Supplemental Standards of Ethical Conduct for Employees of the Federal Labor Relations Authority, 79261-79264 [2010-31874]
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79261
Rules and Regulations
Federal Register
Vol. 75, No. 243
Monday, December 20, 2010
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 week.
FEDERAL LABOR RELATIONS
AUTHORITY
5 CFR Part 5901
Supplemental Standards of Ethical
Conduct for Employees of the Federal
Labor Relations Authority
Federal Labor Relations
Authority.
ACTION: Interim rule with request for
comments.
AGENCY:
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-branchwide 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
solmail@flra.gov.
FOR FURTHER INFORMATION CONTACT: Rosa
M. Koppel, Solicitor, at
rkoppel@flra.gov, fax: (202) 343–1007.
SUPPLEMENTARY INFORMATION:
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SUMMARY:
Background
On August 7, 1992, OGE published
the Standards of Ethical Conduct for
Employees of the Executive Branch
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(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 agencyspecific 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),
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exempting an activity or class of
activities from this requirement.
Section 5901.102(b) defines outside
employment to cover any form of nonFederal 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
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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
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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.
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:
■
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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.
§ 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.
§ 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
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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 nonFederal 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.
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(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
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79263
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.
§ 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
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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]
BILLING CODE 6727–01–P
DEPARTMENT OF HOMELAND
SECURITY
8 CFR Parts 103, 214, and 274a
[CIS No. 2758–08; DHS Docket No. USCIS–
2008–0035]
RIN 1615–AB75
E–2 Nonimmigrant Status for Aliens in
the Commonwealth of the Northern
Mariana Islands With Long-Term
Investor Status
U.S. Citizenship and
Immigration Services, DHS.
ACTION: Final rule.
AGENCY:
This final rule amends
Department of Homeland Security
(DHS) regulations governing E–2
nonimmigrant treaty investors to
establish procedures for classifying
long-term investors in the
Commonwealth of the Northern Mariana
Islands (CNMI) as E–2 nonimmigrants.
This final rule implements the CNMI
nonimmigrant investor visa provisions
of the Consolidated Natural Resources
Act of 2008 extending the immigration
laws of the United States to the CNMI.
DATES: This rule is effective January 19,
2011.
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SUMMARY:
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FOR FURTHER INFORMATION CONTACT:
Steven W. Viger, Office of Policy &
Strategy, U.S. Citizenship and
Immigration Services, Department of
Homeland Security, 20 Massachusetts
Avenue, NW., 2nd Floor, Washington,
DC 20529–2140, telephone (202) 272–
1470.
SUPPLEMENTARY INFORMATION:
I. Background
The Commonwealth of the Northern
Mariana Islands (CNMI) is a U.S.
territory located in the western Pacific
that has been subject to most U.S. laws
for many years. However, the CNMI has
administered its own immigration
system under the terms of its 1976
covenant with the United States. See A
Joint Resolution to Approve the
Covenant To Establish a Commonwealth
of the Northern Mariana Islands in
Political Union with the United States
of America (the Covenant Act), Public
Law 94–241, sec. 1, 90 Stat. 263, 48
U.S.C. 1801 note (1976). On May 8,
2008, President Bush signed into law
the Consolidated Natural Resources Act
of 2008 (CNRA). Public Law 110–229,
122 Stat. 754 (2008). Title VII of the
CNRA extends U.S. immigration laws to
the CNMI with transition provisions
unique to the CNMI. See 48 U.S.C. 1806;
48 U.S.C.A. 1806 note. The stated
purpose of the CNRA is to ensure
effective border control procedures, to
properly address national security and
homeland security concerns by
extending U.S. immigration law to the
CNMI (phasing-out the CNMI’s
nonresident contract worker program
while minimizing to the greatest extent
practicable the potential adverse
economic and fiscal effects of that
phase-out), to maximize the CNMI’s
potential for future economic and
business growth, and to assure workers
are protected from the potential for
abuse and exploitation. See sec. 701 of
the CNRA, 48 U.S.C.A. 1806 note.
Since 1978, the CNMI has admitted a
substantial number of foreign workers
from China, the Philippines, and other
countries through an immigration
system that provides a permit program
for foreigners entering the CNMI, such
as visitors, investors, and workers. In
fact, foreign workers under this system
represent a majority of the CNMI labor
force. Such workers outnumber U.S.
citizens and other local residents in
private sector employment in the CNMI.
Currently, the CNMI faces serious
economic challenges, including the total
collapse of the territory’s $1 billion a
year garment industry and a substantial
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decline in its tourism industry.1 The
result has been a decrease in the CNMI
government budget from $217,964,866
in 2005 to $132,565,000 in 2011.
Title VII of the CNRA was to become
effective approximately one year after
the date of enactment, subject to certain
transition provisions unique to the
CNMI. On March 31, 2009, DHS
announced that the Secretary of
Homeland Security, in her discretion
under the CNRA, had extended the
effective date of the transition program
from June 1, 2009 (the first day of the
first full month commencing one year
from the date of enactment of the
CNRA) to November 28, 2009. DHS
Press Release, ‘‘DHS Delays the
Transition to Full Application of U.S.
Immigration Laws in the
Commonwealth of the Northern Mariana
Islands’’ (Mar. 31, 2009), https://
www.dhs.gov/ynews/releases/
pr_1238533954343.shtm. The transition
period concludes on December 31, 2014.
The law also contains several CNMIspecific provisions affecting foreign
workers and investors during the
transition period. These temporary
provisions are intended to provide for
an orderly transition from the CNMI
permit system to the Immigration and
Nationality Act (INA) and to mitigate
potential harm to the CNMI economy
before these foreign workers and
investors are required to obtain U.S.
immigrant or nonimmigrant status. See
sec. 701 of the CNRA, 48 U.S.C.A. 1806
note; 48 U.S.C. 1806(c), (d).
Among the CNMI-specific provisions
applicable during the transition period
is a provision authorizing the Secretary
of Homeland Security to classify an
alien foreign investor in the CNMI as a
CNMI-only ‘‘E–2’’ nonimmigrant
investor under section 101(a)(15)(E)(ii)
of the INA, 8 U.S.C. 1101(a)(15)(E)(ii).
48 U.S.C. 1806(c). This status is
provided upon application of the alien,
notwithstanding the treaty requirements
otherwise applicable. Id. Eligible
investors are those who:
• Were admitted to the CNMI in longterm investor status under CNMI
immigration law before the transition
program effective date;
• Have continuously maintained
residence in the CNMI under long-term
investor status;
1 GAO, Commonwealth of the Northern Mariana
Islands: Pending Legislation Would Apply U.S.
Immigration Law to the CNMI with a Transition
Period, GAO–08–466 (Washington, DC: Mar. 2008);
GAO, U.S. Insular Areas: Economic, Fiscal, and
Accountability Challenges, GAO–07–119
(Washington, DC: Dec. 12, 2006); and GAO,
Commonwealth of the Northern Mariana Islands:
Serious Economic, Fiscal, and Accountability
Challenges, GAO–07–746T (Washington, DC: Apr.
19, 2007).
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]]>Agencies
[Federal Register Volume 75, Number 243 (Monday, December 20, 2010)]
[Rules and Regulations]
[Pages 79261-79264]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-31874]
========================================================================
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.
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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
solmail@flra.gov.
FOR FURTHER INFORMATION CONTACT: Rosa M. Koppel, Solicitor, at
rkoppel@flra.gov, 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]
BILLING CODE 6727-01-P
