[Federal Register: December 28, 2006 (Volume 71, Number 249)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
Rules and Regulations
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
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 724
Implementation of Title II of the Notification and Federal
Employee Antidiscrimination and Retaliation Act of 2002--Reporting &
AGENCY: Office of Personnel Management.
ACTION: Final rule.
SUMMARY: The Office of Personnel Management (OPM) is issuing final
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 rule
will implement the reporting and best practices provisions of the No
DATES: Effective Date: The rule is effective February 26, 2007.
FOR FURTHER INFORMATION CONTACT: Gary D. Wahlert by telephone at (202)
606-2930; by FAX at (202) 606-2613; or by e-mail at NoFEAR@opm.gov.
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.
Therefore, under authority delegated by the President, OPM is issuing
final 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), Pub. L. 107-174.
On January 25, 2006, OPM published at 71 FR 4053 (2006) a proposed
rule implementing the reporting and best practices provisions of the No
FEAR Act and providing a 60-day comment period. On March 31, 2006, in
response to requests by the No FEAR Coalition and Members of Congress,
OPM at 71 FR 16246 (2006) reopened the initial comment period until May
1, 2006. OPM received 13 comments from Federal agencies or departments,
5 comments from associations/organizations/coalitions (including the No
FEAR Coalition), 4 comments from unions, 92 comments from individuals,
and 2 comments from Members of Congress. OPM thanks all who provided
comments--each comment has been carefully considered.
Definition of Discipline
The No Fear Act requires agencies to create annual reports on a
number of items, including disciplinary actions taken for conduct that
is inconsistent with Federal antidiscrimination and whistleblower
protections. These reports are to be submitted to Congress, the Equal
Employment Opportunity Commission (EEOC), the Attorney General, and
OPM. OPM proposed at Sec. 724.102 to define discipline for reporting
purposes to include a range of actions from reprimands through adverse
actions such as removals and reductions in grade. OPM also stated that
it was considering expanding the range of disciplinary actions reported
to include unwritten actions such as oral admonishments. OPM asked for
comments on whether such additional actions should be reported.
Most commenters raised no objection to the definition of
disciplinary actions as proposed, i.e., reprimands through adverse
actions, but many expressed strong disagreement with the notion of
expanding that definition to include unwritten actions such as oral
admonishments. Many of those, including the No FEAR Coalition, were
concerned that an expanded definition would undermine what they assert
was the intent of Congress that stiff penalties be imposed on those who
violate Federal antidiscrimination and whistleblower protection laws.
Many believed that reporting such additional actions would improperly
inflate the numbers of actions taken to discourage improper activities.
Others felt that the reporting of non-written actions would be
inconsistent with the concept of progressive discipline or would
encourage agencies to take types of actions that might impinge upon the
recipients' procedural rights. Federal agencies were opposed to
reporting unwritten actions for primarily two reasons: (1) Oral
admonishments, unwritten warnings, and similar actions are not true
disciplinary actions and (2) it would be an administrative burden to
report such actions because of their undocumented nature. Some thought
that documentation of unwritten actions by agencies would negatively
impact their ability to attempt to resolve workplace issues informally.
