[Federal Register Volume 65, Number 159 (Wednesday, August 16, 2000)]
[Proposed Rules]
[Pages 49949-49952]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-20671]


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

OFFICE OF SPECIAL COUNSEL

5 CFR Part 1800

RIN 3255-ZA00


Filing Complaints of Prohibited Personnel Practice or Other 
Prohibited Activity; Filing Disclosures of Information

AGENCY: Office of Special Counsel.

ACTION: Proposed rule; public comment period.

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

SUMMARY: The U.S. Office of Special Counsel (OSC) proposes to revise 
its regulations to: Provide basic information about OSC jurisdiction 
over complaints of improper employment practices, and over disclosures 
of information of wrongdoing in federal agencies (also known as 
``whistleblower disclosures''); implement a requirement that complaint 
filers use an OSC form (Form OSC-11, ``Complaint of Possible Prohibited 
Personnel Practice or Other Prohibited Activity'') to submit 
allegations of improper employment practices (other than alleged Hatch 
Act violations); outline procedures to be followed by OSC when filers 
submit complaints (other than Hatch Act allegations) in formats other 
than an OSC complaint form (Form OSC-11); revise and update 
descriptions of information needed by OSC to process both complaints 
alleging Hatch Act violations and whistleblower disclosures; and update 
contact information for sending complaints and disclosures to OSC, and 
for obtaining OSC complaint and disclosure forms. Current and former 
Federal employees, employee representatives, other Federal agencies, 
and the general public are invited to comment on the proposed 
regulatory revisions.

DATES: Submit comments by October 16, 2000.

ADDRESSES: Any comments about this proposed regulatory change should be 
sent by mail to Kathryn Stackhouse, Attorney, Planning and Advice 
Division, U.S. Office of Special Counsel, 1730 M Street, NW, Suite 300, 
Washington, DC 20036-4505, or by facsimile to Ms. Stackhouse at (202) 
653-5151.

FOR FURTHER INFORMATION CONTACT: Kathryn Stackhouse, Attorney, Planning 
and Advice Division, by mail at the address shown above, or by 
telephone at (202) 653-8971. The proposed regulatory change will also 
be available for review on OSC's Web site (at www.osc.gov).

SUPPLEMENTARY INFORMATION: Current OSC regulations, at 5 CFR 1800.1, 
describe information needed by OSC to process complaints alleging 
improper employment practices (including prohibited personnel practices 
defined at 5 U.S.C. 2302(b), other violations of law defined at 5 
U.S.C. 1216, and violations of the Hatch Act under chapters 15 and 73 
of title 5). OSC regulations at 5 CFR 1800.2 describe information 
needed by OSC to process whistleblower disclosures. The regulations 
permit complaints or disclosures to be submitted in any written form, 
and specify an OSC

[[Page 49950]]

