This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

27456 

Vol. 75, No. 94 

Monday, May 17, 2010 

1Public Law 101–194, 103 Stat. 1716 (1989). 

2Shortly before Congress passed the Ethics 

Reform Act, the President issued Executive Order 

12674, which sets forth basic principles of ethical 

conduct for Federal employees and requires OGE to 

promulgate ‘‘regulations that establish a single, 

comprehensive, and clear set of executive-branch 

standards of conduct.’’ E.O. 12674, 54 FR 15159, 

15160 (Apr. 12, 1989). This Executive Order was 

later modified. E.O. 12731, 55 FR 42547 (Oct. 17, 

1990). OGE’s regulations also implement Executive 

Order 12674, as modified by Executive Order 

12731. 

3The remainder of this section is only a brief 

summary. Important additional restrictions and 

exceptions may apply. Readers should consult the 

cited regulations for further information. 

FEDERAL ELECTION COMMISSION 

5 CFR Chapter XXXVII 

11 CFR Part 7 

[NOTICE 2010–05] 

RIN 3209–AA15 

Standards of Conduct 

AGENCY: Federal Election Commission. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Federal Election 

Commission (‘‘Commission’’ or ‘‘FEC’’), 

with the concurrence of the office of 

Government Ethics (‘‘OGE’’), seeks 

comments on proposed revisions to the 

‘‘Standards of Conduct,’’ which are the 

FEC rules that govern the conduct of 

Commissioners and Commission 

employees. The proposed rules would 

update the Commission’s current 

regulations to reflect statutory changes 

enacted after the Standards of Conduct 

were originally promulgated in 1986, 

and to conform to regulations issued by 

OGE and the Office of Personnel 

Management (‘‘OPM’’). OGE’s 

regulations establish a government-wide 

standard of ethical conduct for the 

Executive Branch and independent 

agencies, and are known as OGE’s 

Standards of Ethical Conduct. In 

addition to the proposed revisions to the 

FEC’s Standards of Conduct, the 

Commission, with OGE’s concurrence, 

is also proposing new rules that would 

supplement, for Commissioners and 

employees of the FEC, the OGE 

Standards of Ethical Conduct for 

Employees of the Executive Branch. The 

proposed rules that follow do not 

represent a final decision by the 

Commission or OGE on the issues 

presented by this rulemaking. The 

supplementary information that follows 

provides further information. 

DATES: Comments must be received on 

or before June 16, 2010. 

ADDRESSES: All comments must be in 

writing, must be addressed to Robert M. 

Knop, Assistant General Counsel, and 

must be submitted in e-mail, facsimile, 

or paper copy form. Commenters are 

strongly encouraged to submit 

comments by e-mail or fax to ensure 

timely receipt and consideration. E-mail 

comments must be sent to 

ethicsrules@fec.gov. If e-mail comments 

include an attachment, the attachment 

must be in either Adobe Acrobat (.pdf) 

or Microsoft Word (.doc) format. Faxed 

comments must be sent to (202) 219– 

3923, with paper copy follow-up. Paper 

comments and paper copy follow-up of 

faxed comments must be sent to the 

Federal Election Commission, 999 E 

Street, NW., Washington, DC 20463. All 

comments must include the full name 

and postal service address of the 

commenter or they will not be 

considered. The Commission will post 

comments on its Web site after the 

comment period ends. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Robert M. Knop, Assistant General 

Counsel, or Attorneys Mr. Anthony T. 

Buckley or Mr. Ethan A. Carrier, 999 E 

Street, NW., Washington DC 20463, 

(202) 694–1650 or (800) 424–9530. 

SUPPLEMENTARY INFORMATION: 

I. Overview of OGE Rules 

Implementing the Ethics Reform Act 

and Proposed FEC Supplemental Rules 

A. Legal Authority 

The Ethics Reform Act of 1989 1

includes restrictions on gifts, travel, 

outside activities, and outside 

employment. See Public Law 101–194, 

tit. III and VI, 103 Stat. 1716 (1989). It 

authorizes the Office of Government 

Ethics (‘‘OGE’’) to implement regulations 

concerning the conduct of executive 

branch employees. See 5 U.S.C. 7351(c). 

In 1992, OGE issued a final rule setting 

forth uniform standards of ethical 

conduct and an interim final rule on 

financial disclosure, and in 1996 issued 

a final rule on financial interests, all for 

executive branch departments and 

agencies of the Federal Government and 

their employees. These three executive 

branch-wide regulations, as corrected 

and amended, are codified at 5 CFR 

parts 2634, 2635, and 2640.2

The OGE regulations implementing 

the Ethics Reform Act supersede any 

agency standards of conduct regulations 

previously issued and therefore 

supersede, with some exceptions, the 

Commission’s current regulations in 11 

CFR part 7. Although agencies may still 

issue regulations to supplement OGE’s 

Standards of Ethical Conduct in order to 

accommodate specific agency needs, 

these regulations must be issued in 

accordance with OGE’s rules, and must 

be submitted to OGE for prior approval. 

See 5 CFR 2635.105(a) and (b). Agencies 

may, however, retain any regulations 

based on their own separate statutory 

authority or that address different, nonethics matters. 

B. Topics Addressed in OGE and OPM 

Regulations 

OGE regulations address gifts from 

outside sources, gifts between 

employees, conflicting financial 

interests, impartiality in performing 

official duties, pursuit of other 

employment, misuse of position, and 

outside employment and activities. See 

5 CFR part 2635.3

In addition to OGE’s Standards of 

Conduct, Commission employees are 

subject to certain rules issued by OPM 

concerning employee responsibilities 

and conduct. See 5 CFR part 735. These 

OPM rules address restrictions on 

certain gambling activities, conduct 

prejudicial to the government, and 

unauthorized examination training for 

individuals preparing to take civil and 

Foreign Service examinations. See 5 

CFR part 735. 

FEC and OGE have determined that 

the following proposed supplemental 

regulations are necessary and 

appropriate in view of FEC’s programs 

and operations and to fulfill the 

purposes of the OGE standards. The 

supplemental regulations proposed will 

be issued in new chapter XXXVII of title 

5 of the CFR. In addition, the FEC is 

revising its current regulations at 11 

CFR part 7 to conform to the OGE and 

OPM regulations, without 

compromising the Commission’s 

essential independence in its core 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

Federal Register / Vol. 75, No. 94 / Monday, May 17, 2010 / Proposed Rules 27457 

4The Act already restricts outside activities of 

Commissioners. See 2 U.S.C. 437c(a)(3). Regulations 

implementing this provision are already in place, 

see 11 CFR 7.9, and are being reassigned in this 

rulemaking. See below. 

5 ‘‘Special Government employee’’ is defined at 5 

CFR 2635.102(l). Special Government employees 

are temporary or part time employees hired to 

provide expertise about the industry in which they 

work. Such special Government employees are 

expected to have outside employment, and it is 

unnecessary to require them to seek prior approval 

for such outside employment. 

mission of administering Federal 

campaign finance laws. 