Commenters in favor of reporting unwritten actions such as oral
admonishments generally felt that it is important for there to be a
complete record of what agencies have done when they discover conduct
inconsistent with Federal antidiscrimination and whistleblower
protection laws. For example, one organization stated that such
reporting would ``give some indication of how serious the agencies are
when it comes to combating discrimination.'' One union stated that
``[t]his information is necessary to fully understand the scope of
agencies' practices in this area and, particularly, whether agencies
have failed to adequately discipline employees who may have committed
serious breaches of the discrimination and whistleblower protection
laws by imposing only minor, unwritten discipline.'' Another union in
favor of reporting unwritten actions stated that extensive reporting
helps ensure that there is ``an accurate and detailed portrait of any
given agency's compliance with the letter and spirit of the No FEAR
Act.'' One commenter recommended that the definition of discipline be
further expanded to include ``reassignment from a supervisory to a non-
supervisory position'' because such actions occur ``frequently'' for
OPM received numerous comments suggesting that an expanded
definition of discipline would be seen by many as an impediment to,
rather than in support of, an effective Federal workforce. Moreover,
expanding the definition could incorrectly suggest that OPM, through
the No FEAR Act, is authorized to establish disciplinary penalties
beyond the normal definition of discipline. Therefore, OPM has decided
not to expand the definition of discipline to include unwritten actions
such as oral admonishments or any other actions suggested by
commenters. The role of OPM under the No FEAR Act is not to dictate
what disciplinary actions are appropriate to be taken by agencies but
rather OPM's role is to address what is to be reported under the Act.
Agency Training Plans
Section 724.302(a)(9) proposed a new reporting element that
required agencies to provide copies of their written training plans
developed under the earlier (February 28, 2005) proposed rule at Sec.
724.203(a). Several commenters suggested that this element be dropped
since it is not required by the No FEAR Act or suggested that the
requirement be held up since Sec. 724.203(a) was only in proposed form
at the time the current regulations were proposed. Training is a
critical component of obligations imposed under the No FEAR Act to
ensure that the workplace is free of discrimination and reprisal.
Because it is critical, OPM has decided to retain the proposed
reporting element on training plans. OPM also declines to drop the
proposal as premature since Subpart B (Notification and Training) along
with Sec. 724.203(a) was published as a final regulation on July 20,
One agency noted that proposed Sec. 724.203(a) requires agencies
to write training plans. Since these plans, in turn, are to be reported
annually under Sec. 724.302(a)(9), the agency asked whether it is
required to resubmit the agency's written plan in each annual report
even when there are no amendments to a previously reported plan. Each
report should be complete and able to stand on its own independent of
other reports that might have been filed by an agency. Thus, a written
training plan should be submitted with each annual report by an agency.
Agency Disciplinary Policies
One commenter asked whether OPM's ``review of agencies'
discussions'' under Sec. 724.402(b) refers to future discussions that
OPM will have with an agency or refers to discussions that an agency
may have had internally about their disciplinary policies. OPM notes
that the discussions referenced are synonymous with the ``detailed
description'' of an agency's policy for taking disciplinary action
under Sec. 724.302(a)(6). Another commenter wondered whether this
``detailed description'' means that agencies would be required to
develop new disciplinary policies under the regulations. While agencies
may decide to develop new disciplinary policies, the regulations do not
require such action. One agency stated that, with regard to the
obligation to provide a detailed discussion of agency policies in Sec.
724.302(a)(6), significant changes in agencies' reports from year to
year should not be expected since agency disciplinary polices aren't
often changed. OPM takes no position on this observation.
One commenter noted that the regulations refer to disciplinary
actions taken for ``conduct that is inconsistent with'' Federal
antidiscrimination and whistleblower protection laws. The commenter
asked that OPM clarify the phrase ``conduct that is inconsistent
with.'' In this regard, while agencies have the authority to take
disciplinary actions against employees for misconduct, this misconduct
may or may not be associated with a formal finding of a violation of
Federal antidiscrimination and whistleblower protection laws. For
example, a case may be settled with no admission of liability but is
clearly a case where the law would be found to have been violated if
there were a formal finding. Discipline taken in such a case should not
go unreported under the No Fear Act. It should be noted, however, that
entering into a settlement agreement should never be construed as proof
of wrongdoing by either party because settlements may be reached for a
variety of reasons. In sum, it is the conduct of the employee that
dictates whether a disciplinary action is to be reported under the
regulations, not whether there is a formal finding of a violation.
As proposed, Sec. 724.302(a)(1) would require agencies to report
on cases involving Federal antidiscrimination and whistleblower
protection laws that are pending or resolved in Federal courts in each
fiscal year. One commenter asked whether this applies to cases in both
U.S. District Court and Courts of Appeals. OPM states that it does.
