FR Doc E6-11541

[Federal Register: July 20, 2006 (Volume 71, Number 139)]

[Rules and Regulations]               

[Page 41095-41099]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr20jy06-1]                         

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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 

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[[Page 41095]]

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 724

RIN 3206-AK38

Implementation of Title II of the Notification and Federal 

Employee Antidiscrimination and Retaliation Act of 2002--Notification & 

Training

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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

SUMMARY: The Office of Personnel Management (OPM) is issuing final 

regulations to carry out the notification and training requirements of 

the Notification and Federal Employees Antidiscrimination and 

Retaliation Act of 2002 (No FEAR Act). This rule will implement the 

notice and training provisions of the No FEAR Act.

DATES: Effective September 18, 2006.

FOR FURTHER INFORMATION CONTACT: Gary D. Wahlert by telephone at (202) 

606-2930; by FAX at (202) 606-2613; or by e-mail at NoFEAR@opm.gov.

SUPPLEMENTARY INFORMATION:

Background

    The United States and its citizens are best served when the Federal 

workplace is free of discrimination and retaliation. In order to 

maintain a productive workplace that is fully engaged with the many 

important missions before the Government, Congress noted that it is 

essential that the rights of employees, former employees and applicants 

for Federal employment under Federal antidiscrimination and 

whistleblower protection laws be steadfastly protected. Congress also 

stated that agencies cannot be run effectively if those agencies 

practice or tolerate discrimination. Congress has found that 

notification of present and former Federal employees and applicants for 

Federal employment of their rights under antidiscrimination and 

whistleblower protection laws, combined with training of current 

employees, should increase Federal agency compliance with the laws. 

Congress entrusted the President with the authority to promulgate rules 

to carry out this title, and the President, in turn, delegated to OPM 

the authority to issue regulations to implement the notification and 

training provisions of Title II of the No FEAR Act, Public Law 107-174. 

These regulations carry out that authority.

Introduction

    On February 28, 2005, OPM published at 70 FR 9544 (2005) a proposed 

rule implementing the notification and training provisions of the No 

FEAR Act and providing a 60-day comment period. On May 26, 2005, OPM at 

70 FR 30380 (2005) extended the comment period to June 28, 2005. OPM 

received 18 comments from Federal agencies or departments, 6 comments 

from union representatives, and 15 comments from others, including the 

No FEAR Coalition. OPM commends and thanks all who have provided 

comments on this important topic, and OPM has carefully considered each 

comment.

Comments on Definitions

    The proposed regulations defined the following terms that are used 

in the regulations: ``antidiscrimination laws,'' ``whistleblower 

protection laws,'' ``notice,'' and ``training.''

    Several commenters suggested that the definition of 

antidiscrimination laws be expanded to cover matters under 5 U.S.C. 

2302(b)(10) in order to include discrimination on the basis of sexual 

orientation as a form of prohibited discrimination under the No FEAR 

Act. Some stated that Executive Order 13087 (amending Executive Order 

11478, ``Equal Employment Opportunity in the Federal Government'') 

prohibits discrimination on the basis of sexual orientation. OPM notes 

that the No FEAR Act does not directly refer to 5 U.S.C. 2302(b)(10) as 

a law covered by the Act or refer to Executive Order 13087 (or 11478) 

as being covered by the Act. The regulations address those matters 

directly identified in the No FEAR Act. Therefore, the suggestion is 

not adopted.

    Several commenters suggested that the definition of whistleblower 

protection laws be expanded to cover whistleblower protections under 

other laws, e.g., Clean Air Act, Safe Drinking Water Act, and others. 

The No FEAR Act does not directly refer to whistleblower protections 

other than those established by the Whistleblower Protection Act of 

1989, as amended. Again, the regulations address those matters directly 

identified in the No FEAR Act. Thus, the suggestion is not adopted.

Comments on Notification Obligations

    The proposed regulations prescribed the ``time, form, and manner'' 

of the notices to employees, former employees, and applicants as 

required by section 202 of the No FEAR Act. The proposal included model 

paragraphs for agencies to use and proposed the time frames for the 

notification process.

