Implementation of Title II of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002-Reporting & Best Practices, 78033-78038 [E6-22242]

Agencies

• Office of Personnel Management
• Personnel Management Office

[Federal Register Volume 71, Number 249 (Thursday, December 28, 2006)]
[Rules and Regulations]
[Pages 78033-78038]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-22242]



========================================================================
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. 249 / Thursday, December 28, 2006 / 
Rules and Regulations

[[Page 78033]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 724

RIN 3206-AK55


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

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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

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

DATES: Effective Date: The rule is effective February 26, 2007.

FOR FURTHER INFORMATION CONTACT: Gary D. Wahlert by telephone at (202) 
606-2930; by FAX at (202) 606-2613; or by e-mail at NoFEAR@opm.gov.

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 protected and that agencies that violate these rights be held 
accountable. Congress has found that agencies cannot be run effectively 
if those agencies practice or tolerate discrimination. Furthermore, 
Congress has found that requiring Federal agencies to provide annual 
reports on discrimination, whistleblower, and retaliation cases should 
enable Congress to improve its oversight of compliance by agencies with 
laws covering these types of cases. Finally, Congress has required that 
the President or his designee conduct a study of discipline taken 
against Federal employees for conduct that is inconsistent with Federal 
antidiscrimination and whistleblower protection laws. The results of 
this study are then to be used to develop advisory guidelines that 
Federal agencies may follow to take such disciplinary actions. 
Therefore, under authority delegated by the President, OPM is issuing 
final regulations to implement the annual reporting and best practices 
provisions of Title II of the Federal Employee Antidiscrimination and 
Retaliation Act of 2002 (No FEAR Act), Pub. L. 107-174.

Introduction

    On January 25, 2006, OPM published at 71 FR 4053 (2006) a proposed 
rule implementing the reporting and best practices provisions of the No 
FEAR Act and providing a 60-day comment period. On March 31, 2006, in 
response to requests by the No FEAR Coalition and Members of Congress, 
OPM at 71 FR 16246 (2006) reopened the initial comment period until May 
1, 2006. OPM received 13 comments from Federal agencies or departments, 
5 comments from associations/organizations/coalitions (including the No 
FEAR Coalition), 4 comments from unions, 92 comments from individuals, 
and 2 comments from Members of Congress. OPM thanks all who provided 
comments--each comment has been carefully considered.

Reporting Obligations

Definition of Discipline

    The No Fear Act requires agencies to create annual reports on a 
number of items, including disciplinary actions taken for conduct that 
is inconsistent with Federal antidiscrimination and whistleblower 
protections. These reports are to be submitted to Congress, the Equal 
Employment Opportunity Commission (EEOC), the Attorney General, and 
OPM. OPM proposed at Sec.  724.102 to define discipline for reporting 
purposes to include a range of actions from reprimands through adverse 
actions such as removals and reductions in grade. OPM also stated that 
it was considering expanding the range of disciplinary actions reported 
to include unwritten actions such as oral admonishments. OPM asked for 
comments on whether such additional actions should be reported.
    Most commenters raised no objection to the definition of 
disciplinary actions as proposed, i.e., reprimands through adverse 
actions, but many expressed strong disagreement with the notion of 
expanding that definition to include unwritten actions such as oral 
admonishments. Many of those, including the No FEAR Coalition, were 
concerned that an expanded definition would undermine what they assert 
was the intent of Congress that stiff penalties be imposed on those who 
violate Federal antidiscrimination and whistleblower protection laws. 
Many believed that reporting such additional actions would improperly 
inflate the numbers of actions taken to discourage improper activities. 
Others felt that the reporting of non-written actions would be 
inconsistent with the concept of progressive discipline or would 
encourage agencies to take types of actions that might impinge upon the 
recipients' procedural rights. Federal agencies were opposed to 
reporting unwritten actions for primarily two reasons: (1) Oral 
admonishments, unwritten warnings, and similar actions are not true 
disciplinary actions and (2) it would be an administrative burden to 
report such actions because of their undocumented nature. Some thought 
that documentation of unwritten actions by agencies would negatively 
impact their ability to attempt to resolve workplace issues informally.

