[Federal Register Volume 61, Number 212 (Thursday, October 31, 1996)]
[Rules and Regulations]
[Pages 56109-56114]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-27735]
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Rules and Regulations
Federal Register
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This section of the FEDERAL REGISTER contains regulatory documents
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Federal Register / Vol. 61, No. 212 / Thursday, October 31, 1996 /
Rules and Regulations
[[Page 56109]]
FEDERAL COMMUNICATIONS COMMISSION
5 CFR Ch. XXIX
47 CFR Part 19
[FCC 96-419]
RIN 3209-AA15
Supplemental Standards of Ethical Conduct and Financial
Disclosure Regulations for Employees of the Federal Communications
Commission and Revision of the Commission's Employee Responsibilities
and Conduct Regulations
AGENCY: Federal Communications Commission (FCC or Commission).
ACTION: Final rule.
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SUMMARY: The Federal Communications Commission, with the concurrence of
the Office of Government Ethics (OGE), is issuing regulations for
employees of the Commission that supplement the Standards of Ethical
Conduct for Employees of the Executive Branch issued by OGE. The
supplemental rules require professional employees of the Commission to
obtain approval prior to engaging in certain outside activities and
provide cross-references to restrictions based on authority other than
the executive branch-wide Standards. The Commission also is revising
its residual standards of conduct regulations found in 47 CFR part 19
by repealing those sections that were superseded by the executive
branch-wide Standards and the Commission's supplemental regulation, and
by adding general cross references to the Executive Branch-wide
standards and related regulations. In addition, the Commission is
transferring to a new supplemental part certain provisions in its
existing financial disclosure regulations.
EFFECTIVE DATE: These regulations are effective October 31, 1996.
FOR FURTHER INFORMATION CONTACT: Sharon B. Kelley, Senior Attorney-
Advisor, Office of General Counsel, Federal Communications Commission,
telephone: (202) 418-1720.
SUPPLEMENTARY INFORMATION:
I. Background
On August 7, 1992, the Office of Government Ethics published a
final rule entitled Standards of Ethical Conduct for Employees of the
Executive Branch (Standards). See 57 FR 35006-35067, as corrected at 57
FR 48557, 57 FR 52583 and 60 FR 51667, with additional grace period
extensions at 59 FR 4779-4780, 60 FR 6390-6391 and 60 FR 66857-66858.
The Standards, codified at 5 CFR part 2635 and effective February 3,
1993, establish uniform Standards of Ethical Conduct that apply to all
executive branch personnel.
With the concurrence of OGE, 5 CFR 2635.105 authorizes executive
branch agencies to publish agency-specific supplemental ethical conduct
standards regulations necessary to implement their respective ethics
programs. The Commission, with OGE's concurrence, has determined that
its supplemental regulations, being codified in new chapter XXIX of 5
CFR, consisting of parts 3901 and 3902 (see the discussion below at
section II.B of this Supplementary Information block with regard to
this latter financial disclosure supplemental regulation) are necessary
to implement the Commission's ethics program successfully, in light of
the Commission's programs, operations and statutory requirements.
II. Analysis of the Regulations
A. Supplemental Standards of Ethical Conduct
Section 3901.101 General
Section 3901.101 explains that the regulation applies to all
employees of the Commission, and is supplemental to the executive
branch-wide Standards. The section also cross-references the
Commission's employee responsibilities and conduct regulations at 47
CFR part 19, as well as the executive branch-wide financial disclosure
regulations at 5 CFR part 2634 and the FCC supplemental financial
disclosure regulations at 5 CFR part 3902.
Section 3901.102 Prior Approval for Practice of a Profession
The OGE standards, at 5 CFR 2635.803, recognize that an agency may
find it necessary or desirable to issue supplemental regulations
requiring its employees to obtain approval before engaging in outside
employment or activities. The Commission's old standards of conduct
regulations, at 47 CFR 19.735-203(b), have long required prior approval
for the outside practice of an employee's profession. The Commission
has found this requirement useful in ensuring that the outside
employment activities of employees conform with all applicable laws and
regulations. In accordance with 5 CFR 2635.803, the Commission has
determined that it is necessary to the administration of its ethics
program to continue to require such approval with minor modifications.