One agency commented that reporting on pending cases ``does not
further the purpose of the No FEAR Act'' because the number of pending
cases is ``not an accurate reflection of violations'' since complaints
are often filed pro se and plaintiffs often fail to accurately identify
their cause of actions. The agency noted that many cases are filed
under multiple statutes and causes of actions and it's difficult to
understand what cases are about. As a result, the agency recommended
that agencies only report an aggregate number of cases resolved in
Federal court and without relating each case to provision(s) of law
involved as required by the proposed rule. Another commenter suggested
that the Department of Justice be tasked with obtaining the status and
coverage of cases. As discussed elsewhere in the Supplementary
Information, the No FEAR Act calls on agencies to discuss the status or
disposition of cases in the Federal courts. The provision would be
meaningless if the status of all cases reported is ``resolved.''
Therefore, OPM declines to limit agencies' reporting obligation only to
cases in Federal court that have been resolved. OPM also declines to
modify the reporting requirement to just reporting the aggregate number
of cases in Federal court. The Act requires that each case be related
to a provision(s) of law involved. OPM has no authority under the Act
to task the Department of Justice as suggested by one commenter.
One agency asked that OPM define what is considered to be a
``pending case'' in Federal court. The regulations call for reporting
about cases in Federal court that are pending or resolved in each
fiscal year. That is, if a case is filed in court during a current
reporting cycle's fiscal year or resolved during that fiscal year or
filed and resolved in that fiscal year, it is to be reported. Cases
filed in previous years but not resolved would be counted as (pending)
cases in the current reporting year. Cases filed in previous years and
resolved in the current year would be counted as (resolved) cases. Some
cases may be pending for a number of years in Federal court.
Section 724.302(a)(5) requires that agencies report the number of
employees disciplined in accordance with any agency policy described in
Sec. 724.302(a)(5) regardless of whether it was in connection with a
case in the Federal courts. One commenter wondered why administrative
cases are covered in this reporting element when other reporting
elements only apply to cases in the Federal courts. OPM believes that
the No FEAR Act at section 203(a)(6)(B) asks, without restriction, for
reports on all discipline in connection with Federal antidiscrimination
and whistleblower protections laws. Another commenter suggested that
the phrase ``whether or not'' in Sec. 724.302(a)(5) be deleted. OPM
declines to adopt the suggestion.
Section 724.302(a)(5) also requires agencies to report on the
number of employees disciplined for conduct inconsistent with Federal
antidiscrimination and whistleblower protection laws, whether or not in
connection with cases in Federal court, and to identify the specific
nature of the disciplinary actions (e.g., reprimand, etc.). One agency
asked whether former employees should be included in this reporting
requirement. OPM states that any discipline taken during the reporting
period for conduct inconsistent with the laws noted previously is to be
reported even if the individual is no longer employed when the report
Based on its analysis of the relationship between section 203(a)(1)
and section 201(a) of Title II of the No FEAR Act, one agency concluded
that the ``plain meaning'' of the Act is that agencies, under Sec.
724.302(a)(1) of the proposed rule, are only required to report on
cases in Federal court in which Judgment Fund payments have been made.
OPM notes that section 203(a)(2) of the Act requires reporting on the
``status or disposition'' of cases described in section 203(a)(1) of
the Act. If the only cases reported are those in which Judgment Fund
payments have been made, section 203(a)(2) would be meaningless since
the status or disposition of all cases would be similar. Accordingly,
OPM declines to modify Sec. 724.302(a)(1) and agencies must report on
all cases in Federal court whether or not there has been Judgment Fund
The same agency also suggested that the proposed rule Sec.
