[Federal Register Volume 71, Number 16 (Wednesday, January 25, 2006)]
[Proposed Rules]
[Pages 4053-4055]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-933]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 71, No. 16 / Wednesday, January 25, 2006 / 
Proposed Rules  

[[Page 4053]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 724

RIN 3206-AK55


Implementation of Title II of the Notification and Federal 
Employee Antidiscrimination and Retaliation Act of 2002--Reporting & 
Best Practices

AGENCY: Office of Personnel Management.

ACTION: Proposed rule.

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SUMMARY: The Office of Personnel Management (OPM) is proposing 
regulations to carry out the reporting and best practices requirements 
of Title II of the Notification and Federal Employee Antidiscrimination 
and Retaliation Act of 2002 (No FEAR Act). The No FEAR Act requires 
Federal agencies to report annually on certain topics related to 
Federal antidiscrimination and whistleblower protection laws. The No 
FEAR Act also requires a comprehensive study to determine the Executive 
Branch's best practices concerning disciplinary actions against 
employees for conduct that is inconsistent with these laws. This 
proposed rule will implement the reporting and best practices 
provisions of the No FEAR Act.

DATES: Comments must be received on or before March 27, 2006.

ADDRESSES: Send or deliver written comments to Ana A. Mazzi, 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) 606-2613; or by e-mail at 
[email protected].

FOR FURTHER INFORMATION CONTACT: Gary D. Wahlert by telephone at (202) 
606-2930; by FAX at (202) 606-2613; 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 antidiscrimination and whistleblower 
protection laws be 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 requiring Federal agencies to 
provide annual reports on discrimination, whistleblower, and 
retaliation cases should enable Congress to improve its oversight of 
compliance by agencies with laws covering these types of cases. 
Finally, Congress has required that the President or his designee 
conduct a study of discipline taken against Federal employees for 
conduct that is inconsistent with Federal antidiscrimination and 
whistleblower protection laws. The results of this study are then to be 
used to develop advisory guidelines that Federal agencies may follow to 
take such disciplinary actions. Congress entrusted the President with 
the authority to promulgate rules to carry out this title, and the 
President in turn delegated to OPM the authority to issue proposed 
regulations to implement the annual reporting and best practices 
provisions of Title II of the Federal Employee Antidiscrimination and 
Retaliation Act of 2002 (No FEAR Act), Public Law 107-174. These 
proposed regulations carry out that authority.

Reporting Obligations

    Section 203 of the No FEAR Act requires Federal agencies to create 
annual reports on a number of items concerning Federal 
antidiscrimination and whistleblower protection laws as defined in 
section 201 of 5 CFR part 724. The reports are to be submitted to 
Congress, the Equal Employment Opportunity Commission, the Attorney 
General, and OPM. These regulations describe the required content and 
time line for the reports. Agencies are required to include in their 
first reports a one-time submission of five years of historical data, 
to the extent the data is available.
    The regulations call on agencies to report on numbers and types of 
disciplinary actions they have taken against their employees for 
conduct that is inconsistent with these laws. For purposes of these 
regulations, we propose to define ``discipline'' to include a range of 
actions that might be taken from reprimands through adverse actions 
such as removals and reductions in grade. This range reflects the types 
of actions that adjudicators and neutrals (mediators or others) have 
considered to be elements of an employee's past disciplinary record for 
purposes of determining the appropriateness of a penalty in an appeal 
of a subsequent disciplinary action. In addition, OPM is considering 
expanding the range of disciplinary actions reported to include 
unwritten actions such as oral admonishments. Consequently, OPM 
requests that respondents include in their comments any views as to 
whether unwritten actions, such as oral admonishments should be 
reported under the No FEAR Act.
    The regulations also require that agencies discuss in detail their 
policies for taking appropriate disciplinary action(s) against their 
employees for conduct that is inconsistent with Federal 
antidiscrimination and whistleblower protection laws. This information, 
in turn, will assist OPM in conducting a comprehensive study of the 
best practices in the Executive Branch for taking appropriate 
disciplinary actions for conduct that is inconsistent with these laws.
    Agencies are also required by the regulations to report the amounts 
reimbursed to the Judgment Fund for payments made in connection with 
litigation in Federal court about alleged violations of Federal 
antidiscrimination and whistleblower protection laws. To the extent 
such payments are made as part of a settlement agreement, those 
payments alone, and absent any other information, should not be 
construed as an admission of wrong-doing by any party to the 
proceedings.
    The regulations require reporting the dollar amounts involved, 
including a category for attorneys' fees where such fees are separately 
designated. Agencies are also required to discuss any adjustments to 
their agencies' budgets needed to meet their obligations to reimburse 
the Fund.
    Finally, the regulations note that the reports are due 180 days 
after the end of each fiscal year. The first reports under the No FEAR 
Act were due on

[[Page 4054]]

