[Federal Register Volume 88, Number 60 (Wednesday, March 29, 2023)]
[Proposed Rules]
[Pages 18487-18496]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-05927]


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DEPARTMENT OF JUSTICE

28 CFR Parts 0 and 27

[Docket No. JMD 154; AG Order No. 5618-2023]
RIN 1105-AB47


Whistleblower Protection for Federal Bureau of Investigation 
Employees

AGENCY: Department of Justice.

ACTION: Notice of proposed rulemaking; request for comments.

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SUMMARY: The Department of Justice (``Department'') proposes to update 
its regulations on the protection of whistleblowers in the Federal 
Bureau of Investigation (``FBI''). This update reflects changes 
resulting from an assessment conducted by the Department in response to 
Presidential Policy Directive-19 of October 10, 2012, ``Protecting 
Whistleblowers with Access to Classified Information'' (``PPD-19''), 
and the Federal Bureau of Investigation Whistleblower Protection 
Enhancement Act of 2016 (``FBI WPEA of 2016''). The proposed changes 
include updating the description of protected whistleblower disclosures 
and covered personnel actions to conform to the FBI WPEA of 2016; 
providing for more equal access to witnesses; and specifying that 
compensatory damages may be awarded as appropriate. The proposed 
changes also include new provisions to formalize practices that have 
been implemented informally, including providing for the use of 
acknowledgement and show-cause orders, providing access to alternative 
dispute resolution through the Department's FBI Whistleblower Mediation 
Program, clarifying the authority to adjudicate allegations of a breach 
of a settlement agreement, and reporting information about those 
responsible for unlawful reprisals. The proposed regulation reiterates 
that the determinations by the Director of the Office of Attorney 
Recruitment and Management (``OARM'') must be independent and 
impartial. Finally, through this proposed rule, the Department is 
inviting specific comments on and recommendations for

[[Page 18488]]

how the Department might further revise the regulations to increase 
fairness, effectiveness, efficiency, and transparency, including to 
provide enhanced protections for whistleblowers, in addition to the 
proposed changes identified above.

DATES: Written comments and related material must be postmarked, and 
other comments and related material must be submitted, on or before May 
30, 2023. You should be aware that the Federal eRulemaking Portal will 
accept comments submitted prior to midnight Eastern Time on the last 
day of the comment period.

ADDRESSES: You should submit comments identified by docket number using 
any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov;
    (2) Mail or Delivery: Morton J. Posner, General Counsel, Justice 
Management Division, U.S. Department of Justice, 145 N St. NE, Suite 
8E.500, Washington, DC 20530.

FOR FURTHER INFORMATION CONTACT: Morton J. Posner, General Counsel, 
Justice Management Division, telephone 202-514-34; or Hilary S. 
Delaney, Assistant Director, Office of Attorney Recruitment and 
Management, telephone 202-532-3188; email: [email protected] or 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials, if any. All comments received will be 
posted without change to http://www.regulations.gov and will include 
any personal information you have provided.

A. Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking, indicate the specific section of this document to which 
each comment applies, and provide a reason for each suggestion or 
recommendation. You may submit your comments and material online at 
http://www.regulations.gov or by email, mail, or hand delivery, but 
please use only one of these means. If you submit a comment online, it 
will be considered received by the Department when you successfully 
transmit the comment. The Department recommends that you include your 
name and a mailing address, an email address, or a telephone number in 
the body of your document.
    To submit your comment online, go to http://www.regulations.gov, 
type the docket number ``JMD 154'' in the ``SEARCH'' box, and click 
``SEARCH.'' Click on ``Submit a Comment'' on the line associated with 
this rulemaking.

B. Posting of Public Comments

    Please note that all comments received are considered part of the 
public record and made available for public inspection online at http://www.regulations.gov. Such information includes personal identifying 
information (such as your name and address) that you voluntarily 
submit, unless the process described below is followed.
    You are not required to submit personal identifying information in 
order to comment on this rule. Nevertheless, if you want to submit 
personal identifying information (such as your name and address) as 
part of your comment, but do not want it to be posted online, you must 
include the phrase ``PERSONAL IDENTIFYING INFORMATION'' in the first 
paragraph of your comment. You also must place all the personal 
identifying information you do not want posted online in the first 
paragraph of your comment and identify what information you want 
redacted.
    If you want to submit confidential business information as part of 
your comment but do not want it to be posted online, you must include 
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph 
of your comment. You also must prominently identify confidential 
business information to be redacted within the comment. If a comment 
has so much confidential business information that it cannot be 
effectively redacted, the Department may make the determination not to 
post all or part of that comment on http://www.regulations.gov.
    Personal identifying information and confidential business 
information identified and located as set forth above will be placed in 
the agency's public docket file but not posted online. If you wish to 
inspect the agency's public docket file in person by appointment, 
please see the paragraph above entitled FOR FURTHER INFORMATION 
CONTACT.

C. Viewing Comments and Documents

    To view comments, go to http://www.regulations.gov, type the docket 
number ``JMD-154'' in the ``SEARCH'' box, and click ``SEARCH.'' Click 
on ``Open Docket Folder'' on the line associated with this rulemaking.

D. Privacy Act

    Anyone can search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
the individual signing the comment if comments are submitted on behalf 
of an association, business, labor union, etc.).

II. Executive Summary

    On November 1, 1999, the Department issued a final rule entitled 
``Whistleblower Protection For Federal Bureau of Investigation 
Employees,'' published in the Federal Register at 64 FR 58782, 
establishing procedures under which (1) FBI employees or applicants for 
employment with the FBI may make disclosures of information protected 
by the Civil Service Reform Act of 1978, Public Law 95-454 (``CSRA''), 
and the Whistleblower Protection Act of 1989 (``WPA''), Public Law 101-
12; and (2) the Department will investigate allegations by FBI 
employees and applicants for employment of reprisal for making such 
protected disclosures and take appropriate corrective action. The rule 
is codified at 28 CFR part 27.
    On January 9, 2008, the Department updated part 27 as well as 28 
CFR 0.29d primarily to conform to organizational changes brought about 
by a restructuring of relevant offices of the FBI. Technical Amendments 
to the Regulations Providing Whistleblower Protection for Federal 
Bureau of Investigation Employees, 73 FR 1493.
    On October 10, 2012, President Barack Obama issued PPD-19, which, 
in part, directed that the Department prepare a report that (1) 
assesses the efficacy of the Department's FBI whistleblower protection 
regulations found in 28 CFR part 27 in deterring the personnel 
practices prohibited in 5 U.S.C. 2303, and in ensuring appropriate 
enforcement of section 2303, and (2) describes any proposed revisions 
to those regulations that would increase their effectiveness in 
fulfilling the purposes of section 2303. PPD-19 at 5.
    In response to this directive, the Office of the Deputy Attorney 
General conducted a comprehensive review of the Department's 
whistleblower regulations and historical experience with their 
operation.\1\ As part of that process, the Department formed a working 
group, seeking participation from the other key participants in

