[Federal Register Volume 73, Number 6 (Wednesday, January 9, 2008)]
[Rules and Regulations]
[Pages 1493-1495]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 08-7]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

28 CFR Parts 0 and 27

[Docket No. OAG 120; A.G. Order No. 2926-2008]


Technical Amendments to the Regulations Providing Whistleblower 
Protection for Federal Bureau of Investigation Employees

AGENCY: Office of the Inspector General and Office of Attorney 
Recruitment and Management, Justice.

ACTION:  Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule makes several technical amendments to the Department 
of Justice regulations that provide whistleblower protection for 
Federal Bureau of Investigation (FBI) employees.

DATES: Effective Date: January 9, 2008.

FOR FURTHER INFORMATION CONTACT:  Louis DeFalaise, Director, Office of 
Attorney Recruitment and Management, U.S. Department of Justice, 
Washington, DC 20530, (202) 514-8900.

SUPPLEMENTARY INFORMATION:  This rule makes four technical amendments 
to relevant portions of the Department of Justice regulations that 
provide whistleblower protections to FBI employees under 28 CFR parts 0 
and 27. Three of the amendments are made so that the provisions conform 
with the organizational changes brought about by a restructuring of the 
FBI's Office of Professional Responsibility (FBI-OPR) in 2004, whereby 
FBI-OPR's investigatory function was moved to the FBI's Inspection 
Division (FBI-INSD) and FBI-OPR retained its adjudicatory role. The 
fourth change is made to conform the regulations with the implementing 
statute.
    First, ``the FBI Inspection Division (FBI-INSD) Internal 
Investigations Section,'' is added to the list of offices designated to 
receive a ``protected'' disclosure in 28 CFR 27.1(a) because that is 
the office now responsible for investigating and most likely to receive 
allegations of misconduct internal to the FBI.

[[Page 1494]]

    Second, as presently worded, 28 CFR 27.1(b) provides that the 
Department's Office of Inspector General (OIG) or Office of 
Professional Responsibility (OPR) may refer whistleblower disclosures 
to FBI-OPR for investigation unless the Deputy Attorney General 
determines that such referral shall not be made. To reflect the current 
assignment of responsibility, ``FBI-OPR'' in Sec.  27.1(b) is changed 
to ``FBI-INSD Internal Investigations Section.''
    Third, like Sec.  27.1(b), 28 CFR 0.29d(a) provides that OIG or 
DOJ-OPR may refer whistleblower disclosures to FBI-OPR for 
investigation unless the Deputy Attorney General determines that such 
referral shall not be made. ``FBI-OPR'' in Sec.  0.29d(a) is changed to 
``FBI Inspection Division (FBI-INSD) Internal Investigations 
Sections.''
    Finally, this rule also makes a technical correction to 28 CFR 
27.4(e)(1), so that the ``contributing factor'' standard in that 
provision is consistent with 5 U.S.C. 1221(e)(1), in accordance with 
Congress' directive in 5 U.S.C. 2303(c) that ``[p]rohibited personnel 
practices in the [FBI]'' be enforced ``in a manner consistent with 
applicable provisions of [5 U.S.C.] sections 1214 and 1221.'' Section 
1221(e)(1) provides, in relevant part:

    [T]he Board shall order * * * corrective action as the Board 
considers appropriate if the employee, former employee, or applicant 
for employment has demonstrated that a disclosure described under 
section 2302(b)(8) was a contributing factor in the personnel action 
which was taken or is to be taken against such employee, former 
employee, or applicant. The employee may demonstrate that the 
disclosure was a contributing factor in the personnel action through 
circumstantial evidence, such as evidence that--
    (A) the official taking the personnel action knew of the 
disclosure; and (B) the personnel action occurred within a period of 
time such that a reasonable person could conclude that the 
disclosure was a contributing factor in the personnel action.

The rule will change the third ``or'' in Sec.  27.4(e)(1) to ``and'' in 
order to track this statutory language.

Administrative Procedure Act

    This rule relates to matters of agency personnel, organization, and 
procedure, and is therefore exempt from the requirements of notice and 
comment and a 30-day delay in the effective date of 5 U.S.C. 553(a)(2), 
(b)(3)(A), (d)(3).

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act, 5 U.S.C. 605(b), has reviewed this rule and, by approving it, 
certifies that this regulation will not have a significant economic 
impact on a substantial number of small entities because it pertains to 
personnel and administrative matters affecting the Department.

Executive Order 12866

    This rule has been drafted and reviewed in accordance with 
Executive Order 12866, Regulatory Planning and Review, section 1(b), 
Principles of Regulation. The Department has determined that this rule 
is not a ``significant regulatory action'' under Executive Order 12866, 
section 3(f), and accordingly this rule has not been reviewed by the 
Office of Management and Budget.

Executive Order 12988

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988, Civil Justice Reform.