Section 3901.102(a) requires any professional employee of the
Commission to obtain approval before engaging in the practice of the
same profession as that of the employee's official position. This
provision reflects the way the Commission has applied the prior
approval requirement which has been found at 47 CFR 19.735-203(b),
which is now being removed. For clarity, new Sec. 3901.102(a) also
includes definitions of the terms ``profession'' and ``professional
employee'' that are based upon the definition of ``profession'' in
OGE's executive branch-wide outside employment regulation at 5 CFR
2636.305(b)(1). The procedure for requesting prior approval under the
requirement which has been found at 47 CFR 19.735-203(b) also is being
changed, in Sec. 3901.102(b), to require employees to obtain approval
from both the Designated Agency Ethics Official or his or her designee,
and the employee's immediate supervisor; and to require employees to
submit a revised request for approval upon a significant change in the
nature or scope of the employee's FCC position or the services to be
provided in practicing his or her profession.
The criteria in Sec. 3901.102(c), to be used in approving or
denying requests for prior approval, indicate that Sec. 3901.102 does
not itself provide a basis to deny permission to engage in an outside
activity. The basis for disapproval, if any, must be found in
[[Page 56110]]
applicable statutes or the executive branch-wide Standards.
B. Supplemental Financial Disclosure Regulations
The Commission's old employee responsibilities and conduct
regulations, at 47 CFR 19.735-403(b), have long required all employees
who file either Standard Form (SF) 278, ``Public Financial Disclosure
Report,'' or SF/OGE Form 450, ``Confidential Financial Disclosure
Report,'' to also file a supplemental financial disclosure form (FCC
Form A54A) that collects information about income and interests in
property or assets valued below the minimum reporting limits of the SF
278 and the SF/OGE Form 450, respectively. Section 4(b) of the
Communications Act of 1934, at 47 U.S.C. 154(b)(2)(A), contains
prohibitions on certain financial interests of any value. The
Commission has determined that it is necessary to fulfill its statutory
responsibilities under the Communications Act to continue to require
employees to submit this supplemental financial disclosure form.
Accordingly, pursuant to 5 CFR 2634.103, 2634.601(b) and 2634.901(b),
the Commission is issuing, with OGE's concurrence, a supplemental
financial disclosure regulation in new part 3902 of 5 CFR retaining
procedures which have been found in 47 CFR 19.735-403(b), now being
revoked, for Commission employees to follow in filing FCC Form A54A.
Section 3902.101 General
Section 3902.101 of the final rule explains that the regulations in
part 3902 apply to employees of the Federal Communications Commission
and supplement the Executive Branch Financial Disclosure Regulations
contained in 5 CFR part 2634.
Section 3902.102 Employees Required to Submit FCC Form A54A,
``Confidential Supplemental Statement of Employment and Financial
Interests''
Section 3902.102 of the final rule provides that all employees of
the Commission, including special Government employees, who are
required to file a Standard Form (SF) 278, ``Public Financial
Disclosure Report,'' or SF/OGE Form 450, ``Confidential Financial
Disclosure Report,'' are also required to file FCC Form A54A,
``Confidential Supplemental Statement of Employment and Financial
Interests.'' In addition, Sec. 3902.102 explains that the purpose of
FCC Form A54A is to require disclosure of income and interests in
property and assets valued below the minimum reporting limits of the SF
278 and the SF/OGE Form 450, due to the restrictions on financial
interests in the Communications Act.
Section 3902.103 Submission and Review of Employees' Statements
Section 3902.103 of the final rule provides the time frames for
filing these statements by employees, to whom the statements should be
submitted for review, and the process if an employee is found to have a
conflict or appearance of a conflict of interest arising from a
financial interest. The Commission's old employee responsibilities and
conduct regulations, at 47 CFR 19.735-405 which is now being revoked,
have long contained identical procedures and the Commission has found
them necessary to fulfill its statutory responsibilities under section
4(b) of the Communications Act, at 47 U.S.C. 154(b).
Section 3902.104 Confidentiality of Employees' Statements
Section 3902.104 provides that employee supplemental statements are
treated confidentially (see 5 CFR 2634.103(a)(2) and 2634.601(b)) and
sets forth the basis for their disclosure. The Commission's
responsibilities and conduct regulations, at 47 CFR 19.735-410 which is
now being revoked, have long required confidential treatment of such
employee statements and the Commission has found this rule useful in
obtaining the necessary financial information in fulfillment of its
statutory responsibilities under section 4(b) of the Communications
Act, at 47 U.S.C. 154(b).
