[Federal Register: January 22, 2004 (Volume 69, Number 14)]
[Rules and Regulations]
[Page 2997-2999]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22ja04-1]
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Rules and Regulations
Federal Register
________________________________________________________________________
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
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[[Page 2997]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR PART 724
RIN 3206-AJ93
Implementation of Title II of the Notification and Federal
Employee Antidiscrimination and Retaliation Act of 2002
AGENCY: Office of Personnel Management.
ACTION: Interim final rule with request for comments.
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SUMMARY: The Office of Personnel Management (OPM) is issuing interim
regulations to carry out the agency reimbursement provisions of Title
II of the Notification and Federal Employee Antidiscrimination and
Retaliation Act of 2002 (No FEAR Act). The No FEAR Act requires that
the President or his designee promulgate rules to regulate agency
reimbursement of the Judgment Fund for payments made to employees,
former employees, or applicants for Federal employment because of
actual or alleged violations of Federal discrimination laws, Federal
whistleblower protection laws, and/or retaliation claims arising from
the assertion of rights under these laws. This rule will implement the
reimbursement provisions of Title II of the No FEAR Act.
DATES: Effective Date: The interim final rule is effective on October
1, 2003.
Comment Date: Comments must be received on or before March 22,
2004.
ADDRESSES: Send or deliver written comments to Jeffrey E. Sumberg,
Deputy Associate Director for Workforce Relations and Accountability
Policy, Office of Personnel Management, Room 7H28, 1900 E Street, NW.,
Washington, DC, 20415; by FAX at (202) 606-0967; or by email at
NoFEAR@opm.gov.
FOR FURTHER INFORMATION CONTACT: Gary D. Wahlert by telephone at (202)
606-2920; by FAX at (202) 606-0967; or by email at NoFEAR@opm.gov.
SUPPLEMENTARY INFORMATION: The United States and its citizens are best
served when the Federal workplace is free of discrimination and
retaliation. In order to maintain a productive workplace that is fully
engaged with the many important missions before the Government, it is
essential that the rights of employees, former employees and applicants
for Federal employment under discrimination, whistleblower, and
retaliation laws be steadfastly protected and that agencies that
violate these rights be held accountable. Congress has found that
agencies cannot be run effectively if those agencies practice or
tolerate discrimination. Furthermore, Congress has found that
notification of present and former Federal employees and applicants for
Federal employment of their rights under discrimination and
whistleblower laws, combined with training of employees, should
increase Federal agency compliance with the laws. Therefore, under
authority delegated by the President, OPM is issuing interim
regulations to implement the reimbursement provisions of Title II of
the Notification and Federal Employee Antidiscrimination and
Retaliation Act of 2002 (No FEAR Act), Public Law 107-174. OPM will
issue proposed regulations concerning the other parts of the No FEAR
Act separately.
Judgment Fund
One of the key provisions of the No FEAR Act requires that agencies
reimburse the Judgment Fund for payments concerning violations or
alleged violations of Federal discrimination laws, Federal
whistleblower protection laws, and/or retaliation claims arising from
the assertion of rights under these laws. Prior to the enactment of the
No FEAR Act, agencies were not required to reimburse the Judgment Fund.
Congress has created a financial incentive to foster a Federal
workplace that is free of discrimination and retaliation.
The No FEAR Act does not change the criteria or process for
obtaining payments from the Judgment Fund; it only creates a
reimbursement requirement for agencies. In other words, the No FEAR Act
does not authorize agencies to make payments directly to employees,
former employees, or applicants for Federal employment that, prior to
the No FEAR Act, would have been made from the Judgment Fund.
Judgments, awards, or settlements that were eligible for payment from
the Judgment Fund before the No Fear Act becomes effective will
continue to be paid by the Judgment Fund.
As noted, however, the No FEAR Act requires agencies to reimburse
the Judgment Fund for payments made in connection with 28 U.S.C. 2414,
2517, 2672, 2677 or with 31 U.S.C. 1304. OPM interprets the No FEAR Act
to apply to any payment from the Judgment Fund on or after October 1,
2003, for violations or alleged violations of Federal discrimination
laws, Federal whistleblower protection laws, and/or retaliation claims
arising from the assertion of rights under these laws.
