[Federal Register Volume 72, Number 90 (Thursday, May 10, 2007)]
[Rules and Regulations]
[Pages 26533-26535]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-9035]



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  Federal Register / Vol. 72, No. 90 / Thursday, May 10, 2007 / Rules 
and Regulations  

[[Page 26533]]



MERIT SYSTEMS PROTECTION BOARD

5 CFR Chapter LXIV

RIN 3209-AA15


Supplemental Standards of Ethical Conduct for Employees of the 
Merit Systems Protection Board

AGENCY: Merit Systems Protection Board (MSPB).

ACTION: Interim rule with request for comments.

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SUMMARY: The Merit Systems Protection Board, with the concurrence of 
the Office of Government Ethics (OGE), is issuing an interim regulation 
for employees of the MSPB that supplements the executive-branch-wide 
Standards of Ethical Conduct (Standards) issued by OGE. With certain 
exceptions, the supplemental regulation requires MSPB employees, except 
special Government employees, to obtain approval before engaging in 
outside employment.

DATES: This interim rule is effective June 11, 2007. Written comments 
must be received on or before July 9, 2007.

ADDRESSES: Send or deliver comments to the Office of the Clerk of the 
Board, U.S. Merit Systems Protection Board, 1615 M Street, NW., 
Washington, DC 20419; fax: (202) 653-7130; e-mail: [email protected].

FOR FURTHER INFORMATION CONTACT: Rosa M. Koppel, Deputy General 
Counsel, fax: (202) 653-6203; email: [email protected].

SUPPLEMENTARY INFORMATION:

Background

    On August 7, 1992, the Office of Government Ethics published the 
Standards of Ethical Conduct for Employees of the Executive Branch 
(Standards), which became effective on February 3, 1993. The Standards, 
as corrected and amended, are codified at 5 CFR part 2635. The 
Standards set uniform ethical conduct standards applicable to all 
executive branch personnel.
    Section 2635.105 of the Standards authorizes agencies, with the 
concurrence of OGE, to publish agency-specific supplemental regulations 
that are necessary to properly implement their respective ethics 
programs. The MSPB, with OGE's concurrence, has determined that the 
following interim supplemental rule is necessary for successful 
implementation of its ethics program.

Analysis of the Regulations

Section 7401.101 General

    Section 7401.101 explains that the regulations in part 7401 apply 
to employees of the MSPB and supplement the OGE Standards. The section 
also includes cross-references to other issuances applicable to MSPB 
employees, including the regulations concerning executive branch 
financial disclosure, financial interests, and employee 
responsibilities and conduct, as well as implementing MSPB guidance and 
procedures issued in accordance with the OGE Standards.

Section 7401.102 Prior Approval for Outside Employment

    In accordance with 5 CFR 2635.803, the MSPB has determined it is 
necessary or desirable for the purpose of administering its ethics 
program to require its employees to obtain approval before engaging in 
outside employment or activities. This approval requirement will help 
to ensure that potential ethical problems are resolved before employees 
begin outside employment or activities that could involve a violation 
of applicable statutes and standards of conduct.
    Section 7401.102(a) provides that an MSPB employee, other than a 
special Government employee, must obtain advance written approval from 
the employee's supervisor and the concurrence of the Designated Agency 
Ethics Official (DAEO) or alternate DAEO before engaging in any outside 
employment, except to the extent that the MSPB DAEO or alternate DAEO 
has issued an instruction or manual pursuant to paragraph (e) of this 
section exempting an activity or class of activities from this 
requirement.
    Section 7401.102(b) broadly defines outside employment to cover any 
form of non-Federal employment or business relationship involving the 
provision of personal services, whether or not for compensation, other 
than in the discharge of official duties. It includes writing when done 
under an arrangement with another person or entity for production or 
publication of the written product. It does not, however, include 
participation in the activities of nonprofit charitable, religious, 
professional, social, fraternal, educational, recreational, public 
service, or civic organizations, unless such activities are for 
compensation other than reimbursement of expenses, the organization's 
activities are devoted substantially to matters relating to the 
employee's official duties as defined in 5 CFR 2635.807(a)(2)(i)(B) 
through (E) and the employee will serve as officer or director of the 
organization, or the activities will involve the provision of 
consultative or professional services. Consultative services means the 
provision of personal services by an employee, including the rendering 
of advice or consultation, which requires advanced knowledge in a field 
of science or learning customarily acquired by a course of specialized 
instruction and study in an institution of higher education, hospital, 
or similar facility. Professional services means the provision of 
personal services by an employee, including the rendering of advice or 
consultation, which involves application of the skills of a profession 
as defined in 5 CFR 2636.305(b)(1) or involves a fiduciary relationship 
as defined in 5 CFR 2636.305(b)(2).
    A note following paragraph (b) of Sec.  7401.102 pertains to the 
special approval requirement set out in both 18 U.S.C. 203(d) and 
205(e), respectively, for certain representational activities otherwise 
covered by the conflict of interest restrictions on compensation and 
activities of employees in claims against and other matters affecting 
the Government. The note explains that an employee who wishes to act as 
agent or attorney for, or otherwise represent his parents, spouse, 
child, or any person for whom, or any estate for which, he is serving 
as guardian, executor, administrator, trustee, or other personal 
fiduciary in such matters must obtain the approval required by law of 
the Government official responsible for the

