Elijah E. Cummings Federal Employee Anti-Discrimination Act of 2020, 736-745 [2021-28019]

Agencies

• Office of Personnel Management

[Federal Register Volume 87, Number 4 (Thursday, January 6, 2022)]
[Proposed Rules]
[Pages 736-745]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-28019]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

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

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Federal Register / Vol. 87, No. 4 / Thursday, January 6, 2022 / 
Proposed Rules

[[Page 736]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 724

RIN 3206-AO26


Elijah E. Cummings Federal Employee Anti-Discrimination Act of 
2020

AGENCY: Office of Personnel Management.

ACTION: Proposed rule.

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SUMMARY: The Office of Personnel Management (OPM) is issuing proposed 
regulations that would govern Federal antidiscrimination (including 
retaliation) and whistleblower protection. The proposed rule would 
implement statutory changes and amend the regulations to incorporate 
technical revisions and other changes relating to these subjects to 
make the rule more efficient and effective.

DATES: Comments must be received on or before February 7, 2022.

ADDRESSES: You may submit comments, identified by the docket number or 
Regulation Identifier Number (RIN) for this proposed rulemaking, by the 
Federal eRulemaking Portal: https://www.regulations.gov. Follow the 
instructions for sending comments.
    Instructions: All submissions must include the agency name and 
docket number or RIN for this rulemaking. Please arrange and identify 
your comments on the regulatory text by subpart and section number; if 
your comments relate to the supplementary information, please refer to 
the heading and page number. All comments received will be posted 
without change, including any personal information provided. Please 
ensure your comments are submitted within the specified open comment 
period. Comments received after the close of the comment period will be 
marked ``late,'' and OPM is not required to consider them in 
formulating a final decision. Before acting on this proposal, OPM will 
consider and respond to all comments within the scope of the 
regulations that we receive on or before the closing date for comments. 
Changes to this proposal may be made in light of the comments we 
receive.

FOR FURTHER INFORMATION CONTACT:  Timothy Curry by email at 
[email protected] or by telephone at (202) 606-2930 
(voice) and 711 (TTY).

SUPPLEMENTARY INFORMATION:  The Elijah E. Cummings Federal Employee 
Antidiscrimination Act of 2020 (Cummings Act) became law on January 1, 
2021. The law amends the Notification and Federal Employee 
Antidiscrimination and Retaliation Act of 2002 (``No FEAR Act''), 
Public Law 107-174. In the No FEAR Act of 2002, Congress entrusted the 
President with the authority to promulgate rules to carry out Title II 
of the No FEAR Act and the President, in turn, delegated to OPM the 
authority to issue regulations to implement these provisions. The 
regulations at title 5, Code of Federal Regulations, part 724 carry out 
that authority and, as modified by the proposed rule, will assist 
agencies in carrying out, consistent with law, these No FEAR Act 
amendments. First, OPM proposes to rename the title of this part to 
state the current purpose and content of this part by removing 
``Implementation of,'' which was appropriate for the initial 
regulations established in 2006. We also propose to amend the authority 
citation to add a reference to the Cummings Act.
    The proposed regulations clarify procedures and add new 
requirements. In particular, they require an agency to: Provide notice, 
in an accessible format, of a finding of intentionally committed 
discriminatory (including retaliatory) \1\ acts on the public internet 
website (linked directly from the home page) of the agency after all 
appeals have been exhausted; submit the annual report in an accessible, 
electronic format prescribed by the Director of OPM; submit a 
disciplinary action report, in an accessible, electronic format, to the 
Equal Employment Opportunity Commission (EEOC); establish, or leverage, 
a system to track each complaint of discrimination; and provide a 
notation of any adverse action taken under section 7512 of title 5, 
United States Code, for a covered act of discrimination (including 
retaliation) in the personnel record of an agency employee found to 
have intentionally committed discriminatory (including retaliatory) 
acts, after all appeals are exhausted.
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    \1\ Retaliation is a form of prohibited discrimination.
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    The proposed regulations also will update references and language 
due to statutory changes and clarify procedures and requirements to 
support agencies in complying with the requirements of the No FEAR Act. 
OPM will issue revised language for Notice obligations, Sec.  724.202, 
which includes the model paragraphs for agency No FEAR notices, in a 
separate rulemaking.
    Finally, OPM proposes to remove references to requirements and 
deadlines that were established when the law was initially implemented 
and that have been fulfilled. As noted in the original final rule 
implementing the No FEAR Act, Congress found that, ``[i]n order to 
maintain a productive workplace that is fully engaged with the many 
important missions before the Government, it is essential that the 
rights of employees, former employees, and applicants for Federal 
employment, under antidiscrimination and whistleblower protection laws, 
be steadfastly protected and that agencies that violate these rights be 
held accountable.'' 71 FR 27185 (May 10, 2006). Additionally, through 
the No FEAR Act amendments, it was the sense of Congress that 
accountability in the enforcement of the rights of Federal employees is 
furthered when Federal agencies agree to take appropriate disciplinary 
action against Federal employees who are found to have intentionally 
committed discriminatory (including retaliatory) acts, but that 
accountability is not furthered if Federal agencies react to increased 
accountability for their lawful responsibility by taking unfounded 
disciplinary actions against Federal employees or by violating the 
procedural rights of managers who have been accused of discrimination. 
Accordingly, disciplinary actions against Federal employees alleged to 
have intentionally committed discriminatory (including retaliatory) 
acts should not be taken reflexively, but rather as the result of 
methodical consideration of all the facts and pursuant to the 
prescribed processes.

[[Page 737]]

5 CFR Part 724--Implementation of Title II of the Notification and 
Federal Employee Antidiscrimination and Retaliation Act of 2002

Subpart A--Reimbursement of Judgment Fund

    This subpart implements the portion of Title II of the No FEAR Act 
of 2002 concerning the obligation of Federal agencies to reimburse the 
Judgment Fund for payments. Key terms used throughout title 5, Code of 
Federal Regulations (CFR), part 724 are defined in this subpart.
    Currently in 5 CFR 724.102, the No FEAR Act is defined. OPM 
proposes to remove the quotation marks from and revise the definition 
of ``No FEAR Act'' to reflect that the term means the Notification and 
Federal Employee Antidiscrimination and Retaliation Act of 2002, as 
amended by the Cummings Act. In addition, there are definitions of 
``Antidiscrimination Laws'' and ``Payment.'' Congress enacted the 
``Genetic Information Nondiscrimination Act (GINA) of 2008'', effective 
November 21, 2009, after finding that ``Federal legislation 
establishing a national and uniform basic standard is necessary to 
fully protect the public from discrimination and allay their concerns 
about the potential for discrimination, thereby allowing individuals to 
take advantage of genetic testing, technologies, research, and new 
therapies.'' Title II of GINA prohibits employment discrimination on 
the basis of genetic information. OPM proposes to revise the 
definitions of ``Antidiscrimination Laws'' and ``Payment'' in 5 CFR 
724.102 to add sections 2000ff et seq. of title 42, United States Code, 
which codifies GINA, to the list of statutes that comprise the 
Antidiscrimination Laws. ``Antidiscrimination Laws'' is further revised 
to make clear it applies to laws prohibiting discrimination (including 
retaliation).