III. Repeal and Revision of Federal Communications Commission
Standards of Conduct Regulations
The final rules repeal many of the FCC regulations in 47 CFR part
19. Most of the repealed provisions were superseded by the executive
branch-wide Standards at 5 CFR part 2635, or were superseded or
rendered unnecessary by the interim rules regarding public and
confidential financial disclosure reports at 5 CFR part 2634. Section
19.735-203(b) of 47 CFR is superseded by the requirement for prior
approval of the private practice of a profession at 5 CFR part
3901.102. Other repealed provisions are unnecessary for inclusion in 47
CFR part 19 because they duplicate the executive branch-wide employee
responsibilities and conduct regulations at 5 CFR part 735. The
Commission is replacing the repealed provisions with a cross-reference
to the executive branch-wide Standards of Ethical Conduct and financial
disclosure regulations at 5 CFR parts 2634 and 2635, the Commission's
supplemental standards of ethical conduct and supplemental financial
disclosure regulations at 5 CFR parts 3901 and 3902, and the executive
branch-wide regulations regarding Employee Responsibilities and Conduct
at 5 CFR part 735. In addition, the remaining, unsuperseded provisions
in 47 CFR part 19 have been reorganized and edited for clarity and
consistency with other authorities.
The executive branch-wide Standards do not supersede regulations
that an agency has authority, independent of 5 CFR part 2635, to issue.
Nor would an agency have to include in its supplemental standards of
ethical conduct an instruction or other issuance the purpose of which
is to delegate to an agency designee authority to make any
determination, give any approval or take any other action required or
permitted by part 2635 or by supplemental agency regulations; or
establish internal agency procedures for documenting or processing any
determination, approval or other action required or permitted by part
2635 or by supplemental agency regulations, or for retaining any such
documentation. Such regulations, instructions and other issuances may
be promulgated separately from the agency's supplemental regulations.
The Communications Act, at 47 U.S.C. 303(r), authorizes the
Commission to make such rules and regulations and prescribe such
restrictions and conditions, not inconsistent with law, as may be
necessary to carry out the provisions of that Act. Further, the Act, at
47 U.S.C. 154(b), prohibits the Commissioners and employees of the
Commission from having certain financial interests and from engaging in
certain outside employment and activities. Accordingly, the Commission
is retaining in 47 CFR part 19 regulations implementing the
Communications Act's prohibitions on financial interests and on outside
employment and activities, and identifying certain information that is
nonpublic (see newly designated subpart B of part 19).
IV. Matters of Regulatory Procedure
Administrative Procedure Act
These revisions apply to internal rules of agency management,
personnel organization, practice and procedure for which notice and
comment is not required. The Commission is, for the most part, simply
removing those portions of part 19 that have been superseded by the OGE
regulations. The
[[Page 56111]]
new supplemental regulations are essentially similar to rules
previously contained in part 19 of the Commission's rules. 5 U.S.C.
553(a)(2), (b)(3)(A)), and (d).
List of Subjects
5 CFR Part 3901
Conflict of interests, Government employees, Outside activities.
5 CFR Part 3902
Conflict of interests, Government employees, Financial interests.
47 CFR Part 19
Conflicts of Interests, Government employees.
Adopted: October 16, 1996.
Released: October 29, 1996.
By the Commission.
William F. Caton,
Acting Secretary, Federal Communications Commission.
Approved: October 23, 1996.
Stephen D. Potts,
Director, Office of Government Ethics.
For the reasons set forth in the preamble, the Federal
Communications Commission, with the concurrence of the Office of
Government Ethics, is amending title 5 and title 47 of the Code of
Federal Regulations as follows:
TITLE 5--[AMENDED]
1. A new chapter XXIX, consisting of parts 3901 and 3902, is added
to title 5 of the Code of Federal Regulations to read as follows:
CHAPTER XXIX--FEDERAL COMMUNICATIONS COMMISSION
PART 3901--SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES
OF THE FEDERAL COMMUNICATIONS COMMISSION
Sec.