[[Page 18489]]

administering the Department's FBI whistleblower regulations--the FBI, 
OARM, the Office of the Inspector General, and the Office of 
Professional Responsibility--as well as the Justice Management 
Division. In addition, the Department consulted with the Office of 
Special Counsel (``OSC'') and FBI employees, as required by PPD-19. The 
Department also consulted with representatives of non-governmental 
organizations that support whistleblowers' rights and with private 
counsel for whistleblowers (collectively, whistleblower advocates).\2\
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    \1\ On November 27, 2012, President Obama signed the 
Whistleblower Protection Enhancement Act of 2012, Public Law 112-
199, (``WPEA of 2012''). The Department considered the WPEA of 2012 
as part of its PPD-19 review.
    \2\ The Department convened a meeting with the following 
whistleblower advocate organizations: Project on Government 
Oversight; Kohn, Kohn & Colapinto; Government Accountability 
Project; American Civil Liberties Union; and a former chief counsel 
to the chairman of the Merit Systems Protection Board.
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    With respect to consultation with FBI employees, the FBI's 
representatives on the Department's working group consulted with 
various FBI entities: the Ombudsman; the Office of Equal Employment 
Opportunity Affairs; the Office of Integrity and Compliance; the Office 
of Professional Responsibility; the Human Resources Division; and the 
Inspection Division. The representatives also solicited the views of 
each of the FBI's three official advisory committees that represent FBI 
employees--the All-Employees Advisory Committee, the Agents Committee, 
and the Middle-Management Committee.
    In April 2014, after completion of the PPD-19 review, the 
Department issued a report, ``Department of Justice Report on 
Regulations Protecting FBI Whistleblowers'' (``PPD-19 Report''). (A 
copy of this report is available at www.regulations.gov in connection 
with this rulemaking, or as provided above under the heading FOR 
FURTHER INFORMATION CONTACT.) The report considered the historical 
context of the Department's efforts to protect FBI whistleblowers from 
reprisal and the Department's current policies and procedures for 
adjudicating claims of reprisal against FBI whistleblowers; summarized 
and analyzed statistics regarding the use of these policies and 
procedures in recent years; and identified desired changes to existing 
policies and procedures as a result of this assessment.
    The Department's proposed rule reflects the PPD-19 Report's 
findings and recommendations, as modified to comply with the FBI WPEA 
of 2016, discussed in further detail below in this preamble, which 
President Obama signed on December 16, 2016. In addition, through this 
notice of proposed rulemaking, the Department is inviting specific 
comments on and recommendations for how the Department might further 
revise the regulations to increase fairness, effectiveness, efficiency, 
and transparency, including to provide enhanced protections for 
whistleblowers.

III. Historical Background on FBI Whistleblower Protection

    Legislative protection of civilian Federal whistleblowers from 
reprisal began in 1978 with passage of the CSRA, and was expanded by 
the WPA and the WPEA of 2012. Currently, Federal employees fall into 
three categories. Most civilian Federal employees are fully covered by 
the statutory regime established by the CSRA, which permits them to 
challenge alleged reprisals through the OSC and the Merit Systems 
Protection Board (``MSPB''). By contrast, some Federal agencies that 
deal with intelligence are expressly excluded from the whistleblower 
protection scheme established by these statutes.
    The FBI is in an intermediate position: Although it is one of the 
agencies expressly excluded from the scheme established for Federal 
employees generally, its employees nevertheless are protected by a 
separate statutory provision and special regulations promulgated 
pursuant to that provision, which forbid reprisals against FBI 
whistleblowers and provide an administrative remedy within the 
Department. See 28 CFR part 27.
    To elaborate, the CSRA sets forth ``prohibited personnel 
practices,'' which are a range of personnel actions that the Federal 
Government may not take against Federal employees. One such prohibited 
personnel practice is retaliating against an employee for revealing 
certain agency information. Specifically, the CSRA originally made it 
illegal for an agency to take or fail to take a personnel action with 
respect to any employee or applicant for employment as a reprisal for 
disclosure of information that the employee or applicant reasonably 
believed evidenced a violation of any law, rule, or regulation, or 
mismanagement, a gross waste of funds, an abuse of authority, or a 
substantial and specific danger to public health or safety. Public Law 
95-454, sec. 101(a), codified at 5 U.S.C. 2302(b)(8). The CSRA also 
created the MSPB and OSC to enforce the prohibitions on specified 
personnel practices.
    The CSRA, however, expressly excluded from this scheme the FBI, the 
Central Intelligence Agency, various intelligence elements of the 
Department of Defense, and any other executive agency or unit thereof 
as determined by the President with the principal function of 
conducting foreign intelligence or counterintelligence activities. 
Public Law 95-454, sec. 101(a), codified at 5 U.S.C. 2302(a)(2)(C)(ii).
    For the FBI alone, the CSRA specifically prohibited taking a 
personnel action against employees or applicants for employment as a 
reprisal for disclosing information that the employee or applicant 
reasonably believed evidenced a violation of any law, rule, or 
regulation, or mismanagement, a gross waste of funds, an abuse of 
authority, or a substantial and specific danger to public health or 
safety. Id., codified at 5 U.S.C. 2303(a)(1), (2). The CSRA defined a 
``personnel action'' for the purpose of the FBI-specific prohibition as 
any action specifically described in clauses (i) through (x) of 5 
U.S.C. 2302(a)(2)(A), taken with respect to an employee in--or an 
applicant for--a position other than one of a confidential, policy-
determining, policymaking, or policy-advocating character. Id., 
codified at 5 U.S.C. 2303(a). In addition, the CSRA limited the 
protection of the FBI-specific prohibition to only those disclosures 
that the FBI employee made through narrowly defined internal channels--
i.e., to the Attorney General or the Attorney General's designee. Id. 
Finally, the CSRA directed the President to provide for the enforcement 
of the provision relating to FBI whistleblowers in a manner consistent 
with applicable provisions of 5 U.S.C. 1206, the section of the CSRA 
that originally set out the responsibilities of the OSC, the MSPB, and 
agency heads in response to a whistleblower complaint and provided for 
various remedies. Id., codified at 5 U.S.C. 2303(c).
    In April 1980, the Department published a final rule implementing 
section 2303. The rule provided, among other things, for a stay of any 
personnel action if there were reasonable grounds to believe that the 
personnel action was taken, or was to be taken, as a reprisal for a 
disclosure of information by the employee to the Attorney General or 
the Attorney General's designee that the employee reasonably believed 
evidenced wrongdoing covered by section 2303. Office of Professional 
Responsibility; Protection of Department of Justice Whistleblowers, 45 
FR 27754, 27755 (Apr. 24, 1980).
    In 1989, the statutory scheme for most civilian employees changed 
in some respects when Congress passed the WPA, which significantly 
expanded the avenues of redress generally available to

