ML20034D551

Informs Commission of Plans to Issue Mgt Directives on Ethics Waivers & Approvals

ML20034D551
Person / Time
Issue date:	02/08/1993
From:	Parler W NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
References
SECY-93-026, SECY-93-26, NUDOCS 9302110365
Download: ML20034D551 (21)

Text

MMMMMMMM/

RELEASED TO THE PDR

[

h3 A

9

~,,

'cate

/

in5g3 g

3

- e 49.....,o l

POLICY ISSUE February 8, 1993 SECY-93-026 (NEGATIVE CONSENT)

)

l FOR:

The Commissioners FROM:

William C. Parler General Counsel

SUBJECT:

MANAGEMENT DIRECTIVES ON ETHICS WAIVERS AND APPROVALS DISCUSSION:

Following its promulgation of the governmentwide standards of conduct regulations, the Office of Government Ethics (OGE) has directed that each federal agency repeal ethics regulations previously issued by that agency.

Recognizing that agency regulations contained internal agency

(

procedures, including delegations of I

l authority to grant various waivers and approvals, OGE asked that these internal procedures be placed in agency handbooks or management directives.

These handbooks or directives are to be issued without OGE review.

On January 12, 1993 the Commission published in the Federal Register regulations revoking most of 10 CFR Part 0, the agency's ethics regulations.

The Commission did not revoke the delegations of authority contained in Part 0 because the necessary management directive containing those delegations had not yet been prepared.

OGC has now prepared for Commission review that directive, incorporating comments received from the NRC staff and the Inspector General.

A'ter the Management Directive is published, OGC will NOTE:

TO BE MADE PUBLICLY AVAILABLE WHEN THE FINAL SRM IS MADE

Contact:

AVAILABLE T. Rothschild, OGC 504-1607

~

230062 i

430111C d 5 /A 7

UE WMMMMMMMMMMMMMMMA

~

3 5

t l

The Commissioners 2

prepare another rule revoking additional portions of Part O.

After,that second-rule is promulgated, the.only remaining portions of Part 0 will be those addressing stock i

ownership and approval of outside employment.

In some instances, the new OGE standards of conduct regulations, which'took effect on February 3, require that employees for t2un first time obtain a waiver or an approval-before engaging in certain activities or:

conduct.

Because.there are no existing delegations of authority in place covering i

those situations, OGC believes that it would.

]

be useful if tdum enclosed Management i

Directive could be approved at an early date.

[

In drafting the delegations of authority, OGC 4

has recodified the existing delegations in Part 0 believing that they have served the i

agency well.

However, the Commission has the authority to'acdify the. delegations of l

authority.

Under the OGE regulations, the NRC has great latitude in determining which NRC officials shall be authorized to act upon the various requests for waivers or approvals.

The OGE regulations, however, require that only the Designated Agency i

Ethics Official (the' General ~ Counsel at the

'f NRC) may authorize: (1) the. acceptance of I

certain awards and honorary degrees; (2)

'j service as an expert witness on behalf of a' private party in Federal court litigation in whfxh the United States has an interest; and 1

(3)non-career employees to' engage.in teaching for compensation.

i RECOMMENDATION:

Unless_ advised to the contrary by the commission within ten working days, Management Directive 7.9 wil issued.

I t

)

111iam C. Parler i

General Counsel-

{

Attachment:

Management Directive 7.9 l

4 I

l i

i

____m

)

SECY NOTE:

In the absence of instructions.to the contrary, SECY will notify the staff on Tuesday, February 23, 1993, j

that the Commission, by negative consent,. assents to l

the' action proposed in this paper.

l

'I I

DISTRIBUTION:

Commissioners' OGC OCAA OIG

}

EDO

}

SECY

?

e f

I t

i i

l i

I t

'l e

l 5

I t

1 i

i I

i

(

)

t 5

I i

i

~

i

'l f

. =. - ~,... -

F i

=

t i

-[s I

t I

i 5

t i

L t

h t

i l

(

.t t

i c

ATTACHMENT -

MANAGEMENT DIRECTIVE 7.9

i o

i s

b t

i 6

)

4 1

s

- i I

t 1

j

'I

'I 4

Ethics Approvals and Waivers

.l;. c fD31.ICL C ".

