[Federal Register Volume 89, Number 23 (Friday, February 2, 2024)]
[Rules and Regulations]
[Pages 7277-7287]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-01934]


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DEPARTMENT OF JUSTICE

28 CFR Parts 0 and 27

[Docket No. JMD 154; AG Order No. 5872-2024]
RIN 1105-AB47


Whistleblower Protection for Federal Bureau of Investigation 
Employees

AGENCY: Department of Justice.

ACTION: Final rule.

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SUMMARY: This rule updates the Department of Justice (``Department'') 
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''). This

[[Page 7278]]

rule updates the description of protected whistleblower disclosures and 
covered personnel actions to conform to the FBI WPEA of 2016; provides 
for more equal access to witnesses; and specifies that compensatory 
damages may be awarded as appropriate. This rule also adds 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 
(``ADR'') 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. This regulation reiterates that the 
determinations by the Director of the Office of Attorney Recruitment 
and Management (``OARM'') must be independent and impartial.

DATES: Effective March 4, 2024.

FOR FURTHER INFORMATION CONTACT: Morton J. Posner, General Counsel, 
Justice Management Division; email: <a href="/cdn-cgi/l/email-protection#9ed3f1eceaf1f0b0d4b0cef1edf0fbecdeebedfaf1f4b0f9f1e8"><span class="__cf_email__" data-cfemail="d79ab8a5a3b8b9f99df987b8a4b9b2a597a2a4b3b8bdf9b0b8a1">[email protected]</span></a>; 
telephone: 202-514-3452; Michael E. Stamp, Acting Director, Office of 
Attorney Recruitment and Management; email: <a href="/cdn-cgi/l/email-protection#8dc0e4eee5ece8e1a3c8a3def9ece0fdcdf8fee9e2e7a3eae2fb"><span class="__cf_email__" data-cfemail="733e1a101b12161f5d365d2007121e03330600171c195d141c05">[email protected]</span></a>; 
telephone: 202-598-7772.

SUPPLEMENTARY INFORMATION:

I. 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 
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\
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    \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.
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    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''). 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 issued a notice of proposed rulemaking on March 29, 
2023, to reflect the PPD-19 Report's findings and recommendations, as 
modified to comply with the FBI WPEA of 2016, discussed in further 
detail below, which President Obama signed on December 16, 2016.

II. 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 Whistleblower Protection Enhancement Act of 2012, 
Public Law 112-199 (``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

[[Page 7279]]

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 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. Public Law 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

[[Page 7280]]

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.
    On December 23, 2022, President Joseph Biden signed Public Law 117-
263, which amended 5 U.S.C. 2303 to afford FBI whistleblowers with the 
right to (1) appeal a final determination or corrective action order to 
the MSPB, and (2) subject to certain conditions, seek corrective action 
directly from the MSPB pursuant to 5 U.S.C. 1221. Public Law 117-263, 
sec. 5304(a), codified at 5 U.S.C. 2303(d)(1), (2).
    Finally, on March 29, 2023, the Department published a proposed 
rule, which 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 
part 0 and part 27; and (2) ensure that this process is consistent with 
changes enacted by the WPEA of 2012 and the FBI WPEA of 2016. See 88 FR 
18487 (March 29, 2023). Through the proposed rule, the Department 
invited 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. Id.

III. Comments to the Proposed Rule and Department Responses

    Following a period for public comment on the March 29, 2023, 
proposed rule, the Department received a number of comments, many of 
which generally endorsed the rulemaking proposal. Comments on the 
proposed rule, and the Department's responses, are included in this 
section, where they apply to specific subsections of the rule.