Subpart B--Notification of Rights and Protections and Training

    This subpart implements the portion of Title II of the No FEAR Act 
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.

Section 724.203 Notification of Final Agency Action

    Subpart B of the No FEAR Act, as amended by the Cummings Act, will 
now provide for two different notices. The notice regulations already 
existing at 5 CFR 724.202 were derived from section 202 of the original 
text of the No FEAR Act; the new requirement implements section 1133 of 
the Cummings Act. The existing regulation applies to the notice of 
rights agencies are required to provide to current and former Federal 
employees and applicants for Federal employment. OPM proposes to 
redesignate Sec.  724.203 for notification of final agency action to 
implement the new public disclosure obligations an agency must 
undertake when there has been a finding of discrimination (including 
retaliation) against the agency and all appeals have been exhausted. 
(The Cummings Act refers to this as a ``notice of violation.'') 
Specifically, an agency must provide notice in an accessible format 
linked from its public-facing website of any final decision in which 
there has been a finding of discrimination (including retaliation) 
against the agency. Note that a claim of discrimination need not 
include retaliation as a basis and retaliation can separately be raised 
as a basis for a claim of discrimination.
    Under the proposed Sec.  724.203, the head of the Federal agency 
subject to the finding must provide notice on the agency's public 
website within 90 days after the date on which any of the events 
specified in section 1133 of the Cummings Act occur, that is, the date 
on which--
     all appeals of a final action by a Federal agency, 
including when a Federal agency fails to take a final action and the 
administrative judge's decision becomes final (see 29 CFR 1614.109(i)), 
involving a finding of intentionally committed discriminatory 
(including retaliatory) acts prohibited by a provision of law covered 
by paragraph (1) or (2) of section 201(a) of the No FEAR Act have been 
exhausted;
     all appeals of a final decision by the EEOC involving a 
finding of intentionally committed discriminatory (including 
retaliatory) acts prohibited by a provision of law covered by paragraph 
(1) or (2) of section 201(a) of the No FEAR Act have been exhausted; or
     a court of jurisdiction issues a final judgment involving 
a finding of intentionally committed discriminatory (including 
retaliatory) acts prohibited by a provision of law covered by paragraph 
(1) or (2) of section 201(a) of the No FEAR Act.
    OPM interprets the phrase ``final judgment'' in the description of 
the third event to mean the date on which the opportunity for further 
appeal expires, either because the time for any further appeal elapses 
or because the court issuing the final decision in the case is the 
final reviewing court from which relief could be sought.
    The agency's notification must identify the date on which the 
finding was made, the date on which each discriminatory act was found 
to have occurred, and the law found to have been violated by each such 
discriminatory act, and, once again, advise Federal employees of the 
rights and protections available under the provisions of law covered by 
paragraphs (1) and (2) of section 201(a) of the No FEAR Act. Where an 
EEOC decision fails to identify the date on which each act found by the 
EEOC to be discriminatory occurred, the agency should affirmatively 
note its inability to specify such dates, for that reason.

Section 724.204 Training Obligations

    In OPM's current regulations, training obligations are addressed at 
Sec.  724.203. However, due to the addition of the new requirement for 
notification of final agency action as discussed above at Sec.  
724.203, OPM proposes to add a new section designated as Sec.  724.204 
for the training obligations. The proposed Sec.  724.204 describes the 
training that each Federal agency must provide to 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. Agencies were required to provide 
the initial training by December 17, 2006, and, thereafter, on a 
training cycle of no longer than every two years. Because the deadline 
for the initial training has passed, OPM proposes to remove that 
deadline from Sec.  724.204(d) (formerly Sec.  724.203(d)).
    Consistent with the No FEAR Act, however, the regulations continue 
to require agencies to train new employees on the rights and remedies 
available under the antidiscrimination and whistleblower protection 
laws 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. In this context, ``new 
employees'' are those who are new to the agency, including those who 
transfer from one Federal agency to another. In addition, each agency 
must continue to train all

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existing employees on a training cycle of no longer than every two 
years.

Subpart C--Annual Report

    This subpart implements the portion of Title II of the No FEAR Act 
concerning the obligation of Federal agencies to report on specific 
topics concerning Federal Antidiscrimination Laws and Whistleblower 
Protection Laws applicable to them, covering Federal employees, former 
Federal employees, and applicants for Federal employment. Section 
1134(b) of the Cummings Act adds a new reporting requirement to section 
203 of the No FEAR Act for a disciplinary action report. To incorporate 
the new disciplinary action report requirement into part 724, OPM 
proposes to change the subpart C heading from ``Annual Report'' to 
``Reporting Obligations.''

Section 724.302 Reporting Obligations

    OPM proposes to change the heading for Sec.  724.302 from 
``Reporting obligations'' to ``Annual report'' to clarify that the 
provisions in Sec.  724.302(a) through (c) are specific to the annual 
report required by section 203(a) of the No FEAR Act, which requires 
Federal agencies to create annual reports on a number of items 
concerning Federal Antidiscrimination Laws and Whistleblower Protection 
Laws as defined in section 201 of the Act. The annual reports are to be 
submitted to: The Speaker of the U.S. House of Representatives; 
President Pro Tempore of the U.S. Senate; U.S. Senate Committee on 
Homeland Security and Governmental Affairs; U.S. House of 
Representatives Committee on Oversight and Reform; each committee of 
Congress with jurisdiction relating to the agency; the EEOC; the 
Attorney General; and OPM.
    Section 1134(a) of the Cummings Act requires that the annual 
reports mandated by section 203(a) of the No FEAR Act be submitted in 
an electronic format prescribed by the Director of OPM. OPM proposes to 
amend paragraphs (a) and (c) of Sec.  724.302 to require that each 
agency submit its annual report in a Portable Document Format (PDF) or 
other electronic file format that conforms with the standards of 
Section 508 of the Rehabilitation Act, as amended (29 U.S.C. 794(d)), 
and its implementing regulations (36 CFR part 1194). Section 508 of the 
Rehabilitation Act requires Federal agencies to make their information 
and communication technology accessible to people with disabilities in 
a manner that is substantially equivalent to the access provided to 
people without disabilities. The annual report must be formatted to 
enable it to be attached to an electronic mail (email) message (or a 
successor electronic delivery system identified by OPM) addressed to 
the receiving Congressional office or agency. This electronic format 
will be required for any annual report submitted under this provision 
on or after January 1, 2022. Agencies may, however, begin use of the 
OPM-prescribed electronic format requirements prior to January 1, 2022. 
Annual report submissions to OPM should be sent to 
[email protected]. Annual report submissions to the Equal 
Employment Opportunity Commission, pursuant to 5 CFR 724.302(c)(6), 
should be sent to [email protected].
    Under the provisions of the No FEAR Act, each agency's first annual 
report was due on March 30, 2005, as explained in the current text at 5 
CFR 724.302(b). Agencies that had submitted their reports before the 
original regulations became final were instructed in Sec.  724.302(b) 
to ensure that their reports contained data elements 1 through 8 of 
paragraph (a) of this section and to provide any necessary supplemental 
reports by April 25, 2007. Given that the March 2005 and April 2007 
deadlines have passed and the instructions for reports submitted prior 
to the finalization of the regulations are no longer relevant, OPM 
proposes to remove those deadlines and instructions from the 
regulations at Sec.  724.302(b).
    Section 1134(a) of the Cummings Act amends Section 203(a) of the No 
FEAR Act by updating the names of two Congressional committees that 
must receive the annual report: The U.S. Senate ``Committee on 
Governmental Affairs'' is now the U.S. Senate ``Committee on Homeland 
Security and Governmental Affairs'', and the U.S. House ``Committee on 
Government Reform'' is now the U.S. House ``Committee on Oversight and 
Reform.'' Accordingly, OPM proposes to amend Sec.  724.302(c) to revise 
the committee names, as well as to encompass any successor committees.

