[Federal Register Volume 68, Number 172 (Friday, September 5, 2003)]
[Rules and Regulations]
[Pages 52682-52684]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-22654]
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NATIONAL FOUNDATION ON THE ARTS AND THE HUMANITIES
5 CFR Part 6601
RINs 3136-AA21, 3209-AA15
Supplemental Standards of Ethical Conduct for Employees of the
National Endowment for the Humanities
AGENCY: National Endowment for the Humanities (NEH).
ACTION: Interim final rule, with request for comments.
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[[Page 52683]]
SUMMARY: The National Endowment for the Humanities, with the
concurrence of the Office of Government Ethics (OGE), is issuing
regulations for officers and employees of the NEH that supplement the
Standards of Ethics Conduct for Employees of the Executive Branch
issued by OGE. The supplemental regulations require NEH employees,
other than special Government employees, to obtain prior written
approval to engage in certain outside employment or related activities.
DATES: These regulations take effect on September 5, 2003. Comments are
invited and must be received on or before October 6, 2003.
ADDRESSES: Send comments to Heather Gottry, Assistant General Counsel,
National Endowment for the Humanities, Room 529, 1100 Pennsylvania
Avenue, NW., Washington, DC 20506.
FOR FURTHER INFORMATION CONTACT: Heather Gottry, Assistant General
Counsel, National Endowment for the Humanities, Room 529, 1100
Pennsylvania Avenue, NW., Washington, DC 20506. Telephone (202) 606-
8322. Individuals who use a telecommunications device for the deaf
(TDD) may contact the NEH's TDD terminal at (202) 606-8282 Voice/T.T or
(866) 372-2930.
SUPPLEMENTARY INFORMATION:
I. Background
On August 7, 1992, OGE published in the Federal Register new
Standards of Ethical Conduct for Employees of the Executive branch (the
``Standards'') (57 FR 35006-35067). The Standards, as corrected and
amended, are codified at 5 CFR part 2635 and generally became effective
February 3, 1993. Those regulations established uniform standards of
ethical conduct that apply to all executive branch personnel.
With the concurrence of OGE, 5 CFR part 2635.105 authorizes
executive branch agencies to publish agency-specific supplemental
regulations necessary to implement their respective ethics programs.
With OGE's concurrence, the NEH has determined that the following
supplemental regulations contained in a new chapter LVI, consisting of
part 6601, of 5 CFR as set forth in this interim rule, are necessary to
implement the NEH's ethics program successfully, in light of the NEH's
unique programs and operations.
The Foundation's old standard of conduct regulations at 45 CFR were
applicable to employees of both the NEH and the National Endowment for
the Arts (NEA) until they were superseded by the executive branchwide
Standards at 5 CFR part 2635, and by OGE's executive branchwide
financial disclosure regulations at 5 CFR part 2634. In a separate
rulemaking document being published in the Federal Register today, the
Foundation's superseded old conduct regulations and certain redundant
provisions thereof are being removed and 45 CFR part 1105 is being
revised to contain a cross-reference section to the NEH's and the NEA's
new supplemental regulations (also being published in the Federal
Register today); to 5 CFR parts 2634 and 2635, to 5 CFR part 2640,
OGE's executive branch financial interest regulations, and to the
executive branchwide employee responsibilities and conduct regulations
issued by the Office of Personnel Management, as codified at 5 CFR part
735.
II. Analysis of the Regulations
Section 6601.101 General
Section 6601.101 explains that the regulations contained in this
interim rule will apply to NEH employees and are supplemental to the
executive branchwide standards. Employees of the NEH are also subject
to the Standards of Ethical Conduct for Employees of the Executive
Branch at 5 CFR part 2635, the executive branch financial disclosure
and financial interests regulations at 5 CFR parts 2634 and 2640, and
the executive branch employees responsibilities and conduct regulations
at 5 CFR part 735.
Section 6601.102 Prior Approval for Outside Employment
Under 5 CFR 2635.803, an agency that determines it is necessary or
desirable for the purposes of administering its ethics program may, by
supplemental regulation with OGE's concurrence and co-signature,
require its employees to obtain written approval before engaging in
outside employment. The Foundation's superseded regulation at 45 CFR
part 1105 required NEH employees to obtain advance approval for certain
outside employment. That NEH advance approval requirement remained in
effect until February 3, 1995 by operation of the prior note following
5 CFR part 2635.803 of the Standards and prior appendix A to 5 CFR part
2635 (see the January 1, 1997 edition of 5 CFR and 59 FR 4779-4780
(February 2, 1994)). The NEH has determined that it is necessary to the
administration of its ethics program to reinstitute the requirement
that employees, other than special Government employees, obtain prior
approval before engaging in certain types of outside employment that
may pose the most potential for employees to violate applicable
conflicts laws and regulations.
Therefore, Sec. 6601.102(a) requires prior approval of outside
employment when the outside employment involves a prohibited source. In
identifying a ``prohibited source'' for purposes of this prior approval
requirement, the NEH will apply the definition of that term found in
the Standards at 5 CFR part 2635.203(d). Thus, an employee would have
to obtain approval before engaging in outside employment with any
person (including an organization more than half of whose members are
persons) seeking official action by the NEH; doing business or seeking
to do business with the NEH; conducting activities regulated by the
NEH; or having interests that may be substantially affected by the
performance or nonperformance of the employee's official duties.
