03-8989. Supplemental Standards of Ethical Conduct for Employees of the Institute of Museum and Library Services

AGENCY:

Institute of Museum and Library Services (IMLS).

ACTION:

Interim final rule, with request for comments.

SUMMARY:

The Institute of Museum and Library Services, with the concurrence of the Office of Government Ethics (OGE), is issuing regulations for officers and employees of IMLS that supplement the Standards of Ethical Conduct for Employees of the Executive Branch issued by OGE. The supplemental regulations require IMLS employees to obtain prior written approval to engage in certain outside employment or related activities.

EFFECTIVE DATE:

These regulations take effect on April 14, 2003. Comments are invited and must be received on or before May 14, 2003.

ADDRESSES:

Send comments by mail to Nancy E. Weiss, General Counsel, Institute of Museum and Library Services, 1100 Pennsylvania Avenue, NW., Suite 802, Washington, DC 20506, or by e-mail to [e-mail].

FOR FURTHER INFORMATION CONTACT:

Nancy E. Weiss, General Counsel, Institute of Museum and Library Services, Suite 802, 1100 Pennsylvania Avenue, NW., Washington, DC 20506. Telephone [phone]; e-mail [e-mail]. Individuals who use a telecommunications device for the deaf (TDD) may contact IMLS' TDD terminal at [phone].

SUPPLEMENTARY INFORMATION:

1. Background

On August 7, 1992, OGE published in the Federal Register new Standards of Ethical Conduct for Employees of the Executive branch (the “Standards”) (57 FR 35006-35067). The Standards, as corrected and amended, are codified at 5 CFR part 2635 and generally became effective February 3, 1993. Those regulations established uniform standards of ethical conduct that apply to all executive branch personnel.

With the concurrence of OGE, 5 CFR 2635.150 authorizes executive branch agencies to publish agency-specific supplemental regulations necessary to implement their respective ethics programs. With OGE's concurrence, IMLS has determined that the following supplemental regulations contained in a new chapter LXVII, consisting of part 7701, of 5 CFR as set forth in this interim rule are necessary to implement IMLS's ethics program successfully, in light to of IMLS' programs and operations.

II. Analysis of the Regulations

Section 7701.101 General

Section 7701.101 explains that the regulations contained in this interim rule will apply to all IMLS employees and are supplemental to the executive branchwide standards. Employees of IMLS are also subject to the Standards of Ethical Conduct for Employees of the Executive Branch at 5 CFR part 2635, the executive branch financial disclosure and financial interests regulations at 5 CFR parts 2634 and 2640, and the executive branch employees responsibilities and conduct regulations at 5 CFR part 735.

Section 7701.102 Prior-Approval for Outside Employment

Under 5 CFR 2635.803, an agency that determines if is necessary or desirable for the purpose of administering its ethics program may, by supplemental regulation with OGE's concurrence and co-signature, require its employees to obtain written approval before engaging in outside employment. IMLS has determined that it is necessary to the administration of its ethics program to institute the requirement that employment that may pose the most potential for employees to violate applicable conflict laws and regulations.

Therefore, subsection 7701.102(a) requires prior approval of outside employment when the outside employment involves a prohibited source. In identifying a “prohibited source” for purposes of this prior approval requirement, IMLS will apply the definition of that term found in the Standards at 5 CFR 2635.203(d). Thus, an employee would have to obtain approval before engaging in outside employment with any person (including an organization more than half of whose members are persons) seeking official action by IMLS; doing business or seeking to do business with IMLS; conducting activities regulated by IMLS; or having interests that may be substantially affected by the performance or nonperformance of the employee's official duties. Section 7701.102(a) also requires written requests for approval to be submitted to the employee's immediate supervisor and his or her Designated Agency Ethics Officials and specifies the information to be included in the employee's request. Section 7701.102(b) states the standard to be used in approving or denying requests for approval of outside employment. The basis of denial, if any, must be found in applicable statutes or Federal regulations, including the executive branchwide Standards and this part.

Section 7701.102(c) defines outside employment as including any form of compensated or uncompensated non-Federal employment or business relationship involving the provision of personal services by the employee. It includes writing done under arrangement with another person for production or publication of the written product.

III. Matters of Regulatory Procedure

Waiver of Proposed Rulemaking

As Director of IMLS, I have 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 this interim rule. The reason for this determination is that this rulemaking is related to IMLS' organization, procedure and practice. Nonetheless, this is an interim rulemaking with provision for a 30-day public comment period. IMLS 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 and co-signature of the Office of Government Ethics.

