if they are made to the 
Attorney General or an employee whom she designates. Section 2303(a) 
thus treats FBI whistleblowing activity differently from other agency 
whistleblowing by channeling whistleblowers to designated agency 
officials.

2. Recipients of Protected Disclosures

    As stated earlier, the interim rule designates three entities to 
receive whistleblower disclosures: OPR, OIG, and FBI OPR. All three 
commenters suggested expanding the list of recipients for protected 
disclosures. In particular, the commenters proposed the following 
additional recipients: The FBI Director and Deputy Director; the FBI 
Inspection Division; supervisors in the chain of command; co-workers; 
and members of Congress.
    We agree that whistleblower disclosures made to the head of an 
employee's agency should be protected, and the final rule therefore 
includes the FBI Director and Deputy Director, as well as the Attorney 
General and Deputy Attorney General, as recipients for such 
disclosures. We have also decided to designate the highest-ranking 
official in each FBI field office as recipients of protected 
disclosures. The highest-ranking official in each FBI field office is 
generally a Special Agent in Charge (SAC). The exceptions are the FBI's 
field offices in Los Angeles, CA, New York, NY, and Washington, DC, 
where the highest-ranking official is an Assistant Director in Charge 
(ADIC). These senior officials--whether SACs or ADICs--are generally in 
a position to take action against and to correct management and other 
problems within their respective field offices. In addition, 
designating the heads of field offices as recipients of protected 
disclosures permits employees in the field to have an opportunity to 
make protected disclosures to officials with whom they may be more 
familiar, and without the necessity of contacting officials at FBI 
headquarters.
    In response to suggestions that the Inspection Division, 
supervisors, and co-workers also be designated recipients for 
whistleblower disclosures, we note, as an initial matter, that section 
2303(a) limits the universe of recipients of protected disclosures to 
the Attorney

[[Page 58784]]

General ``or an employee designated by the Attorney General for such 
purpose.'' This statutory directive suggests that Congress contemplated 
that recipients for whistleblower disclosures would be a relatively 
restricted group. Given the size of the FBI, as well as the many 
demands on the Attorney General's time, we believe that it is 
appropriate, as well as within the Attorney General's authority, to 
designate more than one employee of the Department as a recipient. On 
the other hand, to designate a large (and in the case of supervisors, 
arguably ill-defined) group of employees as recipients would be 
inconsistent with Congress's decision, given the sensitivity of 
information to which FBI employees have access, not to protect all 
legal disclosures of wrongdoing, see 5 U.S.C. 2302(a)(2)(C)(ii), the 
way it did with employees of other agencies, see 5 U.S.C. 2302(b)(8) 
(discussed above).
    Given these concerns, we do not believe Congress intended to 
include all FBI employees in the class of those to whom protected 
whistleblowing disclosures may be made. Moreover, there is a difference 
between complaining to a fellow employee about alleged misconduct, on 
the one hand, and affirmatively bringing an allegation of wrongdoing to 
the attention of one in a position to do something about it, on the 
other. Even supervisors in the chain of command--though a subset of all 
employees--comprise a sufficiently large group in the aggregate that we 
do not believe Congress intended to include them as recipients of 
protected disclosures. Designating supervisors as recipients of 
protected disclosures raises the additional problem of including as 
recipients the very individuals against whom the prohibition on 
reprisal is directed, i.e., individuals who have authority to take, 
direct others to take, recommend, or approve personnel actions against 
whistleblowers. Designating the highest ranking official in each field 
office, but not all supervisors, as recipients of protected disclosures 
(as discussed above) provides a way to channel such disclosures to 
those in the field who are in a position to respond and to correct 
management and other problems, while also providing an on-site contact 
in the field for making protected disclosures. We therefore decline to 
adopt the suggestion that all employees and supervisors be designated 
recipients of protected disclosures.
    The FBI Inspection Division conducts periodic inspections of FBI 
offices and workplaces and, as part of those inspections, conducts 
extensive interviews of employees at those locations. Virtually all FBI 
employees must therefore, as part of their duties, participate from 
time to time in interviews with the Inspection Division and provide 
requested information. Required participation in such inspections is, 
however, distinct from whistleblowing. The provisions that apply to 
other federal employees recognize this distinction by providing for 
separate protection for required participation in an investigation: 
employees are protected under section 2302(b)(8) from reprisal for 
whistleblowing, but are protected under section 2302(b)(9)(C) from 
reprisal for cooperating in an Inspector General or OSC investigation. 
Federal employees of applicable agencies who claim reprisal under 
section 2302(b)(9) for cooperating in an investigation may report their 
allegations to the OSC, which may investigate and pursue those 
allegations. See 5 U.S.C. 1212, 1214. Such employees, however, are not 
entitled to bring an individual right of action under section 1221. 
Likewise, it is the FBI's policy that if an employee is subject to 
reprisal for any disclosure made during an inspection interview, the 
matter is referred to FBI OPR for review and appropriate action. Thus, 
there is already in place within the FBI a procedure, analogous to that 
provided to federal employees generally, to protect FBI employees from 
reprisal for disclosures made during an inspection. We therefore 
decline to adopt the suggestion that the FBI Inspection Division be 
included as a recipient of protected disclosures.
    One commenter suggested that the procedures set forth in the rule 
should apply to disclosures made to Congress, citing several statutes 
relating to the right of federal employees to communicate with 
Congress--the Lloyd-Lafollette Act of 1912, 5 U.S.C. 7211; section 625 
of the Treasury, Postal Service and General Government Appropriations 
Act of 1998, Pub. L. 105-61; and the Intelligence Community 
Whistleblower Protection Act of 1998, Pub. L. 105-272. Section 2303 
(the enabling statute), however, protects whistleblower disclosures 
only to the extent they are made to the Attorney General or to an 
employee designated by the Attorney General for such purposes. As 
stated earlier, this indicates that, for purposes of section 2303, 
Congress specifically intended that protected FBI disclosures be 
internal to the Department. We have therefore not adopted this 
suggestion. We note, however, that individuals remain free to report 
violations by a Department official of any of the above-listed statutes 
to OPR, OIG, or FBI OPR. These offices are authorized to investigate 
the alleged violation and to recommend appropriate corrective action.
    The final rule has been changed to incorporate the additional 
designated recipients discussed above. We anticipate that the 
designated recipients, upon receiving a whistleblower disclosure, will 
take appropriate action within their discretion and authority, 
including, where appropriate, forwarding the disclosure to one of the 
Receiving Offices.

