[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 743 Engrossed Amendment House (EAH)]
In the House of Representatives, U. S.,
September 28, 2012.
Resolved, That the bill from the Senate (S. 743) entitled ``An Act
to amend chapter 23 of title 5, United States Code, to clarify the
disclosures of information protected from prohibited personnel
practices; to require a statement in nondisclosure policies, forms, and
agreements that such policies, forms, and agreements conform with
certain disclosure protections; to provide certain authority for the
Special Counsel; and for other purposes.'', do pass with the following
AMENDMENT:
Strike out all after the enacting clause and insert:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Whistleblower Protection Enhancement
Act of 2012''.
TITLE I--PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION BY FEDERAL
EMPLOYEES
SEC. 101. CLARIFICATION OF DISCLOSURES COVERED.
(a) In General.--Section 2302(b)(8) of title 5, United States Code,
is amended--
(1) in subparagraph (A)(i), by striking ``a violation'' and
inserting ``any violation''; and
(2) in subparagraph (B)(i), by striking ``a violation'' and
inserting ``any violation (other than a violation of this
section)''.
(b) Prohibited Personnel Practices Under Section 2302(b)(9).--
(1) Technical and conforming amendments.--Title 5, United
States Code, is amended--
(A) in subsections (a)(3), (b)(4)(A), and
(b)(4)(B)(i) of section 1214 and in subsections (a),
(e)(1), and (i) of section 1221, by inserting ``or
section 2302(b)(9) (A)(i), (B), (C), or (D)'' after
``section 2302(b)(8)'' each place it appears; and
(B) in section 2302(a)(2)(C)(i), by inserting ``or
section 2302(b)(9) (A)(i), (B), (C), or (D)'' after
``(b)(8)''.
(2) Other references.--(A) Title 5, United States Code, is
amended in subsection (b)(4)(B)(i) of section 1214 and in
subsection (e)(1) of section 1221 by inserting ``or protected
activity'' after ``disclosure'' each place it appears.
(B) Section 2302(b)(9) of title 5, United States Code, is
amended--
(i) by striking subparagraph (A) and inserting the
following:
``(A) the exercise of any appeal, complaint, or
grievance right granted by any law, rule, or
regulation--
``(i) with regard to remedying a violation
of paragraph (8); or
``(ii) other than with regard to remedying
a violation of paragraph (8);''; and
(ii) in subparagraph (B), by inserting ``(i) or
(ii)'' after ``subparagraph (A)''.
(C) Section 2302 of title 5, United States Code, is amended
by adding at the end the following:
``(f)(1) A disclosure shall not be excluded from subsection (b)(8)
because--
``(A) the disclosure was made to a supervisor or to a
person who participated in an activity that the employee or
applicant reasonably believed to be covered by subsection
(b)(8)(A)(i) and (ii);
``(B) the disclosure revealed information that had been
previously disclosed;
``(C) of the employee's or applicant's motive for making
the disclosure;
``(D) the disclosure was not made in writing;
``(E) the disclosure was made while the employee was off
duty; or
``(F) of the amount of time which has passed since the
occurrence of the events described in the disclosure.
``(2) If a disclosure is made during the normal course of duties of
an employee, the disclosure shall not be excluded from subsection
(b)(8) if any employee who has authority to take, direct others to
take, recommend, or approve any personnel action with respect to the
employee making the disclosure, took, failed to take, or threatened to
take or fail to take a personnel action with respect to that employee
in reprisal for the disclosure.''.
SEC. 102. DEFINITIONAL AMENDMENTS.
Section 2302(a)(2) of title 5, United States Code, is amended--
(1) in subparagraph (B)(ii), by striking ``and'' at the
end;
(2) in subparagraph (C)(iii), by striking the period at the
end and inserting ``; and''; and
(3) by adding at the end the following:
``(D) `disclosure' means a formal or informal communication
or transmission, but does not include a communication
concerning policy decisions that lawfully exercise
discretionary authority unless the employee or applicant
providing the disclosure reasonably believes that the
disclosure evidences--
``(i) any violation of any law, rule, or
regulation; or
``(ii) gross mismanagement, a gross waste of funds,
an abuse of authority, or a substantial and specific
danger to public health or safety.''.