-:J::: a.;m

., f "IK I

.m i

e Handbook 7.9 1

i l

i i

l 4

a 4

I l

i i

i l

1 I

d i

1 1

^

s c.c

...a.

w, 4

l

t Volume 7, Ixgal and Ethical Guidelines Ethics Approvals and Waivers 4

Handbook 7.9 Contents i

t Ethics Approvals and Waivers..............................

1.

I n trod u ction (A)....................................................... 1 Stock Ownership Exemptions (B).........................................

1 I

Approval for Outside Activities (C)....................................... 1 Waiver Authorizing Employees To Participate in Matters That Affect a Personal Financial Interest (D)........................................ 1 j

Widely Attended Gatherings (E).......................................... 2 Appearance of Impropriety (F)..........................................

3 Service as an Expert Witness (G)......................................... 4 Acceptance of Awards and Honorary Degrees (H)........................... 5 Acceptance of Perishable Gifts (1)........................................ 5

)

i Teaching for Compensation by Noncareer Employees (J).................... 5 i

Acceptance of Extraordinary Payments (K)................................. 6 l

r Representation by Special Government Employees (L)....................... 6 j

Post-Employment Representations by Former NRC Employees (M)............ 6 i

~)

i

?

I I

i i

)

i e

l

p i

l l

3

.c j

l l

1 i

Approved: (Draft February 3.1993) i l

- ~. - -.

i Volume 7, Legal and Ethical Guidelines i

Ethics Approvals and Waivers l

Handbook 7.9 i

?

Ethics Approvals and Waivers Introduction (A) l Ethics statutes and regulations promulgated by the Office 'of Government Ethics (OGE) require that NRC employees receive i

approval or a waiver before engaging in certain activities or accepting certain gifts or awards. Management Directive (MD) 7.9 identifies the individuals who have been given authority to grant these approvals or waivers. This handbook describes the activities or acts that require approval or waiver in greater detail and specifies the procedures for obtaining a decision on the request.

Stock Ownership Exemptions (B) l NRC employees who are subject to the Commission's stock ownership I

restrictions may request an exemption from the Chairman that would permit their continued holding of prohibited security interests. The procedures for obtaining an exemption will be specified in a future management directive. The procedures are currently set forth in 10 CFR 0.735-29.

j Approval for Outside Activities (C)

NRC employees, except for special Government employees, are required to obtain written approval before engaging in certain outside activities, including outside employment. The procedures for obtaining the approval will be specified in a future management directive. The procedures are currently set forth in 10 CFR 0.735-40.

Waiver Authorizing Employees To Participate in Matters That Affect a Personal Financial Interest (D)

Under 18 U.S.C. 208(a), employees must receive a waiver before they may participate in a particular matter affecting an entityin which they (or any person whose interests are imputed to the employee) have a financial interest. " Imputed" interests include the interests of i

Approved: (Draft February 3,1993) 1

.~

i L

Volume 7, Legal and Ethical Guidelines Ethics Approvals and Waivers l

llandbook 7.9 l

Waiver Authorizing Employees To Participate in Matters That Affect a l

Personal Financial Interest (o)(continued) l (a) the employee's spouse, minor child, or general partner;(b) an enuty l

in which the employee serves as officer, director, trustee, general l

t partner, or employee: or (c) a person with whom the employee is negotiating for or has an arrangement concerning prospective

[

employment. (1) l Waivers may be granted upon a determination that the financial interest is not so substantial as to be deemed likely to affect the i

integrity of the senices that the Government may expect from the officer or employee. In addition, a waiver may be granted for a special Government employee who senes on an advisory committee.

j chartered under the Federal Advisory Committee Act upon a 1

1 determination that the need for the individuars senices outweighs the potential for a conflict of interest created by the financial interest

)

involved. (2) i Employees who desire a waiver should contact a deputy counselor in j

the Office of the General Counsel (OGC) or a regional counsel.