II. Analysis of the Proposed Regulations 

The following discussion explains the 

Commission’s proposal to amend the 

rules that govern the conduct of 

Commissioners and Commission 

employees by adding supplemental 

regulations in a new chapter XXXVII of 

5 CFR, consisting of part 4701, and by 

revising the Commission’s Standards of 

Conduct in 11 CFR part 7. The 

Commission seeks comment on the 

proposed rules. 

A. Proposed Supplemental Regulations 

in 5 CFR part 4701 

1. Proposed 5 CFR 4701.101—Scope 

Proposed 5 CFR 4701.101 states the 

authority for the supplemental 

regulations, which includes 2 U.S.C. 

437c(a)(3), 5 U.S.C. 7301, and 5 U.S.C. 

App. (Ethics in Government Act of 

1978). Proposed 5 CFR 4701.101(a) 

indicates that the regulations of 5 CFR 

part 4701 apply to both members of the 

Commission (‘‘Commissioners’’) and 

employees of the Commission. Proposed 

5 CFR 4701.101(b) lists some of the 

other regulations in title 5 and 11 CFR 

part 7 that would govern the ethical 

conduct of Commissioners and 

employees. 

2. Proposed 5 CFR 4701.102—Prior 

Approval for Certain Outside 

Employment and Activities 

The OGE Standards of Ethical 

Conduct supersede the Commission’s 

current regulation at 11 CFR 7.9(f) 

concerning prior approval for outside 

employment and activities. However, an 

agency may issue supplemental 

regulations with OGE’s concurrence that 

require the agency’s employees to obtain 

approval before engaging in outside 

employment or activities. See 5 CFR 

2635.105 and 2635.803. 

The Commission has found the 

current approval requirement for 

outside employment or activities useful 

in ensuring that the outside 

employment and activities of its 

employees conform to all applicable 

laws and regulations. Because that 

requirement is deemed necessary to the 

administration of its ethics program, the 

Commission, with the concurrence of 

OGE, proposes to renew its requirement 

for prior approval of certain outside 

employment and activities, and to issue 

a supplemental regulation in accordance 

with 5 CFR 2635.803 at proposed 5 CFR 

4701.102. 

Proposed section 4701.102 would 

differ significantly from current 11 CFR 

7.9(f). The major difference is in the 

scope of the outside employment and 

activities covered by the proposed 

regulation. Current 11 CFR 7.9(f) 

requires Commission employees to 

obtain prior approval for all outside 

employment and activities. The term 

‘‘outside employment or other outside 

activity’’ is defined broadly at current 11 

CFR 7.2(h) to include ‘‘any work, service 

or other activity performed by an 

employee.’’ In contrast, proposed 5 CFR 

4701.102 requires prior approval from 

the Designated Agency Ethics Official 

(‘‘DAEO’’) only for outside activities that 

are related to the employee’s official 

duties or involve the application of the 

same specialized skills or the same 

educational background as used in the 

performance of the employee’s official 

duties. This rule, which draws on 

portions of prior approval regulations 

adopted by several other Federal 

agencies with OGE concurrence, is 

narrowly constructed to address agency 

concerns, while limiting the 

administrative burdens placed on 

employees. See, e.g., 5 CFR 3801.106 

(Department of Justice); 5 CFR 4501.103 

(OPM); 5 CFR 6301.102 (Department of 

Education); and 5 CFR 8601.102 

(Federal Retirement Thrift Investment 

Board). 

Proposed 5 CFR 4701.102(a) would 

set out the definitions of the terms used 

in proposed 5 CFR 4701.102(b). The 

definitions for ‘‘active participant,’’ 

‘‘employee,’’ and ‘‘related to the 

employee’s official duties’’ refer back to 

the definitions of these terms used in 

the general standards of conduct 

regulations issued by OGE. 

Proposed 5 CFR 4701.102(a)(2) would 

define ‘‘employee’’ as defined in OGE’s 

regulation at 5 CFR 2635.102(h), which 

includes ‘‘any officer or employee of an 

agency.’’ This definition includes 

Commissioners. However, proposed 

section 4701.102(b) would exclude 

Commissioners from its procedures.4

Instead, proposed 11 CFR 7.6, discussed 

below, would address outside 

employment and activities by 

Commissioners. 

Proposed 5 CFR 4701.102(a)(3) would 

define ‘‘outside employment’’ to mean 

any form of non-Federal employment, 

business relationship or activity 

involving the provision of personal 

services, with or without compensation, 

other than in the discharge of official 

duties. The proposed definition 

provides a non-exhaustive list of 

services such as serving as a lawyer, 

officer, director, trustee, agent, 

consultant, contractor, general partner, 

active participant, teacher, speaker, 

writer, or any other services provided by 

an individual. This proposed definition 

of ‘‘outside employment’’ is similar to 

those adopted by other Federal agencies 

and is designed to cover a broad range 

of outside employment and activities in 

which a Commission employee may 

seek to engage. See, e.g., 5 CFR 3801.106 

(Department of Justice) and 5 CFR 

5701.101 (Federal Trade Commission). 

Notably, this definition of ‘‘outside 

employment’’ includes unpaid activity 

which may not conform to the usual 

understanding of ‘‘employment.’’ 

Proposed 5 CFR 4701.102(b) states 

that a Commission employee other than 

a special Government employee 5 must 

obtain prior, written approval from the 

DAEO before engaging in outside 

employment or activities where the 

services provided are related to the 

employee’s official duties or involve the 

application of the same specialized 

skills or the same educational 

background as used in the performance 

of the employee’s official duties. 

Accordingly, Commission employees 

would be required to obtain prior, 

written approval only when they sought 

to engage in outside employment or 

activities that are related, in one of those 

respects, to their official duties. For 

example, a Commission attorney 

wishing to engage in weekend 

employment as a salesperson for a retail 

organization would not need to seek 

prior approval because such 

employment would not be related to his 

or her official duties or involve the 

application of the same specialized 

skills or educational background as used 

in his or her position at the 

Commission. On the other hand, a 

Commission attorney wishing to 

represent a relative in a lawsuit filed 

against a private party in State court 

would be required to seek prior approval 

because such representation would 

involve the application of the same 

specialized skill or same educational 

background as used in his or her 

position with the Commission. 

Proposed section 5 CFR 4701.102(c) 

would establish the procedure for the 

submission of approval requests to the 

DAEO. It would require that the request 

be submitted through all of the 

employee’s supervisors. For purposes of 

this section, the Staff Director, the 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

27458 Federal Register / Vol. 75, No. 94 / Monday, May 17, 2010 / Proposed Rules 

6This entry refers to the portion of current 11 

CFR 7.1(b) that separately includes special 

Government employees. See also proposed 11 CFR 

7.2(d). 