[[Page 26534]]

employee's appointment in addition to the regulatory approval required 
in Sec.  7401.102.
    Section 7401.102(c) sets out the procedures for requesting prior 
approval to engage in outside employment initially, or within seven 
calendar days of a significant change in the nature or scope of the 
outside employment or the employee's official position.
    Section 7401.102(d) sets out the standard to be applied by the 
employee's supervisor and the DAEO or alternate DAEO in acting on 
requests for prior approval of outside employment as broadly defined by 
Sec.  7401.102(b). Approval shall be granted only upon a determination 
that the outside employment is not expected to involve conduct 
prohibited by statute or Federal regulation, including 5 CFR part 2635.
    Section 7401.102(e) provides that the MSPB DAEO or alternate DAEO 
can issue instructions or manual issuances governing the submission of 
requests for approval of outside employment, which may exempt 
categories of employment from the prior approval requirement of this 
section based on a determination that employment within those 
categories would generally be approved and is not likely to involve 
conduct prohibited by statute or Federal regulation, including 5 CFR 
part 2635. The instructions or issuances may include examples of 
outside employment that are permissible or impermissible consistent 
with this part and 5 CFR part 2635.

Administrative Procedure Act

    Pursuant to 5 U.S.C. 553(b), the Merit Systems Protection Board 
finds good cause exists for waiving the general notice of proposed 
rulemaking and opportunity for public comment as to this interim rule. 
Notice and comment before the effective date are being waived because 
this rule concerns matters of agency organization, practice and 
procedure. However, written comments, which must be received by July 9, 
2007 can be submitted on this interim rule; any such comments will be 
considered before this rule is adopted as final.

Executive Orders 12866 and 12988

    Because this rule relates to MSPB personnel, it is exempt from the 
provisions of Executive Orders Nos. 12866 and 12988.

Regulatory Flexibility Act

    The MSPB has determined, pursuant to the Regulatory Flexibility 
Act, 5 U.S.C. chapter 6, that this rulemaking will not have a 
significant economic impact on a substantial number of small entities 
because it primarily affects MSPB employees.

Paperwork Reduction Act

    The Paperwork Reduction Act, 44 U.S.C. chapter 35, does not apply 
because this rulemaking does not contain information collection 
requirements subject to the approval of the Office of Management and 
Budget.

Congressional Review Act

    The Merit Systems Protection Board has determined that this rule is 
not a rule as defined in 5 U.S.C. 804, and thus, does not require 
review by Congress.

List of Subjects in 5 CFR Part 7401

    Conflict of interests, Government employees.

    Dated: April 24, 2007.

Neil A.G. McPhie,

Chairman, Merit Systems Protection Board.

    Approved: April 30, 2007.

Robert I. Cusick,

Director, Office of Government Ethics.

0
Accordingly, for the reasons set forth in the preamble, the Merit 
Systems Protection Board, with the concurrence of the Office of 
Government Ethics, is amending title 5 of the Code of Federal 
Regulations by adding a new chapter LXIV, consisting of part 7401, to 
read as follows:

CHAPTER LXIV--MERIT SYSTEMS PROTECTION BOARD

PART 7401--SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES 
OF THE MERIT SYSTEMS PROTECTION BOARD

Sec.
7401.101 General.
7401.102 Prior approval for outside employment.

    Authority: 5 U.S.C. 1204(h), 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.  7401.101  General.

    (a) Purpose. In accordance with 5 CFR 2635.105, the regulations in 
this part apply to employees of the Merit Systems Protection Board 
(MSPB) and supplement the Standards of Ethical Conduct for Employees of 
the Executive Branch contained in 5 CFR part 2635.
    (b) Cross-references. In addition to 5 CFR part 2635 and this part, 
MSPB employees are required to comply with implementing guidance and 
procedures issued by the MSPB in accordance with 5 CFR 2635.105(c). 
MSPB employees are also subject to the regulations concerning executive 
branch financial disclosure contained in 5 CFR part 2634, the 
regulations concerning executive branch financial interests contained 
in 5 CFR part 2640, and the regulations concerning executive branch 
employee responsibilities and conduct contained in 5 CFR part 735.