SEC. 103. REBUTTABLE PRESUMPTION.
Section 2302(b) of title 5, United States Code, is amended by
amending the matter following paragraph (12) to read as follows:
``This subsection shall not be construed to authorize the withholding
of information from Congress or the taking of any personnel action
against an employee who discloses information to Congress. For purposes
of paragraph (8), (i) any presumption relating to the performance of a
duty by an employee whose conduct is the subject of a disclosure as
defined under subsection (a)(2)(D) may be rebutted by substantial
evidence, and (ii) a determination as to whether an employee or
applicant reasonably believes that such employee or applicant has
disclosed information that evidences any violation of law, rule,
regulation, gross mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public health or
safety shall be made by determining whether a disinterested observer
with knowledge of the essential facts known to and readily
ascertainable by the employee or applicant could reasonably conclude
that the actions of the Government evidence such violations,
mismanagement, waste, abuse, or danger.''.
SEC. 104. PERSONNEL ACTIONS AND PROHIBITED PERSONNEL PRACTICES.
(a) Personnel Action.--Section 2302(a)(2)(A) of title 5, United
States Code, is amended--
(1) in clause (x), by striking ``and'' after the semicolon;
and
(2) by redesignating clause (xi) as clause (xii) and
inserting after clause (x) the following:
``(xi) the implementation or enforcement of any
nondisclosure policy, form, or agreement; and''.
(b) Prohibited Personnel Practice.--
(1) In general.--Section 2302(b) of title 5, United States
Code, is amended--
(A) in paragraph (11), by striking ``or'' at the
end;
(B) in paragraph (12), by striking the period and
inserting ``; or''; and
(C) by inserting after paragraph (12) the
following:
``(13) implement or enforce any nondisclosure policy, form,
or agreement, if such policy, form, or agreement does not
contain the following statement: `These provisions are
consistent with and do not supersede, conflict with, or
otherwise alter the employee obligations, rights, or
liabilities created by existing statute or Executive order
relating to (1) classified information, (2) communications to
Congress, (3) the reporting to an Inspector General of 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, or (4) any
other whistleblower protection. The definitions, requirements,
obligations, rights, sanctions, and liabilities created by
controlling Executive orders and statutory provisions are
incorporated into this agreement and are controlling.'.''.
(2) Agency websites.--Agencies making use of any
nondisclosure policy, form, or agreement shall also post the
statement required under section 2302(b)(13) of title 5, United
States Code (as added by this Act) on the agency website,
accompanied by the specific list of controlling Executive
orders and statutory provisions.
(3) Nondisclosure policy, form, or agreement in effect
before the effective date.--With respect to a nondisclosure
policy, form, or agreement that was in effect before the
effective date of this Act, but that does not contain the
statement required under section 2302(b)(13) of title 5, United
States Code (as added by this Act) for implementation or
enforcement--
(A) it shall not be a prohibited personnel practice
to enforce that policy, form, or agreement with regard
to a current employee if the agency gives such employee
notice of the statement; and
(B) it shall not be a prohibited personnel practice
to enforce that policy, form, or agreement after the
effective date of this Act with regard to a former
employee if the agency complies with paragraph (2) of
this subsection.
(c) Retaliatory Investigations.--
(1) Agency investigation.--Section 1214 of title 5, United
States Code, is amended by adding at the end the following:
``(h) Any corrective action ordered under this section to correct a
prohibited personnel practice may include fees, costs, or damages
reasonably incurred due to an agency investigation of the employee, if
such investigation was commenced, expanded, or extended in retaliation
for the disclosure or protected activity that formed the basis of the
corrective action.''.