7This entry refers to the portion of current 11 

CFR 7.1(b) that explains that current 11 CFR part 

7 applies to Commission members and employees. 

8See also 5 CFR 2635.301–2635.304. 9See also proposed 5 CFR part 4701. 10See also 5 CFR 2635.501–2635.503 and 

2635.703. 

11See also discussion below. 

12See also 5 CFR 2635.502, 2635.704–2635.705, 

and discussion below. 

13The citation to current 11 CFR 7.15 in 11 CFR 

201.1 would be revised to cite proposed 11 CFR 7.8. 

14See also proposed 11 CFR 7.2(d) (including 

special Government employees). 

15See also discussion below. 

General Counsel, the Inspector General, 

the Chief Financial Officer, a 

Commissioner, or the Commission 

would be considered the final level of 

supervision for their respective 

subordinates. A request would need to 

provide certain information, including 

the identity of the person, group, or 

organization for which the employee 

intends to provide services. Deadlines 

for a supervisor to respond to a request 

of a bargaining unit employee, and for 

a bargaining unit employee to submit a 

grievance in the event a request is 

denied, are contained in the 

Commission’s Labor-Management 

Agreement. See Article 31, LaborManagement Agreement between the 

Federal Election Commission and 

Chapter 204 of the National Treasury 

Employees Union, dated May 2, 2007. 

Proposed 5 CFR 4701.102(d) would 

set forth the standard for approval of an 

employee’s request regarding outside 

employment or activity, which is not in 

current 11 CFR 7.9(f). Approval would 

be granted only upon a determination 

that the outside employment or activity 

would not involve conduct prohibited 

by statute or Federal regulations. In 

making this determination, the 

regulations to be considered would 

include those at 5 CFR part 2635. 

Therefore, the approval would depend 

on (1) whether the outside employment 

or activity would create conflicting 

financial interests, or (2) a lack of 

impartiality in performing official 

duties, or (3) misuse of Government 

position, and (4) whether the 

employment or activity otherwise 

complies with 5 CFR part 2635. 

The Commission invites comments on 

this proposal and on whether an 

alternative system of seeking prior 

approval is preferable to that proposed 

and, if so, how an alternative system 

should be structured. 

B. Proposed Revisions to the 

Commission’s Standards of Conduct in 

11 CFR Part 7 

The FECA provides authority for 

some of the Commission’s regulations in 

11 CFR part 7, including current 11 CFR 

7.14 and 7.15, which concern 

confidentiality of enforcement matters 

and are based on 2 U.S.C. 437g(a)(12). 

The Commission proposes to retain 

these rules. The Commission also 

proposes to retain provisions that are 

informational or procedural in nature, 

such as current 11 CFR 7.1 (purpose and 

applicability), 7.2 (definitions), 7.4 

(interpretation and advisory service), 7.5 

(reporting suspected violations), and 7.6 

(disciplinary and corrective actions). 

The revisions and clarifications 

proposed for these provisions are 

discussed below. 

As explained above in Overview of 

OGE Rules Implementing the Ethics 

Reform Act, many of the Commission’s 

regulations in current 11 CFR part 7 

have been supplanted by OGE’s 

regulations. Accordingly, the 

Commission proposes to remove the 

supplanted regulations from the 

Commission’s Standards of Conduct in 

current 11 CFR part 7. 

The Commission’s current regulation 

concerning political activity by 

Commissioners and Commission 

employees has been supplanted by the 

Hatch Act Reform Amendments of 1993. 

See Public Law 103–94, 107 Stat. 1001 

(1993); current 11 CFR 7.11. Therefore, 

the Commission proposes to remove 

that regulation. See discussion below. 

The regulations that the Commission 

proposes to retain and revise would also 

be redesignated. The following chart 

lists the removals, revisions, and 

redesignations proposed for current 11 

CFR part 7. 

Current 11 CFR 

Section Proposal 

Redesignated 

11 CFR 

section 

Supplanted by 5 CFR 

section 

7.1(a) ..................................................... Remove as supplanted ........................................................ ........................ 2635.101.

7.1(b) 6 & (c) .......................................... Remove as supplanted ........................................................ ........................ 2635.102(h).

7.1(b) 7 ................................................... Revise.

7.2 .......................................................... Revise.

7.3 .......................................................... Remove as supplanted ........................................................ ........................ 2638.701–2638.706.

7.4 .......................................................... Revise and redesignate ....................................................... 7.3 

7.5 .......................................................... Revise and redesignate ....................................................... 7.4 

7.6 .......................................................... Revise and redesignate ....................................................... 7.5 

7.7 .......................................................... Remove as supplanted ........................................................ ........................ 2635.101.

7.8 .......................................................... Remove as supplanted ........................................................ ........................ 2635.201–2635.205.8

7.9(a) ..................................................... Revise and redesignate ....................................................... 7.6 

7.9(b)–(f) ................................................ Remove as supplanted ........................................................ ........................ 2635.801–2635.809.9

7.10 ........................................................ Remove as supplanted ........................................................ ........................ 2635.401–2635.403.10

7.11 ........................................................ Remove as supplanted ........................................................ ........................ Hatch Act 

Amendments.11

7.12 ........................................................ Remove as supplanted ........................................................ ........................ 2635.402.12

7.13 ........................................................ Remove as supplanted ........................................................ ........................ 2635.704.

7.14 ........................................................ Revise and redesignate ....................................................... 7.7 

7.15 ........................................................ Revise and redesignate ....................................................... 13 7.8 

7.16 ........................................................ Remove as supplanted ........................................................ ........................ 2635.901–2635.902.

7.17–7.21 ............................................... Remove as supplanted ........................................................ ........................ 2635.102(h).14

7.22–7.33 ............................................... Remove as supplanted ........................................................ ........................ 18 U.S.C. 207.15

mstockstill on DSKH9S0YB1PROD with PROPOSALS

Federal Register / Vol. 75, No. 94 / Monday, May 17, 2010 / Proposed Rules 27459 

16The treatment of ex parte communications in 

enforcement matters is addressed in 11 CFR 111.22. 

The treatment of ex parte communications in 

audits, rulemakings, advisory opinions, public 

funding cases, and litigation matters is covered by 

11 CFR part 201. 

1. Proposed 11 CFR 7.1—Scope 

Proposed 11 CFR 7.1(a) would state 

that the regulations in revised 11 CFR 

part 7 apply to all members and 

employees of the Commission. Proposed 

11 CFR 7.1(b) would list the other 

regulations in title 5 of the CFR and 

proposed 5 CFR part 4701 that would 

govern the ethical conduct of 

Commissioners and employees. Current 

11 CFR 7.1(b), which states that the 

regulations in current 11 CFR part 7 

apply to all employees and ‘‘special 

Commission employees,’’ would be 

removed. As explained below, proposed 

11 CFR 7.2(d) would include ‘‘special 

Government employees’’ in the 

definition of ‘‘employee.’’ Although the 

Commission’s current regulations use 

the term ‘‘special Commission 

employee,’’ the proposed regulation uses 

the term ‘‘special Government 

employee’’ as defined at 5 CFR 

2635.102(l) in order to better conform to 

OGE terminology. Because proposed 11 

CFR 7.1(a) states that the regulations in 

revised 11 CFR part 7 apply to all 

Commission employees, which includes 

special Government employees, current 

paragraph (b) is no longer necessary. 

