[Federal Register Volume 80, Number 14 (Thursday, January 22, 2015)]
[Proposed Rules]
[Pages 3182-3184]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-00753]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 80, No. 14 / Thursday, January 22, 2015 / 
Proposed Rules  

[[Page 3182]]



OFFICE OF SPECIAL COUNSEL

5 CFR Part 1800


Revision of Regulations To Allow Federal Contractors, 
Subcontractors, and Grantees To File Whistleblower Disclosures With the 
U.S. Office of Special Counsel

AGENCY: U.S. Office of Special Counsel.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The U.S. Office of Special Counsel (OSC) proposes revising its 
regulations to accept covered disclosures of wrongdoing from employees 
working under a contract or grant with the Federal government.

DATES: Written or electronic comments must be received on or before 
March 23, 2015.

ADDRESSES: You may submit comments by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email: [email protected]. Include ``NPRM'' in the subject 
line of the message.
     Fax: (202) 254-3711.
     Mail: Office of General Counsel, 1730 M Street NW., Suite 
218, Washington, DC 20036.
     Hand Delivery/Courier: Office of General Counsel, 1730 M 
Street NW., Suite 218, Washington, DC 20036.

FOR FURTHER INFORMATION CONTACT: Lisa V. Terry, General Counsel, U.S. 
Office of Special Counsel, by telephone at (202) 254-3600, by facsimile 
at (202) 254-3711, or by email at [email protected].

SUPPLEMENTARY INFORMATION: The U.S. Office of Special Counsel (OSC) 
proposes to revise its regulations to expand who may file a 
whistleblower disclosure with OSC. This revision will allow employees 
of Federal contractors, subcontractors, and grantees to disclose 
wrongdoing within the Federal government if they work at or on behalf 
of a U.S. government component for which OSC has jurisdiction to accept 
disclosures.
    Congress implemented the Civil Service Reform Act of 1978 (CSRA), 
Public Law 95-454, 92 Stat. 1111, and the Whistleblower Protection Act 
(WPA), Public Law 101-12, 103 Stat. 17, codified at 5 U.S.C. 1201, et 
seq., in order to encourage Federal employees to report government 
fraud, waste, and abuse and to provide protections for Federal 
employees who blow the whistle on government wrongdoing. Title 5, 
Section 1213 of the U.S. Code provides that Federal employees, former 
employees, or applicants for Federal employment may disclose to OSC 
information that they reasonably believe shows a violation of any 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.
    Hence, since 1979, Congress has deputized Federal employees, as 
insiders, to safely disclose wrongdoing they witness or experience in 
the workplace. The Federal workforce has changed significantly since 
the passage of the CSRA, notably in the government's increased reliance 
on contractors. In the modern workforce, employees of contractors, 
subcontractors, and grantees (collectively ``contractors'') often work 
alongside Federal employees, having similar if not identical duties. 
Thus contractors are similarly situated to observe or experience the 
same type of wrongdoing as are Federal employees. According contractors 
a safe channel to report wrongdoing within the government advances 
Congress's purpose in enacting the CSRA and WPA. Moreover, Congress 
recently extended protection against retaliation to government 
contractors who make whistleblower disclosures, thereby signaling its 
encouragement of such disclosures. OSC deems such protection against 
retaliation a precondition to asking insiders to risk their careers to 
report wrongdoing.
    The National Defense Authorization Act of 2013 (NDAA), passed by 
Congress and signed into law by the President, established a ``pilot 
program'' to enhance contractor protection from reprisal for a 
disclosure of information that the contractor reasonably believes is 
evidence of gross mismanagement of a Federal contract or grant; a gross 
waste of Federal funds; an abuse of authority relating to a Federal 
contract or grant; a substantial and specific danger to public health 
or safety; or a violation of law, rule or regulation related to a 
Federal contract or grant. See Public Law 113-1421, 41 U.S.C. 4712. The 
NDAA closely tracks the language of the WPA concerning the type of 
information that may be disclosed and covers disclosures made to, among 
others, an ``authorized official of the Department of Justice or other 
law enforcement agency.'' 41 U.S.C. 4712(a)(2)(E). As a law enforcement 
agency, and pursuant to its authority under 5 U.S.C. 1213, OSC may 
receive disclosures from employees of contractors who are covered by 
the NDAA. The disclosure must concern wrongdoing in the government as 
described in the NDAA.
    Under the proposed rule, OSC may receive disclosures from current 
and former contractors who allege retaliation for making a protected 
disclosure under 41 U.S.C. 4712, if they work or worked on behalf of a 
U.S. government agency in which Federal employees are themselves 
eligible to file disclosures. The proposed rule will therefore limit 
OSC's review of disclosures by Federal contractors to those who are 
both covered by the NDAA and working at agencies over which OSC already 
has jurisdiction pursuant to 5 U.S.C. 1213. For example, OSC lacks 
jurisdiction over employees of the U.S. Postal Service and, therefore, 
will not have jurisdiction over disclosures made by contractors working 
for the U.S. Postal Service. See OSC's Web site at www.osc.gov for a 
complete listing of agencies over which OSC does not have jurisdiction.
    As with disclosures made by Federal employees pursuant to 5 U.S.C. 
1213, any disclosure made by a contractor that involves foreign 
intelligence or counterintelligence information that is specifically 
prohibited by law or by Executive Order will be transmitted to the 
National Security Advisor, the Permanent Select Committee on 
Intelligence of the House of Representatives, and the Select Committee 
on Intelligence of the U.S. Senate. 5 U.S.C. 1213(j). The transmission 
will terminate OSC's involvement with the disclosure.
    Once a disclosure is received from an eligible contractor, OSC will 
evaluate the information and make a determination as to whether there 
is a ``substantial likelihood'' that it discloses

