[Federal Register Volume 75, Number 243 (Monday, December 20, 2010)]
[Rules and Regulations]
[Pages 79261-79264]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-31874]
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Rules and Regulations
Federal Register
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This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
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Federal Register / Vol. 75, No. 243 / Monday, December 20, 2010 /
Rules and Regulations
[[Page 79261]]
FEDERAL LABOR RELATIONS AUTHORITY
5 CFR Part 5901
Supplemental Standards of Ethical Conduct for Employees of the
Federal Labor Relations Authority
AGENCY: Federal Labor Relations Authority.
ACTION: Interim rule with request for comments.
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SUMMARY: The Federal Labor Relations Authority (FLRA), with the
concurrence of the Office of Government Ethics (OGE), intends to issue
an interim regulation for employees of the FLRA that supplements the
executive-branch-wide Standards of Ethical Conduct (Standards) issued
by OGE. The supplemental regulation: Establishes procedures for seeking
prior approval for outside employment; prohibits certain outside
employment; and requires employees who disqualify themselves from
participation in particular matters for ethical reasons to notify their
supervisors and the Designated Agency Ethics Official (DAEO) of that
disqualification.
DATES: This interim rule is effective January 19, 2011. Written
comments must be received on or before February 18, 2011.
ADDRESSES: Mail or deliver comments to the Office of the Solicitor,
Federal Labor Relations Authority, 1400 K Street, NW., Room 300,
Washington, DC 20424. Comments may also be e-mailed to
[email protected].
FOR FURTHER INFORMATION CONTACT: Rosa M. Koppel, Solicitor, at
[email protected], fax: (202) 343-1007.
SUPPLEMENTARY INFORMATION:
Background
On August 7, 1992, OGE published the Standards of Ethical Conduct
for Employees of the Executive Branch (Standards), which became
effective on February 3, 1993. The Standards, as corrected and amended,
are codified at 5 CFR part 2635. The Standards set uniform ethical
conduct standards applicable to all executive branch personnel.
Section 2635.105 of the Standards authorizes agencies, with the
concurrence of OGE, to publish agency-specific supplemental regulations
that are necessary to properly implement their respective ethics
programs. The FLRA, with OGE's concurrence, has determined that the
following interim supplemental rule is necessary for successful
implementation of its ethics program.
Analysis of the Regulations
Section 5901.101 General
Section 5901.101 explains that the regulations in part 5901 apply
to employees of the FLRA and supplement the OGE Standards. The section
also includes cross-references to other issuances applicable to FLRA
employees, including the regulations concerning executive branch
financial disclosure, financial interests, and employee
responsibilities and conduct, as well as implementing FLRA guidance and
procedures issued in accordance with the OGE Standards.
Section 5901.102 Prior Approval for Outside Employment
In accordance with 5 CFR 2635.803, the FLRA has determined it is
necessary for the purpose of administering its ethics program to
require its employees to obtain approval before engaging in permissible
outside employment or activities. This approval requirement will help
to ensure that potential ethical problems are resolved before employees
begin outside employment or activities that could involve a violation
of applicable statutes and standards of conduct.
Section 5901.102(a) provides that an FLRA employee, other than a
special Government employee (i.e., employees expected to work no more
than 130 days in any consecutive 365-day period), must obtain advance
written approval from the DAEO or the Alternate DAEO before engaging in
any outside employment, except to the extent that the FLRA DAEO or the
Alternate DAEO has issued an instruction or manual, pursuant to section
5901.102(e), exempting an activity or class of activities from this
requirement.
Section 5901.102(b) defines outside employment to cover any form of
non-Federal employment or business relationship involving the provision
of personal services. It includes writing when done under an
arrangement with another person or entity for production or publication
of the written product. It does not, however, include participation in
the activities of nonprofit charitable, religious, professional,
social, fraternal, educational, recreational, public service, or civic
organizations, unless such activities are for compensation other than
reimbursement of expenses, or the organization's activities are devoted
substantially to matters relating to the employee's official duties as
defined in 5 CFR 2635.807(a)(2)(i)(B) through (E) and the employee will
serve as officer or director of the organization, or the activities
will involve the provision of consultative or professional services.
Consultative services means the provision of personal services by an
employee, including the rendering of advice or consultation, which
requires advanced knowledge in a field of science or learning
customarily acquired by a course of specialized instruction and study
in an institution of higher education, hospital, or similar facility.
