Implementation of Title II of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002-Judgment Fund, 27185-27188 [06-4319]
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27185
Rules and Regulations
Federal Register
Vol. 71, No. 90
Wednesday, May 10, 2006
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.
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—Judgment Fund
Office of Personnel
Management.
ACTION: Final rule.
AGENCY:
Introduction
The Office of Personnel
Management (OPM) is issuing final
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
antidiscrimination laws, Federal
whistleblower protection laws, and/or
retaliation claims arising from the
assertion of rights under those laws.
This rule implements the
reimbursement provisions of Title II of
the No FEAR Act.
DATES: Effective Date: The final rule is
effective October 1, 2003.
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.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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Background
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
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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
steadfastly protected and that agencies
that violate these rights be held
accountable. Congress has found that
agencies cannot be run effectively if
they practice or tolerate discrimination.
In addition, Congress has found that
requiring Federal agencies to pay for
any discrimination or whistleblower
judgment, award, or settlement should
improve agency accountability under
these laws. Therefore, under authority
delegated by the President, OPM is
issuing final regulations to implement
the reimbursement provisions of Title II
of the Federal Employee
Antidiscrimination and Retaliation Act
of 2002 (No FEAR Act), Public Law
107–174.
Jkt 208001
On January 22, 2004, OPM published
at 69 FR 2997 (2004) an interim final
rule implementing the reimbursement
provisions of the No FEAR Act, and
provided a 60-day comment period. The
rule was effective October 1, 2003. On
March 31, 2004, OPM at 69 FR 16769
(2004) extended the comment period to
April 26, 2004. OPM received 13
comments from Federal agencies or
departments, five comments from civil
rights organizations, and more than a
hundred comments from individuals.
OPM thanks all who provided
comments—each comment has been
carefully considered.
Hearings/Comment Period
A significant number of commenters
requested that OPM conduct public
hearings on the No FEAR regulations
and that OPM extend the comment
period on the interim final rule
published on January 22, 2004. OPM
believes that the Administrative
Procedures Act process for obtaining
comments during the regulatory process
is an appropriate method to capture
public concerns and therefore has
declined to conduct public hearings.
However, to help ensure that OPM
considers all concerns, OPM extended
the comment period as noted
previously.
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Definition of Agency
The regulation’s definition of agency
mirrors the statutory definition
contained in section 103 of the No
FEAR Act. One commenter pointed out,
however, that the definition for agency
is the one provided in 5 U.S.C 105. The
commenter noted that this section of the
statute does not include military
departments as defined in 5 U.S.C. 102
and suggested that military departments
as a result would not reimburse the
Judgment Fund. OPM has concluded
that military departments are covered by
the No FEAR Act because they are part
of the Department of Defense. The
statute at 5 U.S.C. 105 defines Executive
Agency as including executive
departments, one of which under 5
U.S.C. 101 is the Department of Defense.
The No FEAR Act requires agencies to
reimburse the Judgment Fund for
payments made in connection with
proceedings involving Federal
antidiscrimination and whistleblower
protection laws. Section 724.102 of the
interim final rule defined such a
payment as ‘‘a disbursement from the
Judgment Fund on or after October 1,
2003’’ (the effective date of the
reimbursement provision of the No
FEAR Act). Thus, under the rule, if a
payment is made from the Fund on or
after that date based on a judgment,
award, or settlement in such a
proceeding, the agency is obligated to
reimburse the Fund. A number of
commenters expressed concern about
this definition and suggested that it be
modified. Some thought an agency’s
obligation to reimburse the Fund should
occur only if a judgment, award, or
settlement occurs on or after that date.
