[Senate Report 115-346]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 629
115th Congress         }                        {           Report
                                 SENATE
  2d Session           }                        {            115-346                           
_______________________________________________________________________



                 TO AMEND TITLE 5, UNITED STATES CODE,

 TO ALLOW WHISTLEBLOWERS TO DISCLOSE INFORMATION TO CERTAIN RECIPIENTS

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                               H.R. 2196
                               
                               
                               
                               
                               
                               


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]









                October 11, 2018.--Ordered to be printed
                                   ______

                         U.S. GOVERNMENT PUBLISHING OFFICE 

89-010                         WASHINGTON : 2018






                
                
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona                 CLAIRE McCASKILL, Missouri
ROB PORTMAN, Ohio                    THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky                  HEIDI HEITKAMP, North Dakota
JAMES LANKFORD, Oklahoma             GARY C. PETERS, Michigan
MICHAEL B. ENZI, Wyoming             MAGGIE HASSAN, New Hampshire
JOHN HOEVEN, North Dakota            KAMALA D. HARRIS, California
STEVE DAINES, Montana                DOUG JONES, Alabama

                  Christopher R. Hixon, Staff Director
                Gabrielle D'Adamo Singer, Chief Counsel
    Courtney J. Allen, Deputy Chief Counsel for Governmental Affairs
               Margaret E. Daum, Minority Staff Director
       Charles A. Moskowitz, Minority Senior Legislative Counsel
                 Katherine C. Sybenga, Minority Counsel
                     Laura W. Kilbride, Chief Clerk











                                                       Calendar No. 629
115th Congress         }                        {           Report
                                 SENATE
  2d Session           }                        {            115-346                           
                                                    
======================================================================



 
   TO AMEND TITLE 5, UNITED STATES CODE, TO ALLOW WHISTLEBLOWERS TO 
               DISCLOSE INFORMATION TO CERTAIN RECIPIENTS

                                _______
                                

                October 11, 2018.--Ordered to be printed

                                _______
                                

 Mr. Johnson, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                        [To accompany H.R. 2196]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (H.R. 2196) to amend 
title 5, United States Code, to allow whistleblowers to 
disclose information to certain recipients, having considered 
the same, reports favorably thereon without amendment and 
recommends that the bill do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................1
III. Legislative History..............................................2
 IV. Section-by-Section Analysis......................................2
  V. Evaluation of Regulatory Impact..................................3
 VI. Congressional Budget Office Cost Estimate........................3
VII. Changes in Existing Law Made by the Act, as Reported.............4

                         I. Purpose and Summary

    The purpose of H.R. 2196 is to add a Federal employee's 
supervisor and chain-of-command to the list of individuals that 
he or she is legally permitted to make protected disclosures to 
under Federal whistleblower law.

              II. Background and the Need for Legislation

    Federal law protects Federal employees from being 
retaliated against for blowing the whistle on waste, fraud, or 
abuse in the Federal Government or for reporting violations of 
law, rule, or regulation.\1\ Current law requires that, to be 
protected from retaliation, such disclosures be made to the 
Office of Special Counsel, an Inspector General of an agency, 
or ``another employee designated by the head of the agency to 
receive such disclosures.''\2\
---------------------------------------------------------------------------
    \1\5 U.S.C. Sec. 2302(b)(8).
    \2\5 U.S.C. Sec. 2302(b)(8)(B). See also Civil Service Reform Act 
of 1978, Pub. L. No. 95-454, 92 Stat. 1111, 1116 (1978).
---------------------------------------------------------------------------
    Federal whistleblower protection laws for the intelligence 
community and the Federal Bureau of Investigation (FBI) also 
permit protected disclosures to be made to an employee's 
supervisor. In 2012, President Barack Obama issued Presidential 
Policy Directive 19 (PPD-19), which provided whistleblower 
protections for disclosures of waste, fraud, and abuse, for 
employees serving in the intelligence community or for 
employees making disclosures concerning classified 
information.\3\ PPD-19 includes ``a supervisor in the 
employee's direct chain of command up to and including the head 
of the employing agency'' in its definition of a ``protected 
disclosure'' for which an employee would be protected against 
retaliation.\4\ The Federal Bureau of Investigation 
Whistleblower Protection Enhancement Act of 2016 included 
identical language to protect disclosures made by employees to 
their supervisors.\5\
---------------------------------------------------------------------------
    \3\President Barack Obama, Presidential Policy Directive 19/PPD-19 
(Oct. 10, 2012).
    \4\Id.
    \5\Federal Bureau of Investigation Whistleblower Protection 
Enhancement Act of 2016, Pub. L. No. 114-302, 130 Stat. 1516 (2016).
---------------------------------------------------------------------------
    H.R. 2196 would ensure other Federal employees have the 
same protections from retaliation to make disclosures as 
intelligence community and FBI employees do by permitting 
disclosures of waste, fraud, abuse, or violations of law, rule, 
or regulation to a supervisor in their direct chain of command.