address to which such matters should be sent. OSC proposes to revise 
Sec. Sec. 1800.1 and 1800.2 for the purposes outlined in the Summary 
section, above. A brief explanation of each purpose follows:
    (1) Provide basic information about OSC jurisdiction over 
complaints of improper employment practices and whistleblower 
disclosures. Sections 1800.1 and 1800.2 outline procedures for filing 
complaints and disclosures, with no reference to OSC's basic 
jurisdiction. The regulatory revision proposed in this notice would 
provide jurisdictional information in each section, as an aid to 
persons considering the filing of a complaint or disclosure with OSC.
    (2) Implement a requirement that complaint filers use an OSC 
complaint form to submit allegations of improper employment practices 
(other than alleged Hatch Act violations). Most complaints received by 
OSC consist of allegations of improper employment practices other than 
Hatch Act violations. Section 1800.1, at subsecs. (b)(1)-(6), outlines 
the types of information that should be provided in a complaint, and 
indicates that complaints can be submitted in any written format. Given 
this latitude, there have been considerable disparities in the way 
complaint information is presented to OSC.
    OSC recently revised its complaint form, which--along with a 
revised OSC form for whistleblower disclosures--is awaiting clearance 
by the Office of Management and Budget (OMB) under the Paperwork 
Reduction Act (PRA). See 65 FR 41512 (July 5, 2000). The revised form 
consists of standard questions seeking factual information of the kind 
outlined in the current OSC regulation. It also contains several 
enhancements, including information for potential filers about: (a) 
Agencies and employees outside OSC's jurisdiction; (b) election of 
remedies; (c) OSC deferral policies in cases involving certain 
discrimination and veterans rights claims; (d) legal elements required 
for OSC to establish reprisal for whistleblowing (investigation of 
which is a high priority); and (e) appeal rights to the Merit Systems 
Protection Board (MSPB, or ``the Board'') in connection with 
whistleblower reprisal allegations.
    Mandatory use of the OSC form, rather than any written format 
chosen by a filer, would help to: (a) Enable complainants to obtain 
useful information about OSC jurisdiction and procedures before filing 
the complaint; (b) produce more consistent, effective, and reliable 
presentations of facts needed by OSC to review, follow up on, and 
investigate complaints of improper employment practices; and (c) make 
more efficient use of OSC's limited resources, by reducing the time 
spent by staff in answering threshold questions about jurisdiction and 
procedures, and in soliciting basic information about allegations in 
complaints.
    OSC also believes that mandatory use of the redesigned form by 
persons alleging reprisal for whistleblowing would benefit those filers 
and OSC during the complaint process, as well as complainants who later 
seek corrective action later in Individual Right of Action (IRA) 
appeals to the Board under 5 U.S.C. 1221. The complaint form was 
redesigned, in part, to provide filers (before and while filing a 
complaint) with a better understanding of the elements of a 
whistleblower reprisal claim, and to facilitate OSC's review of such 
claims.
    Also, under 5 U.S.C. 1214(a)(3), complainants who file 
whistleblower reprisal allegations with OSC may file an IRA with the 
Board if: (a) OSC notifies them that it is closing the matter, or (b) 
120 days have passed without notification by OSC that it will seek 
corrective action on their behalf. In such cases, MSPB has jurisdiction 
over only those disclosures and personnel actions reported in the prior 
OSC complaint. OSC's redesign of its complaint form included 
consultation with MSPB, in an effort to provide appellants in IRA cases 
with a consistent mechanism by which to identify the disclosures and 
personnel actions first reported to OSC. The revised form includes a 
section (Part 2) in which complainants alleging reprisal for 
whistleblowing would identify the key components of the allegation 
(description of the disclosure, person to whom disclosure was made, 
date of the disclosure, and personnel action(s) taken or threatened 
because of the disclosure), along with other information pertinent to 
the allegations. Part 2 of Form OSC-11 has been designed to be a 
segregable part of the complaint form, a copy of which can be submitted 
by appellants to the MSPB in IRA cases as evidence of the disclosures 
and personnel actions submitted to OSC.
    In the comparatively small number of cases in which complainants 
report new disclosures or personnel actions while their initial 
complaint is pending, OSC will, at its discretion, require filers to 
submit a report of these events in the Part 2 format; alternatively, 
OSC will document the events in the Part 2 format, and furnish a copy 
of that record to the complainant if and when OSC closes the matter 
without seeking corrective action.
    By mandating use of the complaint form, filers alleging reprisal 
for whistleblowing can make and retain a copy of Part 2 of the form for 
submission to the Board, as evidence of the required jurisdictional 
elements in an IRA case. Upon clearance of the revised form under the 
Paperwork Reduction Act, it will be placed on OSC's Web site (at 
www.osc.gov), for printing by prospective complaint filers and 
submittal to OSC (pending OSC's anticipated development of electronic 
filing procedures).
    (3) Outline procedures to be followed by OSC when filers submit 
complaints (other than Hatch Act allegations) in formats other than an 
OSC complaint form (Form OSC-11). The revision of Sec. 1800.1 proposed 
in this notice would provide that if a person uses a format other than 
the required OSC form to file a complaint (other than a Hatch Act 
allegation), the material submitted will be returned to the filer with 
a blank Form OSC-11 to fill out and return to OSC. Processing of the 
complaint will begin upon OSC's receipt of a completed Form OSC-11.
    (4) Revise and update descriptions of information needed by OSC to 
process both complaints alleging Hatch Act violations and whistleblower 
disclosures. OSC proposes to continue to permit filers of complaints 
alleging Hatch Act violations, and filers of whistleblower disclosures, 
to submit such matters to OSC in any written format. (Possible written 
formats include OSC's complaint and disclosure forms--Forms OSC-11 and 
OSC 12, respectively). Sections 1800.1 and 1800.2 currently describe 
information needed by OSC to review and evaluate complaints and 
disclosures. The proposed revision of Sec. 1800.1 tailors the 
description to Hatch Act allegations for filers who submit such matters 
in formats other than an OSC complaint form. The proposed revision of 
Sec. 1800.2 updates the description of information needed in 
whistleblower disclosures to OSC, for filers who submit them in formats 
other than an OSC disclosure form.
    (5) Update contact information for sending complaints and 
disclosures to OSC, and for obtaining OSC complaint and disclosure 
forms. Since OSC's current regulations were published, its mailing 
address for complaints and disclosures has changed, and a Web site has 
been established at which many OSC forms and publications are made 
available to the public. The proposed revision of Sec. Sec. 1800.1 and 
1800.2 updates both sections with current

