This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

64881

Vol. 65, No. 211

Tuesday, October 31, 2000

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: Final rule.

SUMMARY: The Office of Special Counsel

(OSC) is issuing a final rule amending

its regulations at 5 CFR part 1800 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 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; 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.

DATES: This rule is effective on

December 1, 2000.

FOR FURTHER INFORMATION CONTACT:

Kathryn Stackhouse, Attorney, Planning

and Advice Division, by telephone at

(202) 653–8971, or by fax at (202) 653–

5161. Information on the rule is also

available on OSC’s Web site (at

www.osc.gov).

SUPPLEMENTARY INFORMATION:

I. Rulemaking History

On August 16, 2000, OSC published

for comment a proposed rule revising

agency regulations at 5 CFR part 1800.

See 65 FR 49949. OSC issued the

proposed rule pursuant to 5 U.S.C.

1212(e), which authorizes the Special

Counsel to prescribe and publish such

regulations as may be necessary to

perform the functions of the office.

A brief outline of the purposes for

which OSC has revised part 1800

follows:

(1) To provide basic information

about OSC jurisdiction over complaints

of improper employment practices and

whistleblower disclosures. Sections

1800.1 and 1800.2 currently outline

procedures for filing complaints and

disclosures with OSC, with no reference

to its basic jurisdiction. The revision of

Part 1800 outlines matters within OSC’s

jurisdiction under each section as an aid

to persons considering filing a

complaint or disclosure.

(2) To 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 paragraphs

(b)(1)–(6), currently 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. Mandatory use of the

revised Form OSC–11, rather than any

written format chosen by a complaint

filer, will help: (a) Enable complainants

to obtain useful information about OSC

jurisdiction and procedures before filing

the complaint; (b) produce more

complete and consistent 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.

(3) To outline procedures to be

followed by OSC when filers submit

complaints (other than Hatch Act

allegations) in formats other than Form

OSC–11. Under the revision of § 1800.1,

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 the completed Form OSC–11.

(4) To revise and update descriptions

of information needed by OSC to

process both complaints alleging Hatch

Act violations and whistleblower

disclosures. OSC will 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, including

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

revision of § 1800.1 tailors the

description to Hatch Act allegations, for

filers who submit them in formats other

than an OSC complaint form. The

revision of § 1800.2 updates the

description of information needed in

whistleblower disclosures to OSC, for

filers who submit them in a format other

than the OSC disclosure form.

(5) To 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,

at which many OSC forms and

publications are available to the public,

has been established. The revision of

§§ 1800.1 and 1800.2 updates both

sections with current mailing and Web

site address information.

Following OSC’s publication of the

notice of proposed rulemaking, the

Office of Management and Budget

(OMB) approved a revised complaint

form (Form OSC–11), along with a

revised form for whistleblower

disclosures (Form OSC–12), as a

collection of information (OMB Control

No. 3255–0002) under the Paperwork

Reduction Act. See 65 FR 41512 (July 5,

2000) for a description of the revisions

to both forms.

64882 Federal Register / Vol. 65, No. 211 / Tuesday, October 31, 2000 / Rules and Regulations

II. Summary of Comments

The proposed rule provided a 60-day

comment period, and invited comments

from current and former Federal

employees, employee representatives,

other Federal agencies, and the general

public. OSC also posted the notice of

proposed rulemaking on its Web site.

Timely comments were received from

two sources, an individual and an

executive branch agency. After carefully

considering the comments and making

appropriate modifications, OSC is

publishing this final rule pursuant to 5

U.S.C. 1212(e).

The individual respondent stated that

making use of OSC’s complaint form

mandatory would further discourage

federal employees from reporting

unlawful and wasteful actions by

federal agencies. He suggested that OSC

could simply provide the form and the

information requested to complainants,

and request that they respond.

OSC has implemented a variant of

this suggestion over the years—either

accepting and acting on complaints in

whatever form submitted, or offering

persons who inquired the option of

submitting their complaints on an OSC

complaint form. As described in the

notice of proposed rulemaking, this led

to considerable disparities in the way

complaint information was presented to

OSC. In addition, due to a lack of

awareness about or misunderstanding of

its role and jurisdiction, OSC received

many complaints about matters that it

had no legal authority to pursue.

OSC has concluded that mandatory

use of its revised complaint form will be

more efficient, effective, and useful,

both for complaint filers and OSC. As

outlined in the Rulemaking History

section, above, mandatory use of the

OSC form, rather than any written

format chosen by a filer, will help: (a)

Enable complainants to obtain useful

information about OSC jurisdiction and

procedures before filing a complaint

(including information about matters

outside OSC’s jurisdiction, election of

remedies, OSC deferral policies, legal

elements required to establish reprisal

for whistleblowing, and certain appeal

rights to the Merit Systems Protection

Board (‘‘the Board’’); (b) produce more

complete and consistent 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.