Current 11 CFR 7.1(c), which states that 

the regulations in current 11 CFR part 

7 must be construed in accordance with 

any applicable laws, regulations, and 

the Commission’s Labor-Management 

Agreement also would be removed 

because it is unnecessary to state that 

other laws, regulations, and agreements 

apply. 

2. Proposed 11 CFR 7.2—Definitions 

Proposed 11 CFR 7.2 would continue 

to set forth the definitions used in 11 

CFR part 7. The definition of 

‘‘Commission’’ in current 11 CFR 7.2(a) 

would remain unchanged. The 

definition of ‘‘Commissioner’’ in current 

11 CFR 7.2(b) would be revised slightly. 

Whereas current paragraph (b) of 11 

CFR 7.2 defines ‘‘Commissioner,’’ in 

part, as ‘‘a voting member of the Federal 

Election Commission,’’ proposed 11 CFR 

7.2(b) would delete the word ‘‘voting’’ 

from the definition. The word ‘‘voting’’ 

is no longer necessary because all 

members of the Commission are 

currently voting members. This 

definition includes a Commissioner 

who holds his or her position by virtue 

of a recess appointment. 

The definition of ‘‘conflict of interest’’ 

in current section 7.2(c) would be 

removed. Instead, the Commission 

would rely on OGE regulations and 

regulatory definitions regarding 

conflicts of interest, except for the 

provisions in proposed 11 CFR 7.6 

governing outside employment and 

activities of Commissioners. See, e.g., 5 

CFR 2635.801–2635.809. Because 

proposed section 7.6 would not use the 

phrase ‘‘conflict of interest,’’ a definition 

of that phrase specific to 11 CFR part 7 

would no longer be needed. 

The terms ‘‘Designated Agency Ethics 

Officer’’ and ‘‘Ethics Officer’’ in current 

11 CFR 7.2(d) would be replaced with 

the term ‘‘Designated Agency Ethics 

Official’’ in proposed section 7.2(c) and 

throughout the proposed regulations. 

See proposed 11 CFR 7.3, 7.4, and 7.5. 

These changes would make the 

Commission’s regulations consistent 

with OGE’s regulations at 5 CFR 

2638.104. Proposed 11 CFR 7.2(c) would 

also include a provision from current 11 

CFR 7.4 stating that the Commission’s 

General Counsel serves as the 

Designated Agency Ethics Official. 

In proposed 11 CFR 7.2(d), the 

definition of ‘‘employee’’ from current 

11 CFR 7.2(e) would be amended to 

include a ‘‘special Government 

employee as defined in 18 U.S.C. 

202(a).’’ OGE regulations at 5 CFR 

2635.102(h) include ‘‘special 

Government employee’’ within the 

general definition of ‘‘employee,’’ thus 

subjecting special Government 

employees to the same Standards of 

Conduct as other employees, with 

certain limitations. Proposed section 

7.2(d) would operate similarly. 

Proposed section 7.2(e) defines ‘‘ex 

parte communication’’ for the purposes 

of 11 CFR part 7. This definition is 

based on the definition of ‘‘ex parte 

communication’’ at 11 CFR 201.2(a) 

applicable to non-enforcement 

situations.16 Similar to that definition, 

proposed section 7.9(e) defines ‘‘ex parte 

communication’’ as any written or oral 

communication by any person outside 

the agency to any Commissioner or any 

member of any Commissioner’s staff, 

but not to any other Commission 

employee, that imparts information or 

argument regarding prospective 

Commission enforcement action or 

potential action concerning any pending 

enforcement matter. Similar to current 

Commission regulations at 11 CFR 

111.22 and part 201, the proposed 

definition is limited to Commissioners 

and their staff members because the 

Commissioners are empowered to make 

decisions on enforcement matters, and 

their staff members are their 

confidential assistants on these matters. 

The Commission notes that ‘‘matter’’ as 

used in the proposed rule includes 

enforcement Matters Under Review, 

Administrative Fines, and Alternative 

Dispute Resolution cases (‘‘ADR’’). See 

also discussion of proposed 11 CFR 7.9, 

below. 

Proposed section 7.2(f) defines the 

term ‘‘Inspector General.’’ The 

definitions of ‘‘former employee,’’ 

‘‘official responsibility,’’ ‘‘person,’’ and 

‘‘special Commission employee’’ at 

current 11 CFR 7.2(f), (g), (i), and (j), 

respectively, would be removed from 

proposed section 7.2 as these definitions 

are no longer necessary. In addition, 

paragraph (h) of current 11 CFR 7.2 

defining ‘‘outside employment or other 

outside activity’’ would be removed. 

Because the Commission proposes, with 

OGE concurrence, to replace much of 

current 11 CFR 7.9 (outside employment 

or activities by Commission employees) 

with a supplemental regulation at 5 CFR 

4701.102, paragraph (h) of current 11 

CFR 7.2 defining ‘‘outside employment 

or other outside activity’’ would be 

superfluous. 

3. Proposed 11 CFR 7.3—Interpretation 

and Advisory Service 

Proposed 11 CFR 7.3 is a revised 

version of current 11 CFR 7.4, which 

addresses interpretation and advisory 

service. Proposed 11 CFR 7.3(a) adds 

references to 5 CFR parts 735, 2634, 

2635, 2640, and 4701 as subjects on 

which a Commissioner or employee 

may seek interpretation and advice. 

Also, proposed paragraph (a) identifies 

the DAEO as the person from whom 

advice should be sought. Proposed 

paragraph (b) clarifies that the DAEO, a 

Commissioner, or an employee may 

request an opinion from the Director of 

OGE concerning interpretations of 5 

CFR parts 2634, 2635, or 2640. 

4. Proposed 11 CFR 7.4—Reporting 

Suspected Violations 

Proposed 11 CFR 7.4 is a revised 

version of current 11 CFR 7.5 and 

addresses the reporting of suspected 

violations of the FEC’s Standards of 

Conduct and OGE’s Standards of Ethical 

Conduct. Proposed section 7.4 requires 

the reporting of suspected violations of 

5 CFR parts 735, 2634, 2635, 2640, and 

4701 or revised 11 CFR part 7 to the 

DAEO, the Inspector General, or other 

appropriate law enforcement 

authorities. 

5. Proposed 11 CFR 7.5—Corrective 

Action 

Proposed 11 CFR 7.5 informs 

employees that a violation of the FEC’s 

Standards of Conduct or OGE’s 

Standards of Ethical Conduct may be 

cause for appropriate corrective action, 

disciplinary action, or adverse action, in 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

27460 Federal Register / Vol. 75, No. 94 / Monday, May 17, 2010 / Proposed Rules 

17Outside activities of all FEC employees are 

addressed in OGE’s Standards of Ethical Conduct at 

5 CFR 2635.801–2635.809, which, when the 

standards became effective in February 1993, 

superseded the Commission’s current regulations at 

11 CFR 7.9(b)–(f). Commissioners have additional 

limitations on outside activities as described in 

proposed 11 CFR 7.6 and 2 U.S.C. 437c(a)(3). 

18Public Law 103–94, 107 Stat. 1001 (1993) 

(‘‘Hatch Act Amendments’’). 

19A copy of the Office of Special Counsel’s 

opinion is available on the Commission’s Web site 

at http://www.fec.gov/law/law_rulemakings.shtml 

under ‘‘Standards of Conduct.’’ 

addition to any penalty prescribed by 

law, including criminal penalties. 

Proposed section 7.5 is based on current 

paragraph 7.6(a). Procedures for taking 

corrective, disciplinary, and adverse 

actions are set forth in other authority. 

Accordingly, the procedures in current 

paragraphs 7.6(b) and (c) are 

unnecessary and would be deleted. 

6. Proposed 11 CFR 7.6—Outside 

Employment and Activities by 

Commissioners 

Proposed 11 CFR 7.6 addresses 

outside employment or activities of 

Commissioners.17 FECA provides 

authority for additional restrictions on 

Commissioners’ outside employment 

and activities. See 2 U.S.C. 437c(a)(3). 

Similar to the current rule at 11 CFR 

7.9(a), proposed 11 CFR 7.6 states that 

no Commissioner may devote a 

substantial portion of his or her time to 

any other business, vocation, or 

employment. This regulation would also 

retain the current rule’s allowance of a 

90-day period for a Commissioner, 

following the start of Commission 

service, to limit such activity. 

As noted in the 1986 Explanation and 

Justification for the current rule on 

Commissioners’ outside activities, the 

use of the words ‘‘substantial portion’’ of 

a Commissioner’s time to trigger the 

regulation’s prohibitions is based on the 

legislative history of 2 U.S.C. 437c(a)(3). 

See Explanation and Justification for 

Final Rules on Standards of Conduct for 

Agency Employees, 51 FR 34440, 34442 

(Sept. 29, 1986). The Conference Report 

that accompanied the 1976 amendments 

to FECA discusses 2 U.S.C. 437c(a)(3): 

‘‘The conferees agree that the 

requirement is intended to apply to 

members who devote a substantial 

portion of their time to such business, 

vocation, or employment activities.’’ 

H.R. Rep. No. 94–1057, at 34 (1976) 

(Conf. Rep.), reprinted in Legislative 

History of Federal Election Campaign 

Act Amendments of 1976, at 1028 

(1977). The proposed rule continues this 

interpretation. 

7. Proposed 11 CFR 7.7—Prohibition 

Against Making Complaints and 

Investigations Public 

FECA prohibits any person from 

making public ‘‘any notification or 

investigation’’ of a complaint under 2 

U.S.C. 437g without the written consent 

of the person receiving the notification 

or with respect to whom the 

investigation is made. 2 U.S.C. 

437g(a)(12)(A); 11 CFR 111.21. Proposed 

11 CFR 7.7 derives its authority from 

that provision of FECA. The proposed 

rule follows current 11 CFR 7.14. 

8. Proposed 11 CFR 7.8—Ex Parte 

Communications in Enforcement 

Actions 

Proposed 11 CFR 7.8 is a revised 

version of current 11 CFR 7.15 and 

addresses ex parte communications. 

The title of proposed 11 CFR 7.8 

clarifies that the rule applies 

specifically to ex parte communications 

in enforcement matters. Proposed 11 

CFR 7.8(a) and (d) would revise the rule 

to clarify that the prohibition on ex 

parte communications would apply 

only to Commissioners and any member 

of a Commissioner’s staff. These 

proposed changes would conform 

proposed 11 CFR 7.8 to the current ex 

parte rules in 11 CFR 111.22 and part 

201. See also discussion of proposed 11 

CFR 7.2(e), above. Proposed section 7.8 

also contains nonsubstantive revisions 

from paragraphs (a), (c), and (d) of 

current section 7.15. Finally, proposed 

11 CFR 7.8 would add references to 11 

CFR 111.22, governing ex parte 

communications made in connection 

with Commission enforcement actions, 

and 11 CFR part 201, governing ex parte 

communications made in connection 

with public funding, audits, litigation, 

rulemakings, and advisory opinions. See 

proposed 11 CFR 7.8(e). The 

Commission seeks comment on these 

changes to its ex parte communication 

rules. 

9. Proposed Removal of Current 11 CFR 

7.11—Political and Organization 

Activity 

The Hatch Act Reform Amendments 

of 1993 18 lifted many of the restrictions 

imposed by the original Hatch Act on 

most Federal employees with regard to 

participation in political campaigns. 

However, Congress specifically 

addressed the FEC in the Hatch Act 

Amendments and left all of the original 

Hatch Act’s restrictions in place for 

employees of the Commission, other 

than Commissioners. See 5 U.S.C. 

7323(b)(1) and (2). In contrast to the 

Commissioners, Commission employees 

may not give a political contribution to 

a Member of Congress, an employee of 

the Executive Branch (other than the 

President or Vice President), or an 

officer of a uniformed service. 5 U.S.C. 

7323(b)(1). Additionally, Commission 

employees may not ‘‘take an active part 

in political management or political 

campaigns.’’ 5 U.S.C. 7323(b)(2)(A). 

The Hatch Act, as amended, prohibits 

certain political activities by 

Commissioners such as (1) using official 

authority or influence to interfere with 

an election, (2) knowingly soliciting or 

discouraging political activity by 

anyone subject to a Commission audit or 

investigation, (3) soliciting or receiving 

political contributions (except in 

certain, narrowly limited 

circumstances), or (4) being a candidate 

for public office in a partisan election. 

5 U.S.C. 7323(a). 

OPM has authority to issue 

regulations regarding the Hatch Act 

Amendments, and the Office of Special 

Counsel (‘‘OSC’’) interprets and enforces 

those regulations. See 5 U.S.C. 

