[Federal Register Volume 68, Number 229 (Friday, November 28, 2003)]
[Rules and Regulations]
[Pages 66695-66697]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-29518]



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  Federal Register / Vol. 68, No. 229 / Friday, November 28, 2003 / 
Rules and Regulations  

[[Page 66695]]



OFFICE OF SPECIAL COUNSEL

5 CFR Part 1800


Revision of Regulations To Describe Filing Requirements and 
Options, Including Electronic Filing

AGENCY: U.S. Office of Special Counsel.

ACTION: Final rule.

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

SUMMARY: The U.S. Office of Special Counsel (OSC) is revising its 
regulations on filing to state filing requirements and options more 
clearly and to provide information on where to find instructions for 
electronic filing with OSC.

DATES: This rule will be effective December 1, 2003.

FOR FURTHER INFORMATION CONTACT: Kathryn Stackhouse, General Law 
Counsel, in writing at: U.S. Office of Special Counsel, Legal Counsel 
and Policy Division, 1730 M Street NW., Suite 218, Washington, DC 
20036-4505; by telephone at (202) 653-8971; or by facsimile at (202) 
653-5151.

SUPPLEMENTARY INFORMATION: The U.S. Office of Special Counsel (OSC) is 
revising its regulations governing filing of: (1) complaints of 
prohibited personnel practices or other prohibited activity; (2) 
disclosures of information; and (3) requests for advisory opinions on 
the Hatch Act, under 5 CFR 1800.1, 1800.2, and 1800.3. These revisions 
are intended to more clearly describe the requirements and options for 
filing complaints, disclosures and requests for advisory opinions, and 
to direct potential filers to OSC's web site for information and 
instructions on electronic filing of complaints and disclosures (at 
http://www.osc.gov). The Government Paperwork Elimination Act (GPEA, 
Pub. L. 105-277) requires Federal agencies to provide individuals or 
entities that deal with agencies the option to submit information or 
transact with the agency electronically, and to maintain records 
electronically, when practicable. OSC has been working to comply with 
GPEA in stages by first offering complaint and disclosure forms to be 
printed from OSC's web site; then adding the capability of filling the 
forms out on-line and submitting them by mail or fax to OSC; and 
finally by offering electronic filing. These options are described on 
the OSC Web site at http://www.osc.gov (under ``Forms''). This revision 
of OSC regulations on filing complaints and disclosures with OSC is 
intended to present clear information on all available options for such 
filings.

Procedural Determinations

    Administrative Procedure Act (APA)
    This action is taken under the Special Counsel's authority, at 5 
U.S.C. 1212(e), to publish regulations in the Federal Register. Under 
the Administrative Procedure Act, at 5 U.S.C. 553(b)(3)(B), statutory 
procedures for agency rulemaking do not apply ``when the agency for 
good cause finds (and incorporates the finding and a brief statement of 
reasons therefore in the rules issued) that notice and public procedure 
thereon are impracticable, unnecessary, or contrary to the public 
interest.'' OSC finds that such notice and public procedure are 
unnecessary and contrary to the public interest because: (1) these 
revisions more clearly describe filing options at OSC; and (2) the 
public benefits from early notice of additional filing options, and 
further delay is unnecessary and contrary to the public interest.
    Congressional Review Act (CRA): OSC has determined that these 
revisions are non-major under the Congressional Review Act, and is 
submitting a report on this final rule to Congress and the General 
Accounting Office pursuant to the act. The rule is effective December 
1, 2003, as permitted by 5 U.S.C. 808.
    Regulatory Flexibility Act (RFA): The Regulatory Flexibility Act 
does not apply, as this rule is not subject to notice and comment 
procedures under the APA.
    Paperwork Reduction Act (PRA): OSC has received OMB approval of the 
Forms OSC-11 and OSC-12, which are referenced in the regulations, for 
use through August 31, 2006, including use of these forms for 
electronic filing.
    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.
    Executive Order 12866 (Regulatory Planning and Review): OSC 
anticipates that the economic impact of this revision will be 
insignificant. Thus this proposed revision is not a significant 
regulatory action under section 3(f) of Executive Order 12866, and does 
not require an assessment of potential costs and benefits under section 
6(a)(3) of the order.
    Executive Order 12988 (Civil Justice Reform): This proposed rule 
meets applicable standards of section 3(a) and 3(b)(2) of Executive 
Order 12988.
    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, these revised regulations simply provide information 
on options for filing an allegation of a violation of the Hatch Act, or 
a request for an advisory opinion on the Hatch Act with OSC.

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.

0
For the reasons stated in the preamble, OSC amends 5 CFR part 1800 as 
follows:

PART 1800-FILING OF COMPLAINTS AND ALLEGATIONS

0
1. The authority citation for Part 1800 continues to read as follows:

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

0
2. Section 1800.1 is revised to read as follows:

[[Page 66696]]