Definition of a ``Protected Disclosure''

    In the proposed rule, the Department proposed several changes to 
the definition of a ``protected disclosure'' under 28 CFR 27.1(a) to 
conform to the requirements of the FBI WPEA of 2016. Under the current 
rule, 28 CFR 27.1(a), a disclosure is considered protected if (1) it 
was made to an office or individual designated to receive a protected 
disclosure, and (2) the person making the disclosure reasonably 
believed the disclosure evidenced a specific type of wrongdoing listed 
in Sec.  27.1(a)(1) and (a)(2). The current rule lists the following 
entities and individuals as designated recipients of a protected 
disclosure:
    <bullet> the Department's Office of Professional Responsibility;
    <bullet> the Department's Office of the Inspector General;
    <bullet> the FBI Office of Professional Responsibility;
    <bullet> the FBI Inspection Division Internal Investigations 
Section;
    <bullet> the Attorney General;
    <bullet> the Deputy Attorney General;
    <bullet> the Director of the FBI;
    <bullet> the Deputy Director of the FBI; or
    <bullet> the highest ranking official in any FBI field office.
    The proposed rule proposed to expand the list to comply with the 
change made by the FBI WPEA of 2016. Specifically, the proposed 
amendment to Sec.  27.1(a) would require that, to be protected, a 
disclosure must be made to:
    <bullet> a supervisor in the direct chain of command of the 
employee, up to and including the Attorney General;
    <bullet> the Department's Inspector General;
    <bullet> the Department's Office of Professional Responsibility;
    <bullet> the FBI Office of Professional Responsibility;
    <bullet> the FBI Inspection Division;
    <bullet> Congress, as described in 5 U.S.C. 7211;
    <bullet> OSC; or
    <bullet> 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.
    With respect to Sec.  27.1(a)(2), the current rule requires that 
the person making the disclosure reasonably believe that it evidences: 
``Mismanagement, a gross waste of funds, an abuse of authority, or a 
substantial and specific danger to public health or safety.'' In the 
proposed rule, the Department proposed to amend Sec.  27.1(a)(2) to 
conform to the FBI WPEA of 2016 by removing ``Mismanagement'' and 
replacing it with ``Gross mismanagement.''
    Several commenters expressed concern with the revised definition of 
a ``protected disclosure'' under 28 CFR 27.1(a) in the proposed rule. 
One commenter expressed concern with the expanded list of offices and 
officials designated to receive a protected disclosure under 28 CFR 
27.1(a) in the proposed rule, noting that additional recipients ``may 
result in a game of telephone where information may be misconstrued 
when it gets passed up the chain.'' Another commenter wanted to remove 
the limited list of recipients entirely. Several commenters expressed 
concern with the proposed change to Sec.  27.1(a)(2) to remove 
``Mismanagement'' and replace it with ``Gross mismanagement.'' These 
commenters were concerned that the change would narrow the protections 
currently afforded FBI whistleblowers or create difficulties in 
interpretation.
    Notwithstanding these concerns, the Department adopts in this final 
rule the changes to 28 CFR 27.1(a) set forth in the proposed rule. The 
designated recipients for protected disclosures are mandated by 
statute, as is the requirement that only ``gross mismanagement''--as 
opposed to any other type of ``mismanagement''--constitutes a protected 
disclosure under the FBI WPEA of 2016, 5 U.S.C. 2303(a)(1) and 
(a)(2)(B). Because the purpose of this proposed rule is to conform 28 
CFR part 27 to the FBI WPEA of 2016, the Department declines to adopt 
the changes sought by the commenters.

Modifying the Definition of a ``Personnel Action''

    One commenter suggested amending the ``personnel action'' 
definition under 28 CFR 27.2(b) to include all twelve actions currently 
listed in 5 U.S.C. 2302(a)(2)(A). The Department notes that this final 
rule updates the description of protected whistleblower disclosures and 
covered personnel actions to conform to the FBI WPEA of 2016. The 
commenter also suggested that the Department further expand the 
definition of ``personnel action'' in the rule to include retaliatory 
investigations and the denial, suspension, or revocation of a security 
clearance. Because the term ``personnel action'' is defined in 5 U.S.C. 
2302(a)(2)(A), and the purpose of this proposed rule is to conform 28 
CFR part 27 to the FBI WPEA of 2016, the Department declines to adopt 
this suggestion.