Others thought that an agency should
not be obligated in any proceedings to
which it was not originally a party (see
later discussion about financial
implications generally under Agency
Obligations). Some thought an agency’s
obligation should only accrue in
proceedings that are initiated on or after
October 1, 2003. OPM understands that
there may be significant financial
implications associated with this rule
and that some may perceive the rule to
be unfair. Nevertheless, OPM has
determined that its definition of
payment (and thus describing agencies’
reimbursement obligations) reflects
Congressional intent. OPM does believe,
however, that the term payment is a
broad concept and may include a
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number of separate payments. For
example, a judgment, award or
settlement may call for separate
payments over an extended period of
time, subsequent payments may be
based on some future condition,
separate payments may be made to
individual members of a class action,
and separate payments may be made for
attorney fees. Because there may be
many payments involved in a given
proceeding, OPM is responding to the
previous comments by modifying the
definition to clarify that ‘‘payment’’
means the first disbursement in a
particular proceeding. For example if
the Judgment Fund made a
disbursement in a proceeding before
October 1, 2003, any subsequent
disbursement made in that same
proceeding on or after October 1, 2003,
would not be considered payments that
would obligate the agency involved to
reimburse the Fund. However, if a
proceeding was pending before October
1, 2003, and the first disbursement from
the Fund in that proceeding occurred on
or after October 1, 2003, the agency
would be obligated to reimburse the
Fund.
One commenter stated that the types
of actions on which payments from the
Judgment Fund are made could be
misunderstood. OPM agrees and has
modified the definition in section
724.102 by inserting additional statutory
references and using the phrase ‘‘or
retaliatory conduct’’ as appropriate.
This should help eliminate any
confusion about which payments are
covered by the No FEAR Act.
Finally, with regard to payments,
OPM notes that 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 became effective will
continue to be paid by the Judgment
Fund.
Agency Obligations
With regard to agency obligations, a
number of commenters suggested that
the regulations take into account the fact
that the agency or organization currently
assigned as a party to a proceeding may
not have been the original party to the
proceedings because of reorganization,
transfer of function, etc. The No FEAR
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Act draws no distinctions between
original and successor agencies in
proceedings and OPM is reluctant to do
so as well. By inserting a parenthetical
phrase in section 724.103, OPM
confirms that the obligation to
reimburse the Judgment Fund extends
to successor agencies. In those
proceedings where financial
considerations are paramount, OPM
notes that Congress understood that an
agency may need to complete its
reimbursement of the Fund over a
period of years under the circumstances
described in section 102 of the Act, i.e.,
to avoid reductions in force, furloughs,
other reductions in compensation or
benefits for the workforce of the agency
or to avoid an adverse effect on the
mission of the agency. (Several
commenters suggested that these
circumstances be described in the
regulations but OPM has declined since
the Act itself is clear.) As further
indication that Congress understood this
potential circumstance, the No FEAR
Act requires agencies to report on any
adjustments in their budgets made in
order to comply with reimbursement
obligations.
Procedures
Section 724.104(a) of the interim final
rule stated that FMS would notify
agencies within 15 business days after
January 22, 2004, of any payments from
the Judgment Fund between October 1,
2003, and January 22, 2004, involving
those agencies. This notice period has
expired and thus OPM is deleting the
provision from the final rule.
Several commenters had questions
about the means FMS would use to
notify agencies under section 724.104(a)
that a payment has been made from the
Judgment Fund. OPM has clarified this
section to reflect the intent that such
notices be in writing.
A number of commenters stated that
section 724.104(b) is unclear about the
time frame that would apply to an
agency’s obligation to reimburse the
Judgment Fund or contact FMS to make
arrangements. OPM notes that the intent
of this provision is to require agencies
to reimburse the Fund or contact FMS
within 45 business days after they
receive the FMS notice. Accordingly,
OPM has modified the section to reflect
this intent more clearly. Other
suggestions included lengthening the
time frames applicable to agencies and
adding appeal procedures for agencies
to follow if FMS’ notices are disputed.
OPM believes that the stated time
frames are reasonable and appropriate
and that, in the event there is a dispute
between an agency and FMS, an agency
may discuss that dispute with FMS
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without utilizing a special appeals
procedure. Therefore, OPM declines to
make additional modifications to
§ 724.104(b).
Compliance
A number of commenters stated that
the § 724.105 requirement for FMS to
record on an annual basis and post on
the FMS Web site information about
agencies that fail to meet their Judgment
Fund reimbursement obligations is an
inadequate response to such failures.
