[Federal Register Volume 63, Number 63 (Thursday, April 2, 1998)]
[Proposed Rules]
[Pages 16141-16142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-8649]
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Proposed Rules
Federal Register
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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.
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Federal Register / Vol. 63, No. 63 / Thursday, April 2, 1998 /
Proposed Rules
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FEDERAL LABOR RELATIONS AUTHORITY
5 CFR Chapter XIV
Notice of Opportunity To Submit Comments on Issues Arising Under
the Presidential and Executive Accountability Act
AGENCY: Federal Labor Relations Authority
ACTION: Review of regulations, request for comment.
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SUMMARY: The Federal Labor Relations Authority (FLRA) is providing an
opportunity for all interested persons to comment on issues that have
arisen as the agency carries out its responsibilities under the
Presidential and Executive Office Accountability Act. The FLRA was
directed to issue regulations extending coverage of Chapter 71 of Title
5, United States Code, to the Executive Office of the President no
later than October 1, 1998.
DATES: Responses submitted in response to this notice will be
considered if received by mail or personal delivery in the Authority's
Office of Case Control by 5 p.m. on or before April 17, 1998.
ADDRESSES: Mail or deliver written comments to the Office of Case
Control, Federal Labor Relations Authority, 607 14th Street, NW., Room
415, Washington, DC 20424-0001.
FOR FURTHER INFORMATION CONTACT: Ms. Kim Weaver, Director of External
Affairs, at the address listed above or by telephone: (202) 482-6500.
SUPPLEMENTARY INFORMATION:
1. Background
The Presidential and Executive Office Accountability Act (Pub. L.
104-331) (the Act) was enacted on October 26, 1996, extending the
coverage of eleven civil rights, labor and employment laws to the
Executive Office of the President. The Act applies Chapter 71 of Title
5, the Federal Service Labor-Management Relations Statute (the
Statute), to the Executive Office of the President and requires the
FLRA to promulgate regulations to implement the Act, no later than
October 1, 1998. Pursuant to legislative history urging the FLRA to
engage in ``extensive rulemaking,'' the FLRA is requesting comments on
the issues raised below.
The Executive Office of the President (EOP) is comprised of
thirteen separate offices: the White House Office, the Executive
Residence at the White House, the Office of the Vice President, the
Official Residence of the Vice President, the Office of Policy
Development, the Council of Economic Advisors, the Council on
Environmental Quality and Office of Environmental Quality, the National
Security Council, the Office of Administration, the Office of
Management and Budget, the Office of National Drug Control Policy, the
Office of Science and Technology, and the Office of the United States
Trade Representative.
According to House Report No. 104-820 (110 Stat. 4375), there are
roughly 1,700 employees working in the EOP. Less than one-third of
these are Title 3 employees, who traditionally serve at the pleasure of
the President. The Title 3 employees work in the White House Office,
the Office of the Vice President, the Office of Policy Development, the
Executive Residence, and the Official Residence of the Vice President.
The remaining 1,150 employees are covered by Title 5, and are civil
service employees serving under the same laws and regulations as other
career executive branch employees. The Title 5 employees work in the
other eight EOP offices, which were covered by Chapter 71 of Title 5
prior to the enactment of the Act.
2. Requirements Placed on the FLRA
The Act contains a general requirement that the FLRA issue
regulations for the EOP that are the same as the substantive
regulations promulgated by the FLRA for all other agencies under its
jurisdiction. This general requirement applies differently, however,
depending on the Act's classification of the EOP offices.
With respect to the first group of five designated offices (the
Council on Environmental Quality, the Office of Administration, the
Office of Science and Technology Policy, the Office of the U.S. Trade
Representative, and the Official Residence of the Vice President), the
Act requires that the FLRA's regulations be the same as the substantive
regulations that apply to other agencies, except to the extent that the
Authority determines for good cause, or to avoid a conflict of interest
(COI) or an appearance of a conflict of interest, that a modification
is required. For the remaining eight EOP offices, the Act imposes a
third requirement: the FLRA must also consider the impact of its
regulations on the President's or Vice President's constitutional
responsibilities. This compels the FLRA to review its regulations to
determine whether there are constitutional issues that require the FLRA
to modify its regulations for four of the eight Title 5 offices. See
Table 1-1.