Section 724.303 Disciplinary Action Report

    OPM proposes to add Sec.  724.303, a new section for ``Disciplinary 
action report,'' in accordance with the establishment of the new 
reporting requirement in section 1134(b) of the Cummings Act. The 
provision tracks the statute to the effect that, not later than 120 
days from the date on which a Federal agency takes final action (or 
fails to take a final action and the administrative judge's decision 
becomes final; see 29 CFR 1614.109(i)), or a Federal agency receives a 
final decision issued by the EEOC (i.e., a decision from the EEOC's 
Office of Federal Operations (OFO), or a decision as to which the time 
to seek OFO review has elapsed) involving a finding of intentionally 
committed discriminatory (including retaliatory) acts in violation of a 
provision of law covered by paragraph (1) or (2) of section 201(a) of 
the No FEAR Act, as applicable, the applicable Federal agency must 
submit to the EEOC a report stating (1) whether disciplinary action has 
been proposed against a Federal employee as a result of the violation; 
and (2) the reasons for any disciplinary action.

Subpart D--Best Practices

Section 724.401 Purpose and Scope

    As described in 5 CFR 724.401, current subpart D, titled ``Best 
Practices,'' implements Title II of the No FEAR Act 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. As explained further below, the obligations under the 
subpart have been fulfilled. Therefore, OPM proposes to revise subpart 
D, by removing the heading and content in its entirety and renaming and 
redesignating the subpart for new requirements under the Cummings Act. 
OPM may elect in the future, under its statutory authority, to conduct 
future studies if necessary.

Section 724.402 Best Practices Study

Section 724.403 Advisory Guidelines

    Pursuant to current Sec.  724.402, OPM conducted 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. As required by current Sec.  724.403, OPM developed 
advisory guidelines for best practices that agencies may follow to take 
appropriate disciplinary actions against employees for conduct that is 
inconsistent with Federal Antidiscrimination Laws and Whistleblower 
Laws. OPM compiled its best practices findings and advisory guidelines 
and issued them in the report ``Disciplinary Best Practices and 
Advisory Guidelines Under the No FEAR Act'' in September 2008. A copy

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of the report can be found on https://www.opm.gov/policy-data-oversight/employee-relations/reference-materials/nofearact.pdf or 
provided upon a request to the Manager, Employee Accountability, 
Accountability and Workforce Relations, Employee Services, Office of 
Personnel Management, 1900 E Street NW, Washington, DC 20415. Given 
that OPM fulfilled its one-time obligations under this subpart, these 
sections are no longer needed in the regulations and will be removed.

Section 724.404 Agency Obligations

    Under current Sec.  724.404, each Federal agency was required to 
provide a written statement to Congress, the EEOC, the Attorney General 
and OPM within 30 working days of the issuance of the advisory 
guidelines. The written statement was to describe in detail whether the 
agency had adopted the guidelines and would fully follow them; the 
reasons for non-adoption, if such agency had not adopted the 
guidelines; and the reasons for the decision not to fully follow the 
guidelines, as well as an explanation of the extent to which the agency 
would not follow them if such agency would not do so. Given that the 
30-day deadline for the agency reports has expired and the No FEAR Act 
does not envision an ongoing obligation for agency statements on the 
advisory guidelines, this section is no longer needed in the part 724 
regulations and will be removed.

Subpart D--Complaint Tracking and Notation in Personnel Record 
[Redesignated]

Section 724.401 Purpose and Scope

    The proposed removal of the Best Practices text (because those 
requirements were previously fulfilled) allows OPM to redesignate 
subpart D to address two new amendments to the No FEAR Act established 
by the Cummings Act: A new section 207, concerning the obligation of 
Federal agencies to track discrimination complaints from filing to 
resolution (Complaint Tracking), and a new section 208, containing a 
requirement to place a notation in the personnel record of a Federal 
employee who is found, following an adverse action, and after all 
appeals have been exhausted, to have intentionally committed 
discriminatory (including retaliatory) acts (Notation in Personnel 
Record). Proposed Sec.  724.401 explains that the purpose of subpart D 
is to implement these new requirements.

Section 724.402 Complaint Tracking

    Under proposed Sec.  724.402, OPM incorporates the requirement of 
the Cummings Act that each agency create a tracking system for 
discrimination complaints. Not later than January 1, 2022, each Federal 
agency must establish or leverage an existing system to track each 
complaint of discrimination arising under section 2302(b)(1) of title 
5, United States Code, and adjudicated through the Equal Employment 
Opportunity process from the filing of a complaint with the Federal 
agency to resolution of the complaint. In a case where there was a 
finding of intentionally committed discriminatory (including 
retaliatory) acts, the agency would also need to track whether a 
decision has been made regarding any follow-up disciplinary action, and 
what decision was reached.