(2) Damages.--Section 1221(g) of title 5, United States
Code, is amended by adding at the end the following:
``(4) Any corrective action ordered under this section to correct a
prohibited personnel practice may include fees, costs, or damages
reasonably incurred due to an agency investigation of the employee, if
such investigation was commenced, expanded, or extended in retaliation
for the disclosure or protected activity that formed the basis of the
corrective action.''.
SEC. 105. EXCLUSION OF AGENCIES BY THE PRESIDENT.
Section 2302(a)(2)(C) of title 5, United States Code, is amended by
striking clause (ii) and inserting the following:
``(ii)(I) the Federal Bureau of
Investigation, the Central Intelligence Agency,
the Defense Intelligence Agency, the National
Geospatial-Intelligence Agency, the National
Security Agency, the Office of the Director of
National Intelligence, and the National
Reconnaissance Office; and
``(II) as determined by the President, any
Executive agency or unit thereof the principal
function of which is the conduct of foreign
intelligence or counterintelligence activities,
provided that the determination be made prior
to a personnel action; or''.
SEC. 106. DISCIPLINARY ACTION.
Section 1215(a)(3) of title 5, United States Code, is amended to
read as follows:
``(3)(A) A final order of the Board may impose--
``(i) disciplinary action consisting of removal, reduction
in grade, debarment from Federal employment for a period not to
exceed 5 years, suspension, or reprimand;
``(ii) an assessment of a civil penalty not to exceed
$1,000; or
``(iii) any combination of disciplinary actions described
under clause (i) and an assessment described under clause (ii).
``(B) In any case brought under paragraph (1) in which the Board
finds that an employee has committed a prohibited personnel practice
under section 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D), the
Board may impose disciplinary action if the Board finds that the
activity protected under section 2302(b)(8), or 2302(b)(9) (A)(i), (B),
(C), or (D) was a significant motivating factor, even if other factors
also motivated the decision, for the employee's decision to take, fail
to take, or threaten to take or fail to take a personnel action, unless
that employee demonstrates, by a preponderance of the evidence, that
the employee would have taken, failed to take, or threatened to take or
fail to take the same personnel action, in the absence of such
protected activity.''.
SEC. 107. REMEDIES.
(a) Attorney Fees.--Section 1204(m)(1) of title 5, United States
Code, is amended by striking ``agency involved'' and inserting ``agency
where the prevailing party was employed or had applied for employment
at the time of the events giving rise to the case''.
(b) Damages.--Sections 1214(g)(2) and 1221(g)(1)(A)(ii) of title 5,
United States Code, are amended by striking all after ``travel
expenses,'' and inserting ``any other reasonable and foreseeable
consequential damages, and compensatory damages (including interest,
reasonable expert witness fees, and costs).'' each place it appears.
SEC. 108. JUDICIAL REVIEW.
(a) In General.--Section 7703(b) of title 5, United States Code, is
amended by striking the matter preceding paragraph (2) and inserting
the following:
``(b)(1)(A) Except as provided in subparagraph (B) and paragraph
(2) of this subsection, a petition to review a final order or final
decision of the Board shall be filed in the United States Court of
Appeals for the Federal Circuit. Notwithstanding any other provision of
law, any petition for review shall be filed within 60 days after the
Board issues notice of the final order or decision of the Board.
``(B) During the 2-year period beginning on the effective date of
the Whistleblower Protection Enhancement Act of 2012, a petition to
review a final order or final decision of the Board that raises no
challenge to the Board's disposition of allegations of a prohibited
personnel practice described in section 2302(b) other than practices
described in section 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D)
shall be filed in the United States Court of Appeals for the Federal
Circuit or any court of appeals of competent jurisdiction.
Notwithstanding any other provision of law, any petition for review
shall be filed within 60 days after the Board issues notice of the
final order or decision of the Board.''.