1103(a)(5) and 7325. No provisions in 

the Hatch Act Amendments empower 

any agencies other than OPM to issue 

regulations pursuant to the Hatch Act 

Amendments, and no provision in 

FECA directly refers to the Hatch Act 

Amendments or previous Hatch Act 

restrictions. OPM has issued a 

regulation expressly prescribing the 

extent to which the political activities of 

employees may be limited beyond the 

restrictions in the Hatch Act 

Amendments. This OPM regulation 

provides that: ‘‘No further proscriptions 

or restrictions may be imposed upon 

employees covered under this 

regulation except: (a) Employees who 

are appointed by the President by and 

with the advice and consent of the 

Senate; (b) Employees who are 

appointed by the President; (c) Noncareer senior executive service 

members; (d) Schedule C employees, 5 

CFR 213.3301, 213.3302; and (e) Any 

other employees who serve at the 

pleasure of the President.’’ See 5 CFR 

734.104. 

The Commission has received an 

advisory opinion from OSC as to the 

scope of the Commission’s authority to 

interpret the Hatch Act Amendments 

regarding Commissioners and 

Commission employees.19 The specific 

question asked was whether the 

Commission may adopt a regulation that 

would forbid a Commissioner or a 

Commission employee from publicly 

supporting, or working for, or 

contributing to, a candidate, political 

party, or political committee subject to 

the jurisdiction of the Commission, even 

if in the case of public support, the 

activity is not done in concert with the 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

Federal Register / Vol. 75, No. 94 / Monday, May 17, 2010 / Proposed Rules 27461 

20Under 5 U.S.C. 1212, the advisory opinion 

authority of the OSC is limited to matters related 

to the Hatch Act. Therefore, the conclusions of the 

opinion are also limited to interpretations of the 

Hatch Act and OPM regulations. They do not apply 

to any separate statutory authority under FECA. 

21See Public Law 101–189, Div. A, Title VIII, Part 

B, sec. 814(d)(2), 103 Stat. 1352, 1499 (1989). 

candidate, political party, or political 

committee. In its opinion, the OSC 

noted the OPM regulations cited above 

and stated with respect to employees 

that ‘‘the FEC cannot further restrict the 

political activity of its regular 

employees by forbidding them from 

publicly supporting or contributing to a 

candidate, political party, or political 

committee subject to the jurisdiction of 

the Commission.’’ U.S. Office of Special 

Counsel Advisory Opinion, OSC File 

No. AD–03–0095, at 2 (Aug. 29, 2003). 

The OSC opinion also noted with 

respect to Commissioners that ‘‘the FEC 

has no authority to adopt regulations 

that would forbid a Commissioner from 

publicly supporting, working for, or 

contributing to a candidate, political 

party, or political committee subject to 

the jurisdiction of the FEC.’’ Id. at 2–3. 

Its final conclusion was that ‘‘the FEC 

may not adopt regulations that would 

limit the political activity of FEC 

employees or Commissioners beyond 

the restrictions set forth in the Hatch 

Act.’’ 20 Id. at 3. 

Accordingly, the Commission 

proposes to delete current section 7.11 

because it is inconsistent with the Hatch 

Act Amendments. 

10. Proposed Removal of Current 11 

CFR 7.12—Membership in Associations 

The Commission proposes to remove 

current 11 CFR 7.12, which addresses 

employee and Commissioner 

membership in associations. In 1991, 

OGE issued a Notice of Proposed 

Rulemaking that included proposed 

regulations concerning participation in 

professional associations. See Notice of 

Proposed Rulemaking on Standards of 

Ethical Conduct for Employees of the 

Executive Branch, 56 FR 33778 (July 23, 

1991). OGE decided, however, to reserve 

action in its final rule on this topic as 

a result of the overwhelming response to 

its request for comments. See 

Explanation and Justification for Final 

Rule on Standards of Ethical Conduct 

for Employees of the Executive Branch, 

57 FR 35006 (Aug. 7, 1992). The 

Commission agrees with the position 

taken by OGE in its rulemaking that 

ethical concerns regarding membership 

in nongovernmental associations or 

organizations may be addressed under 

the more general standards in 5 CFR 

part 2635. See 57 FR at 35035. Among 

those general provisions that are 

applicable are 5 CFR 2635.402 

(concerning disqualifying financial 

interests), 5 CFR 2635.502 (concerning 

personal and business relationships), 

and 5 CFR 2635.704 and 2635.705 

(concerning use of government property 

and official time). 

11. Proposed Removal of Current 11 

CFR Part 7, Subpart D (Post 

Employment Conflict of Interest: 

Procedure for Administrative 

Enforcement Proceedings) 

Current 11 CFR part 7, subpart D, 

concerns administrative procedures to 

be followed for investigations of postemployment conflict-of-interest 

violations by individuals who have left 

Commission employment. Subpart D 

was based on a prior version of 18 

U.S.C. 207 and 5 CFR parts 2637 and 

2641. When subpart D was adopted, 18 

U.S.C. 207(j) authorized agency 

proceedings against individuals who 

violated that section and required that 

‘‘departments and agencies shall, in 

consultation with the Director of the 

Office of Government Ethics, establish 

procedures to carry out this subsection.’’ 

Subsequently, however, 18 U.S.C. 

207(j) was amended and the section 

authorizing administrative procedures 

and the authority to draft regulations 

regarding the procedures was removed 

and replaced.21 The Commission has no 

pending post-employment situations 

concerning employees who left service 

prior to the repeal of this provision. 

Accordingly, the Commission is 

proposing to remove 11 CFR part 7, 

subpart D pertaining to proceedings 

regarding post-employment conflicts of 

interest in its entirety. Please note that 

former employees would remain subject 

to Department of Justice criminal 

prosecution under 18 U.S.C. 207 for 

post-employment conflict of interest 

violations. See 18 U.S.C. 216. 

Certification of No Effect Pursuant to 5 

U.S.C. 605(b) 

Regulatory Flexibility Act 

The Commission certifies that the 

attached proposed rules, if promulgated, 

will not have a significant economic 

impact on a substantial number of small 

entities. The basis of this certification is 

that this rulemaking affects only the 

appointed members of the Federal 

Election Commission and its employees. 

The members of the Commission and its 

employees are individuals, and are not 

small entities under 5 U.S.C. 601. 

List of Subjects 

5 CFR Part 4701 

Conflict of interests, Government 

employees, Outside activities. 

11 CFR Part 7 

Administrative practice and 

procedure, Conflict of interests, 

Government employees, Political 

activities (government employees). 

For the reasons set out in the 

preamble, the Federal Election 

Commission, with the concurrence of 

the Office of Government Ethics, 

proposes to amend title 5 of the Code of 

Federal Regulations, and the Federal 

Election Commission further proposes 

to amend chapter I of title 11 of the 

Code of Federal Regulations as follows: 

TITLE 5—GOVERNMENT 

ORGANIZATION AND EMPLOYEES 

1. Add Chapter XXXVII, consisting of 

part 4701, to read as follows: 

Chapter XXXVII—Federal Election 

Commission 

PART 4701—SUPPLEMENTAL 

STANDARDS OF ETHICAL CONDUCT 

FOR EMPLOYEES OF THE FEDERAL 

ELECTION COMMISSION 

Sec. 