3. Protection Against Threats To Take a Personnel Action and From 
``Other Significant Change in Duties, Responsibilities or Working 
Conditions''

    Section 2303(a) prohibits ``tak(ing), or fail(ing) to take'' a 
personnel action as a reprisal for a protected disclosure. By contrast, 
section 2302(b)(8), the statute applicable to federal employees 
generally, also prohibits ``threaten(ing)'' to take or fail to take 
personnel action. All three commenters urged that the rule also protect 
FBI employees from threats to take or fail to take personnel action. 
The Department accepts this suggestion and has revised Sec. 27.2(a) 
accordingly.
    A related comment, made by all commenters, involves the definition 
of ``personnel action.'' Section 2303(a) defines ``personnel action'' 
to mean any action described in subsections (i) through (x) of section 
2302(a)(2)(A). When Congress enacted section 2303, section 
2302(a)(2)(A) contained only ten subsections, the last of which, (x), 
defined ``personnel action'' to include ``any other significant change 
in duties, responsibilities, or working conditions.'' Later, in 1994, 
Congress added another personnel practice to section 2302(a)(2)(A): ``a 
decision to order psychiatric testing or examination.'' This new 
provision was made subsection (x), and the ``other significant change'' 
provision became subsection (xi). Because Congress did not also change 
section 2303(a), the net effect was to substitute the psychiatric 
testing provision (the new subsection (x)) for the ``other significant 
change'' provision (the old subsection (x)) in the definition of 
``personnel action,'' as it applied to the FBI. All commenters 
suggested that the final rule make the ``other significant change'' 
provision applicable to FBI employees. We believe that the Attorney 
General has authority under 5 U.S.C. 301 to expand the definition of 
``personnel action'' for purposes of these regulations. Section 301 
authorizes the Attorney General to ``prescribe regulations for the

[[Page 58785]]

government of (her) department (and) the conduct of its employees.'' 
Accordingly, the Department accepts this suggestion and has revised 
Sec. 27.2(b).