[[Page 78034]]

    Commenters in favor of reporting unwritten actions such as oral 
admonishments generally felt that it is important for there to be a 
complete record of what agencies have done when they discover conduct 
inconsistent with Federal antidiscrimination and whistleblower 
protection laws. For example, one organization stated that such 
reporting would ``give some indication of how serious the agencies are 
when it comes to combating discrimination.'' One union stated that 
``[t]his information is necessary to fully understand the scope of 
agencies' practices in this area and, particularly, whether agencies 
have failed to adequately discipline employees who may have committed 
serious breaches of the discrimination and whistleblower protection 
laws by imposing only minor, unwritten discipline.'' Another union in 
favor of reporting unwritten actions stated that extensive reporting 
helps ensure that there is ``an accurate and detailed portrait of any 
given agency's compliance with the letter and spirit of the No FEAR 
Act.'' One commenter recommended that the definition of discipline be 
further expanded to include ``reassignment from a supervisory to a non-
supervisory position'' because such actions occur ``frequently'' for 
disciplinary reasons.
    OPM received numerous comments suggesting that an expanded 
definition of discipline would be seen by many as an impediment to, 
rather than in support of, an effective Federal workforce. Moreover, 
expanding the definition could incorrectly suggest that OPM, through 
the No FEAR Act, is authorized to establish disciplinary penalties 
beyond the normal definition of discipline. Therefore, OPM has decided 
not to expand the definition of discipline to include unwritten actions 
such as oral admonishments or any other actions suggested by 
commenters. The role of OPM under the No FEAR Act is not to dictate 
what disciplinary actions are appropriate to be taken by agencies but 
rather OPM's role is to address what is to be reported under the Act.

Agency Training Plans

    Section 724.302(a)(9) proposed a new reporting element that 
required agencies to provide copies of their written training plans 
developed under the earlier (February 28, 2005) proposed rule at Sec.  
724.203(a). Several commenters suggested that this element be dropped 
since it is not required by the No FEAR Act or suggested that the 
requirement be held up since Sec.  724.203(a) was only in proposed form 
at the time the current regulations were proposed. Training is a 
critical component of obligations imposed under the No FEAR Act to 
ensure that the workplace is free of discrimination and reprisal. 
Because it is critical, OPM has decided to retain the proposed 
reporting element on training plans. OPM also declines to drop the 
proposal as premature since Subpart B (Notification and Training) along 
with Sec.  724.203(a) was published as a final regulation on July 20, 
2006.
    One agency noted that proposed Sec.  724.203(a) requires agencies 
to write training plans. Since these plans, in turn, are to be reported 
annually under Sec.  724.302(a)(9), the agency asked whether it is 
required to resubmit the agency's written plan in each annual report 
even when there are no amendments to a previously reported plan. Each 
report should be complete and able to stand on its own independent of 
other reports that might have been filed by an agency. Thus, a written 
training plan should be submitted with each annual report by an agency.