Section 724.403 Notation in Personnel Record

    Under proposed Sec.  724.403, OPM addresses a new requirement for 
agencies to document any adverse action taken against a Federal 
employee found to have intentionally committed discriminatory 
(including retaliatory) acts. If a Federal agency takes an adverse 
action covered under section 7512 of title 5, United States Code, 
against a Federal employee for intentionally committed discriminatory 
(including retaliatory) acts prohibited by a provision of law covered 
by paragraph (1) or (2) of section 201(a) of the Act, the agency must, 
after all appeals relating to that action have been exhausted and the 
finding remains, include a notation of the adverse action, and the 
reason for the action, in the personnel record of the employee. This 
requirement of the statute underscores agencies' current responsibility 
to notate an employee's personnel record if a chapter 75 adverse action 
is taken and the reason for the action. The obligation for such a 
notation is fulfilled when the agency processes the Standard Form (SF) 
50, ``Notification of Personnel Action,'' which is located at https://www.opm.gov/forms/pdfimage/sf50.pdf, or equivalent for agencies with an 
OPM-approved exception to the SF 50, which is required documentation 
for section 7512 adverse actions. The SF 50 creates a permanent record 
of the adverse action taken by recording the ``Nature of Action'' and 
``Remarks.'' OPM uses nature of action and remarks to identify the 
different types of personnel actions to facilitate certain payroll/
personnel processes and Agency unique requirements. The Nature of 
Action is the required phrase that explains the action that is 
occurring (e.g., suspension, reduction in grade or pay, or removal). 
Under the Remarks section of the SF 50, the agency must provide the 
reason for the action. OPM will establish a new nature of action code 
and new remark code for actions taken against a Federal employee for 
intentionally committing discriminatory (including retaliatory) acts 
identified by the No FEAR Act as amended by the Cummings Act. 
Instructions for processing the SF 50 are found in OPM's Guide to 
Processing Personnel Actions at https://www.opm.gov/policy-data-oversight/data-analysis-documentation/personnel-documentation/#url=Processing-Personnel-Actions.

Technical Amendments

    OPM proposes to correct the spelling of ``Judgment'' in the table 
of contents and the regulatory heading for subpart A. The proposed rule 
corrects the quotation marks by removing them in the definition of the 
No FEAR Act in Sec.  724.102. The proposed rule corrects the 
capitalization in ``antidiscrimination'' and ``whistleblower protection 
laws'' in the Disciplinary Actions model paragraph in Sec.  724.202(g) 
for consistency with the capitalization of the terms elsewhere in the 
model paragraphs. Also, the proposed rule adds a period at the end of 
the last sentence in the Disciplinary Actions model paragraph. Within 
Sec.  724.202, OPM proposes to revise all references to ``web sites'' 
to read ``websites'' and references to ``Web site'' to read 
``website''. Within Sec.  724.302(a)(4), OPM proposes to correctly 
identify the citation to the Equal Employment Opportunity regulations 
at subpart G of part 1614 of title 29, Code of Federal Regulations. In 
724.302(b) OPM proposes to correct March 30th to appear as March 30.

Expected Impact of This Proposed Rule

A. Statement of Need

    OPM is issuing the proposed rule to implement the Elijah E. 
Cummings Federal Employee Antidiscrimination Act of 2020 (hereafter, 
the Cummings Act), which amends the No FEAR Act of 2002. The No FEAR 
Act of 2002 states that ``[t]he President (or the designee of the 
President) shall issue--(1) rules to carry out this title [Pub. L. 107-
174, Title II Sec. Sec.  201-206, May 15, 2002, 116 Stat. 568].'' See 5 
U.S.C.A. 2301 note, Notification and Federal Employee 
Antidiscrimination and Retaliation Act of 2002, sec. 204 (emphasis 
supplied). President George W. Bush designated OPM as the entity that 
would carry out

[[Page 740]]

the President's obligation to issue rules to carry out title II of the 
No FEAR Act. Accordingly, OPM has an obligation to promulgate 
amendments necessary to implement the new requirements created by the 
Cummings Act and incorporate them into the regulatory scheme.
    The Cummings Act added five new requirements to the original No 
FEAR Act. (1) Each Federal agency must now post a notice, on a public-
facing website, of any final finding of discrimination or retaliation 
by the agency in violation of applicable law. (2) Agencies will be 
required to submit their annual reports in a uniform manner to be 
prescribed by OPM in its regulations. (3) An agency that has been found 
to have committed discrimination or retaliation must notify the Equal 
Employment Opportunity Commission (EEOC) whether disciplinary action 
has been proposed against any agency employee as a result of the 
finding. (4) Every agency must establish a system to track each 
complaint of discrimination, arising under one of the statutes listed 
in 5 U.S.C. 2302(b)(1), through its conclusion, including whether a 
decision has been made regarding disciplinary action. (5) Each agency 
that takes an adverse action against an employee under 5 U.S.C. 7512 in 
relation to a finding of discrimination or retaliation by the agency 
must add a notation about that action to the employee's personnel 
record. OPM is implementing these statutory requirements in the least 
burdensome way it can while still effectuating the congressional 
purposes of the No FEAR Act, as amended by the Cummings Act.
    The rulemaking proposes new regulations that require an agency to 
provide notice of a finding of discrimination (including retaliation) 
on the public internet website (linked directly from the home page) of 
the agency after all appeals have been exhausted; submit the annual 
report in an accessible, electronic format prescribed by the Director 
of the OPM; submit a disciplinary action report, in an accessible, 
electronic format, to the EEOC; establish, or leverage, a system to 
track each complaint of discrimination; and provide a notation of any 
adverse action taken under section 7512 of title 5, United States Code, 
for a covered act of discrimination (including retaliation) in the 
personnel record of an agency employee found to have intentionally 
engaged in an act of discrimination, after all appeals are exhausted.

B. Impact

    The purpose of the OPM regulations is largely to conform existing 
regulations to the new statutory requirements. OPM regulations do fill 
in some policy gaps, but any regulatory decisions will have a marginal 
impact on transfers, costs, and benefits, and the regulatory amendments 
proposed in this rulemaking go no further than is necessary to 
implement the statutory changes. Without these amendments, it will be 
impossible for OPM to comply with its own obligations under the No FEAR 
Act, as amended, and agencies will lack guidance concerning how to 
effectuate their own obligations under the Cummings Act.
    Under the existing regulations, it is difficult for members of the 
public to determine whether an agency has been the subject of a finding 
of discrimination (including retaliation) against the agency, because 
such findings are posted only in physical form on agency bulletin 
boards. The statute now requires an electronic posting on a public-
facing website. Agencies already provide notice on their public 
websites related to No FEAR, so the additional burden should be 
minimal.
    Currently, there is not a uniform method for agencies to submit 
annual No FEAR Act reports. An agency may submit its annual report in 
any format and via any means of delivery, which means there is room for 
improvement in consistency and efficiency in the agency reporting 
process. OPM aims to provide a format that will simplify reporting for 
agencies and better enable Congress to review and grasp results from 
across the Government. The ongoing burden should be minimal once new 
regulations are published and the new format is adopted at each agency.
    OPM assumes that agencies currently have some system for tracking 
complaint information, if for no other purpose than compiling and 
preparing the annual report of No FEAR Act data. Agencies with simpler 
systems may need to develop a more robust tool to meet the statutory 
requirement for a system that tracks each complaint from filing through 
resolution and including disciplinary action, if taken as a consequence 
of a finding of discrimination, but we do not expect that the 
additional effort will be very burdensome.
    The requirement that an agency notify the EEOC whether the agency 
has proposed disciplinary action against any agency employee as a 
result of a finding that the agency has violated one or more of the 
Antidiscrimination or Whistleblower Protection Laws, will add a new 
burden to agencies, but this burden has been imposed by Congress, and 
OPM is merely aligning its regulations to the statute to incorporate 
the new requirement.
    The regulation also provides that an agency must include a notation 
of the adverse action and the reason for the action in the personnel 
record of the employee if the agency takes an adverse action covered 
under section 7512 of title 5, U.S. Code, against the employee for an 
intentional act of discrimination (including retaliation). In order to 
ease agencies' compliance with this statutory requirement, OPM proposes 
to establish a new nature of action code and new remark code for 
agencies to notate and provide the reason for the adverse action. This 
will enhance transparency as to the basis for agency action and serve 
the congressional purpose by providing a deterrent to prohibited 
behavior.