4. Absence of Confidentiality Provisions Analogous to Those Found in 
Sections 1212(g) and 1213(h)

    One commenter expressed concern that the interim rule does not 
contain ``confidentiality provisions,'' such as those found in sections 
1212(g) and 1213(h). Section 1212(g) prohibits OSC from disclosing 
information about a person who alleges a reprisal, except in accordance 
with the Privacy Act or as required by other applicable federal law. 
Section 1213(h) prohibits OSC from disclosing the identity of a person 
making a disclosure, unless necessary because of imminent danger to 
public health or safety or imminent violation of any criminal law.
    As an initial matter, section 2303(c) requires the procedures set 
forth in the rule to be ``consistent with the applicable provisions of 
sections 1214 and 1221.'' Because section 2303(c) is silent as to 
sections 1212 and 1213, we decline to adopt the suggestion that the 
rule include the confidentiality provisions of those sections. We note 
in passing, however, that nothing in the interim rule suggests that a 
Conducting Office, the Director, or anyone else may release the 
identity of a whistleblower, or any other information, to the public in 
contravention of the Privacy Act or any other federal non-disclosure 
statute. To the extent the comment may have been prompted in part by 
Sec. 27.4(c)(1) of the interim rule, which provided for release of 
Conducting Office memoranda of interview in certain circumstances, we 
have removed that provision.

5. Proof of Reprisal

    One commenter suggested that the regulations should not require 
proof of reprisal, noting that section 2302(b)(8) prohibits taking 
certain personnel actions ``because of'' a protected disclosure, 
without explicitly mentioning reprisals. Section 2302(a), however, does 
not contain the ``because of'' construction of section 2302(b)(8). 
Rather, it specifically prohibits taking or failing to take personnel 
action ``as a reprisal'' for a protected disclosure. In any event, the 
interim rule incorporates the same standard of proof for reprisal as 
that set forth in section 1221(e) for the OSC/MSPB scheme. We therefore 
believe we have adopted the appropriate standard of proof.

6. Absence of Conflict of Interest Provisions for Receiving Offices

    One commenter asserted that having OPR or OIG investigate 
whistleblower disclosures raised the potential for conflicts of 
interest, because those offices also may be responsible for 
investigating sources of leaks, which could themselves be protected 
whistleblower disclosures. A protected disclosure could not be a 
``leak,'' however, because protected disclosures, by definition, are 
made to designated offices and officials that are internal to the 
Department. Moreover, to the extent one of these offices may have a 
conflict in investigating the substance of a whistleblower disclosure 
because of an ongoing leak investigation, Sec. 27.1(b) of the rule 
provides that ``(w)hen a Receiving Office receives a protected 
disclosure, it shall proceed in accordance with existing procedures 
establishing jurisdiction among the respective Receiving Offices.'' 
Those existing procedures include consideration of conflicts of 
interest.

7. Absence of Provisions for Disciplinary Proceedings

    One commenter suggested that the rule should provide for 
disciplinary proceedings in accordance with section 1215. Section 2303 
(the source of authority for the rule) requires implementation of its 
substantive protections ``in a manner consistent with applicable 
provisions of sections 1214 and 1221,'' but is silent as to section 
1215. Moreover, the Department retains its own independent authority to 
take appropriate disciplinary action if it determines such action to be 
necessary. The interim rule does not prohibit or preclude the 
Department from taking appropriate disciplinary action under its 
existing authority. We do not believe, therefore, that the rule needs 
to address disciplinary action.

