[Federal Register Volume 63, Number 10 (Thursday, January 15, 1998)]
[Rules and Regulations]
[Pages 2305-2306]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-974]



 ========================================================================
 Rules and Regulations
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
 
 The Code of Federal Regulations is sold by the Superintendent of Documents. 
 Prices of new books are listed in the first FEDERAL REGISTER issue of each 
 week.
 
 ========================================================================
 

  Federal Register / Vol. 63, No. 10 / Thursday, January 15, 1998 / 
Rules and Regulations  

[[Page 2305]]


=======================================================================
-----------------------------------------------------------------------

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 251

RIN 3206-AH72


Agency Relationships With Organizations Representing Federal 
Employees and Other Organizations

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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

SUMMARY: The Office of Personnel Management (OPM) is issuing final 
regulations governing agency relations with managerial, supervisory, 
professional, and other organizations that are not labor organizations. 
These regulations will permit greater employee representation of 
employee organizations under certain circumstances.

EFFECTIVE DATE: January 15, 1998.

FOR FURTHER INFORMATION CONTACT: Lorraine Lewis, General Counsel, U.S. 
Office of Personnel Management, Office of the General Counsel, 1900 E 
Street, NW., Washington, DC 20415-0001, Telephone: (202) 606-1700, FAX: 
(202) 606-2609.

SUPPLEMENTARY INFORMATION:

I. Background

    OPM published in the Federal Register on April 22, 1997, at 62 FR 
19525, proposed regulations on agency relationships with organizations 
representing Federal employees and other organizations. These 
regulations reflected a provision of the Federal Employee 
Representation Improvement Act of 1996 which modified the 18 U.S.C. 
Sec. 205 restrictions to permit employee representation of employee 
organizations under certain circumstances. The Federal Employee 
Representation Improvement Act of 1996; Pub. L. 104-177, 110 Stat. 
1563, August 6, 1996.
    As amended, 18 U.S.C. Section 205(d)(1)(B) allows a Federal officer 
or employee, if not inconsistent with the performance of his or her 
duties, to represent without compensation a non-profit cooperative, 
voluntary, professional, recreational or similar organization if a 
majority of the organization's or group's members are Government 
officers or employees or their spouses or dependent children.
    Subsection (d)(2) of amended Section 205 sets forth the 
circumstances in which a Federal employee may not act as agent or 
attorney representing an employee organization. There are three 
situations in which an employee is prohibited from representing the 
views of the organization or group. The first situation prevents 
employee representation when the subject of the representation is a 
claim against the United States. 18 U.S.C. Sec. 205(d)(2)(A). The 
second situation prohibits the prescribed action during a judicial or 
administrative proceeding where the organization or group is a party. 
18 U.S.C. Sec. 205(d)(2)(B). The third situation expressly disallows 
Federal employees from requesting grants, contracts or Federal funds on 
behalf of an employee organization. 18 U.S.C. Sec. 205(d)(2)(C). 
Accordingly, paragraph (f) of the Part 251 regulation is being revised 
to reflect the new law.
    The proposed rule requested comments and prescribed a 60-day 
comment period. OPM received four comments on the proposed rule, three 
by public interest organizations and one by a Federal department. The 
four comments were timely. OPM has carefully considered the points made 
in the comments and reviewed the entire Part 251 regulation and 
relevant portions of the Federal Employee Representation Improvement 
Act of 1996. OPM has decided to make no change to the proposed rule.

II. Summary of Comments

    The three public interest organizations that commented on the 
proposed rule expressed concern that as currently written it may tend 
to discourage Federal employees from exercising representation rights 
they may have. It is suggested that the language of the proposed rule 
is unnecessarily negative in tone and gives the appearance that its 
primary purpose is to caution Federal employees against serving as 
representatives for organizations other than labor organizations. The 
Federal department that commented on the proposed rule asserts that the 
third situation set out in the supplementary information portion of the 
proposed rule in which an employee is still prohibited from 
representing the views of the organization or group is not altogether 
clear.

III. Analysis of Comments

    The three public interest organizations that commented on the 
proposed rule were concerned that the language of the rule is 
unnecessarily negative in tone and could have the effect of 
discouraging Federal employees from serving as representatives for 
organizations under the terms and conditions of the proposed rule. It 
is suggested that the regulation focuses on the remaining restrictions 
in 18 U.S.C. Sec. 205 and gives the appearance that its primary purpose 
is to caution Federal employees against serving as representatives for 
organizations. When the 5 CFR part 251 regulations were first 
published, they provided for the new statutory exception and contained 
a reference in 5 CFR 251.101(f) to the 18 U.S.C. Sec. 205 restrictions 
which remained. 60 FR 51371-51373, October 2, 1995. The intent was to 
caution Federal employees and make them aware that this authority 
exists and restricts them under certain circumstances from representing 
organizations before Federal agencies. In the Supplementary Information 
to the final rule OPM responded to a commenter who took issue with the 
inclusion of subpart (f):