724.302(a)(3) be modified so that agencies are not obligated to report
on the nature of each disciplinary action and the provision of law
concerned in each case, but rather report solely on the numbers of
disciplinary actions taken. Here the agency cites to section 203(a)(4)
of Title II of the No FEAR Act which calls for reporting disciplinary
actions but does not speak to the nature of the action or the provision
of law concerned. The agency also comments that the phrase ``provision
of law'' is unclear and asks whether the phrase applies to the Federal
antidiscrimination and whistleblower protection laws concerned or
whether it refers to laws authorizing disciplinary actions (such as the
law codified at 5 CFR 752 concerning adverse actions).
In response to the comment on the issue of whether the Act requires
agencies to identify the nature of an action and the provision of law
concerned in each case, section 203(a)(6)(B) of Title II calls for
identification of the nature of the disciplinary actions reported. This
reporting requirement is codified at Sec. 724.302(a)(5). In addition,
section 203(a)(1) of Title II calls for reporting on the cases arising
under ``the respective provisions of law'' and that requirement is
reflected in Sec. 724.302(a)(3). The reporting requirements under both
Sec. 724.302(a)(3) and Sec. 724.302(a)(5) should be consistent with
regard to labeling discipline in order to provide the most meaningful
and useful data to Congress and others. Thus, OPM declines to modify
In response to another agency's question about reporting
disciplinary actions, agencies are required to associate the nature of
a disciplinary action with each case in such a manner that the report
will list the types of disciplinary actions taken and then state the
numbers of employees affected by each particular type of action.
With regard to the issue of what the phrase ``provision of law''
means, it means the Federal antidiscrimination or whistleblower
protection laws involved in a particular case wherever that phrase is
used in Sec. 724.302. Another agency asked how specific an agency must
be when it relates individual cases to these laws, e.g., whether the
agency needs to cite laws such as the Civil Rights Act, Age
Discrimination in Employment Act, etc. or whether it can just broadly
refer to antidiscrimination laws or whistleblower protection laws. The
No FEAR Act requires specificity and thus agencies need to identify the
specific laws involved such as those cited in the commenter's question.
One agency commented on OPM's proposed Sec. Sec. 724.301 and
724.302(a)(1) stating that they should contain the same language as
that proposed in Sec. 724.202(a) on February 28, 2005. That section
calls on agencies to give notice to employees about Antidiscrimination
Laws and Whistleblower Protection Laws applicable to them. OPM agrees
the regulation should be consistent and has modified Sec. Sec. 724.301
and 724.302(a)(1) to include the phrase ``applicable to them'' to
modify Antidiscrimination Laws and Whistleblower Protection Laws.
One organization suggested that administrative cases also should be
reported by agencies under the regulations. In this regard, the
commenter noted that the regulations ignore the ``thousands of cases
which are processed administratively through the MSPB [Merit Systems
Protection Board] and the EEOC.'' The commenter stated that, to be
truly reflective of both the magnitude of these cases and whether an
agency is disciplining employees who are found liable in forums other
than courts, those cases must be reported. The commenter also
recommends that all settlement agreements be reported regardless of any
no fault clauses. With regard to reporting administrative cases, OPM
notes that, apart from the data required pursuant to section 203(a)(5),
Title II of the No FEAR Act is very clear that the cases to be reported
are those that have gone to Federal courts. Under Title III of the Act,
the EEOC already collects information regarding administrative cases
within its jurisdiction. These regulations are consistent with the
requirements of the Act and the suggestion is not adopted.
With regard to settlements, OPM notes that agencies are required to
report on all cases that have gone to Federal court. Some of these
cases may result in settlement agreements and they must be reported.
OPM takes no position on the same commenter's proposal regarding EEOC's
administrative judges' salaries because the comment is beyond the scope
of these regulations and that issue is not a part of the No FEAR Act.