C. Regulatory Alternatives

    For the most part, the changes reflected in OPM's implementing 
regulations are required by statute and cannot be avoided or further 
simplified. The Cummings Act requires that an agency provide notice of 
a finding of discrimination (including retaliation) on the public 
internet website (linked directly from the home page) of the agency 
after all appeals have been exhausted; agencies were already posting 
physical copies at their agency worksites, and now OPM has modified its 
regulations to incorporate the new electronic posting requirement. In 
addition, the statute requires that the Director of OPM prescribe an 
electronic format for agencies to submit annual reports about cases in 
Federal court pending or resolved in each fiscal year and arising under 
the Federal Antidiscrimination Laws and Whistleblower Protection Laws 
applicable to them in which an employee, former Federal employee, or 
applicant alleged a violation(s) of these laws. We have laid out an 
approach that we believe is minimally burdensome for agencies. The 
Cummings Act imposed on agencies a new obligation to submit a 
disciplinary action report to the Equal Employment Opportunity 
Commission (EEOC) whenever the agency is found to have violated one of 
the anti-discrimination or whistleblowing provisions. Our proposed 
regulations incorporate this new obligation. The Cummings Act requires 
an agency to track each complaint of discrimination or retaliation; we 
assume agencies already do this in some fashion, but we now instruct 
them how to fulfill all the terms of the statutory requirement, which 
should cause minimal additional burden. Similarly, the statute provides 
the requirement that the agency insert a

[[Page 741]]

notation of any adverse action taken under section 7512 of title 5, 
United States Code, for a covered act of discrimination (including 
retaliation) in the personnel record of an agency employee found to 
have intentionally engaged in an act of discrimination, after all 
appeals are exhausted, and we believe this can be accomplished with 
relatively minimal burden.
    OPM considered alternatives with respect to the electronic format 
for the annual report. Currently, agencies submit their annual reports 
electronically or via hard copy. One option was to require agencies to 
submit the annual report as a Portable Document Format (PDF) via email. 
The other option was to give agencies flexibility to determine the 
electronic file format, as long as the format conforms with the 
standards of Section 508 of the Rehabilitation Act, as amended (29 
U.S.C. 794(d) and 36 CFR part 1194), and the means of submission. Under 
this option, which is preferred by OPM, the regulation would give the 
agency authority to determine a format within their available means. 
Submission via another avenue, such as fax or U.S. Postal Service, 
would require use of more resources, including staff time, than 
submission via email.
    OPM also considered alternatives with regard to the complaint 
tracking system. One option was for agencies to establish a new system 
to track complaints. Alternatively, agencies could leverage an existing 
system. Currently, the existing annual report requirement involves the 
collection of data elements that are closely related to the data 
elements agencies must capture in a complaint tracking system as 
required by the Cummings Act. For example, among other elements, 
agencies must report annually on the number of cases; the status or 
disposition (including settlement) of each case; and the number of 
employees disciplined and the nature of discipline for conduct that is 
inconsistent with Antidiscrimination Laws and Whistleblower Protection 
Laws. Similarly, agencies must now track each complaint of 
discrimination arising under section 2302(b)(1) of title 5, United 
States Code, and adjudicated through the Equal Employment Opportunity 
process from the filing of a complaint with the Federal agency to 
resolution of the complaint. In a case where there was a finding of 
intentional discrimination, the agency would also need to track whether 
a decision has been made regarding any follow-up disciplinary action, 
and what decision was reached. In considering the options for a 
tracking system, OPM weighed the burden of an agency developing or 
procuring a new system and determined that regulations should not 
mandate establishment of a new system if an agency can leverage an 
existing system.
    In considering the regulation for disciplinary action reports, OPM 
tracked the statute to the effect that, not later than 120 days from 
the date on which a Federal agency takes final action, or a Federal 
agency receives a final decision issued by the EEOC (i.e., a decision 
from the EEOC's Office of Federal Operations (OFO), or a decision as to 
which the time to seek OFO review has elapsed) involving a finding of 
intentional discrimination (including retaliation) in violation of a 
provision of law covered by paragraph (1) or (2) of section 201(a) of 
the No FEAR Act, as applicable, the applicable Federal agency must 
submit to the EEOC a report stating (1) whether disciplinary action has 
been proposed against a Federal employee as a result of the violation; 
and (2) the reasons for any disciplinary action. OPM proposes to 
require that agencies submit the disciplinary action report in an 
accessible, electronic format. As is the case with the annual report, 
this option gives agencies flexibility to determine the electronic file 
format, as long as the format conforms with the standards of Section 
508 of the Rehabilitation Act, as amended (29 U.S.C. 794(d) and 36 CFR 
part 1194). This preferred option gives agencies authority to determine 
a format within their available means. OPM did not prescribe the means 
of submission for the disciplinary action reports. Given that the 
report is to be submitted only to the EEOC, OPM defers to the EEOC and 
agencies to determine the best delivery method for disciplinary action 
reports.
    Regarding the statutory requirement that an agency provide notice 
linked from its public-facing website of any final decision in which 
there has been a finding of discrimination (including retaliation) 
against the agency, OPM has not specified any design requirements. 
Agencies have the discretion to lay out the required information and 
links in the most beneficial and cost-effective manner to achieve the 
outcome of public notice about agency efforts at accountability for 
applicable violations. In adopting this approach, OPM assumes that 
covered agencies have public websites that they update regularly with 
information for the public and that these updates will occur with no 
more frequency than other changes that an agency may make to its 
public-facing website.
    Finally, there is the statutory requirement that an agency document 
any adverse action taken against a Federal employee found to have 
engaged in an act of discrimination. If a Federal agency takes an 
adverse action covered under section 7512 of title 5, United States 
Code, against a Federal employee for an act of intentional 
discrimination (including retaliation) prohibited by a provision of law 
covered by paragraph (1) or (2) of section 201(a) of the Act, the 
agency must, after all appeals relating to that action have been 
exhausted and the finding remains, include a notation of the adverse 
action, and the reason for the action, in the personnel record of the 
employee. OPM considered that this requirement could be met by the 
agency preparing a written statement that describes the adverse action 
and the reason for the action and filing the written statement in the 
employee's Official Personnel Folder. A potential disadvantage to this 
approach is a lack of consistency across agencies on how documentation 
is prepared. OPM determined that an alternative, more effective 
approach is to establish a new nature of action code and new remark 
code for agencies to notate and provide the reason for the adverse 
action. This preferred option promotes consistency and transparency 
across Federal agencies in documenting adverse actions taken for acts 
of intentional discrimination (including retaliation). In addition, 
establishment of new processing codes specifically for adverse actions 
that result from violations of the antidiscrimination laws will help to 
distinguish these actions from adverse actions taken for other types of 
misconduct. This will facilitate data collection and thereby improve 
the efficiency of agency reporting processes.

