[Congressional Record (Bound Edition), Volume 163 (2017), Part 9]
[Senate]
[Pages 12471-12478]
[From the U.S. Government Publishing Office, www.gpo.gov]




         OFFICE OF SPECIAL COUNSEL REAUTHORIZATION ACT OF 2017

  Mr. PORTMAN. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of Calendar No. 93, S. 582.
  The PRESIDING OFFICER. The clerk will report the bill by title.
  The legislative clerk read as follows:

       A bill (S. 582) to reauthorize the Office of Special 
     Counsel, and for other purposes.

  There being no objection, the Senate proceeded to consider the bill, 
which had been reported from the Committee on Homeland Security and 
Governmental Affairs, with amendments, as follows:
  (The parts of the bill intended to be stricken are shown in boldface 
brackets and the parts of the bill intended to be inserted are shown in 
italics.)

                                 S. 582

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Office of Special Counsel 
     Reauthorization Act of 2017''.

     SEC. 2. ADEQUATE ACCESS OF SPECIAL COUNSEL TO INFORMATION.

       Section 1212(b) of title 5, United States Code, is amended 
     by adding at the end the following:
       ``(5)(A) Except as provided in subparagraph (B), the 
     Special Counsel, in carrying out this subchapter, is 
     authorized to--
       ``(i) have timely access to all records, data, reports, 
     audits, reviews, documents, papers, recommendations, or other 
     material available to the applicable agency that relate to an 
     investigation, review, or inquiry conducted under--
       ``(I) section 1213, 1214, 1215, or 1216 of this title; or
       ``(II) section 4324(a) of title 38;
       ``(ii) request from any agency the information or 
     assistance that may be necessary for the Special Counsel to 
     carry out the duties and responsibilities of the Special 
     Counsel under this subchapter; and
       ``(iii) require, during an investigation, review, or 
     inquiry of an agency, the agency to provide to the Special 
     Counsel any record or other information that relates to an 
     investigation, review, or inquiry conducted under--
       ``(I) section 1213, 1214, 1215, or 1216 of this title; or
       ``(II) section 4324(a) of title 38.
       ``(B)(i) The authorization of the Special Counsel under 
     subparagraph (A) shall not apply with respect to any entity 
     that is an element of the intelligence community, as defined 
     in section 3 of the National Security Act of 1947 (50 U.S.C. 
     3003), unless the Special Counsel is investigating, or 
     otherwise carrying out activities relating to the enforcement 
     of, an action under subchapter III of chapter 73.
       ``(ii) The Attorney General or an Inspector General may 
     withhold from the Special Counsel material described in 
     subparagraph (A) if--
       ``(I) disclosing the material could reasonably be expected 
     to interfere with a criminal investigation or prosecution 
     that is ongoing as of the date on which the Special Counsel 
     submits a request for the material; and
       ``(II) the Attorney General or the Inspector General, as 
     applicable, submits to the Special Counsel a written report 
     that describes--
       ``(aa) the material being withheld; and
       ``(bb) the reason that the material is being withheld.
       ``(C)(i) A claim of common law privilege by an agency, or 
     an officer or employee of an agency, shall not prevent the 
     Special Counsel from obtaining any material described in 
     subparagraph (A)(i) with respect to the agency.
       ``(ii) The submission of material described in subparagraph 
     (A)(i) by an agency to the Special Counsel may not be deemed 
     to waive any assertion of privilege by the agency against a 
     non-Federal entity or against an individual in any other 
     proceeding.
       ``(iii) With respect to any record or other information 
     made available to the Special Counsel by an agency under 
     subparagraph (A), the Special Counsel may only disclose the 
     record or information for a purpose that is in furtherance of 
     any authority provided to the Special Counsel in this 
     subchapter.
       ``(6) The Special Counsel shall submit to the Committee on 
     Homeland Security and Governmental Affairs of the Senate, the 
     Committee on Oversight and Government Reform of the House of 
     Representatives, and each committee of Congress with 
     jurisdiction over the applicable agency a report regarding 
     any case of contumacy or failure to comply with a request 
     submitted by the Special Counsel under paragraph (5)(A).''.

     SEC. 3. INFORMATION ON WHISTLEBLOWER PROTECTIONS.

       (a) Agency Responsibilities.--Section 2302 of title 5, 
     United States Code, is amended by striking subsection (c) and 
     inserting the following:
       ``(c)(1) In this subsection--
       ``(A) the term `new employee' means an individual--
       ``(i) appointed to a position as an employee on or after 
     the date of enactment of the Office of Special Counsel 
     Reauthorization Act of 2017; and
       ``(ii) who has not previously served as an employee; and
       ``(B) the term `whistleblower protections' means the 
     protections against and remedies for a prohibited personnel 
     practice described in paragraph (8) or subparagraph (A)(i), 
     (B), (C), or (D) of paragraph (9) of subsection (b).
       ``(2) The head of each agency shall be responsible for--
       ``(A) preventing prohibited personnel practices;
       ``(B) complying with and enforcing applicable civil service 
     laws, rules, and regulations, and other aspects of personnel 
     management; and
       ``(C) ensuring, in consultation with the Special Counsel 
     and the Inspector General of the agency, that employees of 
     the agency are informed of the rights and remedies available 
     to the employees under this chapter and chapter 12, 
     including--
       ``(i) information with respect to whistleblower protections 
     available to new employees during a probationary period;
       ``(ii) the role of the Office of Special Counsel and the 
     Merit Systems Protection Board with respect to whistleblower 
     protections; and
       ``(iii) the means by which, with respect to information 
     that is otherwise required by law or Executive order to be 
     kept classified in the interest of national defense or the 
     conduct of foreign affairs, an employee may make a lawful 
     disclosure of the information to--
       ``(I) the Special Counsel;
       ``(II) the Inspector General of an agency;
       ``(III) Congress; or
       ``(IV) another employee of the agency who is designated to 
     receive such a disclosure.
       ``(3) The head of each agency shall ensure that the 
     information described in paragraph (2) is provided to each 
     new employee of the agency not later than 180 days after the 
     date on which the new employee is appointed.
       ``(4) The head of each agency shall make available 
     information regarding whistleblower protections applicable to 
     employees of the agency on the public website of the agency 
     and on any online portal that is made available only to 
     employees of the agency, if such portal exists.
       ``(5) Any employee to whom the head of an agency delegates 
     authority for any aspect of personnel management shall, 
     within the limits of the scope of the delegation, be 
     responsible for the activities described in paragraph (2).''.

[[Page 12472]]

       (b) Training for Supervisors.--
       (1) Definitions.--In this subsection--
       (A) the term ``agency'' means any entity the employees of 
     which are covered by paragraphs (8) and (9) of section 
     2302(b) of title 5, United States Code, without regard to 
     whether any other provision of that title is applicable to 
     the entity; and
       (B) the term ``whistleblower protections'' has the meaning 
     given the term in section 2302(c)(1)(B) of title 5, United 
     States Code, as amended by subsection (a).
       (2) Training required.--The head of each agency, in 
     consultation with the Special Counsel and the Inspector 
     General of that agency (or, in the case of an agency that 
     does not have an Inspector General, the senior ethics 
     official of that agency), shall provide the training 
     described in paragraph (3).
       (3) Training described.--The training described in this 
     paragraph shall--
       (A) cover the manner in which the agency shall respond to a 
     complaint alleging a violation of whistleblower protections 
     that are available to employees of the agency; and
       (B) be provided--
       (i) to each employee of the agency who--

       (I) is appointed to a supervisory position in the agency; 
     and
       (II) before the appointment described in subclause (I), had 
     not served in a supervisory position in the agency; and

       (ii) on an annual basis to all employees of the agency who 
     serve in supervisory positions in the agency.
       (c) Information on Appeal Rights.--
       (1) In general.--Any notice provided to an employee under 
     section 7503(b)(1), section 7513(b)(1), or section 7543(b)(1) 
     of title 5, United States Code, shall include detailed 
     information with respect to--
       (A) the right of the employee to appeal an action brought 
     under the applicable section;
       (B) the forums in which the employee may file an appeal 
     described in subparagraph (A); and
       (C) any limitations on the rights of the employee that 
     would apply because of the forum in which the employee 
     decides to file an appeal.
       (2) Development of information.--The information described 
     in paragraph (1) shall be developed by the Director of the 
     Office of Personnel Management, in consultation with the 
     Special Counsel, the Merit Systems Protection Board, and the 
     Equal Employment Opportunity Commission.

