[Federal Register Volume 71, Number 90 (Wednesday, May 10, 2006)]
[Rules and Regulations]
[Pages 27185-27188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-4319]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 71, No. 90 / Wednesday, May 10, 2006 / Rules
and Regulations
[[Page 27185]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 724
RIN 3206-AJ93
Implementation of Title II of the Notification and Federal
Employee Antidiscrimination and Retaliation Act of 2002--Judgment Fund
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management (OPM) is issuing final
regulations to carry out the agency reimbursement provisions of Title
II of the Notification and Federal Employee Antidiscrimination and
Retaliation Act of 2002 (No FEAR Act). The No FEAR Act requires that
the President or his designee promulgate rules to regulate agency
reimbursement of the Judgment Fund for payments made to employees,
former employees, or applicants for Federal employment because of
actual or alleged violations of Federal antidiscrimination laws,
Federal whistleblower protection laws, and/or retaliation claims
arising from the assertion of rights under those laws. This rule
implements the reimbursement provisions of Title II of the No FEAR Act.
DATES: Effective Date: The final rule is effective October 1, 2003.
FOR FURTHER INFORMATION CONTACT: Gary D. Wahlert by telephone at (202)
606-2930; by FAX at (202) 606-2613; or by e-mail at [email protected].
SUPPLEMENTARY INFORMATION:
Background
The United States and its citizens are best served when the Federal
workplace is free of discrimination and retaliation. In order to
maintain a productive workplace that is fully engaged with the many
important missions before the Government, it is essential that the
rights of employees, former employees and applicants for Federal
employment under antidiscrimination, and whistleblower protection laws
be steadfastly protected and that agencies that violate these rights be
held accountable. Congress has found that agencies cannot be run
effectively if they practice or tolerate discrimination. In addition,
Congress has found that requiring Federal agencies to pay for any
discrimination or whistleblower judgment, award, or settlement should
improve agency accountability under these laws. Therefore, under
authority delegated by the President, OPM is issuing final regulations
to implement the reimbursement provisions of Title II of the Federal
Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act),
Public Law 107-174.
Introduction
On January 22, 2004, OPM published at 69 FR 2997 (2004) an interim
final rule implementing the reimbursement provisions of the No FEAR
Act, and provided a 60-day comment period. The rule was effective
October 1, 2003. On March 31, 2004, OPM at 69 FR 16769 (2004) extended
the comment period to April 26, 2004. OPM received 13 comments from
Federal agencies or departments, five comments from civil rights
organizations, and more than a hundred comments from individuals. OPM
thanks all who provided comments--each comment has been carefully
considered.
Hearings/Comment Period
A significant number of commenters requested that OPM conduct
public hearings on the No FEAR regulations and that OPM extend the
comment period on the interim final rule published on January 22, 2004.
OPM believes that the Administrative Procedures Act process for
obtaining comments during the regulatory process is an appropriate
method to capture public concerns and therefore has declined to conduct
public hearings. However, to help ensure that OPM considers all
concerns, OPM extended the comment period as noted previously.
Definition of Agency
The regulation's definition of agency mirrors the statutory
definition contained in section 103 of the No FEAR Act. One commenter
pointed out, however, that the definition for agency is the one
provided in 5 U.S.C 105. The commenter noted that this section of the
statute does not include military departments as defined in 5 U.S.C.
102 and suggested that military departments as a result would not
reimburse the Judgment Fund. OPM has concluded that military
departments are covered by the No FEAR Act because they are part of the
Department of Defense. The statute at 5 U.S.C. 105 defines Executive
Agency as including executive departments, one of which under 5 U.S.C.
101 is the Department of Defense.