Agency Disciplinary Policies

    One commenter asked whether OPM's ``review of agencies' 
discussions'' under Sec.  724.402(b) refers to future discussions that 
OPM will have with an agency or refers to discussions that an agency 
may have had internally about their disciplinary policies. OPM notes 
that the discussions referenced are synonymous with the ``detailed 
description'' of an agency's policy for taking disciplinary action 
under Sec.  724.302(a)(6). Another commenter wondered whether this 
``detailed description'' means that agencies would be required to 
develop new disciplinary policies under the regulations. While agencies 
may decide to develop new disciplinary policies, the regulations do not 
require such action. One agency stated that, with regard to the 
obligation to provide a detailed discussion of agency policies in Sec.  
724.302(a)(6), significant changes in agencies' reports from year to 
year should not be expected since agency disciplinary polices aren't 
often changed. OPM takes no position on this observation.
    One commenter noted that the regulations refer to disciplinary 
actions taken for ``conduct that is inconsistent with'' Federal 
antidiscrimination and whistleblower protection laws. The commenter 
asked that OPM clarify the phrase ``conduct that is inconsistent 
with.'' In this regard, while agencies have the authority to take 
disciplinary actions against employees for misconduct, this misconduct 
may or may not be associated with a formal finding of a violation of 
Federal antidiscrimination and whistleblower protection laws. For 
example, a case may be settled with no admission of liability but is 
clearly a case where the law would be found to have been violated if 
there were a formal finding. Discipline taken in such a case should not 
go unreported under the No Fear Act. It should be noted, however, that 
entering into a settlement agreement should never be construed as proof 
of wrongdoing by either party because settlements may be reached for a 
variety of reasons. In sum, it is the conduct of the employee that 
dictates whether a disciplinary action is to be reported under the 
regulations, not whether there is a formal finding of a violation.

Case Reporting

    As proposed, Sec.  724.302(a)(1) would require agencies to report 
on cases involving Federal antidiscrimination and whistleblower 
protection laws that are pending or resolved in Federal courts in each 
fiscal year. One commenter asked whether this applies to cases in both 
U.S. District Court and Courts of Appeals. OPM states that it does.
    One agency commented that reporting on pending cases ``does not 
further the purpose of the No FEAR Act'' because the number of pending 
cases is ``not an accurate reflection of violations'' since complaints 
are often filed pro se and plaintiffs often fail to accurately identify 
their cause of actions. The agency noted that many cases are filed 
under multiple statutes and causes of actions and it's difficult to 
understand what cases are about. As a result, the agency recommended 
that agencies only report an aggregate number of cases resolved in 
Federal court and without relating each case to provision(s) of law 
involved as required by the proposed rule. Another commenter suggested 
that the Department of Justice be tasked with obtaining the status and 
coverage of cases. As discussed elsewhere in the Supplementary 
Information, the No FEAR Act calls on agencies to discuss the status or 
disposition of cases in the Federal courts. The provision would be 
meaningless if the status of all cases reported is ``resolved.'' 
Therefore, OPM declines to limit agencies' reporting obligation only to 
cases in Federal court that have been resolved. OPM also declines to 
modify the reporting requirement to just reporting the aggregate number 
of cases in Federal court. The Act requires that each case be related 
to a provision(s) of law involved. OPM has no authority under the Act 
to task the Department of Justice as suggested by one commenter.

[[Page 78035]]