3901.101 General.
3901.102 Prior approval for practice of a profession.
Authority: 5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government
Act of 1978); 47 U.S.C. 303(r); 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.
Sec. 3901.101 General.
In accordance with 5 CFR 2635.105, the regulations in this part
apply to employees of the Federal Communications Commission (FCC) and
supplement the Standards of Ethical Conduct for Employees of the
Executive Branch contained in 5 CFR part 2635. In addition to the
standards in 5 CFR part 2635 and this part, employees are subject to
the Executive Branch Financial Disclosure Regulations contained in 5
CFR part 2634, the FCC's regulations at 5 CFR part 3902 supplementing 5
CFR part 2634, and to FCC regulations regarding their responsibilities
and conduct in 47 CFR part 19.
Sec. 3901.102 Prior approval for practice of a profession.
(a) Prior approval requirement. A professional employee of the FCC
shall obtain approval before engaging in the outside practice of the
same profession as that of the employee's official position, whether or
not for compensation. As used in this section, ``profession'' has the
meaning set forth in Sec. 2636.305(b)(1) of this title, and
``professional employee'' means an employee whose official FCC position
is in a profession as defined in Sec. 2636.305(b)(1) of this title.
(b) Procedures for requesting approval. (1) A request for approval
shall be in writing and shall be submitted, through the following
Commission officials, to the Designated Agency Ethics Official or his
designee:
(i) For Heads of Bureaus and Offices, through the Chairman;
(ii) For employees in the immediate Office of a Commissioner,
through the Commissioner; or
(iii) For all other employees, through the Head of the Bureau or
Office to which the employee is assigned.
(2) A request for approval shall include, at a minimum:
(i) A full description of the services to be performed in
practicing the profession;
(ii) The name and address of the person or organization for which
services are to be provided; and
(iii) The estimated total time that will be devoted to practicing
the profession.
(3) Upon a significant change in the nature or scope of the
employee's FCC position or the services to be provided in practicing
the profession, the employee shall submit a revised request for
approval.
(c) Standard for approval. Approval shall be granted only upon a
determination that the proposed outside practice of the employee's
profession is not expected to involve conduct prohibited by statute or
Federal regulation, including 5 CFR 2635.
PART 3902--SUPPLEMENTAL FINANCIAL DISCLOSURE REQUIREMENTS FOR
EMPLOYEES OF THE FEDERAL COMMUNICATIONS COMMISSION
Sec.
3902.101 General.
3902.102 Employees required to submit FCC Form A54A, ``Confidential
Supplemental Statement of Employment and Financial Interests.''
3902.103 Submission and review of employees' statements.
3902.104 Confidentiality of employees' statements.
Authority: 5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government
Act of 1978); 47 U.S.C. 154(b), (j), (i) and 303(r); 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 2634.103, 2634.601(b),
2634.901(b).
Sec. 3902.101 General.
The regulations in this part apply to employees of the Federal
Communications Commission (FCC) and supplement the Executive Branch
Financial Disclosure Regulations contained in 5 CFR part 2634.
Sec. 3902.102 Employees required to submit FCC Form A54A,
``Confidential Supplemental Statement of Employment and Financial
Interests.''
All employees, including special Government employees, who are
required to file a Standard Form (SF) 278, ``Public Financial
Disclosure Report,'' or a SF/OGE Form 450, ``Confidential Financial
Disclosure Report,'' are also required to file FCC Form A54A,
``Confidential Supplemental Statement of Employment and Financial
Interests.'' The purpose of FCC Form A54A is to require disclosure of
income and interest in property and assets valued below the minimum
reporting limits for the SF 278 and SF/OGE Form 450 in order to meet
the separate requirements of section 4(b) of the Communications Act of
1934, at 47 U.S.C. 154(b).
Sec. 3902.103 Submission and review of employees' statements.
(a) An employee required to submit a statement of employment and
financial interests will be notified individually of his or her
obligation to file.
(b) An employee required to submit an FCC Form A54A, ``Confidential
Supplemental Statement of Employment and Financial Interests'' pursuant
to Sec. 3902.102 shall submit such statement to the Designated Agency
Ethics Official, on the prescribed form, not later than 30 days after
his or her entrance on duty, and annually thereafter at the time the
employee
[[Page 56112]]
submits his or her SF 278 or SF/OGE Form 450.
