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###### Merit Systems Protection Board

          - 5 CFR Chapter LXIV 
          - RIN 3209-AA15 

# AGENCY:

Merit Systems Protection Board (MSPB). 

# ACTION:

Interim rule with request for comments. 

# 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:                         *mspb@mspb.gov*.                     

# FOR FURTHER INFORMATION CONTACT:

                        Rosa M. Koppel, Deputy General Counsel, fax: (202) 653-6203; email:                         *mspb@mspb.gov*.                     

# 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 § 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                           ( print page 26534)                        employee's appointment in addition to the regulatory approval required in § 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 § 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.*

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 

        - 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. 

§ 7401.101 

                                    (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.                                 

§ 7401.102 

                                    (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                                           ( print 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 § 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] 

BILLING CODE 7400-01-P