Rule2023-26950
Supplemental Standards of Ethical Conduct for Employees of the Federal Mediation and Conciliation Service
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Published
December 8, 2023
Effective
January 8, 2024
Issuing agencies
Federal Mediation and Conciliation Service
Abstract
The Federal Mediation and Conciliation Service (FMCS), with the concurrence of the Office of Government Ethics (OGE), is issuing this final rule for FMCS employees. This rule supplements the Standards of Ethical Conduct for Employees of the Executive Branch (OGE Standards) issued by OGE and is necessary because it addresses ethical issues unique to the FMCS. This rule sets forth prior approval requirements for certain outside employment and outside activities for all FMCS employees, other than special government employees.
Full Text
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<title>Federal Register, Volume 88 Issue 235 (Friday, December 8, 2023)</title>
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[Federal Register Volume 88, Number 235 (Friday, December 8, 2023)]
[Rules and Regulations]
[Pages 85467-85469]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-26950]
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FEDERAL MEDIATION AND CONCILIATION SERVICE
5 CFR Chapter CIII
RIN 3209-AA65
Supplemental Standards of Ethical Conduct for Employees of the
Federal Mediation and Conciliation Service
AGENCY: Federal Mediation and Conciliation Service.
ACTION: Final rule.
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SUMMARY: The Federal Mediation and Conciliation Service (FMCS), with
the concurrence of the Office of Government Ethics (OGE), is issuing
this final rule for FMCS employees. This rule supplements the Standards
of Ethical Conduct for Employees of the Executive Branch (OGE
Standards) issued by OGE and is necessary because it addresses ethical
issues unique to the FMCS. This rule sets forth prior approval
requirements for certain outside employment and outside activities for
all FMCS employees, other than special government employees.
DATES: This rule is effective January 8, 2024.
FOR FURTHER INFORMATION CONTACT: Anna Davis, Designated Agency Ethics
Official (DAEO), General Counsel, Office of General Counsel, Federal
Mediation and Conciliation Service, 250 E Street SW, Washington, DC
20427; Office/Fax/Mobile 202-606-3737; <a href="/cdn-cgi/l/email-protection#d2a0b7b5bba1a6b7a092b4bfb1a1fcb5bda4"><span class="__cf_email__" data-cfemail="5a283f3d33292e3f281a3c373929743d352c">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Background
In July 2023, the FMCS issued a proposed rule to establish the
Supplemental Standards of Ethical Conduct for Employees of the Federal
Mediation and Conciliation Service (Supplemental Standards), which are
to be codified in 5 CFR part 10300. 88 FR 45822 (July 18, 2023). The
proposed rule provided a 30 day comment period, which ended on August
17, 2023. The FMCS did not receive any timely and responsive comments.
The rationale for the proposed rule, which the FMCS is now adopting as
final, is explained in the preamble at: <a href="https://www.federalregister.gov/documents/2023/07/18/2023-15021/supplemental-standards-of-ethical-conduct-for-employees-of-the-federal-mediation-and-conciliation">https://www.federalregister.gov/documents/2023/07/18/2023-15021/supplemental-standards-of-ethical-conduct-for-employees-of-the-federal-mediation-and-conciliation</a>. For those reasons, the FMCS is, with the concurrence
of OGE, issuing the rule as final with no substantive changes.
I. Analysis of the Regulations
In accordance with 5 CFR 2635.803, the FMCS has determined it is
necessary for the purpose of administering its ethics program to
require its employees, other than special government employees, to
obtain approval before engaging in certain outside employment and
outside activities. The FMCS's mission is to promote labor-management
peace and cooperation. The FMCS has a large and broad range of clients
external to the Government. Given the volume of public and private
sector clients, there is a greater likelihood that conflicts of
interest, impartiality, or other concerns may arise that employees may
not be aware of and therefore it is necessary for the FMCS to screen
for such conflicts. The approval requirement will help to ensure that
potential ethics conflicts of interest, impartiality, or other concerns
are resolved before certain employees begin outside employment or
outside activities. Requiring prior approval ensures the neutrality and
integrity of the FMCS' services.
Section 10300.101 General
Paragraph (a) explains that the regulation applies to all FMCS
employees, other than special government employees, and supplements the
OGE Standards.