(c) Financial statements submitted under this subpart shall be
reviewed by the Designated Agency Ethics Official.
(d) When a statement submitted under this subpart or information
from other sources indicates a potential violation of applicable laws
and regulations, such as a conflict between the interests of an
employee or special Government employee and the performance of his or
her services for the Government, the employee concerned shall be
provided an opportunity to explain and resolve the potential violation.
(e) When, after explanation by the employee involved, the potential
violation of law or regulation is not resolved, the information
concerning the potential violation shall be reported to the Chairman by
the Designated Agency Ethics Official for appropriate action.
Sec. 3902.104 Confidentiality of employees' statements.
Each supplemental statement of employment and financial interests
shall be held in confidence and shall be retained in the Office of the
Designated Agency Ethics Official. Each employee charged with reviewing
a statement is responsible for maintaining the statements in confidence
and shall not allow access to or allow information to be disclosed from
a statement except to carry out the purpose of this part or as
otherwise required by law. Information from these statements shall not
be disclosed except as the Chairman may determine in accordance with
law or regulation.
TITLE 47--[AMENDED]
CHAPTER I--FEDERAL COMMUNICATIONS COMMISSION
2. Part 19 of 47 CFR chapter I is revised to read as follows:
PART 19--EMPLOYEE RESPONSIBILITIES AND CONDUCT
Subpart A--General Provisions
Sec.
19.735-101 Purpose.
19.735-102 Cross-reference to ethics and other conduct related
regulations.
19.735-103 Definitions.
19.735-104 Delegations.
19.735-105 Availability of ethics and other conduct related
regulations and statutes.
19.735-106 Interpretation and advisory service.
19.735-107 Disciplinary and other remedial action.
Subpart B--Employee Responsibilities and Conduct
19.735-201 Outside employment and other activity prohibited by the
Communications Act.
19.735-202 Financial interests prohibited by the Communications
Act.
19.735-203 Nonpublic information.
Authority: 5 U.S.C. 7301; 47 U.S.C. 154 (b), (i), (j), and
303(r).
Subpart A--General Provisions
Sec. 19.735-101 Purpose.
The regulations in this part prescribe procedures and standards of
conduct that are appropriate to the particular functions and activities
of the Commission, and are issued by the Commission under authority
independent of the uniform Standards of Ethical Conduct for Employees
of the Executive Branch at 5 CFR part 2635 or otherwise in accordance
with 5 CFR 2635.105(c).
Sec. 19.735-102 Cross-reference to ethics and other conduct related
regulations.
In addition to the rules in this part, employees of the Federal
Communications Commission (Commission) are subject to the Standards of
Ethical Conduct for Employees of the Executive Branch at 5 CFR part
2635 and the Commission's regulations at 5 CFR part 3901 which
supplement the executive branch-wide standards, the executive branch
financial disclosure regulations at 5 CFR part 2634 and the
Commission's regulations at 5 CFR part 3902 which supplement the
executive branch-wide financial disclosure regulations, and the
employee responsibilities and conduct regulations at 5 CFR part 735.
Sec. 19.735-103 Definitions.
Commission means the Federal Communications Commission.
Communications Act means the Communications Act of 1934, as
amended, 47 U.S.C. 151 et seq.
Employee means an officer or employee of the Commission including
special Government employees within the meaning of 18 U.S.C. 202(a) and
the Commissioners.
Person means an individual, a corporation, a company, an
association, a firm, a partnership, a society, a joint stock company,
or any other organization or institution.
Sec. 19.735-104 Delegations.
(a) The Commission has delegated to the Chairman responsibility for
the detection and prevention of acts, short of criminal violations,
which could bring discredit upon the Commission and the Federal
service.
(b) Approvals under 18 U.S.C. 205(e). (1) Commissioners may approve
the representational activities permitted by 18 U.S.C. 205(e) by other
employees in their immediate offices. The Designated Agency Ethics
Official has delegated authority to grant such approvals for all other
employees except Commissioners.
(2) (i) Requests for approval of the activities permitted by 18
U.S.C. 205(e) shall be in writing and submitted as follows:
(A) In the case of employees in the immediate offices of a
Commissioner, to the Commissioner;
(B) In the case of Heads of Offices and Bureaus, to the Chairman;
and
(C) In the case of all other employees except Commissioners, to the
Head of the Office or Bureau to which the employee is assigned.