(b) Review Obtained by Office of Personnel Management.--Section
7703(d) of title 5, United States Code, is amended to read as follows:
``(d)(1) Except as provided under paragraph (2), this paragraph
shall apply to any review obtained by the Director of the Office of
Personnel Management. The Director may obtain review of any final order
or decision of the Board by filing, within 60 days after the Board
issues notice of the final order or decision of the Board, a petition
for judicial review in the United States Court of Appeals for the
Federal Circuit if the Director determines, in the discretion of the
Director, that the Board erred in interpreting a civil service law,
rule, or regulation affecting personnel management and that the Board's
decision will have a substantial impact on a civil service law, rule,
regulation, or policy directive. If the Director did not intervene in a
matter before the Board, the Director may not petition for review of a
Board decision under this section unless the Director first petitions
the Board for a reconsideration of its decision, and such petition is
denied. In addition to the named respondent, the Board and all other
parties to the proceedings before the Board shall have the right to
appear in the proceeding before the Court of Appeals. The granting of
the petition for judicial review shall be at the discretion of the
Court of Appeals.
``(2) During the 2-year period beginning on the effective date of
the Whistleblower Protection Enhancement Act of 2012, this paragraph
shall apply to any review obtained by the Director of the Office of
Personnel Management that raises no challenge to the Board's
disposition of allegations of a prohibited personnel practice described
in section 2302(b) other than practices described in section
2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D). The Director may
obtain review of any final order or decision of the Board by filing,
within 60 days after the Board issues notice of the final order or
decision of the Board, a petition for judicial review in the United
States Court of Appeals for the Federal Circuit or any court of appeals
of competent jurisdiction if the Director determines, in the discretion
of the Director, that the Board erred in interpreting a civil service
law, rule, or regulation affecting personnel management and that the
Board's decision will have a substantial impact on a civil service law,
rule, regulation, or policy directive. If the Director did not
intervene in a matter before the Board, the Director may not petition
for review of a Board decision under this section unless the Director
first petitions the Board for a reconsideration of its decision, and
such petition is denied. In addition to the named respondent, the Board
and all other parties to the proceedings before the Board shall have
the right to appear in the proceeding before the court of appeals. The
granting of the petition for judicial review shall be at the discretion
of the court of appeals.''.
SEC. 109. PROHIBITED PERSONNEL PRACTICES AFFECTING THE TRANSPORTATION
SECURITY ADMINISTRATION.
(a) In General.--Chapter 23 of title 5, United States Code, is
amended--
(1) by redesignating sections 2304 and 2305 as sections
2305 and 2306, respectively; and
(2) by inserting after section 2303 the following:
``Sec. 2304. Prohibited personnel practices affecting the
Transportation Security Administration
``(a) In General.--Notwithstanding any other provision of law, any
individual holding or applying for a position within the Transportation
Security Administration shall be covered by--
``(1) the provisions of section 2302(b) (1), (8), and (9);
``(2) any provision of law implementing section 2302(b)
(1), (8), or (9) by providing any right or remedy available to
an employee or applicant for employment in the civil service;
and
``(3) any rule or regulation prescribed under any provision
of law referred to in paragraph (1) or (2).
``(b) Rule of Construction.--Nothing in this section shall be
construed to affect any rights, apart from those described in
subsection (a), to which an individual described in subsection (a)
might otherwise be entitled under law.''.
(b) Technical and Conforming Amendment.--The table of sections for
chapter 23 of title 5, United States Code, is amended by striking the
items relating to sections 2304 and 2305, respectively, and inserting
the following:
``2304. Prohibited personnel practices affecting the Transportation
Security Administration.
``2305. Responsibility of the Government Accountability Office.
``2306. Coordination with certain other provisions of law.''.
(c) Effective Date.--The amendments made by this section shall take
effect on the date of enactment of this section.
SEC. 110. DISCLOSURE OF CENSORSHIP RELATED TO RESEARCH, ANALYSIS, OR
TECHNICAL INFORMATION.