Statement of Independence and Impartiality of OARM Determinations

    During the Department's PPD-19 review, whistleblower advocates 
expressed concern with the internal Department adjudication of FBI 
reprisal cases brought under part 27. To address this concern, the 
Department added language to 28 CFR 27.4(e)(1) in the proposed rule 
that the determinations by the Director of OARM (``OARM Director'') 
shall be independent and impartial.
    One commenter suggested that the rule be further updated to apply 
the statement of independence and impartiality to the OARM Director's 
decision on a Conducting Office's request to stay a personnel action 
under

[[Page 7281]]

28 CFR 27.4(b). That provision states, in relevant part: ``[T]he 
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 . . . unless the Director 
determines that, under the facts and circumstances involved, such a 
stay would not be appropriate.'' Section 27.4(d) similarly addresses 
the OARM Director's authority to grant a complainant's request for a 
stay of a personnel action ``if the Director determines that such a 
stay would be appropriate.''
    Because the commenter's request for a statement of the OARM 
Director's independent and impartial determination on a request for a 
stay of a personnel action is consistent with the concerns raised by 
whistleblower advocates during the Department's PPD-19 review regarding 
the OARM Director's determinations under Sec.  27.4(e), the Department 
adopts the commenter's suggestion, and also applies it to Sec.  
27.4(d). This final rule thus changes Sec.  27.4(e)(1) to read: ``The 
determination made by the Director under this section shall be 
independent and impartial.''

Right to a Hearing

    One commenter recommended that the rule provide a party with the 
right to a hearing after OARM finds that it has jurisdiction over a 
matter. Presently, neither party has an automatic right to a hearing 
before the OARM Director; however, under Sec.  27.4(e)(3), either party 
may request a hearing. The OARM Director currently has the discretion 
to grant or deny a party's request for a hearing. Under current 
practice, the request will be granted when the complainant has 
presented a cognizable legal claim and there are disputed issues of 
material fact that need resolution through live, testimonial evidence. 
In determining whether a hearing is appropriate in a particular case, 
the OARM Director currently considers whether a hearing would result in 
unnecessary delay, needless expenditure of administrative resources, or 
unnecessary burdens on the parties, and whether live testimony or 
argument would be helpful in reaching a decision. The Department 
concludes that automatically granting a right to a hearing after a 
finding of OARM jurisdiction would not be an efficient means of 
resolving all matters over which OARM has jurisdiction. The Department 
therefore declines to adopt the recommendation.

Equalizing Access to Witnesses

    During the Department's PPD-19 review, whistleblower advocate 
groups raised concerns that, in some cases, the FBI has obtained 
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 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 consider implementing a regulatory provision that would 
help equalize access to witnesses. Because the Department agreed with 
that concern, the Department added a sentence to 28 CFR 27.4(e)(3) in 
the proposed rule 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.
    Two commenters suggested changes to the proposed rule that would 
eliminate the OARM Director's discretion and automatically preclude the 
use of evidence that complainants do not have access to or relying on 
evidence from a witness the opposing party is unable to examine.
    In the Department's view, eliminating the Director's discretion by 
requiring that unavailable witnesses be excluded in all cases would 
unfairly disadvantage whistleblowers when, through no fault of their 
own, witnesses who initially provided affidavits or other evidence in 
support of the whistleblower later become unable or unwilling to 
cooperate further. Under the proposed rule, depending on the 
circumstances of each case, the Director may exercise discretion in 
allowing a whistleblower to present such evidence, despite the 
witness's unavailability to the FBI. Because the exercise of discretion 
is necessary to conduct fair and just proceedings, the Department 
declines to adopt the suggestion to eliminate the OARM Director's 
discretion regarding how best to address the parties' unequal access to 
witnesses.
    Another commenter expressed a concern that the OARM Director's 
discretion in the proposed revision to 28 CFR 27.4(e)(3) should include 
stipulations, or, alternatively, a standard specifying the 
circumstances in which the OARM Director would exercise his or her 
discretion.
    The Department agrees that it should describe some of the factors 
that the OARM Director will consider when exercising the OARM 
Director's discretion. But because we cannot know with certainty the 
circumstances in which the OARM Director may decide to prohibit a party 
from relying on witness evidence when the other party did not have 
equal access to it, the Department declines to adopt the commenter's 
suggestion as proposed. The Department will, however, modify Sec.  
27.4(e)(3) in the final rule to specify some factors that the OARM 
Director may consider in the OARM Director's decision to exclude such 
evidence.
    One commenter agreed with the proposed provision, but asserted that 
the Department should implement adequate security to protect witnesses 
from possible reprisal. OARM currently uses procedures that protect 
certain information obtained during the course of discovery containing 
personally identifiable information that could potentially impair the 
safety or privacy rights of past and current employees. OARM's 
protective procedures include the use of protective orders, redaction 
of documents, and closed hearings for the presentation of any live 
testimonial evidence. Given the OARM procedures already in place, the 
Department declines to adopt this suggestion.
    Finally, one commenter suggested that the rule be modified to 
require the FBI to attempt to secure the testimony from employees in 
Federal service who are employed by other Federal agencies at the time 
of adjudication of the whistleblower reprisal complaint.
    Requiring the FBI to attempt to secure the testimony from Federal 
employees working at other Federal agencies, however, would require the 
FBI to communicate directly with potentially adverse witnesses on 
behalf of complainants. The proposed rule helps to equalize the 
parties' access to witnesses. The commenter's suggested change does not 
further that goal. The Department declines to adopt this suggestion.

