Implementation of Title II of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002-Notification & Training, 41095-41099 [E6-11541]

Download as PDF 41095 Rules and Regulations Federal Register Vol. 71, No. 139 Thursday, July 20, 2006 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–AK38 Implementation of Title II of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002—Notification & Training Office of Personnel Management. ACTION: Final rule. AGENCY: SUMMARY: The Office of Personnel Management (OPM) is issuing final regulations to carry out the notification and training requirements of the Notification and Federal Employees Antidiscrimination and Retaliation Act of 2002 (No FEAR Act). This rule will implement the notice and training provisions of the No FEAR Act. DATES: Effective September 18, 2006. 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: wwhite on PROD1PC76 with RULES 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, Congress noted that it is essential that the rights of employees, former employees and applicants for Federal employment under Federal antidiscrimination and whistleblower protection laws be steadfastly protected. Congress also stated that agencies cannot be run effectively if those agencies practice or tolerate discrimination. Congress has found that notification of present and former Federal employees and applicants for VerDate Aug<31>2005 16:42 Jul 19, 2006 Jkt 208001 Federal employment of their rights under antidiscrimination and whistleblower protection laws, combined with training of current employees, should increase Federal agency compliance with the laws. 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 regulations to implement the notification and training provisions of Title II of the No FEAR Act, Public Law 107–174. These regulations carry out that authority. Several commenters suggested that the definition of whistleblower protection laws be expanded to cover whistleblower protections under other laws, e.g., Clean Air Act, Safe Drinking Water Act, and others. The No FEAR Act does not directly refer to whistleblower protections other than those established by the Whistleblower Protection Act of 1989, as amended. Again, the regulations address those matters directly identified in the No FEAR Act. Thus, the suggestion is not adopted. Introduction 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 proposed regulations prescribed the ‘‘time, form, and manner’’ of the notices to employees, former employees, and applicants as required by section 202 of the No FEAR Act. The proposal included model paragraphs for agencies to use and proposed the time frames for the notification process. Several commenters asked that OPM clarify what is meant by ‘‘former employee’’ in terms of agencies’ obligation to notify former employees about their rights under Federal antidiscrimination and whistleblower protection laws. In this regard, the commenters wanted to know how long after an employee left an agency would it be until the agency’s obligation to notify him or her expires. OPM notes that the No FEAR Act makes no distinction about former employees and when they are to be notified, that is, there is no time limitation on former employees’ rights to be notified under the Act. OPM also notes, however, that the proposed rule did not require agencies to contact former employees and applicants individually but could provide notice though other means, e.g., posting a notice on agencies’ Web sites. The final rule has been revised to make this clearer by requiring that the initial notice be published in the Federal Register and the same notice be posted on each agency’s Web site. Several commenters requested a clearer explanation of agency notice obligations and how they are to meet them. Some commenters requested that the regulations clarify agency responsibilities to post notices through the Federal Register process. One commenter suggested that OPM post a government-wide notice through this process on behalf of all agencies. OPM notes that the Federal Register process On February 28, 2005, OPM published at 70 FR 9544 (2005) a proposed rule implementing the notification and training provisions of the No FEAR Act and providing a 60day comment period. On May 26, 2005, OPM at 70 FR 30380 (2005) extended the comment period to June 28, 2005. OPM received 18 comments from Federal agencies or departments, 6 comments from union representatives, and 15 comments from others, including the No FEAR Coalition. OPM commends and thanks all who have provided comments on this important topic, and OPM has carefully considered each comment. Comments on Definitions The proposed regulations defined the following terms that are used in the regulations: ‘‘antidiscrimination laws,’’ ‘‘whistleblower protection laws,’’ ‘‘notice,’’ and ‘‘training.’’ Several commenters suggested that the definition of antidiscrimination laws be expanded to cover matters under 5 U.S.C. 2302(b)(10) in order to include discrimination on the basis of sexual orientation as a form of prohibited discrimination under the No FEAR Act. Some stated that Executive Order 13087 (amending Executive Order 11478, ‘‘Equal Employment Opportunity in the Federal Government’’) prohibits discrimination on the basis of sexual orientation. OPM notes that the No FEAR Act does not directly refer to 5 U.S.C. 2302(b)(10) as a law covered by the Act or refer to Executive Order 13087 (or 11478) as being covered by the Act. The regulations address those matters directly identified in the No FEAR Act. Therefore, the suggestion is not adopted. PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 Comments on Notification Obligations E:\FR\FM\20JYR1.SGM 20JYR1 wwhite on PROD1PC76 with RULES 41096 Federal Register / Vol. 71, No. 139 / Thursday, July 20, 2006 / Rules and Regulations was identified as an approved means to meet notification obligations under the Act in those cases where the agency does not have a Web site and the regulations have been clarified in this regard. Because the notice obligation rests with individual agencies, however, OPM declines to adopt the suggestion that OPM post a government-wide notice. At a minimum, agencies are required to include in their notices the text required by these regulations but may also add additional text in light of their individual agency circumstances. The final regulation also draws distinctions between the notice for employees and notice for former employees and applicants. Finally, one commenter asked whether a single posting on an agency’s Internet Web site would meet the initial notification requirements of section 724.202(e) of the proposed rule. OPM’s response is that it would not. The final rules require that all agencies’ initial notices be published in the Federal Register. In addition, all agencies with Web sites are required to place the same notices on their sites where they are to remain until replaced or revised. Several commenters suggested that agencies be afforded discretion and flexibility to modify the proposed model notice language to fit their needs rather than be required to use the model language verbatim. Because the notice obligation applies governmentwide, OPM believes that the required information established by these regulations should be consistent governmentwide. This would eliminate any confusion that might be created if content varied from agency to agency. Therefore, OPM does not adopt the suggestion and agencies are required to use the model language contained in the regulations. While the required information would be consistent governmentwide, OPM notes that agencies have the authority under the regulations to provide additional information within the notice. One commenter noted that the proposed section 724.202(f) would require agencies to provide a notice in alternative, accessible formats if requested by employees, former employees and applicants. The commenter was concerned that this might be read to impose requirements beyond those covered in section 508 of the Rehabilitation Act of 1973, as amended. OPM notes that section 508 is limited to electronic materials and the regulations address other materials such as (non-electronic) written notices. Therefore, OPM has not deleted the section but has modified it to state that VerDate Aug<31>2005 