8. Availability of a Hearing

    Section 27.4(d) of the interim rule provides that ``(w)here a 
Complainant has presented a request for corrective action directly to 
the Director under paragraph (c)(1) of this section, the Director may 
hold a hearing.'' One commenter noted that this language makes hearings 
discretionary and suggested that complainants should have a right to a 
hearing. We have not adopted this suggestion. Although an employee who 
makes a proper appeal to the MSPB has a right ``to a hearing for which 
a transcript will be kept,'' this provision appears in 5 U.S.C. 
7701(a)(1). Section 2303 (the source of authority for the rule) 
requires the rule to implement applicable provisions of only sections 
1214 and 1221. Because sections 1214 and 1221 are silent on the right 
to a hearing, the interim rule does not require (though it permits) the 
Director to hold a hearing where a complainant presents a request for 
corrective action directly to her. Accordingly, although the interim 
rule gives the Director discretion to hold a hearing when a complainant 
presents a request for corrective action under Sec. 27.4(d), it does 
not provide for a right to a hearing in that circumstance.
    The interim rule does not address whether the Director has 
discretion to hold a hearing when a Conducting Office reports findings 
and recommendations to the Director pursuant to Sec. 27.4(a). Although 
sections 1214 and 1221 are silent on this issue, we believe the 
Director should have discretion to hold a hearing in those 
circumstances if doing so would assist in her decisionmaking. 
Accordingly, the final rule has been modified to give the Director 
discretion to hold a hearing without regard to whether a whistleblower 
reprisal matter is before the Director as a result of a complainant's 
request (under Sec. 27.4(c)(1)) or as a result of a Conducting Office 
recommendation (under Sec. 27.4(a)). The procedures for such hearings 
are to be determined by the Director in the first instance (see 
Sec. 27.4(e)(3)).

9. Performance of OSC and MSPB Functions by External Entities; Judicial 
Review

    One commenter suggested that the interim rule is invalid in its 
entirety, because it fails to establish entities external to and 
independent of the Department to perform the functions of the OSC and 
MSPB (whose functions, under the rule, are performed by the Conducting 
Offices and the Director, respectively). Adopting this suggestion, 
however, would require the Attorney General to take an action that is 
beyond her authority. The President's April 1997 directive ordered the 
Attorney General to establish ``appropriate processes within the 
Department of Justice,'' 62 FR 23123 (1997) (emphasis added). We do not 
believe that section 2303 requires the creation of external entities to 
carry out the OSC/MSPB functions. If Congress had wanted to provide FBI 
employees with fora outside the Department to address their 
whistleblower reprisal claims, it could have included them in the OSC/
MSPB scheme. The fact that Congress did not do so, see 5 U.S.C. 
2302(a)(2)(C)(ii), strongly suggests that Congress, in enacting section 
2303, did not envision

[[Page 58786]]

the creation of external entities to perform the OSC/MSPB functions.
    Two commenters requested that we provide for judicial review of 
decisions made under the rule, because sections 1214(c)(1) and 1221(h) 
provide for it. We have not accepted this suggestion. Section 2302 (the 
source of authority for the rule) does not provide for judicial review, 
and Congress has therefore not waived sovereign immunity for this 
purpose. Under the doctrine of separation of powers, neither the 
President nor the Attorney General has the authority to waive sovereign 
immunity; only Congress has that authority.

10. Other Changes to the Interim Rule

    a. For the sake of clarity, we changed the order of paragraphs (d), 
(e) and (f) of Sec. 27.4, and divided the former paragraph (f) (now 
paragraph (e)) into subparagraphs.
    b. In Sec. 27.1(b), to reflect current practice and policy see 28 
CFR 0.29d(a), we added a sentence regarding the referral of 
whistleblowing allegations by OPR and OIG to FBI OPR.
    c. In Sec. 27.3(f), to be consistent with an applicable provision 
of section 1214, we added language to clarify that a complainant may 
agree to extend the 240-day time limit for the Conducting Office to 
make its determination of whether there are reasonable grounds to 
determine that there has been or will be a reprisal for a protected 
disclosure.
    d. In Sec. 27.4(a), to be consistent with an applicable provision 
of section 1214 (section 1214(b)(2)(E)), we added the following 
sentence: ``A determination by the Conducting Office that there are 
reasonable grounds to believe a reprisal has been or will be taken 
shall not be cited or referred to in any proceeding under these 
regulations, without the Complainant's consent.'' We did not 
incorporate the provision in section 1214(b)(2)(E) relating to ``any 
other administrative or judicial proceeding,'' because we lack 
authority to prescribe what courts and other agencies may or may not 
cite or reference. In addition, because the Conducting Office may 
continue to investigate any violation of law, rule, or regulation (see 
Sec. 27.4(c)) and may report its findings to appropriate Department 
officials, the restriction in Sec. 27.4(a) does not apply to such 
further proceedings conducted by OIG or OPR.
    e. In Sec. 27.4(b), we have added language to permit the Director, 
when considering comments on a Conducting Office request for an 
extension of a stay, to request additional information as the Director 
deems necessary. The interim rule did not preclude the Director from 
seeking additional information in those circumstances. We believe that 
the Director has such authority and therefore made it explicit.
    f. We modified Sec. 27.4(c)(1) to make it more consistent with 
applicable provisions of section 1214.
    g. We revised Sec. 27.4(e)(3) to clarify the process by which 
assertions of privilege are to be decided.
    h. In the second sentence of Sec. 27.5, to clarify a potential 
ambiguity, we have stricken ``(or a designee)'' after ``Deputy Attorney 
General.'' The Deputy Attorney General may designate a Department 
official to assist or advise him in conducting a review. We do not, 
however, believe that the authority of the Deputy Attorney General to 
conduct a review should be delegated. We also clarified a possible 
ambiguity in the first sentence of that section concerning the time 
within which a complainant or the FBI may seek review of a 
determination or corrective action order by the Director.

C. Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act, 5 U.S.C. 605(b), has reviewed this regulation and by approving it 
certifies that it will not have a significant economic impact on a 
substantial number of small entities. This rule merely establishes 
procedures under which FBI employees or applicants for employment with 
the FBI may make certain protected disclosures of information and 
establishes procedures under which the Department will investigate 
allegations of reprisal against such individuals.

D. Executive Order 12866

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866. The Department has determined that this rule is 
not a ``significant regulatory action'' under section 3(f) of Executive 
Order 12866, Regulatory Planning and Review, and accordingly this rule 
has not been reviewed by the Office of Management and Budget.

E. Executive Order 12612

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 12612, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

F. Unfunded Mandates Reform Act of 1995

    This rule will not, in the aggregate, result in the expenditure by 
State, local and tribal governments, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

G. Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 
804. This rule will not result in an annual effect on the economy of 
$100,000,000 or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

List of Subjects in 28 CFR Part 27

    Government employees; Justice Department; Organization and 
functions (Government agencies); Whistleblowing.
    For the reasons stated in the preamble, the interim rule amending 
28 CFR part 0 and adding 28 CFR Part 27, which was published at 63 FR 
62937, November 10, 1998, is adopted as a final rule with the following 
changes:
    1. Revise Part 27 to read as follows:

PART 27--WHISTLEBLOWER PROTECTION FOR FEDERAL BUREAU OF 
INVESTIGATION EMPLOYEES

Subpart A--Protected Disclosures of Information

Sec.
27.1  Making a protected disclosure.
27.2  Prohibition against reprisal for making a protected 
disclosure.

Subpart B--Investigating Reprisal Allegations and Ordering Corrective 
Action

27.3  Investigations: The Department of Justice's Office of 
Professional Responsibility and Office of the Inspector General.
27.4  Corrective action and other relief: Director, Office of 
Attorney Personnel Management.
27.5  Review.
27.6  Extensions of time.

    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).

[[Page 58787]]

Subpart A--Protected Disclosures of Information


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 the Department of Justice's (Department's) Office of 
Professional Responsibility (OPR), the Department's Office of Inspector 
General (OIG), the FBI Office of Professional Responsibility (FBI OPR) 
(collectively, Receiving Offices), the Attorney General, the Deputy 
Attorney General, the Director of the FBI, the Deputy Director of the 
FBI, or to the highest ranking official in any FBI field office, the 
disclosure will be a ``protected disclosure'' if the person making it 
reasonably believes that it evidences:
    (1) A violation of any law, rule or regulation; or
    (2) Mismanagement, a gross waste of funds, an abuse of authority, 
or a substantial and specific danger to public health or safety.
    (b) When a Receiving Office receives a protected disclosure, it 
shall proceed in accordance with existing procedures establishing 
jurisdiction among the respective Receiving Offices. OPR and OIG shall 
refer such allegations to FBI OPR for investigation unless the Deputy 
Attorney General determines that such referral shall not be made.


Sec. 27.2  Prohibition against reprisal for making a protected 
disclosure.

    (a) Any employee of the FBI, or of any other component of the 
Department, who has authority to take, direct others to take, 
recommend, or approve any personnel action shall not, with respect to 
such authority, take or fail to take, or threaten to take or fail to 
take, a personnel action, as defined below, with respect to any FBI 
employee as a reprisal for a protected disclosure.
    (b) Personnel action means any action described in clauses (i) 
through (xi) of 5 U.S.C. 2302(a)(2)(A) taken with respect to an FBI 
employee other than one in a position which the Attorney General has 
designated in advance of encumbrance as being a position of a 
confidential, policy-determining, policy-making, or policy-advocating 
character.