     SEC. 4. ADDITIONAL WHISTLEBLOWER PROVISIONS.

       (a) Prohibited Personnel Practices.--Section 2302 of title 
     5, United States Code, is amended--
       (1) in subsection (b)--
       (A) in paragraph (9)--
       (i) in subparagraph (C), by inserting ``(or any other 
     component responsible for internal investigation or review)'' 
     after ``Inspector General''; and
       (ii) in subparagraph (D), by inserting ``, rule, or 
     regulation'' after ``law'';
       (B) in paragraph (12), by striking ``or'' at the end;
       (C) in paragraph (13), by striking the period at the end 
     and inserting ``; or''; and
       (D) by inserting after paragraph (13) the following:
       ``(14) access the medical record of another employee or an 
     applicant for employment as a part of, or otherwise in 
     furtherance of, any conduct described in paragraphs (1) 
     through (13).''; and
       (2) in subsection (f)--
       (A) in paragraph (1)--
       (i) in subparagraph (E), by striking ``or'' at the end;
       (ii) by redesignating subparagraph (F) as subparagraph (G); 
     and
       (iii) by inserting after subparagraph (E) the following:
       ``(F) the disclosure was made before the date on which the 
     individual was appointed or applied for appointment to a 
     position; or''; and
       (B) by striking paragraph (2) and inserting the following:
       ``(2) If a disclosure is made during the normal course of 
     duties of an employee, the principal job function of whom is 
     to regularly investigate and disclose wrongdoing (in this 
     paragraph referred to as the `disclosing employee'), the 
     disclosure shall not be excluded from subsection (b)(8) if 
     the disclosing employee demonstrates that an employee who has 
     the authority to take, direct other individuals to take, 
     recommend, or approve any personnel action with respect to 
     the disclosing employee took, failed to take, or threatened 
     to take or fail to take a personnel action with respect to 
     the disclosing employee in reprisal for the disclosure made 
     by the disclosing employee.''.
       (b) Explanations for Failure To Take Action.--Section 1213 
     of title 5, United States Code, is amended--
       (1) in subsection (b), by striking ``15 days'' and 
     inserting ``45 days''; and
       (2) in subsection (e)--
       (A) in paragraph (1), by striking ``Any such report'' and 
     inserting ``Any report required under subsection (c) or 
     paragraph (5) of this subsection'';
       (B) by striking paragraph (2) and inserting the following:
       ``(2) Upon receipt of any report that the head of an agency 
     is required to submit under subsection (c), the Special 
     Counsel shall review the report and determine whether--
       ``(A) the findings of the head of the agency appear 
     reasonable; and
       ``(B) if the Special Counsel requires the head of the 
     agency to submit a supplemental report under paragraph (5), 
     the reports submitted by the head of the agency collectively 
     contain the information required under subsection (d).'';
       (C) in paragraph (3), by striking ``agency report received 
     pursuant to subsection (c) of this section'' and inserting 
     ``report submitted to the Special Counsel by the head of an 
     agency under subsection (c) or paragraph (5) of this 
     subsection''; and
       (D) by adding at the end the following:
       ``(5) If, after conducting a review of a report under 
     paragraph (2), the Special Counsel concludes that the Special 
     Counsel requires additional information or documentation to 
     determine whether the report submitted by the head of an 
     agency is reasonable and sufficient, the Special Counsel may 
     request that the head of the agency submit a supplemental 
     report--
       ``(A) containing the additional information or 
     documentation identified by the Special Counsel; and
       ``(B) that the head of the agency shall submit to the 
     Special Counsel within a period of time specified by the 
     Special Counsel.''.
       (c) Transfer Requests During Stays.--
       (1) Priority granted.--Section 1214(b)(1) of title 5, 
     United States Code, is amended by adding at the end the 
     following:
       ``(E) If the Board grants a stay under subparagraph (A), 
     the head of the agency employing the employee who is the 
     subject of the action shall give priority to a request for a 
     transfer submitted by the employee.''.
       (2) Probationary employees.--Section 1221 of title 5, 
     United States Code, is amended by adding at the end the 
     following:
       ``(k) If the Board grants a stay under subsection (c) and 
     the employee who is the subject of the action is in 
     probationary status, the head of the agency employing the 
     employee shall give priority to a request for a transfer 
     submitted by the employee.''.
       (d) Retaliatory Investigations.--Section 1214 of title 5, 
     United States Code, is amended by adding at the end the 
     following:
       ``(i) The Special Counsel may petition the Board to order 
     corrective action, including fees, costs, or damages 
     reasonably incurred by an employee due to an investigation of 
     the employee by an agency, if the investigation by an agency 
     was commenced, expanded, or extended in retaliation for a 
     disclosure or protected activity described in section 
     2302(b)(8) or subparagraph (A)(i), (B), (C), or (D) of 
     section 2302(b)(9), [even if no] without regard to whether a 
     personnel action, as defined in section 2302(a)(2)(A), is 
     taken [or not taken.]''.

     SEC. 5. SUICIDE BY EMPLOYEES.

       (a) Definitions.--In this section--
       (1) the term ``agency'' means any entity the employees of 
     which are covered by paragraphs (8) and (9) of section 
     2302(b) of title 5, United States Code, without regard to 
     whether any other provision of that title is applicable to 
     the entity; and
       (2) the term ``personnel action'' has the meaning given the 
     term in section 2302(a)(2)(A) of title 5, United States Code.
       (b) Referral.--
       (1) In general.--The head of an agency shall refer to the 
     Special Counsel, along with any information known to the 
     agency regarding the circumstances described in paragraph 
     (2), any instance in which the head of the agency has 
     information indicating that an employee of the agency 
     committed suicide.
       (2) Information.--The circumstances described in this 
     paragraph are as follows:
       (A) Before the death of an employee described in paragraph 
     (1), the employee made a disclosure of information that 
     reasonably evidences--
       (i) a violation of a law, rule, or regulation;
       (ii) gross mismanagement;
       (iii) a gross waste of funds;
       (iv) an abuse of authority; or
       (v) a substantial and specific danger to public health or 
     safety.
       (B) After a disclosure described in subparagraph (A), a 
     personnel action was taken with respect to the employee who 
     made the disclosure.
       (c) Office of Special Counsel Review.--Upon receiving a 
     referral under subsection (b)(1), the Special Counsel shall--
       (1) examine whether a personnel action was taken with 
     respect to an employee because of a disclosure described in 
     subsection (b)(2)(A); and
       (2) take any action that the Special Counsel determines is 
     appropriate under subchapter II of chapter 12 of title 5, 
     United States Code.

     SEC. 6. PROTECTION OF WHISTLEBLOWERS AS CRITERIA IN 
                   PERFORMANCE APPRAISALS.

       (a) Establishment of Systems.--Section 4302 of title 5, 
     United States Code, is amended--
       (1) by redesignating subsections (b) and (c) as subsections 
     (c) and (d), respectively; and
       (2) by inserting after subsection (a) the following:
       ``(b)(1) The head of each agency, in consultation with the 
     Director of the Office of Personnel Management and the 
     Special Counsel, shall develop criteria that--

[[Page 12473]]