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

    (a) Prohibited personnel practices. The Office of Special Counsel 
(OSC) has investigative jurisdiction over the following prohibited 
personnel practices committed 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. 2301(b).
    (b) Other prohibited activities. OSC also has investigative 
jurisdiction over allegations of the following prohibited activities:
    (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) Procedures for filing complaints alleging prohibited personnel 
practices or other prohibited activities (other than the Hatch Act).
    (1) Current or former Federal employees, and applicants for Federal 
employment, may file a complaint with OSC alleging one or more 
prohibited personnel practices, or other prohibited activities within 
OSC's investigative jurisdiction. Form OSC-11 (``Complaint of Possible 
Prohibited Personnel Practice or Other Prohibited Activity'') must be 
used to file all such complaints (except those limited to an allegation 
or allegations of a Hatch Act violation - see paragraph (d) of this 
section for information on filing Hatch Act complaints).
    (2) Part 2 of Form OSC-11 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.
    (3) Except for complaints limited to alleged violation(s) of the 
Hatch Act, OSC will not process a complaint filed in any format other 
than a completed Form OSC-11. If a filer does not use Form OSC-11 to 
submit a complaint, OSC will provide the filer with information about 
the form. The complaint will be considered to be filed on the date on 
which OSC receives a completed Form OSC-11.
    (4) Form OSC-11 is available:
    (i) By writing to OSC, at: Office of Special Counsel, Complaints 
Examining Unit, 1730 M Street NW., Suite 218, Washington, DC 20036-
4505;
    (ii) By calling OSC, at: (800) 872-9855 (toll-free), or (202) 653-
7188 (in the Washington, DC area); or
    (iii) Online, at: http://www.osc.gov (to print out and complete on 
paper, or to complete online).
    (5) A complainant can file a completed Form OSC-11 with OSC by any 
of the following methods:
    (i) By mail, to: Office of Special Counsel, Complaints Examining 
Unit, 1730 M Street NW., Suite 218, Washington, DC 20036-4505;
    (ii) By fax, to: (202) 653-5151; or
    (iii) Electronically, at: http://www.osc.gov.
    (d) Procedures for filing complaints alleging violation of the 
Hatch Act.
    (1) Complaints alleging a violation of the Hatch Act may be 
submitted in any written form, but should include:
    (i) The complainant's name, mailing address, telephone number, and 
a time when OSC can contact that person about his or her complaint 
(unless the matter is submitted anonymously);
    (ii) The department or agency, location, and organizational unit 
complained of; and
    (iii) A concise description of the actions complained about, names 
and positions of employees who took the actions, if known to the 
complainant, and dates of the actions, preferably in chronological 
order, together with any documentary evidence that the complainant can 
provide.
    (2) A written Hatch Act complaint can be filed with OSC by any of 
the methods listed in paragraph (c)(5)(i)-(iii) of this section.

0
3. Section 1800.2 is revised to read as follows:


Sec.  1800.2  Filing disclosures of information.

    (a) General. 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. OSC must 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 it does, the law requires OSC to refer the information to 
the agency head involved for investigation and a written report on the 
findings to the Special Counsel. The law

[[Page 66697]]

does not authorize OSC to investigate the subject of a disclosure.
    (b) Procedures for filing disclosures. Current or former Federal 
employees, and applicants for Federal employment, may file a disclosure 
of the type of information described in paragraph (a) of this section 
with OSC. Such disclosures must be filed in writing (including 
electronically - see paragraph (b)(3)(iii) of this section).
    (1) Filers are encouraged to use Form OSC-12 (``Disclosure of 
Information'') to file a disclosure of the type of information 
described in paragraph (a) of this section with OSC. This form provides 
more information about OSC jurisdiction, and procedures for processing 
whistleblower disclosures. Form OSC-12 is available:
    (i) By writing to OSC, at: Office of Special Counsel, Disclosure 
Unit, 1730 M Street NW., Suite 218, Washington, DC 20036-4505;
    (ii) By calling OSC, at: (800) 572-2249 (toll-free), or (202) 653-
9125 (in the Washington, DC area); or
    (iii) Online, at: http://www.osc.gov (to print out and complete on 
paper, or to complete online).
    (2) Filers may use another written format to submit a disclosure to 
OSC, 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 OSC can contact 
that person about his or her disclosure;
    (ii) The department or agency, location and organizational unit 
complained of; and
    (iii) A statement as to whether the filer consents to disclosure of 
his or her identity by OSC to the agency involved, in connection with 
any OSC referral to that agency.
    (3) A disclosure can be filed in writing with OSC by any of the 
following methods:
    (i) By mail, to: Office of Special Counsel, Disclosure Unit, 1730 M 
Street NW., Suite 218, Washington, DC 20036-4505;
    (ii) By fax, to: (202) 653-5151; or
    (iii) Electronically, at: http://www.osc.gov.

0
4. Section 1800.3 is revised to read as follows:


Sec.  1800.3  Advisory opinions.

    The Special Counsel is authorized to issue advisory opinions only 
about political activity of state or local officers and employees 
(under title 5 of the United States Code, at chapter 15), and political 
activity of Federal officers and employees (under title 5 of the United 
States Code, at chapter 73, subchapter III). A person can seek an 
advisory opinion from OSC by any of the following methods:
    (a) By phone, at: (800) 854-2824 (toll-free), or (202) 653-7143 (in 
the Washington, DC area);
    (b) By mail, to: Office of Special Counsel, Hatch Act Unit, 1730 M 
Street NW., Suite 218, Washington, DC 20036-4505;
    (c) By fax, to: (202) 653-5151; or
    (d) By e-mail, to: [email protected].

    Dated: November 20, 2003
William E. Reukauf,
Acting Special Counsel.
[FR Doc. 03-29518 Filed 11-26-03; 8:45 am]
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