Subpart B--Investigating Reprisal Allegations and Ordering 
Corrective Action


Sec. 27.3 Investigations:  The Department of Justice's Office of 
Professional Responsibility and Office of the Inspector General.

    (a)(1) An FBI employee who believes that another employee of the 
FBI, or of any other Departmental component, has taken or has failed to 
take a personnel action as a reprisal for a protected disclosure 
(reprisal), may report the alleged reprisal to either the Department's 
OPR or the Department's OIG (collectively, Investigative Offices). The 
report of an alleged reprisal must be made in writing.
    (2) For purposes of this subpart, references to the FBI include any 
other Departmental component in which the person or persons accused of 
the reprisal were employed at the time of the alleged reprisal.
    (b)The Investigative Office that receives the report of an alleged 
reprisal shall consult with the other Investigative Office to determine 
which office is more suited, under the circumstances, to conduct an 
investigation into the allegation. The Attorney General retains final 
authority to designate or redesignate the Investigative Office that 
will conduct an investigation.
    (c) Within 15 calendar days of the date the allegation of reprisal 
is first received by an Investigative Office, the office that will 
conduct the investigation (Conducting Office) shall provide written 
notice to the person who made the allegation (Complainant) indicating--
    (1) That the allegation has been received; and
    (2) The name of a person within the Conducting Office who will 
serve as a contact with the Complainant.
    (d) The Conducting Office shall investigate any allegation of 
reprisal to the extent necessary to determine whether there are 
reasonable grounds to believe that a reprisal has been or will be 
taken.
    (e) Within 90 calendar days of providing the notice required in 
paragraph (c) of this section, and at least every 60 calendar days 
thereafter (or at any other time if the Conducting Office deems 
appropriate), the Conducting Office shall notify the Complainant of the 
status of the investigation.
    (f) The Conducting Office shall determine whether there are 
reasonable grounds to believe that there has been or will be a reprisal 
for a protected disclosure. The Conducting Office shall make this 
determination within 240 calendar days of receiving the allegation of 
reprisal unless the Complainant agrees to an extension.
    (g) If the Conducting Office decides to terminate an investigation, 
it shall provide, no later than 10 business days before providing the 
written statement required by paragraph (h) of this section, a written 
status report to the Complainant containing the factual findings and 
conclusions justifying the termination of the investigation. The 
Complainant may submit written comments on such report to the 
Conducting Office. The Conducting Office shall not be required to 
provide a subsequent written status report after submission of such 
comments.
    (h) If the Conducting Office terminates an investigation, it shall 
prepare and transmit to the Complainant a written statement notifying 
him/her of--
    (1) The termination of the investigation;
    (2) A summary of relevant facts ascertained by the Conducting 
Office;
    (3) The reasons for termination of the investigation; and
    (4) A response to any comments submitted under paragraph (g) of 
this section.
    (i) Such written statement prepared pursuant to paragraph (h) of 
this section may not be admissible as evidence in any subsequent 
proceeding without the consent of the Complainant.
    (j) Nothing in this part shall prohibit the Receiving Offices, in 
the absence of a reprisal allegation by an FBI employee under this 
part, from conducting an investigation, under their pre-existing 
jurisdiction, to determine whether a reprisal has been or will be 
taken.


Sec. 27.4  Corrective action and other relief: Director, Office of 
Attorney Personnel Management.

    (a) If, in connection with any investigation, the Conducting Office 
determines that there are reasonable grounds to believe that a reprisal 
has been or will be taken, the Conducting Office shall report this 
conclusion, together with any findings and recommendations for 
corrective action, to the Director, Office of Attorney Personnel 
Management (the Director). If the Conducting Office's report to the 
Director includes a recommendation for corrective action, the Director 
shall provide an opportunity for comments on the report by the FBI and 
the Complainant. The Director, upon receipt of the Conducting Office's 
report, shall proceed in accordance with paragraph (e) of this section. 
A determination by the Conducting Office that there are reasonable 
grounds to believe a reprisal

