Emergency Justification

U.S. OFFICE OF SPECIAL COUNSEL
1730 M Street, N.W., Suite 218
Washington, D.C. 20036-4505
202-804-7000

July 23, 2019
Mr. Joe B. Nye
OMB Policy Analyst
Office of Management and Budget
Office of Information and Regulatory Affairs
New Executive Office Building
Washington, DC 20503
VIA email: [email protected]
Dear Mr. Nye:
The U.S. Office of Special Counsel (OSC) seeks an emergency review of the
Paperwork Reduction Act requirements for OSC’s updated Form 14 to enable OSC to
pursue its mission. 1 Pursuant to 5 CFR 1320.13, this letter requests emergency
processing within five (5) days from the date of publication of the Federal Register
Notice. This emergency processing is essential to allow timely integration of Form 14
with OSC’s new electronic case management system (eCMS), which has an August 26,
2019 “go live” date. As described in more detail below, Form 14 was previously
approved by OMB, but some updates were necessary due to statutory changes. There is
no change in the information OSC is collecting.
The Notice of Paperwork Submission (copies enclosed) proposed for immediate
Federal Register publication explains the burden of the collection requirements and
invites public comment on them. OSC originally published Form 14 in October 2016
and received no comments. OMB approved Form 14 (OMB Control # 3255-0005) on
September 28, 2017, and, accordingly has already provided stakeholders with the
requisite notice. On July 11, 2017, OSC indefinitely postponed Form 14’s effective date.
See Federal Register Notice 82 FR 32447 (copy attached). The updated Form 14 for
which OSC seeks emergency processing does not impose any burden different from that
in previously-approved Form 14.
1

The U.S. Office of Special Counsel (OSC) is a permanent independent federal investigative and
prosecutorial agency. OSC’s basic authorities come from four federal statutes: The Civil Service Reform
Act, the Whistleblower Protection Act, the Hatch Act, and the Uniformed Services Employment &
Reemployment Rights Act (USERRA). OSC’s primary mission is to safeguard the merit system by
protecting federal employees and applicants from prohibited personnel practices, especially reprisal for
whistleblowing, and to serve as a safe channel for allegations of wrongdoing.

U.S. Office of Special Counsel
Mr. Joe B. Nye
July 23, 2019
Page 2 of 4
Background:
OSC must meet mandates to convert to an all-electronic recordkeeping system by
December 31, 2019. See Presidential Memorandum, “Managing Government Records,
November 11, 2011, 76 Fed. Reg. 75421, (Dec. 1, 2011); Records Management Directive
M-12-18, Office of Mgmt. & Budget and National Archives and Records
Administration, Exe. Office of the President, (Aug. 24, 2012). OSC must also meet
mandates to make data-driven decisions about how best to accomplish its mission. See
the Government Performance and Results Act (GPRA) of 1993; Government
Performance and Results Modernization Act of 2010; Report of the Committee on
Homeland Security and Governmental Affairs U.S. Senate to Accompany H.R. 2142;
OMB Circular A-11, Section 270.1 (2016). To meet these Congressional, Presidential,
and OMB mandates, and fulfill OSC’s mission, contractors have been working to create
an electronic case management system for OSC which is to roll out on August 26, 2019.
The submission of complaints through Form 14 is essential to OSC’s implementation of
its electronic case management system, which is required for OSC to comply with these
mandates and to be able to fulfill its mission.
OSC determined that creating a consolidated electronic filing form for
complaints and disclosures is necessary to integrate electronic complaint, disclosure, and
advisory request submissions with OSC’s new eCMS. Accordingly, OSC created the
dynamic Form 14 to replace previously-approved Forms 11, 12 and 13. Form 14 was
approved in 2017 (OMB Control # 3255-0005), and OSC is now proposing to make
updates to the approved form based on changes in the law.
The updated Form 14 does not increase the burden on other agencies or members
of the public from the burden of Form 14 as previously approved. The substantive
updates to Form 14 reflect two statutory changes, and complainants have already been
able to bring those claims to OSC. Specifically, Congress authorized whistleblowers to
disclose to OSC “censorship related to scientific research” in the Whistleblower
Protection Enhancement Act. And Congress amended 5.U.S.C. § 2302(b) to add a
fourteenth prohibited personnel practice (“(14) access the medical record of another
employee or an applicant for employment as a part of, or otherwise in furtherance of,
any conduct described in paragraphs (1) through (13).”). Accordingly, OSC has no
discretion to omit these additional bases for complaints from the updated Form 14.
Basis for Emergency Review:
Unanticipated Event
OSC cannot reasonably comply with the normal clearance procedures under 5
CFR Part 1320 because of an unanticipated event. See 5 CFR 1320.13 (a)(2)(ii). The

