Unknown. Final rule

7,655 words·~35 min read·/register/2000/10/02/00-25136

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

--- schema: federal-register doc_type: fedreg source_file: FR-2000-10-02.xml --- 65 191 Monday, October 2, 2000 Contents Agency Agency for Healthcare Research and Quality NOTICES Meetings: Health Services Research Initial Review Group Committee, 58773 00-25340 Agricultural Agricultural Marketing Service PROPOSED RULES Oranges, grapefruit, tangerines, and tangelos grown in Florida and imported, 58672-58675 00-25188 NOTICES Agency information collection activities: Proposed collection; comment request, 58729 00-25137 Agriculture Agriculture Department See Agricultural Marketing Service See Food Safety and Inspection Service See Forest Service See Rural Housing Service RULES Supplemental standards of ethical conduct for Agriculture Department employees, 58635-58640 00-25136 Air Force Air Force Department NOTICES Privacy Act:

Systems of records, 58753-58754 00-25103 Army Army Department NOTICES Environmental statements; availability, etc.: Base realignment and closure— Fort Hunter Liggett, CA, 58754-58755 00-25105 Bonneville Bonneville Power Administration NOTICES Electric power transmission, acquisition, and conservation: Federal Columbia River Transmission System— 1996 unauthorized increase charge adjustment, 58758-58761 00-25256 Centers Centers for Disease Control and Prevention NOTICES Agency information collection activities:

Submission for OMB review; comment request, 00-25143 58773-58775 00-25144 Organization, functions, and authority delegations: Public Health Systems Development and Research Division and Professional Development and Evaluation Division, 58775 00-25261 Coast Guard Coast Guard RULES Ports and waterways safety: Hartford, CT; safety zone, 58654-58655 00-25268 Port Jefferson Harbor, NY; safety zone, 58655-58656 00-25267 Regattas and marine parades: Fountain Power Boats Offshore Race, 58652-58654 00-25269 Commerce Commerce Department See Export Administration Bureau See International Trade Administration See National Institute of Standards and Technology See National Oceanic and Atmospheric Administration See National Telecommunications and Information Administration See Patent and Trademark Office Commodity Commodity Futures Trading Commission RULES Commodity pool operators and commodity trading advisors:

Commodity pools; profile documents; disclosure, 58648-58650 00-24984 Customs Customs Service NOTICES Automation program test: Electronic air cargo manifest information submission, 58840-58843 00-25182 Defense Defense Department See Air Force Department See Army Department NOTICES Arms sales notification; transmittal letter, etc., 58748-58752 00-25102 Meetings: Defense Intelligence Agency Science and Technology Advisory Board, 58753 00-25101 Healthcare Quality Initiatives Review Panel, 58753 00-25099 Science Board, 58753 00-25100 Education Education Department NOTICES Grants and cooperative agreements; availability, etc.:

Historically Black College and University Capital Financing Program; designated bonding authority, 58755-58757 00-25280 Postsecondary education— Native Hawaiian Higher Education Program, 58757-58758 00-25187 Employment Employment and Training Administration NOTICES Grants and cooperative agreements; availability, etc.: National Farmworkers Jobs Program, 58808-58817 00-25060 Energy Energy Department See Bonneville Power Administration See Federal Energy Regulatory Commission NOTICES Meetings:

Environmental Management Site-Specific Advisory Board— Paducah Gaseous Diffusion Plant, KY, 58758 00-25257 EPA Environmental Protection Agency RULES Grants and other Federal assistance: State and local assistance— Technical Assistance Program, 58849-58868 00-24047 Superfund program: National oil and hazardous substances contingency plan— National priorities list update, 58656-58657 00-24307 PROPOSED RULES Air pollutants, hazardous; national emission standards: Leather finishing operations, 58702-58719 00-24671 Air quality implementation plans; approval and promulgation; various States:

New York, 58698-58702 00-25228 NOTICES Reports and guidance documents; availability, etc.: Great Lakes binational toxics strategy; dioxins/furans report published in response to U.S.'s commitments, 58769 00-25172 Great Lakes binational toxics strategy; persistent toxic substances reports published in response to U.S.'s commitments, 58768-58769 00-25171 Executive Executive Office of the President See Trade Representative, Office of United States Export Export Administration Bureau NOTICES National Defense Stockpile; market impact of proposed disposals of excess commodities, 58731-58733 00-25233 FAA Federal Aviation Administration RULES Airworthiness directives:

Agusta S.p.A., 58647-58648 00-25151 Boeing, 58641-58645 00-24751 General Electric Co., 58645-58647 00-24901 Turbomeca, 58640-58641 00-24900 PROPOSED RULES Aircraft: Life-limited aircraft parts; safe disposition, 58877-58882 00-25045 Airworthiness directives: Bell, 58681-58682 00-25154 Pilatus Aircraft Ltd., 58675-58678 00-25152 Rockwell Collins, Inc., 58678-58680 00-25153 NOTICES Agency information collection activities: Proposed collection; comment request, 58838 00-25263 Airport noise compatibility program:

Cleveland Hopkins Airport, OH, 58838-58840 00-25264 Exemption petitions; summary and disposition, 58840 00-25265 FCC Federal Communications Commission RULES Common carrier services: Federal-State Joint Board on Universal Service— Telecommunications deployment and subscribership in unserved or underserved areas, including tribal and insular areas, 58662-58663 00-25220 Incumbent local exchange carriers— Accounting and reporting requirements; comprehensive review; effective date, 58661-58662 00-25014 Wireless telecommunications services— Compatibility with enhanced 911 emergency calling systems; reconsideration petitions, 58657-58661 00-25219 PROPOSED RULES Common carrier services:

Federal-State Joint Board on Universal Service— Telecommunications deployment and subscribership in unserved or underserved areas, including tribal and insular areas, 58721-58726 00-24636 NOTICES Agency information collection activities: Submission for OMB review; comment request, 58769 00-25278 Committees; establishment, renewal, termination, etc.: Emergency Alert System National Advisory Committee, 58769-58770 00-25277 Federal Emergency Federal Emergency Management Agency PROPOSED RULES Disaster assistance:

Public assistance program administration— Insurance requirements, 58720-58721 00-25017 NOTICES Disaster and emergency areas: California, 58770 00-25242 Idaho, 58770 00-25241 Grants and cooperative agreements; availability, etc.: Disaster grant amounts; adjustment, 58770-58771 00-25243 Federal Energy Federal Energy Regulatory Commission NOTICES Dockets: New docket prefix RTFY-NNNN-000; establishment, 58766 00-25181 Electric rate and corporate regulation filings: Potomac Electric Power Co. et al., 58766-58768 00-25180 *Applications, hearings, determinations, etc.:* Celerity Energy of New Mexico, LLC, 58763 00-25113 Dominion Transmission, Inc., 00-25111 58762 00-25117 East Tennessee Natural Gas Co., 58763 00-25118 El Paso Natural Gas Co., 58761-58762 00-25112 Overthrust Pipeline Co., 58763-58764 00-25115 00-25120 Questar Pipeline Co., 58764 00-25122 Reliant Energy Gas Transmission Co., 58764-58765 00-25121 Sea Robin Pipeline Co., 58765 00-25123 Texas Eastern Transmission Corp., 58765 00-25119 Total Peaking Services, L.L.C., 58765 00-25116 Virginia Electric & Power Co., 58766 00-25114 Federal Motor Federal Motor Carrier Safety Administration RULES Motor carrier safety and hazardous materials proceedings; household goods transportation in interstate or foreign commerce, 58663-58664 00-25260 Federal Reserve Federal Reserve System NOTICES Banks and bank holding companies:

Formations, acquisitions, and mergers, 58771-58772 00-25132 00-25238 Permissible nonbanking activities, 58772 00-25131 Meetings; Sunshine Act, 58772 00-25318 Fish Fish and Wildlife Service RULES Migratory bird hunting: Federal Indian reservations, off-reservation trust lands, and ceded lands, 58664-58671 00-25177 NOTICES Endangered and threatened species: Recovery plans— Virginia sneezeweed, 58784-58785 00-25107 Environmental statements; availability, etc.: Incidental take permits— Perry County, MS; gopher tortoise, 58786-58788 00-25146 Sarosota County, FL;

Florida scrub-jay, 58785-58786 00-25145 Meetings: Klamath Fishery Management Council, 58788 00-25147 Food Food and Drug Administration NOTICES Human drugs: New drug applications— Apothecon, Inc., et al., 58775-58777 00-24844 Food Food Safety and Inspection Service NOTICES Meetings: Codex Alimentarius Commission— Natural Mineral Waters and Cocoa Products and Chocolate Codex Committees, 58729-58730 00-25223 Forest Forest Service NOTICES Meetings: National Urban and Community Forestry Advisory Council, 58730-58731 00-25185 Opal Creek Scenic Recreation Area Advisory Council, 58731 00-25142 Willamette Provincial Advisory Committee, 58731 00-25141 Geological Geological Survey NOTICES Agency information collection activities:

Submission for OMB review; comment request, 58788-58789 00-25096 Grants and cooperative agreements; availability, etc.: State Partnership Program, 58789 00-25178 Meetings: National Cooperative Geologic Mapping Program Advisory Committee, 58789 00-25179 Government Government Printing Office NOTICES Meetings: Depository Library Council, 58772-58773 00-25140 Health Health and Human Services Department See Agency for Healthcare Research and Quality See Centers for Disease Control and Prevention See Food and Drug Administration See National Institutes of Health Housing Housing and Urban Development Department RULES Low income housing:

Housing assistance payments (Section 8)— Fair market rents for Housing Choice Voucher Program and Moderate Rehabilitation Single Room Occupancy Program, etc., 58869-58875 00-24922 Immigration Immigration and Naturalization Service NOTICES Temporary protected status program designations: Montserrat, 58806-58808 00-25250 Indian Indian Affairs Bureau NOTICES Tribal-State Compacts approval; Class III (casino) gambling: Chickasaw Nation, OK, 58789 00-25124 Choctaw Nation, OK, 58789 00-25125 Interior Interior Department See Fish and Wildlife Service See Geological Survey See Indian Affairs Bureau See Land Management Bureau See National Park Service NOTICES Reports and guidance documents; availability, etc.:

National Invasive Species Management Plan (Meeting the Challenge); comment request, 58783-58784 00-25338 IRS Internal Revenue Service RULES Income tax: Nonqualified preferred stock, 58650-58652 00-25258 NOTICES Agency information collection activities: Proposed collection; comment request, 00-25097 58843-58844 00-25098 International International Trade Administration NOTICES Antidumping: Preserved mushrooms from— China, 58735-58736 00-25270 Steel wire rope from— Various countries, 58736-58744 00-25271 Antidumping and countervailing duties:

Administrative review requests, 58733-58735 00-25275 *Applications, hearings, determinations, etc.:* Art Institute of Chicago, 58744-58745 00-25273 University of— Washington, 58745 00-25272 International International Trade Commission NOTICES Import investigations: Welded stainless steel pipes from— Korea and Taiwan, 58806 00-25232 Justice Justice Department See Immigration and Naturalization Service See Juvenile Justice and Delinquency Prevention Office Juvenile Juvenile Justice and Delinquency Prevention Office NOTICES Grants and cooperative agreements; availability, etc.:

Girls Study Group, 58883-58890 00-25239 National Girls Institute, 58891-58899 00-25240 Labor Labor Department See Employment and Training Administration See Mine Safety and Health Administration See Pension and Welfare Benefits Administration Land Land Management Bureau NOTICES Meetings: Resource Advisory Councils— Central Montana, 58789 00-25108 Motor vehicle use restrictions: Colorado, 58789-58791 00-24251 Mine Mine Safety and Health Administration NOTICES Safety standard petitions:

Blue Mountain Energy, Inc., et al., 58818-58822 00-25110 National National Council on Disability NOTICES Committees; establishment, renewal, termination, etc.: International Watch and Technology Watch Advisory Committees, 58822 00-25104 National Institute National Institute of Standards and Technology NOTICES Meetings: Advanced Technology Program Advisory Committee, 58745 00-25259 NIH National Institutes of Health NOTICES Inventions, Government-owned; availability for licensing, 58777-58778 00-25175 00-25176 Meetings:

Chronic Fatigue Syndrome Coordinating Committee, 58778-58779 00-25163 National Institute of Allergy and Infectious Diseases, 00-25156 00-25157 00-25159 00-25160 58779-58782 00-25161 00-25162 00-25168 National Institute of Neurological Disorders and Stroke, 00-25164 58781 00-25165 National Institute on Deafness and Other Communication Disorders, 00-25158 58779-58782 00-25167 00-25169 Scientific Review Center, 00-25155 58782-58783 00-25166 NOAA National Oceanic and Atmospheric Administration PROPOSED RULES Fishery conservation and management:

Alaska; fisheries of Exclusive Economic Zone— Pacific cod, 58727 00-25170 Trawl gear in Gulf of Alaska Central Regulatory Area; seasonal adjustment of closure areas; withdrawn, 58727-58728 00-25222 NOTICES Permits: Exempted fishing, 58745-58746 00-25221 National Park National Park Service NOTICES Boundary establishment, descriptions, etc.: Missouri National Recreational River, SD and NE; maps, 58791 00-25252 Environmental statements; availability, etc.: Voyageurs National Park, MN; general management plan/visitor use and facilities plan, 58791 00-25255 Whitman Mission National Historic Site, WA; general management plan, 58792-58794 00-25253 Meetings:

Kaloko-Honokohau National Historical Park Advisory Commission, 58794 00-25251 Native American human remains and associated funerary objects: Haffenreffer Museum of Anthropology, Brown University, RI— Wampanoag cultural items from Burr's Hill, RI, 58794 00-25128 Rhode Island Historical Society, RI— Latten spoons and small copper bells from Burr's Hill, RI, 58794-58795 00-25129 State Historical Society of Iowa, IA— Inventory from Plymouth County, IA, 58795-58796 00-25254 University of Nebraska-Lincoln, NE— Inventory from unknown locations, 58803-58806 00-25127 Inventory from various sites in Nebraska, 58796-58803 00-25126 National Science National Science Foundation NOTICES Meetings:

Advanced Computational Infrastructure and Research Special Emphasis Panel, 58822-58823 00-25209 Astronomical Sciences Special Emphasis Panel, 58823 00-25208 Biomolecular Processes Advisory Panel, 58823 00-25216 Biomolecular Structure and Function Advisory Panel, 58823 00-25212 Chemical and Transport Systems Special Emphasis Panel, 00-25201 58823-58824 00-25202 00-25203 00-25204 Chemistry Special Emphasis Panel, 00-25199 58824 00-25200 Civil and Mechanical Systems Special Emphasis Panel, 58825 00-25194 Ecological Studies Advisory Panel, 58825 00-25205 Economics, Decision, and Management Sciences Advisory Panel, 58825 00-25207 Electrical and Communications Systems Special Emphasis Panel, 58825-58826 00-25198 Engineering Advisory Committee, 58826 00-25210 Equal Opportunity in Science and Engineering Committee, 58826 00-25217 Human Resource Development Special Emphasis Panel, 58826 00-25197 Information and Intelligent Systems Special Emphasis Panel, 58826-58827 00-25189 00-25190 00-25191 00-25192 00-25193 Integrative Activities Special Emphasis Panel, 58827-58828 00-25218 International Arctic Research Center Oversight Council, 58828 00-25215 Mathematical and Physical Sciences Advisory Committee, 58828 00-25214 Mathematical Sciences Special Emphasis Panel, 58828 00-25196 Physics Special Emphasis Panel, 58828 00-25195 Physiology and Ethology Advisory Panel, 58829 00-25211 Systematic and Population Biology Advisory Panel, 58829 00-25206 Undergraduate Education Special Emphasis Panel, 58829 00-25213 National Telecommunications National Telecommunications and Information Administration NOTICES Senior Executive Service:

Performance Review Board; membership, 58746 00-25224 Nuclear Nuclear Regulatory Commission NOTICES Committees; establishment, renewal, termination, etc.: Reactor Oversight Process Initial Implementation Evaluation Panel, 58831-58832 00-25235 Meetings: Reactor Safeguards Advisory Committee, 58832 00-25234 Sequoyah Fuels Corp. Uranium Conversion Facility, Gore, OK; decommissioning, 58832-58833 00-25236 *Applications, hearings, determinations, etc.:* AmerGen Energy Co., LLC, 58829-58831 00-25237 Office of U.S.