       ``(A) the head of the agency shall use as a critical 
     element for establishing the job requirements of a 
     supervisory employee; and
       ``(B) promote the protection of whistleblowers.
       ``(2) The criteria required under paragraph (1) shall 
     include--
       ``(A) principles for the protection of whistleblowers, such 
     as the degree to which supervisory employees--
       ``(i) respond constructively when employees of the agency 
     make disclosures described in subparagraph (A) or (B) of 
     section 2302(b)(8);
       ``(ii) take responsible actions to resolve the disclosures 
     described in clause (i); and
       ``(iii) foster an environment in which employees of the 
     agency feel comfortable making disclosures described in 
     [subparagraph (A)] clause (i) to supervisory employees or 
     other appropriate authorities; and
       ``(B) for each supervisory employee--
       ``(i) whether the agency entered into an agreement with an 
     individual who alleged that the supervisory employee 
     committed a prohibited personnel practice; and
       ``(ii) if the agency entered into an agreement described in 
     clause (i), the number of instances in which the agency 
     entered into such an agreement with respect to the 
     supervisory employee.
       ``(3) In this subsection--
       ``(A) the term `agency' means any entity the employees of 
     which are covered by paragraphs (8) and (9) of section 
     2302(b), without regard to whether any other provision of 
     this section is applicable to the entity;
       ``(B) the term `prohibited personnel practice' has the 
     meaning given the term in section 2302(a)(1);
       ``(C) the term `supervisory employee' means an employee who 
     would be a supervisor, as defined in section 7103(a), if the 
     agency employing the employee was an agency for purposes of 
     chapter 71; and
       ``(D) the term `whistleblower' means an employee who makes 
     a disclosure described in section 2302(b)(8).''.
       (b) Criteria for Performance Appraisals.--Section 4313 of 
     title 5, United States Code, is amended--
       (1) in paragraph (4), by striking ``and'' at the end;
       (2) in paragraph (5), by striking the period at the end and 
     inserting ``; and''; and
       (3) by adding at the end the following:
       ``(6) protecting whistleblowers, as described in section 
     4302(b)(2).''.
       (c) Annual Report to Congress on Unacceptable Performance 
     in Whistleblower Protection.--
       (1) Definitions.--In this subsection, the terms ``agency'' 
     and ``whistleblower'' have the meanings given the terms in 
     section 4302(b)(3) of title 5, United States Code, as amended 
     by subsection (a).
       (2) Report.--Each agency shall annually submit to the 
     Committee on Homeland Security and Governmental Affairs of 
     the Senate, the Committee on Oversight and Government Reform 
     of the House of Representatives, and each committee of 
     Congress with jurisdiction over the agency a report that 
     details--
       (A) the number of performance appraisals, for the year 
     covered by the report, that determined that an employee of 
     the agency failed to meet the standards for protecting 
     whistleblowers that were established under section 4302(b) of 
     title 5, United States Code, as amended by subsection (a);
       (B) the reasons for the determinations described in 
     subparagraph (A); and
       (C) each performance-based or corrective action taken by 
     the agency in response to a determination under subparagraph 
     (A).
       (d) Technical and Conforming Amendment.--Section 4301 of 
     title 5, United States Code, is amended, in the matter 
     preceding paragraph (1), by striking ``For the purpose of'' 
     and inserting ``Except as otherwise expressly provided, for 
     the purpose of''.

     SEC. 7. DISCIPLINE OF SUPERVISORS BASED ON RETALIATION 
                   AGAINST WHISTLEBLOWERS.

       (a) In General.--Subchapter II of chapter 75 of title 5, 
     United States Code, is amended by adding at the end the 
     following:

     ``Sec. 7515. Discipline of supervisors based on retaliation 
       against whistleblowers

       ``(a) Definitions.--In this section--
       ``(1) the term `agency'--
       ``(A) has the meaning given the term in section 
     2302(a)(2)(C), without regard to whether any other provision 
     of this chapter is applicable to the entity; and
       ``(B) does not include any entity that is an element of the 
     intelligence community, as defined in section 3 of the 
     National Security Act of 1947 (50 U.S.C. 3003);
       ``(2) the term `prohibited personnel action' means taking 
     or failing to take an action in violation of paragraph (8) or 
     (9) of section 2302(b) against an employee of an agency; and
       ``(3) the term `supervisor' means an employee who would be 
     a supervisor, as defined in section 7103(a), if the entity 
     employing the employee was an agency.
       ``(b) Proposed Disciplinary Actions.--
       ``(1) In general.--If the head of the agency in which a 
     supervisor is employed, an administrative law judge, the 
     Merit Systems Protection Board, the Special Counsel, a judge 
     of the United States, or the Inspector General of the agency 
     in which a supervisor is employed has determined that the 
     supervisor committed a prohibited personnel action, the head 
     of the agency in which the supervisor is employed, consistent 
     with the procedures required under paragraph (2)--
       ``(A) for the first prohibited personnel action committed 
     by the supervisor--
       ``(i) shall propose suspending the supervisor for a period 
     that is not less than 3 days; and
       ``(ii) may propose an additional action determined 
     appropriate by the head of the agency, including a reduction 
     in grade or pay; and
       ``(B) for the second prohibited personnel action committed 
     by the supervisor, shall propose removing the supervisor.
       ``(2) Procedures.--
       ``(A) Notice.--A supervisor against whom an action is 
     proposed to be taken under paragraph (1) is entitled to 
     written notice that--
       ``(i) states the specific reasons for the proposed action; 
     and
       ``(ii) informs the supervisor about the right of the 
     supervisor to review the material that constitutes the 
     factual support on which the proposed action is based.
       ``(B) Answer and evidence.--
       ``(i) In general.--A supervisor who receives notice under 
     subparagraph (A) may, not later than 14 days after receiving 
     the notice, submit an answer and furnish evidence in support 
     of that answer.
       ``(ii) No evidence furnished; insufficient evidence 
     furnished.--If, after the end of the 14-day period described 
     in clause (i), a supervisor does not furnish any evidence as 
     described in that clause, or if the head of the agency in 
     which the supervisor is employed determines that the evidence 
     furnished by the supervisor is insufficient, the head of the 
     agency shall carry out the action proposed under subparagraph 
     (A) or (B) of paragraph (1).
       ``(C) Scope of procedures.--An action carried out under 
     this section--
       ``(i) except as provided in clause (ii), shall be subject 
     to the same requirements and procedures, including those with 
     respect to an appeal, as an action under section 7503, 7513, 
     or 7543; and
       ``(ii) shall not be subject to--

       ``(I) paragraphs (1) and (2) of section 7503(b);
       ``(II) paragraphs (1) and (2) of subsection (b) and 
     subsection (c) of section 7513; and
       ``(III) paragraphs (1) and (2) of subsection (b) and 
     subsection (c) of section 7543.

       ``(3) Non-delegation.--If the head of an agency is 
     responsible for determining whether a supervisor has 
     committed a prohibited personnel action for purposes of 
     paragraph (1), the head of the agency may not delegate that 
     responsibility.''.
       (b) Technical and Conforming Amendment.--The table of 
     sections for subchapter II of chapter 75 of title 5, United 
     States Code, is amended by inserting after the item relating 
     to section 7514 the following:

``7515. Discipline of supervisors based on retaliation against 
              whistleblowers.''.

     SEC. 8. TERMINATION OF CERTAIN INVESTIGATIONS BY THE OFFICE 
                   OF SPECIAL COUNSEL.

       Section 1214(a) of title 5, United States Code, is amended 
     [--]
       [(1) in paragraph (1)(D), in the first sentence, by 
     inserting ``, other than a termination of an investigation 
     described in paragraph (6)(A),'' after ``investigation of a 
     prohibited personnel practice''; and
       (2)] by adding at the end the following:
       ``(6)(A) [Not later] Notwithstanding any other provision of 
     this section, not later than 30 days after receiving an 
     allegation of a prohibited personnel practice under paragraph 
     (1), the Special Counsel may terminate an investigation of 
     the allegation without further inquiry [or an opportunity for 
     the individual who submitted the allegation to respond]if the 
     Special Counsel determines that--
       ``(i) the same allegation, based on the same set of facts 
     and circumstances had previously been--
       ``(I)(aa) made by the individual; and
       ``(bb) investigated by the Special Counsel; or
       ``(II) filed by the individual with the Merit Systems 
     Protection Board;
       ``(ii) the Special Counsel does not have jurisdiction to 
     investigate the allegation; or
       ``(iii) the individual knew or should have known of the 
     alleged prohibited personnel practice on or before the date 
     that is 3 years before the date on which the Special Counsel 
     received the allegation.
       ``(B) Not later than 30 days after the date on which the 
     Special Counsel terminates an investigation under 
     subparagraph (A), the Special Counsel shall provide a written 
     notification to the individual who submitted the allegation 
     of a prohibited personnel practice that states the basis of 
     the Special Counsel for terminating the investigation.''.

     SEC. 9. ALLEGATIONS OF WRONGDOING WITHIN THE OFFICE OF 
                   SPECIAL COUNSEL.

       Section 1212 of title 5, United States Code, is amended by 
     adding at the end the following:
       ``(i) The Special Counsel shall enter into at least one 
     agreement with the Inspector General of an agency under 
     which--
       ``(1) the Inspector General shall--
       ``(A) receive, review, and investigate allegations of 
     prohibited personnel practices or

[[Page 12474]]

     wrongdoing filed by employees of the Office of Special 
     Counsel; and
       ``(B) develop a method for an employee of the Office of 
     Special Counsel to directly communicate with the Inspector 
     General; and
       ``(2) the Special Counsel--
       ``(A) may not require an employee of the Office of Special 
     Counsel to seek authorization or approval before directly 
     contacting the Inspector General in accordance with the 
     agreement; and
       ``(B) may reimburse the Inspector General for services 
     provided under the agreement.''.

     SEC. 10. REPORTING REQUIREMENTS.

       (a) Annual Report.--Section 1218 of title 5, United States 
     Code, is amended to read as follows:

     ``Sec. 1218. Annual report

       ``The Special Counsel shall submit to Congress, on an 
     annual basis, a report on the activities of the Special 
     Counsel, which shall include, for the year preceding the 
     submission of the report--
       ``(1) the number, types, and disposition of allegations of 
     prohibited personnel practices filed with the Special Counsel 
     and the costs of resolving such allegations;
       ``(2) the number of investigations conducted by the Special 
     Counsel;
       ``(3) the number of stays and disciplinary actions 
     negotiated with agencies by the Special Counsel;
       ``(4) the number of subpoenas issued by the Special 
     Counsel;
       ``(5) the number of instances in which the Special Counsel 
     reopened an investigation after the Special Counsel had made 
     an initial determination with respect to the investigation;
       ``(6) the actions that resulted from reopening 
     investigations, as described in paragraph (5);
       ``(7) the number of instances in which the Special Counsel 
     did not make a determination before the end of the 240-day 
     period described in section 1214(b)(2)(A)(i) regarding 
     whether there were reasonable grounds to believe that a 
     prohibited personnel practice had occurred, existed, or was 
     to be taken;
       ``(8) a description of the recommendations and reports made 
     by the Special Counsel to other agencies under this 
     subchapter and the actions taken by the agencies as a result 
     of the recommendations or reports;
       ``(9) the number of--
       ``(A) actions initiated before the Merit Systems Protection 
     Board, including the number of corrective action petitions 
     and disciplinary action complaints initiated; and
       ``(B) stays and extensions of stays obtained from the Merit 
     Systems Protection Board;
       ``(10) the number of prohibited personnel practice 
     complaints that resulted in a favorable action for the 
     complainant, other than a stay or an extension of a stay, 
     organized by actions in--
       ``(A) complaints dealing with reprisals against 
     whistleblowers; and
       ``(B) all other complaints; and
       ``(11) the number of prohibited personnel practice 
     complaints that were resolved by an agreement between an 
     agency and an individual, organized by agency and agency 
     components, in--
       ``(A) complaints dealing with reprisals against 
     whistleblowers; and
       ``(B) all other complaints;
       ``(12) the number of corrective actions that the Special 
     Counsel required an agency to take after a finding by the 
     Special Counsel of a prohibited personnel practice, as 
     defined in section 2302(a)(1); and
       ``(13) the results for the Office of Special Counsel of any 
     employee viewpoint survey conducted by the Office of 
     Personnel Management or any other agency.''.
       (b) Public Information.--Section 1219(a)(1) of title 5, 
     United States Code, is amended to read as follows:
       ``(1) a list of any noncriminal matters referred to the 
     head of an agency under section 1213(c), together with--
       ``(A) a copy of the information transmitted to the head of 
     the agency under section 1213(c)(1);
       ``(B) any report from the agency under section 
     1213(c)(1)(B) relating to the matter;
       ``(C) if appropriate, not otherwise prohibited by law, and 
     consented to by the complainant, any comments from the 
     complainant under section 1213(e)(1) relating to the matter; 
     and
       ``(D) the comments or recommendations of the Special 
     Counsel under paragraph (3) or (4) of section 1213(e);''.
       (c) Notice of Complaint Settlements.--Section 1217 of title 
     5, United States Code, is amended--
       (1) by striking ``The Special Counsel'' and inserting:
       ``(a) In General.--The Special Counsel''; and
       (2) by adding at the end the following:
       ``(b) Additional Report Required.--
       ``(1) In general.--If an allegation submitted to the 
     Special Counsel is resolved by an agreement between an agency 
     and an individual, the Special Counsel shall submit to 
     Congress and each congressional committee with jurisdiction 
     over the agency a report regarding the agreement.
       ``(2) Contents.--The report required under paragraph (1) 
     shall identify, with respect to an agreement described in 
     that paragraph--
       ``(A) the agency that entered into the agreement;
       ``(B) the position and employment location of the employee 
     who submitted the allegation that formed the basis of the 
     agreement;
       ``(C) the position and employment location of any employee 
     alleged by an employee described in subparagraph (B) to have 
     committed a prohibited personnel practice, as defined in 
     section 2302(a)(1);
       ``(D) a description of the allegation described in 
     subparagraph (B); and
       ``(E) whether the agency that entered into the agreement 
     has agreed to pursue any disciplinary action as a result of 
     the allegation described in subparagraph (B).''.

     SEC. 11. ESTABLISHMENT OF SURVEY PILOT PROGRAM.

       (a) In General.--The Office of Special Counsel shall design 
     and establish a pilot program under which the Office shall 
     conduct, during the first full fiscal year after the date of 
     enactment of this Act, a survey of individuals who have filed 
     a complaint or disclosure with the Office.
       (b) Purpose.--The survey under subsection (a) shall be 
     designed for the purpose of collecting information and 
     improving service at various stages of a review or 
     investigation by the Office of Special Counsel.
       (c) Results.--The results of the survey under subsection 
     (a) shall be published in the annual report of the Office of 
     Special Counsel.
       (d) Suspension of Other Surveys.--During the period 
     beginning on October 1, 2017, and ending on September 30, 
     2018, section 13 of the Act entitled ``An Act to reauthorize 
     the Office of Special Counsel, and for other purposes'', 
     approved October 29, 1994 (5 U.S.C. 1212 note), shall have no 
     force or effect.

     SEC. 12. REGULATIONS.

       (a) In General.--Not later than 2 years after the date of 
     enactment of this Act, the Special Counsel shall prescribe 
     such regulations as may be necessary to perform--
       (1) the functions of the Special Counsel under subchapter 
     II of chapter 12 of title 5, United States Code, including 
     regulations that are necessary to carry out sections 1213, 
     1214, and 1215 of that title; and
       (2) any functions of the Special Counsel that are required 
     because of the amendments made by this Act.
       (b) Publication.--Any regulations prescribed under 
     subsection (a) shall be published in the Federal Register.

     SEC. 13. AUTHORIZATION OF APPROPRIATIONS.

       (a) In General.--Section 8(a)(2) of the Whistleblower 
     Protection Act of 1989 (5 U.S.C. 5509 note) is amended by 
     striking ``2003, 2004, 2005, 2006, and 2007'' and inserting 
     ``2017 through 2022''.
       (b) Effective Date.--The amendment made by subsection (a) 
     shall take effect as though enacted on September 30, 2015.

  Mr. PORTMAN. Mr. President, I ask unanimous consent that the 
committee-reported amendments be considered, the Johnson amendment at 
the desk be considered and agreed to, the committee-reported 
amendments, as amended, be agreed to, the bill, as amended, be 
considered read a third time and passed, and the motion to reconsider 
be considered made and laid upon the table.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment (No. 746) was agreed to, as follows:

 (Purpose: To permit an Inspector General to withhold certain material 
from the Office of Special Counsel if the material is derived from, or 
                 pertains to, intelligence activities)

       On page 3, strike lines 10 through 23 and insert the 
     following:
       ``(ii) An Inspector General may withhold from the Special 
     Counsel material described in subparagraph (A) if the 
     Inspector General determines that the material contains 
     information derived from, or pertaining to, intelligence 
     activities.
       ``(iii) The Attorney General or an Inspector General may 
     withhold from the Special Counsel material described in 
     subparagraph (A) if--
       ``(I)(aa) disclosing the material could reasonably be 
     expected to interfere with a criminal investigation or 
     prosecution that is ongoing as of the date on which the 
     Special Counsel submits a request for the material; or
       ``(bb) the material--

       ``(AA) may not be disclosed pursuant to a court order; or
       ``(BB) has been filed under seal under section 3730 of 
     title 31; and

       ``(II) the Attorney General or the Inspector General, as 
     applicable, submits to the Special Counsel a written report 
     that describes--

       ``(aa) the material being withheld; and
       ``(bb) the reason that the material is being withheld.