(a) Definitions.--In this subsection--
(1) the term ``agency'' has the meaning given under section
2302(a)(2)(C) of title 5, United States Code;
(2) the term ``applicant'' means an applicant for a covered
position;
(3) the term ``censorship related to research, analysis, or
technical information'' means any effort to distort,
misrepresent, or suppress research, analysis, or technical
information;
(4) the term ``covered position'' has the meaning given
under section 2302(a)(2)(B) of title 5, United States Code;
(5) the term ``employee'' means an employee in a covered
position in an agency; and
(6) the term ``disclosure'' has the meaning given under
section 2302(a)(2)(D) of title 5, United States Code.
(b) Protected Disclosure.--
(1) In general.--Any disclosure of information by an
employee or applicant for employment that the employee or
applicant reasonably believes is evidence of censorship related
to research, analysis, or technical information--
(A) shall come within the protections of section
2302(b)(8)(A) of title 5, United States Code, if--
(i) the employee or applicant reasonably
believes that the censorship related to
research, analysis, or technical information is
or will cause--
(I) any violation of law, rule, or
regulation; or
(II) gross mismanagement, a gross
waste of funds, an abuse of authority,
or a substantial and specific danger to
public health or safety; and
(ii) such disclosure is not specifically
prohibited by law or such information is not
specifically required by Executive order to be
kept classified in the interest of national
defense or the conduct of foreign affairs; and
(B) shall come within the protections of section
2302(b)(8)(B) of title 5, United States Code, if--
(i) the employee or applicant reasonably
believes that the censorship related to
research, analysis, or technical information is
or will cause--
(I) any violation of law, rule, or
regulation; or
(II) gross mismanagement, a gross
waste of funds, an abuse of authority,
or a substantial and specific danger to
public health or safety; and
(ii) the disclosure is made to the Special
Counsel, or to the Inspector General of an
agency or another person designated by the head
of the agency to receive such disclosures,
consistent with the protection of sources and
methods.
(2) Disclosures not excluded.--A disclosure shall not be
excluded from paragraph (1) for any reason described under
section 2302(f)(1) or (2) of title 5, United States Code.
(3) Rule of construction.--Nothing in this section shall be
construed to imply any limitation on the protections of
employees and applicants afforded by any other provision of
law, including protections with respect to any disclosure of
information believed to be evidence of censorship related to
research, analysis, or technical information.
SEC. 111. CLARIFICATION OF WHISTLEBLOWER RIGHTS FOR CRITICAL
INFRASTRUCTURE INFORMATION.
Section 214(c) of the Homeland Security Act of 2002 (6 U.S.C.
133(c)) is amended by adding at the end the following: ``For purposes
of this section a permissible use of independently obtained information
includes the disclosure of such information under section 2302(b)(8) of
title 5, United States Code.''.
SEC. 112. ADVISING EMPLOYEES OF RIGHTS.
Section 2302(c) of title 5, United States Code, is amended by
inserting ``, including how to make a lawful disclosure of information
that is specifically required by law or Executive order to be kept
classified in the interest of national defense or the conduct of
foreign affairs to the Special Counsel, the Inspector General of an
agency, Congress, or other agency employee designated to receive such
disclosures'' after ``chapter 12 of this title''.
SEC. 113. SPECIAL COUNSEL AMICUS CURIAE APPEARANCE.
Section 1212 of title 5, United States Code, is amended by adding
at the end the following:
``(h)(1) The Special Counsel is authorized to appear as amicus
curiae in any action brought in a court of the United States related to
section 2302(b) (8) or (9), or as otherwise authorized by law. In any
such action, the Special Counsel is authorized to present the views of
the Special Counsel with respect to compliance with section 2302(b) (8)
or (9) and the impact court decisions would have on the enforcement of
such provisions of law.
``(2) A court of the United States shall grant the application of
the Special Counsel to appear in any such action for the purposes
described under subsection (a).''.