Regulatory Flexibility Act

As Director of IMLS, I have determined under the Regulatory Flexibility Act (5 U.S.C. chapter 6) that this regulation will not have a significant economic impact on a substantial number of small entities because it only affects IMLS employees.

Paperwork Reduction Act

As Director of IMLS, I have determined that the Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply because these regulations do not contain any information collection requirements that require the approval of the Office of Management and Budget.

Executive Order 12866

In promulgating this interim rule, IMLS 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. This rule has not been reviewed by the Office of Management and Budget under that Executive Order, since it deals with agency organization, management, and personnel matters and is not in any event deemed “significant” thereunder.

Executive Order 12988

As Director of IMLS, I have reviewed this interim rule in light of section 3 of Executive Order 12988, Civil Justice Reform, and certify that it meets the applicable standards provided therein.

Unfunded Mandates Reform Act

For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. chapter 25, subchapter II), this rule will not significantly or uniquely affect small governments and will not result in increased expenditures by State, local, and tribal governments, or by the private sector, of $100 million or more (as adjusted for inflation) in any one year.

Congressional Review Act

IMLS has determined that this rulemaking is a nonrule under the Congressional Review Act (5 U.S.C. chapter 8), since it deals with agency management, organization and personnel matters.

List of Subjects in 5 CFR Part 7701

• Conflict of interests
• Standards of conduct
• Government employees

Dated: March 7, 2003.

Robert S. Martin,

Director, Institute of Museum and Library Services.

Approved: March 26, 2003.

Amy L. Comstock,

Director, Office of Government Ethics.

For the reasons set forth in the preamble, the Institute of Museum and Library Services, with the concurrence of the Office of Government Ethics, is amending title 5 of the Code of Federal Regulations, by adding a new chapter LXVII, consisting of part 7701, to read as follows:

CHAPTER LXVII—INSTITUTE OF MUSEUM AND LIBRARY SERVICES

PART 7701—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE INSTITUTE OF MUSEUM AND LIBRARY SERVICES

7701.101

Purpose.

7701.102

Prior approval for outside employment.

Authority: 5 U.S.C. 7301, 5 U.S.C. App. (Ethics in Government Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.803.

§ 7701.101

Purpose.

In accordance with 5 CFR 2635.105, the regulations of this part apply to employees of the Institute of Museum and Library Services (IMLS) and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635. In addition to the regulations in 5 CFR part 2635 and this part, employees of IMLS are subject to the executive branch employee responsibilities and conduct regulations at 5 CFR part 735, the executive branch financial disclosure regulations at 5 CFR part 2634, and the executive branch financial interests regulations at 5 CFR part 2640.

§ 7701.102

Prior approval for outside employment.

(a) Before engaging in any outside employment with a prohibited source within the meaning of 5 CFR 2635.203(d), whether or not for compensation, an employee other than a special Government employee must obtain written approval from his or her immediate supervisor and the Designated Agency Ethics Official. The request for approval shall include the following:

(1) The name of the person, group, or organization for which the work is to be performed, the type of work to be performed, and the proposed hours of work and approximate dates of employment;

(2) A brief description of the employee's official IMLS duties and a brief description of the employee's discipline or inherent area of expertise based on experience of educational background;

(3) The employee's certification that the outside employment will not depend on information obtained as a result of the employee's official Government position and that no official duty time or Government property, resources, or facilities not available to the general public will be used in connection with the outside employment; and

(4) Responses to the following:

(i) Whether the proposed outside employment will pertain to a matter to which the employee is presently assigned or has been assigned within the last year;

(ii) Whether the proposed outside employment pertains to an ongoing or announced agency policy or program;

(iii) Whether the sponsor of the proposed outside employment has any interests before IMLS that may be substantially affected by the performance or nonperformance of the employee's duties;

(iv) Whether the employee intends to refer to his or her official IMLS position during the proposed outside employment and if so, the text of any disclaimers that he or she will use;

(v) Whether the employee will receive any payment or compensation for the proposed outside employment; and

(vi) Whether the proposed outside employment will involve teaching a course which is part of the established curriculum of an accredited institution of higher education, secondary school, elementary school, or an education or training program sponsored by a Federal, State or local government entity.

(b) Approval shall be granted only upon determination that the outside employment is not expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635 and this part.

(c) Outside employment means any form of compensated or uncompensated non-Federal employment or business relationship involving the provision of personal services by the employee. It includes, but is not limited to, personal services such as acting as an officer, director, employee, trustee, agent, attorney, consultant, contractor, general partner, teacher or speaker. It includes writing when done under an arrangement with another person for production or publication of the written product.