    Several commenters asked that OPM clarify what is meant by ``former 

employee'' in terms of agencies' obligation to notify former employees 

about their rights under Federal antidiscrimination and whistleblower 

protection laws. In this regard, the commenters wanted to know how long 

after an employee left an agency would it be until the agency's 

obligation to notify him or her expires. OPM notes that the No FEAR Act 

makes no distinction about former employees and when they are to be 

notified, that is, there is no time limitation on former employees' 

rights to be notified under the Act. OPM also notes, however, that the 

proposed rule did not require agencies to contact former employees and 

applicants individually but could provide notice though other means, 

e.g., posting a notice on agencies' Web sites. The final rule has been 

revised to make this clearer by requiring that the initial notice be 

published in the Federal Register and the same notice be posted on each 

agency's Web site.

    Several commenters requested a clearer explanation of agency notice 

obligations and how they are to meet them. Some commenters requested 

that the regulations clarify agency responsibilities to post notices 

through the Federal Register process. One commenter suggested that OPM 

post a government-wide notice through this process on behalf of all 

agencies. OPM notes that the Federal Register process

[[Page 41096]]

was identified as an approved means to meet notification obligations 

under the Act in those cases where the agency does not have a Web site 

and the regulations have been clarified in this regard. Because the 

notice obligation rests with individual agencies, however, OPM declines 

to adopt the suggestion that OPM post a government-wide notice. At a 

minimum, agencies are required to include in their notices the text 

required by these regulations but may also add additional text in light 

of their individual agency circumstances. The final regulation also 

draws distinctions between the notice for employees and notice for 

former employees and applicants. Finally, one commenter asked whether a 

single posting on an agency's Internet Web site would meet the initial 

notification requirements of section 724.202(e) of the proposed rule. 

OPM's response is that it would not. The final rules require that all 

agencies' initial notices be published in the Federal Register. In 

addition, all agencies with Web sites are required to place the same 

notices on their sites where they are to remain until replaced or 

revised.

    Several commenters suggested that agencies be afforded discretion 

and flexibility to modify the proposed model notice language to fit 

their needs rather than be required to use the model language verbatim. 

Because the notice obligation applies governmentwide, OPM believes that 

the required information established by these regulations should be 

consistent governmentwide. This would eliminate any confusion that 

might be created if content varied from agency to agency. Therefore, 

OPM does not adopt the suggestion and agencies are required to use the 

model language contained in the regulations. While the required 

information would be consistent governmentwide, OPM notes that agencies 

have the authority under the regulations to provide additional 

information within the notice. One commenter noted that the proposed 

section 724.202(f) would require agencies to provide a notice in 

alternative, accessible formats if requested by employees, former 

employees and applicants. The commenter was concerned that this might 

be read to impose requirements beyond those covered in section 508 of 

the Rehabilitation Act of 1973, as amended. OPM notes that section 508 

is limited to electronic materials and the regulations address other 

materials such as (non-electronic) written notices. Therefore, OPM has 

not deleted the section but has modified it to state that agencies are 

obligated to provide requested notices in alternative, accessible 

formats to the extent required by law.

    Several commenters suggested that the model language describing the 

bases for prohibited discrimination be expanded to include sexual 

orientation. As noted previously in discussing the definition of 

antidiscrimination laws, OPM has decided not to expand the regulations 

beyond the express terms of the No FEAR Act; thus the suggestion is not 

adopted. Similar suggestions that the model language include references 

to types of whistleblowing other than that protected by the 

Whistleblower Protection Act of 1989, as amended, are not adopted 

because OPM has decided not to expand the regulations as previously 

discussed.

    One commenter suggested as unnecessary the last sentence in the 

``Disciplinary Actions'' portion of the model language that states 

agencies may not take unfounded disciplinary actions. OPM believes it 

is important to state clearly that the No FEAR Act does not change 

existing laws with respect to taking disciplinary actions. As the No 

FEAR Act states in section 102, increased accountability under the Act 

is not furthered ``by taking unfounded disciplinary actions against 

managers or by violating the procedural rights of managers.'' Thus, OPM 

does not adopt the suggestion.

