This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

42897

Vol. 62, No. 154

Monday, August 11, 1997

OFFICE OF PERSONNEL

MANAGEMENT

5 CFR Parts 1001 and 4501

RIN 3206–AG87, 3209–AA15

Supplemental Standards of Ethical

Conduct for Employees of the Office of

Personnel Management

AGENCY: U.S. Office of Personnel

Management (OPM).

ACTION: Final rule.

SUMMARY: The U.S. Office of Personnel

Management, with the concurrence of

the Office of Government Ethics (OGE),

is adopting as final an interim rule

published July 16, 1996, issuing a final

rule which supplements, for OPM

employees, the executive branch-wide

Standards of Ethical Conduct

(Standards) issued by OGE.

EFFECTIVE DATE: August 11, 1997.

FOR FURTHER INFORMATION CONTACT:

Wade Plunkett, Principal Deputy Ethics

Official, U.S. Office of Personnel

Management, Office of the General

Counsel, 1900 E. Street, N.W.,

Washington, D.C. 20415–0001,

Telephone: (202) 606–1700, FAX: (202)

606–2609.

SUPPLEMENTARY INFORMATION:

I. Background

On July 16, 1996, OPM published

with OGE concurrence and co-signature,

Supplemental Standards of Ethical

Conduct for Employees of OPM as an

interim rule with request for comments

(61 FR 36993–36997). The interim rule

was intended to supplement the

Standards of Ethical Conduct for

Employees of the Executive Branch

(Standards) published by OGE on

August 7, 1992, and effective February

3, 1993 (57 FR 35006–35067), as

corrected at 57 FR 48557, 57 FR 52583,

and 60 FR 51667, and amended at 61 FR

42965–42970 (as corrected at 61 FR

48733 and 61 FR 50689–50691) (interim

rule revisions adopted as final at 62 FR

12531), with additional grace period

extensions for certain existing agency

standards of conduct, including

requirements for prior approval of

outside activities, at 59 FR 4779–4780,

60 FR 6390–6391, and 60 FR 66857–

66858. The executive branch-wide

Standards, codified at 5 CFR part 2635,

establish uniform standards of ethical

conduct for executive branch

employees. The interim rule was issued

pursuant to 5 CFR 2635.105, which

authorizes executive branch agencies to

publish agency-specific supplemental

regulations necessary to implement

their respective ethics programs. The

interim rule, in new 5 CFR part 4501,

contained a notice requirement

designed to ensure that OPM employees

do not use their official positions or

nonpublic information to obtain an

advantage for themselves or for certain

other persons on competitive and other

examinations relating to Federal service;

a requirement, revised from prior 5 CFR

1001.735–203, for OPM employees to

obtain prior approval before engaging in

certain types of outside activities; and a

cross-reference to other ethics and

conduct-related statutes and regulations.

With regard to 5 CFR part 1001, OPM’s

internal standards of conduct

regulations, the interim rule also

repealed that portion which had been

retained on an interim basis pending

issuance of OPM’s supplemental

standards of ethical conduct regulations

and those portions which had been

superseded by the new Standards or by

the executive branch financial

disclosure regulations issued by OGE;

retained a separate Privacy Act conduct

code; and added to 5 CFR part 1001 a

cross-reference to ethics and other

conduct-related statutes and regulations.

The interim rule requested comments

and prescribed a 30-day comment

period. OPM received two comments on

the interim rule, one from an OPM

employee and another from the

President of the International Personnel

Management Association. Both

comments were timely. OPM has

carefully considered the points made in

the comments, reviewed other Federal

agency rules, considered changes in

Federal law since publication of the

interim rule, and reexamined OPM’s

previous requirement for prior approval

of outside employment and activity.

OPM has decided to make a minor

modification to the rule. With that

modification, OPM, with OGE’s

concurrence, is now adopting as final

the interim rule Supplemental

Standards of Ethical Conduct for

Employees of the U.S. Office of

Personnel Management for codification

in chapter XXXV of 5 CFR, consisting of

part 4501.

II. Summary of the Comments

The employee who commented on the

interim regulations asserted that OPM

should have allowed more time for

comment. Both commenters objected to

the requirement for obtaining prior

approval before engaging in certain

outside activities. The employee also

asserted that the regulatory definitions

are confusing. The personnel

management association official

suggested that the prior approval

requirements raise the question of

whether approval of an outside activity

would constitute ‘‘sanction’’ of the

activity by OPM. Finally, the personnel

management association official

suggested that the requirement for prior

approval runs counter to the spirit of an

amendment to 18 U.S.C. 205.

