[Federal Register Volume 75, Number 243 (Monday, December 20, 2010)]
[Rules and Regulations]
[Pages 79261-79264]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-31874]



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 Rules and Regulations
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  Federal Register / Vol. 75, No. 243 / Monday, December 20, 2010 / 
Rules and Regulations  

[[Page 79261]]



FEDERAL LABOR RELATIONS AUTHORITY

5 CFR Part 5901


Supplemental Standards of Ethical Conduct for Employees of the 
Federal Labor Relations Authority

AGENCY: Federal Labor Relations Authority.

ACTION: Interim rule with request for comments.

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SUMMARY: The Federal Labor Relations Authority (FLRA), with the 
concurrence of the Office of Government Ethics (OGE), intends to issue 
an interim regulation for employees of the FLRA that supplements the 
executive-branch-wide Standards of Ethical Conduct (Standards) issued 
by OGE. The supplemental regulation: Establishes procedures for seeking 
prior approval for outside employment; prohibits certain outside 
employment; and requires employees who disqualify themselves from 
participation in particular matters for ethical reasons to notify their 
supervisors and the Designated Agency Ethics Official (DAEO) of that 
disqualification.

DATES: This interim rule is effective January 19, 2011. Written 
comments must be received on or before February 18, 2011.

ADDRESSES: Mail or deliver comments to the Office of the Solicitor, 
Federal Labor Relations Authority, 1400 K Street, NW., Room 300, 
Washington, DC 20424. Comments may also be e-mailed to 
[email protected].

FOR FURTHER INFORMATION CONTACT: Rosa M. Koppel, Solicitor, at 
[email protected], fax: (202) 343-1007.

SUPPLEMENTARY INFORMATION:

Background

    On August 7, 1992, OGE 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 FLRA, 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 5901.101 General

    Section 5901.101 explains that the regulations in part 5901 apply 
to employees of the FLRA and supplement the OGE Standards. The section 
also includes cross-references to other issuances applicable to FLRA 
employees, including the regulations concerning executive branch 
financial disclosure, financial interests, and employee 
responsibilities and conduct, as well as implementing FLRA guidance and 
procedures issued in accordance with the OGE Standards.

Section 5901.102 Prior Approval for Outside Employment

    In accordance with 5 CFR 2635.803, the FLRA has determined it is 
necessary for the purpose of administering its ethics program to 
require its employees to obtain approval before engaging in permissible 
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 5901.102(a) provides that an FLRA employee, other than a 
special Government employee (i.e., employees expected to work no more 
than 130 days in any consecutive 365-day period), must obtain advance 
written approval from the DAEO or the Alternate DAEO before engaging in 
any outside employment, except to the extent that the FLRA DAEO or the 
Alternate DAEO has issued an instruction or manual, pursuant to section 
5901.102(e), exempting an activity or class of activities from this 
requirement.
    Section 5901.102(b) defines outside employment to cover any form of 
non-Federal employment or business relationship involving the provision 
of personal services. 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, or 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).
    Section 5901.102(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 within the FLRA. 
It also sets out the standard to be applied by the DAEO or the 
Alternate DAEO in acting on requests for prior approval of outside 
employment as broadly defined by Sec. 5901.102(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 5901.102(d) prohibits FLRA employees other than special 
Government employees from advising or

[[Page 79262]]

preparing an individual or group in any matter relating to labor 
relations, or from engaging in any other outside employment that 
conflicts with official Government duties or responsibilities.
    However, consistent with Federal policy embodied in the exceptions 
to the representation bans contained in 18 U.S.C. 203 (prohibition of 
compensation for representational services in a matter in which the 
United States is involved) and 205 (prohibition of representational 
services, with or without compensation, in a matter in which the United 
States is involved), nothing in the section precludes representation or 
advice that is: (1) Rendered, with or without compensation, and with 
the prior approval of the official responsible for the employee's 
appointment, to specified relatives or to an estate for which an 
employee serves as a fiduciary; or (2) provided, without compensation, 
to an employee subject to disciplinary, loyalty, or other personnel 
administration proceedings.
    Section 5901.102(e) provides that the FLRA DAEO or the Alternate 
DAEO may 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.
    Section 5901.103(a) requires an FLRA employee who disqualifies 
himself or herself from participation in a particular matter because of 
a financial interest to provide written notice of disqualification to 
his or her supervisor and the DAEO notwithstanding the guidance in 5 
CFR 2635.402(c)(1) and (2). Under that guidance, disqualification can 
be accomplished without prior written notice.
    Section 5901.103(b) requires an FLRA employee who disqualifies 
himself or herself from participation in a particular matter to ensure 
impartiality to provide written notice of disqualification to his or 
her supervisor and the DAEO notwithstanding the guidance in 5 CFR 
2635.502(e)(1) and (2). Under that guidance, disqualification can be 
accomplished without prior written notice.
    Section 5901.103(c) requires an FLRA employee who disqualifies 
himself or herself from participation in a particular matter affecting 
prospective employers to provide written notice of disqualification to 
his or her supervisor and the DAEO notwithstanding the guidance in 5 
CFR 2635.604(b) and (c).
    Section 5901.103(d) permits an FLRA employee to withdraw, in 
writing, notice under paragraphs (a), (b), or (c) of this section upon 
deciding that disqualification from participation in a particular 
matter is no longer required.