U.S. Office of Special Counsel
Mr. Joe B. Nye
July 23, 2019
Page 3 of 4
usual 90-day notice and publication schedule would harm OSC and the public because it
would force OSC to postpone implementing the new Form 14 and integrating it with
eCMS until after the new fiscal year begins October 1, 2019, and OSC does not have IT
contracts sufficient to cover the eCMS implementation past September 30, 2019. See id.
OSC’s IT contracts for eCMS implementation expire at the end of FY2019
because of unanticipated events in June and July 2019. This unforeseen exigency arose
when the outside federal agency that provides OSC’s contracting and procurement
services abruptly cancelled its agreement with OSC. (See attached email exchanges.)
The other agency was in the process of extending and updating OSC’s contracts with the
IT vendors managing the eCMS implementation when that agency unilaterally revoked
its agreement with OSC. These circumstances were entirely beyond OSC’s control.
Because the interagency contracting/procurement agreement has been suspended, the
contracts with the IT vendors will now expire at the end of FY2019. That means the
contracts with the vendors who are migrating OSC to eCMS and who manage
transferring the data from the dynamic Form 14 into OSC’s eCMS are expiring on
September 30, 2019. (OSC could not have anticipated this abrupt expiration; the process
of converting to eCMS has taken years of contracts with various vendors.) Thus, OSC
needs to implement Form 14 in August to allow adequate time for the contractors to
address any IT issues that arise with eCMS implementation before the IT contract
expires on September 30, 2019.
Public Harm Reasonably Likely
Pursuant to 5 CFR 1320.13 (a)(2), OSC has determined that adherence to normal
clearance procedures would result in public harm related to the inability of OSC to
integrate Form 14 with the August 26th activation of OSC’s new electronic case
management system, which aims to fulfill OSC’s Congressional mandate to operate an
all-electronic recordkeeping system. If OSC complied with normal timing required for
clearance procedures and PRA issuance, the updated Form 14 could not be timely
integrated with the eCMS, OSC’s newly designed website, and other electronic
recordkeeping systems. The normal process for clearance of the updated Form 14
would prevent the collection of information because a 60/30 day posting and comment
schedule would postpone implementation beyond the August 26, 2019 “go live” date for
the integrated eCMS system, thus preventing the integrated data collection essential to
OSC’s fulfillment of its mission and statutory mandates.
The usual 90-day notice and publication schedule would also harm the
government and OSC by subjecting OSC to continued IT Security risk posed by its
outdated “OSC 2000” system through which Forms 11, 12, and 13 (the forms Form 14
is replacing) are processed and accepted. The Federal Information Security
Modernization Act of 2014 (FISMA 2014) requires federal agencies to follow U.S.

U.S. Office of Special Counsel
Mr. Joe B. Nye
July 23, 2019
Page 4 of 4
Department of Homeland Security information security policies mandating that agencies
rapidly phase out legacy IT systems lacking updated and strong information security
controls. OSC 2000 is woefully outdated, insecure, and inadequate because Microsoft
no longer supports the antiquated operating system used to support OSC 2000, leaving
the system highly vulnerable to security incidents.
Conclusion
OSC believes it is in the best interests of the public, OSC, the Merit System OSC
is charged to safeguard, and the government, to implement the updated Form 14 by July
26, 2019. OSC therefore requests emergency processing of this 5 CFR 1320 clearance
process.
Thank you for your consideration. Please contact Susan Ullman, OSC General
Counsel, if you have any questions, [email protected]; 202-804-7000.
Sincerely,
Bruce Gipe
Chief Operating Officer
attachments