III. Analysis of the Comments

Comment Period

The employee commenter asserted

that OPM should have allowed more

time for comment, stating that the

changes are not ‘‘minor’’ and that it was

unnecessary for the regulations to go

into effect immediately. OPM was not

required to publish its supplemental

standards as a proposed rule or an

interim rule with request for comment,

but could have published the new

supplemental standards as a final rule

pursuant to authority at 5 U.S.C.

1103(b)(1) and 1105. OPM believes it

took reasonable and appropriate steps to

notify employees of the publication of

the interim rule, and that an extension

of the comment period is not warranted.

OPM received no additional comments

since August 15, 1996.

Section 4501.103 Prior Approval for

Certain Outside Activities

Both commenters objected to the

requirement for obtaining prior approval

before engaging in certain outside

activities, contained in 5 CFR

4501.103(a). The commenters perceived

the requirement for prior approval of the
42898 Federal Register / Vol. 62, No. 154 / Monday, August 11, 1997 / Rules and Regulations

employee’s participation, for or without

compensation, in the types of outside

activities set forth at 5 CFR 4501.103(a)

as being unnecessary and an

infringement upon the employee’s

freedom of speech. They assert that this

is especially true with regard to the

provision of professional services

involving the application of the same

specialized skills or the same

educational background as performance

of the employee’s official duties

(§ 4501.103(a)(1)) and teaching,

speaking, and writing that relates to the

employee’s official duties

(§ 4501.103(a)(2)), but which are

conducted without compensation to the

employee. The employee commenting

asserted that the requirement covers

activities that ‘‘never before have been

considered to be problems’’ and seems

designed primarily ‘‘to ensure that the

employee repeatedly affirms that he or

she knows what the rules are.’’ Both

commenters were concerned also that

the prior approval requirement involves

burdensome ‘‘red tape’’ to obtain

approval, would prevent the employee

from speaking openly and informally in

professional meetings—according to the

employee, ‘‘in some cases educating

audiences about technical issues, and in

others clarifying OPM policies’’—and

the employee thought that the

requirement would effectively prohibit

the professional employee from ‘‘doing

all the normal things that a professional

does to maintain the role of

professional.’’ In OPM’s view, however,

prior approval for certain activities

serves many legitimate functions, not

the least of which is an opportunity to

counsel in order to ensure that the

agency and the employee are aware of

potential violations of ethics laws or

regulations and take appropriate steps to

avoid their violation. Violations of

ethics laws or regulations may occur

even where the activity is performed

without monetary compensation to the

employee. Prior approval also provides

a means of protection for the employee

against subsequent adverse action by

ensuring that the employee is aware of

the specific applicability of ethics

statutes and regulations to the proposed

activity.

It would be incorrect to conclude,

because the previous OPM requirement

for prior approval which was in effect

prior to the issuance of the OGE

Standards did not expressly mention

other types of activities, that other

activities could not present violations of

ethics laws or regulations which would

require resolution.

In drafting § 4501.103(a), OPM took

care to clarify the previously existing

requirement in prior 5 CFR 1001.735–

203 and to narrow its scope, consistent

with the Standards. OPM’s former

regulations also prohibited ‘‘[o]utside

employment activity which is in

violation of a statute, Executive Order,

or regulation, including applicable State

and local statutes and ordinances.’’ 5

CFR 1001.735–203(a)(4).

Although an activity might be lawful,

there could be parameters to an activity,

such as restrictions upon the employee’s

representational activities, imposed by

ethics laws and regulations, some of

which have criminal sanctions. The

requirement that an employee obtain

prior approval was designed to ensure

that the employee was aware of any

such limitations.

Prior written approval from the

employee’s regional or staff office head

was required before the employee could

serve as a member of a committee or

board which planned or rendered

advice on training courses or programs

offered by non-Government

organizations, or could engage in afterhours teaching as a faculty member;

receipt of compensation was not a

prerequisite. See prior 5 CFR 1001.735–

203 (c) and (d). Previously, prior written

approval was also required before an

employee ‘‘engage[d] in any kind of

outside paid employment on a

substantially regular basis,’’ 5 CFR

1001.735–203(f). As noted, OPM

determined in its new supplemental

standards to focus more narrowly the

prior approval requirement. See 5 CFR

4501.103 (a)(1)–(a)(4).

