Federal Register / Vol. 89, No. 23 / Friday, February 2, 2024 / Rules and Regulations 7277 

comply with the requirements of the 

SAFE Act, including the licensing and 

registration of its employees in the 

Nationwide Mortgage Licensing System 

(NMLS). 

III. Findings and Certifications 

Regulatory Review—Executive Orders 

12866, 13563, and 14094 

Under Executive Order 12866 

(Regulatory Planning and Review), a 

determination must be made whether a 

regulatory action is significant and, 

therefore, subject to review by the Office 

of Management and Budget (OMB) in 

accordance with the requirements of the 

order. Executive Order 13563 

(Improving Regulation and Regulatory 

Review) directs executive agencies to 

analyze regulations that are ‘‘outmoded, 

ineffective, insufficient, or excessively 

burdensome, and to modify, streamline, 

expand, or repeal them in accordance 

with what has been learned.’’ Executive 

Order 13563 also directs that, where 

relevant, feasible, and consistent with 

regulatory objectives, and to the extent 

permitted by law, agencies are to 

identify and consider regulatory 

approaches that reduce burdens and 

maintain flexibility and freedom of 

choice for the public. Executive Order 

14094 entitled ‘‘Modernizing Regulatory 

Review’’ (hereinafter referred to as the 

‘‘Modernizing E.O.’’) amends section 

3(f) of Executive Order 12866 

(Regulatory Planning and Review), 

among other things. 

The final rule will revise 24 CFR 

202.5 (i) and (k) to update HUD’s 

regulation to conform with the mortgage 

industry’s evolving business practices. 

Additionally, the rule will lessen the 

administrative burden on lenders and 

mortgagees. This rule was determined 

not to be a ‘‘significant regulatory 

action’’ as defined in section 3(f) of 

Executive Order 12866 as amended by 

Executive Order 14094 and is not an 

economically significant regulatory 

action and therefore was not subject to 

OMB review. 

Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (Pub. L. 104–4; 

approved March 22, 1995) (UMRA) 

establishes requirements for Federal 

agencies to assess the effects of their 

regulatory actions on state, local, and 

tribal governments, and on the private 

sector. This final rule does not impose 

any Federal mandates on any state, 

local, or tribal government, or on the 

private sector, within the meaning of the 

UMRA. 

Environmental Review 

This final rule does not direct, 

provide for assistance or loan and 

mortgage insurance for, or otherwise 

govern or regulate real property 

acquisition, disposition, leasing, 

rehabilitation, alteration, demolition, or 

new construction, or establish, revise, or 

provide for standards for construction or 

construction materials, manufactured 

housing, or occupancy. Accordingly, 

under 24 CFR 50.19(c)(1), this rule is 

categorically excluded from 

environmental review under the 

National Environmental Policy Act of 

1969 (42 U.S.C. 4321). 

Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

(5 U.S.C. 601 et seq.), generally requires 

an agency to conduct a regulatory 

flexibility analysis of any rule subject to 

notice and comment rulemaking 

requirements, unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. The rule will 

remove the requirement that lenders 

and mortgagees register with HUD each 

branch office where they conduct FHA 

business. This will not create an undue 

burden on small entities, instead it will 

eliminate the burden for all lenders and 

mortgagees of having to register branch 

offices with HUD and pay the associated 

fees. HUD has determined that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities. 

Executive Order 13132, Federalism 

Executive Order 13132 (entitled 

‘‘Federalism’’) prohibits an agency from 

publishing any rule that has Federalism 

implications if the rule either imposes 

substantial direct compliance costs on 

state and local governments or is not 

required by statute, or the rule preempts 

state law, unless the agency meets the 

consultation and funding requirements 

of section 6 of the Executive Order. This 

rule will not have Federalism 

implications and will not impose 

substantial direct compliance costs on 

state and local governments or preempt 

state law within the meaning of the 

Executive Order. 

Paperwork Reduction Act 

In accordance with the Paperwork 

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

3520), an agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information, 

unless the collection displays a 

currently valid Office of Management 

and Budget (OMB) control number. The 

information collection requirements 

contained in this final rule have been 

approved by OMB under the Paperwork 

Reduction Act and assigned OMB 

control number 2502–0059. 