Several suggested alternatives such as
posting the names of responsible
officials, disciplining responsible
officials, or notifying Congress. The No
FEAR Act provides no specific
enforcement authority and OPM
declines to assume such a role without
authorization. OPM notes, however, that
agencies are required by the No FEAR
Act to report to Congress and others on
the amount of money required to be
reimbursed to the Judgment Fund by
those agencies. (OPM will issue separate
regulations on this and other reporting
requirements.) One commenter also
suggested that a process be described for
removing postings from FMS Web site
once the Judgment Fund is reimbursed.
OPM agrees that such a process would
be appropriate and has amended section
724.105 so that postings will be
removed during the annual posting
following the date when the agency
comes into compliance with the No
FEAR Act.
Miscellaneous Comments
A significant number of comments
noted that the interim final rule on
reimbursement of the Judgment Fund
did not address the topics of
notification, training, reporting, and
disciplinary best practices that are
covered by the No FEAR Act. As noted
in the Supplementary Information in the
interim final rule, OPM will issue
regulations on each of these topics
separately.
A number of comments addressed
subject matter covered by Title III of the
No FEAR Act. Congress assigned the
responsibility for issuing regulations
under that Title to the Equal
Employment Opportunity Commission.
Since OPM lacks authority under Title
III, it is unable to respond to those
comments.
Immediate Implementation of Final
Rule
Immediate implementation of this
final rule is based upon the exceptions
found at 5 U.S.C. 553(b)(A), (b)(3)(B)
and (d). The agency obligations under
the No FEAR Act to reimburse the
Judgment Fund began on October 1,
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2003. Interim final rules covering these
obligations were published on January
22, 2004, and were effective on October
1, 2003. It was essential, at the time of
initial publication, that all agencies be
placed in a position to understand their
responsibilities regarding this
requirement. The revisions to these
rules make some adjustments to our
description of agency obligations that
we believe should be retroactive to
October 1, 2003. OPM has determined
under 5 U.S.C. 553(b)(3)(A) that the
reimbursement provision only affects
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 final rule
to become effective upon publication
retroactive to October 1, 2003.
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.
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.
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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
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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 or obligations of nonagency 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 is adopting the
interim rule that added part 724 to title
5, Code of Federal Regulations, which
was published at 69 FR 2997 on January
22, 2004, as final with the following
changes. Part 724 is revised to read as
follows:
I
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.
Subpart B—Notification of Rights and
Protections and Training [Reserved]
Subpart C—Annual Report [Reserved]
Subpart D—Best Practices [Reserved]
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.’’
Subpart A—Reimbursement of
Judgement Fund
§ 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
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27187
and the procedures for reimbursement
and compliance.
§ 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, subject to the following
exception, 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 or retaliatory conduct
described in 5 U.S.C. 2302(b)(1) and
(b)(8) or (b)(9) as applied to conduct
described in 5 U.S.C. 2302(b)(1) and/or
(b)(8) or conduct described in 29 U.S.C.
206(d), 29 U.S.C. 631, 29 U.S.C. 633a, 29
U.S.C. 791 and 42 U.S.C. 2000e-16. For
a proceeding involving more than one
disbursement from the Judgment Fund,
however, this term shall apply only if
the first disbursement occurred on or
after October 1, 2003.
§ 724.103
Agency obligations.
A Federal agency (or its successor
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 § 724.104.
§ 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 written notice
to the agency’s Chief Financial Officer
within 15 business days after payment
from the Judgment Fund.
(b) Within 45 business days of
receiving the FMS notice, agencies must
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reimburse the Judgment Fund or contact
FMS to make arrangements in writing
for reimbursement.
§ 724.105
Compliance.
An agency’s failure to reimburse the
Judgment Fund, to contact FMS within
45 business days after receipt of an FMS
notice for reimbursement under
§ 724.104 will be recorded on an annual
basis and posted on the FMS Web site.
After an agency meets the requirements
of § 724.104, the recording will be
eliminated no later than the next annual
posting process.
§ 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. 06–4319 Filed 5–9–06; 8:45 am]
BILLING CODE 6325–39–P
DEPARTMENT OF AGRICULTURE
Farm Service Agency
7 CFR Part 760
RIN 0560–AH45
2005 Section 32 Hurricane Disaster
Programs
Farm Service Agency, USDA.
Interim final rule with request
for comment.