SEC. 114. SCOPE OF DUE PROCESS.
(a) Special Counsel.--Section 1214(b)(4)(B)(ii) of title 5, United
States Code, is amended by inserting ``, after a finding that a
protected disclosure was a contributing factor,'' after ``ordered if''.
(b) Individual Action.--Section 1221(e)(2) of title 5, United
States Code, is amended by inserting ``, after a finding that a
protected disclosure was a contributing factor,'' after ``ordered if''.
SEC. 115. NONDISCLOSURE POLICIES, FORMS, AND AGREEMENTS.
(a) In General.--
(1) Requirement.--Each agreement in Standard Forms 312 and
4414 of the Government and any other nondisclosure policy,
form, or agreement of the Government shall contain the
following statement: ``These provisions are consistent with and
do not supersede, conflict with, or otherwise alter the
employee obligations, rights, or liabilities created by
existing statute or Executive order relating to (1) classified
information, (2) communications to Congress, (3) the reporting
to an Inspector General of 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, or (4) any other whistleblower protection.
The definitions, requirements, obligations, rights, sanctions,
and liabilities created by controlling Executive orders and
statutory provisions are incorporated into this agreement and
are controlling.''.
(2) Agency websites.--Agencies making use of any
nondisclosure policy, form, or agreement shall also post the
statement required under paragraph (1) on the agency website,
accompanied by the specific list of controlling Executive
orders and statutory provisions.
(3) Enforceability.--
(A) In general.--Any nondisclosure policy, form, or
agreement described under paragraph (1) that does not
contain the statement required under paragraph (1) may
not be implemented or enforced to the extent such
policy, form, or agreement is inconsistent with that
statement.
(B) Nondisclosure policy, form, or agreement in
effect before the effective date.--With respect to a
nondisclosure policy, form, or agreement that was in
effect before the effective date of this Act, but that
does not contain the statement required under paragraph
(1) for implementation or enforcement--
(i) it shall not be a prohibited personnel
practice to enforce that policy, form, or
agreement with regard to a current employee if
the agency gives such employee notice of the
statement; and
(ii) it shall not be a prohibited personnel
practice to enforce that policy, form, or
agreement after the effective date of this Act
with regard to a former employee if the agency
complies with paragraph (2).
(b) Persons Other Than Government Employees.--Notwithstanding
subsection (a), a nondisclosure policy, form, or agreement that is to
be executed by a person connected with the conduct of an intelligence
or intelligence-related activity, other than an employee or officer of
the United States Government, may contain provisions appropriate to the
particular activity for which such document is to be used. Such policy,
form, or agreement shall, at a minimum, require that the person will
not disclose any classified information received in the course of such
activity unless specifically authorized to do so by the United States
Government. Such nondisclosure policy, form, or agreement shall also
make it clear that such forms do not bar disclosures to Congress or to
an authorized official of an executive agency or the Department of
Justice that are essential to reporting a substantial violation of law,
consistent with the protection of sources and methods.
SEC. 116. REPORTING REQUIREMENTS.
(a) Government Accountability Office.--
(1) Report.--Not later than 4 years after the date of
enactment of this Act, the Comptroller General shall submit a
report to the Committee on Homeland Security and Governmental
Affairs of the Senate and the Committee on Oversight and
Government Reform of the House of Representatives on the
implementation of this title.
(2) Contents.--The report under this subsection shall
include--
(A) an analysis of any changes in the number of
cases filed with the Merit Systems Protection Board
alleging violations of section 2302(b)(8) or (9) of
title 5, United States Code, since the effective date
of this Act;
(B) the outcome of the cases described under
subparagraph (A), including whether or not the Merit
Systems Protection Board, the United States Court of
Appeals for the Federal Circuit, or any other court
determined the allegations to be frivolous or malicious
as well as a recommendation whether Congress should
grant the Merit Systems Protection Board summary
judgment authority for cases described under
subparagraph (A);
(C) a recommendation regarding whether Congress
should grant jurisdiction for some subset of cases
described under subparagraph (A) to be decided by a
district court of the United States and an evaluation
of the impact that would have on the Merit Systems
Protection Board and the Federal court system; and
(D) any other matter as determined by the
Comptroller General.