List of Subjects in 24 CFR Part 202 

Administrative practice and 

procedure, Home improvement, 

Manufactured homes, Mortgage 

insurance, Reporting, and recordkeeping 

requirements. 

Accordingly, for the reasons stated in 

the preamble above, HUD amends 24 

CFR part 202 as follows: 

PART 202—APPROVAL OF LENDING 

INSTITUTIONS AND MORTGAGEES 

■ 1. The authority citation for part 202 

continues to read as follows: 

Authority: 12 U.S.C. 1703, 1709 and 

1715b; 42 U.S.C. 3535(d). 

§ 202.5 [Amended] 

■ 2. Amend § 202.5 by: 

■ a. In paragraph (i) removing 

‘‘authorized to originate Title I loans or 

submit applications for mortgage 

insurance’’ and adding in its place ‘‘that 

the lender or mortgagee registers with 

the Department’’; 

■ b. In paragraph (k), adding ‘‘or 

mortgagee’’ after ‘‘A lender’’ in the first 

sentence of paragraph (k), and removing 

the second sentence. 

Julia R. Gordon, 

Assistant Secretary of Office of Housing— 

Federal Housing Administration. 

[FR Doc. 2024–02023 Filed 2–1–24; 8:45 am] 

BILLING CODE 4210–67–P 

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. 

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 


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7278 Federal Register / Vol. 89, No. 23 / Friday, February 2, 2024 / Rules and Regulations 

1On 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. 

2The 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. 

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: 

Morton.J.Posner@usdoj.gov; telephone: 

202–514–3452; Michael E. Stamp, 

Acting Director, Office of Attorney 

Recruitment and Management; email: 

Michael.E.Stamp@usdoj.gov; 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

With respect to consultation with FBI 

employees, the FBI’s representatives on 

the Department’s working group 

consulted with various FBI entities: the 

Ombudsman; the Office of Equal 

Employment Opportunity Affairs; the 

Office of Integrity and Compliance; the 

Office of Professional Responsibility; 

the Human Resources Division; and the 

Inspection Division. The representatives 

also solicited the views of each of the 

FBI’s three official advisory committees 

that represent FBI employees—the AllEmployees Advisory Committee, the 

Agents Committee, and the MiddleManagement Committee. 

In April 2014, after completion of the 

PPD–19 review, the Department issued 

a report, ‘‘Department of Justice Report 

on Regulations Protecting FBI 

Whistleblowers’’ (‘‘PPD–19 Report’’). 

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 


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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, policydetermining, policymaking, or policyadvocating character. Id., codified at 5 

U.S.C. 2303(a). In addition, the CSRA 

limited the protection of the FBIspecific prohibition to only those 

disclosures that the FBI employee made 

through narrowly defined internal 

channels—i.e., to the Attorney General 

or the Attorney General’s designee. Id. 

Finally, the CSRA directed the President 

to provide for the enforcement of the 

provision relating to FBI whistleblowers 

in a manner consistent with applicable 

provisions of 5 U.S.C. 1206, the section 

of the CSRA that originally set out the 

responsibilities of the OSC, the MSPB, 

and agency heads in response to a 

whistleblower complaint and provided 

for various remedies. Id., codified at 5 

U.S.C. 2303(c). 

In April, 1980, the Department 

published a final rule implementing 

section 2303. The rule provided, among 

other things, for a stay of any personnel 

action if there were reasonable grounds 

to believe that the personnel action was 

taken, or was to be taken, as a reprisal 

for a disclosure of information by the 

employee to the Attorney General or the 

Attorney General’s designee that the 

employee reasonably believed 

evidenced wrongdoing covered by 

section 2303. Office of Professional 

Responsibility; Protection of 

Department of Justice Whistleblowers, 

45 FR 27754, 27755 (Apr. 24, 1980). 

In 1989, the statutory scheme for most 

civilian employees changed in some 

respects when Congress passed the 

WPA, which significantly expanded the 

avenues of redress generally available to 

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 


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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 