[[Page 18490]]

civilian Federal employees. In doing so, it replaced section 1206 with 
sections 1214 and 1221; these new sections set forth the procedures 
under which OSC would investigate prohibited personnel practices and 
recommend or seek corrective action, and the circumstances under which 
an individual right of action before the MSPB would be available. 
Public Law 101-12, sec. 3. Consistent with this change, the WPA amended 
section 2303, governing FBI whistleblowers, to replace the requirement 
that enforcement of whistleblower protections be consistent with 
applicable provisions of section 1206 with a requirement that 
enforcement be consistent with applicable provisions of newly-added 
sections 1214 and 1221. Public Law 101-12, sec. 9(a)(1).
    The WPA also amended the regime generally applicable to civil 
service employees by revising section 2302 to protect only disclosures 
of information the employee reasonably believes evidences ``gross 
mismanagement,'' rather than ``mismanagement,'' as originally provided 
by the CSRA. Pub. L. 101-12, sec. 4(a). However, the WPA did not make a 
corresponding change to section 2303, the statute applicable to FBI 
whistleblowers.
    On April 14, 1997, President William J. Clinton issued a memorandum 
delegating to the Attorney General the functions concerning employees 
of the FBI vested in the President by the CSRA, and directing the 
Attorney General to establish appropriate processes within the 
Department to carry out these functions. Delegation of Responsibilities 
Concerning FBI Employees Under the Civil Service Reform Act of 1978, 62 
FR 23123 (Apr. 28, 1997). In November 1999, the Department published a 
final rule establishing procedures under which FBI employees or 
applicants for employment may make disclosures of wrongdoing. 64 FR 
58782 (Nov. 1, 1991). The rule created a remedial scheme within the 
Department through which FBI employees can seek redress when they 
believe they have suffered reprisal for making a protected disclosure. 
Subject to minor amendments in 2001 and 2008, the rule, codified at 28 
CFR part 27, remains in force.
    On November 27, 2012, the month following President Obama's 
issuance of PPD-19, he signed the WPEA of 2012 into law. That act, 
among other things, amended 5 U.S.C. 1214 and 5 U.S.C. 1221 to 
authorize awards of compensatory damages. Although the FBI is expressly 
excluded from coverage under these statutory provisions and is instead 
covered by 5 U.S.C. 2303, section 2303 directs that the President 
ensure enforcement of section 2303 in a ``manner consistent with the 
applicable provisions of sections 1214 and 1221.'' 5 U.S.C. 2303(c). 
The WPEA of 2012 also expanded the number of prohibited personnel 
actions set out in section 2302(a)(2), but made no corresponding change 
to the cross-reference in section 2303(a). Accordingly, the Department 
has considered the WPEA of 2012's changes to sections 1214, 1221, and 
2302(a) and their impact on the FBI's whistleblower protection program 
under section 2303 and has concluded that corresponding technical 
amendments to the current regulations are appropriate, as described 
further below.
    On December 16, 2016, President Obama signed Public Law 114-302, 
the FBI WPEA of 2016. That statute made two changes to the statutory 
whistleblower protection scheme applicable to FBI employees. First, it 
expanded the list of recipients set forth in 5 U.S.C. 2303(a) to whom a 
disclosure could be made to be protected (assuming the substantive 
requirements are met). Protected disclosures now may be made to an 
employee's supervisor in the employee's direct chain of command, up to 
and including the Attorney General; the Inspector General; the 
Department's Office of Professional Responsibility; the FBI Office of 
Professional Responsibility; the FBI Inspection Division; Congress, as 
described in 5 U.S.C. 7211; OSC; or an employee designated to receive 
such disclosures by any officer, employee, office, or division of the 
listed entities. See Public Law 114-302, sec. 2.
    Second, the FBI WPEA of 2016 changed the substantive requirement 
for a protected disclosure, requiring that the disclosure be one that 
the discloser reasonably believes evidences any violation (previously, 
``a violation'') of any law, rule, or regulation, or gross 
mismanagement (previously, just ``mismanagement''), in addition to the 
previous (and unchanged) provision for disclosures of a gross waste of 
funds, an abuse of authority, or a substantial and specific danger to 
public health or safety. Id.
    And most recently, Public Law 117-263, the James M. Inhofe National 
Defense Authorization Act for Fiscal Year 2023, amended section 2303, 
specifically allowing FBI employees to appeal a final determination or 
corrective action order to the MSPB pursuant to section 1221. See 
Public Law 117-263, sec. 5304(a), codified at 5 U.S.C. 2303(d).
    The changes contemplated by this proposed rule are intended to (1) 
improve, pursuant to PPD-19 and consistent with the Department's 
recommendations in the PPD-19 Report, the internal investigation and 
adjudication of whistleblower retaliation claims by FBI employees and 
applicants for employment under the remedial scheme initially 
established in 1999 and codified at 28 CFR parts 0 and 27; and (2) 
ensure that this process is consistent with changes enacted by the WPEA 
of 2012 and the FBI WPEA of 2016.
    Finally, through this notice of proposed rulemaking, the Department 
is inviting specific comments on and recommendations for how the 
Department might further revise the regulations to increase fairness, 
effectiveness, efficiency, and transparency, including to provide 
enhanced protections for whistleblowers, in addition to the proposed 
changes.

IV. Proposed Changes in This Rule

A. Revising the Description of a Protected Disclosure in Part 0.29d To 
Conform to the Requirements of the FBI WPEA of 2016

    The Department proposes amendments to 28 CFR 0.29d to conform to 
the substantive requirements of a protected disclosure found in 5 
U.S.C. 2303(a)(2)(A) and (B), as amended by the FBI WPEA of 2016. 
Specifically, the Department proposes that, in the first sentence of 28 
CFR 0.29d(a), the phrase ``a violation of any law, rule, or regulation, 
or mismanagement'' be changed to ``any violation of any law, rule, or 
regulation, or gross mismanagement'' to conform to the statutory text. 
The Department invites comments on this proposed change.