    OPM also made a technical change to the ``Disciplinary Actions'' 

portion of the model language to clarify the circumstances in which 

disciplinary action may be appropriate. Accordingly, the final rule 

states that employees may be disciplined for conduct inconsistent with 

Federal antidiscrimination and whistleblower protection laws.

    Several commenters requested clarification of the relationship of 

the No FEAR Act notification process to the Office of Special Counsel 

(OSC) certification program which calls for agencies to inform 

employees about their whistleblower protection rights. During the 

development of the proposed regulations, OPM consulted OSC on this 

issue and we agreed there is overlap between the two notification 

programs, with the No FEAR Act notification obligation being broader. 

As a result, a properly completed notice under the No FEAR Act might 

also meet that agency's obligations under OSC's certification program. 

Agencies are cautioned, however, to verify with OSC that their specific 

No FEAR notification process in fact does meet the requirements of the 

OSC's program. An agency's OSC-approved notice that includes the 

minimum model language in these regulations would satisfy the 

notification requirements of the No Fear Act.

    One commenter suggested that the proposed model language stating 

that ``you may pursue a discrimination complaint by filing a grievance 

through your agency's administrative or negotiated grievance 

procedures, if such procedures apply and are available'' is in error. 

The commenter asserted that allegations of discrimination cannot be 

addressed by an agency's administrative grievance procedure. While 

OPM's former rules on administrative grievance procedures prohibited 

such coverage, OPM eliminated that restriction ten years ago (see 60 FR 

47040, September 11, 1995), and some agencies do provide for such 

coverage in their administrative grievance procedure.

Comments on Training Obligations

    The proposed regulations prescribed the requirements for Federal 

agencies to provide training under section 202 of the No FEAR Act to 

all their employees regarding their rights and remedies under Federal 

antidiscrimination and whistleblower protection laws. The proposed 

regulations called for agencies to develop written plans for meeting 

their training obligations under the Act and prescribed time limits for 

providing the training.

    A commenter noted that some of the time frames in the regulations 

were expressed in ``business days'' while others used ``calendar days'' 

and suggested that the final rule use consistent terminology. OPM 

agrees that consistency within the regulations promotes better 

understanding and therefore adopts the suggestion. As a result, the 

time frames in the final regulations have been modified to use the term 

calendar days in all cases and the number of calendar days adjusted to 

reflect a comparable amount of actual time as proposed, e.g., 90 

calendar days instead of 60 business days.

    One commenter suggested that the word ``content'' be replaced in 

section 724.203(b) of the proposed regulations concerning training 

plans because the ``content'' of training is already set by the No FEAR 

Act itself, i.e., training on the rights and remedies available under 

the Antidiscrimination Laws and Whistleblower Protection Laws. OPM 

agrees and adopts the suggestion, changing ``content'' to ``training 

materials'' as a necessary element to be described in each agency's 

training plan.

    In another reference to the content of agency training, a second 

commenter noted that section 102(5)(B) of the No FEAR Act provides that 

``Federal

[[Page 41097]]

agencies should ensure that managers have adequate training in the 

management of a diverse workforce and in dispute resolution and other 

essential communication skills.'' This provision is part of a number of 

items in the Act reflecting the ``Sense of Congress''; however, this 

language is not repeated in the Act's section 202(c) which 

independently prescribes the content of agency training. Training on 

dispute resolution and communications skills, for example, may be 

beneficial, and agencies are free to include such topics in their 

training programs. Such topics are not, however, required under the Act 

and OPM declines to require such training as part of agencies' 

obligation to train employees on the rights and remedies available 

under the Antidiscrimination Laws and Whistleblower Protection Laws.

