[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]
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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
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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]
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