B. Proposed Changes to Part 27

1. Expanding the Definition of Persons to Whom a Protected Disclosure 
Must Be Made To Conform to the Requirements of the FBI WPEA of 2016
    To conform to the requirements of the FBI WPEA of 2016, the 
Department proposes to expand the set of offices and officials to whom 
a ``protected disclosure'' must be made. Under the current rule, a 
disclosure is considered protected if (1) its content qualifies for 
protection, and (2) it was made to one of these identified entities or 
individuals:
     the Department's Office of Professional Responsibility;
     the Department's Office of the Inspector General;

[[Page 18491]]

     the FBI Office of Professional Responsibility;
     the FBI Inspection Division Internal Investigations 
Section;
     the Attorney General;
     the Deputy Attorney General;
     the Director of the FBI;
     the Deputy Director of the FBI; or
     the highest ranking official in any FBI field office.
    See 28 CFR 27.1(a). The proposed rule would expand this list to 
comply with the changes made by the FBI WPEA of 2016. See Public Law 
114-302, sec. 2. Specifically, the proposed rule would require that, to 
be protected, a disclosure must be made to:
     a supervisor in the direct chain of command of the 
employee, up to and including the Attorney General;
     the Inspector General;
     the Department's Office of Professional Responsibility;
     the FBI Office of Professional Responsibility;
     the FBI Inspection Division;
     Congress, as described in section 7211;
     OSC; or
     an employee of any of the above entities, when designated 
by any officer, employee, office, or division thereof for the purpose 
of receiving such disclosures.
    In addition, in order to emphasize the necessity of making a 
disclosure to a designated recipient for it to be protected (where it 
meets the substantive requirements), the Department proposes adding 
paragraph (c) in Sec.  27.1, stating expressly that a disclosure must 
be made to one of the offices or officials specified in paragraph (a) 
in Sec.  27.1 in order to qualify as a protected disclosure under part 
27. This change would not alter the substantive requirements of the 
current Sec.  27.1, and does not restrict the expanded list of offices 
and officials to whom a disclosure may be made as described immediately 
above, but is added to avoid any potential misunderstanding regarding 
this key procedural element of a protected disclosure covered by part 
27. FBI whistleblowers are only entitled to statutory protection from 
reprisals for making protected disclosures when they make disclosures 
to offices or officials specifically listed in the FBI WPEA of 2016. To 
ensure FBI whistleblowers are fully protected, this change clearly 
identifies the expanded list of offices and officials to whom 
disclosures must be made. The Department invites comments on this 
proposed change.
2. Revising the Substantive Requirements of a Protected Disclosure To 
Conform to the Requirements of the FBI WPEA of 2016
    The Department proposes amendments to 28 CFR 27.1(a)(1) and (a)(2) 
to conform to the substantive requirements of a protected disclosure 
found in 5 U.S.C. 2303(a)(2)(A) and (B), as amended by the FBI WPEA of 
2016. Specifically, the Department proposes that 28 CFR 27.1(a)(1) be 
changed from ``A violation of any law, rule, or regulation'' to ``Any 
violation of any law, rule, or regulation.'' The Department also 
proposes that, for the same reason, ``Mismanagement'' in 28 CFR 
27.1(a)(2) be removed and replaced with ``Gross mismanagement.'' The 
Department invites comments on this proposed change.
3. Revising the Definition of ``Prohibited Personnel Practice'' 
Following Enactment of the WPEA of 2012
    The Department also proposes an amendment to 28 CFR 27.2(b) to 
conform Sec.  27.2(b)'s definition of ``personnel action'' to the 
definition now found in 5 U.S.C. 2302(a)(2)(A). Section 2303 provides 
that, ``[f]or the purpose of this subsection, `personnel action' means 
any action described in clauses (i) through (x) of section 
2302(a)(2)(A).'' When section 2303 was first enacted, section 
2302(a)(2)(A) contained only ten clauses, designated (i) through (x), 
and thus the definition of ``personnel action'' was identical for both 
sections. Clause (x) was a ``catch-all'' provision covering ``any other 
significant change in duties, responsibilities, or working 
conditions.'' In 1994, Congress added an additional personnel action to 
section 2302(a)(2)(A), a decision to order psychiatric testing or 
examination. See Public Law 103-424, sec. 5(a) (1994). The additional 
personnel action was designated as clause (x), and the catch-all 
provision was re-designated as clause (xi). Id. sec. 5(a)(2). This 
change did not alter section 2303, which continued to refer only to 
``clauses (i) through (x) of section 2302(a)(2)(A).'' Pursuant to the 
Attorney General's authority under 5 U.S.C. 301 to ``prescribe 
regulations for the government of [the] department [and] the conduct of 
its employees,'' the Department accepted commenters' recommendations to 
define ``personnel action'' to include all eleven personnel actions in 
section 2302(a)(2)(A), including the catch-all provision, in its 1999 
final rule, as codified at 28 CFR 27.2(b). See 64 FR 58784-85
    Several years after this change, the WPEA of 2012 added a twelfth 
personnel action to section 2302(a)(2)(A): ``the implementation or 
enforcement of any nondisclosure policy, form, or agreement'' (the 
nondisclosure provision). Public Law 112-199, sec. 104(a)(2). This new 
provision was designated as clause (xi), while the catch-all provision, 
formerly clause (xi), became clause (xii).
    The Department proposes to define ``personnel action'' in Sec.  
27.2(b) to include all twelve personnel actions currently listed in 
section 2302(a)(2)(A), including the nondisclosure provision added by 
the WPEA of 2012. Doing so will ensure that FBI employees making 
protected disclosures are shielded against the same adverse personnel 
actions as other Federal civilian employees, which appears to have been 
the underlying purpose of incorporating section 2302's definition of 
``personnel action'' into section 2303. The Attorney General has the 
authority to incorporate the nondisclosure provision into the 
definition of ``personnel action'' in Sec.  27.2(b) pursuant to 5 
U.S.C. 301, which authorizes the Attorney General to ``prescribe 
regulations for the government of [the] department [and] the conduct of 
its employees.'' See In re Boeh, 25 F.3d 761, 763 (9th Cir. 1994) 
(explaining that section 301 permits the Department of Justice to 
regulate ``the conduct of employees, the performance of the agency's 
business, and the use of its records''). The Attorney General invoked 
the same authority in the 1999 final rule discussed above. 64 FR 58784-
85. The net effect of the proposed revisions to the definition of 
``personnel action'' in Sec.  27.2(b) will be to retain the catch-all 
provision, while also including the non-disclosure provision added by 
the WPEA of 2012. The Department invites comments on this proposed 
change.
4. Equalizing Access to Witnesses
    During the PPD-19 review, whistleblower advocate groups raised 
concerns that, in an unspecified number of cases, the FBI has been able 
to obtain evidence from FBI management officials or employees as 
witnesses, either through affidavits or testimony at a hearing, but 
that complainants were unable to obtain similar access to FBI 
witnesses, particularly former employees. Because the Director of OARM 
(``OARM Director'') lacks the authority to compel attendance at a 
hearing, appearance at a deposition, or the production of documentary 
evidence from individuals not currently employed by the Department, the 
groups asked the Department to