D. Costs

    This proposed rule will affect the operations of the Federal 
agencies in the Executive branch--ranging from cabinet-level 
departments to small independent agencies. Regarding implementation of 
the Cummings Act requirements, this proposed rule will require 
individuals employed by these agencies to revise and rescind policies 
and procedures to implement certain portions of this proposed rule. The 
proposed rule mandates that agencies establish or leverage an existing 
system to track discrimination complaints arising under section 5 
U.S.C. 2302(b)(1) and adjudicated through the EEO process from filing 
through resolution and including disciplinary action, if taken as a 
consequence of a finding of discrimination.
    In order to estimate the costs to implement this requirement, OPM 
collected information from one large

[[Page 742]]

agency; one medium size agency; and one small agency. Each agency 
provided to OPM estimates for establishing a new complaint tracking 
system and estimates for annual maintenance for any new complaint 
tracking system which will permit the agency to track discrimination 
complaints arising under 5 U.S.C. 2302(b)(1) and adjudicated through 
the EEO process from filing through resolution and including 
disciplinary action (if applicable). For example, the large agency 
reported to OPM that it would cost approximately $1,000,000 to 
establish a new complaint tracking system and incur annual maintenance 
costs of approximately $375,000. There are at least 34 large agencies 
impacted by this requirement. The medium size agency reported to OPM 
that it would cost approximately $804,000 to establish a new complaint 
tracking system and incur annual maintenance costs of approximately 
$160,000. There are at least 31 medium size agencies impacted by this 
requirement. Finally, the small agency reported to OPM that it would 
cost approximately $61,000 to establish a new complaint tracking system 
and incur annual maintenance costs of approximately $23,000. There are 
at least 50 small agencies impacted by this requirement. Thus, based on 
the information provided by these agencies, the average cost for 
establishment of a complaint tracking system is estimated to be 
$622,000. The average annual cost of maintenance of a complaint 
tracking system is estimated to be $186,000. OPM anticipates these 
costs may vary depending on agency size and whether the agency is able 
to leverage existing complaint tracking systems in lieu of purchasing a 
new complaint tracking system.
    The remaining requirements of the proposed rule will require no 
additional costs for agencies or only negligible costs. With respect to 
the requirement to provide notice on the agency's public website of a 
finding of discrimination (including retaliation), the additional cost 
to agencies will be negligible if there are any costs at all. As noted 
above, agencies already provide notice on their public websites related 
to No FEAR and thus an additional notice does not present a greater 
cost. The regulation also requires that agencies report to Congress, 
the EEOC, Attorney General, and OPM annually in an electronic format 
via email on cases arising under each of the respective provisions of 
the Antidiscrimination Laws and Whistleblower Protection Laws in which 
an employee, former Federal employee, or applicant alleged a 
violation(s) of these laws. This regulatory change mandates the format 
of the existing annual report requirement. Currently, agencies 
primarily submit annual reports electronically. We expect that those 
few agencies which submit their reports in paper format will experience 
less cost with the required electronic format given there will be less 
handling involved in printing and preparing a paper copy for mailing, 
as well as avoidance of the mailing costs.
    Further, the proposed rule requires that agencies submit to the 
EEOC a report stating whether disciplinary action has been proposed 
against a Federal employee for a violation of the Antidiscrimination 
and Whistleblower Protection Laws not later than 120 days after the 
date on which a Federal agency takes final action, or 120 days after a 
Federal agency receives a final decision from the EEOC's Office of 
Federal Operations (OFO) or the time to seek OFO review has elapsed. No 
additional costs for agencies are required as they already report to 
the EEOC on discrimination and the report required by the proposed rule 
does not require additional cost. Similarly, no additional cost is 
needed to include a notation of the adverse action and the reason for 
the action in the personnel record of the employee if the agency takes 
an adverse action covered under section 7512 of title 5, U.S. Code, 
against the employee for an intentional act of discrimination 
(including retaliation). Agencies regularly make required notations of 
adverse actions and the reason in the personnel record of employees.

E. Benefits

    A significant way the regulation achieves transparency and 
accountability is through the requirements for agencies to provide 
notice linked directly from the home page of their public website of a 
finding of discrimination (including retaliation) and maintain the 
notice there for one year. Additionally, the regulation's requirement 
for publication of findings of discrimination (including retaliation) 
on agency websites gives employees and the general public greater 
confidence that action is taken for violations. These requirements meet 
a need for greater accountability and transparency. FY 2020 data show 
that retaliation remains the most frequently cited claim in 
discrimination charges.\2\ Nonetheless, studies consistently have found 
that retaliation has low reporting rates and factors that contribute to 
this include that victims feel it is not likely the harasser will be 
found responsible. These studies also have found that another factor in 
the lack of reporting of retaliation is that victims believe the 
employer will disregard the finding or shield the harasser from 
consequences.\3\ Agency websites are highly visible and valuable 
channels of communication. Thus, the regulation's requirement for 
notifications on the Federal agency websites should help employees and 
the public become more aware that actions are being taken to address 
discrimination (including retaliation).
---------------------------------------------------------------------------

    \2\ See https://www.eeoc.gov/fiscal-year-2021-congressional-budget-justification.
    \3\ See https://hbr.org/2020/10/do-your-employees-feel-safe-reporting-abuse-and-discrimination.
---------------------------------------------------------------------------

    Another way that the regulation provides transparency and 
accountability is through mandating that agencies establish a system or 
leverage an existing system to track discrimination complaints arising 
under section 5 U.S.C. 2302(b)(1) and adjudicated through the EEO 
process from filing through resolution, including disciplinary action, 
if taken as a result of a finding of discrimination. Agencies can 
greatly benefit by such a change to a digital infrastructure. Using 
web-based data collection and analytic capabilities can diminish 
agencies' risks of errors, duplication of effort, and lack of 
transparency.
    In another reporting requirement--the annual report to Congress, 
the EEOC, Attorney General, and OPM--the regulation instructs that 
submission of data be made in an accessible, electronic format via 
email. This improved format for the annual report should facilitate 
submission, receipt, and review of the data for oversight purposes.
    The provision implementing the requirement for a notation in the 
personnel record of an employee if the agency takes an action covered 
under 5 U.S.C. 7512 relates to Congress's finding that accountability 
is furthered when agencies take action against employees found to have 
committed discriminatory (including retaliatory) acts. In addition, 
Congress's requirement is no doubt intended to deter such employees 
from further engaging in activities that are in violation of the 
antidiscrimination and whistleblower protection laws.
    Finally, the regulation will support the Administration's priority 
to advance comprehensive equity as discussed in E.O. 13985, Advancing 
Racial Equity and Support for Underserved Communities Through the 
Federal Government at https://www.federalregister.gov/documents/2021/
01/25/2021-01753/advancing-racial-equity-and-support-for-underserved-
communities-through-the-

