[Federal Register: August 16, 2000 (Volume 65, Number 159)]
[Proposed Rules]
[Page 49949-49952]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16au00-24]
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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.
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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]
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