Trade Office of United States Trade Representative See Trade Representative, Office of United States Patent Patent and Trademark Office NOTICES Reports and guidance documents; availability, etc.: Alternative fee structures; study, 58746-58748 00-25225 Pension Pension and Welfare Benefits Administration NOTICES Agency information collection activities: Reporting and recordkeeping requirements, 58822 00-25231 Postal Postal Service PROPOSED RULES Domestic Mail Manual and postage meters:

Postal security devices and information-based indicia; production, distribution, and use, 58682-58698 00-25090 Public Public Health Service See Agency for Healthcare Research and Quality See Centers for Disease Control and Prevention See Food and Drug Administration See National Institutes of Health Rural Rural Housing Service NOTICES Grants and cooperative agreements; availability, etc.: Section 538 Guaranteed Rural Rental Housing Program; correction, 58845-58847 C0-23504 SEC Securities and Exchange Commission NOTICES Self-regulatory organizations; proposed rule changes:

New York Stock Exchange, Inc., 58833-58834 00-25134 Pacific Exchange, Inc., 58834-58837 00-25133 SBA Small Business Administration NOTICES Meetings; district and regional advisory councils: Hawaii, 58837 00-25186 Trade Trade Representative, Office of United States NOTICES Tariff-rate quota amount determinations: Raw cane sugar, refined sugar, and sugar-containing products, 58837-58838 00-25106 Transportation Transportation Department See Coast Guard See Federal Aviation Administration See Federal Motor Carrier Safety Administration Treasury Treasury Department See Customs Service See Internal Revenue Service Separate Parts In This Issue Part II Environmental Protection Agency, 58849-58868 00-24047 Part III Department of Housing and Urban Development, 58869-58875 00-24922 Part IV Department of Transportation, Federal Aviation Administration, 58877-58882 00-25045 Part V Department of Justice, Juvenile Justice and Delinquency Prevention Office, 58883-58890 00-25239 Part VI Department of Justice, Juvenile Justice and Delinquency Prevention Office, 58891-58899 00-25240 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws. 65 191 Monday, October 2, 2000 Rules and Regulations DEPARTMENT OF AGRICULTURE 5 CFR Part 8301 RIN 3209-AA15 Supplemental Standards of Ethical Conduct for Employees of the Department of Agriculture AGENCY:

Department of Agriculture (Department or USDA). ACTION: Final rule. SUMMARY: The Department of Agriculture (Department or USDA), with the concurrence of the Office of Government Ethics (OGE), is issuing final regulations for Department employees that supplement the Standards of Ethical Conduct for Employees of the Executive Branch (Standards), as issued by OGE. The final rule, effective upon publication, sets forth as final both a general requirement for certain Department employees to obtain prior approval before engaging in outside employment and separate, more-extensive prior approval requirements for employees of the USDA Farm Service Agency (FSA), Food Safety and Inspection Service (FSIS), Office of the General Counsel (OGC), and Office of Inspector General (OIG).

The final rule also contains certain restrictions on financial interests applicable to FSA employees. EFFECTIVE DATE: These regulations are effective October 2, 2000. FOR FURTHER INFORMATION CONTACT: John C. Surina, Director, Office of Ethics, U.S. Department of Agriculture, Room 348-W—Stop 0122, 1400 Independence Avenue, S.W., Washington, D.C. 20250-0122, telephone

(202)720-2251. SUPPLEMENTARY INFORMATION: I. Background On March 24, 2000, with the concurrence and co-signature of OGE, USDA published for comment an interim final rule, with a request for comments, establishing supplemental standards of ethical conduct for employees of USDA (65 FR 15825-15830). The interim rule was issued to supplement the Standards of Ethical Conduct for Employees of the Executive branch published by OGE on August 7, 1992, and effective on February 3, 1993 (57 FR 35006-35067, as corrected at 57 FR 48557 and 57 FR 52583). The Standards, as corrected and amended, are codified at 5 CFR part 2635. On October 3, 1997, the Department's Employee Conduct and Responsibilities regulations were removed. *See* 62 FR 51759-51760. The interim rule was issued pursuant to 5 CFR 2635.105, which authorizes agencies, with the concurrence of OGE, to publish agency-specific supplemental regulations that are necessary to implement their respective ethics programs. The Department, with OGE concurrence, determined that the supplemental rules for codification in new chapter LXXII of 5 CFR, consisting of part 8301, were necessary to the success of its ethics program. The interim rule prescribed a 30-day comment period and invited comments from all interested parties. USDA received ten timely comments and one late comment and, after careful consideration of each comment, has made appropriate modifications to the rule. The Department, with OGE's concurrence, is now publishing as a final rule the Supplemental Standards of Ethical Conduct for Employees of the Department of Agriculture, for codification in part 8301 title 5 of the Code of Federal Regulations. II. Summary of the Comments As noted, the Department received a total of eleven comments (ten were timely; one was late), all by electronic mail. Seven comments were received from employees of the Office of the General Counsel (OGC), USDA; one from an employee of Departmental Administration, USDA; one from an employee of the Farm Service Agency (FSA), USDA; one from a non-employee farmer; and one from a person whose affiliation, if any, could not be determined. Except for the comments of the farmer and the FSA employee, all comments concerned either the general requirement for prior approval for outside employment or the additional requirement for prior approval by OGC of outside practice of law by OGC attorneys not already covered under the general requirement. The FSA employee was complimentary in assessing the interim rule and wanted to expand the coverage of prohibited transactions with regard to FSA employees. The non-employee farmer inquired as to the rationale for limiting the prohibited transactions provisions only to FSA Federal employees, rather than also including FSA county employees. III. Analysis of the Comments Section 8301.102 General prior approval requirement for outside employment All but one of the comments concerning the requirement to obtain approval before engaging in outside employment came from OGC attorneys and most of those comments addressed, concurrently, both the general requirement applicable to financial disclosure report filers and the special requirement for non filing attorneys within OGC found in § 8301.105. Accordingly, to the extent that these comments relate to both sections, they will be addressed in connection with the general requirement. Four comments were received which asserted that the requirement for seeking prior approval for outside employment was unnecessary. Three commenters believed themselves capable of independently judging whether an outside activity would be in conflict with their official responsibilities. Two other commenters were inclined in that direction, adding that the presupposed ethical dangers that justify the requirement could be addressed more effectively through law enforcement and more ethics training to help employees identify conflicts. Two other commenters pointed to the fact that the interim language does not attempt to identify the potential conflicts that are of concern and went on to state that since the conflicts of concern were already prohibited, there was no need for the prior approval requirement. One commenter criticized the requirement on the basis that it presumes that USDA employees are engaged in unethical behavior. Finally, one commenter noted that the same goal already was achieved by way of confidential financial disclosure. Notwithstanding the concerns of the commenters, the Department still sees a clear need for requiring prior approval for outside employment by persons occupying sensitive positions. The Department has therefore determined that such prior approval of outside employment for persons covered by § 8301.102, and the additional prior approval requirements articulated in §§ 8301.103 through 8301.106, are essential to the missions of the Department and its agencies. The most obvious purpose for having a prior approval requirement is to help Federal officers and employees avoid entering into actual or apparent conflict situations, rather than limiting agencies to reliance upon after-the-fact responses, such as through prosecution or disciplinary action. Accordingly, the Department believes that requiring prior approval for outside employment by persons occupying sensitive positions is necessary and that the benefits accruing from this requirement, in terms of protecting not only its officers and employees but also the integrity of its programs and operations, outweigh the limited imposition and burden posed to individual officers and employees. The Department believes that the general prior approval requirement is not overly burdensome or unnecessarily intrusive. First, persons not obliged to file financial disclosure reports are exempt from this requirement. Moreover, paragraph