[[Page 18492]]

consider a regulatory provision that would help all parties equalize 
access to witnesses. Therefore, the Department proposes adding a 
sentence to Sec.  27.4(e)(3) to give the OARM Director the discretion 
to prohibit a party from adducing or relying on evidence from a person 
whom the opposing party does not have an opportunity to examine or to 
give less weight to such evidence. The Department invites comments on 
this proposed change.
5. Improving Case Processing by Use of Acknowledgement and Show-Cause 
Orders
    The Department proposes to formalize the use of acknowledgement and 
show-cause orders by the OARM Director to assist in the management and 
adjudication of whistleblower reprisal claims.
    Under OARM's current procedures, 28 CFR 27.4(c)(1), when a 
complainant files a request for corrective action (``RCA'') with OARM, 
the OARM Director is to notify the FBI of the RCA--usually by 
forwarding the RCA to the FBI--and provide the FBI 25 calendar days to 
file its response. In some instances, however, the allegations in a 
complainant's RCA are insufficient to allow either the OARM Director or 
the FBI to reasonably construe the specific claims raised. In such 
cases, the agency's usual practice is for the OARM Director to issue an 
order requiring the complainant to supplement the RCA to specifically 
address the elements of a whistleblower claim necessary for OARM's 
jurisdiction. The OARM Director then forwards the RCA, as supplemented, 
to the FBI for a response. The complainant is afforded an opportunity 
to file a reply to the FBI's response, and the FBI is afforded time to 
file a surreply. The OARM Director then makes a jurisdictional 
determination regarding the complainant's RCA. If the OARM Director 
finds that it has jurisdiction to consider all or some of the 
complainant's claims, the parties are so notified and are directed to 
engage in relevant discovery.
    The MSPB's analogous procedures illustrate how the use of 
acknowledgment and show-cause orders may expedite the process. See 
Merit Sys. Protection Bd., Judges' Handbook 19-21 (2019), https://www.mspb.gov/appeals/files/ALJHandbook.pdf. At the MSPB, an 
administrative judge must ordinarily issue an acknowledgment order 
within three business days of receipt of an appeal; that order 
acknowledges receipt of the appeal and informs the parties of the 
MSPB's case processing procedures regarding, for example, designation 
of a representative, discovery, and settlement. Id. at 20.
    The proposed amendments at Sec.  27.4(f) would formalize the OARM 
Director's existing use of acknowledgment and show-cause orders similar 
to those issued by the MSPB. The current language pertaining to OARM's 
initial case processing procedures in 28 CFR 27.4(c)(1) would be 
revised accordingly to reflect the practice used by the OARM Director 
in issuing an acknowledgment order, which would also be reflected in a 
new paragraph (f) in Sec.  27.4. The new paragraph (f) would also 
formalize the practice of issuing a show-cause order where the OARM 
Director determines that there is an initial question of jurisdiction 
and would contain procedures relating thereto. The Department invites 
comments on this proposed change.
6. Awarding Compensatory Damages
    In directing agency heads to consider corrective actions in cases 
in which reprisal for whistleblowing is found to have occurred, PPD-19 
provided that corrective action may include compensatory damages, to 
the extent authorized by law. PPD-19 at 2. Accordingly, the Department 
proposes amending paragraph (g) of Sec.  27.4 to provide that the OARM 
Director may award compensatory damages to the extent authorized by 
law, in addition to other available relief. Currently, under Sec.  
27.4(f), permissible OARM corrective action includes: placing the 
Complainant, as nearly as possible, in the position he would have been 
in had the reprisal not taken place; reimbursement for attorney's fees, 
reasonable costs, medical costs incurred, and travel expenses; back pay 
and related benefits; and any other reasonable and foreseeable 
consequential damages. The Department invites comments on this proposed 
change.
7. Reporting Findings of Unlawful Reprisal
    In drafting the PPD-19 Report, the Department considered a 
recommendation that any final decision that includes a finding of 
unlawful reprisal be forwarded to the appropriate authority for 
consideration of whether disciplinary action is warranted against the 
officials responsible for the reprisal. In 2013, the OARM Director 
implemented a policy of forwarding to the FBI Office of Professional 
Responsibility, the FBI Inspection Division, and the FBI Director a 
copy of the final determination in cases where the OARM Director finds 
reprisal. That decision includes citations to the supporting evidence 
of record as well as the names of the officials found to be responsible 
for the reprisal. The Department proposes to formalize this process 
through the addition of paragraph (h) in Sec.  27.4. The Department 
invites comments on this proposed change.
8. Proposed Statement: Independence and Impartiality of OARM 
Determinations
    During the Department's PPD-19 review, whistleblower advocates 
expressed concern with the internal Departmental adjudication of FBI 
reprisal cases brought under part 27. In drafting the PPD-19 Report, 
the Department considered whether to amend part 27 to make explicit 
what has always been implicit regarding the independence and 
impartiality of the determinations made by the OARM Director. The 
Department thus proposes adding language to Sec.  27.4(e)(1) to note 
expressly that the determinations made by the OARM Director shall be 
independent and impartial. The Department invites comments on this 
proposed change.
9. Providing Access to Alternative Dispute Resolution (``ADR'')
    As a result of its review under PPD-19, the Department determined 
that ADR should be made more readily available in whistleblower cases 
because ADR can focus the parties' attention at early stages of a 
proceeding, enabling each side to learn more about the other side's 
goals in a manner that may facilitate early resolution. PPD-19, at 11. 
Accordingly, the Department created a voluntary mediation program for 
FBI whistleblower cases using the existing Department of Justice 
Mediator Corps (``DOJMC'').
    The Department's Equal Employment Opportunity (``EEO'') community 
created the DOJMC Program in 2009 as a means of informal resolution to 
address and, when possible, resolve workplace disputes. Although the 
program focuses on EEO issues, the mediators are available to help 
resolve any type of dispute. The FBI Office of Equal Employment 
Opportunity Affairs is responsible for the operational management of 
the DOJMC Program, the scope of which is Department-wide. The DOJMC 
currently has approximately 70 collateral-duty mediators. Roughly two-
thirds are FBI employees; the remaining mediators are drawn from across 
other Department components. Current mediator resources are expected to 
be sufficient to make available a mediator