The respondent’s comment, however,

led OSC to conclude that the final rule

should state more clearly the procedures

that OSC will follow when allegations

are received in a format other than an

OSC complaint form. Therefore, OSC is

revising the final regulation, at

§ 1800.1(f), to indicate that: (a) When

allegations are received in a format

other than an OSC complaint form, the

material submitted will be returned to

the filer with a blank Form OSC–11 to

complete and return to OSC; and (b) the

complaint will be considered to be filed

on the date on which OSC receives the

completed Form OSC–11.

OSC anticipates that the return of

allegations and supporting material may

be required more frequently for some

months after use of the complaint form

becomes mandatory on December 1,

2000. After information about

mandatory use of the Form OSC–11

becomes more widely known, however,

OSC believes that this will occur less

often. OSC also believes that, with

increasing access to the Internet, its

complaint form and information about

its complaint procedures will be more

readily available to potential filers.

OSC’s planned implementation of

procedures permitting electronic filing

of complaints by October 2003 will

make that process even easier.

OSC does not intend in any way to

discourage federal employees from

filing complaints, nor does OSC believe

that this regulatory change will produce

that result. Rather, OSC believes that

this change will help employees make

more informed decisions about whether

and what to report to OSC, and will

result in greater efficiencies in the

complaint process.

The second comment was received

from an executive branch agency, which

agreed with the proposal as written, and

asked that OSC ensure that its

complaint form comply with Executive

Order 13166 (Improving Access to

Services for Persons with Limited

English Proficiency). The executive

order requires agencies to develop and

begin implementing a plan to improve

access to federally conducted and

federally assisted programs and

activities, and to submit the plan to the

Department of Justice by December 11,

2000. OSC is reviewing its programs and

activities to identify those that may be

subject to the executive order. Should

compliance with the executive order

entail any revision to the complaint

form, OSC will proceed accordingly.

Technical, non-substantive

corrections have been made to the final

version of § 1800.1(e) (to correct a

disagreement in the text of the proposed

rule between plural and singular

references to the OSC complaint form);

§ 1800.1(g)(1) (to substitute

‘‘complaint(s)’’ for an erroneous

reference to ‘‘disclosure(s)’’); and to

§ 1800.2(c)(2) (to conform the text more

closely to that used in § 1800.1(e)).

III. Matters of Regulatory Procedure

Procedural determinations were

published in the notice of proposed

rulemaking for the Regulatory

Flexibility Act; the Paperwork

Reduction Act; the Unfunded Mandates

Reform Act; the National Environmental

Policy Act; Executive Order 12630

(Government Actions and Interference

with Constitutionally Protected Property

Rights); Executive Order 12866

(Regulatory Planning and Review);

Executive Order 12988 (Civil Justice

Reform); Executive Order 13045

(Protection of Children from

Environmental Health Risks and Safety

Risks); and Executive Order 13132

(Federalism). There have been no

changes in these procedural

determinations.

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 set forth in the

preamble, the Office of Special Counsel

is amending title 5, chapter VIII, Part

1800 as follows:

PART 1800—FILING OF COMPLAINTS

AND DISCLOSURES

1. The authority citation for 5 CFR

Part 1800 continues to read as follows:

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

2. Section 1800.1 is revised to read as

follows:

§ 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 § 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;

Federal Register / Vol. 65, No. 211 / Tuesday, October 31, 2000 / Rules and Regulations 64883

(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:

(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) Form OSC–11 is 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 the form from OSC’s Web site

(at http://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. If a person uses a format other

than the required OSC form to file a

complaint (other than a Hatch Act

allegation), the material received by

OSC will be returned to the filer with a

blank Form OSC–11 to complete and

return to OSC. The complaint will be

considered to be filed on the date on

which OSC receives the 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 complaint(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.

3. Section 1800.2 is revised to read as

follows:

§ 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 the form from OSC’s Web site

(at http://www.osc.gov).

(2) Filers may use another written

format, but the submission should

include:

64884 Federal Register / Vol. 65, No. 211 / Tuesday, October 31, 2000 / Rules and Regulations

1The CPI–U is compiled by the Bureau of

Statistics of the Department of Labor. To calculate

the adjustment, the FDIC used the Department of

Labor, Bureau of Labor Statistics B All Urban

Consumers tables to get the CPI–U values.

(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: October 25, 2000.

Elaine Kaplan,

Special Counsel.

[FR Doc. 00–27828 Filed 10–30–00; 8:45 am]

BILLING CODE 7405–01–P

FEDERAL DEPOSIT INSURANCE

CORPORATION

12 CFR Part 308

RIN 3064–AC45

Rules of Practice and Procedure

AGENCY: Federal Deposit Insurance

Corporation.

ACTION: Final rule.

