82 FR 26739 - Filing of Complaints of Prohibited Personnel Practices or Other Prohibited Activities and Filing Disclosures of Information

OFFICE OF SPECIAL COUNSEL

Federal Register Volume 82, Issue 110 (June 9, 2017)

This final rule revises the U.S. Office of Special Counsel's (OSC's) regulations regarding the filing of complaints and disclosures with OSC, and updates OSC's prohibited personnel practice provisions. In accordance with the Paperwork Reduction Act of 1995, and Office of Management and Budget (OMB) implementing regulations, OSC sought approval from OMB for a new, dynamic electronic form to be used for filing complaints and disclosures. This new form, Form OSC-14, will replace Forms OSC-11, OSC-12, and OSC-13, which were previously approved by OMB.

[Federal Register Volume 82, Number 110 (Friday, June 9, 2017)]
[Rules and Regulations]
[Pages 26739-26741]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-11978]



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Rules and Regulations
                                                Federal Register
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Federal Register / Vol. 82, No. 110 / Friday, June 9, 2017 / Rules 
and Regulations

[[Page 26739]]



OFFICE OF SPECIAL COUNSEL

5 CFR Part 1800


Filing of Complaints of Prohibited Personnel Practices or Other 
Prohibited Activities and Filing Disclosures of Information

AGENCY: U.S. Office of Special Counsel.

ACTION: Final rule.

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SUMMARY: This final rule revises the U.S. Office of Special Counsel's 
(OSC's) regulations regarding the filing of complaints and disclosures 
with OSC, and updates OSC's prohibited personnel practice provisions. 
In accordance with the Paperwork Reduction Act of 1995, and Office of 
Management and Budget (OMB) implementing regulations, OSC sought 
approval from OMB for a new, dynamic electronic form to be used for 
filing complaints and disclosures. This new form, Form OSC-14, will 
replace Forms OSC-11, OSC-12, and OSC-13, which were previously 
approved by OMB.

DATES:  This rule is effective July 17, 2017.

FOR FURTHER INFORMATION CONTACT: Susan K. Ullman, 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: 

Background

    The final rule makes minor changes to the existing language in 5 
CFR 1800.1(c)(1) through (5) and (d), and 1800.2(b)(1) and (2) by 
replacing references to, and information about, the legacy OSC forms 
with references to, and information about, the new form established by 
OSC. The final rule refers to forms established by OSC and covers the 
new form that OSC submitted to OMB for approval. The final rule will 
enable OSC to revise its forms in the future, while still providing for 
public notice and OMB review of future revisions. The final rule also 
updates the prohibited personnel practice provisions, at 5 CFR 
1800.1(a)(13), based on the requirements of 5 U.S.C. 2302(b)(13) 
regarding nondisclosure forms, policies, or agreements. OSC received no 
comments from members of the public or other Agencies on the final rule 
or the new form.
    The final rule also corrects minor typographical errors, including 
updating telephone and fax numbers and email contact information for 
Hatch Act complaints.
    OSC is an independent agency responsible for, among other things: 
(1) Investigation of allegations of prohibited personnel practices 
defined by law at 5 U.S.C. 2302(b); (2) processing of whistleblower 
disclosures under 5 U.S.C. 1213; and (3) the interpretation and 
enforcement of Hatch Act limitations on political activity in chapters 
15 and 73 of title 5 of the U.S. Code.

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.
    Executive Order 12866 (Regulatory Planning and Review): This final 
rule is exempt from review under Executive Order 12866.
    Congressional Review Act (CRA): This final 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; is unlikely to 
result in a major increase in costs or prices for consumers, individual 
industries, federal, state, or local government agencies or geographic 
regions; and is unlikely 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): A regulatory flexibility analysis 
was not required and none was prepared.
    Unfunded Mandates Reform Act (UMRA): This final rule 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 final rule will have 
no physical impact upon the environment and therefore will not require 
any further review under NEPA.
    Paperwork Reduction Act (PRA): OSC submitted this final rule and 
collection to OMB for review pursuant to the Paperwork Reduction Act, 
44 U.S.C. 3501, et seq. OSC did not receive any comments regarding the 
proposed rule, the new form, or the information collection.
    Title of Collection: Form OSC-14: Electronic Submission of 
Allegations and Disclosures.
    The new electronic form will be available on publication of this 
rule on the OSC Web site at http://www.osc.gov.
    Type of Information Collection Request: Approval of new collection 
of information to replace a previously-approved collection of 
information.
    Affected Public: Current and former Federal employees, applicants 
for Federal employment, state and local government employees, and their 
representatives, and the general public.
    Respondent's Obligation: Voluntary.
    Estimated Annual Number of Form OSC-14 Respondents: 6,000 
(estimated prohibited personnel practice filers = 4,000; estimated 
disclosure filers = 1,835; and estimated Hatch Act filers = 165). OSC 
based these estimates on a review of recent Annual Reports and an 
analysis of developing trends for this year.
    Frequency of Use of Form OSC-14: Daily.
    Estimated Average Amount of Time for a Person to Respond Using Form 
OSC-14: For prohibited personnel practice and other prohibited 
activities allegations, one hour and 15 minutes; for whistleblower 
disclosures, one hour; and for Hatch Act allegations, 30 minutes to 
complete the form. OSC based these estimates on testing completed by 
OSC employees during the development of the collection form.
    Estimated Annual Burden for Filing Form OSC-14: 6,917.5 hours.
    Abstract: The electronic form must be used by current and former 
Federal employees and applicants for Federal employment to submit 
allegations of possible prohibited personnel practices or other 
prohibited activity for investigation and possible prosecution by OSC, 
and to file disclosures of covered wrongdoing for review and possible 
referral to heads of agencies. The form may also be used by

[[Page 26740]]

individuals to file complaints under the Hatch Act.
    Executive Order 13132 (Federalism): This final rule does not have 
new federalism implications under Executive Order 13132.
    Executive Order 12988 (Civil Justice Reform): This final 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, Political activities (Government 
employees), Reporting and recordkeeping requirements, Whistleblowing.