(e)of § 8301.102 provides agencies and components with the authority, through internal agency procedures, to specify broad categories of outside employment that presumptively present no conflict of interest concerns. Leaving the determination of exempt categories of employment to the individual agencies and components accords those entities greater flexibility in developing and modifying lists of exempted occupational categories since they are not subject to a cumbersome rulemaking process. Three comments viewed the regulation as possibly constituting a prior restraint on First Amendment rights. One commenter expressed this point in terms of the outside practice of law; a second commenter in terms of uncompensated teaching, speaking, or writing that relates to one's official duties. The Department is not insensitive to the intrusiveness of any conflict of interest regulations as they necessarily cover personal financial holdings and activities away from one's job. On the other hand, the courts have acknowledged the justification for narrowly tailored prophylactic measures to protect the public interest from the reality and appearance of the corrosive impact of conflicting private interests. In this respect, it must be pointed out that the prior approval requirement does not prohibit any form of expression or association. In *Williams* v. *Internal Revenue Service,* 919 F.2d 745 (D.C. Cir. 1990), the court held that an agency regulation that required employees to obtain permission from the agency before engaging in outside employment, and that was tailored to the Government's interest in efficiency and avoiding the appearance of impropriety, did not violate employees' First Amendment rights. Therefore, the Department does not agree with the commenter's argument that the requirement for obtaining prior approval for outside employment generally violates First Amendment rights. At the same time, one commenter pointed to the recent ruling in *Sanjour* v. *EPA,* 56 F.3d 85 (D.C. Cir. 1995), *on remand,* 7 F. Supp. 2d 14 (D.D.C. 1998), as a basis for attacking the regulation on First Amendment grounds. The Department disagrees with the commenter in terms of the legal impact of *Sanjour* on this regulation. Nonetheless, the Department amends this section by:

(1)deleting the requirement in paragraph (b)(2) to obtain prior approval for *uncompensated* teaching, speaking, writing, and editing; and

(2)redesignating paragraph (b)(3) as paragraph (b)(2). One commenter asserted that the definition of “employment,” in paragraph (b), is overly broad in that it would include providing uncompensated personal services in managing an educational trust for one's children, or in serving as a trustee or agent for a family estate, or serving as executor of a will. Conversely, the commenter points out that, under paragraph (b)(3)(i), an employee could manage a religious endowment fund, social investment club, fraternal organization, or the assets of a recreational group. The Department finds the comment to be valid in cases where the fiduciary duties (guardian, executor, administrator, trustee, or personal fiduciary) relate solely to services provided to, or in conjunction with, individuals. From a practical standpoint, requiring prior approval to perform these family tasks on behalf of individuals is an unnecessary burden. On the other hand, the Department does not concur in the comment to the extent that such services are provided to, or in conjunction with, a for-profit entity. In the estimation of USDA, there is a significantly greater likelihood that outside employment with for-profit entities may raise conflict of interest and ethical concerns than in the case of fiduciary services provided to individuals. Accordingly, the Department sees justification for requiring prior approval for such services. Therefore, the Department amends redesignated paragraph (b)(2) of the interim rule by inserting prior to the word “entity”, comma following by “for-profit.” One commenter questioned both the necessity of requiring the employee to provide the estimated total time to be devoted to outside employment [paragraph (c)(5)] and a statement as to whether the work can be performed entirely outside of the employee's regular duty hours [paragraph (c)(6)]. The Department has amended the interim rule by:

(1)Deleting paragraphs (c)(5) and (c)(6); and

(2)redesignating paragraphs (c)(7) through (c)(10) as paragraphs (c)(5) through (c)(8). Several comments sought greater clarification and specificity on both the standards to be employed in evaluating outside employment requests and on the procedures to be employed. Specifically, three commenters expressed a wish to see a set time from by which management must act on a request, so that failure to act on the request within the required time frame would constitute de facto approval of the request. Three commenters suggested that the regulation contain some avenue of appeal from a negative determination. Two commenters wanted specificity as to how often their approved requests needed to be updated. Two other commenters wanted greater specificity as to the specific standards employed by USDA to gauge whether a given outside activity presents an unacceptable conflict. One commenter wanted greater clarification of what was meant by the term “reasonable time” in paragraph (c). Finally, another commenter wanted a requirement for the agency to provide written notification of its determination. While the Department sees that such process considerations are valid, the regulations accord each specific USDA agency and component broad authority to fashion a prior approval policy that best fits its particular needs. Thus, the Department does not adopt these comments; rather they are left to be addressed through the implementing procedures within each agency and component. As to the standards employed to gauge whether a given outside activity presents an unacceptable conflict, the Department believes that sufficient specificity is provided in this regulation through reference to the relevant part of the Code of Federal Regulations. Greater specificity may be provided through implementing procedures within each agency and component. The Department, in conforming to its intent to provide broad authority to its separate agencies and components to fashion prior approval requirement procedures specifically tailored to their needs, is amending the interim rule by:

(1)Deleting the words “[T]he DAEO or, with the concurrence of the DAEO,” in paragraph (e), and replacing those words with “The agency designee for;” and

(2)deleting from paragraph

(d)the words “(or the DAEO, when there is not an agency designee).” Section 8301.103 Additional rules for employees of the Farm Service Agency As stated, the Department received two comments related to the provision prohibiting certain financial transactions involving Farm Service Agency

(FSA)employees. The FSA employee wanted the Department to apply the prohibitions to “members of the employees [sic] household,” rather than to “employee, spouse, or minor child,” as was used in the regulation. The commenter questioned the justification in the interim rule for acting to address abuses and conflicts involving the financial interests of employees, spouses, and minor children, while leaving unaddressed the similar abuses and conflicts involving the financial interests of cohabitation partners and children who have reached majority. While the commenters' concerns are appreciated, the provisions of subpart D of the branchwide Standards do not extend beyond the limitations contained in the basic financial conflict of interest statute, 18 U.S.C. 208. That statute prohibits a Federal officer or employee from participating officially in any particular matter in which the officer or employee has a financial interest. For purposes of that statute, financial interests owned by the employee's spouse or minor child are deemed to be the financial interests of the employee. Accordingly, the Department did not have the authority to extend this prohibition beyond the bounds of that statute. The non-employee commenter questioned why the interim rule did not apply to FSA county employees and why employees were still eligible to obtain guaranteed loans. The conflict of interest statutes and the Standards are limited in their application to Federal employees. FSA County committee personnel and county office employees are not Federal employees for purposes of these statutes. *See* 65 FR 15826. As a result, this supplement must be limited to Federal employees. However, the Department may publish under different authority similar rules concerning FSA county employees. Farm Service Agency guaranteed loans were not included in this prohibition because those loans involve commercial monies, rather than the very limited pot of Federal monies available through FSA direct loans. Moreover, FSA direct loans are the vehicle by which USDA serves as the “lender of last resort” to farmers on the financial brink; those loan monies must be reserved for those persons. Section 8301.105 Additional rules for employees of the Office of the General Counsel Two of the comments contended that both the general promulgation of the rules, as well as imposition of the additional prior approval requirement under § 8301.105, were subject to negotiations under the collective bargaining process. The Department disagrees with the notion that the promulgation and enforcement of regulations are subject to collective bargaining negotiations under the Federal Service Labor-Management Relations Act. The promulgation of regulations is fully within the broad authorities accorded to Federal agencies. More specifically, however, not only does this regulation implement a Govermentwide regulation (5 CFR part 2635), but the Department also has established a compelling need for its agency-specific rules and has made a determination that they are essential to the missions of the USDA agencies for which they have been adopted. Two commenters addressed the fact that almost all State bars have rules proscribing conflicts of interest by attorneys. This, they contended, made the prior approval requirement redundant in terms of limiting outside practice or law. One of the two asserted that, generally, standards imposed by the bars were more stringent and more easily enforced than the regime set out in the supplement. The other commenter proposed that, should a dispute arise between an attorney and his or her supervisor over whether an outside activity conflicted with his or her official duties, the issue could be presented for resolution to the bar to which the attorney belongs. If the bar sided with the Government, but the employee proceeded with the outside activity nonetheless, then the Government could file a bar complaint. (Presumably, if the bar sided with the employee, the Government would be powerless to take action against the employee.) The subject matter at issue is not proper for determination or interpretation by State bar associations. The Federal Government cannot abdicate a core management function, such as staff supervision, to an outside party. At the same time, the suggestion misses the entire point of requiring prior approval for certain types of outside employment, which is to prevent an employee from violating a Federal criminal statute or ethical conduct rule, rather than having to take disciplinary action after the fact. Sections 8301.103(f), and 8301.104 Through 8301.106 Additional Prior Approval Requirements One commenter noted, in reference to § 8301.105, that the additional requirements for requesting prior approval for outside employment provide that requests are processed in accordance with the procedures in paragraph

(c)of § 8301.102, but do not specify whether such requests will be determined on the standard for approval set forth in paragraph

(d)of § 8301.102. The Department agrees with this comment. Accordingly, the Department will specify in all additional prior approval requirements, that the request shall be determined based on the standard for approval set forth in paragraph

(d)of § 8301.102. IV. Matters of Regulatory Procedure Congressional Review The Department has found that this rulemaking is not a rule as defined in 5 U.S.C. 804, and, thus, does not require review by Congress. This rulemaking is related to Department personnel. Executive Orders Nos. 12866 and 12988 Since this rule relates to Department personnel, it is exempt from the provisions of Executive Orders Nos. 12866 and 12988. Regulatory Flexibility Act The Department has 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 affects only Department employees. Paperwork Reduction Act The Department has determined that the Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply because this regulation does not contain any information collection requirements that require the approval of the Office of Management and Budget. Environmental Impact This decision will not have a significant impact upon the quality of the human environment or the conservation of energy resources. List of Subjects in 5 CFR Part 8301 Conflict of interests, Executive branch standards of conduct, Government employees. Dated: September 25, 2000. Dan Glickman, *Secretary of Agriculture.* Approved: September 26, 2000. F. Gary Davis, *Acting Director, Office of Government Ethics.* For the reasons set forth in the preamble, the Department of Agriculture, with the concurrence of the Office of Government Ethics, is revising 5 CFR part 8301 to read as follows: PART 8301—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE Sec. 8301.101 General. 8301.102 Prior approval for outside employment. 8301.103 Additional rules for employees of the Farm Service Agency. 8301.104 Additional rules for employees of the Food Safety and Inspection Service. 8301.105 Additional rules for employees of the Office of the General Counsel. 8301.106 Additional rules for employees of the Office of Inspector General. Authority: 5 U.S.C. 301, 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, 2635.403(a), 2635.803. § 8301.101 General.