Administrative Procedure Act

    Pursuant to 5 U.S.C. 553(b), the FLRA finds good cause exists for 
waiving the general notice of proposed rulemaking and opportunity for 
public comment as to this proposed 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 February 18, 2011 can be submitted regarding 
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 FLRA personnel, it is exempt from the 
provisions of Executive Orders Nos. 12866 and 12988.

Regulatory Flexibility Act Certification

    Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 
U.S.C. 605(b), the FLRA has determined that this regulation, as 
amended, will not have a significant economic impact on a substantial 
number of small entities.

Paperwork Reduction Act of 1995

    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 FLRA 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 5901

    Conflict of interest, Government employees.

0
Accordingly, for the reasons set forth in the preamble, the FLRA, with 
the concurrence of the OGE, is amending title 5 of the Code of Federal 
Regulations by adding a new chapter XLIX consisting of part 5901, to 
read as follows:

CHAPTER XLIX--FEDERAL LABOR RELATIONS AUTHORITY

PART 5901--SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES 
OF THE FEDERAL LABOR RELATIONS AUTHORITY

Sec.
5901.101 General.
5901.102 Prior approval for outside employment.
5901.103 Procedure for accomplishing disqualification.

    Authority:  5 U.S.C. 7105; 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.  5901.101  General.

    (a) Applicability. In accordance with 5 CFR 2635.105, and unless 
provided elsewhere in this part, these regulations apply to all 
employees of the Federal Labor Relations Authority (FLRA), including 
employees of the Federal Service Impasses Panel and the Office of the 
General Counsel, and supplement the Standards of Ethical Conduct for 
Employees of the Executive Branch (Standards) contained in 5 CFR part 
2635.
    (b) Cross-references. In addition to 5 CFR part 2635 and this part, 
FLRA employees are required to comply with implementing guidance and 
procedures issued by the FLRA in accordance with 5 CFR 2635.105(c). 
FLRA 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.
    (c) Agency designees. The Designated Agency Ethics Official (DAEO) 
and the Alternate Designated Agency Ethics Official (Alternate DAEO) 
shall serve as the FLRA's designees to make determinations, grant 
approvals, and take other actions under 5 CFR part 2635 and this part.


Sec.  5901.102  Prior approval for outside employment.

    (a) General requirement. Any FLRA employee, excluding all special 
Government employees (i.e., employees expected to work no more than 130 
days in any 365-day period), shall obtain prior written approval from 
the DAEO or the Alternate DAEO before engaging in any outside 
employment, except to the extent that the DAEO or the Alternate DAEO 
has issued an instruction or manual pursuant to

[[Page 79263]]