AGENCY:
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ACTION:
SUMMARY: The Farm Service Agency
(FSA) issues this interim final rule in
response to emergency agricultural
situations caused by the 2005
Hurricanes Dennis, Katrina, Ophelia,
Rita, and Wilma in certain counties in
Alabama, Florida, Louisiana,
Mississippi, North Carolina, and Texas.
The named hurricanes severely limited
the purchasing power of farmers
engaged in the production of
agricultural commodities. This rule
provides for the establishment of four
hurricane disaster programs and one
grant program using an estimated $250
million in funds available under section
32 of the Act of August 24, 1935, to be
administered by FSA in order to provide
funds to eligible producers who suffered
eligible losses, thus reestablishing these
producers’ purchasing power. The
grants will be provided to the respective
States to enable them to assist
aquaculture producers having losses
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Jkt 208001
related to the aforementioned 2005
hurricanes.
DATES: This interim final rule is
effective May 9, 2006. Written
comments via letter, facsimile, or
Internet must be received on or before
June 9, 2006 in order to be assured
consideration.
ADDRESSES: FSA invites interested
persons to submit comments on this
interim final rule. Comments may be
submitted by any of the following
methods:
• E-mail: Send comments to
Diane.Sharp@wdc.usda.gov.
• Fax: Submit comments by facsimile
transmission to: (202) 690–2130.
• Mail: Send comments to: Diane
Sharp, Director, Production,
Emergencies, and Compliance Division;
Farm Service Agency; United States
Department of Agriculture, STOP 0517,
1400 Independence Avenue, SW.,
Washington, DC 20250–0517.
• Hand Delivery or Courier: Deliver
comments to: Diane Sharp, Director,
Production, Emergencies, and
Compliance Division; Farm Service
Agency; United States Department of
Agriculture, Rm. 4754–S, 1400
Independence Avenue, SW.,
Washington, DC 20250–0517
• Federal eRulemaking Portal: Go to
https://www.regulations.gov. Follow the
online instructions for submitting
comments.
FOR FURTHER INFORMATION CONTACT:
Diane Sharp, Director, Production,
Emergencies, and Compliance Division;
Farm Service Agency; United States
Department of Agriculture, STOP 0517,
1400 Independence Avenue, SW.,
Washington, DC 20250–0517; telephone
(202) 720–7641; e-mail
Diane.Sharp@wdc.usda.gov.
SUPPLEMENTARY INFORMATION:
Background
2005 Section 32 Hurricane Disaster
Programs
Section 32 of the Act of August 24,
1935, as amended (section 32) provides,
in part, discretionary authority for the
Secretary of Agriculture (the Secretary)
to use section 32 funds to reestablish
farmers’ purchasing power by making
payments to them in connection with
the normal production of agricultural
commodities produced for domestic
consumption. This authority has been
used in the past to provide assistance to
producers in response to unusual
market conditions that adversely
affected them. Therefore, the Secretary
is using funds available under section
32 in order to restore purchasing power
to farmers affected by the significant
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and widespread destruction caused by
the 2005 Hurricanes Dennis, Katrina,
Ophelia, Rita, and Wilma in applicable
counties in Alabama, Florida, Louisiana,
Mississippi, North Carolina, and Texas.
The hurricanes destroyed and damaged
trees, killed livestock, destroyed feed,
and adversely impacted crop
production, including aquaculture. This
interim final rule addresses the
hurricane destruction in those counties
receiving a Presidential or Secretarial
Designation as a primary county.
Accordingly, the Secretary has
determined that assistance is
appropriate under this authority in
these counties by providing the
following programs:
• The Hurricane Indemnity Program
(HIP) will provide payments to eligible
producers who receive either a Federal
Crop Insurance Corporation crop
insurance indemnity payment or a crop
loss payment under FSA’s Noninsured
Crop Disaster Assistance Program (NAP)
for crop losses that are primarily
attributable to one of the five listed
hurricanes in an eligible county. HIP
payments will be equal to 30 percent of
the Risk Management Agency crop
insurance indemnity or 30 percent of
the NAP payment, subject to the
limitations of this rule. Producers
suffering crop losses due to an eligible
hurricane may have been impacted by
other causes of loss, not related to such
a hurricane, prior to the hurricane
occurrence. As a result, if a crop
insurance indemnity or NAP payment
was received for multiple causes of loss,
including hurricane and related
conditions, the entire crop insurance
indemnity or NAP payment will be used
to determine the HIP benefit. Since
losses under both programs are not
finalized until after harvest is completed
or crop is abandoned RMA and FSA are
unable to specifically prorate crop
insurance indemnities or NAP payments
strictly due to hurricane. If FSA
determines that the cause of loss was
not due to a hurricane or related
condition, no payment will be made.