       On page 33, after line 8, add the following:

     SEC. 14. TECHNICAL AMENDMENT.

       Section 1214(b)(1)(B)(ii) of title 5, United States Code, 
     as amended by section 1 of the Act entitled ``An Act to amend 
     section 1214 of title 5, United States Code, to provide for

[[Page 12475]]

     stays during a period that the Merit Systems Protection Board 
     lacks a quorum.'' (S. 1083, 115th Congress, 1st Session), is 
     amended by striking ``who was appointed, by and with the 
     advice and consent of the Senate,''.

  The committee-reported amendments, as amended, were agreed to.
  The bill (S. 582), as amended, was ordered to be engrossed for a 
third reading, was read the third time, and passed, as follows:

                                 S. 582

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Office of Special Counsel 
     Reauthorization Act of 2017''.

     SEC. 2. ADEQUATE ACCESS OF SPECIAL COUNSEL TO INFORMATION.

       Section 1212(b) of title 5, United States Code, is amended 
     by adding at the end the following:
       ``(5)(A) Except as provided in subparagraph (B), the 
     Special Counsel, in carrying out this subchapter, is 
     authorized to--
       ``(i) have timely access to all records, data, reports, 
     audits, reviews, documents, papers, recommendations, or other 
     material available to the applicable agency that relate to an 
     investigation, review, or inquiry conducted under--
       ``(I) section 1213, 1214, 1215, or 1216 of this title; or
       ``(II) section 4324(a) of title 38;
       ``(ii) request from any agency the information or 
     assistance that may be necessary for the Special Counsel to 
     carry out the duties and responsibilities of the Special 
     Counsel under this subchapter; and
       ``(iii) require, during an investigation, review, or 
     inquiry of an agency, the agency to provide to the Special 
     Counsel any record or other information that relates to an 
     investigation, review, or inquiry conducted under--
       ``(I) section 1213, 1214, 1215, or 1216 of this title; or
       ``(II) section 4324(a) of title 38.
       ``(B)(i) The authorization of the Special Counsel under 
     subparagraph (A) shall not apply with respect to any entity 
     that is an element of the intelligence community, as defined 
     in section 3 of the National Security Act of 1947 (50 U.S.C. 
     3003), unless the Special Counsel is investigating, or 
     otherwise carrying out activities relating to the enforcement 
     of, an action under subchapter III of chapter 73.
       ``(ii) An Inspector General may withhold from the Special 
     Counsel material described in subparagraph (A) if the 
     Inspector General determines that the material contains 
     information derived from, or pertaining to, intelligence 
     activities.
       ``(iii) The Attorney General or an Inspector General may 
     withhold from the Special Counsel material described in 
     subparagraph (A) if--
       ``(I)(aa) disclosing the material could reasonably be 
     expected to interfere with a criminal investigation or 
     prosecution that is ongoing as of the date on which the 
     Special Counsel submits a request for the material; or
       ``(bb) the material--

       ``(AA) may not be disclosed pursuant to a court order; or
       ``(BB) has been filed under seal under section 3730 of 
     title 31; and

       ``(II) the Attorney General or the Inspector General, as 
     applicable, submits to the Special Counsel a written report 
     that describes--

       ``(aa) the material being withheld; and
       ``(bb) the reason that the material is being withheld.

       ``(C)(i) A claim of common law privilege by an agency, or 
     an officer or employee of an agency, shall not prevent the 
     Special Counsel from obtaining any material described in 
     subparagraph (A)(i) with respect to the agency.
       ``(ii) The submission of material described in subparagraph 
     (A)(i) by an agency to the Special Counsel may not be deemed 
     to waive any assertion of privilege by the agency against a 
     non-Federal entity or against an individual in any other 
     proceeding.
       ``(iii) With respect to any record or other information 
     made available to the Special Counsel by an agency under 
     subparagraph (A), the Special Counsel may only disclose the 
     record or information for a purpose that is in furtherance of 
     any authority provided to the Special Counsel in this 
     subchapter.
       ``(6) The Special Counsel shall submit to the Committee on 
     Homeland Security and Governmental Affairs of the Senate, the 
     Committee on Oversight and Government Reform of the House of 
     Representatives, and each committee of Congress with 
     jurisdiction over the applicable agency a report regarding 
     any case of contumacy or failure to comply with a request 
     submitted by the Special Counsel under paragraph (5)(A).''.

     SEC. 3. INFORMATION ON WHISTLEBLOWER PROTECTIONS.

       (a) Agency Responsibilities.--Section 2302 of title 5, 
     United States Code, is amended by striking subsection (c) and 
     inserting the following:
       ``(c)(1) In this subsection--
       ``(A) the term `new employee' means an individual--
       ``(i) appointed to a position as an employee on or after 
     the date of enactment of the Office of Special Counsel 
     Reauthorization Act of 2017; and
       ``(ii) who has not previously served as an employee; and
       ``(B) the term `whistleblower protections' means the 
     protections against and remedies for a prohibited personnel 
     practice described in paragraph (8) or subparagraph (A)(i), 
     (B), (C), or (D) of paragraph (9) of subsection (b).
       ``(2) The head of each agency shall be responsible for--
       ``(A) preventing prohibited personnel practices;
       ``(B) complying with and enforcing applicable civil service 
     laws, rules, and regulations, and other aspects of personnel 
     management; and
       ``(C) ensuring, in consultation with the Special Counsel 
     and the Inspector General of the agency, that employees of 
     the agency are informed of the rights and remedies available 
     to the employees under this chapter and chapter 12, 
     including--
       ``(i) information with respect to whistleblower protections 
     available to new employees during a probationary period;
       ``(ii) the role of the Office of Special Counsel and the 
     Merit Systems Protection Board with respect to whistleblower 
     protections; and
       ``(iii) the means by which, with respect to information 
     that is otherwise required by law or Executive order to be 
     kept classified in the interest of national defense or the 
     conduct of foreign affairs, an employee may make a lawful 
     disclosure of the information to--
       ``(I) the Special Counsel;
       ``(II) the Inspector General of an agency;
       ``(III) Congress; or
       ``(IV) another employee of the agency who is designated to 
     receive such a disclosure.
       ``(3) The head of each agency shall ensure that the 
     information described in paragraph (2) is provided to each 
     new employee of the agency not later than 180 days after the 
     date on which the new employee is appointed.
       ``(4) The head of each agency shall make available 
     information regarding whistleblower protections applicable to 
     employees of the agency on the public website of the agency 
     and on any online portal that is made available only to 
     employees of the agency, if such portal exists.
       ``(5) Any employee to whom the head of an agency delegates 
     authority for any aspect of personnel management shall, 
     within the limits of the scope of the delegation, be 
     responsible for the activities described in paragraph (2).''.
       (b) Training for Supervisors.--
       (1) Definitions.--In this subsection--
       (A) the term ``agency'' means any entity the employees of 
     which are covered by paragraphs (8) and (9) of section 
     2302(b) of title 5, United States Code, without regard to 
     whether any other provision of that title is applicable to 
     the entity; and
       (B) the term ``whistleblower protections'' has the meaning 
     given the term in section 2302(c)(1)(B) of title 5, United 
     States Code, as amended by subsection (a).
       (2) Training required.--The head of each agency, in 
     consultation with the Special Counsel and the Inspector 
     General of that agency (or, in the case of an agency that 
     does not have an Inspector General, the senior ethics 
     official of that agency), shall provide the training 
     described in paragraph (3).
       (3) Training described.--The training described in this 
     paragraph shall--
       (A) cover the manner in which the agency shall respond to a 
     complaint alleging a violation of whistleblower protections 
     that are available to employees of the agency; and
       (B) be provided--
       (i) to each employee of the agency who--

       (I) is appointed to a supervisory position in the agency; 
     and
       (II) before the appointment described in subclause (I), had 
     not served in a supervisory position in the agency; and

       (ii) on an annual basis to all employees of the agency who 
     serve in supervisory positions in the agency.
       (c) Information on Appeal Rights.--
       (1) In general.--Any notice provided to an employee under 
     section 7503(b)(1), section 7513(b)(1), or section 7543(b)(1) 
     of title 5, United States Code, shall include detailed 
     information with respect to--
       (A) the right of the employee to appeal an action brought 
     under the applicable section;
       (B) the forums in which the employee may file an appeal 
     described in subparagraph (A); and
       (C) any limitations on the rights of the employee that 
     would apply because of the forum in which the employee 
     decides to file an appeal.
       (2) Development of information.--The information described 
     in paragraph (1) shall be developed by the Director of the 
     Office of Personnel Management, in consultation with the 
     Special Counsel, the Merit Systems Protection Board, and the 
     Equal Employment Opportunity Commission.

