[Federal Register Volume 63, Number 63 (Thursday, April 2, 1998)]
[Proposed Rules]
[Pages 16141-16142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-8649]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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  Federal Register / Vol. 63, No. 63 / Thursday, April 2, 1998 / 
Proposed Rules  

[[Page 16141]]


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FEDERAL LABOR RELATIONS AUTHORITY

5 CFR Chapter XIV


Notice of Opportunity To Submit Comments on Issues Arising Under 
the Presidential and Executive Accountability Act

AGENCY: Federal Labor Relations Authority

ACTION: Review of regulations, request for comment.

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SUMMARY: The Federal Labor Relations Authority (FLRA) is providing an 
opportunity for all interested persons to comment on issues that have 
arisen as the agency carries out its responsibilities under the 
Presidential and Executive Office Accountability Act. The FLRA was 
directed to issue regulations extending coverage of Chapter 71 of Title 
5, United States Code, to the Executive Office of the President no 
later than October 1, 1998.

DATES: Responses submitted in response to this notice will be 
considered if received by mail or personal delivery in the Authority's 
Office of Case Control by 5 p.m. on or before April 17, 1998.

ADDRESSES: Mail or deliver written comments to the Office of Case 
Control, Federal Labor Relations Authority, 607 14th Street, NW., Room 
415, Washington, DC 20424-0001.

FOR FURTHER INFORMATION CONTACT: Ms. Kim Weaver, Director of External 
Affairs, at the address listed above or by telephone: (202) 482-6500.

SUPPLEMENTARY INFORMATION:

1. Background

    The Presidential and Executive Office Accountability Act (Pub. L. 
104-331) (the Act) was enacted on October 26, 1996, extending the 
coverage of eleven civil rights, labor and employment laws to the 
Executive Office of the President. The Act applies Chapter 71 of Title 
5, the Federal Service Labor-Management Relations Statute (the 
Statute), to the Executive Office of the President and requires the 
FLRA to promulgate regulations to implement the Act, no later than 
October 1, 1998. Pursuant to legislative history urging the FLRA to 
engage in ``extensive rulemaking,'' the FLRA is requesting comments on 
the issues raised below.
    The Executive Office of the President (EOP) is comprised of 
thirteen separate offices: the White House Office, the Executive 
Residence at the White House, the Office of the Vice President, the 
Official Residence of the Vice President, the Office of Policy 
Development, the Council of Economic Advisors, the Council on 
Environmental Quality and Office of Environmental Quality, the National 
Security Council, the Office of Administration, the Office of 
Management and Budget, the Office of National Drug Control Policy, the 
Office of Science and Technology, and the Office of the United States 
Trade Representative.
    According to House Report No. 104-820 (110 Stat. 4375), there are 
roughly 1,700 employees working in the EOP. Less than one-third of 
these are Title 3 employees, who traditionally serve at the pleasure of 
the President. The Title 3 employees work in the White House Office, 
the Office of the Vice President, the Office of Policy Development, the 
Executive Residence, and the Official Residence of the Vice President. 
The remaining 1,150 employees are covered by Title 5, and are civil 
service employees serving under the same laws and regulations as other 
career executive branch employees. The Title 5 employees work in the 
other eight EOP offices, which were covered by Chapter 71 of Title 5 
prior to the enactment of the Act.
    2. Requirements Placed on the FLRA
    The Act contains a general requirement that the FLRA issue 
regulations for the EOP that are the same as the substantive 
regulations promulgated by the FLRA for all other agencies under its 
jurisdiction. This general requirement applies differently, however, 
depending on the Act's classification of the EOP offices.
    With respect to the first group of five designated offices (the 
Council on Environmental Quality, the Office of Administration, the 
Office of Science and Technology Policy, the Office of the U.S. Trade 
Representative, and the Official Residence of the Vice President), the 
Act requires that the FLRA's regulations be the same as the substantive 
regulations that apply to other agencies, except to the extent that the 
Authority determines for good cause, or to avoid a conflict of interest 
(COI) or an appearance of a conflict of interest, that a modification 
is required. For the remaining eight EOP offices, the Act imposes a 
third requirement: the FLRA must also consider the impact of its 
regulations on the President's or Vice President's constitutional 
responsibilities. This compels the FLRA to review its regulations to 
determine whether there are constitutional issues that require the FLRA 
to modify its regulations for four of the eight Title 5 offices. See 
Table 1-1.

