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10 January 2008
[Federal Register: January 9, 2008 (Volume 73, Number 6)]
[Rules and Regulations]
[Page 1493-1495]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09ja08-2]
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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.
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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]
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