Paragraph (b) notes that employees must comply with ethics guidance
and procedures issued by the FMCS and should contact an FMCS ethics
official if an ethics question arises. This paragraph also includes
cross-references to other OGE ethics related regulations.
10300.102 Definitions
This section defines terms and phrases used throughout this
supplemental regulation.
10300.103 Prior Approval for Outside Employment and Outside Activities
Paragraph (a) sets forth that an employee of the FMCS, other than a
special government employee, is required to seek prior written approval
before engaging in certain outside employment and outside activities.
Paragraph (b) sets out the standards and procedures for requesting
approval to engage in certain outside employment and outside
activities.
Paragraph (c) sets forth the requirement for submitting a revised
request when there is a significant change in the nature, duties or
scope of the outside employment or activity or to the employee's
official duties or responsibilities.
Paragraph (d) provides that the DAEO may issue agency wide-
policies, handbooks, or other written guidance governing the submission
of requests for approval of outside employment and activities, which
may exempt categories of employment and activities from the prior
approval requirement of this section based on a determination that
employment or activities within those categories would generally be
approved and is not likely to involve conduct
[[Page 85468]]
prohibited by statute or Federal regulation, including 5 CFR part 2635.
II. Matters of Regulatory Procedure
Administrative Procedure Act
Under 5 U.S.C. 553(a)(2), rules relating to agency management or
personnel are exempt from the notice and comment rulemaking
requirements of the Administrative Procedure Act (APA). In addition,
under 5 U.S.C. 553(b)(3)(A), notice and comment rulemaking requirements
do not apply to rules concerning matters of agency organization,
procedure, or practice. Given that the rule concerns matters of agency
management or personnel, and organization, procedure, or practice, the
notice and comment requirements of the APA do not apply here. Nor is a
public hearing required under 45 U.S.C. 160a. The public comment period
on the proposed rule opened on July 18, 2023, the date of its
publication in the Federal Register, and closed on August 17, 2023.
During this period, the FMCS did not receive any comments on the
proposed rule.
Executive Order 12866
This rule is not a significant rule for purposes of Executive Order
12866 and has not been reviewed by the Office of Management and Budget.
Regulatory Flexibility Act.
The FMCS has determined under the Regulatory Flexibility Act, 5
U.S.C. chapter 6, that this final rule would not have a significant
economic impact on a substantial number of small entities because it
would primarily affect FMCS employees.
Paperwork Reduction Act.
The Paperwork Reduction Act, 44 U.S.C. chapter 35, does not apply
to this final rule because it does not contain any information
collection requirements that would require the approval of the Office
of Management and Budget.
Congressional Review Act
The FMCS has determined that this final rule does not meet the
definition of a rule, as defined by the Congressional Review Act, 5
U.S.C. chapter 8, and thus does not require review by Congress.
List of Subjects in 5 CFR Part 10300
Conflicts of interests, Government employees.
0
For the reasons set forth in the preamble, the FMCS, with the
concurrence of OGE, amends title 5 of the Code of Federal Regulations
by adding a new chapter CIII, consisting of part 10300, to read as
follows:
Title 5--Administrative Personnel
CHAPTER CIII--FEDERAL MEDIATION AND CONCILIATION SERVICE
PART 10300--SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES
OF THE FEDERAL MEDIATION AND CONCILIATION SERVICE
Sec.
10300.101 General.
10300.102 Definitions.
10300.103 Prior approval for outside employment and outside
activities.
Authority: 5 U.S.C. 7301, 7353; 5 U.S.C. Ch. 131 (Ethics in
Government Act of 1978); 29 U.S.C. 172; 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, 5 CFR 2635.402(c), 5 CFR
2635.403(a), 5 CFR 2635.502, 5 CFR 2635.604, 5 CFR 2635.802, and 5
CFR 2635.803.
Sec. 10300.101 General.
(a) Purpose. In accordance with 5 CFR 2635.105, the regulations in
this part apply to employees of the Federal Mediation and Conciliation
Service (FMCS), other than special government employees as defined in 5
CFR 2635.102(l), and supplement the Standards of Ethical Conduct for
Employees of the Executive Branch in 5 CFR part 2635 (Office of
Government Ethics (OGE) Standards).
(b) Cross-references. In addition to the standards in 5 CFR part
2635 and this part, FMCS employees are required to comply with
implementing guidance and procedures issued by the FMCS in accordance
with 5 CFR 2635.105(c). FMCS employees are also subject to the
regulations concerning executive branch financial disclosures contained
in 5 CFR part 2634, the regulations concerning executive branch
financial interests contained in 5 CFR part 2640, regulations
concerning post-employment restrictions contained in 5 CFR part 2641,
and the regulations concerning executive branch employee
responsibilities and conduct contained in 5 CFR part 735. Employees
should contact an FMCS ethics official if they have questions about any
provision of this regulation or other ethics-related matters.
Sec. 10300.102 Definitions.
For purposes of this part:
Outside employment or activity means any form of non-Federal
employment or business relationship, compensated or uncompensated,
involving the provision of personal services by the employee. It
includes, but is not limited to:
(1) Personal services as an officer, director, employee, agent,
attorney, consultant, contractor, general partner, trustee, teacher,
professor, speaker, or writer.
(2) Active participation, including voluntary participation as
defined in 5 CFR 2635.502(b)(1)(v), with a prohibited source.
(3) It does not include participation in the activities of a
nonprofit charitable, religious, professional, social, fraternal,
educational, recreational, public service, or civic organization,
unless such activities are for compensation other than reimbursement of
expenses; such activities involve the provision of professional
services or advice; or the organization's activities are devoted
substantially to matters relating to the employee's official duties as
defined in 5 CFR 2635.807(a)(2)(i)(B) through (E).
Note 1 to Sec. 10300.102. There is a special approval
requirement set out in both 18 U.S.C. 203(d) and 205(e) for certain
representational activities otherwise covered by the conflict-of-
interest restrictions on compensation and activities of employees in
claims against and other matters affecting the Government. Thus, an
employee who wishes to act as an agent or attorney for, or otherwise
represent the employee's parents, spouse, child, or any person for
whom, or any estate for which, the employee is serving as guardian,
executor, administrator, trustee, or other personal fiduciary in
such matters, must obtain the approval required by law of the
government official responsible for the employee's appointment, in
addition to the regulatory approval required in this section.
Sec. 10300.103 Prior approval for outside employment and outside
activities.
(a) General requirement. Before engaging in any outside employment
or outside activity, as it is defined in Sec. 10300.102, an employee
of the FMCS, other than a special government employee, must obtain
written approval.
(b) Procedure for requesting approval. The employee must first
obtain written approval from the employee's immediate supervisor and
then the Designated Agency Ethics Official (DAEO). If the employee does
not obtain written approval from the employee's immediate supervisor,
the employee may request review by the DAEO. Decisions by the DAEO are
final and non-appealable.
(c) Standard for approval. Approval shall be granted only upon a
determination that the outside employment or outside activity is not
expected to involve conduct prohibited by statute or Federal
regulation, including 5 CFR part 2635.
(d) Revised requests. Upon a significant change in the nature or
scope of the outside employment or outside
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activity or in the employee's official position with the FMCS, the
employee must, within 7 calendar days of the change, submit a revised
request for approval. If there are no significant changes in the nature
or scope of the outside employment or outside activity or in the
employee's official position with the FMCS, the employee does not need
to reapply after the FMCS' initial approval.
(e) Implementation guidance. The DAEO may issue instructions or
manual issuances governing the submission of requests for approval of
outside employment or outside activities. The instructions or manual
issuances may exempt categories of employment and activities from the
prior approval requirement of this section based on a determination
that employment or activity within those categories of employment or
activities would generally be approved and is not likely to involve
conduct prohibited by statute or Federal regulation, including 5 CFR
part 2635. The DAEO may include in these instructions or issuances
examples of outside employment and activities that are permissible or
impermissible consistent with this part and 5 CFR part 2635.
Dated: November 28, 2023.
Anna Davis,
General Counsel & DAEO.
Shelley K. Finlayson,
Acting Director, U.S. Office of Government Ethics.
[FR Doc. 2023-26950 Filed 12-7-23; 8:45 am]
BILLING CODE 6732-01-P
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