One agency commented that employees in Federal courts often receive
lump sum payments from the Judgment Fund that provide no information
about how the payment is to be divided among the employee, attorney(s),
and other recipients. As a result, it is difficult for an agency to
report what attorney's fees were paid in connection with cases in
court. Since agencies are required to report under the regulations on
attorney's fees, the commenting agency suggested that the Department of
Justice advise agencies of the payment breakdown since the Department
is involved in most cases in Federal court. OPM notes that the
regulation at Sec. 724.302(a)(2)(iii) only requires the reporting of
attorney's fees where they have been ``separately designated.'' If they
have not been separated out in any part of the proceeding, agencies are
not required to report on them.
A commenter suggested inserting for clarity the word ``calendar''
into the phrase ``each agency must report no later than 180 days'' in
Sec. 724.302(a). OPM adopts this suggestion.
Section 724.302(a)(9)(b)(5) provides that agencies are to submit
their annual reports to ``Each Committee of Congress with jurisdiction
relating to the agency.'' One agency commented that this provision is
unclear and asked whether it is within each agency's discretion to
determine which Committees have jurisdiction relating to that agency.
OPM notes that, while the No FEAR Act does not elaborate on this
requirement, OPM has concluded the provision covers committees with
subject-matter jurisdiction over a particular agency's mission as well
as other committees with oversight responsibility for a particular
agency such as appropriations committees. Beyond these committees, it
is left with agencies to determine what other committees, if any, have
jurisdiction relating to their agencies.
Section 724.302(b) requires agencies that submitted their annual
reports before these regulations become final to ensure that their
reports contain data elements 1 through 8 of paragraph (a) of that
section. If the earlier reports do not cover all of those data elements
as written, agencies would be obligated to submit supplemental reports.
Data element 9 concerns agency training plans and agencies are only
required to include it in their future reports. One agency commented
that comparing earlier reports to the final rules and providing
supplemental reports would be an ``unnecessary administrative burden''
on agencies. Another agency said that it would be ``overly burdensome''
for those that complied with the Act earlier in ``good faith.'' That
agency strongly recommended that the final rule apply only to future
reports. Because the proposed regulations on reporting closely track
the provisions of the No FEAR Act itself, OPM believes that the
differences between what was submitted earlier and the requirements of
the regulations will be minimal. OPM commends those agencies that have
taken the initiative and submitted reports based on the Act even though
OPM's regulations had not been finalized. However, because differences
are likely to be minimal and because OPM believes that Congress needs
consistent reports from all agencies in order to see how well the
Federal Government is working toward a discrimination and reprisal-free
workplace, OPM declines to eliminate the supplemental reporting
requirement of Sec. 724.302(b).
Best Practices Study
One commenter stated that OPM ``has not gone far enough''
concerning its determination of best practices because it appears that
OPM plans a ``reactive response'' based on reports developed by
agencies. The commenter said that OPM should provide ``thoroughly
researched, comprehensive, proactive guidelines which could help
agencies avoid inappropriate discipline actions and would provide
managers with sound guidance * * *.'' OPM notes the proposed rule
stated only that the study ``will include,'' rather than ``will be
limited to'' a review of agencies' discussions provided in their
reports under the No FEAR Act.
Another commenter recommended that disciplinary best practices be
shared with Federal agencies. Under Sec. 724.403, disciplinary best
practices will be incorporated in the advisory guidelines that OPM will
provide to Federal agencies.
Some agencies suggested that OPM change the manner in which they
are to reply to the advisory guidelines issued under Sec. 724.403,
eliminate the reply as an unnecessary burden, make the guidelines non-
mandatory, change the recipient list, delay implementation of the
guidelines after they are issued, and/or change the amount of time
allocated for replying (provide more time). The No FEAR Act is very
specific about agencies' obligations regarding this topic. Therefore,
OPM declines to adopt these suggestions.
One agency suggested that agencies be given maximum flexibility in
administering disciplinary actions and that the guidelines be focused
essentially on program measures to determine effectiveness. Such
program measures might be the reduction in agency complaints, policies
issued to deter discriminatory behavior, and effective implementation
of recommendations from previous agency reports. OPM will consider
these suggestions in drafting the advisory guidelines.
