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

6445

Vol. 62, No. 29

Wednesday, February 12, 1997

NATIONAL LABOR RELATIONS

BOARD

5 CFR Chapter LXI

29 CFR Part 100

RIN 3209–AA15

Supplemental Standards of Ethical

Conduct for Employees of the National

Labor Relations Board

AGENCY: National Labor Relations Board

(NLRB).

ACTION: Interim rule with request for

comments.

SUMMARY: The National Labor Relations

Board, with the concurrence of the

Office of Government Ethics (OGE), is

issuing an interim regulation for

employees of the NLRB that

supplements the executive branch-wide

Standards of Ethical Conduct

(Standards) issued by OGE. The

supplemental regulation requires NLRB

employees to obtain approval before

engaging in outside employment, and

requires employees to provide written

notification of disqualification. The

NLRB is also repealing provisions in its

old standards of conduct regulations

that required prior approval to engage in

outside employment and prohibited the

private practice of law, both of which

have been superseded by the Standards.

DATES: This interim rule is effective on

February 12, 1997. Comments must be

received on or before April 14, 1997.

ADDRESSES: Send comments to: Gloria

Joseph, Director of Administration

(Designated Agency Ethics Official),

National Labor Relations Board, Suite

7100, 1099 14th Street, NW.,

Washington, DC 20570–0001.

FOR FURTHER INFORMATION CONTACT:

Gloria Joseph, Director of

Administration (Designated Agency

Ethics Official); or Kym Heinzmann,

Program Analyst, both at the National

Labor Relations Board, Suite 7100, 1099

14th Street, NW., Washington, DC

20570–0001; telephone 202–273–3890.

SUPPLEMENTARY INFORMATION:

I. Background

On August 7, 1992, the Office of

Government Ethics published the

Standards of Ethical Conduct for

Employees of the Executive Branch

(Standards). See 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, with

additional grace period extensions at 59

FR 4779–4780, 60 FR 6390–6391, 60 FR

66857–66858, and 61 FR 40950–40952.

The Standards as codified at 5 CFR part

2635 and effective February 3, 1993,

established uniform standards of ethical

conduct that apply to all executive

branch personnel.

On July 21, 1994, the NLRB issued a

final rule which removed all of the

provisions of its Administrative

Regulations at 29 CFR part 100 that had

been superseded by 5 CFR part 2635 or

by OGE’s executive branch financial

disclosure regulations at 5 CFR part

2634. See 59 FR 37157–37159, as

corrected at 60 FR 22269–22270. Along

with portions not related to 5 CFR parts

2634 and 2635, the NLRB preserved

those provisions of its Administrative

Regulations prohibiting the private

practice of law and requiring prior

approval to engage in outside

employment which were temporarily

preserved, respectively, by the notes

following 5 CFR 2635.403(a) and

2635.803 (as extended by 59 FR 4779–

4780, and subsequently by 60 FR 6390–

6391, 60 FR 66857–66858, and 61 FR

40950–40952).

With the concurrence of OGE, 5 CFR

2635.105 authorizes executive branch

agencies to publish agency-specific

supplemental regulations necessary to

implement their ethics programs. The

NLRB, with OGE’s concurrence, has

determined that the following interim

supplemental regulations, to be codified

in part 7101 of new chapter LXI of 5

CFR, are necessary to the successful

implementation of NLRB’s ethics

program. By this rulemaking, the NLRB

is also repealing the provisions of

subpart A of its Administrative

Regulations at 29 CFR part 100 that

required prior approval to engage in

outside employment and prohibited the

private practice of law, the grace period

extensions for which have expired.

II. Analysis of the Interim Regulations

Section 7101.101 General

Section 7101.101(a) of 5 CFR explains

that the supplemental regulations apply

to employees of the National Labor

Relations Board, including Board

members, and supplement the

Standards of Ethical Conduct for

Employees of the Executive Branch

contained in 5 CFR part 2635. This

paragraph further explains that Board

Members and other employees are

subject, in addition, to the executive

branch financial disclosure regulations

contained in 5 CFR part 2634.

The head of each executive branch

agency is required by 5 CFR 2638.202(b)

to appoint a designated agency ethics

official (DAEO) and an alternate DAEO

to carry out the duties specified in 5

CFR 2638.203. Section 7101.101(b)

explains that the Director of

Administration is the NLRB’s DAEO

and the Deputy Director of

Administration is the alternate DAEO.