SUMMARY: The Federal Civil Monetary

Penalty Inflation Adjustment Act of

1990 requires all federal agencies with

statutory authority to impose civil

money penalties (CMPs) to evaluate and

adjust those CMPs every four years. The

FDIC last adjusted its CMP statutes in

1996. The FDIC is issuing this final rule

to implement the required adjustments

to its CMP statutes.

EFFECTIVE DATE: October 31, 2000.

FOR FURTHER INFORMATION CONTACT: John

T. Mahshie, Counsel, (202) 898–3503,

Compliance and Enforcement Section,

Legal Division, 550 17th Street, NW,

Washington, DC 20429.

SUPPLEMENTARY INFORMATION:

I. Background

The Debt Collection Improvement Act

(DCIA) (Pub. L. 104–134) amended

section 4 of the Federal Civil Penalties

Inflation Adjustment Act of 1990

(Inflation Adjustment Act) (28 U.S.C.

2461 note), to require the head of each

Federal agency to enact regulations

within 180 days of the enactment of the

DCIA and at least once every four years

thereafter, that adjust each CMP

provided by law within the jurisdiction

of the agency (with the exception of

certain specifically listed statutes) by

the inflation adjustment formula set

forth in section 5(b) of the Inflation

Adjustment Act.

To satisfy the requirements of the

DCIA, the FDIC is amending those

sections of part 308 of its regulations

pertaining to its Rules of Practice and

Procedure which address CMPs. The

amount of each CMP which the FDIC

has jurisdiction to impose has been

increased according to the prescribed

formula. The penalties were last

adjusted in 1996. (61 FR 57987). Any

increase in penalty amounts under the

DCIA shall apply only to violations

which occur after the effective date of

the increase.

Summary of Calculation

The Inflation Adjustment Act requires

that each CMP amount be increased by

the ‘‘cost of living’’ adjustment, which

is defined as the percentage by which

the Consumer Price Index (CPI–U) 1 for

the month of June of the calendar year

preceding the adjustment exceeds the

CPI for the month of June of the

calendar year in which the amount of

the CMP was last set or adjusted

pursuant to law. Any increase is to be

rounded to the nearest multiple of $10

in the case of penalties less than or

equal to $100; multiple of $100 in the

case of penalties greater than $100 but

less than or equal to $1,000; multiple of

$1,000 in the case of penalties greater

than $1,000 but less than or equal to

$10,000; multiple of $5,000 in the case

of penalties greater than $10,000 but

less than or equal to $100,000; multiple

of $10,000 in the case of penalties

greater than $100,000 but less than or

equal to $200,000; and multiple of

$25,000 in the case of penalties greater

than $200,000. Under the DCIA, the first

adjustment may not exceed ten percent

of the current penalty amount.

Example

To explain the inflation adjustment

calculation for CMP amounts that were

last adjusted in 1996, we will use the

following example. Under 12 U.S.C.

1818(i), as adjusted under 12 CFR

308.132(c), the FDIC may impose a daily

maximum Tier Three CMP not to exceed

$1,100,000 for violating certain laws.

We first determine the appropriate

CPI–U. The statute requires the FDIC to

use the CPI–U for June of the calendar

year preceding the year of adjustment.

Because we are adjusting CMPs in 2000,

we use the CPI–U for June 1999, which

was 166.2. We must also determine the

CPI–U for June of the year the CMP was

last set by law or adjusted for inflation.

Because the FDIC last adjusted the

CMPs under 12 U.S.C. 1818 in 1996, we

use the CPI–U for June 1996, which was

156.7.

We next calculate the cost of living

adjustment or inflation factor. To do

this, we divide the CPI–U for June 1999

(166.2) by the CPI–U for June 1996

(156.7). The result is 1.061 (i.e., a 6.1

percent increase).

Third, we calculate the raw inflation

adjustment. To do this, multiply the

maximum penalty amounts by the

inflation factor. In our example,

$1,100,000 multiplied by the inflation

factor of 1.061 equals $1,167,100.

Fourth, we round the raw inflation

amounts according to the rounding rules

in section 5(a) of the Inflation

Adjustment Act. Since we round only

the increased amount, we calculate the

increased amount by subtracting the

current maximum penalty amounts from

the raw maximum inflation

adjustments. Accordingly, the increased

amount for the maximum penalty in our

example is $67,100 (i.e., $1,167,100 less

$1,100,000). Under the rounding rules,

if the penalty is greater than $200,000,

we round the increase to the nearest

multiple of $25,000. Therefore, the

maximum penalty increase for our

example is $75,000.

Fifth, we add the rounded increase to

the maximum penalty amount last set or

adjusted. In our example, $1,100,000

plus $75,000 yields a maximum

inflation adjusted penalty amount of

$1,175,000.

Summary of Adjustments

Under the Inflation Adjustment Act,

the FDIC must adjust for inflation the

civil monetary penalties in statutes that

it administers. The following chart

displays the adjusted civil money

penalty amounts for the enumerated

statues. The amounts in this chart apply

to violations that occur after October 31,

2000: