[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]
BILLING CODE 7536-01-P