March 30, 2005, based on the express terms of the statute and without 
regard to the status of the regulations. Thereafter, under the terms of 
the statute, these reports are due annually on March 30th. We recognize 
that many agencies already have submitted their reports based on their 
interpretations of the Act. In those cases, within 60 calendar days 
after the regulations become final, agencies will need to compare their 
reports with the regulations, supplement their earlier reports as 
necessary, and submit the supplemental information to the agencies 
receiving the annual reports, including OPM. Any such supplemental 
information would be due within 60 calendar days after the regulations 
become final. Agencies submitting supplemental reports must cover the 
data elements described in section 302(a)(1-8)(9 is excluded) of the 
regulations. Agencies submitting their reports after these regulations 
become final and any future reports must cover all data elements 
described in section 302(a). In all cases, agencies' first reports 
(and/or supplements) would cover information as of September 30, 2004. 
In addition, agencies that submitted reports before these regulations 
became final must submit copies of the entire reports to OPM within 60 
calendar days after the regulations become final.

Best Practices

    Section 204 of the No FEAR Act requires that the President or his 
designee issue rules to require a comprehensive study of the Executive 
Branch to determine the best practices concerning appropriate 
disciplinary actions agencies take against their employees for conduct 
that is inconsistent with Federal antidiscrimination and whistleblower 
protection laws. The Act also requires the President or his designee to 
develop advisory guidelines based on this study that agencies can 
follow in taking appropriate disciplinary actions in such 
circumstances.
    The regulations establish that the comprehensive study will be 
conducted by OPM. OPM welcomes comments on what and how performance 
should be measured to determine the effectiveness of agency 
disciplinary actions subject to the No FEAR Act. The regulations also 
provide that, as part of the study, OPM will review what agencies 
submit in their first reports under section 302 of the regulation. 
These regulations call for agencies to describe in detail their 
policies for taking disciplinary actions against employees for conduct 
that is inconsistent with the above laws.
    Finally, the regulations state that OPM will issue advisory 
guidelines to agencies on best practices they may follow in taking such 
disciplinary actions. Congress requires that agencies state 
specifically and in detail the extent to which they will follow the 
guidelines. The regulations require that these statements be in writing 
and state the extent to which the agency expects to implement the 
guidelines and the reasons for the stated degree of implementation. 
These statements must be submitted to Congress, the Attorney General, 
the Equal Employment Opportunity Commission, and OPM within 30 working 
days from the date OPM issues the advisory guidelines.

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 proposed 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, Civil rights, Claims.

U.S. Office of Personnel Management.
Linda M. Springer,
Director.
    Accordingly, OPM proposes to amend part 724, 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

    1. In Sec.  724.102 of subpart A, add a new definition for 
discipline in alphabetical order to read as follows:


Sec.  724.102  Definitions.

* * * * *
    Discipline means any one or a combination of the following actions: 
reprimand, suspension without pay, reduction in grade or pay, or 
removal.
* * * * *
    2. In part 724, add subparts C and D to read as follows:
Subpart C--Annual Report
Sec.
724.301 Purpose and scope.
724.302 Reporting obligations.

Subpart C--Annual Report


Sec.  724.301  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 report on specific topics concerning 
Federal Antidiscrimination Laws and Whistleblower Protection Laws 
covering employees, former employees, and applicants for Federal 
employment.


Sec.  724.302  Reporting obligations.

    (a) Except as provided in paragraph (b) of this section, each 
agency must report no later than 180 days after the end of each fiscal 
year the following items:
    (1) The number of cases in Federal court pending or resolved in 
each fiscal year and arising under each of the respective provisions of 
the Federal Antidiscrimination Laws and Whistleblower Protection Laws 
as defined in Sec.  724.102 of subpart A of this

[[Page 4055]]