• The Feed Indemnity Program (FIP)
will provide payments for feed losses or
increased feed costs to eligible owners,
or cash lessees, of eligible livestock in
eligible counties due to 2005 hurricanes.
Payments will be based on per-day feed
needs for each type of eligible livestock.
• The Livestock Indemnity Program
(LIP) will provide payments to eligible
livestock owners and contract growers
who suffered eligible livestock deaths
that occurred in an eligible county due
to 2005 hurricanes. Payments will be
based on 75 percent of an average
market value of the eligible livestock for
non-contract growers and 75 percent of
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]]>Agencies
[Federal Register Volume 71, Number 90 (Wednesday, May 10, 2006)]
[Rules and Regulations]
[Pages 27185-27188]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-4319]
========================================================================
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. 71, No. 90 / Wednesday, May 10, 2006 / Rules
and Regulations
[[Page 27185]]
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--Judgment Fund
AGENCY: Office of Personnel Management.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Office of Personnel Management (OPM) is issuing final
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 antidiscrimination laws,
Federal whistleblower protection laws, and/or retaliation claims
arising from the assertion of rights under those laws. This rule
implements the reimbursement provisions of Title II of the No FEAR Act.
DATES: Effective Date: The final rule is effective October 1, 2003.
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.
SUPPLEMENTARY INFORMATION:
Background
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 steadfastly protected and that agencies that violate these rights be
held accountable. Congress has found that agencies cannot be run
effectively if they practice or tolerate discrimination. In addition,
Congress has found that requiring Federal agencies to pay for any
discrimination or whistleblower judgment, award, or settlement should
improve agency accountability under these laws. Therefore, under
authority delegated by the President, OPM is issuing final regulations
to implement the reimbursement provisions of Title II of the Federal
Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act),
Public Law 107-174.
Introduction
On January 22, 2004, OPM published at 69 FR 2997 (2004) an interim
final rule implementing the reimbursement provisions of the No FEAR
Act, and provided a 60-day comment period. The rule was effective
October 1, 2003. On March 31, 2004, OPM at 69 FR 16769 (2004) extended
the comment period to April 26, 2004. OPM received 13 comments from
Federal agencies or departments, five comments from civil rights
organizations, and more than a hundred comments from individuals. OPM
thanks all who provided comments--each comment has been carefully
considered.
Hearings/Comment Period
A significant number of commenters requested that OPM conduct
public hearings on the No FEAR regulations and that OPM extend the
comment period on the interim final rule published on January 22, 2004.
OPM believes that the Administrative Procedures Act process for
obtaining comments during the regulatory process is an appropriate
method to capture public concerns and therefore has declined to conduct
public hearings. However, to help ensure that OPM considers all
concerns, OPM extended the comment period as noted previously.
Definition of Agency
The regulation's definition of agency mirrors the statutory
definition contained in section 103 of the No FEAR Act. One commenter
pointed out, however, that the definition for agency is the one
provided in 5 U.S.C 105. The commenter noted that this section of the
statute does not include military departments as defined in 5 U.S.C.
102 and suggested that military departments as a result would not
reimburse the Judgment Fund. OPM has concluded that military
departments are covered by the No FEAR Act because they are part of the
Department of Defense. The statute at 5 U.S.C. 105 defines Executive
Agency as including executive departments, one of which under 5 U.S.C.
101 is the Department of Defense.