Acknowledgement and Show-Cause Orders

    In the proposed rule, the Department added a new paragraph (f) to 
Sec.  27.4 to formalize the OARM Director's existing practice of 
issuing acknowledgement and show-cause orders similar to those issued 
by the MSPB. Under proposed 28 CFR 27.4(f)(1), the acknowledgment 
orders issued by the OARM Director shall include: information on the 
relevant case processing procedures and timelines, including the manner 
of designation of a representative; the time

[[Page 7282]]

periods for and methods of discovery; the process for resolution of 
discovery disputes; and the form and method of filing of pleadings. The 
proposed provision further specified that the Acknowledgement Order 
shall inform the parties of the jurisdictional requirements for full 
adjudication of the request for corrective action and their respective 
burdens of proof.
    In cases where the OARM Director determines that there is an 
initial question of the OARM Director's jurisdiction to review a 
request for corrective action, the OARM Director shall issue, along 
with the Acknowledgement Order, a Show-Cause Order explaining the 
grounds for such determination and directing that, within 10 calendar 
days of receipt of the order, the complainant submit a written response 
explaining why the request should not be dismissed for lack of 
jurisdiction. The FBI's reply to the complainant's response to the 
Show-Cause Order is due within 20 calendar days within its receipt of 
the complainant's response under proposed Sec.  27.4(f)(3).
    Two commenters suggested an extension of the 10-calendar day 
deadline for the complainant's response to the Show-Cause Order under 
Sec.  27.4(f)(2). The Department adopts the proposal to extend that 
deadline and modifies Sec.  27.4(f)(2) of this final rule to provide 
the complainant with 15 calendar days to respond to a Show-Cause Order.

Damages

    One commenter suggested modifying 28 CFR 27.4(g) in the proposed 
rule to make an award of attorney's fees and costs mandatory whenever 
corrective action is ordered.
    Section 27.4(f) currently provides the OARM Director with the 
authority to order certain corrective action to place the complainant, 
as nearly as possible, in the position he or she would have been in had 
the reprisal not taken place. Such corrective action ``may include,'' 
but is not limited to, reimbursement for attorney' fees and reasonable 
costs. Under section 2303(c), the Department is charged with enforcing 
28 CFR part 27 ``consistent with applicable provisions of 1214 and 
1221.'' Corrective action ordered by the MSPB to a prevailing party in 
an Individual Right of Action appeal under 5 U.S.C. 1221(g)(1)(B) 
``shall include'' attorney's fees and costs provided that other 
requirements are met. Because the Department already enforces its 
corrective action authority in FBI whistleblower cases ``consistent 
with'' section 1221(g)(1)(B), and there are circumstances where an 
award of attorney's fees would not be mandatory (e.g., where the 
complainant is a pro se litigant), the Department declines to adopt 
this suggestion as stated. However, this final rule, in new Sec.  
27.4(g), authorizes the OARM Director to order corrective action to a 
prevailing complainant that ``shall, as appropriate,'' include 
attorney's fees and reasonable costs, among other things.