Executive Order 13132

    This rule will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with Executive Order 
13132, Federalism, the Department has determined that this rule does 
not have sufficient federalism implications to warrant the preparation 
of a federal summary impact statement.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal government, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions are necessary 
under the provisions of the Unfunded Mandates Reform Act of 1995, 2 
U.S.C. 1501 et seq.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a ``major rule'' as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 
804. This rule will not result in an annual effect on the economy of 
$100 million or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or the ability of the United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.
    This action pertains to agency personnel, organization, and 
procedure and does not substantially affect the rights or obligations 
of non-agency parties. Accordingly it is not a ``rule'' for the 
purposes of the reporting requirement of 5 U.S.C. 801.

Congressional Review Act

    The Department has determined that this action pertains to agency 
personnel, organization, and procedure and, accordingly, is not a 
``rule'' as that term is used by the Congressional Review Act (Subtitle 
E of the Small Business Regulatory Enforcement Fairness Act of 1996). 
Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

List of Subjects in 28 CFR Parts 0 and 27

    Government employees; Justice Department; Organization and 
functions (Government agencies); Whistleblowing.

0
Accordingly, by virtue of the authority vested in me as Attorney 
General, including 5 U.S.C. 301 and 28 U.S.C. 509 and 510, parts 0 and 
27 of title 28 of the Code of Federal Regulations are amended as 
follows:

PART 0--ORGANIZATION OF THE DEPARTMENT OF JUSTICE

0
1. The authority for citation for part 0 continues to read as follows:

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.

Subpart E-4--Office of the Inspector General

0
2. Revise paragraph (a) of Sec.  0.29d to read as follows:


Sec.  0.29d  Whistleblower Protection for FBI employees.

    (a) Protected disclosures by FBI employees. Disclosures of 
information by an FBI employee that the employee reasonably believes 
evidences a violation of any law, rule, or regulation, or 
mismanagement, gross waste of funds, an abuse of authority, or a 
substantial and specific danger to public health or safety are 
protected disclosures when they are reported as provided in Sec.  27.1 
of this chapter. Any office or official (other than the OIG or DOJ-OPR) 
receiving a protected disclosure shall promptly report such disclosure 
to the OIG or DOJ-OPR. The OIG or DOJ-OPR may refer such allegations to 
FBI Inspection Division (FBI-INSD) Internal Investigations Section for 
investigation unless the Deputy Attorney General determines that such 
referral shall not be made.
* * * * *

[[Page 1495]]

PART 27--WHISTLEBLOWER PROTECTION FOR FEDERAL BUREAU OF 
INVESTIGATION EMPLOYEES

0
3. The authority for citation for part 27 continues to read as follows:

    Authority: 5 U.S.C. 301, 3151; 28 U.S.C. 509, 510, 515-519; 5 
U.S.C. 2303; President's Memorandum to the Attorney General, 
Delegation of Responsibilities Concerning FBI Employees Under the 
Civil Service Reform Act of 1978, 3 CFR p. 284 (1997).


0
4. Revise Sec.  27.1 to read as follows:


Sec.  27.1  Making a protected disclosure.

    (a) When an employee of, or applicant for employment with, the 
Federal Bureau of Investigation (FBI) (FBI employee) makes a disclosure 
of information to the Department of Justice's (Department's) Office of 
Professional Responsibility (OPR), the Department's Office of Inspector 
General (OIG), the FBI Office of Professional Responsibility (FBI OPR), 
the FBI Inspection Division (FBI-INSD) Internal Investigations Section 
(collectively, Receiving Offices), the Attorney General, the Deputy 
Attorney General, the Director of the FBI, the Deputy Director of the 
FBI, or to the highest ranking official in any FBI field office, the 
disclosure will be a ``protected disclosure'' if the person making it 
reasonably believes that it evidences:
    (1) A violation of any law, rule or regulation; or
    (2) Mismanagement, a gross waste of funds, an abuse of authority, 
or a substantial and specific danger to public health or safety.
    (b) Any office or official (other than the OIG or OPR) receiving a 
protected disclosure shall promptly report such disclosure to the OIG 
or OPR for investigation. The OIG and OPR shall proceed in accordance 
with procedures establishing their respective jurisdiction. The OIG or 
OPR may refer such allegations to FBI-INSD Internal Investigations 
Section for investigation unless the Deputy Attorney General determines 
that such referral shall not be made.

0
5. Revise paragraph (e)(1) of Sec.  27.4 to read as follows:


Sec.  27.4  Corrective action and other relief; Director, Office of 
Attorney Recruitment and Management.

* * * * *
    (e)(1) The Director shall determine, based upon all the evidence, 
whether a protected disclosure was a contributing factor in a personnel 
action taken or to be taken. Subject to paragraph (e)(2) of this 
section, if the Director determines that a protected disclosure was a 
contributing factor in a personnel action taken or to be taken, the 
Director shall order corrective action as the Director deems 
appropriate. The Director may conclude that the disclosure was a 
contributing factor in the personnel action based upon circumstantial 
evidence, such as evidence that the employee taking the personnel 
action knew of the disclosure and that the personnel action occurred 
within a period of time such that a reasonable person could conclude 
that the disclosure was a contributing factor in the personnel action.
* * * * *

    Dated: December 28, 2007.
Michael B. Mukasey,
Attorney General.
[FR Doc. 08-7 Filed 1-8-08; 8:45 am]
BILLING CODE 4410-PB-M