[[Page 3183]]

wrongdoing pursuant to the provisions of section 1213. A contractor 
working at a Federal facility, alongside Federal employees and under 
the line supervision of a Federal employee, is virtually in an 
identical posture to a Federal employee. As such, his/her disclosure 
will likely carry a comparable degree of reliability as that of a 
Federal employee. On the other hand, if a contractor's situation 
differs greatly from that of a Federal employee, it is less likely that 
OSC will be able to find that the contractor has credible information 
about government wrongdoing needed to make a substantial likelihood 
finding. For example, an off-site contractor, or one not working under 
Federal line supervision, is much less likely to directly encounter 
government wrongdoing and, therefore, may not have sufficiently 
reliable information. For that reason, to meet the ``substantial 
likelihood'' threshold, he or she may be required to produce compelling 
documentary information establishing government wrongdoing.
    If OSC determines that a disclosure meets the ``substantial 
likelihood'' threshold, the Special Counsel will refer the matter to 
the relevant agency head, who will be required to conduct an 
investigation into the disclosure. The identity of a contractor who 
makes a disclosure to OSC will not be revealed without his or her 
consent, unless the Special Counsel determines that there is an 
imminent danger to public health or safety, or an imminent violation of 
criminal law. OSC does not consider anonymous disclosures. Any 
disclosure submitted anonymously will be referred to the Office of 
Inspector General at the appropriate agency.
    Contractors who wish to report government wrongdoing to OSC under 
this rule will be encouraged to use OSC Form 12, which is available at 
OSC's Web site, www.osc.gov. Contractors who wish to report a 
prohibited personnel practice, including retaliation for 
whistleblowing, will be required do so through the NDAA's pilot program 
delineated at 41 U.S.C. 4712. This rule will remain in effect as long 
as the provisions of the NDAA's ``pilot program'' are in force.

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. Interested persons are invited to submit 
written comments on this proposed amendatory rulemaking. The comments 
will be carefully considered and any appropriate changes will be made 
before a final rule is adopted and published in the Federal Register.
    Executive Order 12866 (Regulatory Planning and Review): OSC does 
not anticipate that that this proposed rule will have significant 
economic impact, raise novel issues, and/or have any other significant 
impacts. Thus, this proposed rule is not a significant regulatory 
action under 3(f) of Executive Order 12866 and does not require the 
Office of Management and Budget to conduct an assessment of potential 
costs and benefits under 6(a)(3) of the order.
    Congressional Review Act (CRA): OSC has determined that this 
proposed rule is not a major rule under the Congressional Review Act as 
it is unlikely to result in an annual effect on the economy of $100 
million or more; or to result in a major increase in costs or prices 
for consumers, individual industries, Federal, state, or local 
government agencies or geographic regions; or to have a significant 
adverse effect on competition, employment, investment, productivity, or 
innovation or on the ability of U.S.-based enterprises to compete in 
domestic and export markets.
    Regulatory Flexibility Act (RFA): The Special Counsel certifies 
that this proposed rule will not have a significant economic impact on 
a substantial number of small entities because it primarily affects 
wrongdoing in the Federal government.
    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 rule will 
have no physical impact upon the environment and, therefore, will not 
require any further review under NEPA.
    Paperwork Reduction Act (PRA): This proposed rule does not impose 
any new recordkeeping, reporting, or other information collection 
requirements on the public.
    Executive Order 13132 (Federalism): This proposed revision does not 
have new Federalism implications under Executive Order 13132.
    Executive Order 12988 (Civil Justice Reform): This proposed rule 
meets applicable standards of 3(a) and 3(b)(2) of Executive Order 
12988.

List of Subjects in 5 CFR Part 1800

    Administrative practice and procedure, Government employees, 
Investigations, Law enforcement, Whistleblowing.
    For the reasons stated in the preamble, OSC proposes to amend 5 CFR 
part 1800 as follows:

PART 1800--FILING OF COMPLAINTS AND ALLEGATIONS

0
1. The authority citation for 5 CFR part1800 continues to read as 
follows:

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

0
2. 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. Additionally, OSC may receive disclosures of wrongdoing from 
current and former Federal contractors, subcontractors, and grantees 
(collectively, ``contractors'') that are cognizable under 41 U.S.C. 
4712. Upon receipt of a disclosure, whether from a current or former 
Federal employee or applicant or from a contractor or former 
contractor, 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 OSC does make a substantial likelihood determination, it 
shall refer the information to the agency head involved for 
investigation and a written report on the findings to the Special 
Counsel, pursuant to 5 U.S.C. 1213(c). The law does not authorize OSC 
to investigate the subject of a disclosure.
    (b) Procedures for filing disclosures. Current or former employees, 
applicants for Federal employment, and current and former contractors, 
subcontractors, and grantees whose disclosures are cognizable under 41 
U.S.C. 4712 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

[[Page 3184]]

M Street, NW., Suite 218, Washington, DC 20036-4505;
    (ii) By calling OSC, at: (800) 572-2249 (toll-free), or (202) 254-
3600 (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) 254-3711; or
    (iii) Electronically, at: http://www.osc.gov.

    Dated: January 14, 2015.
Mark P. Cohen,
Principal Deputy Special Counsel.
[FR Doc. 2015-00753 Filed 1-21-15; 8:45 am]
BILLING CODE 7405-01-P