Transparency Regarding OARM and Deputy Attorney General Decisions, and 
the Publication of Reprisal Findings

    In the proposed rule, the Department added Sec.  27.4(h) to 
formalize OARM's 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.
    One commenter endorsed the proposal, but suggested that the 
Department also report findings of reprisal to ``any other appropriate 
law enforcement authority.''
    Under current practice, the OARM Director refers findings of 
reprisal internally within the FBI, and, as discussed below, the 
Department has decided to publish in redacted form all dispositive OARM 
decisions and Deputy Attorney General decisions reversing or remanding 
OARM decisions, including those involving reprisal findings. The 
Department believes these actions will help to hold those responsible 
for unlawful reprisal accountable and deter others from violating the 
protections afforded FBI whistleblowers. Because there is no other 
``law enforcement authority'' that would accomplish these goals, the 
Department declines to adopt this recommendation.
    Another commenter endorsed the proposal, but suggested that 
internal reporting alone is likely insufficient to deter retaliatory 
conduct by FBI officials. The commenter suggested that the Department 
consider publishing redacted or sanitized findings ``to ensure that 
[the] individuals responsible understand the importance of respecting 
whistleblower protections and the significant consequences for 
violating them.'' Two other commenters also recommended that the 
proposed regulation require that OARM publish its decisions, and one 
suggested prohibiting OARM from citing or relying on a citation to an 
unpublished decision that all parties do not have access to.
    In response, the Department has decided to publish in redacted form 
any decisions in closed cases on the merits, as well as procedural 
decisions showing how the OARM Director and the Deputy Attorney General 
have analyzed and decided issues relating to jurisdiction, discovery, 
merits, corrective relief, and other issues of relevance to FBI 
whistleblowers. All future decisions meeting these criteria will be 
made public in redacted form, as will decisions issued after January 1, 
2018. This is a Departmental policy decision, subject to revision or 
rescission, and is therefore not memorialized in this final rule. The 
Department also adopts the recommendation to specify in this final 
rule, in a new Sec.  27.4(j), that the OARM Director will not 
specifically cite or rely on any unpublished FBI whistleblower 
decisions in OARM issuances.

Expanding the Availability of ADR

    In the proposed rule, the Department proposed to add 28 CFR 27.7 
(Sec.  27.8 in this final rule) to formalize inclusion of the 
Department's FBI Whistleblower Mediation Program, which was implemented 
in 2014. One commenter suggested that the provision be modified to 
expand the availability of ADR to ``unprotected or potential'' 
whistleblowers who have not obtained ``protected status'' under 28 CFR 
part 27.
    As discussed in the proposed rule, mediation through the FBI 
Whistleblower Mediation Program may be requested by the complainant at 
any stage of proceedings under 28 CFR part 27--i.e., from the initial 
filing of the complaint with the Conducting Office and at any 
subsequent point thereafter while the complaint is being investigated 
or adjudicated. The rule does not require that the complainant be 
deemed a ``protected'' whistleblower by the OARM Director under the 
adjudicative procedures set forth in 28 CFR 27.4 before electing ADR 
through the FBI Whistleblower Mediation Program. However, the FBI 
Whistleblower Mediation Program is only available to complainants who 
have availed themselves of the protections provided in 28 CFR part 27. 
To the extent the commenter suggests that the program be widely 
available to FBI employees generally, the Department declines to adopt 
this comment. The program was created, resourced, and implemented for 
FBI whistleblower complainants only, and was not intended to be 
accessible to all FBI employees.

Claims Involving a Breach of a Settlement Agreement

    In the proposed rule, the Department proposed to add 28 CFR 27.8, 
which would authorize the OARM Director to

[[Page 7283]]

adjudicate claims involving a breach of a settlement agreement. 
Proposed Sec.  27.8 provides that a party may file with the OARM 
Director a claim of a breach of a settlement agreement reached in 
proceedings under 28 CFR part 27. Any claim of a breach of a settlement 
agreement must be filed with the OARM Director ``within 30 days of the 
date on which the grounds for the claim of breach were known.''
    One commenter suggested that there is a conflict of interest 
presented by proposed Sec.  27.8, ``by reserving to the Department the 
right to decide whether the Department itself breached the settlement 
agreement.'' The commenter suggested that the provision should be 
modified to allow breach claims to be adjudicated in an external forum.
    The Department declines to adopt this comment because other 
Department components, and not the FBI, adjudicate breach claims. Just 
as OARM has fairly decided FBI whistleblower retaliation claims, it can 
also fairly decide claims involving a breach of a settlement agreement.
    The commenter additionally suggested that proposed Sec.  27.8(a) be 
modified to include either a ``reasonable suspicion'' or ``knew/should 
have known'' standard, as, according to the commenter, ``those 
standards are more extensively construed in precedent and thus clearer 
in their application.''
    The Department agrees with and adopts the latter comment. This 
final rule, which designates proposed Sec.  27.8(a) as Sec.  27.9(a) in 
the final rule, adds the words ``or should have been known'' after the 
word ``known'' in that paragraph.

Reference to 2303(d) MSPB Appeal Rights in the Final Rule

    In the preamble to the proposed rule, the Department referenced the 
recent enactment of 5 U.S.C. 2303(d), which affords FBI whistleblowers 
the right to (1) appeal a final determination or corrective action 
order to the MSPB, and (2) subject to certain conditions, seek 
corrective action directly from the MSPB pursuant to 5 U.S.C. 1221. See 
5 U.S.C. 2303(d)(1) and (d)(2).
    Several commenters suggested that the final rule include specific 
reference to the MSPB appeal rights provided to FBI whistleblowers in 5 
U.S.C. 2303(d). One commenter additionally suggested that the final 
rule add new paragraphs under 28 CFR 27.4 and 27.5 to require notice to 
the complainant of the right to file an Individual Right of Action 
appeal with the MSPB pursuant to 5 U.S.C. 2303, specify the time frames 
for doing so, and make clear that the complainant's filing of a request 
for review by the Deputy Attorney General under 28 CFR 27.5 does not 
affect the complainant's rights under 5 U.S.C. 2303(d).
    In response, the Department agrees that 28 CFR part 27 should 
reference section 2303(d), which will be included in this final rule, 
as a new Sec.  27.7 (which, in turn, requires changing proposed 
Sec. Sec.  27.7 and 27.8 to Sec. Sec.  27.8 and 27.9, respectively). 
The Department declines to adopt the suggestion that the final rule 
make clear that the complainant's filing of a request for review by the 
Deputy Attorney General does not affect the complainant's section 
2303(d) rights. By citing to section 2303(d) in new Sec.  27.7, the 
Department clearly informs complainants of the right to file an appeal 
with the MSPB.

Citation to MSPB Case Precedent as Binding

    One commenter suggested that, given the recent passage of 5 U.S.C. 
2303(d), the final rule should include a new provision specifying that 
``all adjudications'' under 28 CFR part 27 will follow the case 
precedent of the MSPB and its reviewing courts. Relatedly, the 
commenter also suggests that, consistent with MSPB case precedent, the 
final rule should modify 28 CFR 27.1(a) to make clear that the 
whistleblower protections extend to ``perceived'' whistleblowers.
    In response, the Department declines to adopt the suggestion that 
the Department adopt as binding the case law of the MSPB and its 
reviewing courts. While the Department looks to MSPB and related 
Federal cases as persuasive, the Deputy Attorney General has the 
ultimate authority to review and decide FBI whistleblower reprisal 
appeals under 28 CFR part 27.