[[Page 18493]]

from outside the FBI should the complainant so desire.
    The Department launched the mediation program for FBI whistleblower 
cases in April 2014, staffed by a cadre of skilled mediators trained by 
the Department for that purpose. The Department proposes to formalize 
inclusion of the ADR program by amending part 27 to add Sec.  27.7, 
which would provide that the complainant may request ADR from the time 
of the filing of the initial claim with the office that will conduct 
the investigation (``Conducting Office''), see 28 CFR 27.3(c), and at 
any subsequent point thereafter throughout the process. Under proposed 
new paragraph (b) of Sec.  27.7, if the Complainant elects ADR, the 
FBI, represented by the Office of General Counsel, will participate. 
When ADR is elected, under proposed new paragraph (c) of Sec.  27.7, 
proceedings will be stayed upon transmittal of the matter to the DOJMC 
Program office. The initial period of the stay will be 90 days and may 
be extended for up to 45 additional days upon joint request from the 
parties to the office before which the matter is stayed. Additional 
requests for an extension of the stay would be available only by grant 
of the OARM Director, regardless of the office before which the matter 
is pending, and only upon joint request by the parties showing good 
cause. The Department invites comments on this proposed change.
10. Authority of the OARM Director To Adjudicate Allegations of a 
Breach of a Settlement Agreement
    The Department has concluded that the OARM Director should 
adjudicate allegations of a breach of any settlement agreement reached 
in proceedings and in a forum under this part 27. Arguably, the OARM 
Director would have the authority to do so under the change proposed 
for Sec.  27.4(e)(4) because the provision includes the broad authority 
to manage the adjudication of claims of reprisal. The Department 
nonetheless proposes to add Sec.  27.8 making clear that the OARM 
Director has authority to adjudicate allegations of a breach of a 
settlement agreement reached in proceedings and in a forum under this 
part 27. In addition, Sec.  27.8 would state that, in carrying out the 
function of adjudicating claims of a breach of such settlement 
agreements, the OARM Director shall exercise the authorities granted 
under the change proposed for Sec.  27.4(e)(4), in accordance with any 
procedures the OARM Director may establish to facilitate the efficient 
discharge of that function. The new Sec.  27.8 also would provide the 
parties with a right of review by the Deputy Attorney General of any 
decision by the OARM Director on a breach of settlement claim. The 
Department invites comment on this proposed change.
11. Invitation To Submit Comments and Recommendations To Enhance 
Fairness, Efficiency and Transparency Regarding Whistleblower Activity, 
Including To Provide Enhanced Protections for Whistleblowers
    The Department believes that the process by which it adjudicates 
allegations that the FBI has retaliated against whistleblowers should 
be as fair, effective, efficient, and transparent as possible. The 
Department therefore invites specific comments on and recommendations 
for how the Department might revise part 27 to increase fairness, 
effectiveness, efficiency, and transparency, including to provide 
enhanced protections for whistleblowers, in addition to the proposed 
changes described above.

V. Regulatory Analyses

    In developing this proposed rule, the Department considered 
numerous statutes and executive orders applicable to rulemaking. The 
Department's analysis of the applicability of those statutes and 
executive orders to this rulemaking is summarized below.

A. Executive Orders 12866 (Regulatory Planning and Review) and E.O. 
13563 (Improving Regulation and Regulatory Review)

    This proposed rule is not a significant regulatory action under 
section 3(f) of Executive Order 12866, as supplemented by Executive 
Order 13563. The proposed rule proposes procedural changes to the 
existing regulatory framework for resolving claims of whistleblower 
retaliation by FBI employees and applicants. The proposed changes will 
not materially affect the number of claims or the time, cost, or 
resources required to address them. The proposed rule if adopted would 
not have an annual effect on the economy of $100 million or more, 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities; would not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency; would not 
materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; and would not raise novel legal or policy issues. Accordingly, 
this rule does not require an assessment of potential costs and 
benefits under section 6(a)(3) of Executive Order 12866. The Office of 
Management and Budget has not reviewed this rule under these Orders.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-12, as 
amended, requires Federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. The term ``small 
entities'' comprises small businesses, not-for-profit organizations 
that are independently owned and operated and are not dominant in their 
fields, and governmental jurisdictions with populations of less than 
50,000. 5 U.S.C. 601.
    The Department certifies under 5 U.S.C. 605(b) that this proposed 
rule will not have a significant economic impact on a substantial 
number of small entities. The proposed rule addresses the Department's 
internal process for addressing allegations of retaliation for 
protected whistleblowing by FBI employees and applicants. It has no 
application to small entities as defined above. The proposed rule, if 
adopted, would perhaps have tangential, indirect, and transitory impact 
on law firms and advocacy organizations representing FBI whistleblowers 
inasmuch as they would have to become familiar with the changes in 
procedure.
    If your business, organization, or governmental jurisdiction 
qualifies as a small entity and you believe this rule would have a 
significant economic impact on it, please submit a comment (see 
ADDRESSES list, page 2, supra) explaining why you think your entity 
qualifies and how and to what degree this rule would economically 
affect it.

C. Small Business Regulatory Enforcement Fairness Act of 1996

    In accordance with section 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Department will 
assist small entities in understanding this proposed rule. If you 
believe the rule would affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please contact the persons listed 
in the FOR FURTHER INFORMATION CONTACT section, above.

D. Paperwork Reduction Act

    This proposed rule will not call for a new collection of 
information under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-
20. Specifically, the existing and proposed rules regulate

[[Page 18494]]

administrative actions or investigations involving an agency against 
specific individuals or entities and thus fall outside the scope of the 
Paperwork Reduction Act. See 44 U.S.C. 3518(c)(1)(B)(ii).

E. Executive Order 13132 (Federalism)

    A rule has federalism implications under Executive Order 13132 if 
it has a substantial direct effect on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government. 
E.O. 13132, sec. 1(a). The Department has analyzed this proposed rule 
under that Order and determined that this rule does not have federalism 
implications.

F. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-38, 
requires Federal agencies to determine whether a rule, if promulgated, 
will result in the expenditure by State, local, or tribal government, 
in the aggregate, or by the private sector, of $100 million (adjusted 
for inflation) or more in any one year. 2 U.S.C. 1532(a). This proposed 
rule would not require or result in expenditures by any of the above-
named entities. The rule addresses the Department's internal procedures 
related to protected disclosures.

G. Executive Order 12988 (Civil Justice Reform)

    This proposed rule meets applicable standards in sections 3(a) and 
3(b)(2) of Executive Order 12988.

H. Executive Order 13175 (Consultation and Coordination With Indian 
Tribal Governments)

    This proposed rule does not have tribal implications under 
Executive Order 13175 because it would not have a substantial direct 
effect on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes.