    OSC amends 5 CFR part 1800 as follows:

PART 1800--FILING OF COMPLAINTS AND ALLEGATIONS

0
1. The authority citation for 5 CFR part 1800 continues to read as 
follows:

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


0
2. Section 1800.1 is revised to read as follows:


Sec.  1800.1   Filing complaints of prohibited personnel practices or 
other prohibited activities.

    (a) Prohibited personnel practices. The Office of Special Counsel 
(OSC) has investigative jurisdiction over the following prohibited 
personnel practices committed 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;
    (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. 2301(b); and
    (13) Implementing or enforcing nondisclosure policies, forms, or 
agreements that do not contain the statement required by 5 U.S.C. 
2302(b)(13).
    (b) Other prohibited activities. 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) Certain state and local violations of the 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 decision making;
    (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) Procedures for filing complaints alleging prohibited personnel 
practices or other prohibited activities (other than the Hatch Act). 
(1) Current or former Federal employees, and applicants for Federal 
employment, may file a complaint with OSC alleging one or more 
prohibited personnel practices, or other prohibited activities within 
OSC's investigative jurisdiction. The Form OSC-14 must be used to file 
all such complaints (except those limited to an allegation or 
allegations of a Hatch Act violation--see paragraph (d) of this section 
for information on filing Hatch Act complaints).
    (2) Forms filed in connection with allegations of reprisal for 
whistleblowing must identify:
    (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.
    (3) OSC will not process a complaint filed in any format other than 
a completed OSC Form-14. If a filer does not use the OSC Form-14 to 
submit a complaint, OSC will provide the filer with information about 
the OSC Form-14. OSC will consider the complaint filed on the date on 
which OSC receives a completed OSC Form-14.
    (4) OSC Form-14 is available:
    (i) At: http://www.osc.gov (to complete online);
    (ii) By calling OSC at: (800) 872-9855 (toll-free); or
    (iii) By writing to OSC, at: U.S. Office of Special Counsel, 1730 M 
Street NW., Suite 218, Washington, DC 20036-4505.
    (5) A complainant can file a completed OSC Form-14 with OSC by any 
of the following methods:
    (i) Electronically, at: http://www.osc.gov;
    (ii) By fax, to: (202) 254-3711; or
    (iii) By mail, to: U.S. Office of Special Counsel 1730 M Street 
NW., Suite 218, Washington, DC 20036-4505.
    (d) Procedures for filing complaints alleging violation of the 
Hatch Act. (1) Complaints alleging a violation of the Hatch Act may be 
submitted in any written form, but use of OSC Form-14 is encouraged. 
Complaints should include:
    (i) The complainant's name, mailing address, telephone number, and 
a time when OSC can contact that person about his or her complaint 
(unless the matter is submitted anonymously);
    (ii) The department or agency, location, and organizational unit 
complained of; and
    (iii) A concise description of the actions complained about, names 
and positions of employees who took the actions, if known to the 
complainant, and dates of the actions, preferably in chronological 
order, together with any documentary evidence that the complainant can 
provide.
    (2) OSC Form-14 for filing a complaint is available as described in

[[Page 26741]]

paragraphs (c)(4)(i) through (iii) of this section.
    (3) A written Hatch Act complaint may be filed with OSC:
    (i) Electronically, at: http://www.osc.gov;
    (ii) By fax, to: (202) 254-3700;
    (iii) By email, to: [email protected]; or
    (iv) By mail, to: U.S. Office of Special Counsel, Hatch Act Unit, 
1730 M Street NW., Suite 218, Washington, DC 20036-4505.


0
3. 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. 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 it does, the law requires OSC to 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 authorize OSC to 
investigate the subject of a disclosure.
    (b) Procedures for filing disclosures. Current or former Federal 
employees, and applicants for Federal employment, 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)(i) of this section).
    (1) Filers are encouraged to use OSC Form-14 to file a disclosure 
of the type of information described in paragraph (a) of this section 
with OSC. OSC Form-14 provides more information about OSC jurisdiction, 
and procedures for processing whistleblower disclosures. OSC Form-14 is 
available:
    (i) Online, at: http://www.osc.gov;
    (ii) By calling OSC, at: (800) 572-2249 (toll-free), or (202) 254-
3640; or
    (iii) By writing to OSC, at: U.S. Office of Special Counsel, 1730 M 
Street NW., Suite 218, Washington, DC 20036-4505.
    (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 may be filed in writing with OSC by any of the 
following methods:
    (i) Electronically, at: http://www.osc.gov (for completion and 
filing electronically);
    (ii) By fax, to: (202) 254-3711; or
    (iii) By mail, to: U.S. Office of Special Counsel, 1730 M Street 
NW., Suite 218, Washington, DC 20036-4505.

    Dated: June 2, 2017.
Bruce Gipe,
Chief Operating Officer.
[FR Doc. 2017-11978 Filed 6-8-17; 8:45 am]
 BILLING CODE 7405-01-P