Procedural Case Processing Information

    One commenter suggested that the Department include a new 
procedural provision to clarify certain routine aspects of 
administrative litigations. The Department declines to adopt the 
suggestion, as case procedures and processing items are currently 
publicly available in case procedure and processing documents issued by 
the Office of the Deputy Attorney General and OARM and so need not be 
memorialized in this final rule.

Rewording ``Whistleblower''

    One commenter suggests developing ``an alternate title for the term 
`whistleblower''' because it ``seems to always have a negative 
connotation when used.''
    In response, the Department declines to adopt the suggestion 
because the updated regulations are intended to reflect changes 
resulting from an assessment conducted by the Department in response to 
PPD-19, and the FBI WPEA of 2016, both of which use that terminology, 
and changing the term would lead to unnecessary confusion. Moreover, 
the Department does not perceive the term ``whistleblower'' as having 
any negative connotation.

The FBI's Prepublication Review Process

    One commenter suggests that the Department add a provision to the 
final rule to modify the FBI's prepublication review process to allow 
for the disclosure of content that the commenter believes may otherwise 
be protected by the First Amendment's Free Speech Clause. The 
Department understands the suggestion to be directed at the FBI's 
prepublication review process in general, and not specifically directed 
at issues related to FBI whistleblower claims of unlawful reprisal. 
Because the FBI's prepublication process is outside the scope of 28 CFR 
part 27, the Department declines to adopt the suggested change.

Suspension of Security Clearances

    One commenter suggested that the Department ``[p]rovide a 
regulation stopping the FBI from suspending security clearances of 
employees or suspending them from duty without pay until legal or 
administrative action is taken against them.'' The National Security 
Act of 1947 and PPD-19 make it unlawful for an agency (including the 
FBI) to take any action affecting an employee's eligibility for access 
to classified information in reprisal for making a protected 
disclosure. These protections against revocations of security 
clearances apply to FBI employees. The investigation and adjudication 
of allegations that the suspension or revocation of security clearances 
held by Department employees was in retaliation for making protected 
disclosures are governed by different laws than those governing FBI 
whistleblower reprisal allegations, including 50 U.S.C. 3341, PPD-19, 
and DOJ Instruction 1700.00.01. Security clearance suspensions are 
outside the scope of 28 CFR part 27, and the Department therefore 
declines to adopt this suggestion.

IV. Regulatory Analyses

    In developing this final rule, the Department considered numerous 
statutes and executive orders applicable to rulemaking. The 
Department's analysis of the applicability of those

[[Page 7284]]

statutes and executive orders to this rule is summarized below.

A. Executive Order 12866 (Regulatory Planning and Review), Executive 
Order 13563 (Improving Regulation and Regulatory Review), and Executive 
Order 14094 (Modernizing Regulatory Review)

    This final rule is not a significant regulatory action under 
section 3(f) of Executive Order 12866, as supplemented by Executive 
Order 13563 and amended by Executive Order 14094. This rule makes 
procedural changes to the existing regulatory framework for resolving 
claims of whistleblower retaliation by FBI employees and applicants. 
The changes do not materially affect the number of claims or the time, 
cost, or resources required to address them. 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 final rule 
does not have a significant economic impact on a substantial number of 
small entities. This 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. This rule will perhaps have a 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.

C. Paperwork Reduction Act

    This final rule does not call for a new collection of information 
under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-20. 
Specifically, this rule regulates administrative actions or 
investigations involving an agency against specific individuals or 
entities and thus falls outside the scope of the Paperwork Reduction 
Act. See 44 U.S.C. 3518(c)(1)(B)(ii).

D. 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 final rule 
under that order and determined that this rule does not have federalism 
implications.

E. 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 Governments, 
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 final 
rule does not require or result in expenditures by any of the above-
named entities. This rule addresses the Department's internal 
procedures related to protected disclosures.