    One agency asked that OPM define what is considered to be a 
``pending case'' in Federal court. The regulations call for reporting 
about cases in Federal court that are pending or resolved in each 
fiscal year. That is, if a case is filed in court during a current 
reporting cycle's fiscal year or resolved during that fiscal year or 
filed and resolved in that fiscal year, it is to be reported. Cases 
filed in previous years but not resolved would be counted as (pending) 
cases in the current reporting year. Cases filed in previous years and 
resolved in the current year would be counted as (resolved) cases. Some 
cases may be pending for a number of years in Federal court.
    Section 724.302(a)(5) requires that agencies report the number of 
employees disciplined in accordance with any agency policy described in 
Sec.  724.302(a)(5) regardless of whether it was in connection with a 
case in the Federal courts. One commenter wondered why administrative 
cases are covered in this reporting element when other reporting 
elements only apply to cases in the Federal courts. OPM believes that 
the No FEAR Act at section 203(a)(6)(B) asks, without restriction, for 
reports on all discipline in connection with Federal antidiscrimination 
and whistleblower protections laws. Another commenter suggested that 
the phrase ``whether or not'' in Sec.  724.302(a)(5) be deleted. OPM 
declines to adopt the suggestion.
    Section 724.302(a)(5) also requires agencies to report on the 
number of employees disciplined for conduct inconsistent with Federal 
antidiscrimination and whistleblower protection laws, whether or not in 
connection with cases in Federal court, and to identify the specific 
nature of the disciplinary actions (e.g., reprimand, etc.). One agency 
asked whether former employees should be included in this reporting 
requirement. OPM states that any discipline taken during the reporting 
period for conduct inconsistent with the laws noted previously is to be 
reported even if the individual is no longer employed when the report 
is prepared.
    Based on its analysis of the relationship between section 203(a)(1) 
and section 201(a) of Title II of the No FEAR Act, one agency concluded 
that the ``plain meaning'' of the Act is that agencies, under Sec.  
724.302(a)(1) of the proposed rule, are only required to report on 
cases in Federal court in which Judgment Fund payments have been made. 
OPM notes that section 203(a)(2) of the Act requires reporting on the 
``status or disposition'' of cases described in section 203(a)(1) of 
the Act. If the only cases reported are those in which Judgment Fund 
payments have been made, section 203(a)(2) would be meaningless since 
the status or disposition of all cases would be similar. Accordingly, 
OPM declines to modify Sec.  724.302(a)(1) and agencies must report on 
all cases in Federal court whether or not there has been Judgment Fund 
payment.
    The same agency also suggested that the proposed rule Sec.  
724.302(a)(3) be modified so that agencies are not obligated to report 
on the nature of each disciplinary action and the provision of law 
concerned in each case, but rather report solely on the numbers of 
disciplinary actions taken. Here the agency cites to section 203(a)(4) 
of Title II of the No FEAR Act which calls for reporting disciplinary 
actions but does not speak to the nature of the action or the provision 
of law concerned. The agency also comments that the phrase ``provision 
of law'' is unclear and asks whether the phrase applies to the Federal 
antidiscrimination and whistleblower protection laws concerned or 
whether it refers to laws authorizing disciplinary actions (such as the 
law codified at 5 CFR 752 concerning adverse actions).
    In response to the comment on the issue of whether the Act requires 
agencies to identify the nature of an action and the provision of law 
concerned in each case, section 203(a)(6)(B) of Title II calls for 
identification of the nature of the disciplinary actions reported. This 
reporting requirement is codified at Sec.  724.302(a)(5). In addition, 
section 203(a)(1) of Title II calls for reporting on the cases arising 
under ``the respective provisions of law'' and that requirement is 
reflected in Sec.  724.302(a)(3). The reporting requirements under both 
Sec.  724.302(a)(3) and Sec.  724.302(a)(5) should be consistent with 
regard to labeling discipline in order to provide the most meaningful 
and useful data to Congress and others. Thus, OPM declines to modify 
Sec.  724.302(a)(3).
    In response to another agency's question about reporting 
disciplinary actions, agencies are required to associate the nature of 
a disciplinary action with each case in such a manner that the report 
will list the types of disciplinary actions taken and then state the 
numbers of employees affected by each particular type of action.
    With regard to the issue of what the phrase ``provision of law'' 
means, it means the Federal antidiscrimination or whistleblower 
protection laws involved in a particular case wherever that phrase is 
used in Sec.  724.302. Another agency asked how specific an agency must 
be when it relates individual cases to these laws, e.g., whether the 
agency needs to cite laws such as the Civil Rights Act, Age 
Discrimination in Employment Act, etc. or whether it can just broadly 
refer to antidiscrimination laws or whistleblower protection laws. The 
No FEAR Act requires specificity and thus agencies need to identify the 
specific laws involved such as those cited in the commenter's question.
    One agency commented on OPM's proposed Sec. Sec.  724.301 and 
724.302(a)(1) stating that they should contain the same language as 
that proposed in Sec.  724.202(a) on February 28, 2005. That section 
calls on agencies to give notice to employees about Antidiscrimination 
Laws and Whistleblower Protection Laws applicable to them. OPM agrees 
the regulation should be consistent and has modified Sec. Sec.  724.301 
and 724.302(a)(1) to include the phrase ``applicable to them'' to 
modify Antidiscrimination Laws and Whistleblower Protection Laws.
    One organization suggested that administrative cases also should be 
reported by agencies under the regulations. In this regard, the 
commenter noted that the regulations ignore the ``thousands of cases 
which are processed administratively through the MSPB [Merit Systems 
Protection Board] and the EEOC.'' The commenter stated that, to be 
truly reflective of both the magnitude of these cases and whether an 
agency is disciplining employees who are found liable in forums other 
than courts, those cases must be reported. The commenter also 
recommends that all settlement agreements be reported regardless of any 
no fault clauses. With regard to reporting administrative cases, OPM 
notes that, apart from the data required pursuant to section 203(a)(5), 
Title II of the No FEAR Act is very clear that the cases to be reported 
are those that have gone to Federal courts. Under Title III of the Act, 
the EEOC already collects information regarding administrative cases 
within its jurisdiction. These regulations are consistent with the 
requirements of the Act and the suggestion is not adopted.
    With regard to settlements, OPM notes that agencies are required to 
report on all cases that have gone to Federal court. Some of these 
cases may result in settlement agreements and they must be reported. 
OPM takes no position on the same commenter's proposal regarding EEOC's 
administrative judges' salaries because the comment is beyond the scope 
of these regulations and that issue is not a part of the No FEAR Act.