part in which an employee, former Federal employee, or applicant 
alleged a violation(s) of these laws separating data by the 
provision(s) of law involved;
    (2) In the aggregate, for the cases identified in paragraph (1) of 
this subsection and separated by provision(s) of law involved:
    (i) The status or disposition (including settlement);
    (ii) The amount of money required to be reimbursed to the Judgment 
Fund by the agency for payments as defined in Sec.  724.102 of subpart 
A of this part;
    (iii) The amount of reimbursement to the Fund for attorney's fees 
where such fees have been separately designated;
    (3) In connection with cases identified in paragraph (1) of this 
subsection, the total number of employees in each fiscal year 
disciplined as defined in Sec.  724.102 of subpart A of this part and 
the specific nature, e.g., reprimand, etc., of the disciplinary actions 
taken, separated by the provision(s) of law involved;
    (4) The final year-end data about discrimination complaints for 
each fiscal year that was posted in accordance with Equal Employment 
Opportunity Regulations at subpart G of title 29 of the Code of Federal 
Regulations (implementing Sec.  301(c)(1)(B) of the No FEAR Act);
    (5) Whether or not in connection with cases in Federal court, the 
number of employees in each fiscal year disciplined as defined in Sec.  
724.102 of subpart A of this part in accordance with any agency policy 
described in paragraph (a)(6) of this section. The specific nature, 
e.g., reprimand, etc., of the disciplinary actions taken must be 
identified.
    (6) A detailed description of the agency's policy for taking 
disciplinary action against Federal employees for conduct that is 
inconsistent with Federal Antidiscrimination Laws and Whistleblower 
Protection Laws or for conduct that constitutes another prohibited 
personnel practice revealed in connection with agency investigations of 
alleged violations of these laws;
    (7) An analysis of the information provided in paragraphs (a)(1) 
through (6) of this section in conjunction with data provided to the 
Equal Employment Opportunity Commission in compliance with 29 CFR 1614 
subpart F of the Code of Federal Regulations. Such analysis must 
include:
    (i) An examination of trends;
    (ii) Causal analysis;
    (iii) Practical knowledge gained through experience; and
    (iv) Any actions planned or taken to improve complaint or civil 
rights programs of the agency with the goal of eliminating 
discrimination and retaliation in the workplace;
    (8) For each fiscal year, any adjustment needed or made to the 
budget of the agency to comply with its Judgment Fund reimbursement 
obligation(s) incurred under Sec.  724.103 of subpart A of this part; 
and
    (9) The agency's written plan developed under Sec.  724.203(a) of 
subpart B of this part to train its employees.
    (b) The first report also must provide information for the data 
elements in paragraph (a) of this section for each of the five fiscal 
years preceding the fiscal year on which the first report is based to 
the extent that such data is available. Under the provisions of the No 
FEAR Act, the first report was due March 30, 2005 without regard to the 
status of the regulations. Thereafter, under the provisions of the No 
FEAR Act, agency reports are due annually on March 30th. Agencies that 
have submitted their reports before these regulations became final must 
ensure that their reports contain data elements 1 through 8 of 
paragraph (a) of this section and provide any necessary supplemental 
reports within 60 calendar days after the regulations become final. 
Future reports must include all of the data elements of paragraph(a) of 
this section.
    (c) Agencies must provide copies of each report to the following:
    (1) Speaker of the U.S. House of Representatives;
    (2) President Pro Tempore of the U.S. Senate;
    (3) Committee on Governmental Affairs, U.S. Senate;
    (4) Committee on Government Reform, U.S. House of Representatives;
    (5) Each Committee of Congress with jurisdiction relating to the 
agency;
    (6) Chair, Equal Employment Opportunity Commission;
    (7) Attorney General; and
    (8) Director, U.S. Office of Personnel Management.
Subpart D--Best Practices
Sec.
724.401 Purpose and scope.
724.402 Best practices study.
724.403 Advisory guidelines.
724.404 Agency obligations.

Subpart D--Best Practices


Sec.  724.401  Purpose and scope.

    This subpart implements Title II of the Notification and Federal 
Employee Antidiscrimination and Retaliation Act of 2002 concerning the 
obligation of the President or his designee (OPM) to conduct a 
comprehensive study of best practices in the Executive Branch for 
taking disciplinary actions against employees for conduct that is 
inconsistent with Federal Antidiscrimination and Whistleblower 
Protection Laws and the obligation to issue advisory guidelines for 
agencies to follow in taking appropriate disciplinary actions in such 
circumstances.


Sec.  724.402  Best practices study.

    (a) OPM will conduct a comprehensive study in the Executive Branch 
to identify best practices for taking appropriate disciplinary actions 
against Federal employees for conduct that is inconsistent with Federal 
Antidiscrimination and Whistleblower Protection Laws.
    (b) The comprehensive study will include a review of agencies' 
discussions of their policies for taking such disciplinary actions as 
reported under Sec.  724.302 of subpart C of this part.


Sec.  724.403  Advisory guidelines.

    OPM will issue advisory guidelines to Federal agencies 
incorporating the best practices identified under Sec.  724.402 that 
agencies may follow to take appropriate disciplinary actions against 
employees for conduct that is inconsistent with Federal 
Antidiscrimination Laws and Whistleblower Laws.


Sec.  724.404  Agency obligations.

    (a) Within 30 working days of issuance of the advisory guidelines 
required by Sec.  724.403, each agency must prepare a written statement 
describing in detail:
    (1) Whether it has adopted the guidelines and if it will fully 
follow the guidelines;
    (2) If such agency has not adopted the guidelines, the reasons for 
non-adoption; and
    (3) If such agency will not fully follow the guidelines, the 
reasons for the decision not to do so and an explanation of the extent 
to which the agency will not follow the guidelines.
    (b) Each agency's written statement must be provided within the 
time limit stated in paragraph (a) of this section to the following:
    (1) Speaker of the U.S. House of Representatives;
    (2) President Pro Tempore of the U.S. Senate;
    (3) Chair, Equal Employment Opportunity Commission;
    (4) Attorney General; and
    (5) Director, U.S. Office of Personnel Management.

 [FR Doc. E6-933 Filed 1-24-06; 8:45 am]
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