[[Page 49951]]

mailing and Web site address information.

Procedural Determinations

    Regulatory Flexibility Act Certification (5 U.S.C. 605): As acting 
head of the agency, I certify that this proposed revision to current 
regulations will not have a significant economic impact on a 
substantial number of small entities. The OSC primarily handles matters 
involving individuals who are current or former Federal government 
employees, applicants for federal employment, certain state or local 
government employees, and representatives of these individuals. These 
revised regulations affect only the provision of additional information 
about filing a complaint with OSC and require a form to be used for 
certain complaints, which form requests substantially the same 
information as that required to be provided in current regulations.
    Paperwork Reduction Act (PRA): OSC has submitted modified versions 
of Forms OSC-11 and OSC-12 to OMB for extension of its approval (with 
change) of the forms previously approved under the PRA (OMB Control 
Number 3255-0002). OMB approval for the current version of both forms 
expires on August 31, 2000. The modified forms include the following 
proposed changes: (1) Style, format, and other minor revisions that do 
not appear to impose significant new burdens, such as requests for fax 
numbers, e-mail addresses, and details of certain allegations in a 
different format; (2) addition of explanatory information about OSC 
jurisdiction, elements required to prove some claims, and certain 
procedural rights; and (3) description of new and revised Privacy Act 
routine uses published after the prior OMB approval. Notices, and a 
summary description of proposed modifications to the forms, were 
published in the Federal Register at 65 FR 20504 (April 17, 2000) and 
65 FR 41512 (July 5, 2000). The forms proposed for approval are 
available by contacting OSC, or on the agency Web site at www.osc.gov.
    Unfunded Mandates Reform Act (UMRA): This proposed revision does 
not impose any Federal mandates on State, local, or tribal governments, 
or on the private sector within the meaning of the UMRA.
    National Environmental Policy Act 
(NEPA): This proposed revision would not have any significant impact on 
the environment under NEPA.
    Executive Order 12630 (Government Actions and Interference with 
Constitutionally Protected Property Rights): This proposed revision is 
not a policy that has taking implications under Executive Order 12630.
    Executive Order 12866 (Regulatory Planning and Review): This 
proposed revision is not a significant regulatory action under 
Sec. 3(f) of Executive Order 12866 and does not require an assessment 
of potential costs and benefits under Sec. 6(a)(3) of Executive Order 
12866. OSC anticipates that the economic impact of this revision will 
be insignificant. The revision simply provides additional information 
about OSC jurisdiction and procedures, and requires use of a form by 
some complaints to collect information already specified in current OSC 
regulations.
    Executive Order 12988 (Civil Justice Reform): This proposed rule 
meets applicable standards of Sec. Sec. 3(a) and 3(b)(2) of Executive 
Order 12988.
    Executive Order 13045 (Protection of Children from Environmental 
Health Risks and Safety Risks): This proposed revision is not 
economically significant under Executive Order 12866 and does not 
concern an environmental health or safety risk to children.
    Executive Order 13132 (Federalism): This proposed revision does not 
have new federalism implications under Executive Order 13132. The Hatch 
Act, at title 5 of the U.S. Code, chapter 15, prohibits certain 
political activities of covered state and local government employees. 
The OSC has jurisdiction to issue advisory opinions on political 
activity by those employees, and to bring an enforcement action before 
the Merit Systems Protection Board for prohibited activity by a covered 
state or local government employee. However, this proposed revision 
does not substantively affect the rights of state and local government 
employees. Rather, it provides additional information on OSC 
jurisdiction, and prohibited political activity.