    In addition to the above specific issues, a number of commenters 

suggested that OPM review and/or approve agency training programs, 

provide an oversight/enforcement mechanism on training, and receive 

periodic reports from agencies. Some commenters suggested that the No 

FEAR Coalition be a part of an OPM review process of agency training 

plans. OPM notes that under section 724.302(a)(9) of the proposed rule, 

each agency will be required to report on their written plan developed 

under 724.203(a) of this final rule. Copies of the agency's report will 

be provided to Members of Congress, the Chair of the EEOC, the Attorney 

General and the Director of OPM. This reporting mechanism will provide 

an appropriate level of oversight; therefore the suggestions are not 

adopted.

    Several commenters suggested that the Equal Employment Opportunity 

Commission and the Office of Special Counsel develop training programs 

that agencies could use to meet their training obligations. OPM notes 

that the No FEAR Act did not task these agencies with that 

responsibility, and OPM will not do so. Agencies, however, may seek 

assistance and information from these agencies.

    One commenter recommended that the final rule clarify that, while 

agencies are required to train their employees, this requirement does 

not extend to contract employees. OPM believes that the language is 

clear on its face that only current Federal employees are to be 

trained; thus OPM does not adopt the recommendation.

    One commenter suggested that OPM require agencies to conduct face-

to-face training as opposed to other types of training, e.g., computer-

based training. OPM has determined that it is best left to agencies to 

decide the most appropriate method(s) of training for their employees. 

OPM therefore declines to adopt this suggestion.

    One commenter noted that the proposed regulations appeared to 

require agencies to incorporate No FEAR Act training into their new 

employee orientation programs if they have such programs. While 

agencies may do so (and OPM believes this may be an efficient vehicle 

for agencies to meet their training obligations), OPM did not intend to 

prevent agencies from conducting other training for new employees 

outside of the orientation process. OPM's intent instead is to ensure 

that if training is not done during a new employee orientation, it is 

completed within 90 calendar days after an employee enters on duty. 

Therefore, OPM has modified the regulation to clarify that agencies may 

train new employees on the rights and remedies under Federal 

antidiscrimination and whistleblower protection laws using new employee 

orientation programs or other training programs as long as the 

applicable training program is completed within 90 calendar days after 

an employee enters on duty.

    Many commenters expressed concern about the proposed requirement 

that agencies complete initial training of their employees under the No 

FEAR Act by September 30, 2005. Their concerns include the logistics of 

training large numbers of employees in a short time, the burden on 

small agencies with limited resources, and the Federal budget request 

cycle. A number of commenters suggested that September 30, 2006, would 

be a more feasible date for completing initial training. One commenter 

suggested moving the initial training date to 2007. Other commenters, 

including the No FEAR Coalition, however, expressed their deep concern 

about the amount of time already expended in developing the regulations 

governing training. In balancing these concerns, OPM notes the 

importance Congress has attached to the training obligation, and 

concludes that it is imperative that agencies be allowed sufficient 

time to develop and deliver to employees the quality training that they 

deserve and to which they are entitled under the Act. Therefore, OPM 

has decided to require that initial training be completed within 90 

days of the effective date of these regulations.

    Several commenters expressed concern about the proposed rule's 

requirement for a two-year training cycle after the initial training is 

completed. Some recommended no additional training and another 

recommended a five-year cycle. OPM has taken into account comments on 

the initial training, e.g., the logistics of training large numbers of 

employees, the burdens on small agencies, and the Federal budget 

request cycle. OPM believes, however, that on-going training is 

essential to maintaining a workforce that is knowledgeable about its 

rights and remedies under these laws. Accordingly, OPM is retaining the 

two-year training cycle as proposed.

Miscellaneous Comments

    One commenter suggested that OPM issue regulations concerning the 

discipline of employees for violations of Federal antidiscrimination 

and whistleblower protection laws. OPM notes that section 204 of Title 

II of the No FEAR Act requires the President or his designee (OPM) to 

conduct a study of agency best practices in taking such disciplinary 

actions and then to develop advisory guidelines for agencies to follow 

in taking action. Because the No FEAR Act (through delegation by the 

President) already assigns this similar responsibility to OPM, the 

suggestion is not adopted.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic 

impact on a substantial number of small entities because the 

regulations pertain only to Federal employees and agencies.

E.O. 12866, Regulatory Review

    This final rule has been reviewed by the Office of Management and 

Budget under Executive Order 12866.

