[Federal Register Volume 62, Number 29 (Wednesday, February 12, 1997)]
[Rules and Regulations]
[Pages 6445-6448]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-3376]



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 Rules and Regulations
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  Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / 
Rules and Regulations  

[[Page 6445]]



NATIONAL LABOR RELATIONS BOARD

5 CFR Chapter LXI

29 CFR Part 100

RIN 3209-AA15


Supplemental Standards of Ethical Conduct for Employees of the 
National Labor Relations Board

AGENCY: National Labor Relations Board (NLRB).

ACTION: Interim rule with request for comments.

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SUMMARY: The National Labor Relations Board, with the concurrence of 
the Office of Government Ethics (OGE), is issuing an interim regulation 
for employees of the NLRB that supplements the executive branch-wide 
Standards of Ethical Conduct (Standards) issued by OGE. The 
supplemental regulation requires NLRB employees to obtain approval 
before engaging in outside employment, and requires employees to 
provide written notification of disqualification. The NLRB is also 
repealing provisions in its old standards of conduct regulations that 
required prior approval to engage in outside employment and prohibited 
the private practice of law, both of which have been superseded by the 
Standards.

DATES: This interim rule is effective on February 12, 1997. Comments 
must be received on or before April 14, 1997.

ADDRESSES: Send comments to: Gloria Joseph, Director of Administration 
(Designated Agency Ethics Official), National Labor Relations Board, 
Suite 7100, 1099 14th Street, NW., Washington, DC 20570-0001.

FOR FURTHER INFORMATION CONTACT:
Gloria Joseph, Director of Administration (Designated Agency Ethics 
Official); or Kym Heinzmann, Program Analyst, both at the National 
Labor Relations Board, Suite 7100, 1099 14th Street, NW., Washington, 
DC 20570-0001; telephone 202-273-3890.

SUPPLEMENTARY INFORMATION: 

I. Background

    On August 7, 1992, the Office of Government Ethics published the 
Standards of Ethical Conduct for Employees of the Executive Branch 
(Standards). See 57 FR 35006-35067, as corrected at 57 FR 48557, 57 FR 
52583, and 60 FR 51667, and amended at 61 FR 42965-42970 (as corrected 
at 61 FR 48733) and 61 FR 50689-50691, with additional grace period 
extensions at 59 FR 4779-4780, 60 FR 6390-6391, 60 FR 66857-66858, and 
61 FR 40950-40952. The Standards as codified at 5 CFR part 2635 and 
effective February 3, 1993, established uniform standards of ethical 
conduct that apply to all executive branch personnel.
    On July 21, 1994, the NLRB issued a final rule which removed all of 
the provisions of its Administrative Regulations at 29 CFR part 100 
that had been superseded by 5 CFR part 2635 or by OGE's executive 
branch financial disclosure regulations at 5 CFR part 2634. See 59 FR 
37157-37159, as corrected at 60 FR 22269-22270. Along with portions not 
related to 5 CFR parts 2634 and 2635, the NLRB preserved those 
provisions of its Administrative Regulations prohibiting the private 
practice of law and requiring prior approval to engage in outside 
employment which were temporarily preserved, respectively, by the notes 
following 5 CFR 2635.403(a) and 2635.803 (as extended by 59 FR 4779-
4780, and subsequently by 60 FR 6390-6391, 60 FR 66857-66858, and 61 FR 
40950-40952).
    With the concurrence of OGE, 5 CFR 2635.105 authorizes executive 
branch agencies to publish agency-specific supplemental regulations 
necessary to implement their ethics programs. The NLRB, with OGE's 
concurrence, has determined that the following interim supplemental 
regulations, to be codified in part 7101 of new chapter LXI of 5 CFR, 
are necessary to the successful implementation of NLRB's ethics 
program. By this rulemaking, the NLRB is also repealing the provisions 
of subpart A of its Administrative Regulations at 29 CFR part 100 that 
required prior approval to engage in outside employment and prohibited 
the private practice of law, the grace period extensions for which have 
expired.

II. Analysis of the Interim Regulations

Section 7101.101  General

    Section 7101.101(a) of 5 CFR explains that the supplemental 
regulations apply to employees of the National Labor Relations Board, 
including Board members, and supplement the Standards of Ethical 
Conduct for Employees of the Executive Branch contained in 5 CFR part 
2635. This paragraph further explains that Board Members and other 
employees are subject, in addition, to the executive branch financial 
disclosure regulations contained in 5 CFR part 2634.
    The head of each executive branch agency is required by 5 CFR 
2638.202(b) to appoint a designated agency ethics official (DAEO) and 
an alternate DAEO to carry out the duties specified in 5 CFR 2638.203. 
Section 7101.101(b) explains that the Director of Administration is the 
NLRB's DAEO and the Deputy Director of Administration is the alternate 
DAEO. Section 7101.101(c) explains that, except as provided in 
Sec. 7101.102 regarding prior approval of outside employment, the DAEO 
is the NLRB's agency designee for purposes of making determinations, 
granting approvals, and taking other actions required of agency 
designees under 5 CFR part 2635 and the supplemental regulations.