The No FEAR Act requires agencies to reimburse the Judgment Fund
for payments made in connection with proceedings involving Federal
antidiscrimination and whistleblower protection laws. Section 724.102
of the interim final rule defined such a payment as ``a disbursement
from the Judgment Fund on or after October 1, 2003'' (the effective
date of the reimbursement provision of the No FEAR Act). Thus, under
the rule, if a payment is made from the Fund on or after that date
based on a judgment, award, or settlement in such a proceeding, the
agency is obligated to reimburse the Fund. A number of commenters
expressed concern about this definition and suggested that it be
modified. Some thought an agency's obligation to reimburse the Fund
should occur only if a judgment, award, or settlement occurs on or
after that date. Others thought that an agency should not be obligated
in any proceedings to which it was not originally a party (see later
discussion about financial implications generally under Agency
Obligations). Some thought an agency's obligation should only accrue in
proceedings that are initiated on or after October 1, 2003. OPM
understands that there may be significant financial implications
associated with this rule and that some may perceive the rule to be
unfair. Nevertheless, OPM has determined that its definition of payment
(and thus describing agencies' reimbursement obligations) reflects
Congressional intent. OPM does believe, however, that the term payment
is a broad concept and may include a
[[Page 27186]]
number of separate payments. For example, a judgment, award or
settlement may call for separate payments over an extended period of
time, subsequent payments may be based on some future condition,
separate payments may be made to individual members of a class action,
and separate payments may be made for attorney fees. Because there may
be many payments involved in a given proceeding, OPM is responding to
the previous comments by modifying the definition to clarify that
``payment'' means the first disbursement in a particular proceeding.
For example if the Judgment Fund made a disbursement in a proceeding
before October 1, 2003, any subsequent disbursement made in that same
proceeding on or after October 1, 2003, would not be considered
payments that would obligate the agency involved to reimburse the Fund.
However, if a proceeding was pending before October 1, 2003, and the
first disbursement from the Fund in that proceeding occurred on or
after October 1, 2003, the agency would be obligated to reimburse the
Fund.
One commenter stated that the types of actions on which payments
from the Judgment Fund are made could be misunderstood. OPM agrees and
has modified the definition in section 724.102 by inserting additional
statutory references and using the phrase ``or retaliatory conduct'' as
appropriate. This should help eliminate any confusion about which
payments are covered by the No FEAR Act.
Finally, with regard to payments, OPM notes that 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
became effective will continue to be paid by the Judgment Fund.
Agency Obligations
With regard to agency obligations, a number of commenters suggested
that the regulations take into account the fact that the agency or
organization currently assigned as a party to a proceeding may not have
been the original party to the proceedings because of reorganization,
transfer of function, etc. The No FEAR Act draws no distinctions
between original and successor agencies in proceedings and OPM is
reluctant to do so as well. By inserting a parenthetical phrase in
section 724.103, OPM confirms that the obligation to reimburse the
Judgment Fund extends to successor agencies. In those proceedings where
financial considerations are paramount, OPM notes that Congress
understood that an agency may need to complete its reimbursement of the
Fund over a period of years under the circumstances described in
section 102 of the Act, i.e., to avoid reductions in force, furloughs,
other reductions in compensation or benefits for the workforce of the
agency or to avoid an adverse effect on the mission of the agency.
(Several commenters suggested that these circumstances be described in
the regulations but OPM has declined since the Act itself is clear.) As
further indication that Congress understood this potential
circumstance, the No FEAR Act requires agencies to report on any
adjustments in their budgets made in order to comply with reimbursement
obligations.
Procedures
Section 724.104(a) of the interim final rule stated that FMS would
notify agencies within 15 business days after January 22, 2004, of any
payments from the Judgment Fund between October 1, 2003, and January
22, 2004, involving those agencies. This notice period has expired and
thus OPM is deleting the provision from the final rule.
Several commenters had questions about the means FMS would use to
notify agencies under section 724.104(a) that a payment has been made
from the Judgment Fund. OPM has clarified this section to reflect the
intent that such notices be in writing.
A number of commenters stated that section 724.104(b) is unclear
about the time frame that would apply to an agency's obligation to
reimburse the Judgment Fund or contact FMS to make arrangements. OPM
notes that the intent of this provision is to require agencies to
reimburse the Fund or contact FMS within 45 business days after they
receive the FMS notice. Accordingly, OPM has modified the section to
reflect this intent more clearly. Other suggestions included
lengthening the time frames applicable to agencies and adding appeal
procedures for agencies to follow if FMS' notices are disputed. OPM
believes that the stated time frames are reasonable and appropriate and
that, in the event there is a dispute between an agency and FMS, an
agency may discuss that dispute with FMS without utilizing a special
appeals procedure. Therefore, OPM declines to make additional
modifications to Sec. 724.104(b).