16:42 Jul 19, 2006 Jkt 208001 agencies are obligated to provide requested notices in alternative, accessible formats to the extent required by law. Several commenters suggested that the model language describing the bases for prohibited discrimination be expanded to include sexual orientation. As noted previously in discussing the definition of antidiscrimination laws, OPM has decided not to expand the regulations beyond the express terms of the No FEAR Act; thus the suggestion is not adopted. Similar suggestions that the model language include references to types of whistleblowing other than that protected by the Whistleblower Protection Act of 1989, as amended, are not adopted because OPM has decided not to expand the regulations as previously discussed. One commenter suggested as unnecessary the last sentence in the ‘‘Disciplinary Actions’’ portion of the model language that states agencies may not take unfounded disciplinary actions. OPM believes it is important to state clearly that the No FEAR Act does not change existing laws with respect to taking disciplinary actions. As the No FEAR Act states in section 102, increased accountability under the Act is not furthered ‘‘by taking unfounded disciplinary actions against managers or by violating the procedural rights of managers.’’ Thus, OPM does not adopt the suggestion. OPM also made a technical change to the ‘‘Disciplinary Actions’’ portion of the model language to clarify the circumstances in which disciplinary action may be appropriate. Accordingly, the final rule states that employees may be disciplined for conduct inconsistent with Federal antidiscrimination and whistleblower protection laws. Several commenters requested clarification of the relationship of the No FEAR Act notification process to the Office of Special Counsel (OSC) certification program which calls for agencies to inform employees about their whistleblower protection rights. During the development of the proposed regulations, OPM consulted OSC on this issue and we agreed there is overlap between the two notification programs, with the No FEAR Act notification obligation being broader. As a result, a properly completed notice under the No FEAR Act might also meet that agency’s obligations under OSC’s certification program. Agencies are cautioned, however, to verify with OSC that their specific No FEAR notification process in fact does meet the requirements of the OSC’s program. An agency’s OSCapproved notice that includes the minimum model language in these PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 regulations would satisfy the notification requirements of the No Fear Act. One commenter suggested that the proposed model language stating that ‘‘you may pursue a discrimination complaint by filing a grievance through your agency’s administrative or negotiated grievance procedures, if such procedures apply and are available’’ is in error. The commenter asserted that allegations of discrimination cannot be addressed by an agency’s administrative grievance procedure. While OPM’s former rules on administrative grievance procedures prohibited such coverage, OPM eliminated that restriction ten years ago (see 60 FR 47040, September 11, 1995), and some agencies do provide for such coverage in their administrative grievance procedure. Comments on Training Obligations The proposed regulations prescribed the requirements for Federal agencies to provide training under section 202 of the No FEAR Act to all their employees regarding their rights and remedies under Federal antidiscrimination and whistleblower protection laws. The proposed regulations called for agencies to develop written plans for meeting their training obligations under the Act and prescribed time limits for providing the training. A commenter noted that some of the time frames in the regulations were expressed in ‘‘business days’’ while others used ‘‘calendar days’’ and suggested that the final rule use consistent terminology. OPM agrees that consistency within the regulations promotes better understanding and therefore adopts the suggestion. As a result, the time frames in the final regulations have been modified to use the term calendar days in all cases and the number of calendar days adjusted to reflect a comparable amount of actual time as proposed, e.g., 90 calendar days instead of 60 business days. One commenter suggested that the word ‘‘content’’ be replaced in section 724.203(b) of the proposed regulations concerning training plans because the ‘‘content’’ of training is already set by the No FEAR Act itself, i.e., training on the rights and remedies available under the Antidiscrimination Laws and Whistleblower Protection Laws. OPM agrees and adopts the suggestion, changing ‘‘content’’ to ‘‘training materials’’ as a necessary element to be described in each agency’s training plan. In another reference to the content of agency training, a second commenter noted that section 102(5)(B) of the No FEAR Act provides that ‘‘Federal E:\FR\FM\20JYR1.SGM 20JYR1 wwhite on PROD1PC76 with RULES Federal Register / Vol. 71, No. 139 / Thursday, July 20, 2006 / Rules and Regulations agencies should ensure that managers have adequate training in the management of a diverse workforce and in dispute resolution and other essential communication skills.’’ This provision is part of a number of items in the Act reflecting the ‘‘Sense of Congress’’; however, this language is not repeated in the Act’s section 202(c) which independently prescribes the content of agency training. Training on dispute resolution and communications skills, for example, may be beneficial, and agencies are free to include such topics in their training programs. Such topics are not, however, required under the Act and OPM declines to require such training as part of agencies’ obligation to train employees on the rights and remedies available under the Antidiscrimination Laws and Whistleblower Protection Laws. In addition to the above specific issues, a number of commenters suggested that OPM review and/or approve agency training programs, provide an oversight/enforcement mechanism on training, and receive periodic reports from agencies. Some commenters suggested that the No FEAR Coalition be a part of an OPM review process of agency training plans. OPM notes that under section 724.302(a)(9) of the proposed rule, each agency will be required to report on their written plan developed under 724.203(a) of this final rule. Copies of the agency’s report will be provided to Members of Congress, the Chair of the EEOC, the Attorney General and the Director of OPM. This reporting mechanism will provide an appropriate level of oversight; therefore the suggestions are not adopted. Several commenters suggested that the Equal Employment Opportunity Commission and the Office of Special Counsel develop training programs that agencies could use to meet their training obligations. OPM notes that the No FEAR Act did not task these agencies with that responsibility, and OPM will not do so. Agencies, however, may seek assistance and information from these agencies. One commenter recommended that the final rule clarify that, while agencies are required to train their employees, this requirement does not extend to contract employees. OPM believes that the language is clear on its face that only current Federal employees are to be trained; thus OPM does not adopt the recommendation. One commenter suggested that OPM require agencies to conduct face-to-face training as opposed to other types of training, e.g., computer-based training. OPM has determined that it is best left to agencies to decide the most VerDate Aug<31>2005 16:42 Jul 19, 2006 Jkt 208001 appropriate method(s) of training for their employees. OPM therefore declines to adopt this suggestion. One commenter noted that the proposed regulations appeared to require agencies to incorporate No FEAR Act training into their new employee orientation programs if they have such programs. While agencies may do so (and OPM believes this may be an efficient vehicle for agencies to meet their training obligations), OPM did not intend to prevent agencies from conducting other training for new employees outside of the orientation process. OPM’s intent instead is to ensure that if training is not done during a new