[[Page 78036]]

    One agency commented that employees in Federal courts often receive 
lump sum payments from the Judgment Fund that provide no information 
about how the payment is to be divided among the employee, attorney(s), 
and other recipients. As a result, it is difficult for an agency to 
report what attorney's fees were paid in connection with cases in 
court. Since agencies are required to report under the regulations on 
attorney's fees, the commenting agency suggested that the Department of 
Justice advise agencies of the payment breakdown since the Department 
is involved in most cases in Federal court. OPM notes that the 
regulation at Sec.  724.302(a)(2)(iii) only requires the reporting of 
attorney's fees where they have been ``separately designated.'' If they 
have not been separated out in any part of the proceeding, agencies are 
not required to report on them.
    A commenter suggested inserting for clarity the word ``calendar'' 
into the phrase ``each agency must report no later than 180 days'' in 
Sec.  724.302(a). OPM adopts this suggestion.
    Section 724.302(a)(9)(b)(5) provides that agencies are to submit 
their annual reports to ``Each Committee of Congress with jurisdiction 
relating to the agency.'' One agency commented that this provision is 
unclear and asked whether it is within each agency's discretion to 
determine which Committees have jurisdiction relating to that agency. 
OPM notes that, while the No FEAR Act does not elaborate on this 
requirement, OPM has concluded the provision covers committees with 
subject-matter jurisdiction over a particular agency's mission as well 
as other committees with oversight responsibility for a particular 
agency such as appropriations committees. Beyond these committees, it 
is left with agencies to determine what other committees, if any, have 
jurisdiction relating to their agencies.

Supplemental Reports

    Section 724.302(b) requires agencies that submitted their annual 
reports before these regulations become final to ensure that their 
reports contain data elements 1 through 8 of paragraph (a) of that 
section. If the earlier reports do not cover all of those data elements 
as written, agencies would be obligated to submit supplemental reports. 
Data element 9 concerns agency training plans and agencies are only 
required to include it in their future reports. One agency commented 
that comparing earlier reports to the final rules and providing 
supplemental reports would be an ``unnecessary administrative burden'' 
on agencies. Another agency said that it would be ``overly burdensome'' 
for those that complied with the Act earlier in ``good faith.'' That 
agency strongly recommended that the final rule apply only to future 
reports. Because the proposed regulations on reporting closely track 
the provisions of the No FEAR Act itself, OPM believes that the 
differences between what was submitted earlier and the requirements of 
the regulations will be minimal. OPM commends those agencies that have 
taken the initiative and submitted reports based on the Act even though 
OPM's regulations had not been finalized. However, because differences 
are likely to be minimal and because OPM believes that Congress needs 
consistent reports from all agencies in order to see how well the 
Federal Government is working toward a discrimination and reprisal-free 
workplace, OPM declines to eliminate the supplemental reporting 
requirement of Sec.  724.302(b).