(b) Merit Systems Protection Board.--
(1) In general.--Each report submitted annually by the
Merit Systems Protection Board under section 1116 of title 31,
United States Code, shall, with respect to the period covered
by such report, include as an addendum the following:
(A) Information relating to the outcome of cases
decided by the Merit Systems Protection Board during
the period covered by such report in which violations
of section 2302(b)(8) or (9)(A)(i), (B)(i), (C), or (D)
of title 5, United States Code, were alleged.
(B) The number of such cases filed in the regional
and field offices, and the number of petitions for
review filed in such cases, during the period covered
by such report, and the outcomes of any such cases or
petitions for review (irrespective of when filed)
decided during such period.
(2) First report.--The first report described under
paragraph (1) submitted after the date of enactment of this Act
shall include an addendum required under that paragraph that
covers the period beginning on the effective date of this Act
and ending at the end of the fiscal year in which such
effective date occurs.
SEC. 117. WHISTLEBLOWER PROTECTION OMBUDSMAN.
(a) In General.--Section 3 of the Inspector General Act of 1978 (5
U.S.C. App.) is amended by striking subsection (d) and inserting the
following:
``(d)(1) Each Inspector General shall, in accordance with
applicable laws and regulations governing the civil service--
``(A) appoint an Assistant Inspector General for Auditing
who shall have the responsibility for supervising the
performance of auditing activities relating to programs and
operations of the establishment;
``(B) appoint an Assistant Inspector General for
Investigations who shall have the responsibility for
supervising the performance of investigative activities
relating to such programs and operations; and
``(C) designate a Whistleblower Protection Ombudsman who
shall educate agency employees--
``(i) about prohibitions on retaliation for
protected disclosures; and
``(ii) who have made or are contemplating making a
protected disclosure about the rights and remedies
against retaliation for protected disclosures.
``(2) The Whistleblower Protection Ombudsman shall not act as a
legal representative, agent, or advocate of the employee or former
employee.
``(3) For the purposes of this section, the requirement of the
designation of a Whistleblower Protection Ombudsman under paragraph
(1)(C) shall not apply to--
``(A) any agency that is an element of the intelligence
community (as defined in section 3(4) of the National Security
Act of 1947 (50 U.S.C. 401a(4))); or
``(B) as determined by the President, any executive agency
or unit thereof the principal function of which is the conduct
of foreign intelligence or counter intelligence activities.''.
(b) Technical and Conforming Amendment.--Section 8D(j) of the
Inspector General Act of 1978 (5 U.S.C. App.) is amended--
(1) by striking ``section 3(d)(1)'' and inserting ``section
3(d)(1)(A)''; and
(2) by striking ``section 3(d)(2)'' and inserting ``section
3(d)(1)(B)''.
(c) Sunset.--
(1) In general.--The amendments made by this section shall
cease to have effect on the date that is 5 years after the date
of enactment of this Act.
(2) Return to prior authority.--Upon the date described in
paragraph (1), section 3(d) and section 8D(j) of the Inspector
General Act of 1978 (5 U.S.C. App.) shall read as such sections
read on the day before the date of enactment of this Act.
TITLE II--SAVINGS CLAUSE; EFFECTIVE DATE
SEC. 201. SAVINGS CLAUSE.
Nothing in this Act shall be construed to imply any limitation on
any protections afforded by any other provision of law to employees and
applicants.
SEC. 202. EFFECTIVE DATE.
Except as otherwise provided in section 109, this Act shall take
effect 30 days after the date of enactment of this Act.
Attest:
Clerk.
112th CONGRESS
2d Session
S. 743
_______________________________________________________________________
AMENDMENT