employee orientation, it is completed within 90 calendar days after an employee enters on duty. Therefore, OPM has modified the regulation to clarify that agencies may train new employees on the rights and remedies under Federal antidiscrimination and whistleblower protection laws using new employee orientation programs or other training programs as long as the applicable training program is completed within 90 calendar days after an employee enters on duty. Many commenters expressed concern about the proposed requirement that agencies complete initial training of their employees under the No FEAR Act by September 30, 2005. Their concerns include the logistics of training large numbers of employees in a short time, the burden on small agencies with limited resources, and the Federal budget request cycle. A number of commenters suggested that September 30, 2006, would be a more feasible date for completing initial training. One commenter suggested moving the initial training date to 2007. Other commenters, including the No FEAR Coalition, however, expressed their deep concern about the amount of time already expended in developing the regulations governing training. In balancing these concerns, OPM notes the importance Congress has attached to the training obligation, and concludes that it is imperative that agencies be allowed sufficient time to develop and deliver to employees the quality training that they deserve and to which they are entitled under the Act. Therefore, OPM has decided to require that initial training be completed within 90 days of the effective date of these regulations. Several commenters expressed concern about the proposed rule’s requirement for a two-year training cycle after the initial training is completed. Some recommended no additional training and another recommended a five-year cycle. OPM has taken into account comments on the PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 41097 initial training, e.g., the logistics of training large numbers of employees, the burdens on small agencies, and the Federal budget request cycle. OPM believes, however, that on-going training is essential to maintaining a workforce that is knowledgeable about its rights and remedies under these laws. Accordingly, OPM is retaining the two-year training cycle as proposed. Miscellaneous Comments One commenter suggested that OPM issue regulations concerning the discipline of employees for violations of Federal antidiscrimination and whistleblower protection laws. OPM notes that section 204 of Title II of the No FEAR Act requires the President or his designee (OPM) to conduct a study of agency best practices in taking such disciplinary actions and then to develop advisory guidelines for agencies to follow in taking action. Because the No FEAR Act (through delegation by the President) already assigns this similar responsibility to OPM, the suggestion is not adopted. 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 E:\FR\FM\20JYR1.SGM 20JYR1 41098 Federal Register / Vol. 71, No. 139 / Thursday, July 20, 2006 / Rules and Regulations 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. Accordingly, OPM amends part 724 of title 5, Code of Federal Regulations, as follows: I PART 724—IMPLEMENTATION OF TITLE II OF THE NOTIFICATION AND FEDERAL EMPLOYEE ANTIDISCRIMINATION AND RETALIATION ACT OF 2002 1. The authority citation for part 724 continues to read as follows: I Authority: Sec. 204 of Public Law 107–174; 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 Judgment Fund 2. In § 724.102 of subpart A, add new definitions for Antidiscrimination Laws, Notice, Training, and Whistleblower Protection Laws in alphabetical order to read as follows: I Definitions. wwhite on PROD1PC76 with RULES * * * * * Antidiscrimination Laws refers to 5 U.S.C. 2302(b)(1), 5 U.S.C. 2302(b)(9) as applied to conduct described in 5 U.S.C. 2302(b)(1), 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. * * * * * Notice means the written information provided by Federal agencies about the rights and protections available under Federal Antidiscrimination Laws and Whistleblower Protection Laws. * * * * * Training means the process by which Federal agencies instruct their employees regarding the rights and VerDate Aug<31>2005 16:42 Jul 19, 2006 Jkt 208001 Subpart B—Notification of Rights and Protections and Training Sec. 724.201 724.202 724.203 § 724.201 U.S. Office of Personnel Management. Linda M. Springer, Director. § 724.102 remedies applicable to such employees under the Federal Antidiscrimination Laws and Whistleblower Protection Laws. Whistleblower Protection Laws refers to 5 U.S.C. 2302(b)(8) or 5 U.S.C. 2302(b)(9) as applied to conduct described in 5 U.S.C. 2302(b)(8). I 3. A new subpart B to Part 724 is added to read as follows: Purpose and scope. Notice obligations. Training obligations. Purpose and scope. (a) This subpart implements Title II of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 concerning the obligation of Federal agencies to notify all employees, former employees, and applicants for Federal employment of the rights and protections available to them under the Federal Antidiscrimination Laws and Whistleblower Protection Laws. This subpart also implements Title II concerning the obligation of agencies to train their employees on such rights and remedies. The regulations describe agency obligations and the procedures for written notification and training. (b) Pursuant to section 205 of the No FEAR Act, neither that Act nor this notice creates, expands or reduces any rights otherwise available to any employee, former employee or applicant under the laws of the United States, including the provisions of law specified in 5 U.S.C. 2302(d). § 724.202 Notice obligations. (a) Each agency must provide notice to all of its employees, former employees, and applicants for Federal employment about the rights and remedies available under the Antidiscrimination Laws and Whistleblower Protection Laws applicable to them. (b) The notice under this part must be titled, ‘‘No FEAR Act Notice.’’ (c) Each agency must provide initial notice within 60 calendar days after September 18, 2006. Thereafter, the notice must be provided by the end of each successive fiscal year and any posted materials must remain in place until replaced or revised. (d) After the initial notice, each agency must provide the notice to new employees within 90 calendar days of entering on duty. (e) Each agency must provide the notice to its employees in paper (e.g., letter, poster or brochure) and/or PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 electronic form (e.g., e-mail, internal agency electronic site, or Internet Web site). Each agency must publish the initial notice in the Federal Register. Agencies with Internet Web sites must also post the notice on those Web sites, in compliance with section 508 of the Rehabilitation Act of 1973, as amended. For agencies with components that operate Internet Web sites, the notice must be made available by hyperlinks from the Internet Web sites of both the component and the parent agency. An agency may meet its paper and electronic notice obligation to former employees and applicants by publishing the initial notice in the Federal Register and posting the notice on its Internet Web site if it has one. (f) To the extent required by law and upon request by employees, former employees and applicants, each agency must provide the notice in alternative, accessible formats. (g) Unless an agency is exempt from the cited statutory provisions, the following is the minimum text to be included in the notice. Each agency may incorporate additional information within the model paragraphs, as appropriate. Model Paragraphs No Fear Act Notice On May 15, 2002, Congress enacted the ‘‘Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002,’’ which is now known as the No FEAR Act. One purpose of the Act is to ‘‘require that Federal agencies be accountable for violations of antidiscrimination and whistleblower protection laws.’’ Public Law 107–174, Summary. In support of this purpose, Congress found that ‘‘agencies cannot be run effectively if those agencies practice or tolerate discrimination.’’ Public Law 107–174, Title I, General Provisions, section 101(1). The Act also requires this agency to provide this notice to Federal employees, former Federal employees and applicants for Federal employment to inform you of the rights and protections available to you under Federal antidiscrimination and whistleblower protection laws. Antidiscrimination Laws A Federal agency cannot discriminate against an employee or applicant with respect to the terms, conditions or privileges of employment on the basis of race, color, religion, sex, national origin, age, disability, marital status or political affiliation. Discrimination on these bases is prohibited by one or more of the following statutes: 5 U.S.C. 2302(b)(1), 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. If you believe that you have been the victim of unlawful discrimination on the basis of race, color, religion, sex, national origin or disability, you must contact an E:\FR\FM\20JYR1.SGM 20JYR1 Federal Register / Vol. 71, No. 139 / Thursday, July 20, 2006 / Rules and Regulations Equal Employment Opportunity (EEO) counselor within 45 calendar days of the alleged discriminatory action, or, in the case of a personnel action, within 45 calendar days of the effective date of the action, before you can file a formal complaint of discrimination with your agency. See, e.g. 29 CFR 1614. If you believe that you have been the victim of unlawful discrimination on the basis of age, you must either contact an EEO counselor as noted above or give notice of intent to sue to the Equal Employment Opportunity Commission (EEOC) within 180 calendar days of the alleged discriminatory action. If you are alleging discrimination based on marital status or political affiliation, you may file a written complaint with the U.S. Office of Special Counsel (OSC) (see contact information below). In the alternative (or in some cases, in addition), you may pursue a discrimination complaint by filing a grievance through your agency’s administrative or negotiated grievance procedures, if such procedures apply and are available. wwhite on PROD1PC76 with RULES Whistleblower Protection Laws A Federal employee with authority to take, direct others to take, recommend or approve any personnel action must not use that authority to take or fail to take, or threaten to take or fail to take, a personnel action against an employee or applicant because of disclosure of information by that individual that is reasonably believed to evidence violations of law, rule or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety, unless disclosure of such information is specifically prohibited by law and such information is specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs. Retaliation against an employee or applicant for making a protected disclosure is prohibited by 5 U.S.C. 2302(b)(8). If you believe that you have been the victim of whistleblower retaliation, you may file a written complaint (Form OSC–11) with the U.S. Office of Special Counsel at 1730 M Street NW., Suite 218, Washington, DC 20036–4505 or online through the OSC Web site—https://www.osc.gov. Retaliation for Engaging in Protected Activity A Federal agency cannot retaliate against an employee or applicant because that individual exercises his or her rights under any of the Federal antidiscrimination or whistleblower protection laws listed above. If you believe that you are the victim of retaliation for engaging in protected activity, you must follow, as appropriate, the procedures described in the Antidiscrimination Laws and Whistleblower Protection Laws sections or, if applicable, the administrative or negotiated grievance procedures in order to pursue any legal remedy. Disciplinary Actions Under the existing laws, each agency retains the right, where appropriate, to discipline a Federal employee for conduct VerDate Aug<31>2005 16:42 Jul 19, 2006 Jkt 208001 that is inconsistent with Federal Antidiscrimination and Whistleblower Protection Laws up to and including removal. If OSC has initiated an investigation under 5 U.S.C. 1214, however, according to 5 U.S.C. 1214(f), agencies must seek approval from the Special Counsel to discipline employees for, among other activities, engaging in prohibited retaliation. Nothing in the No FEAR Act alters existing laws or permits an agency to take unfounded disciplinary action against a Federal employee or to violate the procedural rights of a Federal employee who has been accused of discrimination Additional Information For further information regarding the No FEAR Act regulations, refer to 5 CFR part 724, as well as the appropriate offices within your agency (e.g., EEO/civil rights office, human resources office or legal office). Additional information regarding Federal antidiscrimination, whistleblower protection and retaliation laws can be found at the EEOC Web site—https://www.eeoc.gov and the OSC Web site—https://www.osc.gov. Existing Rights Unchanged Pursuant to section 205 of the No FEAR Act, neither the Act nor this notice creates, expands or reduces any rights otherwise available to any employee, former employee or applicant under the laws of the United States, including the provisions of law specified in 5 U.S.C. 2302(d). § 724.203 Training obligations. (a) Each agency must develop a written plan to train all of its employees (including supervisors and managers) about the rights and remedies available under the Antidiscrimination Laws and Whistleblower Protection Laws applicable to them. (b) Each agency shall have the discretion to develop the instructional materials and method of its training plan. Each agency training plan shall describe: (1) The instructional materials and method of the training, (2) The training schedule, and (3) The means of documenting completion of training. (c) Each agency may contact EEOC and/or OSC for information and/or assistance regarding the agency’s training program. Neither agency, however, shall have authority under this regulation to review or approve an agency’s training plan. (d) Each agency is encouraged to implement its training as soon as possible, but required to complete the initial training under this subpart for all employees (including supervisors and managers) by December 17, 2006. Thereafter, each agency must train all employees on a training cycle of no longer than every 2 years. (e) After the initial training is completed, each agency must train new PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 41099 employees as part of its agency orientation program or other training program. Any agency that does not use a new employee orientation program for this purpose must train new employees within 90 calendar days of the new employees’ appointment. [FR Doc. E6–11541 Filed 7–19–06; 8:45 am] BILLING CODE 6325–39–P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 23 [Docket No. CE194, Special Condition 23– 134A–SC] Special Conditions; Cirrus Design Corporation SR22; Protection of Systems for High Intensity Radiated Fields (HIRF) Federal Aviation Administration (FAA), DOT. ACTION: Amended final special conditions; request for comments. AGENCY: SUMMARY: These amended special conditions are issued to Cirrus Design Corporation, 4515 Taylor Circle, Duluth, Minnesota 55811, for a Type Design Change. This special condition amends special condition 23–134–SC, which was published February 4, 2003 (68FR 5538), for installation of an Electronic Flight Instrument System (EFIS) manufactured by Avidyne Corporation on the SR22. This amendment covers additional electronic equipment, such as a digital autopilot and/or engine related systems designed to perform critical functions on the SR22 and other models listed on the same Type Data Sheet, A00009CH. The airplanes will have novel and unusual design features when compared to the state of technology envisaged in the applicable airworthiness standards. The applicable regulations do not contain adequate or appropriate airworthiness standards for the protection of these systems from the effects of high intensity radiated fields (HIRF). These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to the airworthiness standards applicable to these airplanes. DATES: The effective date of these special conditions is July 11, 2006. Comments must be received on or before August 21, 2006. Comments on these special conditions may be mailed in duplicate ADDRESSES: E:\FR\FM\20JYR1.SGM 20JYR1