E.O. 13132

    This regulation will not have substantial direct effects on the 

States, on the relationship between the National Government and the 

States, or on distribution of power and responsibilities among the 

various levels of government. Therefore, in accordance with Executive 

Order 13132, it is determined that this rule does not have sufficient 

federalism implications to warrant preparation of a Federalism 

Assessment.

E.O. 12988, Civil Justice Reform

    This regulation meets the applicable standard set forth in sections 

3(a) and 3(b)(2) of Executive Order 12988.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 

tribal governments, in the aggregate, or by the private sector, of 

$100,000,000 or more in any one year, and it will not significantly or 

uniquely affect small governments. Therefore, no actions were

[[Page 41098]]

deemed necessary under the provisions of the Unfunded Mandates Reform 

Act of 1995.

Congressional Review Act

    This action pertains to agency management, personnel and 

organization and does not substantially affect the rights or 

obligations of non-agency parties and, accordingly, is not a ``rule'' 

as that term is used by the Congressional Review Act (Subtitle E of the 

Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)). 

Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

List of Subjects in 5 CFR Part 724

    Administrative practice and procedure, Civil rights, Claims.

U.S. Office of Personnel Management.

Linda M. Springer,

Director.

0

Accordingly, OPM amends part 724 of title 5, Code of Federal 

Regulations, as follows:

PART 724--IMPLEMENTATION OF TITLE II OF THE NOTIFICATION AND 

FEDERAL EMPLOYEE ANTIDISCRIMINATION AND RETALIATION ACT OF 2002

0

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

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

Memorandum dated July 8, 2003, ``Delegation of Authority Under 

Section 204(a) of the Notification and Federal Employee 

Antidiscrimination Act of 2002.''

Subpart A--Reimbursement of Judgment Fund

0

2. In Sec.  724.102 of subpart A, add new definitions for 

Antidiscrimination Laws, Notice, Training, and Whistleblower Protection 

Laws in alphabetical order to read as follows:

Sec.  724.102  Definitions.

* * * * *

    Antidiscrimination Laws refers to 5 U.S.C. 2302(b)(1), 5 U.S.C. 

2302(b)(9) as applied to conduct described in 5 U.S.C. 2302(b)(1), 29 

U.S.C. 206(d), 29 U.S.C. 631, 29 U.S.C. 633a, 29 U.S.C. 791 and 42 

U.S.C. 2000e-16.

* * * * *

    Notice means the written information provided by Federal agencies 

about the rights and protections available under Federal 

Antidiscrimination Laws and Whistleblower Protection Laws.

* * * * *

    Training means the process by which Federal agencies instruct their 

employees regarding the rights and remedies applicable to such 

employees under the Federal Antidiscrimination Laws and Whistleblower 

Protection Laws.

    Whistleblower Protection Laws refers to 5 U.S.C. 2302(b)(8) or 5 

U.S.C. 2302(b)(9) as applied to conduct described in 5 U.S.C. 

2302(b)(8).

0

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

Subpart B--Notification of Rights and Protections and Training

Sec.

724.201 Purpose and scope.

724.202 Notice obligations.

724.203 Training obligations.

Sec.  724.201  Purpose and scope.

    (a) This subpart implements Title II of the Notification and 

Federal Employee Antidiscrimination and Retaliation Act of 2002 

concerning the obligation of Federal agencies to notify all employees, 

former employees, and applicants for Federal employment of the rights 

and protections available to them under the Federal Antidiscrimination 

Laws and Whistleblower Protection Laws. This subpart also implements 

Title II concerning the obligation of agencies to train their employees 

on such rights and remedies. The regulations describe agency 

obligations and the procedures for written notification and training.

    (b) Pursuant to section 205 of the No FEAR Act, neither that Act 

nor this notice creates, expands or reduces any rights otherwise 

available to any employee, former employee or applicant under the laws 

of the United States, including the provisions of law specified in 5 

U.S.C. 2302(d).

Sec.  724.202  Notice obligations.