One commenter suggested that OPM provide agencies with an
opportunity to comment on advisory guidelines drafted under the No FEAR
Act and/or publish them in the Federal Register for public comment.
While the Act does not provide the opportunity for such comments, the
President's delegation of authority to OPM does require that its
activities concerning regulations under the No FEAR Act be accomplished
in consultation with the Attorney General and other officers of the
executive branch OPM determines appropriate. Thus, OPM has consulted
with the Department of Justice, the Equal Employment Opportunity
Commission, the Office of Special Counsel, and the Department of the
Treasury and may do so in connection with the advisory guidelines.
With regard to agencies' obligation to state in writing whether or
to what extent they are going to follow the advisory guidelines, one
commenter wanted to know what will happen if an agency ``opts out''.
Will there be consequences? The No FEAR Act requires agencies to
provide their written statements to the Congress, the EEOC, and the
Attorney General. The Act contains no ``opt out'' provision.
One of the union commenters recommended that there be ``mandatory
training requirements'' and proposed that managers who have violated
discrimination laws attend education and awareness training pertaining
to managing a diverse workforce. OPM notes that the No FEAR Act
requires training for all employees including managers. Agencies have
flexibility to develop training curricula as appropriate for their
needs. OPM declines to adopt this recommendation.
One organization suggested that EEOC and MSPB amend their
regulations so that they could dismiss on jurisdictional grounds
complaints and appeals filed by
employees who are disciplined in accordance with best practices
guidance on disciplinary matters as set forth by OPM. OPM takes no
position on this comment because it is beyond the scope of these
Another organization suggests that, for enforcement purposes, when
there are violations of Federal antidiscrimination and whistleblower
protection laws within an agency, that agency should be required to
post a public notice similar to what is done when an agency is found by
the Federal Labor Relations Authority to have committed an unfair labor
practice. Another enforcement-related proposal would be to create a
central repository of all information collected under the No FEAR Act
and posted in one location on a public Web site such as EEOC's. This
commenter also suggested that the regulations set penalties for failing
to report as required by the Act. Another organization suggests that
OPM measure agencies' performance in implementing the No FEAR Act. Part
of this process would involve identifying an office at OPM with primary
responsibility for assessing policy performance. Agencies would submit
policy to this office and a selected group of interested employees from
agencies would determine important aspects to be included in agency
performance assessment. The group's results then would be used to
compile a list of agency performance criteria and success indicators.
OPM takes no position on these comments because they are beyond the
scope of these regulations.
A number of commenters expressed concern about the amount of time
it has taken for regulations to be promulgated under the No FEAR Act.
OPM notes that with the publication of final regulations on Subpart A
(Judgment Fund) on May 10, 2006, Subpart B (Notification and Training)
on July 20, 2006, and the current rule, Subparts C & D (Reporting and
Best Practices), 5 CFR part 724 is now complete.
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 final rule has been reviewed by the Office of Management and
Budget under Executive Order 12866.
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
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
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,
Accordingly, OPM is amending 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
* * * * *
2. In part 724, add subparts C and D to read as follows:
Subpart C--Annual Report
724.301 Purpose and scope.
724.302 Reporting obligagations.
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
applicable to them 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 calendar 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
applicable to them as defined in Sec. 724.102 of subpart A of this
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 (a)(1)
of this section 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 (a)(1) of this
section, 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
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 section 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
(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 part
1614 subpart F of the Code of Federal Regulations. Such analysis must
(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;
(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 they contain data elements 1 through 8 of paragraph (a) of
this section and provide any necessary supplemental reports by April
25, 2007. Future reports must include data elements 1 through 9 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
(6) Chair, Equal Employment Opportunity Commission;
(7) Attorney General; and
(8) Director, U.S. Office of Personnel Management.
Subpart D--Best Practices
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
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
(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. E6-22242 Filed 12-27-06; 8:45 am]
BILLING CODE 6325-39-P