[Federal Register Volume 65, Number 211 (Tuesday, October 31, 2000)]
[Rules and Regulations]
[Pages 64881-64884]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-27828]



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

[[Page 64881]]



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.

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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 Sec. 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 Sec. 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 Sec. 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 Secs. 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.

[[Page 64882]]

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 
Sec. 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 Sec. 1800.1(e) (to correct a disagreement in the text of the 
proposed rule between plural and singular references to the OSC 
complaint form); Sec. 1800.1(g)(1) (to substitute ``complaint(s)'' for 
an erroneous reference to ``disclosure(s)''); and to Sec. 1800.2(c)(2) 
(to conform the text more closely to that used in Sec. 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:


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;

[[Page 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:


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 the form from 
OSC's Web site (at http://www.osc.gov).
    (2) Filers may use another written format, but the submission 
should include:

[[Page 64884]]

    (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]
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