                        III. Legislative History

    H.R. 2196 was introduced on April 27, 2017, by 
Representatives Steve Russell (R-OK-5), Elijah Cummings (D-MD-
7), and Stephen Lynch (D-MA-8). Representative Blake Farenthold 
(R-TX-27) was added as a co-sponsor to the Act on May 2, 2017. 
The Act was passed by the House of Representatives on October 
11, 2017, by voice vote. The Act was received in the Senate and 
referred to the Committee on Homeland Security and Governmental 
Affairs on October 16, 2017.
    The Committee considered H.R. 2196 at a business meeting on 
September 27, 2018. The legislation was passed by voice vote en 
bloc with Senators Johnson, Portman, Lankford, Enzi, Hoeven, 
Daines, McCaskill, Heitkamp, Peters, Hassan, Harris, and Jones 
present.

        IV. Section-by-Section Analysis of the Act, as Reported


Section 1. Recipients of whistleblower disclosures

    This section adds ``a supervisor in the employee's direct 
chain of command up to and including the head of the employing 
agency'' to the list of individuals to which a Federal employee 
may make a protected disclosure.

                   V. Evaluation of Regulatory Impact

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this Act and determined 
that the Act will have no regulatory impact within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's statement that the Act contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.

             VI. Congressional Budget Office Cost Estimate

                                                   October 3, 2018.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2196, an act to 
amend title 5, United States Code, to allow whistleblowers to 
disclose information to certain recipients.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

H.R. 2196--An act to amend title 5, United States Code, to allow 
        whistleblowers to disclose information to certain recipients

    H.R. 2196 would amend the Whistleblower Protection Act 
(WPA) to extend protections to disclosures of classified 
information to any supervisor in an employee's chain of 
command. Under current law, only disclosures to a direct 
supervisor are protected.
    The Merit Systems Protection Board (MSPB) hears claims 
against federal agencies brought by whistleblowers. Expanding 
the scope of the protections to include additional supervisors 
could increase the number of such hearings and any related 
costs (such as those related to job restoration, back pay, 
reimbursement of attorneys' fees, and medical costs). However, 
based on information from the MSPB and the Office of Special 
Counsel about the likely number of additional cases under the 
act, CBO expects that additional cases dealing with disclosures 
of classified information would be very limited in number. 
Thus, CBO estimates that implementing H.R. 2196 would have no 
significant cost.
    Enacting the legislation could affect direct spending by 
agencies not funded through annual appropriations; therefore, 
pay-as-you-go procedures apply. However, CBO estimates that any 
net increase in spending by those agencies would be negligible. 
Enacting H.R. 2196 would not affect revenues.
    CBO estimates that enacting H.R. 2196 would not increase 
net direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2029.
    H.R. 2196 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    On May 22, 2017, CBO transmitted a cost estimate for H.R. 
2196, as ordered reported by the House Committee on Oversight 
and Government Reform on May 2, 2017. The two versions of the 
legislation are similar and the estimated budgetary effects are 
the same.
    The CBO staff contact for this estimate is Matthew 
Pickford. The estimate was approved by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.

       VII. Changes in Existing Law Made by the Act, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the Act, as reported, are shown as follows: (existing law 
proposed to be omitted is enclosed in brackets, new matter is 
printed in italic, and existing law in which no change is 
proposed is shown in roman):

UNITED STATES CODE

           *       *       *       *       *       *       *


TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES

           *       *       *       *       *       *       *


PART III--EMPLOYEES

           *       *       *       *       *       *       *


Subpart A--General Provisions

           *       *       *       *       *       *       *


CHAPTER 23--MERIT SYSTEM PRINCIPLES

           *       *       *       *       *       *       *



SEC. 2302. PROHIBITED PERSONNEL PRACTICES.

    (a) * * *
    (b) * * *
          (1) * * *

           *       *       *       *       *       *       *

          (8) * * *
                  (A) * * *
                  (B) any disclosure to the Special Counsel, 
                [or to the Inspector General of an agency or 
                another employee designated by the head of the 
                agency to receive such disclosures] the 
                Inspector General of an agency, a supervisor in 
                the employee's direct chain of command up to 
                and including the head of the employing agency, 
                or to an employee designated by any of the 
                aforementioned individuals for the purpose of 
                receiving such disclosures, of information 
                which the employee or applicant reasonably 
                believes evidences--

           *       *       *       *       *       *       *


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