Section 7101.101(c) explains that,

except as provided in § 7101.102

regarding prior approval of outside

employment, the DAEO is the NLRB’s

agency designee for purposes of making

determinations, granting approvals, and

taking other actions required of agency

designees under 5 CFR part 2635 and

the supplemental regulations.

Section 7101.102 Prior Approval for

Outside Employment

The Standards, at 5 CFR 2635.803,

specifically recognize that individual

agencies may find it necessary or

desirable to supplement the executive

branch-wide regulations with a

requirement for their employees to

obtain approval before engaging in

outside employment or activities. Under

29 CFR 100.102, now repealed, the

NLRB required its employees to obtain

approval prior to engaging in any type

of outside employment, including

certain occasional and private legal

activities that were permitted under an

exception to that regulation’s

prohibition against the outside practice

of law. This approval requirement

helped to ensure that potential ethical

problems were resolved before

employees undertook outside

employment that could involve a
6446 Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations

violation of applicable statutes or

standards of conduct.

In accordance with 5 CFR 2635.803,

the NLRB has determined that it is

desirable for the purpose of

administering its ethics program to

require employees to obtain approval

before engaging in outside employment,

including the practice of law, regardless

of whether that employment is

undertaken for compensation.

Moreover, the NLRB has decided that

the officials authorized to grant

approval under its old prior approval

regulation should continue to have such

authority under its new rules. Thus,

§ 7101.102(a)(1) requires written

approval from the Board or General

Counsel (depending on which

independent side of the NLRB the

employee is employed) to engage in the

private practice of law, and

§ 7101.102(a)(2) requires written

approval from the employee’s Chief

Counsel, Regional Director, Branch

Chief, or the equivalent for outside

employment not involving the private

practice of law.

Section 7101.102(b) sets forth the

procedures for requesting approval to

engage in the private practice of law or

other outside employment. This

paragraph requires that requests for

approval be submitted in writing in

advance of undertaking the

employment, and contain pertinent

information regarding the anticipated

employment, including the name of the

employer, the nature of the legal activity

or other work to be performed, the

estimated duration of the employment

and the amount of compensation to be

received.

Section 7101.102(c) sets forth the

standard to be applied by the agency

designee in acting on requests for prior

approval of outside employment. Under

that standard, approval shall be granted

unless the agency designee determines

that the outside employment is expected

to involve conduct prohibited by statute

or Federal regulation, including 5 CFR

part 2635. Section 7101.102(c) provides

further that, before granting approval,

the approving official may consult with

the designated agency ethics official to

ensure that the request for approval of

outside employment meets the standard

for approval.

In § 7101.102(d), ‘‘employment’’ is

broadly defined for purposes of this

section to cover any form of non-Federal

employment or business relationship

involving the provision of personal

services, including writing when done

under an arrangement with another

person for production or publication of

the written product. It does not,

however, include participation in the

activities of nonprofit charitable,

religious, professional, social, fraternal

and similar organizations, unless such

activities involve the provision of

professional services or advice and are

for compensation other than the

reimbursement of expenses.

Section 7101.103 Standard for

Accomplishing Disqualification;

Disqualifying Financial Interests

Under 5 CFR 2635.402(c), it is the

employee’s obligation to disqualify from

participation in matters affecting his

own financial interests or those of the

persons whose interests are imputed to

him under 18 U.S.C. 208(a). Section

2635.402(c) generally permits

disqualifying to be accomplished simply

by not participating in the matter,

although § 2635.402(c)(1) provides that

an employee who becomes aware of the

need to disqualify himself from

participation in a particular matter to

which he has been assigned should

notify the person responsible for his

assignment.

Under old 29 CFR 100.116(c), now

repealed, NLRB employees were

required to complete and submit Form

NLRB–4573, ‘‘Request for Financial

Interest Determination,’’ when they

were assigned a case, proceeding, or

other matter in which they had a

financial interest. Based upon the

information provided, a determination

was made as to whether the employee

could participate in the case or would

have to be disqualified.

The NLRB has determined that it is

necessary for the efficient management

of the agency’s relatively small

workforce, and to the success of its

ethics program, to require employees to

provide written notice of their

disqualification under 5 CFR

2635.401(c). Therefore, § 7101.103

requires such written notice. This

requirement is similar to the NLRB’s old

requirement for employees to seek a

financial interest determination when

they were assigned a case, proceeding,

or other matter in which they had a

financial interest. However, the new

provision does not require the written

notice to be provided on a particular

form.