(ii) An official (other than the Chairman or another Commissioner)
to whom a request for approval under 18 U.S.C. 205(e) is submitted
shall forward it to the Designated Agency Ethics Official with the
official's recommendation as to whether the request should be granted.
(3) Copies of all requests for approval under 18 U.S.C. 205(e) and
the action taken thereon shall be maintained by the Designated Agency
Ethics Official.
(c) Waivers under 18 U.S.C. 208. (1) Commissioners may waive the
applicability of 18 U.S.C. 208(a), in accordance with 18 U.S.C.
208(b)(1) or 208(b)(3) and section 301(d) of Executive Order 12731, for
other employees in their immediate offices. The Designated Agency
Ethics Official has delegated authority to make such waiver
determinations for all other employees except Commissioners.
(2) (i) Requests for waiver of the applicability of 18 U.S.C.
208(a) shall be in writing and submitted as follows:
(A) In the case of employees in the immediate offices of a
Commissioner, to the Commissioner;
(B) In the case of Heads of Offices and Bureaus, to the Chairman;
and
(C) In the case of all other employees except Commissioners, to the
Head of the Office or Bureau to which the employee is assigned.
(ii) An official (other than the Chairman or another Commissioner)
to whom a waiver request is submitted shall forward it to the
Designated Agency Ethics Official with the official's recommendation as
to whether the waiver should be granted.
(3) Copies of all requests for waivers and the action taken thereon
shall be maintained by the Designated Agency Ethics Official.
[[Page 56113]]
Sec. 19.735-105 Availability of ethics and other conduct related
regulations and statutes.
(a) (1) The Commission shall furnish each new employee, at the time
of his or her entrance on duty, with a copy of:
(i) The Standards of Ethical Conduct for Employees of the Executive
Branch (5 CFR part 2635);
(ii) The Supplemental Standards of Ethical Conduct for Employees of
the Federal Communications Commission (5 CFR part 3901); and
(iii) The Commission's Employee Responsibilities and Conduct
regulations in this part.
(2) The Head of each Office and Bureau has the responsibility to
secure from every person subject to his or her administrative
supervision a statement indicating that the individual has read and is
familiar with the contents of the regulations in this part, and the
regulations at 5 CFR parts 2635 and 3901, and to advise the Designated
Agency Ethics Official that all such persons have provided such
statements. Each new employee shall execute a similar statement at the
time of entrance on duty. Periodically, and at least once a year, the
Designated Agency Ethics Official shall take appropriate action to
ensure that the Head of each Office and Bureau shall remind employees
subject to his or her administrative supervision of the content of the
regulations in 5 CFR parts 2635 and 3901 and this part.
(b) Copies of pertinent provisions of the Communications Act of
1934; title 18 of the United States Code; the Standards of Ethical
Conduct for Employees of the Executive Branch (5 CFR part 2635); the
Commission's Supplemental Standards of Ethical Conduct (5 CFR part
3901); and the Commission's employee responsibilities and conduct
regulations in this part shall be available in the office of the
Designated Agency Ethics Official for review by employees.
Sec. 19.735-106 Interpretation and advisory service.
(a) Requests for interpretative rulings concerning the
applicability of 5 CFR parts 2635 and 3901, and this part, may be
submitted through the employee's supervisor to the General Counsel, who
is the Commission's Designated Agency Ethics Official pursuant to the
delegation of authority at 47 CFR 0.251(a).
(b) At the time of an employee's entrance on duty and at least once
each calendar year thereafter, the Commission's employees shall be
notified of the availability of counseling services on questions of
conflict of interest and other matters covered by this part, and of how
and where these services are available.
Sec. 19.735-107 Disciplinary and other remedial action.
(a) A violation of the regulations in this part by an employee may
be cause for appropriate disciplinary action which may be in addition
to any penalty prescribed by law.
(b) The Chairman will designate an officer or employee of the
Commission who will promptly investigate all incidents or situations in
which it appears that employees may have engaged in improper conduct.
Such investigation will be initiated in all cases where complaints are
brought to the attention of the Chairman, including: Adverse comment
appearing in publications; complaints from members of Congress, private
citizens, organizations, other Government employees or agencies; and
formal complaints referred to the Chairman by the Designated Agency
Ethics Official.