(a)In accordance with 5 CFR 2635.105, the regulations in this part apply to employees of the Department of Agriculture (Department or USDA) and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635.

(b)In addition to 5 CFR part 2635 and this part, employees also are required to comply with the executive branch financial disclosure regulations at 5 CFR part 2634, the regulations on responsibilities and conduct contained in 5 CFR part 735, and Department guidance and procedures established pursuant to paragraph

(c)of this section.

(c)With the concurrence of the Designated Agency Ethics Official (DAEO), agencies and components of the Department may, in accordance with 5 CFR 2635.105(c), issue explanatory guidance for their employees and establish procedures necessary to implement this part and part 2635 of this title. The Deputy Ethics Official for each agency or component shall retain copies of all such guidance issued by that agency or component. § 8301.102 Prior approval for outside employment.

(a)*Prior approval requirement.* An employee, other than a special Government employee, who is required to file either a public or confidential financial disclosure report (SF 278 or OGE Form 450), or an alternative form of reporting approved by the Office of Government Ethics, shall, before engaging in outside employment, obtain written approval in accordance with the procedures set forth in paragraph

(c)of this section.

(b)*Definition of employment.* For purposes of this section, “employment” means any form of non-Federal employment or business relationship or activity involving the provision of personal services by the employee for direct, indirect, or deferred compensation other than reimbursement of actual and necessary expenses. It also includes, irrespective of compensation, the following outside activities.

(1)Providing personal services as a consultant or professional, including service as an expert witness or as an attorney; and

(2)Providing personal services to a for-profit entity as an officer, director, employee, agent, attorney, consultant, contractor, general partner, or trustee, which involves decision making or policymaking for the non-Federal entity, or the provision of advice or counsel.

(c)*Submission of requests for approval.* An employee seeking to engage in employment for which advance approval is required shall submit a written request for approval to the employee's supervisor a reasonable time before the employee proposes to begin the employment. Upon a significant change in the nature of the outside employment or in the employee's official position, the employee shall submit a revised request for approval. The supervisor will forward written requests for approval to the agency designee, through normal supervisory channels. All requests for prior approval shall include the following information:

(1)The employee's name, organizational location, occupational title, grade, and salary;

(2)The nature of the proposed outside employment, including a full description of the specific duties or services to be performed;

(3)A description of the employee's official duties that relate in any way to the proposed employment;

(4)The name and address of the person or organization for whom or with which the employee is to be employed, including the location where the services will be performed;

(5)The method or basis of any compensation ( *e.g.* , fee, per diem, honorarium, royalties, stock options, travel and expenses, or other);

(6)A statement as to whether the compensation is derived from a USDA grant, contract, cooperative agreement, or other source of USDA funding;

(7)For employment involving the provision of consultative or professional services, a statement indicating whether the client, employer, or other person on whose behalf the services are performed is receiving, or intends to seek, a USDA grant, contract, cooperative agreement, or other funding relationship; and

(8)For employment involving teaching, speaking, writing or editing, the proposed text of any disclaimer required by 5 CFR 2635.807(b).

(d)*Standard for approval.* Approval shall be granted by the agency designee unless it is determined that the outside employment is expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635.

(e)*Responsibilities of the component agencies.*

(1)The agency designee for each separate agency or component of USDA may issue an instruction or manual issuance exempting categories of employment from a requirement of prior written approval based on a determination that employment within those categories would generally be approved and is not likely to involve conduct prohibited by Federal statutes or regulations, including 5 CFR part 2635 and this part.

(2)Department components may specify internal procedures governing the submission of prior approval requests, including but not limited to: timely submission requirements; determination deadlines; appeals or reviews; and requirements for updating requests. Internal procedures also should designate appropriate officials to act on such requests. The instructions or manual issuances may include examples of outside employment that are permissible or impermissible consistent with 5 CFR part 2635 and this part. With respect to employment involving teaching, speaking or writing, the instructions or manual issuances may specify pre-clearance procedures and/or require disclaimers indicating that the views expressed do not necessarily represent the views of the agency, USDA or the United States.

(3)The officials within the respective USDA agencies or components responsible for the administrative aspects of these regulations and the maintenance of records shall make provisions for the filing and retention of requests for approval of outside employment and copies of the notification of approval or disapproval. § 8301.103 Additional rules for employees of the Farm Service Agency.

(a)*Application.* This section applies only to Farm Service Agency

(FSA)personnel who are Federal employees within the meaning of 5 U.S.C. 2105. This section does not apply to FSA community committee members, county committee members, and county office personnel, who are either elected to their positions or are employees of community or county committees established under 16 U.S.C. 590h. For rules applicable to FSA community committee members, county committee members, and county office personnel, see 7 CFR part 7.

(b)*Definition of FSA program participant.* For purposes of this section, the phrase “FSA program participant,” includes any person who is, or is an applicant to become, an FSA borrower, FSA grantee, or recipient of any other form of FSA financial assistance available under any farm credit, payment or other program administered by FSA.