The NLRB recognizes the problems

noted by OGE in adopting a requirement

for written notice of disqualification on

an executive branch-wide basis. See 57

FR 35024. It is not the NLRB’s purpose

to impose an overly technical

requirement that would result in

disciplining an employee for failure to

provide written notice by some arbitrary

deadline. Thus, the notice requirement

contained in § 7101.103 is phrased to

give an employee flexibility in

determining precisely when he or she

will give notice of disqualification from

a matter to which he or she has been

assigned. Notice is to be given when the

employee determines that he or she will

not participate in the matter. In no way

does this notice requirement affect the

employee’s primary obligation not to

participate in the matter.

III. Repeal of the NLRB’s Old

Administrative Regulations Regarding

Employee Responsibilities and Conduct

Because the NLRB’s regulations

prohibiting the private practice of law

and requiring prior approval for outside

employment, at 29 CFR 100.102, were

superseded upon expiration of the last

grace period granted by OGE, the NLRB

is removing that section in its entirety

at this time. The NLRB is also revising

29 CFR 100.101, which now crossreferences 5 CFR parts 735, 2634, and

2635, to provide an additional crossreference to the new supplemental

regulations at 5 CFR part 7101.

IV. Matters of Regulatory Procedure

Administrative Procedures Act

The NLRB has 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 and the 30-day

delay in effectiveness as to these interim

rules. It is important to a smooth

transition from the NLRB’s prior ethics

rules to the new executive branch-wide

Standards that these rulemaking actions

take place as soon as possible.

Furthermore, this rulemaking is related

to NLRB organization, procedure, and

practice. Nonetheless, this is an interim

rulemaking, with provision for a 60 day

public comment period. The NLRB will

review all comments received during

the comment period and will consider

any modifications that appear

appropriate in adopting these rules as

final, with the concurrence of OGE.

Executive Order 12866

In promulgating these regulations, the

NLRB has adhered to the regulatory

philosophy and the applicable

principles of regulation set forth in

section 1 of Executive Order 12866,

Regulatory Planning and Review. These

regulations have not been reviewed by

the Office of Management and Budget

under the Executive order, as they deal

with agency organization, management,

and personnel matters, and not in any

event, deemed ‘‘significant’’ thereunder.

Regulatory Flexibility Act

The NLRB has determined under the

Regulatory Flexibility Act (5 U.S.C.

chapter 6) that these regulations will not
Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations 6447

have a significant economic impact on

a substantial number of small entities

because they affect only NLRB

employees.

Paperwork Reduction Act

The NLRB has determined that the

Paperwork Reduction Act (44 U.S.C.

chapter 35) does not apply because

these interim regulations do not contain

any information collection requirements

that require the approval of the Office of

Management and Budget.

List of Subjects

5 CFR Part 7101

Conflict of interests, Government

employees.

29 CFR Part 100

Employee responsibilities and

conduct, Government employees.

Dated: January 24, 1997.

By direction of the Board.

John J. Toner,

Executive Secretary, National Labor Relations

Board.

Approved: January 29, 1997.

Stephen D. Potts,

Director, Office of Government Ethics.

For the reasons set forth in the

preamble, the National Labor Relations

Board, with the concurrence of the

Office of Government Ethics, is

amending title 5 and Chapter I of

subtitle B or title 29 of the Code of

Federal Regulations as follows:

TITLE 5—[AMENDED]

1. A new chapter LXI, consisting of

part 7101, is added to title 5 of the Code

of Federal Regulations to read as

follows:

CHAPTER LXI—NATIONAL LABOR

RELATIONS BOARD

PART 7101—SUPPLEMENTAL

STANDARDS OF ETHICAL CONDUCT

FOR EMPLOYEES OF THE NATIONAL

LABOR RELATIONS BOARD

Sec.

7101.101 General.

7101.102 Prior approval for outside

employment.

7101.103 Standard for accomplishing

disqualification, disqualifying financial

interests.

Authority: 5 U.S.C. 7301; 5 U.S.C. App.

(Ethics in Government Act of 1978); 29

U.S.C. 141, 156; E.O. 12674, 54 FR 15159, 3

CFR, 1989 Comp., p. 215, as modified by E.O.

12731, 55 FR 42457, 3 CFR, 1990 Comp., p.

306; 5 CFR 2635.105, 2635.402(c), 2635.803,

and 2638.202(b).

§ 7101.101 General.

(a) Purpose. In accordance with 5 CFR

2635.105, the regulations in this part

apply to Board members and other

employees of the National Labor

Relations Board (NLRB) and supplement

the Standards of Ethical Conduct for

Employees of the Executive Branch at 5

CFR 2635. Board Members and other

employees are subject, in addition, to

the executive branch financial

disclosure regulations contained in 5

CFR part 2634.