In addition to requiring reimbursement of the Judgment Fund,
Congress expected such reimbursements to be made within a reasonable
amount of time. Accordingly, these regulations specify timeframes
within which agencies must either repay the Judgment Fund or contact
the administrator of the Judgment Fund to make arrangements for a
payment schedule. The administrator of the Judgment Fund is the
Financial Management Service (FMS), the Department of the Treasury. The
timeframe begins upon written notice by FMS to the agency's Chief
Financial Officer (CFO) that a payment from the Judgment Fund has been
disbursed. OPM notes in the regulations that agencies that fail to
reimburse or make timely arrangements for reimbursement of the Judgment
Fund will be identified and posted on the FMS Web site.
Notification and Training Obligations
Section 202 of the No FEAR Act requires agencies to notify covered
individuals of the rights and protections concerning Federal
discrimination laws, whistleblower protection laws, and/or retaliation
claims arising from the assertion of rights under these laws. Agencies
must also conduct training of employees about these rights and
protections. OPM intends to publish proposed regulations on these
subjects separately.
Annual Report
Section 203 of the No FEAR Act requires that each Federal agency
[[Page 2998]]
submit an annual report to Congress, the Equal Employment Opportunity
Commission, and the Attorney General. Among other things, these reports
are to provide information about payments from the Judgment Fund and
the discipline of employees who engaged in discrimination, retaliation,
harassment, or other violations of Federal discrimination and/or
whistleblower laws. Each report also must provide the agency's analysis
of certain information required in the report. OPM intends to publish
proposed regulations on these subjects separately.
Best Practices
Section 204 of the No FEAR Act requires OPM, as the President's
designee, to conduct a comprehensive study to determine the best
practices relating to appropriate disciplinary actions against
employees who violate Federal discrimination laws, whistleblower
protection laws, and/or protections against retaliation arising from
the assertion of rights under these laws. Based on the results of this
study, OPM will issue advisory guidelines that incorporate the best
practices that agencies may follow to take such disciplinary actions.
In addition, the No FEAR Act requires agencies to report to the
Congress, the Equal Employment Opportunity Commission, and the Attorney
General on the extent to which they have adopted or will follow the
guidelines issued by OPM. OPM intends to publish proposed regulations
on these subjects separately.
Publication of Interim Regulations
Immediate implementation of this rule as an interim final rule with
provision for post-promulgation public comment is based upon the
exceptions found at 5 U.S.C. 553(b)(3)(A), (b)(3)(B) and (d). The
agency obligations under the No FEAR Act to reimburse the Judgment Fund
begin on October 1, 2003. It is essential that all agencies understand
their responsibilities regarding this requirement. OPM has determined
under 5 U.S.C. 553(b)(3)(A) that the reimbursement provision only
effects the rules of agency organization, procedure, or practice and
has no effect on the substantive rights of those entitled to payment
from the Judgment Fund. OPM has determined under 5 U.S.C. 553(b)(3)(B)
that it would be contrary to the public interest to delay promulgation
of the rules governing the reimbursement provisions of the No FEAR Act.
For the same reasons, OPM has determined under 5 U.S.C. 553(d)(3) that
there is good cause for the interim final rule to be effective October
1, 2003, with provision for post-promulgation public comment. OPM is
seeking public comment on the regulation and will consider all comments
when promulgating the final rule.
Regulatory Flexibility Act
I certify that this regulation will not have a significant economic
impact on a substantial number of small entities because the
regulations pertain only to Federal employees and agencies.
E.O. 12866, Regulatory Review
This interim final rule has been reviewed by the Office of
Management and Budget under Executive Order 12866.
E.O. 13132
This regulation will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this rule does not have sufficient
federalism implications to warrant preparation of a Federalism
Assessment.
E.O. 12988, Civil Justice Reform
This regulation meets the applicable standard set forth in sections
3(a) and 3(b)(2) of Executive Order 12988.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Congressional Review Act
This action pertains to agency management, personnel and
organization and does not substantially affect the rights of
obligations of non-agency parties and, accordingly, is not a ``rule''
as that term is used by the Congressional Review Act (Subtitle E of the
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)).
Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.
List of Subjects in 5 CFR Part 724
Administrative practice and procedure, discrimination, prohibited
personnel practices, claims, discipline.
U.S. Office of Personnel Management.
Kay Coles James,
Director.
0
Accordingly, OPM is adding part 724 to title 5, Code of Federal
Regulations, as follows:
PART 724--IMPLEMENTATION OF TITLE II OF THE NOTIFICATION AND
FEDERAL EMPLOYEE ANTIDISCRIMINATION AND RETALIATION ACT OF 2002
Subpart A--Reimbursement of Judgment Fund
Sec.
724.101 Purpose and Scope.
724.102 Definitions.
724.103 Agency Obligations.
724.104 Procedures.
724.105 Compliance.
724.106 Effective Date.
Authority: Sec. 204 of Pub. L. 107-174, 116 Stat. 566;
Presidential Memorandum dated July 8, 2003, ``Delegation of
Authority Under Section 204(a) of the Notification and Federal
Employee Antidiscrimination Act of 2002.''
Sec. 724.101 Purpose and scope.
This subpart implements Title II of the Notification and Federal
Employee Antidiscrimination and Retaliation Act of 2002 concerning the
obligation of Federal agencies to reimburse the Judgment Fund for
payments. The regulations describe agency obligations and the
procedures for reimbursement and compliance.
Sec. 724.102 Definitions.
In this part: Agency means an Executive agency as defined in 5
U.S.C. 105, the United States Postal Service, or the Postal Rate
Commission;
Applicant for Federal employment means an individual applying for
employment in or under a Federal agency;
Employee means an individual employed in or under a Federal agency;
Former employee means an individual formerly employed in or under a
Federal agency;
Judgment Fund means the Judgment Fund established by 31 U.S.C.
1304;
No FEAR Act means the ``Notification and Federal Employee
Antidiscrimination and Retaliation Act of 2002;''
Payment means a disbursement from the Judgment Fund on or after
October 1, 2003, to an employee, former employee, or applicant for
Federal employment, in accordance with 28 U.S.C. 2414, 2517, 2672, 2677
or with 31 U.S.C. 1304, that involves alleged discriminatory conduct
described in 5 U.S.C. 2302(b)(1) and (b)(8) or (b)(9) as applied to
discriminatory conduct
[[Page 2999]]
described in 5 U.S.C. 2302(b)(1) and/or (b)(8).
Sec. 724.103 Agency Obligations.
A Federal agency must reimburse the Judgment Fund for payments
covered by the No FEAR Act. Such reimbursement must be made within a
reasonable time as described in Sec. 724.104.
Sec. 724.104 Procedures.
(a) The procedures that agencies must use to reimburse the Judgment
Fund are those prescribed by the Financial Management Service (FMS),
the Department of the Treasury, in Chapter 3100 of the Treasury
Financial Manual. All reimbursements to the Judgment Fund covered by
the No FEAR Act are expected to be fully collectible from the agency.
FMS will provide notice to the agency's Chief Financial Officer within
15 business days after payment from the Judgment Fund. For any payments
from the Fund between October 1, 2003, and January 22, 2004, FMS will
provide such notice within 15 business days after January 22, 2004, if
it has not already provided such notice.
(b) Within 45 business days of notice by FMS, agencies must
reimburse the Judgment Fund or contact FMS to make arrangements in
writing for reimbursement.
Sec. 724.105 Compliance.
An agency's failure to reimburse the Judgment Fund or to contact
FMS within 45 business days of an FMS notice for reimbursement under
Sec. 724.104 will be recorded on an annual basis and posted on the FMS
Web site.
Sec. 724.106 Effective Date.
This subpart is effective on October 1, 2003.
Subpart B--Notification of Rights and Protections and Training
[RESERVED]
Subpart C--Annual Report
[RESERVED]
Subpart D--Best Practices
[RESERVED]
[FR Doc. 04-1338 Filed 1-21-04; 8:45 am]
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