(c)*Prohibited borrowing.*

(1)No FSA employee, or spouse or minor child of an FSA employee, may directly or indirectly seek or obtain a “direct loan” under paragraph (a)(9) of section 343 of the Consolidated Farm and Rural Development Act, 7 U.S.C. 1991(a)(9).

(2)Nothing in this section bars an FSA employee, or spouse or minor child of an FSA employee, from retaining a direct loan secured prior to March 24, 2000, or, if subsequent to March 24, 2000, such direct loan is secured prior to the FSA employee being appointed to, or nominated for, appointment to an FSA position. Any FSA employee who either personally has such a pre-existing loan, or whose spouse or minor child has such a pre-existing loan, must submit a written disqualification from taking any official action on any such loan. Other than through the application of normal FSA loan servicing options set forth under FSA regulations, the terms of any such pre-existing loans shall remain fixed and shall not be subject to renegotiation or renewal unless pursuant to policy decision(s) made by the USDA Secretary or the FSA Administrator.

(3)*Waiver for FSA State Committee members.* A request for an exception to the general prohibition of paragraph (c)(1) of this section may be submitted by an FSA State Committee member (whether on his or her own behalf, or on behalf of the FSA State Committee member's spouse or minor child), to the FSA Deputy Administrator for Farm Loans. The Deputy Administrator for Farm Loans may grant a written waiver from this prohibition based on a determination made with the concurrence of the DAEO and the FSA headquarters ethics adviser that:

(i)The applicant is a current FSA State Committee member or the spouse or minor child of a current FSA State Committee member;

(ii)The applicant meets the statutory qualification requirements for obtaining direct loan; and

(iii)A waiver is not inconsistent with part 2635 of this title nor 7 U.S.C. 1986 nor otherwise prohibited by law, and that, under the particular circumstances, application of the prohibition is not necessary to avoid the appearance of misuse of position, including the appearance of misuse of non public information, or loss of impartiality, or otherwise to ensure confidence in the impartiality and objectivity with which agency programs are administered.

(d)*Prohibited real estate purchases.*

(1)No FSA employee, or spouse or minor child of an FSA employee, may directly or indirectly purchase real estate held in the FSA inventory, for sale under forfeiture to FSA, or from an FSA program participant.

(2)*Waiver.* A request for an exception to the prohibition found in paragraph (d)(1) of this section may be submitted jointly by the FSA program participant and FSA employee (whether on his or her own behalf, or on behalf the employee's spouse or minor child), to the FSA State Executive Director. The FSA State Executive Director may grant a written waiver from this prohibition based on a determination made with the advice and clearance of the DAEO and the FSA headquarters ethics advisor that the waiver is not inconsistent with part 2635 of this title nor 7 U.S.C. 1986 nor otherwise prohibited by law and that, under the particular circumstances, application of the prohibition is not necessary to avoid the appearance of misuse of position or loss of impartiality or otherwise to ensure confidence in the impartiality and objectivity with which agency programs are administered. A waiver under this paragraph may impose appropriate conditions, such as requiring execution of a written disqualification.

(e)*Prohibited transactions with FSA program participants.*

(1)Except as provided in paragraph (e)(2) of this section, no FSA employee or spouse or minor child of an FSA employee may directly or indirectly: sell real property to; lease real property to or from; sell to, lease to or from, or purchase personal property from; or employ for compensation a person whom the FSA employee knows or reasonably should know is an FSA program participant directly affected by decisions of the particular FSA office in which the FSA employee serves.

(2)*Exceptions.* Paragraph (e)(1) of this section does not apply to:

(i)A sale, lease, or purchase of personal property, if it involves:

(A)Goods available to the general public at posted prices that are customary and usual within the community; or

(B)Property obtained pursuant to public auction; or

(ii)Transactions listed in (e)(1) of this section determined in advance by the appropriate FSA State Executive Director, after consulting with the FSA Headquarters ethics advisor, to be consistent with part 2635 of this title and otherwise not prohibited by law.

(f)*Additional prior approval requirements for outside employment.* Any FSA employee not otherwise required to obtain approval for outside employment under § 8301.102 shall obtain written approval in accordance with the procedures and standards set forth in paragraphs

(c)and

(d)of § 8301.102 before engaging in outside employment, as that term is defined by paragraph

(b)of § 8301.102, with or for a person:

(1)Whom the FSA employee knows, or reasonably should know, is an FSA program participant; and

(2)Who is directly affected by decisions made by the particular FSA office in which the FSA employee serves. § 8301.104 Additional rules for employees of the Food Safety and Inspection Service. Any employee of the Food Safety and Inspection Service not otherwise required to obtain approval for outside employment under § 8301.102, shall, before engaging in any form of outside employment, obtain written approval in accordance with the procedures and standards set forth in paragraphs

(c)and

(d)of § 8301.102 § 8301.105 Additional rules for employees of the Office of the General Counsel. Any attorney serving within the Office of the General Counsel, not otherwise required to obtain approval for outside employment under § 8301.102, shall obtain written approval, in accordance with the procedures and standards set forth in paragraphs

(c)and

(d)of § 8301.102, before engaging in the outside practice of law, whether compensated or not. § 8301.106 Additional rules for employees of the Office of Inspector General. Any employee of the Office of Inspector General, not otherwise required to obtain approval for outside employment under § 8301.102, shall obtain written approval, in accordance with the procedures and standards set forth in paragraphs

(c)and

(d)of § 8301.102, before engaging in any form of outside employment that involves the following:

(a)Law enforcement, investigation, security, firearms training, defensive tactics training, and protective services;

(b)Auditing, accounting, bookkeeping, tax preparation, and other services involving the analysis, use, or interpretation of financial records;

(c)The practice of law, whether compensated or not; or

(d)Employment involving personnel, procurement, budget, computer, or equal employment opportunity services. [FR Doc. 00-25136 Filed 9-29-00; 8:45 am]

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