I. Congressional Review Act

    The reporting requirements of the Congressional Review Act 
(Subtitle E of the Small Business Regulatory Enforcement Fairness Act 
of 1996), 5 U.S.C. 801-08, do not apply to the proposed rule. First, 
this rule relates primarily to agency management, personnel, and 
organization. 5 U.S.C. 804(3)(B). Second, to the extent that the rule 
affects non-agency parties such as applicants for employment and former 
employees, these parties are a small subset of the cases subject to the 
proposed rule, and the rule does not substantially affect such parties' 
substantive rights or obligations. Id. 803(3)(C). Instead, the rule 
makes changes primarily related to administrative processing of 
whistleblower retaliation cases. This action is accordingly not a 
``rule'' as that term is used by the Congressional Review Act, see 5 
U.S.C. 804(3), and the reporting requirement of 5 U.S.C. 801 does not 
apply.

List of Subjects

28 CFR Part 0

    Authority delegations (Government agencies), Government employees, 
National defense, Organization and functions (Government agencies), 
Privacy, Reporting and recordkeeping requirements, Whistleblowing.

28 CFR Part 27

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

Authority and Issuance

    For the reasons stated above, the Department of Justice proposes to 
amend 28 CFR parts 0 and 27 as follows:

PART 0 ORGANIZATION OF THE DEPARTMENT OF JUSTICE

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

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


Sec.  0.29d  [Amended]

0
2. Amend Sec.  0.29d, in paragraph (a), by:
0
a. Removing the words ``a violation'' and adding in their place the 
words ``any violation'';
0
b. Removing the word ``mismanagement'' and adding in its place the 
words ``gross mismanagement''.

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

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

    Authority:  5 U.S.C. 301, 3151; 28 U.S.C. 509, 510, 515-519; 5 
U.S.C. 2303; President's Memorandum to the Attorney General, 
Delegation of Responsibilities Concerning FBI Employees Under the 
Civil Service Reform Act of 1978, 3 CFR p. 284 (1997); Presidential 
Policy Directive 19, ``Protecting Whistleblowers with Access to 
Classified Information'' (October 10, 2012).

0
4. Amend Sec.  27.1 by:
0
a. Revising the introductory text of paragraph (a)
0
b. In paragraph (a)(1), removing the words ``A violation,'' and adding 
in their place ``Any violation'';
0
c. In paragraph (a)(2), removing the word ``Mismanagement,'' and adding 
in its place ``Gross mismanagement'';
0
d. Adding paragraph (c).
    The revisions and addition 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 a supervisor in the direct chain of command of the 
employee, up to and including the Attorney General; to the Department 
of Justice's (Department's) Office of the Inspector General (OIG), the 
Department's Office of Professional Responsibility (OPR), the FBI 
Office of Professional Responsibility (FBI OPR), or the FBI Inspection 
Division (FBI-INSD) (collectively, Receiving Offices); to Congress as 
described in 5 U.S.C. 7211; to the Office of Special Counsel; or to an 
employee of any of the foregoing entities when designated by any 
officer, employee, office, or division named in this subsection for the 
purpose of receiving such disclosures, the disclosure will be a 
``protected disclosure'' if the person making it reasonably believes 
that it evidences:
* * * * *
    (c) To be a ``protected disclosure'' under this part, the 
disclosure must be made to an office or official specified in paragraph 
(a) of this section.


Sec.  27.2  [Amended]

0
5. Amend Sec.  27.2, in paragraph (b), by removing ``(xi)'' and adding 
in its place ``(xii)''.
0
6. Amend Sec.  27.4 by:
0
a. In paragraph (a), removing the term ``paragraph (e)'' and adding in 
its place ``paragraphs (e) and (f)'';
0
b. Revising the second sentence of paragraph (c)(1);
0
c. Adding a sentence at the end of paragraph (e)(1), revising paragraph 
(e)(3), and adding paragraph (e)(4); and
0
d. Revising paragraphs (f) and (g);
0
e. Adding paragraphs (h) and (i).
    The revisions and the additions read as follows:


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

* * * * *
    (c) * * *
    (1) * * * Within 5 business days of the receipt of the request, the 
Director

[[Page 18495]]