Professional services means the provision of personal services by an
employee, including the rendering of advice or consultation, which
involves application of the skills of a profession as defined in 5 CFR
2636.305(b)(1), or involves a fiduciary relationship as defined in 5
CFR 2636.305(b)(2).
Section 5901.102(c) sets out the procedures for requesting prior
approval to engage in outside employment initially, or within seven
calendar days of a significant change in the nature or scope of the
outside employment or the employee's official position within the FLRA.
It also sets out the standard to be applied by the DAEO or the
Alternate DAEO in acting on requests for prior approval of outside
employment as broadly defined by Sec. 5901.102(b). Approval shall be
granted only upon a determination that the outside employment is not
expected to involve conduct prohibited by statute or Federal
regulation, including 5 CFR part 2635.
Section 5901.102(d) prohibits FLRA employees other than special
Government employees from advising or
[[Page 79262]]
preparing an individual or group in any matter relating to labor
relations, or from engaging in any other outside employment that
conflicts with official Government duties or responsibilities.
However, consistent with Federal policy embodied in the exceptions
to the representation bans contained in 18 U.S.C. 203 (prohibition of
compensation for representational services in a matter in which the
United States is involved) and 205 (prohibition of representational
services, with or without compensation, in a matter in which the United
States is involved), nothing in the section precludes representation or
advice that is: (1) Rendered, with or without compensation, and with
the prior approval of the official responsible for the employee's
appointment, to specified relatives or to an estate for which an
employee serves as a fiduciary; or (2) provided, without compensation,
to an employee subject to disciplinary, loyalty, or other personnel
administration proceedings.
Section 5901.102(e) provides that the FLRA DAEO or the Alternate
DAEO may issue instructions or manual issuances governing the
submission of requests for approval of outside employment, which may
exempt categories of employment from the prior approval requirement of
this section based on a determination that employment within those
categories would generally be approved and is not likely to involve
conduct prohibited by statute or Federal regulation, including 5 CFR
part 2635. The instructions or issuances may include examples of
outside employment that are permissible or impermissible consistent
with this part and 5 CFR part 2635.
Section 5901.103(a) requires an FLRA employee who disqualifies
himself or herself from participation in a particular matter because of
a financial interest to provide written notice of disqualification to
his or her supervisor and the DAEO notwithstanding the guidance in 5
CFR 2635.402(c)(1) and (2). Under that guidance, disqualification can
be accomplished without prior written notice.
Section 5901.103(b) requires an FLRA employee who disqualifies
himself or herself from participation in a particular matter to ensure
impartiality to provide written notice of disqualification to his or
her supervisor and the DAEO notwithstanding the guidance in 5 CFR
2635.502(e)(1) and (2). Under that guidance, disqualification can be
accomplished without prior written notice.
Section 5901.103(c) requires an FLRA employee who disqualifies
himself or herself from participation in a particular matter affecting
prospective employers to provide written notice of disqualification to
his or her supervisor and the DAEO notwithstanding the guidance in 5
CFR 2635.604(b) and (c).
Section 5901.103(d) permits an FLRA employee to withdraw, in
writing, notice under paragraphs (a), (b), or (c) of this section upon
deciding that disqualification from participation in a particular
matter is no longer required.
Administrative Procedure Act
Pursuant to 5 U.S.C. 553(b), the FLRA finds good cause exists for
waiving the general notice of proposed rulemaking and opportunity for
public comment as to this proposed rule. Notice and comment before the
effective date are being waived because this rule concerns matters of
agency organization, practice and procedure. However, written comments,
which must be received by February 18, 2011 can be submitted regarding
this interim rule; any such comments will be considered before this
rule is adopted as final.
Executive Orders 12866 and 12988
Because this rule relates to FLRA personnel, it is exempt from the
provisions of Executive Orders Nos. 12866 and 12988.
Regulatory Flexibility Act Certification
Pursuant to section 605(b) of the Regulatory Flexibility Act, 5
U.S.C. 605(b), the FLRA has determined that this regulation, as
amended, will not have a significant economic impact on a substantial
number of small entities.
Paperwork Reduction Act of 1995
The Paperwork Reduction Act, 44 U.S.C. chapter 35, does not apply
because this rulemaking does not contain information collection
requirements subject to the approval of the Office of Management and
Budget.
Congressional Review Act
The FLRA has determined that this rule is not a rule as defined in
5 U.S.C. 804, and thus, does not require review by Congress.
List of Subjects in 5 CFR Part 5901
Conflict of interest, Government employees.