                                                   Table. 1-1                                                   
----------------------------------------------------------------------------------------------------------------
                                                                                         FLRA must review COI & 
                                                                Previously covered by        constitutional     
     Office [section 401(a)(4)]           Type of employee            chapter 71            responsibilities    
                                                                                            [section 431(d)]    
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White House Office..................  Title 3................  No.....................  Yes.                    
Office of the Vice President........  Title 3................  No.....................  Yes.                    
Office of Policy Development........  Title 3................  No.....................  Yes.                    
Executive Residence at the White      Title 3................  No.....................  Yes.                    
 House.                                                                                                         
Official Residence of the Vice        Title 3/Title 10.......  No.....................  No.                     
 President.                                                                                                     
Council of Economic Advisers........  Title 5................  Yes....................  Yes.                    
Council on Environmental Quality....  Title 5................  Yes....................  No.                     

[[Page 16142]]

                                                                                                                
National Security Council...........  Title 5................  Yes....................  Yes.                    
Office of Administration............  Title 3/Title 5........  Yes (Title 5 employees)  No.                     
Office of Management and Budget.....  Title 5................  Yes....................  Yes.                    
Office of National Drug Control       Title 5................  Yes....................  Yes.                    
 Policy.                                                                                                        
Office of Science and Technology      Title 5................  Yes....................  No.                     
 Policy.                                                                                                        
Office of the US Trade                Title 5................  Yes....................  No.                     
 Representative.                                                                                                
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3. Issues on Which Comments Are Requested

    The FLRA is reviewing its current regulations to determine whether 
any modifications are necessary. As the review process continues, the 
FLRA is requesting comment on the following issues:
1. Appropriateness of Bargaining Units and Eligibility
    Section 7112 of the Statute gives the FLRA the authority to 
determine the appropriateness of any unit. Section 7112(b) discusses 
the types of employees who shall not be included in an appropriate 
unit. Section 431(d)(1)(B) of the Act states that the Authority ``shall 
exclude [employees] from coverage'' if there are any conflict of 
interest or constitutional issues. Given the provision of section 7112, 
the implementing regulations found at 5 CFR 2421.14, as well as the 
requirements of section 431(d)(1)(B), are there factors that should be 
included in the FLRA's regulations to address the appropriateness of 
units in the EOP?
    2. Remedies
    Section 431(a) of the Act prohibits the FLRA from ordering 
reinstatement as a remedy. Sections 7118(a)(7) and 7105(a)(2)(I) of the 
Statute describe the remedial powers of the FLRA. Are there remedial 
powers of the FLRA, in addition to reinstatement, that should be 
examined in light of the Act's requirements?
3. Security Issues
    The FLRA currently has the ability to investigate, prosecute, and 
adjudicate cases in which non-public information could be at issue or 
discussed. In addition to the precautions already taken in those cases, 
are there additional security concerns that the FLRA should consider in 
the drafting of its regulations?
4. Conflict of interest/Appearance of Conflict of Interest
    Section 431(d)(1)(B)(i) of the Act requires the FLRA to exclude 
certain covered employees if the FLRA determines such an exclusion is 
required due to a conflict of interest or an appearance of a conflict 
of interest. Do the following examples create a conflict or an 
appearance of a conflict: (1) the FLRA Chair, General Counsel, and the 
members of the Federal Service Impasses Panel serve at the pleasure of 
the President, and therefore, are removable at will; or (2) that the 
Office of Management and Budget controls the FLRA's budget and the FLRA 
does not have so-called ``by-pass'' authority to allow it to request 
additional funds from the Congress? Are there other issues that the 
FLRA should consider in drafting its regulations?
5. Constitutional Issues
    Section 431(d)(1)(B)(ii) of the Act requires the FLRA to exclude 
certain covered employees if the FLRA determines such an exclusion is 
required due to the President's or Vice President's constitutional 
responsibilities. An initial review by the FLRA of the Constitution and 
case law outlining the President and Vice President's constitutional 
responsibilities did not yield any constitutional issues that would 
require modification of current FLRA regulations. Are there any 
constitutional issues that should be considered by the FLRA in drafting 
the regulations?
6. Political Affiliation
    Section 435(g) of the Act states that it:

shall not be a violation of any provision of this chapter to 
consider, or make any employment decision based on, the party 
affiliation, or political compatibility with the employing office * 
* *.

Is there anything in the Statute or FLRA's current regulations that 
will conflict with section 435(g)?
7. Head of an Agency
    Sections 7102(1), 7114(c)(1)--(3), and 7117(c)(3) of the Statute 
reference actions by the ``head of an agency.'' For the purposes of the 
EOP operations, who should be considered the ``head of an agency'' for 
each EOP office?
Solly Thomas,
Executive Director.
[FR Doc. 98-8649 Filed 4-1-98; 8:45 am]
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