List of Subjects in 5 CFR Part 1800

    Administrative practice and procedure, Government employees, 
Investigations, Law enforcement, Political activities (Government 
employees), Reporting and recordkeeping requirements, Whistleblowing.

    For the reasons stated in the preamble, OSC proposes to amend 5 CFR 
part 1800 as follows:

PART 1800--FILING OF COMPLAINTS AND DISCLOSURES

    1. The heading for part 1800 is revised as set forth above:
    2.-3. The authority citation for Part 1800 continues to read as 
follows:

    Authority: 5 U.S.C. 1212(e).

    4. Section 1800.1 is revised to read as follows:


Sec. 1800.1  Filing complaints of prohibited personnel practices or 
other prohibited activities.

    (a) The Office of Special Counsel (OSC) has investigative 
jurisdiction over the following prohibited personnel practices against 
current or former Federal employees and applicants for Federal 
employment:
    (1) Discrimination, including discrimination based on marital 
status or political affiliation (see Sec. 1810.1 of this chapter for 
information about OSC's deferral policy);
    (2) Soliciting or considering improper recommendations or 
statements about individuals requesting, or under consideration for, 
personnel actions;
    (3) Coercing political activity, or engaging in reprisal for 
refusal to engage in political activity;
    (4) Deceiving or obstructing anyone with respect to competition for 
employment;
    (5) Influencing anyone to withdraw from competition to improve or 
injure the employment prospects of another;
    (6) Granting an unauthorized preference or advantage to improve or 
injure the employment prospects of another;
    (7) Nepotism;
    (8) Reprisal for whistleblowing (whistleblowing is generally 
defined as the disclosure of information about a Federal agency by an 
employee or applicant who reasonably believes that the information 
shows a violation of any law, rule, or regulation; gross mismanagement; 
gross waste of funds; abuse of authority; or a substantial and specific 
danger to public health or safety);
    (9) Reprisal for:
    (i) Exercising certain appeal rights;
    (ii) Providing testimony or other assistance to persons exercising 
appeal rights;
    (iii) Cooperating with the Special Counsel or an Inspector General; 
or
    (iv) Refusing to obey an order that would require the violation of 
law;
    (10) Discrimination based on personal conduct not adverse to job 
performance;
    (11) Violation of a veterans' preference requirement; and
    (12) Taking or failing to take a personnel action in violation of 
any law, rule, or regulation implementing or directly concerning merit 
system principles at 5 U.S.C. 2302(b)(1).
    (b) OSC also has investigative jurisdiction over allegations of the 
following prohibited activities:

[[Page 49952]]