F. Executive Order 12988 (Civil Justice Reform), Plain Language

    This final rule meets applicable standards in sections 3(a) and 
3(b)(2) of Executive Order 12988.

G. Executive Order 13175 (Consultation and Coordination With Indian 
Tribal Governments)

    This final 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.

H. 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 this final rule. First, this 
rule relates primarily to agency management, personnel, and 
organization. 5 U.S.C. 804(3)(B). Second, to the extent that this 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 
rule, and the rule does not substantially affect such parties' 
substantive rights or obligations. Id., 803(3)(C). Instead, this 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. However, the Department is submitting a copy of this final rule 
to both houses of Congress and to the Comptroller General.

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 amends 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. In Sec.  0.29d(a), remove the words ``a violation of any law, rule, 
or regulation, or mismanagement'' and add, in their place, the words 
``any violation of any law, rule, or regulation, or 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).


0
4. Amend Sec.  27.1 by revising paragraph (a) and adding paragraph (c) 
to read as follows:


Sec.  27.1   Making a protected disclosure.

    (a) When an employee of, or applicant for employment with, the 
Federal

[[Page 7285]]

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:
    (1) Any violation of any law, rule or regulation; or
    (2) Gross mismanagement, a gross waste of funds, an abuse of 
authority, or a substantial and specific danger to public health or 
safety.
* * * * *
    (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]

0
5. In Sec.  27.2, paragraph (b), remove the reference ``(xi)'' and add, 
in its place, the reference ``(xii)''.

0
6. Amend Sec.  27.4 by:
0
a. Revising paragraphs (a), (c)(1), (e)(1), (e)(3), (f), and (g); and
0
b. Adding paragraphs (e)(4), (h), (i), and (j).
    The revisions and additions read as follows:


Sec.  27.4   Corrective action and other relief; Director, Office of 
Attorney Recruitment and 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 Recruitment and 
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 paragraphs (e) and (f) of this 
section. A determination by the Conducting Office that there are 
reasonable grounds to believe that 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.
* * * * *
    (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. Within 5 business days of 
the receipt of the request, the Director shall issue an Acknowledgement 
Order in accordance with paragraph (f)(1) of this section.
* * * * *
    (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 and 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. 
The determination made by the Director under this section 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. In excluding such evidence, the 
Director may consider certain factors, including, but not limited to: 
the probative value of the evidence; whether the evidence is supported 
by sufficient guarantees of trustworthiness after considering the 
totality of the circumstances under which it was made and any 
corroborating evidence; and whether the evidence is duplicative, or is 
obtainable from some other source that is more convenient, less 
burdensome, or less expensive. 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 the Director 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 15 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

[[Page 7286]]

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 shall, as appropriate, include: placing the Complainant, as 
nearly as possible, in the position the Complainant 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), shall 
forward to FBI OPR, FBI-INSD, and the Director of the FBI, a copy of 
the Director's written opinion finding that there has been a prohibited 
reprisal. FBI OPR shall make an independent determination of whether 
disciplinary action is warranted.
    (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.
    (j) The Director will not cite or rely upon any unpublished FBI 
whistleblower decision issued by the Director or Deputy Attorney 
General in rendering any decision under Sec.  27.4.

0
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, and 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.
    (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 Sec.  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) of this section.
    (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.

0
8. Add Sec.  27.7 to read as follows:


Sec.  27.7   Right to appeal to or seek corrective relief from the U.S. 
Merit Systems Protection Board.

    An FBI whistleblower may appeal to, or seek corrective relief from, 
the U.S. Merit Systems Protection Board in accordance with the 
provisions of 5 U.S.C. 2303(d).

0
9. Add Sec.  27.8 to read as follows:


Sec.  27.8   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.

0
10. Add Sec.  27.9 to read as follows:

[[Page 7287]]

Sec.  27.9  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 or should have 
been 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: January 25, 2024.
Merrick B. Garland,
Attorney General.
[FR Doc. 2024-01934 Filed 2-1-24; 8:45 am]
BILLING CODE 4410-AR-P


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