    (a) Each agency must provide notice to all of its employees, former 

employees, and applicants for Federal employment about the rights and 

remedies available under the Antidiscrimination Laws and Whistleblower 

Protection Laws applicable to them.

    (b) The notice under this part must be titled, ``No FEAR Act 

Notice.''

    (c) Each agency must provide initial notice within 60 calendar days 

after September 18, 2006. Thereafter, the notice must be provided by 

the end of each successive fiscal year and any posted materials must 

remain in place until replaced or revised.

    (d) After the initial notice, each agency must provide the notice 

to new employees within 90 calendar days of entering on duty.

    (e) Each agency must provide the notice to its employees in paper 

(e.g., letter, poster or brochure) and/or electronic form (e.g., e-

mail, internal agency electronic site, or Internet Web site). Each 

agency must publish the initial notice in the Federal Register. 

Agencies with Internet Web sites must also post the notice on those Web 

sites, in compliance with section 508 of the Rehabilitation Act of 

1973, as amended. For agencies with components that operate Internet 

Web sites, the notice must be made available by hyperlinks from the 

Internet Web sites of both the component and the parent agency. An 

agency may meet its paper and electronic notice obligation to former 

employees and applicants by publishing the initial notice in the 

Federal Register and posting the notice on its Internet Web site if it 

has one.

    (f) To the extent required by law and upon request by employees, 

former employees and applicants, each agency must provide the notice in 

alternative, accessible formats.

    (g) Unless an agency is exempt from the cited statutory provisions, 

the following is the minimum text to be included in the notice. Each 

agency may incorporate additional information within the model 

paragraphs, as appropriate.

Model Paragraphs

No Fear Act Notice

    On May 15, 2002, Congress enacted the ``Notification and Federal 

Employee Antidiscrimination and Retaliation Act of 2002,'' which is 

now known as the No FEAR Act. One purpose of the Act is to ``require 

that Federal agencies be accountable for violations of 

antidiscrimination and whistleblower protection laws.'' Public Law 

107-174, Summary. In support of this purpose, Congress found that 

``agencies cannot be run effectively if those agencies practice or 

tolerate discrimination.'' Public Law 107-174, Title I, General 

Provisions, section 101(1).

    The Act also requires this agency to provide this notice to 

Federal employees, former Federal employees and applicants for 

Federal employment to inform you of the rights and protections 

available to you under Federal antidiscrimination and whistleblower 

protection laws.

Antidiscrimination Laws

    A Federal agency cannot discriminate against an employee or 

applicant with respect to the terms, conditions or privileges of 

employment on the basis of race, color, religion, sex, national 

origin, age, disability, marital status or political affiliation. 

Discrimination on these bases is prohibited by one or more of the 

following statutes: 5 U.S.C. 2302(b)(1), 29 U.S.C. 206(d), 29 U.S.C. 

631, 29 U.S.C. 633a, 29 U.S.C. 791 and 42 U.S.C. 2000e-16.

    If you believe that you have been the victim of unlawful 

discrimination on the basis of race, color, religion, sex, national 

origin or disability, you must contact an

[[Page 41099]]

Equal Employment Opportunity (EEO) counselor within 45 calendar days 

of the alleged discriminatory action, or, in the case of a personnel 

action, within 45 calendar days of the effective date of the action, 

before you can file a formal complaint of discrimination with your 

agency. See, e.g. 29 CFR 1614. If you believe that you have been the 

victim of unlawful discrimination on the basis of age, you must 

either contact an EEO counselor as noted above or give notice of 

intent to sue to the Equal Employment Opportunity Commission (EEOC) 

within 180 calendar days of the alleged discriminatory action. If 

you are alleging discrimination based on marital status or political 

affiliation, you may file a written complaint with the U.S. Office 

of Special Counsel (OSC) (see contact information below). In the 

alternative (or in some cases, in addition), you may pursue a 

discrimination complaint by filing a grievance through your agency's 

administrative or negotiated grievance procedures, if such 

procedures apply and are available.