Table. 1-1
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FLRA must review COI &
Previously covered by constitutional
Office [section 401(a)(4)] Type of employee chapter 71 responsibilities
[section 431(d)]
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White House Office.................. Title 3................ No..................... Yes.
Office of the Vice President........ Title 3................ No..................... Yes.
Office of Policy Development........ Title 3................ No..................... Yes.
Executive Residence at the White Title 3................ No..................... Yes.
House.
Official Residence of the Vice Title 3/Title 10....... No..................... No.
President.
Council of Economic Advisers........ Title 5................ Yes.................... Yes.
Council on Environmental Quality.... Title 5................ Yes.................... No.
[[Page 16142]]
National Security Council........... Title 5................ Yes.................... Yes.
Office of Administration............ Title 3/Title 5........ Yes (Title 5 employees) No.
Office of Management and Budget..... Title 5................ Yes.................... Yes.
Office of National Drug Control Title 5................ Yes.................... Yes.
Policy.
Office of Science and Technology Title 5................ Yes.................... No.
Policy.
Office of the US Trade Title 5................ Yes.................... No.
Representative.
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3. Issues on Which Comments Are Requested
The FLRA is reviewing its current regulations to determine whether
any modifications are necessary. As the review process continues, the
FLRA is requesting comment on the following issues:
1. Appropriateness of Bargaining Units and Eligibility
Section 7112 of the Statute gives the FLRA the authority to
determine the appropriateness of any unit. Section 7112(b) discusses
the types of employees who shall not be included in an appropriate
unit. Section 431(d)(1)(B) of the Act states that the Authority ``shall
exclude [employees] from coverage'' if there are any conflict of
interest or constitutional issues. Given the provision of section 7112,
the implementing regulations found at 5 CFR 2421.14, as well as the
requirements of section 431(d)(1)(B), are there factors that should be
included in the FLRA's regulations to address the appropriateness of
units in the EOP?
2. Remedies
Section 431(a) of the Act prohibits the FLRA from ordering
reinstatement as a remedy. Sections 7118(a)(7) and 7105(a)(2)(I) of the
Statute describe the remedial powers of the FLRA. Are there remedial
powers of the FLRA, in addition to reinstatement, that should be
examined in light of the Act's requirements?
3. Security Issues
The FLRA currently has the ability to investigate, prosecute, and
adjudicate cases in which non-public information could be at issue or
discussed. In addition to the precautions already taken in those cases,
are there additional security concerns that the FLRA should consider in
the drafting of its regulations?
4. Conflict of interest/Appearance of Conflict of Interest
Section 431(d)(1)(B)(i) of the Act requires the FLRA to exclude
certain covered employees if the FLRA determines such an exclusion is
required due to a conflict of interest or an appearance of a conflict
of interest. Do the following examples create a conflict or an
appearance of a conflict: (1) the FLRA Chair, General Counsel, and the
members of the Federal Service Impasses Panel serve at the pleasure of
the President, and therefore, are removable at will; or (2) that the
Office of Management and Budget controls the FLRA's budget and the FLRA
does not have so-called ``by-pass'' authority to allow it to request
additional funds from the Congress? Are there other issues that the
FLRA should consider in drafting its regulations?
5. Constitutional Issues
Section 431(d)(1)(B)(ii) of the Act requires the FLRA to exclude
certain covered employees if the FLRA determines such an exclusion is
required due to the President's or Vice President's constitutional
responsibilities. An initial review by the FLRA of the Constitution and
case law outlining the President and Vice President's constitutional
responsibilities did not yield any constitutional issues that would
require modification of current FLRA regulations. Are there any
constitutional issues that should be considered by the FLRA in drafting
the regulations?
6. Political Affiliation
Section 435(g) of the Act states that it:
shall not be a violation of any provision of this chapter to
consider, or make any employment decision based on, the party
affiliation, or political compatibility with the employing office *
* *.
Is there anything in the Statute or FLRA's current regulations that
will conflict with section 435(g)?
7. Head of an Agency
Sections 7102(1), 7114(c)(1)--(3), and 7117(c)(3) of the Statute
reference actions by the ``head of an agency.'' For the purposes of the
EOP operations, who should be considered the ``head of an agency'' for
each EOP office?
Solly Thomas,
Executive Director.
[FR Doc. 98-8649 Filed 4-1-98; 8:45 am]
BILLING CODE 6727-01-P