paragraph (e) of this section. 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.'' (1) For the purposes of this 
section, ``employment'' means any form of non-Federal employment or 
business relationship involving the provision of personal services by 
the employee for direct, indirect, or deferred compensation other than 
reimbursement of actual and necessary expenses. It also includes, 
irrespective of compensation, the following outside activities:
    (i) Providing personal services as a consultant or professional, 
including service as an expert witness or as an attorney;
    (ii) Providing personal services to a for-profit entity as an 
officer, director, employee, agent, attorney, consultant, contractor, 
general partner, trustee, teacher, or speaker; and
    (iii) Writing when done under an arrangement with another person 
for production or publication of the written product.
    (2) 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:
    (i) The employee will receive compensation other than reimbursement 
of expenses;
    (ii) 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
    (iii) 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).
    (c) Procedure for requesting approval.
    (1) Requests for approval of outside employment shall be sent to 
either the DAEO or the Alternate DAEO through the employee's normal 
supervisory channels and shall include the following information:
    (i) The name of the person, group, or organization for which the 
outside employment is proposed to be performed;
    (ii) The nature of the service to be performed and the position's 
title, if any;
    (iii) The proposed hours of work (if regularly scheduled) and the 
approximate dates of employment;
    (iv) The employee's explanation as to whether the proposed outside 
employment (including teaching, speaking, or writing) will implicate in 
any way information obtained as a result of the employee's official 
Federal position; and
    (v) The employee's explanation that no Federal property, resources, 
or facilities not available to the general public will be used in 
connection with the outside employment.
    (2) Upon a significant change in the nature or scope of the outside 
employment or in the employee's official position within the FLRA, the 
employee must, within seven calendar days of the change, submit a 
revised request for approval.
    (3) The DAEO or the Alternate DAEO shall grant approval only on a 
determination that the outside employment is not expected to involve 
conduct prohibited by statute or Federal regulation, including part 
2635 of this title, or paragraph (d) of this section. The DAEO or the 
Alternate DAEO will advise the employee, in writing, of the approval or 
denial of the request for outside employment and will maintain a record 
of the written request and determination.
    (d) Prohibited outside employment.
    (1) Employees shall not engage in:
    (i) Rendering legal advice regarding, or preparing an individual or 
group in any matter relating to, labor relations in either the private 
or public sector, outside the employee's official duties. This 
prohibition shall not apply to a special Government employee unless he 
or she:
    (A) Has participated personally and substantially as a Government 
employee or special Government employee in the same matter; or
    (B) Has served with the FLRA 60 days or more during the immediately 
preceding period of 365 consecutive days; or
    (C) Any other outside employment that conflicts with the employee's 
official Government duties or responsibilities.
    (2) Exceptions. Nothing in this paragraph (d) prevents an employee 
from:
    (i) Acting, with or without compensation, as an agent or attorney 
for, or otherwise representing, the employee's parents, spouse, child, 
or any other person for whom, or for any estate for which, the employee 
is serving as guardian, executor, administrator, trustee, or other 
personal fiduciary to the extent permitted by 18 U.S.C. 203(d) and 
205(e), or from providing advice or counsel to such persons or estate; 
or
    (ii) Acting, without compensation, as an agent or attorney for, or 
otherwise representing, any person who is the subject of disciplinary, 
loyalty, or other personnel administration proceedings in connection 
with those proceedings, to the extent permitted by 18 U.S.C. 205.
    (e) DAEO's and Alternate DAEO's responsibilities. The FLRA 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.


Sec.  5901.103  Procedure for accomplishing disqualification.

    (a) Disqualifying financial interest. An FLRA employee who is 
required, in accordance with 5 CFR 2635.402(c), to disqualify himself 
or herself from participation in a particular matter to which he or she 
has been assigned shall, notwithstanding the guidance in 5 CFR 
2635.402(c)(1) and (2), provide written notice of disqualification to 
his or her supervisor and the DAEO upon determining that he or she will 
not participate in the matter.
    (b) Disqualification to ensure impartiality. An FLRA employee who 
is required, in accordance with 5 CFR 2635.502(e), to disqualify 
himself or herself from participation in a particular matter involving 
specific parties to which he has been assigned shall, notwithstanding 
the guidance in 5 CFR 2635.502(e)(1) and (2), provide written

[[Page 79264]]

notice of disqualification to his or her supervisor and the DAEO upon 
determining that he will not participate in the matter.
    (c) Disqualification from matters affecting prospective employers. 
An FLRA employee who is required, in accordance with 5 CFR 2635.604(a), 
to disqualify himself or herself from participation in a particular 
matter to which he has been assigned shall, notwithstanding the 
guidance in 5 CFR 2635.604(b) and (c), provide written notice of 
disqualification to his or her supervisor and the DAEO upon determining 
that he will not participate in the matter.
    (d) Withdrawal of notification. An FLRA employee may withdraw 
written notice under paragraphs (a), (b), or (c) of this section upon 
deciding that disqualification from participation in the matter is no 
longer required. A withdrawal of notification shall be in writing and 
provided to the employee's supervisor and the DAEO.

    Dated: December 10, 2010.
Carol Waller Pope,
Chairman, Federal Labor Relations Authority.
    Approved on this date: December 13, 2010.
Robert I. Cusick,
Director, Office of Government Ethics.
[FR Doc. 2010-31874 Filed 12-17-10; 8:45 am]
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