Nonetheless, the former, as well as the

current, provisions on outside

employment and activity expressly did

not preclude an employee from

participating in the affairs of a

‘‘charitable, religious, professional,

social, fraternal, nonprofit educational

and recreational, public service, or civil

organization.’’ See prior 5 CFR

1001.735–203(g)(3). The prior approval

process does not seek to prevent the free

exercise of an employee’s rights to

outside employment or speech as is

evident by new 5 CFR 4501.103(c)

which provides that:

Approval shall be granted only upon a

determination by the agency designee, in

consultation with an agency ethics official

when such consultation is deemed necessary

by the agency designee, that the outside

activity is not expected to involve conduct

prohibited by statute or Federal regulation,

including 5 CFR part 2635.

This section was included to show

that the presumption is that an activity

will be approved unless there is some

ethical violation which must be

addressed. We emphasize, further, that

OPM’s new rules contained in 5 CFR

part 4501 are supplemental to, and

intended to be read in conjunction with,

the OGE Standards contained at 5 CFR

part 2635. Currently, the OGE Standards

at 5 CFR part 2635, subpart H, provide

for some restrictions on outside

activities and additionally allow for

prior approval to ensure that no other

existing statutes or regulations will be

violated.

Insofar as comments on the interim

rule have asserted that the prior

approval requirement itself somehow

violates employees’ rights under the

First Amendment of the Constitution,

we point out that the requirement does

not prohibit any form of expression or

association. In the case of Williams v.

Internal Revenue Service, 919 F.2d 745

(D.C. Cir. 1990), it was held that an

agency regulation that required

employees to obtain permission from

the agency before engaging in outside

employment and that was tailored to the

Government’s interest in efficiency and

avoiding the appearance of impropriety,

did not violate employees’ First

Amendment rights.

Knowledge of these Standards is the

personal responsibility of every OPM

employee. OPM has established an

ethics point of contact in every OPM

service or staff office at the central office

and agency ethics officials in the Office

of the General Counsel to facilitate

access to ethics laws and regulations for

OPM employees. However, due to the

frequent complexity of ethics laws and

regulations, understanding of the rules

may require consultation with an

agency ethics official. For this reason,

OPM has endeavored to isolate and

require prior approval of those types of

outside activities where an ethics statute

or regulation may limit the employee’s

activities to ensure that both the

interests of the Government and the

employee are protected.

The personnel management

association official suggests that the

prior approval requirement runs counter

to a recent amendment to 18 U.S.C. 205.

OPM disagrees. The Federal Employee

Representation Improvement Act of

1996; Pub. L. 104–177, 110 Stat. 1563,

August 6, 1996, modified 18 U.S.C. 205

to permit employee representation of

employee organizations under certain

circumstances. OPM published

proposed regulations reflecting this

amendment’s impact on its 5 CFR part

251 executive branch-wide regulations

on agency relationships with

organizations representing Federal

employees and other organizations that

are not labor organizations. See 62 FR

19525 (April 22, 1997). That proposed

revision to the part 251 agency

relationships regulations would

continue the express provision that
Federal Register / Vol. 62, No. 154 / Monday, August 11, 1997 / Rules and Regulations 42899

agency officials and employees are

advised to consult with their designated

agency ethics officials for guidance

regarding any conflicts of interests that

may arise under 18 U.S.C. 205.

Moreover, the modification to section

205 permitting Federal employees to

represent certain nonprofit

organizations before the Government in

certain circumstances is different in

focus, from the separate, and consistent

requirement in these supplemental

standards regulations that OPM

employees obtain prior approval before

engaging in certain outside activities.

OPM feels both regulations are

consistent with current Governmentwide policy and each other, and it

should not revise the scope of the

approval for teaching, speaking and

writing which relates to official duties

in this part 4501 regulation applicable

to OPM employees. This authority will

be exercised consistent with the

provisions of 18 U.S.C. 205, as

amended, and other applicable conflicts

laws and regulations.

Definitions

The employee asserts that the

regulations are confusing in that they

refer to definitions contained elsewhere

in the Code of Federal Regulations, such

as definitions of ‘‘official duties’’,

‘‘outside activity’’, ‘‘profession’’,

‘‘prohibited source’’, and

‘‘compensation’’, to which, he contends,

most OPM readers do not have access.