    (1) Violation of the Federal Hatch Act at title 5 of the U.S. Code, 
chapter 73, subchapter III;
    (2) Violation of the state and local Hatch Act at title 5 of the 
U.S. Code, chapter 15;
    (3) Arbitrary and capricious withholding of information prohibited 
under the Freedom of Information Act at 5 U.S.C. 552, (except for 
certain foreign and counterintelligence information);
    (4) Activities prohibited by any civil service law, rule, or 
regulation, including any activity relating to political intrusion in 
personnel decisionmaking;
    (5) Involvement by any employee in any prohibited discrimination 
found by any court or appropriate administrative authority to have 
occurred in the course of any personnel action (unless the Special 
Counsel determines that the allegation may be resolved more 
appropriately under an administrative appeals procedure); and
    (6) Violation of uniformed services employment and reemployment 
rights under 38 U.S.C. 4301, et seq.
    (c) Complaints of prohibited personnel practices or other 
prohibited activities within OSC's investigative jurisdiction should be 
sent to: U.S. Office of Special Counsel, Complaints Examining Unit, 
1730 M Street, NW, Suite 201, Washington, DC 20036-4505.
    (d) Complaints alleging a prohibited personnel practice, or a 
prohibited activity other than a Hatch Act violation, must be submitted 
on Form OSC-11 (``Complaint of Possible Prohibited Personnel Practice 
or Other Prohibited Activity'').
    (1) The form includes a section (Part 2) that must be completed in 
connection with allegations of reprisal for whistleblowing, including 
identification of:
    (i) Each disclosure involved;
    (ii) The date of each disclosure;
    (iii) The person to whom each disclosure was made; and
    (iv) The type and date of any personnel action that occurred 
because of each disclosure.
    (2) If a complainant who has alleged reprisal for whistleblowing 
seeks to supplement a pending OSC complaint by reporting a new 
disclosure or personnel action, then, at OSC's discretion:
    (i) The complainant will be required to document the disclosure or 
personnel action in the Part 2 format, or
    (ii) OSC will document the disclosure or personnel action in the 
Part 2 format, a copy of which will be provided to the complainant upon 
OSC's closure of the complaint.
    (e) Complaint forms are available by writing to OSC at the address 
shown in paragraph (c) of this section; by calling OSC at (1) (800) 
872-9855; or by printing it from OSC's Web site (at www.osc.gov).
    (f) Except for complaints alleging only a Hatch Act violation, OSC 
will not process a complaint submitted in any format other than a 
completed Form OSC-11.
    (g) Complaints alleging only a Hatch Act violation may be submitted 
in any written form to the address shown in paragraph (c) of this 
section, but should include:
    (1) The name, mailing address, and telephone number(s) of the 
complainant(s), and a time when the person(s) making the disclosure(s) 
can be safely contacted, unless the matter is submitted anonymously;
    (2) The department or agency, location, and organizational unit 
complained of; and
    (3) A concise description of the actions complained about, names 
and positions of employees who took these actions, if known to the 
complainant, and dates, preferably in chronological order, together 
with any documentary evidence the complainant may have.
    5. Section 1800.2 is revised to read as follows:


Sec. 1800.2  Filing disclosures of information.

    (a) OSC is authorized by law (at 5 U.S.C. 1213) to provide an 
independent and secure channel for use by current or former federal 
employees and applicants for Federal employment in disclosing 
information that they reasonably believe shows wrongdoing by a Federal 
agency. The law requires OSC to determine whether there is a 
substantial likelihood that the information discloses a violation of 
any law, rule, or regulation; gross mismanagement; gross waste of 
funds; abuse of authority; or a substantial and specific danger to 
public health or safety. If so, OSC must refer the information to the 
agency head involved for investigation and a written report on the 
findings to the Special Counsel. The law does not give OSC jurisdiction 
to investigate the disclosure.
    (b) Employees, former employees, or applicants for employment 
wishing to file a whistleblower disclosure with OSC should send the 
information to: U.S. Office of Special Counsel, Disclosure Unit, 1730 M 
Street, NW, Suite 201, Washington, DC 20036-4505.
    (c) A disclosure of the type of information described in paragraph 
(a) of this section should be submitted in writing, using any of the 
following formats:
    (1) Filers may use Form OSC-12 (``Disclosure of Information''), 
which provides more information about OSC jurisdiction and procedures 
for processing whistleblower disclosures. This form is available from 
OSC by writing to the address shown in paragraph (b) of this section; 
by calling OSC at (1) (800) 572-2249; or by printing it from OSC's Web 
site (at www.osc.gov).
    (2) Filers may use another written format, but the submission 
should include:
    (i) The name, mailing address, and telephone number(s) of the 
person(s) making the disclosure(s), and a time when that person(s) can 
be safely contacted by OSC;
    (ii) The department or agency, location and organizational unit 
complained of; and
    (iii) A statement as to whether the filer consents to the 
disclosure of his or her identity to the agency by OSC in connection 
with any referral to the appropriate agency.

    Dated: August 8, 2000.
Timothy Hannapel,
Acting Special Counsel.
[FR Doc. 00-20671 Filed 8-15-00; 8:45 am]
BILLING CODE 7405-01-P