[[Page 743]]

federal-government. As described in E.O. 13985, ``a first step to 
promoting equity in Government action is to gather the data necessary 
to inform that effort.'' By striving for the transparency and 
accountability as previously described, this regulation helps 
``recognize and work to redress inequities in their policies and 
programs that serve as barriers to equal opportunity'' so that the 
Federal government can continue to serve as a model employer described 
in E.O. 14035, Diversity, Equity, Inclusion, and Accessibility in the 
Federal Workforce, at https://www.federalregister.gov/documents/2021/06/30/2021-14127/diversity-equity-inclusion-and-accessibility-in-the-federal-workforce.
    E.O. 14035 establishes an initiative on diversity, equity, 
inclusion, and accessibility (DEIA) in the federal workforce. As part 
of OPM's work, a Government-Wide Strategic Plan To Advance Diversity, 
Equity, and Accessibility In The Federal Workforce was released in 
November 2021, available at https://www.whitehouse.gov/wp-content/uploads/2021/11/Strategic-Plan-to-Advance-Diversity-Equity-Inclusion-and-Accessibility-in-the-Federal-Workforce-11.23.21.pdf. This plan 
directs agencies to prioritize a number of efforts to support 
sustainability and continued improvement on DEIA matters. This includes 
tracking complaints related to discrimination, harassment, and 
retaliation and collecting data on complaints of discrimination, 
harassment (including sexual harassment), and retaliation. The data 
collection requirements under this proposed rule compliment and support 
the objectives of the DEIA strategic plan and the data collected will 
help inform decision-making and policy development.
    In practice, our current system often places the primary 
responsibility for enforcing antidiscrimination laws on individual 
workers, who must file complaints with their employer or a government 
agency. There is often an asymmetry of information and resources 
between employers and employees, which can create hurdles for workers 
to defend their rights. Discrimination should not be tolerated in 
workplaces. By implementing these new statutory measures, the 
regulations will help achieve greater accountability in identifying and 
addressing discrimination (including retaliation) in the Federal 
workplace, helping to promote a Federal workplace free from 
discrimination that will attract well-qualified individuals to Federal 
service and help agencies to retain their employees, regardless of 
their background. This proposed rule is consistent with the 
Administrations' efforts to promote equity within the Federal 
workforce. By enhancing data collection and reducing harm for 
transparency requirements, the Federal government may be able to better 
identify patterns and protect those at risk of discrimination, 
including members of underserved communities. OPM will make data 
available to the reporting agencies and EEOC under the new nature of 
action code and new remark code which require agencies to notate and 
provide the reason for the adverse action as a way of monitoring agency 
progress. This proposed rule also helps position the Federal Government 
as a model workplace in its commitment to remove barriers to equal 
employment opportunity.

F. List of Studies Considered

Equal Employment Opportunity Commission Fiscal Year 2020 Congressional 
Budget Justification, Section VIII--February 2020, https://www.eeoc.gov/fiscal-year-2021-congressional-budget-justification
``Do Your Employees Feel Safe Reporting Abuse and Discrimination?'' 
Harvard Business Review--October 8, 2020, https://hbr.org/2020/10/do-your-employees-feel-safe-reporting-abuse-and-discrimination

Regulatory Flexibility Act

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

E.O. 13563 and E.O. 12866, Regulatory Review

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This proposed rule has been designated a ``significant 
regulatory action'' under Executive Order 12866.

E.O. 13132, Federalism

    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 proposed 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 standards set forth in section 
3(a) and (b)(2) of Executive Order 12988.

Unfunded Mandates Reform Act of 1995

    This proposed rule will not result in the expenditure by State, 
local or tribal governments of more than $100 million annually. Thus, 
no written assessment of unfunded mandates is required.

Congressional Review Act

    The Congressional Review Act (5 U.S.C. 801 et seq.) requires rules 
(as defined in 5 U.S.C. 804) to be submitted to Congress before taking 
effect. OPM will submit to Congress and the Comptroller General of the 
United States a report regarding the issuance of this action before its 
effective date, as required by 5 U.S.C. 801. OMB's Office of 
Information and Regulatory Affairs has determined that this proposed 
rule is not a ``major rule'' as defined by the Congressional Review Act 
(5 U.S.C. 804(2)).

Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35)

    This regulatory action will not impose any additional reporting or 
recordkeeping requirements under the Paperwork Reduction Act.

List of Subjects in Title 5 CFR Part 724

    Government employees.

Office of Personnel Management.
Stephen Hickman,
Federal Register Liaison.

    Accordingly, for the reasons stated in the preamble, OPM proposes 
to amend 5 CFR part 724 as follows:

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

0
1. Revise the authority citation for part 724 to read as follows:

    Authority:  Sec. 204 of Pub. L. 107-174, 116 Stat. 566; 
Presidential Memorandum dated July 8, 2003, ``Delegation of 
Authority Under Section 204(a) of the Notification and Federal 
Employee Antidiscrimination Act of 2002''; Sec. 1131-1138 of Pub. L. 
116-283.


[[Page 744]]


0
2. Revise the heading for part 724 to read as set forth above.
0
3. Revise the heading for subpart A to read as follows:

Subpart A--Reimbursement of Judgment Fund

0
4. In Sec.  724.102, revise the definitions of ``Antidiscrimination 
Laws'' and ``No FEAR Act'', and the first sentence of the definition of 
``Payment'' 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. 2000ff et seq. These laws prohibit discrimination, including 
retaliatory acts.\1\
---------------------------------------------------------------------------

    \1\ Retaliation is a form of prohibited discrimination.
---------------------------------------------------------------------------

* * * * *
    No FEAR Act means the Notification and Federal Employee 
Antidiscrimination and Retaliation Act of 2002, as amended by the 
Elijah E. Cummings Federal Employee Antidiscrimination Act of 2020;
* * * * *
    Payment, subject to the following exception, means a disbursement 
from the Judgment Fund on or after October 1, 2003, to an employee, 
former employee, or applicant for Federal employment, in accordance 
with 28 U.S.C. 2414, 2517, 2672, 2677 or with 31 U.S.C. 1304, that 
involves alleged discriminatory or retaliatory conduct described in 5 
U.S.C. 2302(b)(1) and (b)(8) or (b)(9) as applied to conduct described 
in 5 U.S.C. 2302(b)(1) and/or (b)(8) or conduct described in 29 U.S.C. 
206(d), 29 U.S.C. 631, 29 U.S.C. 633a, 29 U.S.C. 791, and 42 U.S.C. 
2000ff et seq. * * *
* * * * *

Subpart B--Notification of Rights and Protections and Training


Sec.  724.203   [REDESIGNATED AS Sec.  724.204]

0
5. Redesignate Sec.  724.203 as Sec.  724.204.
0
6. Add a new Sec.  724.203 to read as follows:


Sec.  724.203   Notification of final agency action.