Section 7101.102  Prior Approval for Outside Employment

    The Standards, at 5 CFR 2635.803, specifically recognize that 
individual agencies may find it necessary or desirable to supplement 
the executive branch-wide regulations with a requirement for their 
employees to obtain approval before engaging in outside employment or 
activities. Under 29 CFR 100.102, now repealed, the NLRB required its 
employees to obtain approval prior to engaging in any type of outside 
employment, including certain occasional and private legal activities 
that were permitted under an exception to that regulation's prohibition 
against the outside practice of law. This approval requirement helped 
to ensure that potential ethical problems were resolved before 
employees undertook outside employment that could involve a

[[Page 6446]]

violation of applicable statutes or standards of conduct.
    In accordance with 5 CFR 2635.803, the NLRB has determined that it 
is desirable for the purpose of administering its ethics program to 
require employees to obtain approval before engaging in outside 
employment, including the practice of law, regardless of whether that 
employment is undertaken for compensation. Moreover, the NLRB has 
decided that the officials authorized to grant approval under its old 
prior approval regulation should continue to have such authority under 
its new rules. Thus, Sec. 7101.102(a)(1) requires written approval from 
the Board or General Counsel (depending on which independent side of 
the NLRB the employee is employed) to engage in the private practice of 
law, and Sec. 7101.102(a)(2) requires written approval from the 
employee's Chief Counsel, Regional Director, Branch Chief, or the 
equivalent for outside employment not involving the private practice of 
law.
    Section 7101.102(b) sets forth the procedures for requesting 
approval to engage in the private practice of law or other outside 
employment. This paragraph requires that requests for approval be 
submitted in writing in advance of undertaking the employment, and 
contain pertinent information regarding the anticipated employment, 
including the name of the employer, the nature of the legal activity or 
other work to be performed, the estimated duration of the employment 
and the amount of compensation to be received.
    Section 7101.102(c) sets forth the standard to be applied by the 
agency designee in acting on requests for prior approval of outside 
employment. Under that standard, approval shall be granted unless the 
agency designee determines that the outside employment is expected to 
involve conduct prohibited by statute or Federal regulation, including 
5 CFR part 2635. Section 7101.102(c) provides further that, before 
granting approval, the approving official may consult with the 
designated agency ethics official to ensure that the request for 
approval of outside employment meets the standard for approval.
    In Sec. 7101.102(d), ``employment'' is broadly defined for purposes 
of this section to cover any form of non-Federal employment or business 
relationship involving the provision of personal services, including 
writing when done under an arrangement with another person for 
production or publication of the written product. It does not, however, 
include participation in the activities of nonprofit charitable, 
religious, professional, social, fraternal and similar organizations, 
unless such activities involve the provision of professional services 
or advice and are for compensation other than the reimbursement of 
expenses.

Section 7101.103  Standard for Accomplishing Disqualification; 
Disqualifying Financial Interests

    Under 5 CFR 2635.402(c), it is the employee's obligation to 
disqualify from participation in matters affecting his own financial 
interests or those of the persons whose interests are imputed to him 
under 18 U.S.C. 208(a). Section 2635.402(c) generally permits 
disqualifying to be accomplished simply by not participating in the 
matter, although Sec. 2635.402(c)(1) provides that an employee who 
becomes aware of the need to disqualify himself from participation in a 
particular matter to which he has been assigned should notify the 
person responsible for his assignment.
    Under old 29 CFR 100.116(c), now repealed, NLRB employees were 
required to complete and submit Form NLRB-4573, ``Request for Financial 
Interest Determination,'' when they were assigned a case, proceeding, 
or other matter in which they had a financial interest. Based upon the 
information provided, a determination was made as to whether the 
employee could participate in the case or would have to be 
disqualified.
    The NLRB has determined that it is necessary for the efficient 
management of the agency's relatively small workforce, and to the 
success of its ethics program, to require employees to provide written 
notice of their disqualification under 5 CFR 2635.401(c). Therefore, 
Sec. 7101.103 requires such written notice. This requirement is similar 
to the NLRB's old requirement for employees to seek a financial 
interest determination when they were assigned a case, proceeding, or 
other matter in which they had a financial interest. However, the new 
provision does not require the written notice to be provided on a 
particular form.
    The NLRB recognizes the problems noted by OGE in adopting a 
requirement for written notice of disqualification on an executive 
branch-wide basis. See 57 FR 35024. It is not the NLRB's purpose to 
impose an overly technical requirement that would result in 
disciplining an employee for failure to provide written notice by some 
arbitrary deadline. Thus, the notice requirement contained in 
Sec. 7101.103 is phrased to give an employee flexibility in determining 
precisely when he or she will give notice of disqualification from a 
matter to which he or she has been assigned. Notice is to be given when 
the employee determines that he or she will not participate in the 
matter. In no way does this notice requirement affect the employee's 
primary obligation not to participate in the matter.