§ 27.1(a)(1) and (a)(2). The current rule 

lists the following entities and 

individuals as designated recipients of a 

protected disclosure: 

• the Department’s Office of 

Professional Responsibility; 

• the Department’s Office of the 

Inspector General; 

• the FBI Office of Professional 

Responsibility; 

• the FBI Inspection Division Internal 

Investigations Section; 

• the Attorney General; 

• the Deputy Attorney General; 

• the Director of the FBI; 

• the Deputy Director of the FBI; or 

• the highest ranking official in any 

FBI field office. 

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 § 27.1(a) would require that, to be 

protected, a disclosure must be made to: 

• a supervisor in the direct chain of 

command of the employee, up to and 

including the Attorney General; 

• the Department’s 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 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 § 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 

§ 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 

§ 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 


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Federal Register / Vol. 89, No. 23 / Friday, February 2, 2024 / Rules and Regulations 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 

§ 27.4(e), the Department adopts the 

commenter’s suggestion, and also 

applies it to § 27.4(d). This final rule 

thus changes § 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 § 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 

§ 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 § 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 


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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 ShowCause Order is due within 20 calendar 

days within its receipt of the 

complainant’s response under proposed 

§ 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 

§ 27.4(f)(2). The Department adopts the 

proposal to extend that deadline and 

modifies § 27.4(f)(2) of this final rule to 

provide the complainant with 15 

calendar days to respond to a ShowCause 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 

§ 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 § 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 § 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 (§ 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 


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adjudicate claims involving a breach of 

a settlement agreement. Proposed § 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 § 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 § 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 

§ 27.8(a) as § 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 § 27.7 (which, 

in turn, requires changing proposed 

§§ 27.7 and 27.8 to §§ 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 § 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 


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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 

■ 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. 

§ 0.29d [Amended] 

■ 2. In § 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 

■ 3. The authority citation for part 27 is 

revised to read as follows: 

Authority: 5 U.S.C. 301, 3151; 28 U.S.C. 

509, 510, 515–519; 5 U.S.C. 2303; President’s 

Memorandum to the Attorney General, 

Delegation of Responsibilities Concerning 

FBI Employees Under the Civil Service 

Reform Act of 1978, 3 CFR p. 284 (1997); 

Presidential Policy Directive 19, ‘‘Protecting 

Whistleblowers with Access to Classified 

Information’’ (October 10, 2012). 

■ 4. Amend § 27.1 by revising paragraph 

(a) and adding paragraph (c) to read as 

follows: 

§ 27.1 Making a protected disclosure. 

(a) When an employee of, or applicant 

for employment with, the Federal 


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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. 

§ 27.2 [Amended] 

■ 5. In § 27.2, paragraph (b), remove the 

reference ‘‘(xi)’’ and add, in its place, 

the reference ‘‘(xii)’’. 

■ 6. Amend § 27.4 by: 

■ a. Revising paragraphs (a), (c)(1), 

(e)(1), (e)(3), (f), and (g); and 

■ b. Adding paragraphs (e)(4), (h), (i), 

and (j). 

The revisions and additions read as 

follows: 

§ 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 


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7286 Federal Register / Vol. 89, No. 23 / Friday, February 2, 2024 / Rules and Regulations 

statement must provide the following 

information as necessary to address the 

jurisdictional question or as otherwise 

directed: 

(i) The alleged protected disclosure or 

disclosures; 

(ii) The date on which the 

Complainant made any such disclosure; 

(iii) The name and title of any 

individual or office to whom the 

Complainant made any such disclosure; 

(iv) The basis for the Complainant’s 

reasonable belief that any such 

disclosure evidenced any violation of 

law, rule, or regulation; gross 

mismanagement; a gross waste of funds; 

an abuse of authority; or a substantial 

and specific danger to public health or 

safety; 

(v) Any action the FBI allegedly took 

or failed to take, or threatened to take 

or fail to take, against the Complainant 

because of any such disclosure, the 

name and title of all officials 

responsible for each action, and the date 

of each action; 

(vi) The basis for the Complainant’s 

belief that any official responsible for an 

action knew of any protected disclosure, 

and the date on which the official 

learned of the disclosure; 

(vii) The relief sought; and 

(viii) The date the reprisal complaint 

was filed with the Investigative Office 

and the date on which the Conducting 

Office notified the Complainant that it 

was terminating its investigation into 

the complaint, or if the Complainant has 

not received such notice, evidence that 

120 days have passed since the 

Complainant filed a complaint of 

reprisal with the Investigative Office. 