(b) Ethics program responsibilities—

(1) Designated Agency Ethics Official.

The Director, Division of

Administration, is designated under 5

CFR 2638.202(b) as the NLRB’s

Designated Agency Ethics Official with

responsibilities that include:

(i) Acting as liaison with the Office of

Government Ethics with regard to all

aspects of the NLRB’s ethics program;

(ii) Coordinating the NLRB’s

counseling and advisory service under 5

CFR 2635.107;

(iii) Collecting, reviewing, evaluating

and, where applicable, making publicly

available the public financial disclosure

reports filed by NLRB officers and

employees;

(iv) Upon request, advising NLRB

officials responsible for reviewing the

Confidential Financial Disclosure

Reports filed by designated NLRB

employees; and

(v) Coordinating and maintaining the

NLRB’s ethics education program.

(2) Alternate Designated Agency

Ethics Official. The Deputy Director of

Administration is designated under 5

CFR 2638.202(b) as the NLRB’s

Alternate Designated Agency Ethics

Official.

(c) Agency designees. Except as

provided in § 7101.102, the Designated

Agency Ethics Official shall serve as the

NLRB’s designee for purposes of making

the determinations, granting the

approvals, and taking other actions

under 5 CFR part 2635 and this part.

§ 7101.102 Prior approval for outside

employment.

(a) General Requirement. Before

engaging in compensated or

uncompensated outside employment, an

employee must obtain written approval:

(1) From the Board of General Counsel

to engage in the private practice of law;

or

(2) From the employee’s Chief

Counsel, Regional Director, Branch

Chief, or the equivalent for outside

employment not involving the practice

of law.

(b) Procedure for requesting approval

(1) The approval required by paragraph

(a) of this section shall be requested in

writing in advance of engaging in

outside employment, including the

outside practice of law.

(2) The request for approval to engage

in the outside practice of law or in other

outside employment shall be submitted

to the appropriate official as set forth in

paragraph (a) of this section, and shall

set forth, at a minimum:

(i) The name of the employer;

(ii) The nature of the legal activity or

other work to be performed;

(iii) The estimated duration; and

(iv) The amount of compensation to

be received.

(3) Upon a significant change in the

nature of scope of the outside

employment or in the employee’s

official position, the employee shall

submit a revised request for approval.

(c) Standard for approval. (1)

Approval shall be granted unless the

agency designee determines that the

outside employment is expected to

involve conduct prohibited by statute or

Federal regulation, including 5 CFR part

2635.

(2) The agency designee may consult

with the Designated Agency Ethics

Official to ensure that the request for

outside employment meets the standard

in paragraph (c)(1) of this section.

(d) 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 by the employee. It includes,

but is not limited to personal services as

an officer, director, employee, agent,

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. It does not, however, include

participation in the activities of a

nonprofit charitable, religious,

professional, social, fraternal,

educational, recreational, public service

or civic organization, unless such

activities involve the provision of

professional services or advice or are for

compensation other than reimbursement

of expenses.

§ 7101.103 Standard for accomplishing

disqualification; disqualifying financial

interest.

An NLRB employee who is required,

in accordance with 5 CFR 2635.402(c),

to disqualify himself from participation

in a particular matter to which he 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

upon determining that he or she will not

participate in the matter.
6448 Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations

TITLE 29—[AMENDED]

SUBTITLE B—REGULATIONS RELATING

TO LABOR

CHAPTER I—NATIONAL LABOR

RELATIONS BOARD

PART 100—ADMINISTRATIVE

REGULATIONS

2. The authority citation for part 100

is revised to read as follows:

Authority: Sec. 6, National Labor Relations

Act, as amended (29 U.S.C. 141, 156).

Subpart A is also issued under 5 U.S.C.

7301.

Subpart B is also issued under the

Inspector General Act of 1978, as amended

by the Inspector General Act Amendments

of 1988, 5 U.S.C. app. 3; 42 U.S.C. 2000e–

16(a).

Subpart D is also issued under 28

U.S.C. 2672; 28 CFR part 14.

Subpart E is also issued under 29

U.S.C. 794.

3. Subpart A is revised to read as

follows:

Subpart A—Employee Responsibilities

and Conduct

§ 100.101 Cross-reference to financial

disclosure requirements and other conduct

rules.

Employees of the National Labor

Relations Board (NLRB) should refer to

the executive branch-wide Standards of

Ethical Conduct at 5 CFR part 2635; the

NLRB’s regulations at 5 CFR part 7101,

which supplement the executive

branch-wide standards; the employee

responsibilities and conduct regulations

at 5 CFR part 735; and the executive

branch financial disclosure regulations

at 5 CFR part 2634.