     SEC. 4. ADDITIONAL WHISTLEBLOWER PROVISIONS.

       (a) Prohibited Personnel Practices.--Section 2302 of title 
     5, United States Code, is amended--
       (1) in subsection (b)--

[[Page 12476]]

       (A) in paragraph (9)--
       (i) in subparagraph (C), by inserting ``(or any other 
     component responsible for internal investigation or review)'' 
     after ``Inspector General''; and
       (ii) in subparagraph (D), by inserting ``, rule, or 
     regulation'' after ``law'';
       (B) in paragraph (12), by striking ``or'' at the end;
       (C) in paragraph (13), by striking the period at the end 
     and inserting ``; or''; and
       (D) by inserting after paragraph (13) the following:
       ``(14) access the medical record of another employee or an 
     applicant for employment as a part of, or otherwise in 
     furtherance of, any conduct described in paragraphs (1) 
     through (13).''; and
       (2) in subsection (f)--
       (A) in paragraph (1)--
       (i) in subparagraph (E), by striking ``or'' at the end;
       (ii) by redesignating subparagraph (F) as subparagraph (G); 
     and
       (iii) by inserting after subparagraph (E) the following:
       ``(F) the disclosure was made before the date on which the 
     individual was appointed or applied for appointment to a 
     position; or''; and
       (B) by striking paragraph (2) and inserting the following:
       ``(2) If a disclosure is made during the normal course of 
     duties of an employee, the principal job function of whom is 
     to regularly investigate and disclose wrongdoing (in this 
     paragraph referred to as the `disclosing employee'), the 
     disclosure shall not be excluded from subsection (b)(8) if 
     the disclosing employee demonstrates that an employee who has 
     the authority to take, direct other individuals to take, 
     recommend, or approve any personnel action with respect to 
     the disclosing employee took, failed to take, or threatened 
     to take or fail to take a personnel action with respect to 
     the disclosing employee in reprisal for the disclosure made 
     by the disclosing employee.''.
       (b) Explanations for Failure To Take Action.--Section 1213 
     of title 5, United States Code, is amended--
       (1) in subsection (b), by striking ``15 days'' and 
     inserting ``45 days''; and
       (2) in subsection (e)--
       (A) in paragraph (1), by striking ``Any such report'' and 
     inserting ``Any report required under subsection (c) or 
     paragraph (5) of this subsection'';
       (B) by striking paragraph (2) and inserting the following:
       ``(2) Upon receipt of any report that the head of an agency 
     is required to submit under subsection (c), the Special 
     Counsel shall review the report and determine whether--
       ``(A) the findings of the head of the agency appear 
     reasonable; and
       ``(B) if the Special Counsel requires the head of the 
     agency to submit a supplemental report under paragraph (5), 
     the reports submitted by the head of the agency collectively 
     contain the information required under subsection (d).'';
       (C) in paragraph (3), by striking ``agency report received 
     pursuant to subsection (c) of this section'' and inserting 
     ``report submitted to the Special Counsel by the head of an 
     agency under subsection (c) or paragraph (5) of this 
     subsection''; and
       (D) by adding at the end the following:
       ``(5) If, after conducting a review of a report under 
     paragraph (2), the Special Counsel concludes that the Special 
     Counsel requires additional information or documentation to 
     determine whether the report submitted by the head of an 
     agency is reasonable and sufficient, the Special Counsel may 
     request that the head of the agency submit a supplemental 
     report--
       ``(A) containing the additional information or 
     documentation identified by the Special Counsel; and
       ``(B) that the head of the agency shall submit to the 
     Special Counsel within a period of time specified by the 
     Special Counsel.''.
       (c) Transfer Requests During Stays.--
       (1) Priority granted.--Section 1214(b)(1) of title 5, 
     United States Code, is amended by adding at the end the 
     following:
       ``(E) If the Board grants a stay under subparagraph (A), 
     the head of the agency employing the employee who is the 
     subject of the action shall give priority to a request for a 
     transfer submitted by the employee.''.
       (2) Probationary employees.--Section 1221 of title 5, 
     United States Code, is amended by adding at the end the 
     following:
       ``(k) If the Board grants a stay under subsection (c) and 
     the employee who is the subject of the action is in 
     probationary status, the head of the agency employing the 
     employee shall give priority to a request for a transfer 
     submitted by the employee.''.
       (d) Retaliatory Investigations.--Section 1214 of title 5, 
     United States Code, is amended by adding at the end the 
     following:
       ``(i) The Special Counsel may petition the Board to order 
     corrective action, including fees, costs, or damages 
     reasonably incurred by an employee due to an investigation of 
     the employee by an agency, if the investigation by an agency 
     was commenced, expanded, or extended in retaliation for a 
     disclosure or protected activity described in section 
     2302(b)(8) or subparagraph (A)(i), (B), (C), or (D) of 
     section 2302(b)(9), without regard to whether a personnel 
     action, as defined in section 2302(a)(2)(A), is taken.''.

     SEC. 5. SUICIDE BY EMPLOYEES.

       (a) Definitions.--In this section--
       (1) the term ``agency'' means any entity the employees of 
     which are covered by paragraphs (8) and (9) of section 
     2302(b) of title 5, United States Code, without regard to 
     whether any other provision of that title is applicable to 
     the entity; and
       (2) the term ``personnel action'' has the meaning given the 
     term in section 2302(a)(2)(A) of title 5, United States Code.
       (b) Referral.--
       (1) In general.--The head of an agency shall refer to the 
     Special Counsel, along with any information known to the 
     agency regarding the circumstances described in paragraph 
     (2), any instance in which the head of the agency has 
     information indicating that an employee of the agency 
     committed suicide.
       (2) Information.--The circumstances described in this 
     paragraph are as follows:
       (A) Before the death of an employee described in paragraph 
     (1), the employee made a disclosure of information that 
     reasonably evidences--
       (i) a violation of a law, rule, or regulation;
       (ii) gross mismanagement;
       (iii) a gross waste of funds;
       (iv) an abuse of authority; or
       (v) a substantial and specific danger to public health or 
     safety.
       (B) After a disclosure described in subparagraph (A), a 
     personnel action was taken with respect to the employee who 
     made the disclosure.
       (c) Office of Special Counsel Review.--Upon receiving a 
     referral under subsection (b)(1), the Special Counsel shall--
       (1) examine whether a personnel action was taken with 
     respect to an employee because of a disclosure described in 
     subsection (b)(2)(A); and
       (2) take any action that the Special Counsel determines is 
     appropriate under subchapter II of chapter 12 of title 5, 
     United States Code.

     SEC. 6. PROTECTION OF WHISTLEBLOWERS AS CRITERIA IN 
                   PERFORMANCE APPRAISALS.

       (a) Establishment of Systems.--Section 4302 of title 5, 
     United States Code, is amended--
       (1) by redesignating subsections (b) and (c) as subsections 
     (c) and (d), respectively; and
       (2) by inserting after subsection (a) the following:
       ``(b)(1) The head of each agency, in consultation with the 
     Director of the Office of Personnel Management and the 
     Special Counsel, shall develop criteria that--
       ``(A) the head of the agency shall use as a critical 
     element for establishing the job requirements of a 
     supervisory employee; and
       ``(B) promote the protection of whistleblowers.
       ``(2) The criteria required under paragraph (1) shall 
     include--
       ``(A) principles for the protection of whistleblowers, such 
     as the degree to which supervisory employees--
       ``(i) respond constructively when employees of the agency 
     make disclosures described in subparagraph (A) or (B) of 
     section 2302(b)(8);
       ``(ii) take responsible actions to resolve the disclosures 
     described in clause (i); and
       ``(iii) foster an environment in which employees of the 
     agency feel comfortable making disclosures described in 
     clause (i) to supervisory employees or other appropriate 
     authorities; and
       ``(B) for each supervisory employee--
       ``(i) whether the agency entered into an agreement with an 
     individual who alleged that the supervisory employee 
     committed a prohibited personnel practice; and
       ``(ii) if the agency entered into an agreement described in 
     clause (i), the number of instances in which the agency 
     entered into such an agreement with respect to the 
     supervisory employee.
       ``(3) In this subsection--
       ``(A) the term `agency' means any entity the employees of 
     which are covered by paragraphs (8) and (9) of section 
     2302(b), without regard to whether any other provision of 
     this section is applicable to the entity;
       ``(B) the term `prohibited personnel practice' has the 
     meaning given the term in section 2302(a)(1);
       ``(C) the term `supervisory employee' means an employee who 
     would be a supervisor, as defined in section 7103(a), if the 
     agency employing the employee was an agency for purposes of 
     chapter 71; and
       ``(D) the term `whistleblower' means an employee who makes 
     a disclosure described in section 2302(b)(8).''.
       (b) Criteria for Performance Appraisals.--Section 4313 of 
     title 5, United States Code, is amended--
       (1) in paragraph (4), by striking ``and'' at the end;
       (2) in paragraph (5), by striking the period at the end and 
     inserting ``; and''; and
       (3) by adding at the end the following:
       ``(6) protecting whistleblowers, as described in section 
     4302(b)(2).''.
       (c) Annual Report to Congress on Unacceptable Performance 
     in Whistleblower Protection.--
       (1) Definitions.--In this subsection, the terms ``agency'' 
     and ``whistleblower'' have the meanings given the terms in 
     section

[[Page 12477]]

     4302(b)(3) of title 5, United States Code, as amended by 
     subsection (a).
       (2) Report.--Each agency shall annually submit to the 
     Committee on Homeland Security and Governmental Affairs of 
     the Senate, the Committee on Oversight and Government Reform 
     of the House of Representatives, and each committee of 
     Congress with jurisdiction over the agency a report that 
     details--
       (A) the number of performance appraisals, for the year 
     covered by the report, that determined that an employee of 
     the agency failed to meet the standards for protecting 
     whistleblowers that were established under section 4302(b) of 
     title 5, United States Code, as amended by subsection (a);
       (B) the reasons for the determinations described in 
     subparagraph (A); and
       (C) each performance-based or corrective action taken by 
     the agency in response to a determination under subparagraph 
     (A).
       (d) Technical and Conforming Amendment.--Section 4301 of 
     title 5, United States Code, is amended, in the matter 
     preceding paragraph (1), by striking ``For the purpose of'' 
     and inserting ``Except as otherwise expressly provided, for 
     the purpose of''.

     SEC. 7. DISCIPLINE OF SUPERVISORS BASED ON RETALIATION 
                   AGAINST WHISTLEBLOWERS.

       (a) In General.--Subchapter II of chapter 75 of title 5, 
     United States Code, is amended by adding at the end the 
     following:

     ``Sec. 7515. Discipline of supervisors based on retaliation 
       against whistleblowers

       ``(a) Definitions.--In this section--
       ``(1) the term `agency'--
       ``(A) has the meaning given the term in section 
     2302(a)(2)(C), without regard to whether any other provision 
     of this chapter is applicable to the entity; and
       ``(B) does not include any entity that is an element of the 
     intelligence community, as defined in section 3 of the 
     National Security Act of 1947 (50 U.S.C. 3003);
       ``(2) the term `prohibited personnel action' means taking 
     or failing to take an action in violation of paragraph (8) or 
     (9) of section 2302(b) against an employee of an agency; and
       ``(3) the term `supervisor' means an employee who would be 
     a supervisor, as defined in section 7103(a), if the entity 
     employing the employee was an agency.
       ``(b) Proposed Disciplinary Actions.--
       ``(1) In general.--If the head of the agency in which a 
     supervisor is employed, an administrative law judge, the 
     Merit Systems Protection Board, the Special Counsel, a judge 
     of the United States, or the Inspector General of the agency 
     in which a supervisor is employed has determined that the 
     supervisor committed a prohibited personnel action, the head 
     of the agency in which the supervisor is employed, consistent 
     with the procedures required under paragraph (2)--
       ``(A) for the first prohibited personnel action committed 
     by the supervisor--
       ``(i) shall propose suspending the supervisor for a period 
     that is not less than 3 days; and
       ``(ii) may propose an additional action determined 
     appropriate by the head of the agency, including a reduction 
     in grade or pay; and
       ``(B) for the second prohibited personnel action committed 
     by the supervisor, shall propose removing the supervisor.
       ``(2) Procedures.--
       ``(A) Notice.--A supervisor against whom an action is 
     proposed to be taken under paragraph (1) is entitled to 
     written notice that--
       ``(i) states the specific reasons for the proposed action; 
     and
       ``(ii) informs the supervisor about the right of the 
     supervisor to review the material that constitutes the 
     factual support on which the proposed action is based.
       ``(B) Answer and evidence.--
       ``(i) In general.--A supervisor who receives notice under 
     subparagraph (A) may, not later than 14 days after receiving 
     the notice, submit an answer and furnish evidence in support 
     of that answer.
       ``(ii) No evidence furnished; insufficient evidence 
     furnished.--If, after the end of the 14-day period described 
     in clause (i), a supervisor does not furnish any evidence as 
     described in that clause, or if the head of the agency in 
     which the supervisor is employed determines that the evidence 
     furnished by the supervisor is insufficient, the head of the 
     agency shall carry out the action proposed under subparagraph 
     (A) or (B) of paragraph (1).
       ``(C) Scope of procedures.--An action carried out under 
     this section--
       ``(i) except as provided in clause (ii), shall be subject 
     to the same requirements and procedures, including those with 
     respect to an appeal, as an action under section 7503, 7513, 
     or 7543; and
       ``(ii) shall not be subject to--

       ``(I) paragraphs (1) and (2) of section 7503(b);
       ``(II) paragraphs (1) and (2) of subsection (b) and 
     subsection (c) of section 7513; and
       ``(III) paragraphs (1) and (2) of subsection (b) and 
     subsection (c) of section 7543.

       ``(3) Non-delegation.--If the head of an agency is 
     responsible for determining whether a supervisor has 
     committed a prohibited personnel action for purposes of 
     paragraph (1), the head of the agency may not delegate that 
     responsibility.''.
       (b) Technical and Conforming Amendment.--The table of 
     sections for subchapter II of chapter 75 of title 5, United 
     States Code, is amended by inserting after the item relating 
     to section 7514 the following:

``7515. Discipline of supervisors based on retaliation against 
              whistleblowers.''.

     SEC. 8. TERMINATION OF CERTAIN INVESTIGATIONS BY THE OFFICE 
                   OF SPECIAL COUNSEL.

       Section 1214(a) of title 5, United States Code, is amended 
     by adding at the end the following:
       ``(6)(A) Notwithstanding any other provision of this 
     section, not later than 30 days after receiving an allegation 
     of a prohibited personnel practice under paragraph (1), the 
     Special Counsel may terminate an investigation of the 
     allegation without further inquiry if the Special Counsel 
     determines that--
       ``(i) the same allegation, based on the same set of facts 
     and circumstances had previously been--
       ``(I)(aa) made by the individual; and
       ``(bb) investigated by the Special Counsel; or
       ``(II) filed by the individual with the Merit Systems 
     Protection Board;
       ``(ii) the Special Counsel does not have jurisdiction to 
     investigate the allegation; or
       ``(iii) the individual knew or should have known of the 
     alleged prohibited personnel practice on or before the date 
     that is 3 years before the date on which the Special Counsel 
     received the allegation.
       ``(B) Not later than 30 days after the date on which the 
     Special Counsel terminates an investigation under 
     subparagraph (A), the Special Counsel shall provide a written 
     notification to the individual who submitted the allegation 
     of a prohibited personnel practice that states the basis of 
     the Special Counsel for terminating the investigation.''.