Best Practices

Best Practices Study

    One commenter stated that OPM ``has not gone far enough'' 
concerning its determination of best practices because it appears that 
OPM plans a ``reactive response'' based on reports developed by 
agencies. The commenter said that OPM should provide ``thoroughly 
researched, comprehensive, proactive guidelines which could help 
agencies avoid inappropriate discipline actions and would provide 
managers with sound guidance * * *.'' OPM notes the proposed rule 
stated only that the study ``will include,'' rather than ``will be 
limited to'' a review of agencies' discussions provided in their 
reports under the No FEAR Act.
    Another commenter recommended that disciplinary best practices be 
shared with Federal agencies. Under Sec.  724.403, disciplinary best 
practices will be incorporated in the advisory guidelines that OPM will 
provide to Federal agencies.

Advisory Guidelines

    Some agencies suggested that OPM change the manner in which they 
are to reply to the advisory guidelines issued under Sec.  724.403, 
eliminate the reply as an unnecessary burden, make the guidelines non-
mandatory, change the recipient list, delay implementation of the 
guidelines after they are issued, and/or change the amount of time 
allocated for replying (provide more time). The No FEAR Act is very 
specific about agencies' obligations regarding this topic. Therefore, 
OPM declines to adopt these suggestions.
    One agency suggested that agencies be given maximum flexibility in 
administering disciplinary actions and that the guidelines be focused 
essentially on program measures to determine effectiveness. Such 
program measures might be the reduction in agency complaints, policies 
issued to deter discriminatory behavior, and effective implementation 
of recommendations from previous agency reports. OPM will consider 
these suggestions in drafting the advisory guidelines.
    One commenter suggested that OPM provide agencies with an 
opportunity to comment on advisory guidelines drafted under the No FEAR 
Act and/or publish them in the Federal Register for public comment. 
While the Act does not provide the opportunity for such comments, the 
President's delegation of authority to OPM does require that its 
activities concerning regulations under the No FEAR Act be accomplished 
in consultation with the Attorney General and other officers of the 
executive branch OPM determines appropriate. Thus, OPM has consulted 
with the Department of Justice, the Equal Employment Opportunity 
Commission, the Office of Special Counsel, and the Department of the 
Treasury and may do so in connection with the advisory guidelines.
    With regard to agencies' obligation to state in writing whether or 
to what extent they are going to follow the advisory guidelines, one 
commenter wanted to know what will happen if an agency ``opts out''. 
Will there be consequences? The No FEAR Act requires agencies to 
provide their written statements to the Congress, the EEOC, and the 
Attorney General. The Act contains no ``opt out'' provision.

Miscellaneous Comments

Training

    One of the union commenters recommended that there be ``mandatory 
training requirements'' and proposed that managers who have violated 
discrimination laws attend education and awareness training pertaining 
to managing a diverse workforce. OPM notes that the No FEAR Act 
requires training for all employees including managers. Agencies have 
flexibility to develop training curricula as appropriate for their 
needs. OPM declines to adopt this recommendation.

Enforcement

    One organization suggested that EEOC and MSPB amend their 
regulations so that they could dismiss on jurisdictional grounds 
complaints and appeals filed by