The No FEAR Act requires agencies to reimburse the Judgment Fund
for payments made in connection with proceedings involving Federal
antidiscrimination and whistleblower protection laws. Section 724.102
of the interim final rule defined such a payment as ``a disbursement
from the Judgment Fund on or after October 1, 2003'' (the effective
date of the reimbursement provision of the No FEAR Act). Thus, under
the rule, if a payment is made from the Fund on or after that date
based on a judgment, award, or settlement in such a proceeding, the
agency is obligated to reimburse the Fund. A number of commenters
expressed concern about this definition and suggested that it be
modified. Some thought an agency's obligation to reimburse the Fund
should occur only if a judgment, award, or settlement occurs on or
after that date. Others thought that an agency should not be obligated
in any proceedings to which it was not originally a party (see later
discussion about financial implications generally under Agency
Obligations). Some thought an agency's obligation should only accrue in
proceedings that are initiated on or after October 1, 2003. OPM
understands that there may be significant financial implications
associated with this rule and that some may perceive the rule to be
unfair. Nevertheless, OPM has determined that its definition of payment
(and thus describing agencies' reimbursement obligations) reflects
Congressional intent. OPM does believe, however, that the term payment
is a broad concept and may include a
[[Page 27186]]
number of separate payments. For example, a judgment, award or
settlement may call for separate payments over an extended period of
time, subsequent payments may be based on some future condition,
separate payments may be made to individual members of a class action,
and separate payments may be made for attorney fees. Because there may
be many payments involved in a given proceeding, OPM is responding to
the previous comments by modifying the definition to clarify that
``payment'' means the first disbursement in a particular proceeding.
For example if the Judgment Fund made a disbursement in a proceeding
before October 1, 2003, any subsequent disbursement made in that same
proceeding on or after October 1, 2003, would not be considered
payments that would obligate the agency involved to reimburse the Fund.
However, if a proceeding was pending before October 1, 2003, and the
first disbursement from the Fund in that proceeding occurred on or
after October 1, 2003, the agency would be obligated to reimburse the
Fund.
One commenter stated that the types of actions on which payments
from the Judgment Fund are made could be misunderstood. OPM agrees and
has modified the definition in section 724.102 by inserting additional
statutory references and using the phrase ``or retaliatory conduct'' as
appropriate. This should help eliminate any confusion about which
payments are covered by the No FEAR Act.
Finally, with regard to payments, OPM notes that the No FEAR Act
does not change the criteria or process for obtaining payments from the
Judgment Fund; it only creates a reimbursement requirement for
agencies. In other words, the No FEAR Act does not authorize agencies
to make payments directly to employees, former employees, or applicants
for Federal employment that, prior to the No FEAR Act, would have been
made from the Judgment Fund. Judgments, awards, or settlements that
were eligible for payment from the Judgment Fund before the No FEAR Act
became effective will continue to be paid by the Judgment Fund.
Agency Obligations
With regard to agency obligations, a number of commenters suggested
that the regulations take into account the fact that the agency or
organization currently assigned as a party to a proceeding may not have
been the original party to the proceedings because of reorganization,
transfer of function, etc. The No FEAR Act draws no distinctions
between original and successor agencies in proceedings and OPM is
reluctant to do so as well. By inserting a parenthetical phrase in
section 724.103, OPM confirms that the obligation to reimburse the
Judgment Fund extends to successor agencies. In those proceedings where
financial considerations are paramount, OPM notes that Congress
understood that an agency may need to complete its reimbursement of the
Fund over a period of years under the circumstances described in
section 102 of the Act, i.e., to avoid reductions in force, furloughs,
other reductions in compensation or benefits for the workforce of the
agency or to avoid an adverse effect on the mission of the agency.
(Several commenters suggested that these circumstances be described in
the regulations but OPM has declined since the Act itself is clear.) As
further indication that Congress understood this potential
circumstance, the No FEAR Act requires agencies to report on any
adjustments in their budgets made in order to comply with reimbursement
obligations.
Procedures
Section 724.104(a) of the interim final rule stated that FMS would
notify agencies within 15 business days after January 22, 2004, of any
payments from the Judgment Fund between October 1, 2003, and January
22, 2004, involving those agencies. This notice period has expired and
thus OPM is deleting the provision from the final rule.
Several commenters had questions about the means FMS would use to
notify agencies under section 724.104(a) that a payment has been made
from the Judgment Fund. OPM has clarified this section to reflect the
intent that such notices be in writing.