shall issue an Acknowledgment Order in accordance with paragraph (f)(1) 
of this section. * * *
* * * * *
    (e)(1) * * * The determinations made by the Director shall be 
independent and impartial.
* * * * *
    (3) In making the determinations required under this paragraph, the 
Director may hold a hearing at which the Complainant may present 
evidence in support of his or her claim, in accordance with such 
procedures as the Director may adopt. The Director is hereby authorized 
to compel the attendance and testimony of, or the production of 
documentary or other evidence from, any person employed by the 
Department if doing so appears reasonably calculated to lead to the 
discovery of admissible evidence, is not otherwise prohibited by law or 
regulation, and is not unduly burdensome. The Director may prohibit a 
party from adducing or relying on evidence from a person whom the 
opposing party does not have an opportunity to examine, or the Director 
may give less weight to such evidence. Any privilege available in 
judicial and administrative proceedings relating to the disclosure of 
documents or the giving of testimony shall be available before the 
Director. All assertions of such privileges shall be decided by the 
Director. The Director may, upon request, certify a ruling on an 
assertion of privilege for review by the Deputy Attorney General.
    (4) Subject to paragraph (f) of this section, the Director may 
establish such procedures as he or she deems reasonably necessary to 
carry out the functions assigned under this paragraph.
    (f)(1) Within 5 business days of receipt by the Director under 
paragraph (a) of this section of a report from a Conducting Office, or 
a request for corrective action from a Complainant under paragraph 
(c)(1) of this section, the Director shall issue an Acknowledgement 
Order that:
    (i) Acknowledges receipt of the report or request;
    (ii) Informs the parties of the relevant case processing procedures 
and timelines, including the manner of designation of a representative, 
the time periods for and methods of discovery, the process for 
resolution of discovery disputes, and the form and method of filing of 
pleadings;
    (iii) Informs the parties of the jurisdictional requirements for 
full adjudication of the request; and
    (iv) Informs the parties of their respective burdens of proof.
    (2) In cases where the Director determines that there is a question 
about the Director's jurisdiction to review a request from the 
Complainant, the Director shall, simultaneously with the issuance of 
the Acknowledgement Order, issue a Show-Cause Order explaining the 
grounds for such determination and directing that the Complainant, 
within 10 calendar days of receipt of such order, submit a written 
statement, accompanied by evidence, to explain why the request should 
not be dismissed for lack of jurisdiction. The Complainant's written 
statement must provide the following information as necessary to 
address the jurisdictional question or as otherwise directed:
    (i) The alleged protected disclosure or disclosures;
    (ii) The date on which the Complainant made any such disclosure;
    (iii) The name and title of any individual or office to whom the 
Complainant made any such disclosure;
    (iv) The basis for the Complainant's reasonable belief that any 
such disclosure evidenced any violation of law, rule, or regulation; 
gross mismanagement; a gross waste of funds; an abuse of authority; or 
a substantial and specific danger to public health or safety;
    (v) Any action the FBI allegedly took or failed to take, or 
threatened to take or fail to take, against the Complainant because of 
any such disclosure, the name and title of all officials responsible 
for each action, and the date of each action;
    (vi) The basis for the Complainant's belief that any official 
responsible for an action knew of any protected disclosure, and the 
date on which the official learned of the disclosure;
    (vii) The relief sought; and
    (viii) The date the reprisal complaint was filed with the 
Investigative Office and the date on which the Conducting Office 
notified the Complainant that it was terminating its investigation into 
the complaint, or if the Complainant has not received such notice, 
evidence that 120 days have passed since the Complainant filed a 
complaint of reprisal with the Investigative Office.
    (3) The FBI shall file a reply to the Complainant's response to the 
Show-Cause Order within 20 calendar days of receipt of such reply.
    (i) The reply shall address issues identified by the Director in 
the Show-Cause Order and matters raised in the Complainant's response 
to that order under paragraph (f)(2) of this section, and shall 
include: a statement identifying any FBI actions taken against the 
Complainant and the reasons for taking such actions; designation of and 
signature by the FBI legal representative; and any other documents or 
information requested by the Director.
    (ii) The reply may also include any and all documents contained in 
the FBI record of the action or actions.
    (4) After receipt of the FBI's response, the record on the 
jurisdictional issue will close, absent a request from either party 
establishing exigent circumstances requiring the need for the 
presentation of additional evidence or arguments.
    (g) If the Director orders corrective action, such corrective 
action may include: placing the Complainant, as nearly as possible, in 
the position he or she would have been in had the reprisal not taken 
place; reimbursement for attorney's fees, reasonable costs, medical 
costs incurred, and travel expenses; back pay and related benefits; 
compensatory damages to the extent authorized by law; and any 
reasonable and foreseeable consequential damages.
    (h) Whenever the Director determines that there has been a reprisal 
prohibited by Sec.  27.2 of this part, the Director, in addition to 
ordering any corrective action as authorized by Sec.  27.4(g), above, 
shall forward to the FBI OPR and the FBI-INSD, with a copy to the 
Director of the FBI, a written summary of the Director's findings of 
reprisal, the evidence supporting the findings, and the officials 
responsible for the reprisal. FBI OPR shall make a determination of 
whether disciplinary action is warranted against any officials the 
Director identified as responsible for the reprisal.
    (i) If the Director determines that there has not been any reprisal 
prohibited by Sec.  27.2, the Director shall report this finding in 
writing to the Complainant, the FBI, and the Conducting Office.
0
7. Revise Sec.  27.5 to read as follows:


Sec.  27.5  Review.

    (a) Within 30 calendar days of a finding of a lack of jurisdiction, 
a final determination on the merits, or corrective action ordered by 
the Director, the Complainant or the FBI may request review by the 
Deputy Attorney General of that determination or order. The Deputy 
Attorney General shall set aside or modify the Director's actions, 
findings, or conclusions found to be arbitrary, capricious, an abuse of 
discretion, or otherwise not in accordance with law; obtained without 
procedures required by law, rule, or regulation having been followed; 
or unsupported by substantial evidence. The Deputy Attorney General has 
full discretion to review and modify

[[Page 18496]]

corrective action ordered by the Director, provided, however that if 
the Deputy Attorney General upholds a finding that there has been a 
reprisal, then the Deputy Attorney general shall order appropriate 
corrective action.
    (b) The parties may not file an interlocutory appeal to the Deputy 
Attorney General from a procedural ruling made by the Director during 
proceedings pursuant to section 27.4 of this part. The Deputy Attorney 
General has full discretion to review such rulings by the Director 
during the course of reviewing an appeal of the Director's finding of a 
lack of jurisdiction, final determination, or corrective action order 
brought under paragraph (a).
    (c) In carrying out the functions set forth in this section, the 
Deputy Attorney General may issue written directives or orders to the 
parties as necessary to ensure the efficient and fair administration 
and management of the review process.
0
8. Add Sec.  27.7 to read as follows:


Sec.  27.7  Alternative dispute resolution.

    (a) At any stage in the process set forth in Sec. Sec.  27.3 
through 27.5 of this part, the Complainant may request Alternative 
Dispute Resolution (ADR) through the Department of Justice Mediator 
Corps (DOJMC) Program. The Complainant may elect to participate in ADR 
by notifying in writing the office before which the matter is then 
pending.
    (b) If the Complainant elects mediation, the FBI, represented by 
the Office of General Counsel, will participate.
    (c) When the Complainant requests to engage in ADR, the process set 
forth in Sec. Sec.  27.3 through 27.5, as applicable, including all 
time periods specified therein, will be stayed for an initial period of 
90 days, beginning on the date of transmittal of the matter to the 
DOJMC Program office. Upon joint request by the parties to the office 
before which the matter is stayed, the period of the stay may be 
extended up to an additional 45 days. Further requests for extension of 
the stay may be granted only by the Director, regardless of the office 
before which the matter is pending, upon a joint request showing good 
cause. The stay otherwise will be lifted if the DOJMC Program notifies 
the office before which the matter is stayed that the Complainant no 
longer wishes to engage in mediation, or that the parties are unable to 
reach agreement on resolution of the complaint and that continued 
efforts at mediation would not be productive.
0
9. Add Sec.  27.8 to read as follows:


Sec.  27.8  Authority of the Director to review and decide claims of a 
breach of a settlement agreement.

    (a) Any party to a settlement agreement reached in proceedings and 
in a forum under this part may file a claim of a breach of that 
settlement agreement with the Director within 30 days of the date on 
which the grounds for the claim of breach were known.
    (b) The Director shall adjudicate any timely claim of a breach of a 
settlement agreement. The Director shall exercise the authority granted 
under Sec.  27.4(e)(4) to ensure the efficient administration and 
management of the adjudication of the breach claim, pursuant to any 
procedures the Director deems reasonably necessary to carry out the 
functions assigned under this paragraph.
    (c) A party may request, within 30 calendar days of a decision on a 
claim of a breach of a settlement agreement by the Director, review of 
that decision by the Deputy Attorney General.

    Dated: March 17, 2023.
Merrick B. Garland,
Attorney General.
[FR Doc. 2023-05927 Filed 3-28-23; 8:45 am]
BILLING CODE 4410-AR-P