[[Page 78037]]

employees who are disciplined in accordance with best practices 
guidance on disciplinary matters as set forth by OPM. OPM takes no 
position on this comment because it is beyond the scope of these 
regulations.
    Another organization suggests that, for enforcement purposes, when 
there are violations of Federal antidiscrimination and whistleblower 
protection laws within an agency, that agency should be required to 
post a public notice similar to what is done when an agency is found by 
the Federal Labor Relations Authority to have committed an unfair labor 
practice. Another enforcement-related proposal would be to create a 
central repository of all information collected under the No FEAR Act 
and posted in one location on a public Web site such as EEOC's. This 
commenter also suggested that the regulations set penalties for failing 
to report as required by the Act. Another organization suggests that 
OPM measure agencies' performance in implementing the No FEAR Act. Part 
of this process would involve identifying an office at OPM with primary 
responsibility for assessing policy performance. Agencies would submit 
policy to this office and a selected group of interested employees from 
agencies would determine important aspects to be included in agency 
performance assessment. The group's results then would be used to 
compile a list of agency performance criteria and success indicators. 
OPM takes no position on these comments because they are beyond the 
scope of these regulations.

Timeliness

    A number of commenters expressed concern about the amount of time 
it has taken for regulations to be promulgated under the No FEAR Act. 
OPM notes that with the publication of final regulations on Subpart A 
(Judgment Fund) on May 10, 2006, Subpart B (Notification and Training) 
on July 20, 2006, and the current rule, Subparts C & D (Reporting and 
Best Practices), 5 CFR part 724 is now complete.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic 
impact on a substantial number of small entities because the 
regulations pertain only to Federal employees and agencies.

E.O. 12866, Regulatory Review

    This final rule has been reviewed by the Office of Management and 
Budget under Executive Order 12866.

E.O. 13132

    This regulation will not have substantial direct effects on the 
States, on the relationship between the National Government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant preparation of a Federalism 
Assessment.

E.O. 12988, Civil Justice Reform

    This regulation meets the applicable standard set forth in sections 
3(a) and 3(b)(2) of Executive Order 12988.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Congressional Review Act

    This action pertains to agency management, personnel and 
organization and does not substantially affect the rights of 
obligations of non-agency parties and, accordingly, is not a ``rule'' 
as that term is used by the Congressional Review Act (Subtitle E of the 
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)). 
Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

List of Subjects in 5 CFR Part 724

    Administrative practice and procedure, Civil rights, Claims.

    U.S. Office of Personnel Management.
Linda M. Springer,
Director.

0
Accordingly, OPM is amending part 724, title 5, Code of Federal 
Regulations, as follows:

PART 724--IMPLEMENTATION OF TITLE II OF THE NOTIFICATION AND 
FEDERAL EMPLOYEE ANTIDISCRIMINATION AND RETALIATION ACT OF 2002

0
1. In Sec.  724.102 of subpart A, add a new definition for discipline 
in alphabetical order to read as follows:


Sec.  724.102  Definitions.

* * * * *
    Discipline means any one or a combination of the following actions: 
reprimand, suspension without pay, reduction in grade or pay, or 
removal.
* * * * *

0
2. In part 724, add subparts C and D to read as follows:
Subpart C--Annual Report
Sec.
724.301 Purpose and scope.
724.302 Reporting obligagations.

Subpart C--Annual Report


Sec.  724.301  Purpose and scope.

    This subpart implements Title II of the Notification and Federal 
Employee Antidiscrimination and Retaliation Act of 2002 concerning the 
obligation of Federal agencies to report on specific topics concerning 
Federal Antidiscrimination Laws and Whistleblower Protection Laws 
applicable to them covering employees, former employees, and applicants 
for Federal employment.


Sec.  724.302  Reporting obligations.

    (a) Except as provided in paragraph (b) of this section, each 
agency must report no later than 180 calendar days after the end of 
each fiscal year the following items:
    (1) The number of cases in Federal court pending or resolved in 
each fiscal year and arising under each of the respective provisions of 
the Federal Antidiscrimination Laws and Whistleblower Protection Laws 
applicable to them as defined in Sec.  724.102 of subpart A of this 
part in which an employee, former Federal employee, or applicant 
alleged a violation(s) of these laws, separating data by the 
provision(s) of law involved;
    (2) In the aggregate, for the cases identified in paragraph (a)(1) 
of this section and separated by provision(s) of law involved:
    (i) The status or disposition (including settlement);
    (ii) The amount of money required to be reimbursed to the Judgment 
Fund by the agency for payments as defined in Sec.  724.102 of subpart 
A of this part;
    (iii) The amount of reimbursement to the Fund for attorney's fees 
where such fees have been separately designated;
    (3) In connection with cases identified in paragraph (a)(1) of this 
section, the total number of employees in each fiscal year disciplined 
as defined in Sec.  724.102 of subpart A of this part and the specific 
nature, e.g., reprimand, etc., of the disciplinary actions taken, 
separated by the provision(s) of law involved;
    (4) The final year-end data about discrimination complaints for 
each