(3) The FBI shall file a reply to the 

Complainant’s response to the ShowCause Order within 20 calendar days of 

receipt of such reply. 

(i) The reply shall address issues 

identified by the Director in the ShowCause Order and matters raised in the 

Complainant’s response to that order 

under paragraph (f)(2) of this section, 

and shall include: a statement 

identifying any FBI actions taken 

against the Complainant and the reasons 

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 § 27.2 of this part, the Director, in 

addition to ordering any corrective 

action as authorized by § 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 § 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 § 27.4. 

■ 7. Revise § 27.5 to read as follows: 

§ 27.5 Review. 

(a) Within 30 calendar days of a 

finding of a lack of jurisdiction, a final 

determination on the merits, or 

corrective action ordered by the 

Director, the Complainant or the FBI 

may request review by the Deputy 

Attorney General of that determination 

or order. The Deputy Attorney General 

shall set aside or modify the Director’s 

actions, findings, or conclusions found 

to be arbitrary, capricious, 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 § 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. 

■ 8. Add § 27.7 to read as follows: 

§ 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). 

■ 9. Add § 27.8 to read as follows: 

§ 27.8 Alternative dispute resolution. 

(a) At any stage in the process set 

forth in §§ 27.3 through 27.5 of this part, 

the Complainant may request 

Alternative Dispute Resolution (ADR) 

through the Department of Justice 

Mediator Corps (DOJMC) Program. The 

Complainant may elect to participate in 

ADR by notifying in writing the office 

before which the matter is then pending. 

(b) If the Complainant elects 

mediation, the FBI, represented by the 

Office of General Counsel, will 

participate. 

(c) When the Complainant requests to 

engage in ADR, the process set forth in 

§§ 27.3 through 27.5, as applicable, 

including all time periods specified 

therein, will be stayed for an initial 

period of 90 days, beginning on the date 

of transmittal of the matter to the 

DOJMC Program office. Upon joint 

request by the parties to the office before 

which the matter is stayed, the period 

of the stay may be extended up to an 

additional 45 days. Further requests for 

extension of the stay may be granted 

only by the Director, regardless of the 

office before which the matter is 

pending, upon a joint request showing 

good cause. The stay otherwise will be 

lifted if the DOJMC Program notifies the 

office before which the matter is stayed 

that the Complainant no longer wishes 

to engage in mediation, or that the 

parties are unable to reach agreement on 

resolution of the complaint and that 

continued efforts at mediation would 

not be productive. 

■ 10. Add § 27.9 to read as follows: 


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Federal Register / Vol. 89, No. 23 / Friday, February 2, 2024 / Rules and Regulations 7287 

§ 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 § 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 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 117 

[Docket No. USCG–2023–0652] 

RIN 1625–AA09 

Drawbridge Operation Regulation; 

Atlantic Intracoastal Waterway, Jupiter, 

FL 

AGENCY: Coast Guard, Department of 

Homeland Security (DHS). 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard is 

temporarily modifying the operating 

schedule that governs the Indiantown 

Road Bridge across the Atlantic 

Intracoastal Waterway (AICW), mile 

1006.2, at Jupiter, Florida. This action is 

necessary to alleviate vehicle traffic 

congestion on the Indiantown Road 

Bridge caused by the replacement of 

another nearby bridge. Once 

construction of the nearby bridge is 

complete, the Indiantown Road 

Drawbridge will return to normal 

scheduled operations. 