4701.101 Scope. 

4701.102 Prior approval for certain outside 

employment. 

Authority: 2 U.S.C. 437c(a)(3); 5 U.S.C. 

7301; 5 U.S.C. app. (Ethics in Government 

Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR 

p. 215 (1989 Comp.), as modified by E.O. 

12731, 55 FR 42547, 3 CFR p. 306 (1990 

Comp.); 5 CFR 2635.105 and 2635.803. 

§ 4701.101 Scope. 

(a) In accordance with 5 CFR 

2635.105, the regulations in this part set 

forth standards of conduct that apply to 

members and other employees of the 

Federal Election Commission 

(‘‘Commission’’). 

(b) In addition, members and other 

employees of the Commission are 

subject to the following regulations: 

(1) 5 CFR part 735 (Employee 

Responsibilities and Conduct); 

(2) 5 CFR part 2634 (Executive Branch 

Financial Disclosure, Qualified Trusts, 

and Certificates of Divestiture); 

(3) 5 CFR part 2635 (Standards of 

Ethical Conduct for Employees of the 

Executive Branch); and 

(4) 11 CFR part 7 (Standards of 

Conduct for Members and Employees of 

the Federal Election Commission). 

§ 4701.102 Prior approval for certain 

outside employment. 

(a) Definitions. For purposes of this 

section: 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

27462 Federal Register / Vol. 75, No. 94 / Monday, May 17, 2010 / Proposed Rules 

(1) Active participant has the meaning 

set forth in 5 CFR 2635.502(b)(1)(v). 

(2) Employee has the meaning set 

forth in 5 CFR 2635.102(h). 

(3) Definition of outside employment. 

For purposes of this section, outside 

employment means any form of nonFederal employment, business 

relationship or activity involving the 

provision of personal services, whether 

or not for compensation. It includes, but 

is not limited to, services as an officer, 

director, agent, advisor, attorney, 

consultant, contractor, general partner, 

trustee, teacher, speaker, writer, or any 

other services provided by an 

individual. 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: 

(i) The activity provides 

compensation other than reimbursement 

of expenses; 

(ii) The activities of the non-Federal 

organization are devoted substantially to 

matters relating to the employee’s 

official duties as defined in 5 CFR 

2635.807(a)(2)(i)(B)–(E) and the 

employee will serve as officer or 

director of the non-Federal organization; 

or 

(iii) The activities will involve the 

provision of consultative or professional 

services. Consultative services means 

the provision of personal services, 

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, 

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). 

(4) Related to the employee’s official 

duties means that the outside 

employment meets one or more of the 

tests described in 5 CFR 

2635.807(a)(2)(i)(B)–(E). Outside 

employment related to the employee’s 

official duties includes: 

(i) Outside employment that an 

employee has been invited to participate 

in because of his or her official position 

rather than his or her expertise in the 

subject matter; 

(ii) Outside employment in which an 

employee has been asked to participate 

by a person that has interests that may 

be substantially affected by the 

performance or nonperformance of the 

employee’s official duties; 

(iii) Outside employment that conveys 

information derived from nonpublic 

information gained during the course of 

government employment; and 

(iv) Outside employment that deals in 

significant part with any matter to 

which the employee is or has been 

officially assigned in the last year, or 

any ongoing or announced Commission 

policy, program, or operation. 

(b) Prior approval requirement. An 

employee of the Commission, including 

a member of a Commissioner’s staff, but 

not a member of the Commission or a 

special Government employee, shall 

obtain written approval from the 

Designated Agency Ethics Official 

before engaging in outside employment 

where the services provided: 

(1) Are related to the employee’s 

official duties; or 

(2) Involve the application of the same 

specialized skills or the same 

educational background as used in the 

performance of the employee’s official 

duties. 

(c) Submission of requests for 

approval. (1) The request for approval 

shall be sent through all of the 

employee’s supervisors and shall state 

the name of the person, group, or 

organization for whom the outside 

employment is to be performed; the type 

of outside employment to be performed; 

and the proposed hours of, and 

approximate dates of, the outside 

employment. 

(2) Upon a significant change in the 

nature or scope of the outside 

employment or in the employee’s 

official position, the employee shall 

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. 

TITLE 11—FEDERAL ELECTIONS 

Chapter I—Federal Election Commission 

2. Revise part 7 to read as follows: 

PART 7—STANDARDS OF CONDUCT 

Sec. 

7.1 Scope. 

7.2 Definitions. 

7.3 Interpretation and advisory service. 

7.4 Reporting suspected violations. 

7.5 Corrective action. 

7.6 Outside employment and activities by 

Commissioners. 

7.7 Prohibition against making complaints 

and investigations public. 

7.8 Ex parte communications in 

enforcement actions. 

Authority: 2 U.S.C. 437c, 437d, and 438; 5 

U.S.C. 7321 et seq. and app. 3. 

§ 7.1 Scope. 

(a) The regulations in this part apply 

to members and employees of the 

Federal Election Commission 

(‘‘Commission’’). 

(b) In addition, members and 

employees of the Commission are 

subject to the following regulations: 

(1) 5 CFR part 735 (Employee 

Responsibilities and Conduct); 

(2) 5 CFR part 2634 (Executive Branch 

Financial Disclosure, Qualified Trusts, 

and Certificates of Divestiture); 

(3) 5 CFR part 2635 (Standards of 

Ethical Conduct for Employees of the 

Executive Branch); and 

(4) 5 CFR part 4701 (Supplemental 

Standards of Ethical Conduct for 

Employees of the Federal Election 

Commission). 

§ 7.2 Definitions. 

As used in this part: 

(a) Commission means the Federal 

Election Commission, 999 E Street, 

NW., Washington, DC 20463. 

(b) Commissioner means a member of 

the Federal Election Commission, in 

accordance with 2 U.S.C. 437c. 

(c) Designated Agency Ethics Official 

means the employee designated by the 

Commission to administer the 

provisions of the Ethics in Government 

Act of 1978 (5 U.S.C. appendix), as 

amended, and includes a designee of the 

Designated Agency Ethics Official. The 

General Counsel serves as the 

Commission’s Designated Agency Ethics 

Official. 

(d) Employee means an employee of 

the Federal Election Commission and 

includes a special Government 

employee as defined in 18 U.S.C. 202(a). 

(e) Ex parte communication means 

any written or oral communication by 

any person outside the agency to any 

Commissioner or any member of any 

Commissioner’s staff, but not to any 

other Commission employee, that 

imparts information or argument 

regarding prospective Commission 

action or potential action concerning 

any pending enforcement matter. 

