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October 24, 2003 Devil's in the Details By Amelia Gruber
agruber@govexec.com Several minor housekeeping details are delaying the release of regulations implementing a federal anti-discrimination law, according to an Office of Personnel Management official. OPM aimed to publish guidelines for complying with the 2002 Notification and Federal Employee Anti-discrimination and Retaliation (No FEAR) Act in time for Oct. 1, the law’s effective date. But OPM is running several weeks behind schedule because officials there are still resolving several minor issues with the Justice and Treasury departments. Regulations are now expected next week, the OPM official said Thursday. The No FEAR Act, signed in May 2002, requires agencies to use their own funds, rather than a general Treasury fund, to settle discrimination and whistleblower lawsuits. But the law does not say what office within an agency is responsible for the payments, nor does it establish whether agencies will need to pay judgments on lawsuits filed prior to Oct. 1. In early July, the White House put OPM in charge of writing rules clearing up payment procedures. The agency is also responsible for issuing regulations on some of No FEAR’s reporting and data collection requirements. | |
No Fear Coaltion Meets With OPM
Marsha Coleman Adebayo and four other representatives of the No Fear Coalition met with Mark A. Robbins, General Counsel, U.S. Office of Personnel Management on September 9, 2003 to discuss the problems with the promulgation of the No Fear Act regulations. Two deputy counsels also participated in the meeting.
The White House is required to send the drafting order for the NO FEAR regulations to the appropriate agency in a timely fashion. However, the President's Order for OPM to draft the regulations was issued August 9th - approximately 7 weeks before the October 1st deadline. Before a law goes into effect, the Administrative Procedures Act ( APA) obligates the drafting agency to:
- announce the law in the federal register
- invite a one month period of public dialogue or comments and,
- provide adequate time for the government to respond to public comments , at least an additional 30 days.
None of the above procedures were followed. In fact, the "interim" regulations will be issued on the same day as the law goes into effect on October 1, 2003. In addition, a 7 week turnaround period is inadequate to allow an agency to draft the regulations as well as to take public comments into account and respond. Democracy works best when people are at the center of the process.
We have been told by OPM that the public comment period will follow the issuance of the " interim final regulations". However, according to the APA law, public comments should take place before regulations are in place, not afterwards. The No FEAR Coalition questions whether OPM will take public comments seriously after "interim final regulations" are in place. We have a number of grave concerns about both the process and the content of the regulations being drafted by OPM.
We requested the opportunity to review the draft regulation. That request was declined. The No FEAR Coalition also requested to participate on the drafting committee - as a part of civil society and the organization that spearheaded the fight for the No FEAR Act. That request was also declined. The No Fear Coalition also requested public hearings on the No FEAR Act regulations. Although this request was not declined during the meeting, there was clearly no enthusiasm for the idea. In fact, the OPM, during the meeting, asked us to "simply trust them".
The No FEAR law was won out of the hard work, sweat and sacrifice of federal government workers and their families. We must now work even harder to ensure its integrity and enforcement! We must not allow the No FEAR law to be cast aside and marginalized like the 1964 Civil Rights Act.