0
Accordingly, for the reasons set forth in the preamble, the FLRA, with
the concurrence of the OGE, is amending title 5 of the Code of Federal
Regulations by adding a new chapter XLIX consisting of part 5901, to
read as follows:
CHAPTER XLIX--FEDERAL LABOR RELATIONS AUTHORITY
PART 5901--SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES
OF THE FEDERAL LABOR RELATIONS AUTHORITY
Sec.
5901.101 General.
5901.102 Prior approval for outside employment.
5901.103 Procedure for accomplishing disqualification.
Authority: 5 U.S.C. 7105; 5 U.S.C. App. (Ethics in Government
Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as
modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5
CFR 2635.105, 2635.803.
Sec. 5901.101 General.
(a) Applicability. In accordance with 5 CFR 2635.105, and unless
provided elsewhere in this part, these regulations apply to all
employees of the Federal Labor Relations Authority (FLRA), including
employees of the Federal Service Impasses Panel and the Office of the
General Counsel, and supplement the Standards of Ethical Conduct for
Employees of the Executive Branch (Standards) contained in 5 CFR part
2635.
(b) Cross-references. In addition to 5 CFR part 2635 and this part,
FLRA employees are required to comply with implementing guidance and
procedures issued by the FLRA in accordance with 5 CFR 2635.105(c).
FLRA employees are also subject to the regulations concerning executive
branch financial disclosure contained in 5 CFR part 2634, the
regulations concerning executive branch financial interests contained
in 5 CFR part 2640, and the regulations concerning executive branch
employee responsibilities and conduct contained in 5 CFR part 735.
(c) Agency designees. The Designated Agency Ethics Official (DAEO)
and the Alternate Designated Agency Ethics Official (Alternate DAEO)
shall serve as the FLRA's designees to make determinations, grant
approvals, and take other actions under 5 CFR part 2635 and this part.
Sec. 5901.102 Prior approval for outside employment.
(a) General requirement. Any FLRA employee, excluding all special
Government employees (i.e., employees expected to work no more than 130
days in any 365-day period), shall obtain prior written approval from
the DAEO or the Alternate DAEO before engaging in any outside
employment, except to the extent that the DAEO or the Alternate DAEO
has issued an instruction or manual pursuant to
[[Page 79263]]
paragraph (e) of this section. Nonetheless, special Government
employees remain subject to other statutory and regulatory provisions
governing their outside activities, including 18 U.S.C. 203(c) and
205(c), as well as applicable provisions of 5 CFR part 2635.
(b) Definition of ``employment.'' (1) For the purposes of this
section, ``employment'' means any form of non-Federal employment or
business relationship involving the provision of personal services by
the employee for direct, indirect, or deferred compensation other than
reimbursement of actual and necessary expenses. It also includes,
irrespective of compensation, the following outside activities:
(i) Providing personal services as a consultant or professional,
including service as an expert witness or as an attorney;
(ii) Providing personal services to a for-profit entity as an
officer, director, employee, agent, attorney, consultant, contractor,
general partner, trustee, teacher, or speaker; and
(iii) Writing when done under an arrangement with another person
for production or publication of the written product.
(2) The definition does not include participation in the activities
of a nonprofit charitable, religious, professional, social, fraternal,
educational, recreational, public service or civic organization,
unless:
(i) The employee will receive compensation other than reimbursement
of expenses;
(ii) The organization's activities are devoted substantially to
matters relating to the employee's official duties as defined in 5 CFR
2635.807(a)(2)(i)(B) through (E) and the employee will serve as officer
or director of the organization; or
(iii) The activities will involve the provision of consultative or
professional services. Consultative services means the provision of
personal services by an employee, including the rendering of advice or
consultation, which requires advanced knowledge in a field of science
or learning customarily acquired by a course of specialized instruction
and study in an institution of higher education, hospital, or similar
facility. Professional services means the provision of personal
services by an employee, including the rendering of advice or
consultation, which involves application of the skills of a profession
as defined in 5 CFR 2636.305(b)(1) or involves a fiduciary relationship
as defined in 5 CFR 2636.305(b)(2).
(c) Procedure for requesting approval.
(1) Requests for approval of outside employment shall be sent to
either the DAEO or the Alternate DAEO through the employee's normal
supervisory channels and shall include the following information:
(i) The name of the person, group, or organization for which the
outside employment is proposed to be performed;
(ii) The nature of the service to be performed and the position's
title, if any;
(iii) The proposed hours of work (if regularly scheduled) and the
approximate dates of employment;
(iv) The employee's explanation as to whether the proposed outside
employment (including teaching, speaking, or writing) will implicate in
any way information obtained as a result of the employee's official
Federal position; and
(v) The employee's explanation that no Federal property, resources,
or facilities not available to the general public will be used in
connection with the outside employment.