A number of commenters stated that section 724.104(b) is unclear
about the time frame that would apply to an agency's obligation to
reimburse the Judgment Fund or contact FMS to make arrangements. OPM
notes that the intent of this provision is to require agencies to
reimburse the Fund or contact FMS within 45 business days after they
receive the FMS notice. Accordingly, OPM has modified the section to
reflect this intent more clearly. Other suggestions included
lengthening the time frames applicable to agencies and adding appeal
procedures for agencies to follow if FMS' notices are disputed. OPM
believes that the stated time frames are reasonable and appropriate and
that, in the event there is a dispute between an agency and FMS, an
agency may discuss that dispute with FMS without utilizing a special
appeals procedure. Therefore, OPM declines to make additional
modifications to Sec. 724.104(b).
Compliance
A number of commenters stated that the Sec. 724.105 requirement
for FMS to record on an annual basis and post on the FMS Web site
information about agencies that fail to meet their Judgment Fund
reimbursement obligations is an inadequate response to such failures.
Several suggested alternatives such as posting the names of responsible
officials, disciplining responsible officials, or notifying Congress.
The No FEAR Act provides no specific enforcement authority and OPM
declines to assume such a role without authorization. OPM notes,
however, that agencies are required by the No FEAR Act to report to
Congress and others on the amount of money required to be reimbursed to
the Judgment Fund by those agencies. (OPM will issue separate
regulations on this and other reporting requirements.) One commenter
also suggested that a process be described for removing postings from
FMS Web site once the Judgment Fund is reimbursed. OPM agrees that such
a process would be appropriate and has amended section 724.105 so that
postings will be removed during the annual posting following the date
when the agency comes into compliance with the No FEAR Act.
Miscellaneous Comments
A significant number of comments noted that the interim final rule
on reimbursement of the Judgment Fund did not address the topics of
notification, training, reporting, and disciplinary best practices that
are covered by the No FEAR Act. As noted in the Supplementary
Information in the interim final rule, OPM will issue regulations on
each of these topics separately.
A number of comments addressed subject matter covered by Title III
of the No FEAR Act. Congress assigned the responsibility for issuing
regulations under that Title to the Equal Employment Opportunity
Commission. Since OPM lacks authority under Title III, it is unable to
respond to those comments.
Immediate Implementation of Final Rule
Immediate implementation of this final rule is based upon the
exceptions found at 5 U.S.C. 553(b)(A), (b)(3)(B) and (d). The agency
obligations under the No FEAR Act to reimburse the Judgment Fund began
on October 1,
[[Page 27187]]
2003. Interim final rules covering these obligations were published on
January 22, 2004, and were effective on October 1, 2003. It was
essential, at the time of initial publication, that all agencies be
placed in a position to understand their responsibilities regarding
this requirement. The revisions to these rules make some adjustments to
our description of agency obligations that we believe should be
retroactive to October 1, 2003. OPM has determined under 5 U.S.C.
553(b)(3)(A) that the reimbursement provision only affects the rules of
agency organization, procedure, or practice and has no effect on the
substantive rights of those entitled to payment from the Judgment Fund.
OPM has determined under 5 U.S.C. 553(b)(3)(B) that it would be
contrary to the public interest to delay promulgation of the rules
governing the reimbursement provisions of the No FEAR Act. For the same
reasons, OPM has determined under 5 U.S.C. 553(d)(3) that there is good
cause for the final rule to become effective upon publication
retroactive to October 1, 2003.
Regulatory Flexibility Act
I certify that this regulation will not have a significant economic
impact on a substantial number of small entities because the
regulations pertain only to Federal employees and agencies.
E.O. 12866--Regulatory Review
This final rule has been reviewed by the Office of Management and
Budget under Executive Order 12866.
E.O. 13132
This regulation will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this rule does not have sufficient
federalism implications to warrant preparation of a Federalism
Assessment.
E.O. 12988--Civil Justice Reform
This regulation meets the applicable standard set forth in sections
3(a) and 3(b)(2) of Executive Order 12988.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Congressional Review Act
This action pertains to agency management, personnel and
organization and does not substantially affect the rights or
obligations of non-agency parties and, accordingly, is not a ``rule''
as that term is used by the Congressional Review Act (Subtitle E of the
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)).
Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.
List of Subjects in 5 CFR Part 724
Administrative practice and procedure, Civil rights, Claims.
U.S. Office of Personnel Management.
Linda M. Springer,
Director.