Agencies

[Federal Register Volume 71, Number 139 (Thursday, July 20, 2006)]
[Rules and Regulations]
[Pages 41095-41099]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-11541]



========================================================================
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.

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Federal Register / Vol. 71, No. 139 / Thursday, July 20, 2006 / Rules 
and Regulations

[[Page 41095]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 724

RIN 3206-AK38


Implementation of Title II of the Notification and Federal 
Employee Antidiscrimination and Retaliation Act of 2002--Notification & 
Training

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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

SUMMARY: The Office of Personnel Management (OPM) is issuing final 
regulations to carry out the notification and training requirements of 
the Notification and Federal Employees Antidiscrimination and 
Retaliation Act of 2002 (No FEAR Act). This rule will implement the 
notice and training provisions of the No FEAR Act.

DATES: Effective September 18, 2006.

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, Congress noted that it is 
essential that the rights of employees, former employees and applicants 
for Federal employment under Federal antidiscrimination and 
whistleblower protection laws be steadfastly protected. Congress also 
stated that agencies cannot be run effectively if those agencies 
practice or tolerate discrimination. Congress has found that 
notification of present and former Federal employees and applicants for 
Federal employment of their rights under antidiscrimination and 
whistleblower protection laws, combined with training of current 
employees, should increase Federal agency compliance with the laws. 
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 regulations to implement the notification and 
training provisions of Title II of the No FEAR Act, Public Law 107-174. 
These regulations carry out that authority.

Introduction

    On February 28, 2005, OPM published at 70 FR 9544 (2005) a proposed 
rule implementing the notification and training provisions of the No 
FEAR Act and providing a 60-day comment period. On May 26, 2005, OPM at 
70 FR 30380 (2005) extended the comment period to June 28, 2005. OPM 
received 18 comments from Federal agencies or departments, 6 comments 
from union representatives, and 15 comments from others, including the 
No FEAR Coalition. OPM commends and thanks all who have provided 
comments on this important topic, and OPM has carefully considered each 
comment.

Comments on Definitions

    The proposed regulations defined the following terms that are used 
in the regulations: ``antidiscrimination laws,'' ``whistleblower 
protection laws,'' ``notice,'' and ``training.''
    Several commenters suggested that the definition of 
antidiscrimination laws be expanded to cover matters under 5 U.S.C. 
2302(b)(10) in order to include discrimination on the basis of sexual 
orientation as a form of prohibited discrimination under the No FEAR 
Act. Some stated that Executive Order 13087 (amending Executive Order 
11478, ``Equal Employment Opportunity in the Federal Government'') 
prohibits discrimination on the basis of sexual orientation. OPM notes 
that the No FEAR Act does not directly refer to 5 U.S.C. 2302(b)(10) as 
a law covered by the Act or refer to Executive Order 13087 (or 11478) 
as being covered by the Act. The regulations address those matters 
directly identified in the No FEAR Act. Therefore, the suggestion is 
not adopted.
    Several commenters suggested that the definition of whistleblower 
protection laws be expanded to cover whistleblower protections under 
other laws, e.g., Clean Air Act, Safe Drinking Water Act, and others. 
The No FEAR Act does not directly refer to whistleblower protections 
other than those established by the Whistleblower Protection Act of 
1989, as amended. Again, the regulations address those matters directly 
identified in the No FEAR Act. Thus, the suggestion is not adopted.

Comments on Notification Obligations

    The proposed regulations prescribed the ``time, form, and manner'' 
of the notices to employees, former employees, and applicants as 
required by section 202 of the No FEAR Act. The proposal included model 
paragraphs for agencies to use and proposed the time frames for the 
notification process.
    Several commenters asked that OPM clarify what is meant by ``former 
employee'' in terms of agencies' obligation to notify former employees 
about their rights under Federal antidiscrimination and whistleblower 
protection laws. In this regard, the commenters wanted to know how long 
after an employee left an agency would it be until the agency's 
obligation to notify him or her expires. OPM notes that the No FEAR Act 
makes no distinction about former employees and when they are to be 
notified, that is, there is no time limitation on former employees' 
rights to be notified under the Act. OPM also notes, however, that the 
proposed rule did not require agencies to contact former employees and 
applicants individually but could provide notice though other means, 
e.g., posting a notice on agencies' Web sites. The final rule has been 
revised to make this clearer by requiring that the initial notice be 
published in the Federal Register and the same notice be posted on each 
agency's Web site.
    Several commenters requested a clearer explanation of agency notice 
obligations and how they are to meet them. Some commenters requested 
that the regulations clarify agency responsibilities to post notices 
through the Federal Register process. One commenter suggested that OPM 
post a government-wide notice through this process on behalf of all 
agencies. OPM notes that the Federal Register process

[[Page 41096]]

was identified as an approved means to meet notification obligations 
under the Act in those cases where the agency does not have a Web site 
and the regulations have been clarified in this regard. Because the 
notice obligation rests with individual agencies, however, OPM declines 
to adopt the suggestion that OPM post a government-wide notice. At a 
minimum, agencies are required to include in their notices the text 
required by these regulations but may also add additional text in light 
of their individual agency circumstances. The final regulation also 
draws distinctions between the notice for employees and notice for 
former employees and applicants. Finally, one commenter asked whether a 
single posting on an agency's Internet Web site would meet the initial 
notification requirements of section 724.202(e) of the proposed rule. 
OPM's response is that it would not. The final rules require that all 
agencies' initial notices be published in the Federal Register. In 
addition, all agencies with Web sites are required to place the same 
notices on their sites where they are to remain until replaced or 
revised.
    Several commenters suggested that agencies be afforded discretion 
and flexibility to modify the proposed model notice language to fit 
their needs rather than be required to use the model language verbatim. 
Because the notice obligation applies governmentwide, OPM believes that 
the required information established by these regulations should be 
consistent governmentwide. This would eliminate any confusion that 
might be created if content varied from agency to agency. Therefore, 
OPM does not adopt the suggestion and agencies are required to use the 
model language contained in the regulations. While the required 
information would be consistent governmentwide, OPM notes that agencies 
have the authority under the regulations to provide additional 
information within the notice. One commenter noted that the proposed 
section 724.202(f) would require agencies to provide a notice in 
alternative, accessible formats if requested by employees, former 
employees and applicants. The commenter was concerned that this might 
be read to impose requirements beyond those covered in section 508 of 
the Rehabilitation Act of 1973, as amended. OPM notes that section 508 
is limited to electronic materials and the regulations address other 
materials such as (non-electronic) written notices. Therefore, OPM has 
not deleted the section but has modified it to state that agencies are 
obligated to provide requested notices in alternative, accessible 
formats to the extent required by law.
    Several commenters suggested that the model language describing the 
bases for prohibited discrimination be expanded to include sexual 
orientation. As noted previously in discussing the definition of 
antidiscrimination laws, OPM has decided not to expand the regulations 
beyond the express terms of the No FEAR Act; thus the suggestion is not 
adopted. Similar suggestions that the model language include references 
to types of whistleblowing other than that protected by the 
Whistleblower Protection Act of 1989, as amended, are not adopted 
because OPM has decided not to expand the regulations as previously 
discussed.
    One commenter suggested as unnecessary the last sentence in the 
``Disciplinary Actions'' portion of the model language that states 
agencies may not take unfounded disciplinary actions. OPM believes it 
is important to state clearly that the No FEAR Act does not change 
existing laws with respect to taking disciplinary actions. As the No 
FEAR Act states in section 102, increased accountability under the Act 
is not furthered ``by taking unfounded disciplinary actions against 
managers or by violating the procedural rights of managers.'' Thus, OPM 
does not adopt the suggestion.
    OPM also made a technical change to the ``Disciplinary Actions'' 
portion of the model language to clarify the circumstances in which 
disciplinary action may be appropriate. Accordingly, the final rule 
states that employees may be disciplined for conduct inconsistent with 
Federal antidiscrimination and whistleblower protection laws.
    Several commenters requested clarification of the relationship of 
the No FEAR Act notification process to the Office of Special Counsel 
(OSC) certification program which calls for agencies to inform 
employees about their whistleblower protection rights. During the 
development of the proposed regulations, OPM consulted OSC on this 
issue and we agreed there is overlap between the two notification 
programs, with the No FEAR Act notification obligation being broader. 
As a result, a properly completed notice under the No FEAR Act might 
also meet that agency's obligations under OSC's certification program. 
Agencies are cautioned, however, to verify with OSC that their specific 
No FEAR notification process in fact does meet the requirements of the 
OSC's program. An agency's OSC-approved notice that includes the 
minimum model language in these regulations would satisfy the 
notification requirements of the No Fear Act.
    One commenter suggested that the proposed model language stating 
that ``you may pursue a discrimination complaint by filing a grievance 
through your agency's administrative or negotiated grievance 
procedures, if such procedures apply and are available'' is in error. 
The commenter asserted that allegations of discrimination cannot be 
addressed by an agency's administrative grievance procedure. While 
OPM's former rules on administrative grievance procedures prohibited 
such coverage, OPM eliminated that restriction ten years ago (see 60 FR 
47040, September 11, 1995), and some agencies do provide for such 
coverage in their administrative grievance procedure.

Comments on Training Obligations

    The proposed regulations prescribed the requirements for Federal 
agencies to provide training under section 202 of the No FEAR Act to 
all their employees regarding their rights and remedies under Federal 
antidiscrimination and whistleblower protection laws. The proposed 
regulations called for agencies to develop written plans for meeting 
their training obligations under the Act and prescribed time limits for 
providing the training.
    A commenter noted that some of the time frames in the regulations 
were expressed in ``business days'' while others used ``calendar days'' 
and suggested that the final rule use consistent terminology. OPM 
agrees that consistency within the regulations promotes better 
understanding and therefore adopts the suggestion. As a result, the 
time frames in the final regulations have been modified to use the term 
calendar days in all cases and the number of calendar days adjusted to 
reflect a comparable amount of actual time as proposed, e.g., 90 
calendar days instead of 60 business days.
    One commenter suggested that the word ``content'' be replaced in 
section 724.203(b) of the proposed regulations concerning training 
plans because the ``content'' of training is already set by the No FEAR 
Act itself, i.e., training on the rights and remedies available under 
the Antidiscrimination Laws and Whistleblower Protection Laws. OPM 
agrees and adopts the suggestion, changing ``content'' to ``training 
materials'' as a necessary element to be described in each agency's 
training plan.
    In another reference to the content of agency training, a second 
commenter noted that section 102(5)(B) of the No FEAR Act provides that 
``Federal

[[Page 41097]]

agencies should ensure that managers have adequate training in the 
management of a diverse workforce and in dispute resolution and other 
essential communication skills.'' This provision is part of a number of 
items in the Act reflecting the ``Sense of Congress''; however, this 
language is not repeated in the Act's section 202(c) which 
independently prescribes the content of agency training. Training on 
dispute resolution and communications skills, for example, may be 
beneficial, and agencies are free to include such topics in their 
training programs. Such topics are not, however, required under the Act 
and OPM declines to require such training as part of agencies' 
obligation to train employees on the rights and remedies available 
under the Antidiscrimination Laws and Whistleblower Protection Laws.
    In addition to the above specific issues, a number of commenters 
suggested that OPM review and/or approve agency training programs, 
provide an oversight/enforcement mechanism on training, and receive 
periodic reports from agencies. Some commenters suggested that the No 
FEAR Coalition be a part of an OPM review process of agency training 
plans. OPM notes that under section 724.302(a)(9) of the proposed rule, 
each agency will be required to report on their written plan developed 
under 724.203(a) of this final rule. Copies of the agency's report will 
be provided to Members of Congress, the Chair of the EEOC, the Attorney 
General and the Director of OPM. This reporting mechanism will provide 
an appropriate level of oversight; therefore the suggestions are not 
adopted.
    Several commenters suggested that the Equal Employment Opportunity 
Commission and the Office of Special Counsel develop training programs 
that agencies could use to meet their training obligations. OPM notes 
that the No FEAR Act did not task these agencies with that 
responsibility, and OPM will not do so. Agencies, however, may seek 
assistance and information from these agencies.
    One commenter recommended that the final rule clarify that, while 
agencies are required to train their employees, this requirement does 
not extend to contract employees. OPM believes that the language is 
clear on its face that only current Federal employees are to be 
trained; thus OPM does not adopt the recommendation.
    One commenter suggested that OPM require agencies to conduct face-
to-face training as opposed to other types of training, e.g., computer-
based training. OPM has determined that it is best left to agencies to 
decide the most appropriate method(s) of training for their employees. 
OPM therefore declines to adopt this suggestion.
    One commenter noted that the proposed regulations appeared to 
require agencies to incorporate No FEAR Act training into their new 
employee orientation programs if they have such programs. While 
agencies may do so (and OPM believes this may be an efficient vehicle 
for agencies to meet their training obligations), OPM did not intend to 
prevent agencies from conducting other training for new employees 
outside of the orientation process. OPM's intent instead is to ensure 
that if training is not done during a new employee orientation, it is 
completed within 90 calendar days after an employee enters on duty. 
Therefore, OPM has modified the regulation to clarify that agencies may 
train new employees on the rights and remedies under Federal 
antidiscrimination and whistleblower protection laws using new employee 
orientation programs or other training programs as long as the 
applicable training program is completed within 90 calendar days after 
an employee enters on duty.
    Many commenters expressed concern about the proposed requirement 
that agencies complete initial training of their employees under the No 
FEAR Act by September 30, 2005. Their concerns include the logistics of 
training large numbers of employees in a short time, the burden on 
small agencies with limited resources, and the Federal budget request 
cycle. A number of commenters suggested that September 30, 2006, would 
be a more feasible date for completing initial training. One commenter 
suggested moving the initial training date to 2007. Other commenters, 
including the No FEAR Coalition, however, expressed their deep concern 
about the amount of time already expended in developing the regulations 
governing training. In balancing these concerns, OPM notes the 
importance Congress has attached to the training obligation, and 
concludes that it is imperative that agencies be allowed sufficient 
time to develop and deliver to employees the quality training that they 
deserve and to which they are entitled under the Act. Therefore, OPM 
has decided to require that initial training be completed within 90 
days of the effective date of these regulations.
    Several commenters expressed concern about the proposed rule's 
requirement for a two-year training cycle after the initial training is 
completed. Some recommended no additional training and another 
recommended a five-year cycle. OPM has taken into account comments on 
the initial training, e.g., the logistics of training large numbers of 
employees, the burdens on small agencies, and the Federal budget 
request cycle. OPM believes, however, that on-going training is 
essential to maintaining a workforce that is knowledgeable about its 
rights and remedies under these laws. Accordingly, OPM is retaining the 
two-year training cycle as proposed.

Miscellaneous Comments

    One commenter suggested that OPM issue regulations concerning the 
discipline of employees for violations of Federal antidiscrimination 
and whistleblower protection laws. OPM notes that section 204 of Title 
II of the No FEAR Act requires the President or his designee (OPM) to 
conduct a study of agency best practices in taking such disciplinary 
actions and then to develop advisory guidelines for agencies to follow 
in taking action. Because the No FEAR Act (through delegation by the 
President) already assigns this similar responsibility to OPM, the 
suggestion is not adopted.

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

[[Page 41098]]

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 amends part 724 of 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

0
1. The authority citation for part 724 continues to read as follows:

    Authority: Sec. 204 of Public Law 107-174; 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 Judgment Fund

0
2. In Sec.  724.102 of subpart A, add new definitions for 
Antidiscrimination Laws, Notice, Training, and Whistleblower Protection 
Laws in alphabetical order to read as follows:


Sec.  724.102  Definitions.

* * * * *
    Antidiscrimination Laws refers to 5 U.S.C. 2302(b)(1), 5 U.S.C. 
2302(b)(9) as applied to conduct described in 5 U.S.C. 2302(b)(1), 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.
* * * * *
    Notice means the written information provided by Federal agencies 
about the rights and protections available under Federal 
Antidiscrimination Laws and Whistleblower Protection Laws.
* * * * *
    Training means the process by which Federal agencies instruct their 
employees regarding the rights and remedies applicable to such 
employees under the Federal Antidiscrimination Laws and Whistleblower 
Protection Laws.
    Whistleblower Protection Laws refers to 5 U.S.C. 2302(b)(8) or 5 
U.S.C. 2302(b)(9) as applied to conduct described in 5 U.S.C. 
2302(b)(8).

0
3. A new subpart B to Part 724 is added to read as follows:

Subpart B--Notification of Rights and Protections and Training

Sec.
724.201 Purpose and scope.
724.202 Notice obligations.
724.203 Training obligations.


Sec.  724.201  Purpose and scope.

    (a) This subpart implements Title II of the Notification and 
Federal Employee Antidiscrimination and Retaliation Act of 2002 
concerning the obligation of Federal agencies to notify all employees, 
former employees, and applicants for Federal employment of the rights 
and protections available to them under the Federal Antidiscrimination 
Laws and Whistleblower Protection Laws. This subpart also implements 
Title II concerning the obligation of agencies to train their employees 
on such rights and remedies. The regulations describe agency 
obligations and the procedures for written notification and training.
    (b) Pursuant to section 205 of the No FEAR Act, neither that Act 
nor this notice creates, expands or reduces any rights otherwise 
available to any employee, former employee or applicant under the laws 
of the United States, including the provisions of law specified in 5 
U.S.C. 2302(d).


Sec.  724.202  Notice obligations.

    (a) Each agency must provide notice to all of its employees, former 
employees, and applicants for Federal employment about the rights and 
remedies available under the Antidiscrimination Laws and Whistleblower 
Protection Laws applicable to them.
    (b) The notice under this part must be titled, ``No FEAR Act 
Notice.''
    (c) Each agency must provide initial notice within 60 calendar days 
after September 18, 2006. Thereafter, the notice must be provided by 
the end of each successive fiscal year and any posted materials must 
remain in place until replaced or revised.
    (d) After the initial notice, each agency must provide the notice 
to new employees within 90 calendar days of entering on duty.
    (e) Each agency must provide the notice to its employees in paper 
(e.g., letter, poster or brochure) and/or electronic form (e.g., e-
mail, internal agency electronic site, or Internet Web site). Each 
agency must publish the initial notice in the Federal Register. 
Agencies with Internet Web sites must also post the notice on those Web 
sites, in compliance with section 508 of the Rehabilitation Act of 
1973, as amended. For agencies with components that operate Internet 
Web sites, the notice must be made available by hyperlinks from the 
Internet Web sites of both the component and the parent agency. An 
agency may meet its paper and electronic notice obligation to former 
employees and applicants by publishing the initial notice in the 
Federal Register and posting the notice on its Internet Web site if it 
has one.
    (f) To the extent required by law and upon request by employees, 
former employees and applicants, each agency must provide the notice in 
alternative, accessible formats.
    (g) Unless an agency is exempt from the cited statutory provisions, 
the following is the minimum text to be included in the notice. Each 
agency may incorporate additional information within the model 
paragraphs, as appropriate.