(2) Upon a significant change in the nature or scope of the outside
employment or in the employee's official position within the FLRA, the
employee must, within seven calendar days of the change, submit a
revised request for approval.
(3) The DAEO or the Alternate DAEO shall grant approval only on a
determination that the outside employment is not expected to involve
conduct prohibited by statute or Federal regulation, including part
2635 of this title, or paragraph (d) of this section. The DAEO or the
Alternate DAEO will advise the employee, in writing, of the approval or
denial of the request for outside employment and will maintain a record
of the written request and determination.
(d) Prohibited outside employment.
(1) Employees shall not engage in:
(i) Rendering legal advice regarding, or preparing an individual or
group in any matter relating to, labor relations in either the private
or public sector, outside the employee's official duties. This
prohibition shall not apply to a special Government employee unless he
or she:
(A) Has participated personally and substantially as a Government
employee or special Government employee in the same matter; or
(B) Has served with the FLRA 60 days or more during the immediately
preceding period of 365 consecutive days; or
(C) Any other outside employment that conflicts with the employee's
official Government duties or responsibilities.
(2) Exceptions. Nothing in this paragraph (d) prevents an employee
from:
(i) Acting, with or without compensation, as an agent or attorney
for, or otherwise representing, the employee's parents, spouse, child,
or any other person for whom, or for any estate for which, the employee
is serving as guardian, executor, administrator, trustee, or other
personal fiduciary to the extent permitted by 18 U.S.C. 203(d) and
205(e), or from providing advice or counsel to such persons or estate;
or
(ii) Acting, without compensation, as an agent or attorney for, or
otherwise representing, any person who is the subject of disciplinary,
loyalty, or other personnel administration proceedings in connection
with those proceedings, to the extent permitted by 18 U.S.C. 205.
(e) DAEO's and Alternate DAEO's responsibilities. The FLRA DAEO or
Alternate DAEO may issue instructions or manual issuances governing the
submission of requests for approval of outside employment. The
instructions or manual issuances may exempt categories of employment
from the prior approval requirement of this section based on a
determination that employment within those categories of employment
would generally be approved and is not likely to involve conduct
prohibited by statute or Federal regulation, including 5 CFR part 2635.
The DAEO or Alternate DAEO may include in these instructions or
issuances examples of outside employment that are permissible or
impermissible consistent with this part and 5 CFR part 2635.
Sec. 5901.103 Procedure for accomplishing disqualification.
(a) Disqualifying financial interest. An FLRA employee who is
required, in accordance with 5 CFR 2635.402(c), to disqualify himself
or herself from participation in a particular matter to which he or she
has been assigned shall, notwithstanding the guidance in 5 CFR
2635.402(c)(1) and (2), provide written notice of disqualification to
his or her supervisor and the DAEO upon determining that he or she will
not participate in the matter.
(b) Disqualification to ensure impartiality. An FLRA employee who
is required, in accordance with 5 CFR 2635.502(e), to disqualify
himself or herself from participation in a particular matter involving
specific parties to which he has been assigned shall, notwithstanding
the guidance in 5 CFR 2635.502(e)(1) and (2), provide written
[[Page 79264]]
notice of disqualification to his or her supervisor and the DAEO upon
determining that he will not participate in the matter.
(c) Disqualification from matters affecting prospective employers.
An FLRA employee who is required, in accordance with 5 CFR 2635.604(a),
to disqualify himself or herself from participation in a particular
matter to which he has been assigned shall, notwithstanding the
guidance in 5 CFR 2635.604(b) and (c), provide written notice of
disqualification to his or her supervisor and the DAEO upon determining
that he will not participate in the matter.
(d) Withdrawal of notification. An FLRA employee may withdraw
written notice under paragraphs (a), (b), or (c) of this section upon
deciding that disqualification from participation in the matter is no
longer required. A withdrawal of notification shall be in writing and
provided to the employee's supervisor and the DAEO.
Dated: December 10, 2010.
Carol Waller Pope,
Chairman, Federal Labor Relations Authority.
Approved on this date: December 13, 2010.
Robert I. Cusick,
Director, Office of Government Ethics.
[FR Doc. 2010-31874 Filed 12-17-10; 8:45 am]
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