[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\
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\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\
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\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).
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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--
* * * * * * *
[all]