III. Repeal of the NLRB's Old Administrative Regulations Regarding 
Employee Responsibilities and Conduct

    Because the NLRB's regulations prohibiting the private practice of 
law and requiring prior approval for outside employment, at 29 CFR 
100.102, were superseded upon expiration of the last grace period 
granted by OGE, the NLRB is removing that section in its entirety at 
this time. The NLRB is also revising 29 CFR 100.101, which now cross-
references 5 CFR parts 735, 2634, and 2635, to provide an additional 
cross-reference to the new supplemental regulations at 5 CFR part 7101.

IV. Matters of Regulatory Procedure

Administrative Procedures Act

    The NLRB has found good cause, pursuant to 5 U.S.C 553(b) and 
(d)(3) for waiving, as unnecessary and contrary to the public interest, 
the general notice of proposed rulemaking and the 30-day delay in 
effectiveness as to these interim rules. It is important to a smooth 
transition from the NLRB's prior ethics rules to the new executive 
branch-wide Standards that these rulemaking actions take place as soon 
as possible. Furthermore, this rulemaking is related to NLRB 
organization, procedure, and practice. Nonetheless, this is an interim 
rulemaking, with provision for a 60 day public comment period. The NLRB 
will review all comments received during the comment period and will 
consider any modifications that appear appropriate in adopting these 
rules as final, with the concurrence of OGE.

Executive Order 12866

    In promulgating these regulations, the NLRB has adhered to the 
regulatory philosophy and the applicable principles of regulation set 
forth in section 1 of Executive Order 12866, Regulatory Planning and 
Review. These regulations have not been reviewed by the Office of 
Management and Budget under the Executive order, as they deal with 
agency organization, management, and personnel matters, and not in any 
event, deemed ``significant'' thereunder.

Regulatory Flexibility Act

    The NLRB has determined under the Regulatory Flexibility Act (5 
U.S.C. chapter 6) that these regulations will not

[[Page 6447]]

have a significant economic impact on a substantial number of small 
entities because they affect only NLRB employees.

Paperwork Reduction Act

    The NLRB has determined that the Paperwork Reduction Act (44 U.S.C. 
chapter 35) does not apply because these interim regulations do not 
contain any information collection requirements that require the 
approval of the Office of Management and Budget.

List of Subjects

5 CFR Part 7101

    Conflict of interests, Government employees.

29 CFR Part 100

    Employee responsibilities and conduct, Government employees.

    Dated: January 24, 1997.

    By direction of the Board.
John J. Toner,
Executive Secretary, National Labor Relations Board.

    Approved: January 29, 1997.
Stephen D. Potts,
Director, Office of Government Ethics.

    For the reasons set forth in the preamble, the National Labor 
Relations Board, with the concurrence of the Office of Government 
Ethics, is amending title 5 and Chapter I of subtitle B or title 29 of 
the Code of Federal Regulations as follows:

TITLE 5--[AMENDED]

    1. A new chapter LXI, consisting of part 7101, is added to title 5 
of the Code of Federal Regulations to read as follows:

CHAPTER LXI--NATIONAL LABOR RELATIONS BOARD

PART 7101--SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES 
OF THE NATIONAL LABOR RELATIONS BOARD

Sec.
7101.101  General.
7101.102  Prior approval for outside employment.
7101.103  Standard for accomplishing disqualification, disqualifying 
financial interests.

    Authority: 5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government 
Act of 1978); 29 U.S.C. 141, 156; E.O. 12674, 54 FR 15159, 3 CFR, 
1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42457, 3 CFR, 
1990 Comp., p. 306; 5 CFR 2635.105, 2635.402(c), 2635.803, and 
2638.202(b).


Sec. 7101.101  General.