[[Page 78038]]

fiscal year that was posted in accordance with Equal Employment 
Opportunity Regulations at subpart G of title 29 of the Code of Federal 
Regulations (implementing section 301(c)(1)(B) of the No FEAR Act);
    (5) Whether or not in connection with cases in Federal court, the 
number of employees in each fiscal year disciplined as defined in Sec.  
724.102 of subpart A of this part in accordance with any agency policy 
described in paragraph (a)(6) of this section. The specific nature, 
e.g., reprimand, etc., of the disciplinary actions taken must be 
identified.
    (6) A detailed description of the agency's policy for taking 
disciplinary action against Federal employees for conduct that is 
inconsistent with Federal Antidiscrimination Laws and Whistleblower 
Protection Laws or for conduct that constitutes another prohibited 
personnel practice revealed in connection with agency investigations of 
alleged violations of these laws;
    (7) An analysis of the information provided in paragraphs (a)(1) 
through (6) of this section in conjunction with data provided to the 
Equal Employment Opportunity Commission in compliance with 29 CFR part 
1614 subpart F of the Code of Federal Regulations. Such analysis must 
include:
    (i) An examination of trends;
    (ii) Causal analysis;
    (iii) Practical knowledge gained through experience; and
    (iv) Any actions planned or taken to improve complaint or civil 
rights programs of the agency with the goal of eliminating 
discrimination and retaliation in the workplace;
    (8) For each fiscal year, any adjustment needed or made to the 
budget of the agency to comply with its Judgment Fund reimbursement 
obligation(s) incurred under Sec.  724.103 of subpart A of this part; 
and
    (9) The agency's written plan developed under Sec.  724.203(a) of 
subpart B of this part to train its employees.
    (b) The first report also must provide information for the data 
elements in paragraph (a) of this section for each of the five fiscal 
years preceding the fiscal year on which the first report is based to 
the extent that such data is available. Under the provisions of the No 
FEAR Act, the first report was due March 30, 2005 without regard to the 
status of the regulations. Thereafter, under the provisions of the No 
FEAR Act, agency reports are due annually on March 30th. Agencies that 
have submitted their reports before these regulations became final must 
ensure that they contain data elements 1 through 8 of paragraph (a) of 
this section and provide any necessary supplemental reports by April 
25, 2007. Future reports must include data elements 1 through 9 of 
paragraph (a) of this section.
    (c) Agencies must provide copies of each report to the following:
    (1) Speaker of the U.S. House of Representatives;
    (2) President Pro Tempore of the U.S. Senate;
    (3) Committee on Governmental Affairs, U.S. Senate;
    (4) Committee on Government Reform, U.S. House of Representatives;
    (5) Each Committee of Congress with jurisdiction relating to the 
agency;
    (6) Chair, Equal Employment Opportunity Commission;
    (7) Attorney General; and
    (8) Director, U.S. Office of Personnel Management.
Subpart D--Best Practices
Sec.
724.401 Purpose and scope.
724.402 Best practices study.
724.403 Advisory guidelines.
724.404 Agency obligations

Subpart D--Best Practices


Sec.  724.401  Purpose and scope.

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


Sec.  724.402  Best practices study.

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


Sec.  724.403  Advisory guidelines.

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


Sec.  724.404  Agency obligations.

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

[FR Doc. E6-22242 Filed 12-27-06; 8:45 am]
BILLING CODE 6325-39-P