Whistleblower Protection Laws

    A Federal employee with authority to take, direct others to 

take, recommend or approve any personnel action must not use that 

authority to take or fail to take, or threaten to take or fail to 

take, a personnel action against an employee or applicant because of 

disclosure of information by that individual that is reasonably 

believed to evidence violations of law, rule or regulation; gross 

mismanagement; gross waste of funds; an abuse of authority; or a 

substantial and specific danger to public health or safety, unless 

disclosure of such information is specifically prohibited by law and 

such information is specifically required by Executive order to be 

kept secret in the interest of national defense or the conduct of 

foreign affairs.

    Retaliation against an employee or applicant for making a 

protected disclosure is prohibited by 5 U.S.C. 2302(b)(8). If you 

believe that you have been the victim of whistleblower retaliation, 

you may file a written complaint (Form OSC-11) with the U.S. Office 

of Special Counsel at 1730 M Street NW., Suite 218, Washington, DC 

20036-4505 or online through the OSC Web site--http://www.osc.gov.

Retaliation for Engaging in Protected Activity

    A Federal agency cannot retaliate against an employee or 

applicant because that individual exercises his or her rights under 

any of the Federal antidiscrimination or whistleblower protection 

laws listed above. If you believe that you are the victim of 

retaliation for engaging in protected activity, you must follow, as 

appropriate, the procedures described in the Antidiscrimination Laws 

and Whistleblower Protection Laws sections or, if applicable, the 

administrative or negotiated grievance procedures in order to pursue 

any legal remedy.

Disciplinary Actions

    Under the existing laws, each agency retains the right, where 

appropriate, to discipline a Federal employee for conduct that is 

inconsistent with Federal Antidiscrimination and Whistleblower 

Protection Laws up to and including removal. If OSC has initiated an 

investigation under 5 U.S.C. 1214, however, according to 5 U.S.C. 

1214(f), agencies must seek approval from the Special Counsel to 

discipline employees for, among other activities, engaging in 

prohibited retaliation. Nothing in the No FEAR Act alters existing 

laws or permits an agency to take unfounded disciplinary action 

against a Federal employee or to violate the procedural rights of a 

Federal employee who has been accused of discrimination

Additional Information

    For further information regarding the No FEAR Act regulations, 

refer to 5 CFR part 724, as well as the appropriate offices within 

your agency (e.g., EEO/civil rights office, human resources office 

or legal office). Additional information regarding Federal 

antidiscrimination, whistleblower protection and retaliation laws 

can be found at the EEOC Web site--http://www.eeoc.gov and the OSC Web site--http://www.osc.gov.

Existing Rights Unchanged

    Pursuant to section 205 of the No FEAR Act, neither the Act nor 

this notice creates, expands or reduces any rights otherwise 

available to any employee, former employee or applicant under the 

laws of the United States, including the provisions of law specified 

in 5 U.S.C. 2302(d).

Sec.  724.203  Training obligations.

    (a) Each agency must develop a written plan to train all of its 

employees (including supervisors and managers) about the rights and 

remedies available under the Antidiscrimination Laws and Whistleblower 

Protection Laws applicable to them.

    (b) Each agency shall have the discretion to develop the 

instructional materials and method of its training plan. Each agency 

training plan shall describe:

    (1) The instructional materials and method of the training,

    (2) The training schedule, and

    (3) The means of documenting completion of training.

    (c) Each agency may contact EEOC and/or OSC for information and/or 

assistance regarding the agency's training program. Neither agency, 

however, shall have authority under this regulation to review or 

approve an agency's training plan.

    (d) Each agency is encouraged to implement its training as soon as 

possible, but required to complete the initial training under this 

subpart for all employees (including supervisors and managers) by 

December 17, 2006. Thereafter, each agency must train all employees on 

a training cycle of no longer than every 2 years.

    (e) After the initial training is completed, each agency must train 

new employees as part of its agency orientation program or other 

training program. Any agency that does not use a new employee 

orientation program for this purpose must train new employees within 90 

calendar days of the new employees' appointment.

[FR Doc. E6-11541 Filed 7-19-06; 8:45 am]

BILLING CODE 6325-39-P