    (a) Purpose. In accordance with 5 CFR 2635.105, the regulations in 
this part apply to Board members and other employees of the National 
Labor Relations Board (NLRB) and supplement the Standards of Ethical 
Conduct for Employees of the Executive Branch at 5 CFR 2635. Board 
Members and other employees are subject, in addition, to the executive 
branch financial disclosure regulations contained in 5 CFR part 2634.
    (b) Ethics program responsibilities--(1) Designated Agency Ethics 
Official. The Director, Division of Administration, is designated under 
5 CFR 2638.202(b) as the NLRB's Designated Agency Ethics Official with 
responsibilities that include:
    (i) Acting as liaison with the Office of Government Ethics with 
regard to all aspects of the NLRB's ethics program;
    (ii) Coordinating the NLRB's counseling and advisory service under 
5 CFR 2635.107;
    (iii) Collecting, reviewing, evaluating and, where applicable, 
making publicly available the public financial disclosure reports filed 
by NLRB officers and employees;
    (iv) Upon request, advising NLRB officials responsible for 
reviewing the Confidential Financial Disclosure Reports filed by 
designated NLRB employees; and
    (v) Coordinating and maintaining the NLRB's ethics education 
program.
    (2) Alternate Designated Agency Ethics Official. The Deputy 
Director of Administration is designated under 5 CFR 2638.202(b) as the 
NLRB's Alternate Designated Agency Ethics Official.
    (c) Agency designees. Except as provided in Sec. 7101.102, the 
Designated Agency Ethics Official shall serve as the NLRB's designee 
for purposes of making the determinations, granting the approvals, and 
taking other actions under 5 CFR part 2635 and this part.


Sec. 7101.102  Prior approval for outside employment.

    (a) General Requirement. Before engaging in compensated or 
uncompensated outside employment, an employee must obtain written 
approval:
    (1) From the Board of General Counsel to engage in the private 
practice of law; or
    (2) From the employee's Chief Counsel, Regional Director, Branch 
Chief, or the equivalent for outside employment not involving the 
practice of law.
    (b) Procedure for requesting approval (1) The approval required by 
paragraph (a) of this section shall be requested in writing in advance 
of engaging in outside employment, including the outside practice of 
law.
    (2) The request for approval to engage in the outside practice of 
law or in other outside employment shall be submitted to the 
appropriate official as set forth in paragraph (a) of this section, and 
shall set forth, at a minimum:
    (i) The name of the employer;
    (ii) The nature of the legal activity or other work to be 
performed;
    (iii) The estimated duration; and
    (iv) The amount of compensation to be received.
    (3) Upon a significant change in the nature of scope of the outside 
employment or in the employee's official position, the employee shall 
submit a revised request for approval.
    (c) Standard for approval. (1) Approval shall be granted unless the 
agency designee determines that the outside employment is expected to 
involve conduct prohibited by statute or Federal regulation, including 
5 CFR part 2635.
    (2) The agency designee may consult with the Designated Agency 
Ethics Official to ensure that the request for outside employment meets 
the standard in paragraph (c)(1) of this section.
    (d) Definition of employment. For purposes of this section, 
``employment'' means any form of non-Federal employment or business 
relationship involving the provision of personal services by the 
employee. It includes, but is not limited to personal services as an 
officer, director, employee, agent, attorney, consultant, contractor, 
general partner, trustee, teacher, or speaker. It includes writing when 
done under an arrangement with another person for production or 
publication of the written product. It does not, however, include 
participation in the activities of a nonprofit charitable, religious, 
professional, social, fraternal, educational, recreational, public 
service or civic organization, unless such activities involve the 
provision of professional services or advice or are for compensation 
other than reimbursement of expenses.


Sec. 7101.103  Standard for accomplishing disqualification; 
disqualifying financial interest.

    An NLRB employee who is required, in accordance with 5 CFR 
2635.402(c), to disqualify himself from participation in a particular 
matter to which he 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 upon determining that he or 
she will not participate in the matter.

[[Page 6448]]

TITLE 29--[AMENDED]

SUBTITLE B--REGULATIONS RELATING TO LABOR

CHAPTER I--NATIONAL LABOR RELATIONS BOARD

PART 100--ADMINISTRATIVE REGULATIONS

    2. The authority citation for part 100 is revised to read as 
follows:

    Authority: Sec. 6, National Labor Relations Act, as amended (29 
U.S.C. 141, 156).

Subpart A is also issued under 5 U.S.C. 7301.

Subpart B is also issued under the Inspector General Act of 1978, as 
amended by the Inspector General Act Amendments of 1988, 5 U.S.C. app. 
3; 42 U.S.C. 2000e-16(a).

    Subpart D is also issued under 28 U.S.C. 2672; 28 CFR part 14.
    Subpart E is also issued under 29 U.S.C. 794.
    3. Subpart A is revised to read as follows:

Subpart A--Employee Responsibilities and Conduct


Sec. 100.101  Cross-reference to financial disclosure requirements and 
other conduct rules.

    Employees of the National Labor Relations Board (NLRB) should refer 
to the executive branch-wide Standards of Ethical Conduct at 5 CFR part 
2635; the NLRB's regulations at 5 CFR part 7101, which supplement the 
executive branch-wide standards; the employee responsibilities and 
conduct regulations at 5 CFR part 735; and the executive branch 
financial disclosure regulations at 5 CFR part 2634.

[FR Doc. 97-3376 Filed 2-11-97; 8:45 am]
BILLING CODE 7545-01-M