(f) Inspector General means the 

individual appointed by the 

Commission to administer the 

provisions of the Inspector General Act 

of 1978, as amended (5 U.S.C. 

appendix), and includes any designee of 

the Inspector General. 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

Federal Register / Vol. 75, No. 94 / Monday, May 17, 2010 / Proposed Rules 27463 

§ 7.3 Interpretation and advisory service. 

(a) A Commissioner or employee 

seeking advice and guidance on matters 

covered by this part or 5 CFR parts 735, 

2634, 2635, 2640, or 4701 may consult 

with the Designated Agency Ethics 

Official. The Designated Agency Ethics 

Official should be consulted before 

undertaking any action that might 

violate this part or 5 CFR parts 735, 

2634, 2635, 2640, or 4701 governing the 

conduct of Commissioners or 

employees. 

(b) The Designated Agency Ethics 

Official, a Commissioner, or an 

employee may request an opinion from 

the Director of the Office of Government 

Ethics regarding an interpretation of 5 

CFR parts 2634, 2635, or 2640. 

§ 7.4 Reporting suspected violations. 

Commissioners and employees shall 

disclose immediately any suspected 

violation of a statute or of a rule set 

forth in this part or of a rule set forth 

in 5 CFR parts 735, 2634, 2635, 2640, or 

4701 to the Designated Agency Ethics 

Official, the Office of Inspector General, 

or other appropriate law enforcement 

authorities. 

§ 7.5 Corrective action. 

A violation of this part or 5 CFR parts 

735, 2634, 2635, 2640, or 4701 by an 

employee may be cause for appropriate 

corrective, disciplinary, or adverse 

action in addition to any penalty 

prescribed by law. 

§ 7.6 Outside employment and activities 

by Commissioners. 

No member of the Commission may 

devote a substantial portion of his or her 

time to any other business, vocation, or 

employment. Any individual who is 

engaging substantially in any other 

business, vocation, or employment at 

the time such individual begins to serve 

as a member of the Commission will 

appropriately limit such activity no later 

than 90 days after beginning to serve as 

such a member. 

§ 7.7 Prohibition against making 

complaints and investigations public. 

(a) Commission employees are 

warned that they are subject to criminal 

penalties if they discuss or otherwise 

make public any matters pertaining to a 

complaint or investigation under 2 

U.S.C. 437g, without the written 

permission of the person complained 

against or being investigated. Such 

communications are prohibited by 2 

U.S.C. 437g(a)(12)(A). 

(b) Section 437g(a)(12)(B) of title 2 of 

the United States Code provides as 

follows: ‘‘Any member or employee of 

the Commission, or any other person, 

who violates the provisions of [2 U.S.C. 

437g(a)(12)(A)] shall be fined not more 

than $2,000. Any such member, 

employee, or other person who 

knowingly and willfully violates the 

provisions of [2 U.S.C. 437g(a)(12)(A)] 

shall be fined not more than $5,000.’’ 

§ 7.8 Ex parte communications in 

enforcement actions. 

In order to avoid the possibility of 

prejudice, real or apparent, to the public 

interest in enforcement actions pending 

before the Commission pursuant to 2 

U.S.C. 437g: 

(a) Except to the extent required for 

the disposition of enforcement matters 

as required by law (as, for example, 

during the normal course of an 

investigation or a conciliation effort), no 

Commissioner or member of any 

Commissioner’s staff shall make or 

entertain any ex parte communications. 

(b) The prohibition of this section 

shall apply from the time a proper 

complaint is filed with the Commission 

pursuant to 2 U.S.C. 437g(a)(1) or from 

the time that the Commission 

determines on the basis of information 

ascertained in the normal course of its 

supervisory responsibilities that it has 

reason to believe that a violation has 

occurred or may occur pursuant to 2 

U.S.C. 437g(a)(2), and shall remain in 

force until the Commission has 

concluded all action with respect to the 

enforcement matter in question. 

(c) Any written communication 

prohibited by paragraph (a) of this 

section shall be delivered to the General 

Counsel, who shall place the 

communication in the case file. 

(d) A Commissioner or member of any 

Commissioner’s staff involved in 

handling enforcement actions who 

receives an offer to make an oral 

communication or any communication 

concerning any enforcement action 

pending before the Commission as 

described in paragraph (a) of this 

section, shall decline to listen to such 

communication. If unsuccessful in 

preventing the communication, the 

Commissioner or employee shall advise 

the person making the communication 

that he or she will not consider the 

communication and shall prepare a 

statement setting forth the substance 

and circumstances of the 

communication. Within 48 hours of 

receipt of the communication, the 

Commissioner or any member of any 

Commissioner’s staff shall prepare a 

statement setting forth the substance 

and circumstances of the 

communication and shall deliver the 

statement to the General Counsel for 

placing in the file in the manner set 

forth in paragraph (c) of this section. 

(e) Additional rules governing ex 

parte communications made in 

connection with Commission 

enforcement actions are found at 11 CFR 

111.22. Rules governing ex parte 

communications made in connection 

with public funding, Commission 

audits, litigation, rulemakings, and 

advisory opinions are found at 11 CFR 

part 201. 

Dated: May 11, 2010. 

On behalf of the Commission. 

Matthew S. Petersen, 

Chairman, Federal Election Commission. 

Approved: May 7, 2010. 

Robert I. Cusick, 

Director, Office of Government Ethics. 

[FR Doc. 2010–11599 Filed 5–14–10; 8:45 am] 

BILLING CODE 6715–01–P 

NUCLEAR REGULATORY 

COMMISSION 

10 CFR Part 72 

RIN 3150–AI75 

[NRC–2009–0538] 

List of Approved Spent Fuel Storage 

Casks: NUHOMS® HD System Revision 

1; Correction 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Proposed rule; correction. 

SUMMARY: This document corrects a 

notice appearing in the Federal Register 

on May 7, 2010 (75 FR 25120), that 

proposes to amend the regulations that 

govern storage of spent nuclear fuel. 

Specifically, this proposed amendment 

would be to the list of approved spent 

fuel storage casks to add revision 1 to 

the NUHOMS HD spent fuel storage 

cask system. This action is necessary to 

correctly specify the date by which 

comments must be received, because the 

notice of direct final rulemaking (75 FR 

24786; May 6, 2010), and the 

companion notice of proposed 

rulemaking were published in the 

Federal Register on different dates 

instead of being published concurrently 

on the same date, as erroneously stated 

in the notices. 

FOR FURTHER INFORMATION CONTACT: 

Jayne M. McCausland, Office of Federal 

and State Materials and Environmental 

Management Programs, U.S. Nuclear 

Regulatory Commission, Washington, 

DC 20555–0001, telephone (301) 415– 

6219, e-mail 

Jayne.McCausland@nrc.gov. 

SUPPLEMENTARY INFORMATION: On page 

25120, in the third column, the fifth full 

mstockstill on DSKH9S0YB1PROD with PROPOSALS