(c) The Inspector General will be promptly notified of all
complaints or allegations of employee misconduct. The Inspector General
will also be notified of the planned initiation of an investigation
under this part. Such notification shall occur prior to the initiation
of the investigation required by paragraph (a) of this section. The
Inspector General may choose to conduct the investigation in accordance
with the rules in this part. Should the Inspector General choose to
conduct the investigation, he will promptly notify the Chairman. In
such case, the Inspector General will serve as the designated officer
and be solely responsible for the investigation. In carrying out this
function, the Inspector General may obtain investigative services from
other Commission offices, other governmental agencies or non
governmental sources and use any other means available to him in
accordance with Public Law 100-504 or the Inspector General Act of
1978, as amended, 5 U.S.C. Appendix. The Inspector General will be
provided with the results of all investigations in which he chooses not
to participate.
(d) The employee concerned shall be provided an opportunity to
explain the alleged misconduct. When, after consideration of the
employee's explanation, the Chairman decides that remedial action is
required, he shall take remedial action. Remedial action may include,
but is not limited to:
(1) Changes in assigned duties;
(2) Divestiture by the employee of his conflicting interest;
(3) Action under the Commission's Ethics Program resulting in one
of the following actions:
(i) When investigation reveals that the charges are groundless, the
person designated by the Chairman to assist in administration of the
program may give a letter of clearance to the employee concerned, and
the case will not be recorded in his Official Personnel Folder;
(ii) If, after investigation, the case investigator deems the act
to be merely a minor indiscretion, he may resolve the situation by
discussing it with the employee. The case will not be recorded in the
employee's Official Personnel Folder;
(iii) If the case administrator considers the problem to be of
sufficient importance, he may call it to the attention of the Chairman,
who in turn may notify the employee of the seriousness of his act and
warn him of the consequences of a repetition. The case will not be
recorded in the employee's Official Personnel Folder, unless the
employee requests it;
(iv) The Chairman may, when in his opinion circumstances warrant,
establish a special review board to investigate the facts in a case and
to make a full report thereon, including recommended action; or
(v) (A) If the Chairman decides that formal disciplinary action
should be taken, he may prepare for Commission consideration a
statement of facts and recommend one of the following:
(1) Written reprimand. A formal letter containing a complete
statement of the offense and official censure;
(2) Suspension. A temporary non pay status and suspension from
duty; or
(3) Removal for cause. Separation for cause in case of a serious
offense.
(B) Only after a majority of the Commission approves formal
disciplinary action will any record resulting from the administration
of this program be placed in the employee's Official Personnel Folder;
or
(4) Disqualification for a particular assignment.
(e) Remedial action, whether disciplinary or otherwise, shall be
effected in accordance with any applicable laws, Executive orders, and
regulations.
Subpart B--Employee Responsibilities and Conduct
Sec. 19.735-201 Outside employment and other activity prohibited by
the Communications Act.
Under section 4(b) of the Communications Act, at 47 U.S.C.
154(b)(2)(A)(iv), no employee of the
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Commission may be in the employ of or hold any official relation to any
person significantly regulated by the Commission under that Act. In
addition, the Commissioners are prohibited by section 4(b) of the
Communications Act, at 47 U.S.C. 154(b)(4), from engaging in any other
business, vocation, profession, or employment.
Note: Under the Supplemental Standards of Ethical Conduct for
Employees of the Federal Communications Commission, at 5 CFR
3901.102, professional employees of the Commission must obtain
approval before engaging in the private practice of the same
profession as that of the employee's official position, whether or
not for compensation.
Sec. 19.735-202 Financial interests prohibited by the Communications
Act.
(a) No Commissioner shall have a pecuniary interest in any hearing
or proceeding in which he participates. (47 U.S.C. 154(j).)
(b) (1) Section 4(b) of the Communications Act, at 47 U.S.C.