The prior approval requirement

regarding teaching, speaking, and

writing, contained at 5 CFR

4501.103(a)(2), supplements the Office

of Government Ethics Standards

contained at 5 CFR 2635.801 and

2635.807. The definition of

‘‘compensation’’ is contained at 5 CFR

2635.807(a)(2)(iii). Section 4501.103(d)

defines the terms ‘‘active participant,’’

‘‘nonpublic information,’’ ‘‘professional

services,’’ ‘‘prohibited source,’’ and

‘‘relates to the employee’s official

duties.’’ It is OPM’s view that the terms

necessary for employees to understand

the regulation are adequately provided

and cross-references are clearly stated.

However, should access to the

regulations pose a problem or should

any other confusion exist, agency ethics

officials are available to answer specific

questions regarding any ethics

provision’s applicability to OPM

employees.

Appearance of OPM Sanctioning an

Outside Activity

The personnel management

association official commented that the

prior approval requirement raises the

question of whether ‘‘approval’’ of an

outside activity would constitute

‘‘sanction’’ of the activity by OPM. The

agency has a legitimate interest in the

teaching, making of a speech or other

presentation by an agency employee on

a matter that relates to the employee’s

official duties and which, by the manner

of its presentation, could create the

appearance of being the official position

of OPM. However, the prior approval

requirement, as previously discussed, is

meant to provide an opportunity to

counsel in order to ensure that the

agency and employee are aware of any

violation of ethics laws or regulations. It

should not in any way indicate that

OPM is sanctioning the activity.

In summary, OPM has determined not

to modify any of the substantive

provisions in adopting the interim

supplemental OPM standards at 5 CFR

part 4501 as final. A typographical error

will be corrected as noted below.

IV. Correction of Typographical Error

OPM is correcting in this final rule a

typographical error that appeared in the

authority citation for part 4501 which

incorrectly cites 5 CFR 2635.802 as

‘‘2635.–802’’.

Regulatory Flexibility Act

As Director of OPM, I certify that this

regulation will not have significant economic

impact on a substantial number of small

entities within the meaning of the Regulatory

Flexibility Act (5 U.S.C. chapter 6).

Paperwork Reduction Act

As Director of OPM, I have determined that

the Paperwork Reduction Act (44 U.S.C.

chapter 35) does not apply because this

regulation does not contain any information

collection requirements that require the

approval of the Office of Management and

Budget.

List of Subjects in 5 CFR Parts 1001 and

4501

Conflict of interests, Government

employees.

Dated: July 16, 1997.

James B. King,

Director, U.S. Office of Personnel

Management.

Approved: July 29, 1997.

Stephen D. Potts,

Director, Office of Government Ethics.

Accordingly, OPM is adopting the

interim rule, adding 5 CFR part 4501

and amending 5 CFR part 1001, which

was published at 61 FR 36993 on July

16, 1996, as a final rule with the

following change.

Chapter XXXV Office of Personnel

Management

PART 4501—SUPPLEMENTAL

STANDARDS OF ETHICAL CONDUCT

FOR EMPLOYEES OF THE OFFICE OF

PERSONNEL MANAGEMENT

1. The authority citation for part 4501

is corrected to read as follows:

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,

2635.702, 2635.703, 2635.802, 2635.803,

2635.805.

[FR Doc. 97–21047 Filed 8–8–97; 8:45 am]

BILLING CODE 6325–01–P

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection

Service

9 CFR Part 94

[Docket No. 94–106–7]

RIN 0579–AA71

Importation of Beef From Argentina;

Technical Amendment

AGENCY: Animal and Plant Health

Inspection Service, USDA.

ACTION: Final rule; technical

amendment.

SUMMARY: In a final rule published in

the Federal Register on June 26, 1997,

that will be effective August 25, 1997,

we amended the regulations governing

the importation of meat and meat

products by allowing, under certain

conditions, the importation of fresh,

chilled or frozen, beef from Argentina.

It was our intent that the amended

regulations also allow the importation of

cured or cooked beef that would

otherwise not be allowed importation,

provided it meets the same

requirements as for fresh, chilled or

frozen, beef. In this amendment, we are

clarifying that intent. We are also

correcting the Supplementary

Information of the final rule to include

the date of publication and Federal

Register citation of a document we

referred to.

DATES: This amendment is effective

August 25, 1997.

FOR FURTHER INFORMATION CONTACT: Dr.

Gary Colgrove, Chief Staff Veterinarian,

National Center for Import and Export,

VS, APHIS, 4700 River Road Unit 38,

Riverdale, MD 20737–1231, (301) 734–

8590.