DATES: This temporary final rule is 

effective from 12:01 a.m. on February 5, 

2024, through 11:59 p.m. on August 31, 

2025. 

ADDRESSES: To view documents 

mentioned in this preamble as being 

available in the docket, go to https://

www.regulations.gov. Type the docket 

number USCG–2023–0652 in the 

‘‘SEARCH’’ box and click ‘‘SEARCH’’. In 

the Document Type column, select 

‘‘Supporting & Related Material.’’ 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this temporary 

final rule, call or email Mr. Leonard 

Newsom, Seventh District Bridge 

Branch, Coast Guard; telephone (305) 

415–6946, email Leonard.D.Newsom@

uscg.mil. 

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations 

CFR Code of Federal Regulations 

DHS Department of Homeland Security 

FR Federal Register 

OMB Office of Management and Budget 

NPRM Notice of proposed rulemaking 

(advance, supplemental) 

§ Section 

U.S.C. United States Code 

FL Florida 

AICW Atlantic Intracoastal Waterway 

FDOT Florida Department of 

Transportation 

II. Background Information and 

Regulatory History 

On October 20, 2023, the Coast Guard 

published a notice of proposed 

rulemaking entitled ‘‘Drawbridge 

Operation Regulation; Atlantic 

Intracoastal Waterway, at Jupiter, FL’’ in 

the Federal Register (88 FR 72415). 

There we stated why we issued the 

NPRM and invited comments on our 

proposed regulatory action related to 

this regulatory change. During the 

NPRM comment period that ended 

November 20, 2023, no comments were 

received. 

III. Legal Authority and Need for Rule 

The Coast Guard is issuing this rule 

under authority in 33 U.S.C. 499. The 

Indiantown Road Bridge across the 

AICW, mile 1006.2, at Jupiter, Florida. 

The Indiantown Road Bridge is a 

double-leaf bascule bridge with 35 feet 

of vertical clearance in the closed 

position. The operating schedule 

requires the bridge to open each hour 

and half-hour as needed per 33 CFR 

117.261(q). 

The bridge owner, Florida Department 

of Transportation, has requested this 

change during the replacement of an 

adjacent bridge. The closing of the 

adjacent bridge has resulted in 

significant increase in vehicle traffic 

congestion of the area. The only 

alternate route for land traffic to access 

the mainland is via the Donald Ross 

Bridge approximately 4.5 miles south of 

the Indiantown Road Bridge. This rule 

will reduce the number of openings 

which will subsequently allow the local 

traffic to flow with less obstructions and 

delay. 

IV. Discussion of Comments, Changes, 

and the Temporary Final Rule 

The Coast Guard provided a comment 

period of 30 days, and no comments 

were received. The current regulation 

provides for the bridge to open twice an 

hour. This temporary final rule allows 

for the bridge to remain closed to 

navigation during designated times and 

all other times open twice an hour. 

Vessels that can pass beneath the bridge 

without an opening may do so at any 

time. 

V. Regulatory Analyses 

We developed this rule after 

considering numerous statutes and 

Executive orders related to rulemaking. 

Below we summarize our analyses 

based on a number of these statutes and 

Executive orders. 

A. Regulatory Planning and Review 

Executive Orders 12866 and 13563 

direct agencies to assess the costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits. 

This rule has not been designated a 

‘‘significant regulatory action,’’ under 

section 3(f) of Executive Order 12866, as 

amended by Executive Order 14094 

(Modernizing Regulatory Review). This 

rule has not been designated a 

‘‘significant regulatory action,’’ under 

Executive Order 12866. Accordingly, it 

has not been reviewed by the Office of 

Management and Budget (OMB). 

This regulatory action determination 

is based on the ability that vessels able 

to transit the bridge while in the closed 

position may do so at any time. 

B. Impact on Small Entities 

The Regulatory Flexibility Act of 1980 

(RFA), 5 U.S.C. 601–612, 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. 

The Coast Guard received zero 

comments from the Small Business 

Administration on this rule. The Coast 

Guard certifies under 5 U.S.C. 605(b) 

that this rule will not have a significant 


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