Compliance
A number of commenters stated that the Sec. 724.105 requirement
for FMS to record on an annual basis and post on the FMS Web site
information about agencies that fail to meet their Judgment Fund
reimbursement obligations is an inadequate response to such failures.
Several suggested alternatives such as posting the names of responsible
officials, disciplining responsible officials, or notifying Congress.
The No FEAR Act provides no specific enforcement authority and OPM
declines to assume such a role without authorization. OPM notes,
however, that agencies are required by the No FEAR Act to report to
Congress and others on the amount of money required to be reimbursed to
the Judgment Fund by those agencies. (OPM will issue separate
regulations on this and other reporting requirements.) One commenter
also suggested that a process be described for removing postings from
FMS Web site once the Judgment Fund is reimbursed. OPM agrees that such
a process would be appropriate and has amended section 724.105 so that
postings will be removed during the annual posting following the date
when the agency comes into compliance with the No FEAR Act.
Miscellaneous Comments
A significant number of comments noted that the interim final rule
on reimbursement of the Judgment Fund did not address the topics of
notification, training, reporting, and disciplinary best practices that
are covered by the No FEAR Act. As noted in the Supplementary
Information in the interim final rule, OPM will issue regulations on
each of these topics separately.
A number of comments addressed subject matter covered by Title III
of the No FEAR Act. Congress assigned the responsibility for issuing
regulations under that Title to the Equal Employment Opportunity
Commission. Since OPM lacks authority under Title III, it is unable to
respond to those comments.
Immediate Implementation of Final Rule
Immediate implementation of this final rule is based upon the
exceptions found at 5 U.S.C. 553(b)(A), (b)(3)(B) and (d). The agency
obligations under the No FEAR Act to reimburse the Judgment Fund began
on October 1,
[[Page 27187]]
2003. Interim final rules covering these obligations were published on
January 22, 2004, and were effective on October 1, 2003. It was
essential, at the time of initial publication, that all agencies be
placed in a position to understand their responsibilities regarding
this requirement. The revisions to these rules make some adjustments to
our description of agency obligations that we believe should be
retroactive to October 1, 2003. OPM has determined under 5 U.S.C.
553(b)(3)(A) that the reimbursement provision only affects 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 final rule to become effective upon publication
retroactive to October 1, 2003.
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.
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 or
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.
0
Accordingly, OPM is adopting the interim rule that added part 724 to
title 5, Code of Federal Regulations, which was published at 69 FR 2997
on January 22, 2004, as final with the following changes. Part 724 is
revised to read 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.
Subpart B--Notification of Rights and Protections and Training
[Reserved]
Subpart C--Annual Report [Reserved]
Subpart D--Best Practices [Reserved]
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.''
Subpart A--Reimbursement of Judgement Fund
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, subject to the following exception, 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 or retaliatory conduct described in 5
U.S.C. 2302(b)(1) and (b)(8) or (b)(9) as applied to conduct described
in 5 U.S.C. 2302(b)(1) and/or (b)(8) or conduct described in 29 U.S.C.
206(d), 29 U.S.C. 631, 29 U.S.C. 633a, 29 U.S.C. 791 and 42 U.S.C.
2000e-16. For a proceeding involving more than one disbursement from
the Judgment Fund, however, this term shall apply only if the first
disbursement occurred on or after October 1, 2003.
Sec. 724.103 Agency obligations.
A Federal agency (or its successor 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 written notice to the agency's Chief Financial Officer
within 15 business days after payment from the Judgment Fund.
(b) Within 45 business days of receiving the FMS notice, agencies
must
[[Page 27188]]
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, to contact FMS
within 45 business days after receipt of an FMS notice for
reimbursement under Sec. 724.104 will be recorded on an annual basis
and posted on the FMS Web site. After an agency meets the requirements
of Sec. 724.104, the recording will be eliminated no later than the
next annual posting process.
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. 06-4319 Filed 5-9-06; 8:45 am]
BILLING CODE 6325-39-P