154(b)(2)(A), provides:
No member of the Commission or person employed by the Commission
shall:
(i) Be financially interested in any company or other entity
engaged in the manufacture or sale of telecommunications equipment
which is subject to regulation by the Commission;
(ii) Be financially interested in any company or other entity
engaged in the business of communication by wire or radio or in the
use of the electromagnetic spectrum;
(iii) Be financially interested in any company or other entity
which controls any company or other entity specified in clause (i)
or clause (ii), or which derives a significant portion of its total
income from ownership of stocks, bonds, or other securities of any
such company or other entity; or
(iv) Be employed by, hold any official relation to, or own any
stocks, bonds, or other securities of, any person significantly
regulated by the Commission under this act; except that the
prohibitions established in this subparagraph shall apply only to
financial interests in any company or other entity which has a
significant interest in communications, manufacturing, or sales
activities which are subject to regulation by the Commission.
(2) To determine whether an entity has a significant interest in
communications related activities that are subject to Commission
regulations, the Commission shall consider, without excluding other
relevant factors, the criteria in section 4(b) of the Communications
Act, at 47 U.S.C. 154(b)(3). These criteria include:
(i) The revenues and efforts directed toward the telecommunications
aspect of the business;
(ii) The extent of Commission regulation over the entity involved;
(iii) The potential economic impact of any Commission action on
that particular entity; and
(iv) The public perception regarding the business activities of the
company.
(3)(i) Section 4(b) of the Communications Act, at 47 U.S.C.
154(b)(2)(B)(i), permits the Commission to waive the prohibitions at 47
U.S.C. 154(b)(2)(A). The Act's waiver provision at 47 U.S.C.
154(b)(2)(B)(i) provides:
The Commission shall have authority to waive, from time to time,
the application of the prohibitions established in subparagraph (A)
of section 4(b) to persons employed by the Commission if the
Commission determines that the financial interests of a person which
are involved in a particular case are minimal, except that such
waiver authority shall be subject to the provisions of section 208
of title 18, United States Code. The waiver authority established in
this subparagraph shall not apply with respect to members of the
Commission.
(ii)(A) Requests for waiver of the provisions of 47 U.S.C.
154(b)(2)(A) may be submitted by an employee to the Head of the
employee's Office or Bureau, who will endorse the request with an
appropriate recommendation and forward the request to the Designated
Agency Ethics Official. The Designated Agency Ethics Official has
delegated authority to waive the applicability of 47 U.S.C.
154(b)(2)(A).
(B) All requests for waiver shall be in writing and in the required
detail. The dollar value for the financial interest sought to be waived
shall be expressed explicitly or in categories of value provided at 5
CFR 2634.301(d).
(C) Copies of all waiver requests and the action taken thereon
shall be maintained by the Designated Agency Ethics Official. In any
case in which the Commission exercises the waiver authority established
in section 4(b) of the Communications Act, the Commission shall publish
notice of such action in the Federal Register and shall furnish notice
of such action to the appropriate committees of each House of the
Congress. Each such notice shall include information regarding the
identity of the person receiving the waiver, the position held by such
person, and the nature of the financial interests which are the subject
of the waiver.
Sec. 19.735-203 Nonpublic information.
(a) Except as authorized in writing by the Chairman pursuant to
paragraph (b) of this section, or otherwise as authorized by the
Commission or its rules, nonpublic information shall not be disclosed,
directly or indirectly, to any person outside the Commission. Such
information includes, but is not limited to, the following:
(1) The content of agenda items (except for compliance with the
Government in the Sunshine Act, 5 U.S.C. 552b); or
(2) Actions or decisions made by the Commission at closed meetings
or by circulation prior to the public release of such information by
the Commission.
(b) An employee engaged in outside teaching, lecturing, or writing
shall not use nonpublic information obtained as a result of his
Government employment in connection with such teaching, lecturing, or
writing except when the Chairman gives written authorization for the
use of that nonpublic information on the basis that its use is in the
public interest.
(c) This section does not prohibit the disclosure of an official
Commission meeting agenda listing titles and summaries of items for
discussion at an open Commission meeting. Also, this section does not
prohibit the disclosure of information about the scheduling of
Commission agenda items.
Note: Employees also should refer to the provisions of the
Standards of Ethical Conduct for Employees of the Executive Branch,
at 5 CFR 2635.703, on the use of nonpublic information. As is the
case with section 2635.703, this part is intended only to cover
knowing unauthorized disclosures of nonpublic information.
[FR Doc. 96-27735 Filed 10-30-96; 8:45 am]
BILLING CODE 6712-01-F