Model Paragraphs

No Fear Act Notice

    On May 15, 2002, Congress enacted the ``Notification and Federal 
Employee Antidiscrimination and Retaliation Act of 2002,'' which is 
now known as the No FEAR Act. One purpose of the Act is to ``require 
that Federal agencies be accountable for violations of 
antidiscrimination and whistleblower protection laws.'' Public Law 
107-174, Summary. In support of this purpose, Congress found that 
``agencies cannot be run effectively if those agencies practice or 
tolerate discrimination.'' Public Law 107-174, Title I, General 
Provisions, section 101(1).
    The Act also requires this agency to provide this notice to 
Federal employees, former Federal employees and applicants for 
Federal employment to inform you of the rights and protections 
available to you under Federal antidiscrimination and whistleblower 
protection laws.

Antidiscrimination Laws

    A Federal agency cannot discriminate against an employee or 
applicant with respect to the terms, conditions or privileges of 
employment on the basis of race, color, religion, sex, national 
origin, age, disability, marital status or political affiliation. 
Discrimination on these bases is prohibited by one or more of the 
following statutes: 5 U.S.C. 2302(b)(1), 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.
    If you believe that you have been the victim of unlawful 
discrimination on the basis of race, color, religion, sex, national 
origin or disability, you must contact an

[[Page 41099]]

Equal Employment Opportunity (EEO) counselor within 45 calendar days 
of the alleged discriminatory action, or, in the case of a personnel 
action, within 45 calendar days of the effective date of the action, 
before you can file a formal complaint of discrimination with your 
agency. See, e.g. 29 CFR 1614. If you believe that you have been the 
victim of unlawful discrimination on the basis of age, you must 
either contact an EEO counselor as noted above or give notice of 
intent to sue to the Equal Employment Opportunity Commission (EEOC) 
within 180 calendar days of the alleged discriminatory action. If 
you are alleging discrimination based on marital status or political 
affiliation, you may file a written complaint with the U.S. Office 
of Special Counsel (OSC) (see contact information below). In the 
alternative (or in some cases, in addition), you may pursue a 
discrimination complaint by filing a grievance through your agency's 
administrative or negotiated grievance procedures, if such 
procedures apply and are available.

Whistleblower Protection Laws

    A Federal employee with authority to take, direct others to 
take, recommend or approve any personnel action must not use that 
authority to take or fail to take, or threaten to take or fail to 
take, a personnel action against an employee or applicant because of 
disclosure of information by that individual that is reasonably 
believed to evidence violations of law, rule or regulation; gross 
mismanagement; gross waste of funds; an abuse of authority; or a 
substantial and specific danger to public health or safety, unless 
disclosure of such information is specifically prohibited by law and 
such information is specifically required by Executive order to be 
kept secret in the interest of national defense or the conduct of 
foreign affairs.
    Retaliation against an employee or applicant for making a 
protected disclosure is prohibited by 5 U.S.C. 2302(b)(8). If you 
believe that you have been the victim of whistleblower retaliation, 
you may file a written complaint (Form OSC-11) with the U.S. Office 
of Special Counsel at 1730 M Street NW., Suite 218, Washington, DC 
20036-4505 or online through the OSC Web site--https://www.osc.gov.

Retaliation for Engaging in Protected Activity

    A Federal agency cannot retaliate against an employee or 
applicant because that individual exercises his or her rights under 
any of the Federal antidiscrimination or whistleblower protection 
laws listed above. If you believe that you are the victim of 
retaliation for engaging in protected activity, you must follow, as 
appropriate, the procedures described in the Antidiscrimination Laws 
and Whistleblower Protection Laws sections or, if applicable, the 
administrative or negotiated grievance procedures in order to pursue 
any legal remedy.

Disciplinary Actions

    Under the existing laws, each agency retains the right, where 
appropriate, to discipline a Federal employee for conduct that is 
inconsistent with Federal Antidiscrimination and Whistleblower 
Protection Laws up to and including removal. If OSC has initiated an 
investigation under 5 U.S.C. 1214, however, according to 5 U.S.C. 
1214(f), agencies must seek approval from the Special Counsel to 
discipline employees for, among other activities, engaging in 
prohibited retaliation. Nothing in the No FEAR Act alters existing 
laws or permits an agency to take unfounded disciplinary action 
against a Federal employee or to violate the procedural rights of a 
Federal employee who has been accused of discrimination

Additional Information

    For further information regarding the No FEAR Act regulations, 
refer to 5 CFR part 724, as well as the appropriate offices within 
your agency (e.g., EEO/civil rights office, human resources office 
or legal office). Additional information regarding Federal 
antidiscrimination, whistleblower protection and retaliation laws 
can be found at the EEOC Web site--https://www.eeoc.gov and the OSC 
Web site--https://www.osc.gov.

Existing Rights Unchanged

    Pursuant to section 205 of the No FEAR Act, neither the Act nor 
this notice creates, expands or reduces any rights otherwise 
available to any employee, former employee or applicant under the 
laws of the United States, including the provisions of law specified 
in 5 U.S.C. 2302(d).


Sec.  724.203  Training obligations.

    (a) Each agency must develop a written plan to train all of its 
employees (including supervisors and managers) about the rights and 
remedies available under the Antidiscrimination Laws and Whistleblower 
Protection Laws applicable to them.
    (b) Each agency shall have the discretion to develop the 
instructional materials and method of its training plan. Each agency 
training plan shall describe:
    (1) The instructional materials and method of the training,
    (2) The training schedule, and
    (3) The means of documenting completion of training.
    (c) Each agency may contact EEOC and/or OSC for information and/or 
assistance regarding the agency's training program. Neither agency, 
however, shall have authority under this regulation to review or 
approve an agency's training plan.
    (d) Each agency is encouraged to implement its training as soon as 
possible, but required to complete the initial training under this 
subpart for all employees (including supervisors and managers) by 
December 17, 2006. Thereafter, each agency must train all employees on 
a training cycle of no longer than every 2 years.
    (e) After the initial training is completed, each agency must train 
new employees as part of its agency orientation program or other 
training program. Any agency that does not use a new employee 
orientation program for this purpose must train new employees within 90 
calendar days of the new employees' appointment.

[FR Doc. E6-11541 Filed 7-19-06; 8:45 am]
BILLING CODE 6325-39-P

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