Sec.  7401.102  Prior approval for outside employment.

    (a) General requirement. Before engaging in any outside employment, 
with or without compensation, an employee of the MSPB, other than a 
special Government employee, must obtain written approval from the 
employee's supervisor and the concurrence of the Designated Agency 
Ethics Official (DAEO) or the alternate DAEO, except to the extent that 
the MSPB DAEO or alternate DAEO has issued an instruction or manual 
pursuant to paragraph (e) of this section exempting an activity or 
class of activities from this requirement. Nonetheless, special 
Government employees remain subject to other statutory and regulatory 
provisions governing their outside activities, including 18 U.S.C. 
203(c) and 205(c), as well as applicable provisions of 5 CFR part 2635.
    (b) 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, whether or 
not for compensation. It includes, but is not limited to, services as 
an officer, director, employee, agent, advisor, 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. The definition does 
not include participation in the activities of a nonprofit charitable, 
religious, professional, social, fraternal, educational, recreational, 
public service or civic organization, unless:
    (1) The employee will receive compensation other than reimbursement 
of expenses;
    (2) The organization's activities are devoted substantially to 
matters relating to the employee's official duties as defined in 5 CFR 
2635.807(a)(2)(i)(B) through (E) and the employee will serve as officer 
or director of the organization; or
    (3) The activities will involve the provision of consultative or 
professional services. Consultative services means the provision of 
personal services by an employee, including the rendering of advice or 
consultation, which requires

[[Page 26535]]

advanced knowledge in a field of science or learning customarily 
acquired by a course of specialized instruction and study in an 
institution of higher education, hospital, or similar facility. 
Professional services means the provision of personal services by an 
employee, including the rendering of advice or consultation, which 
involves application of the skills of a profession as defined in 5 CFR 
2636.305(b)(1) or involves a fiduciary relationship as defined in 5 CFR 
2636.305(b)(2).

    Note to Sec.  7401.102(b): There is a special approval 
requirement set out in both 18 U.S.C. 203(d) and 205(e), 
respectively, for certain representational activities otherwise 
covered by the conflict of interest restrictions on compensation and 
activities of employees in claims against and other matters 
affecting the Government. Thus, an employee who wishes to act as 
agent or attorney for, or otherwise represent his parents, spouse, 
child, or any person for whom, or any estate for which, he is 
serving as guardian, executor, administrator, trustee, or other 
personal fiduciary in such matters must obtain the approval required 
by law of the Government official responsible for the employee's 
appointment in addition to the regulatory approval required in this 
section.

    (c) Procedure for requesting approval. (1) The approval required by 
paragraph (a) of this section shall be requested by e-mail or other 
form of written correspondence in advance of engaging in outside 
employment as defined in paragraph (b) of this section.
    (2) The request for approval to engage in outside employment or 
certain other activities shall set forth, at a minimum:
    (i) The name of the employer or organization;
    (ii) The nature of the legal activity or other work to be 
performed;
    (iii) The title of the position; and
    (iv) The estimated duration of the outside employment.
    (3) Upon a significant change in the nature or scope of the outside 
employment or in the employee's official position within the MSPB, the 
employee must, within 7 calendar days of the change, submit a revised 
request for approval.
    (d) Standard for approval. Approval shall be granted only upon a 
determination that the outside employment is not expected to involve 
conduct prohibited by statute or Federal regulation, including 5 CFR 
part 2635.
    (e) DAEO's and alternate DAEO's responsibilities. The MSPB DAEO or 
alternate DAEO may issue instructions or manual issuances governing the 
submission of requests for approval of outside employment. The 
instructions or manual issuances may exempt categories of employment 
from the prior approval requirement of this section based on a 
determination that employment within those categories of employment 
would generally be approved and is not likely to involve conduct 
prohibited by statute or Federal regulation, including 5 CFR part 2635. 
The DAEO or alternate DAEO may include in these instructions or 
issuances examples of outside employment that are permissible or 
impermissible consistent with this part and 5 CFR part 2635.

    Dated: May 4, 2007.
Bentley M. Roberts, Jr.,
Clerk of the Board.
[FR Doc. E7-9035 Filed 5-9-07; 8:45 am]
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