[Federal Register Volume 69, Number 14 (Thursday, January 22, 2004)]
[Rules and Regulations]
[Pages 2997-2999]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-1338]



 ========================================================================
 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 
 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.
 
 ========================================================================
 

  Federal Register / Vol. 69, No. 14 / Thursday, January 22, 2004 / 
Rules and Regulations  

[[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.

-----------------------------------------------------------------------

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 e-mail at 
[email protected].

FOR FURTHER INFORMATION CONTACT: Gary D. Wahlert by telephone at (202) 
606-2920; by FAX at (202) 606-0967; or by e-mail at [email protected].

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]
BILLING CODE 6325-38-P