[[Page 58788]]

has been or will be taken shall not be cited or referred to in any 
proceeding under these regulations, without the Complainant's consent.
    (b) At any time, the Conducting Office may request the Director to 
order a stay of any personnel action for 45 calendar days if it 
determines that there are reasonable grounds to believe that a reprisal 
has been or is to be taken. The Director shall order such stay within 
three business days of receiving the request for stay, unless the 
Director determines that, under the facts and circumstances involved, 
such a stay would not be appropriate. The Director may extend the 
period of any stay granted under this paragraph for any period that the 
Director considers appropriate. The Director shall allow the FBI an 
opportunity to comment to the Director on any proposed extension of a 
stay, and may request additional information as the Director deems 
necessary. The Director may terminate a stay at any time, except that 
no such termination shall occur until the Complainant and the 
Conducting Office shall first have had notice and an opportunity to 
comment.
    (c)(1) The Complainant may present a request for corrective action 
directly to the Director within 60 calendar days of receipt of 
notification of termination of an investigation by the Conducting 
Office or at any time after 120 calendar days from the date the 
Complainant first notified an Investigative Office of an alleged 
reprisal if the Complainant has not been notified by the Conducting 
Office that it will seek corrective action. The Director shall notify 
the FBI of the receipt of the request and allow the FBI 25 calendar 
days to respond in writing. If the Complainant presents a request for 
corrective action to the Director under this paragraph, the Conducting 
Office may continue to seek corrective action specific to the 
Complainant, including the submission of a report to the Director, only 
with the Complainant's consent. Notwithstanding the Complainant's 
refusal of such consent, the Conducting Office may continue to 
investigate any violation of law, rule, or regulation.
    (2) The Director may not direct the Conducting Office to reinstate 
an investigation that the Conducting Office has terminated in 
accordance with Sec. 27.3(h).
    (d) Where a Complainant has presented a request for corrective 
action to the Director under paragraph (c) of this section, the 
Complainant may at any time request the Director to order a stay of any 
personnel action allegedly taken or to be taken in reprisal for a 
protected disclosure. The request for a stay must be in writing, and 
the FBI shall have an opportunity to respond. The request shall be 
granted within 10 business days of the receipt of any response by the 
FBI if the Director determines that such a stay would be appropriate. A 
stay granted under this paragraph shall remain in effect for such 
period as the Director deems appropriate. The Director may modify or 
dissolve a stay under this paragraph at any time if the Director 
determines that such a modification or dissolution is appropriate.
    (e)(1) The Director shall determine, based upon all the evidence, 
whether a protected disclosure was a contributing factor in a personnel 
action taken or to be taken. Subject to paragraph (e)(2) of this 
section, if the Director determines that a protected disclosure was a 
contributing factor in a personnel action taken or to be taken, the 
Director shall order corrective action as the Director deems 
appropriate. The Director may conclude that the disclosure was a 
contributing factor in the personnel action based upon circumstantial 
evidence, such as evidence that the employee taking the personnel 
action knew of the disclosure or that the personnel action occurred 
within a period of time such that a reasonable person could conclude 
that the disclosure was a contributing factor in the personnel action.
    (2) Corrective action may not be ordered if the FBI demonstrates by 
clear and convincing evidence that it would have taken the same 
personnel action in the absence of such disclosure.
    (3) In making the determinations required under this subsection, 
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. 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.
    (f) If the Director orders corrective action, such corrective 
action may include: placing the Complainant, as nearly as possible, in 
the position he would have been in had the reprisal not taken place; 
reimbursement for attorneys fees, reasonable costs, medical costs 
incurred, and travel expenses; back pay and related benefits; and any 
other reasonable and foreseeable consequential damages.
    (g) If the Director determines that there has not been a reprisal, 
the Director shall report this finding in writing to the complainant, 
the FBI, and the Conducting Office.


Sec. 27.5  Review.

    The Complainant or the FBI may request, within 30 calendar days of 
a final determination or corrective action order by the Director, 
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 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.


Sec. 27.6  Extensions of time.

    The Director may extend, for extenuating circumstances, any of the 
time limits provided in these regulations relating to proceedings 
before him and to requests for review by the Deputy Attorney General.
    Dated: October 6, 1999.
Janet Reno,
Attorney General.
[FR Doc. 99-27898 Filed 10-29-99; 8:45 am]
BILLING CODE 4410-AR-M





FAS | Government Secrecy | November 1999 News ||| Index | Search | Join FAS