     SEC. 9. ALLEGATIONS OF WRONGDOING WITHIN THE OFFICE OF 
                   SPECIAL COUNSEL.

       Section 1212 of title 5, United States Code, is amended by 
     adding at the end the following:
       ``(i) The Special Counsel shall enter into at least one 
     agreement with the Inspector General of an agency under 
     which--
       ``(1) the Inspector General shall--
       ``(A) receive, review, and investigate allegations of 
     prohibited personnel practices or wrongdoing filed by 
     employees of the Office of Special Counsel; and
       ``(B) develop a method for an employee of the Office of 
     Special Counsel to directly communicate with the Inspector 
     General; and
       ``(2) the Special Counsel--
       ``(A) may not require an employee of the Office of Special 
     Counsel to seek authorization or approval before directly 
     contacting the Inspector General in accordance with the 
     agreement; and
       ``(B) may reimburse the Inspector General for services 
     provided under the agreement.''.

     SEC. 10. REPORTING REQUIREMENTS.

       (a) Annual Report.--Section 1218 of title 5, United States 
     Code, is amended to read as follows:

     ``Sec. 1218. Annual report

       ``The Special Counsel shall submit to Congress, on an 
     annual basis, a report on the activities of the Special 
     Counsel, which shall include, for the year preceding the 
     submission of the report--
       ``(1) the number, types, and disposition of allegations of 
     prohibited personnel practices filed with the Special Counsel 
     and the costs of resolving such allegations;
       ``(2) the number of investigations conducted by the Special 
     Counsel;
       ``(3) the number of stays and disciplinary actions 
     negotiated with agencies by the Special Counsel;
       ``(4) the number of subpoenas issued by the Special 
     Counsel;
       ``(5) the number of instances in which the Special Counsel 
     reopened an investigation after the Special Counsel had made 
     an initial determination with respect to the investigation;
       ``(6) the actions that resulted from reopening 
     investigations, as described in paragraph (5);
       ``(7) the number of instances in which the Special Counsel 
     did not make a determination before the end of the 240-day 
     period described in section 1214(b)(2)(A)(i) regarding 
     whether there were reasonable grounds to believe that a 
     prohibited personnel practice had occurred, existed, or was 
     to be taken;
       ``(8) a description of the recommendations and reports made 
     by the Special Counsel to other agencies under this 
     subchapter and the actions taken by the agencies as a result 
     of the recommendations or reports;
       ``(9) the number of--
       ``(A) actions initiated before the Merit Systems Protection 
     Board, including the number of corrective action petitions 
     and disciplinary action complaints initiated; and
       ``(B) stays and extensions of stays obtained from the Merit 
     Systems Protection Board;
       ``(10) the number of prohibited personnel practice 
     complaints that resulted in a favorable action for the 
     complainant, other than a stay or an extension of a stay, 
     organized by actions in--
       ``(A) complaints dealing with reprisals against 
     whistleblowers; and
       ``(B) all other complaints; and

[[Page 12478]]

       ``(11) the number of prohibited personnel practice 
     complaints that were resolved by an agreement between an 
     agency and an individual, organized by agency and agency 
     components, in--
       ``(A) complaints dealing with reprisals against 
     whistleblowers; and
       ``(B) all other complaints;
       ``(12) the number of corrective actions that the Special 
     Counsel required an agency to take after a finding by the 
     Special Counsel of a prohibited personnel practice, as 
     defined in section 2302(a)(1); and
       ``(13) the results for the Office of Special Counsel of any 
     employee viewpoint survey conducted by the Office of 
     Personnel Management or any other agency.''.
       (b) Public Information.--Section 1219(a)(1) of title 5, 
     United States Code, is amended to read as follows:
       ``(1) a list of any noncriminal matters referred to the 
     head of an agency under section 1213(c), together with--
       ``(A) a copy of the information transmitted to the head of 
     the agency under section 1213(c)(1);
       ``(B) any report from the agency under section 
     1213(c)(1)(B) relating to the matter;
       ``(C) if appropriate, not otherwise prohibited by law, and 
     consented to by the complainant, any comments from the 
     complainant under section 1213(e)(1) relating to the matter; 
     and
       ``(D) the comments or recommendations of the Special 
     Counsel under paragraph (3) or (4) of section 1213(e);''.
       (c) Notice of Complaint Settlements.--Section 1217 of title 
     5, United States Code, is amended--
       (1) by striking ``The Special Counsel'' and inserting:
       ``(a) In General.--The Special Counsel''; and
       (2) by adding at the end the following:
       ``(b) Additional Report Required.--
       ``(1) In general.--If an allegation submitted to the 
     Special Counsel is resolved by an agreement between an agency 
     and an individual, the Special Counsel shall submit to 
     Congress and each congressional committee with jurisdiction 
     over the agency a report regarding the agreement.
       ``(2) Contents.--The report required under paragraph (1) 
     shall identify, with respect to an agreement described in 
     that paragraph--
       ``(A) the agency that entered into the agreement;
       ``(B) the position and employment location of the employee 
     who submitted the allegation that formed the basis of the 
     agreement;
       ``(C) the position and employment location of any employee 
     alleged by an employee described in subparagraph (B) to have 
     committed a prohibited personnel practice, as defined in 
     section 2302(a)(1);
       ``(D) a description of the allegation described in 
     subparagraph (B); and
       ``(E) whether the agency that entered into the agreement 
     has agreed to pursue any disciplinary action as a result of 
     the allegation described in subparagraph (B).''.

     SEC. 11. ESTABLISHMENT OF SURVEY PILOT PROGRAM.

       (a) In General.--The Office of Special Counsel shall design 
     and establish a pilot program under which the Office shall 
     conduct, during the first full fiscal year after the date of 
     enactment of this Act, a survey of individuals who have filed 
     a complaint or disclosure with the Office.
       (b) Purpose.--The survey under subsection (a) shall be 
     designed for the purpose of collecting information and 
     improving service at various stages of a review or 
     investigation by the Office of Special Counsel.
       (c) Results.--The results of the survey under subsection 
     (a) shall be published in the annual report of the Office of 
     Special Counsel.
       (d) Suspension of Other Surveys.--During the period 
     beginning on October 1, 2017, and ending on September 30, 
     2018, section 13 of the Act entitled ``An Act to reauthorize 
     the Office of Special Counsel, and for other purposes'', 
     approved October 29, 1994 (5 U.S.C. 1212 note), shall have no 
     force or effect.

     SEC. 12. REGULATIONS.

       (a) In General.--Not later than 2 years after the date of 
     enactment of this Act, the Special Counsel shall prescribe 
     such regulations as may be necessary to perform--
       (1) the functions of the Special Counsel under subchapter 
     II of chapter 12 of title 5, United States Code, including 
     regulations that are necessary to carry out sections 1213, 
     1214, and 1215 of that title; and
       (2) any functions of the Special Counsel that are required 
     because of the amendments made by this Act.
       (b) Publication.--Any regulations prescribed under 
     subsection (a) shall be published in the Federal Register.

     SEC. 13. AUTHORIZATION OF APPROPRIATIONS.

       (a) In General.--Section 8(a)(2) of the Whistleblower 
     Protection Act of 1989 (5 U.S.C. 5509 note) is amended by 
     striking ``2003, 2004, 2005, 2006, and 2007'' and inserting 
     ``2017 through 2022''.
       (b) Effective Date.--The amendment made by subsection (a) 
     shall take effect as though enacted on September 30, 2015.

     SEC. 14. TECHNICAL AMENDMENT.

       Section 1214(b)(1)(B)(ii) of title 5, United States Code, 
     as amended by section 1 of the Act entitled ``An Act to amend 
     section 1214 of title 5, United States Code, to provide for 
     stays during a period that the Merit Systems Protection Board 
     lacks a quorum.'' (S. 1083, 115th Congress, 1st Session), is 
     amended by striking ``who was appointed, by and with the 
     advice and consent of the Senate,''.

     

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