    (a) Not later than 90 days after the date on which an event 
described in paragraph (b) of this section occurs with respect to a 
finding of discrimination (including retaliation), the head of the 
Federal agency subject to the finding shall provide notice, in an 
accessible format:
    (1) On the public website of the agency, in a clear and prominent 
location linked directly from the home page of that website;
    (2) Stating that a finding of discrimination (including 
retaliation) has been made; and
    (3) Which shall remain posted for not less than one year.
    (b) An event described in this paragraph is any of the following:
    (1) All appeals of a final action by a Federal agency, including 
when a Federal agency fails to take a final action and the 
administrative judge's decision becomes final (see 29 CFR 1614.109(i)), 
involving a finding of intentionally committed discriminatory 
(including retaliatory) acts prohibited by a provision of law covered 
by paragraph (1) or (2) of section 201(a) of the No FEAR Act have been 
exhausted.
    (2) All appeals of a final decision by the Equal Employment 
Opportunity Commission (EEOC) involving a finding of intentionally 
committed discriminatory (including retaliatory) acts prohibited by a 
provision of law covered by paragraph (1) or (2) of section 201(a) of 
the No FEAR Act have been exhausted.
    (3) A court of jurisdiction issues a final judgment involving a 
finding of intentionally committed discriminatory (including 
retaliatory) acts prohibited by a provision of law covered by paragraph 
(1) or (2) of section 201(a) of the No FEAR Act. ``Final judgment'' 
under this event means the date on which the opportunity for further 
appeal expires, either because the time for any further appeal elapses 
or because the court issuing the final decision was the final reviewing 
court from which relief could be sought.
    (c) A notification provided under paragraph (a) of this section 
with respect to a finding of discrimination (including retaliation) 
shall--
    (1) Identify the date on which the finding was made, the date on 
which each discriminatory act occurred, and the law violated by each 
such discriminatory act; and
    (2) Advise Federal employees of the rights and protections 
available under the provisions of law covered by paragraphs (1) and (2) 
of section 201(a) of the No FEAR Act.
0
7. Amend newly redesignated Sec.  724.204 by revising paragraph (d) and 
removing paragraph (e) and to read as follows:


Sec.  724.204   Training obligations.

* * * * *
    (d) 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 each 
new employee within 90 calendar days of the new employees' appointment. 
Each agency must train all employees on a training cycle of no longer 
than every two years.
0
8. Revise the heading of subpart C to read as follows:

Subpart C--Reporting Obligations

* * * * *
0
9. Amend Sec.  724.302 by:
0
a. Revising the section heading;
0
b. Revising the introductory text of paragraph (a);
0
c. Revising paragraph (a)(4);
0
d. Revising paragraph (b);
0
e. Revising the introductory text of paragraph (c); and
0
f. Revising paragraphs (c)(3) and (4).
    The revisions read as follows:


Sec.  724.302   Annual report.

    (a) Except as provided in paragraph (b) of this section, each 
agency must report in an electronic format as prescribed in paragraph 
(c) of this section no later than 180 calendar days after the end of 
each fiscal year the following items:
* * * * *
    (4) The final year-end data about discrimination complaints for 
each fiscal year that was posted in accordance with Equal Employment 
Opportunity Regulations at subpart G of part 1614 of title 29 of the 
Code of Federal Regulations (implementing section 301(c)(1)(B) of the 
No FEAR Act);
* * * * *
    (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, agency reports are due annually on March 30. Reports must 
include data elements 1 through 9 of paragraph (a) of this section.
    (c) Agencies must submit the annual report as an attachment in an 
accessible, electronic format (i.e., Portable Document Format (PDF) or 
other electronic file format) via electronic mail. The PDF or other 
electronic format must conform with the standards of section 508 of the 
Rehabilitation Act, as amended (29 U.S.C. 794(d), and its implementing 
regulations at 36 CFR part 1194). This electronic format will be

[[Page 745]]

required for any annual report submitted on or after January 1, 2022. 
Agencies must provide copies of each report to the following:
* * * * *
    (3) U.S. Senate Committee on Homeland Security and Governmental 
Affairs, or any successor Committee;
    (4) U.S. House of Representatives Committee on Oversight and 
Reform, or any successor Committee;
* * * * *
0
9. Add Sec.  724.303 to read as follows:


Sec.  724.303   Disciplinary action report.

    Not later than 120 days after the date on which a Federal agency 
takes final action (including when a Federal agency fails to take a 
final action and the administrative judge's decision comes final; see 
29 CFR 1614.109(i)), or 120 days after a Federal agency receives a 
final decision from the EEOC's Office of Federal Operations (OFO) or 
the time to seek OFO review has elapsed, involving a finding of 
intentionally committed discriminatory (including retaliatory) acts, in 
violation of a provision of law covered by paragraph (1) or (2) of 
section 201(a) of the No FEAR Act, as applicable, the applicable 
Federal agency shall submit to the EEOC a report stating--
    (1) whether disciplinary action has been proposed against a Federal 
employee as a result of the violation; and
    (2) the reasons for any disciplinary action proposed as a result of 
the violation.
    10. Revise subpart D to read as follows:

Subpart D--Complaint Tracking and Notation in Personnel Record

Sec.
724.401 Purpose and scope.
724.402 Complaint tracking.
724.403 Notation in personnel record.


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 Federal agencies to track discrimination complaints from 
filing to resolution and notate adverse actions in the personnel record 
of a Federal employee for intentionally committed discriminatory 
(including retaliatory) acts.


Sec.  724.402   Complaint tracking.

    Not later than January 1, 2022 (one year after the date of 
enactment of the Elijah E. Cummings Federal Employee Antidiscrimination 
Act of 2020), each Federal agency shall establish or leverage an 
existing system to track each complaint of discrimination arising under 
section 2302(b)(1) of title 5, United States Code, and adjudicated 
through the Equal Employment Opportunity process from the filing of a 
complaint with the Federal agency to resolution of the complaint; where 
there is a finding of intentionally committed discriminatory (including 
retaliatory) acts, the agency shall also track whether a decision has 
been made regarding disciplinary action as a consequence of this 
finding.


Sec.  724.403   Notation in personnel record.

    If a Federal agency takes an adverse action covered under section 
7512 of title 5, United States Code, against a Federal employee for 
intentionally committed discriminatory (including retaliatory) acts 
prohibited by a provision of law covered by paragraph (1) or (2) of 
section 201(a) of the No FEAR Act, the agency shall, after all appeals 
relating to that action have been exhausted, include a notation of the 
adverse action and the reason for the action in the personnel record of 
the employee.

[FR Doc. 2021-28019 Filed 1-5-22; 8:45 am]
BILLING CODE 6325-39-P