0
Accordingly, OPM is adopting the interim rule that added part 724 to
title 5, Code of Federal Regulations, which was published at 69 FR 2997
on January 22, 2004, as final with the following changes. Part 724 is
revised to read as follows:
PART 724--IMPLEMENTATION OF TITLE II OF THE NOTIFICATION AND
FEDERAL EMPLOYEE ANTIDISCRIMINATION AND RETALIATION ACT OF 2002
Subpart A--Reimbursement of Judgment Fund
Sec.
724.101 Purpose and scope.
724.102 Definitions.
724.103 Agency obligations.
724.104 Procedures.
724.105 Compliance.
724.106 Effective date.
Subpart B--Notification of Rights and Protections and Training
[Reserved]
Subpart C--Annual Report [Reserved]
Subpart D--Best Practices [Reserved]
Authority: Sec. 204 of Pub. L. 107-174, 116 Stat. 566;
Presidential Memorandum dated July 8, 2003, ``Delegation of
Authority Under Section 204(a) of the Notification and Federal
Employee Antidiscrimination Act of 2002.''
Subpart A--Reimbursement of Judgement Fund
Sec. 724.101 Purpose and scope.
This subpart implements Title II of the Notification and Federal
Employee Antidiscrimination and Retaliation Act of 2002 concerning the
obligation of Federal agencies to reimburse the Judgment Fund for
payments. The regulations describe agency obligations and the
procedures for reimbursement and compliance.
Sec. 724.102 Definitions.
In this part:
Agency means an Executive agency as defined in 5 U.S.C. 105, the
United States Postal Service, or the Postal Rate Commission;
Applicant for Federal employment means an individual applying for
employment in or under a Federal agency;
Employee means an individual employed in or under a Federal agency;
Former Employee means an individual formerly employed in or under a
Federal agency;
Judgment Fund means the Judgment Fund established by 31 U.S.C.
1304;
No FEAR Act means the ``Notification and Federal Employee
Antidiscrimination and Retaliation Act of 2002;''
Payment, subject to the following exception, means a disbursement
from the Judgment Fund on or after October 1, 2003, to an employee,
former employee, or applicant for Federal employment, in accordance
with 28 U.S.C. 2414, 2517, 2672, 2677 or with 31 U.S.C. 1304, that
involves alleged discriminatory or retaliatory conduct described in 5
U.S.C. 2302(b)(1) and (b)(8) or (b)(9) as applied to conduct described
in 5 U.S.C. 2302(b)(1) and/or (b)(8) or conduct described in 29 U.S.C.
206(d), 29 U.S.C. 631, 29 U.S.C. 633a, 29 U.S.C. 791 and 42 U.S.C.
2000e-16. For a proceeding involving more than one disbursement from
the Judgment Fund, however, this term shall apply only if the first
disbursement occurred on or after October 1, 2003.
Sec. 724.103 Agency obligations.
A Federal agency (or its successor agency) must reimburse the
Judgment Fund for payments covered by the No FEAR Act. Such
reimbursement must be made within a reasonable time as described in
Sec. 724.104.
Sec. 724.104 Procedures.
(a) The procedures that agencies must use to reimburse the Judgment
Fund are those prescribed by the Financial Management Service (FMS),
the Department of the Treasury, in Chapter 3100 of the Treasury
Financial Manual. All reimbursements to the Judgment Fund covered by
the No FEAR Act are expected to be fully collectible from the agency.
FMS will provide written notice to the agency's Chief Financial Officer
within 15 business days after payment from the Judgment Fund.
(b) Within 45 business days of receiving the FMS notice, agencies
must
[[Page 27188]]
reimburse the Judgment Fund or contact FMS to make arrangements in
writing for reimbursement.
Sec. 724.105 Compliance.
An agency's failure to reimburse the Judgment Fund, to contact FMS
within 45 business days after receipt of an FMS notice for
reimbursement under Sec. 724.104 will be recorded on an annual basis
and posted on the FMS Web site. After an agency meets the requirements
of Sec. 724.104, the recording will be eliminated no later than the
next annual posting process.
Sec. 724.106 Effective date.
This subpart is effective on October 1, 2003.
Subpart B--Notification of Rights and Protections and Training
[Reserved]
Subpart C--Annual Report [Reserved]
Subpart D--Best Practices [Reserved]
[FR Doc. 06-4319 Filed 5-9-06; 8:45 am]
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