    OPM is bound by the Department of Justice's interpretation of 18 
U.S.C. Sec. 205 and it would be improper for the regulation to 
authorize employees to represent non-labor organizations as part of 
their official duties. Indeed, it was out of concern that some 
officials might misconstrue these regulations as authorizing 
dealings with employee representatives of non-labor organizations 
without regard to 18 U.S.C. Sec. 205 as interpreted by the 
Department of Justice that OPM included the cautionary note of 
section 251.101(f). Should a law be passed making the cautionary 
note unnecessary, OPM will modify its regulations. 61 FR 32914, June 
26, 1996.

    The Federal Employee Representation Improvement Act of 1996; Public 
Law

[[Page 2306]]

104-177, 110 Stat. 1563, August 6, 1996, modifying the 18 U.S.C. 
Sec. 205 restrictions to permit employee representation of employee 
organizations under certain circumstances, prompted OPM to modify its 
final rule regarding 5 CFR part 251.
    OPM, in its proposed rule, captures the essence of that relaxed 
restriction, while noting that subsection (d)(2) of amended Section 205 
sets forth the circumstances in which a Federal employee may not act as 
agent or attorney representing an employee organization. It would be 
misleading to exclude the restrictions the law maintains, especially 
since violations of the Section 205 restrictions subject individual 
employees to the civil and/or criminal penalties set forth in 18 U.S.C. 
Sec. 216.
    The Federal department commented on the third restriction set forth 
in the amendment and reflected in the supplementary information portion 
of the proposed rule. The commenter suggested that the third situation 
which disallows Federal employees from requesting grants, contracts or 
Federal funds on behalf of an employee organization is not clear in the 
supplementary information portion of the proposed rule. It is suggested 
that the language does not make clear whether an employee could 
negotiate with a Federal agency on behalf of an organization over the 
terms of a contract. The commenter points out that a review of the law 
and the legislative history make it clear that the restriction is meant 
to apply only when the contract involves the expenditure of Federal 
funds. For example, an employee could represent a day-care center in 
the day-care center's rent, but the employee could not represent the 
center in the center's application for a grant from the U.S. Department 
of Education.
    We agree with the commenter that the restriction on representation 
remains for any matter that ``involves a grant, contract, or other 
agreement (including a request for any such grant, contract, or 
agreement) providing for the disbursement of Federal funds to the 
organization or group.'' Federal Employee Representation Improvement 
Act of 1996, Public Law 104-177, Sec. 2(d)(2)(C). The relevant 
legislative history states: ``[d]ue to limited Federal resources, 
employee organizations should be on the same footing as other[s] 
looking for Federal funds.'' House Report No. 104-230, August 4, 1995. 
OPM believes, however, that the language in the supplementary 
information of the proposed regulations is clear and does not need 
modification.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic 
impact on a substantial number of small entities because it will only 
affect Federal Government employees and non-labor organizations 
representing such employees.

Executive Order 12866, Regulatory Review

    This rule has been reviewed by the Office of Management and Budget 
in accordance with Executive Order 12866.

List of Subjects in 5 CFR Part 251

    Government employees.

Office of Personnel Management.
Janice R. Lachance,
Director.

    Accordingly, OPM is amending 5 CFR part 251 as follows:

PART 251--AGENCY RELATIONSHIPS WITH ORGANIZATIONS REPRESENTING 
FEDERAL EMPLOYEES AND OTHER ORGANIZATIONS

    1. The authority citation for part 251 continues to read as 
follows:

    Authority: 5 U.S.C. Sec. 1104; 5 U.S.C. Chap 7; 5 U.S.C. 
Sec. 7135; 5 U.S.C. Sec. 7301; E.O. 11491.

    2. In Sec. 251.101, paragraph (f) is revised to read as follows:


Sec. 251.101  Introduction

* * * * *
    (f) Federal employees, including management officials and 
supervisors, may communicate with any Federal agency, officer, or other 
Federal entity on the employee's own behalf. However, Federal employees 
should be aware that 18 U.S.C. 205, in pertinent part, restricts 
Federal employees from acting, other than in the proper discharge of 
their official duties, as agents or attorneys for any person or 
organization other than a labor organization, before any Federal agency 
or other Federal entity in connection with any matter in which the 
United States is a party or has a direct and substantial interest. An 
exception to the prohibition found in 18 U.S.C. 205 permits Federal 
employees to represent certain nonprofit organizations before the 
Government except in connection with specified matters. Agency 
officials and employees are therefore advised to consult with their 
designated agency ethics officials for guidance regarding any conflicts 
of interest that may arise.

[FR Doc. 98-974 Filed 1-14-98; 8:45 am]
BILLING CODE 6325-01-P