Section 6601.102(a) also requires written requests for approval to be
submitted to the employee's immediate supervisor and his or her
Designated Agency Ethics Official and specifies the information to be
included in the employee's request. Section 6601.102(b) states the
standard to be used in approving or denying requests for approval of
outside employment. The basis for denial, if any, must be found in
applicable statutes or Federal regulations, including the executive
branchwide Standards.
Section 6601.102(c) defines outside employment as including any
form of compensated or uncompensated non-Federal employment or business
relationship involving the provision of personal services by the
employee. It includes writing done under arrangement with another
person for production or publication of the written product.
III. Matters of Regulatory Procedure
Waiver of Proposed Rulemaking
As Deputy General Counsel of the NEH, I have 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, the opportunity for advance public comment, and the 30-day
delay in effectiveness as to this interim rule. The reason for this
determination is that this rulemaking is related to the NEH's
organization, procedure and practice. Nonetheless, this is an interim
rulemaking with provision for a 30-day public comment period. The NEH
will review all comments received during the comment
[[Page 52684]]
period and will consider any modifications that appear appropriate in
adopting these rules as final with the concurrence and co-signature of
the Office of Government Ethics.
Regulatory Flexibility Act
As Deputy General Counsel of the NEH, I have determined under the
Regulatory Flexibility Act (5 U.S.C. chapter 6) that this regulation
will not have a significant economic impact on a substantial number of
small entities because it only affects NEH employees.
Paperwork Reduction Act
As Deputy General Counsel of the NEH, I have determined that the
Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply because
these regulations do not contain any information collection
requirements that require the approval of the Office of Management and
Budget.
Unfunded Mandates Reform Act
For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
chapter 25, subchapter II), this rule will not significantly or
uniquely affect small governments and will not result in increased
expenditures by State, local, and tribal governments, or by the private
sector, of $100 million or more (as adjusted for inflation) in any one
year.
List of Subjects in 5 CFR Part 6601
Conflict of interests, Government employees, Standards of conduct.
Dated: August 13, 2003.
Michael McDonald,
Deputy General Counsel and Acting Designated Agency Ethics Officer,
National Endowment for the Humanities.
Approved: August 27, 2003.
Amy L. Comstock,
Director, Office of Government Ethics.
0
For the reasons set forth in the preamble, the National Endowment for
the Humanities, with the concurrence of the Office of Government
Ethics, is amending title 5 of the Code of Federal Regulations by
adding a new chapter LVI, consisting of part 6601, to read as follows:
CHAPTER LVI--NATIONAL ENDOWMENT FOR THE HUMANITIES
PART 6601--SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES
OF THE NATIONAL ENDOWMENT FOR THE HUMANITIES
Sec.
6601.101 General.
6601.102 Prior approval for outside employment.
Authority: 5 U.S.C. 7301, 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. 6601.101 General.
In accordance with 5 CFR part 2635.105, the regulations of this
part apply to employees of the National Endowment for the Humanities
(NEH) and supplement the Standards of Ethical Conduct for Employees of
the Executive Branch contained in 5 CFR part 2635. In addition to the
regulations in 5 CFR part 2635 and this part, employees of the NEH are
subject to the executive branch employee responsibilities and conduct
regulations at 5 CFR part 735, the executive branch financial
disclosure regulations at 5 CFR part 2634, and the executive branch
financial interests regulations at 5 CFR part 2640.
Sec. 6601.102 Prior approval for outside employment.
(a) Before engaging in any outside employment with a prohibited
source within the meaning of 5 CFR 2635.203(d), whether or not for
compensation, an employee other than a special Government employee must
obtain written approval from his or her immediate supervisor and the
Designated Agency Ethics Official. The request for approval shall
include the following:
(1) A brief description of the employee's official duties, a brief
description of the proposed outside employment (including the name of
the person, group or other organization for whom the work is to be
performed), and a brief description of the employee's discipline or
inherent area of expertise based on experience or educational
background; and
(2) Responses to the following questions:
(i) Whether the proposed outside employment will draw on non-public
information or pertain to a matter to which the employee is presently
assigned or has been assigned within the last year;
(ii) Whether the proposed outside employment pertains to an ongoing
or announced agency policy or program;
(iii) Whether the proposed outside employment will involve teaching
a course which is part of the established curriculum of an accredited
institution of higher education, secondary school, elementary school,
or an education or training program sponsored by a Federal, State or
local government entity;
(iv) Whether the sponsor of the proposed outside employment has any
interests before the NEH that may be substantially affected by the
performance or nonperformance of the employee's duties;
(v) Whether the employee intends to refer to his or her official
NEH position during the proposed outside employment, and, if so, the
text of any disclaimers that he or she will use; and
(vi) Whether the employee will receive any payment or compensation
for the proposed activity, and, if so, how much.
(b) Approval shall be granted only upon determination that the
outside employment is not expected to involve conduct prohibited by
statute or Federal regulation, including 5 CFR part 2635.
(c) Outside employment means any form of compensated or
uncompensated non-Federal employment or business relationship involving
the provision of personal services by the employee. It includes, but is
not limited to, personal services such as acting as an officer,
director, employee, agent, attorney, consultant, contractor, general
partner, trustee, teacher or speaker. It includes writing done under
arrangement with another person for production or publication of any
written product.
[FR Doc. 03-22654 Filed 9-4-03; 8:45 am]
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