[FR Doc. 97–3376 Filed 2–11–97; 8:45 am]

BILLING CODE 7545–01–M

OFFICE OF PERSONNEL

MANAGEMENT

5 CFR Part 930

RIN 3206–AH31

Funding of Administrative Law Judge

Examination

AGENCY: Office of Personnel

Management.

ACTION: Final rule.

SUMMARY: The Office of Personnel

Management (OPM) is issuing a final

regulation to require agencies

employing administrative law judges to

reimburse OPM for the cost of

developing and administering

examinations for judge positions. The

regulation implements OPM’s authority

to delegate examining authority for all

competitive service positions except for

administrative law judges, and to

require employing agencies to reimburse

OPM for the cost of administrative law

judge examinations.

EFFECTIVE DATE: March 14, 1997.

FOR FURTHER INFORMATION CONTACT:

Richard A. Whitford on 202–606–2525,

TDD 202–606–0591, or FAX 202–606–

1768.

SUPPLEMENTARY INFORMATION: On July

29, 1996, OPM issued an interim

regulation at 61 FR 39267 to implement

the new funding arrangement for

administrative law judge examinations

as required by the Treasury, Postal

Service, and General Government

Appropriations Act, 1996 (Pub. L. 104–

52, November 19, 1995). This act

amended 5 U.S.C. 1104 to require OPM

to continue examining for

administrative law judges and to require

employing agencies to reimburse OPM

for the cost of doing so.

OPM’s interim regulation added a

new paragraph (c) to 5 CFR 930.201 to

require affected agencies to reimburse

OPM annually for the cost of developing

and administering administrative law

judge examinations. Each employing

agency’s share of reimbursement will be

based on its relative number of such

judges as of March 31 of the preceding

fiscal year. The regulation also provided

that OPM would work with employing

agencies to review the examination

program for effectiveness and efficiency

and identify needed improvements,

consistent with statutory requirements.

On this basis, OPM would compute and

notify each agency of its share, along

with a full accounting of costs.

We received two written comments,

both from agencies employing

administrative law judges. One agency

questioned the basis for the fee, pointing

out that the law does not specify any

specific reimbursement method. This

agency agreed with OPM’s proposal to

establish a working group of officials

from OPM and affected agencies but

suggested that this group determine how

costs are to be allocated and have a

continuing role in overseeing the

operation of the examination.

OPM will continue consulting, as we

have been, with the stakeholders in the

administrative law judge program,

including Chief Administrative Judges

from agencies with the largest judge

populations. For this fiscal year,

however, OPM has not allocated any of

its appropriated funds and has no other

funding source to operate this

examination. Therefore, we must bill

affected agencies, as indicated in the

interim regulation, based on their

relative share of the administrative law

judge workforce.

Another agency did not object to the

fee or the reimbursement method but

requested that OPM refer for its

appointment consideration only those

candidates who possess specialized

experience related to its programs.

Inasmuch as this action would require

a substantive change to 5 CFR part 930

that is outside the scope of this

rulemaking, OPM cannot act on the

proposal at this time. We will, however,

consider it in the future.

OPM is adopting without change the

new paragraph (c) to § 930.201

contained in the interim regulation

published on July 29, 1996.

Regulatory Flexibility Act

I certify that this regulation will not

have a significant economic impact on

a substantial number of small entities

because it pertains only to Federal

agencies.

Executive Order 12866, Regulatory

Review

This rule has been reviewed by the

Office of Management and Budget in

accordance with Executive Order 12866.

List of Subjects in 5 CFR Part 930

Administrative practice and

procedure, Government employees,

Motor vehicles.

Office of Personnel Management.

James B. King,

Director.

Accordingly, OPM is adopting its

interim regulation at 5 CFR part 930 as

published on July 29, 1996 (61 FR

39267) as final with the following

change:

1. The part title is corrected to read

as follows:

PART 930—PROGRAMS FOR

SPECIFIC POSITIONS AND

EXAMINATIONS (MISCELLANEOUS)

Subpart B—Appointment, Pay, and

Removal of Administrative Law Judges

2. The authority citation for subpart B

continues to read as follows:

Authority: 5 U.S.C. 1104(a)(2), 1305, 3105,

3323(b), 3344, 4301(2)(D), 5372, 7521.

[FR Doc. 97–3423 Filed 2–11–97; 8:45 am]

BILLING CODE 6325–01–P