Counsel will draft the appropriate waiver for consideration by the appropriate office director or regional administrator. OGC, where practicable, is to consult with the OGE before the waiver is issued and 1

is to provide a copy of the executed waiver to OGE. (3) j Widely Attended Gatherings (E)

I Notwithstanding the restrictions on acceptance of meals and gifts from entities regulated by or having business before the NRC, agency l

employees may accept a sponsor's unsolicited gift of free attendance at l

d all or appropriate parts of a widely attended gathering of mutual interest to a number of parties. A gathering is widely attended if, for example, it is open to membess throughout a given industry or i

profession, or those in attendance represent a range of persons j

interested in a given matter. Events sponsored by a single company, corporation, or firm are not considered widely attended gatherings; however, events sponsored by an organization consisting of numerous companies, cuporations, or firms can qualify. -Free attendance" includes waiver of the conference fee or food, refreshments, entertainment, or materials furnished to all attendees as an integral

]

part of the event. (1) 2 Approved: (Draft February 3,1993) 1 1

i Volume 7, Legal and Ethical Guidelines Ethics Approvals and Waivers Handbook 7.9 i

Widely Attended Gatherings (E)(continued) 1 If the sponsor does not have an interest that could be substantially affected by the performance or nonperformance of an employee's official duties, the approving official may orally approve free attendance at the event. The approving official must determine that attendance by the employee at the widely attended gathering is in the interest of the agency because it would further agency programs or operations. (2)

If the sponsor of the widely attended gathering is an entity that has interests that may be substantially affected by the performance or l

nonperformance of the employee's official duties, or if the sponsoris an association or organization, the majority of whose members have such interests, the employee must receive written approval to attend.

The approving official must determine that attendance is in the interest of the agency because it will further agency programs or.

i operations and that the agency's interest outweighs concern about l

acceptance of the gift of free attendance. A copy of the written approval must be provided to OGC. (3) i i

The authorizing official may also authorize an employee's spouse (who has not received a separate imitation because of his or her own credentials) to attend the event when others in attendance will generally be accompanied by spouses. (4)

If the widely attended gathering takes place during official working hours and the employee intends to accept food or refreshments that the NRC has not paid for, an employee subject to a leave system must obtain approval for either excused absence or annual leave pursuant to the procedures set forth in MD 10.62, " Leave Administration" (formerly MC 4145). (5) j Appearance ofImpropriety (F)

If an employee determines that his or her participation in a matter would cause a reasonable person with knowledge of the relevant facts j

to question his or her impartiality, the employee may not participate in the matter unless he or she has received written authorization to do so.

OGE regulations require that, under this provision, employees must receive authorization before participating in matters affecting any person for whom the employee has within the last 365 days served as officer, director, trustee, general partner, agent, attorney, consultant, L

l Approved: (Draft February 3.1993) 3

u 6

t Volume 7, Legal and Ethical Guidelines Ethics Approvals and_ Waivers Handbook 7.9 j

1 Appearance of Impropriety (F)(continued) contractor, or employee. Employees must also receive authorization j

under this provision to work on matters affecting a person for whom the employee's spouse, parent, or dependent child is, to the i

employee's knowledge, sening or seeking to sene as an officer, 4

director, trustee, general partner, agent, attorney, consultant, i

contractor, or employee. Also, certain discussions regarding _

prospective employment that would not trigger application of l

potential criminal sanctions could nonetheless create appearances of l

impropriety. In such a case, approval would be required before the i

employee could participate in matters affecting~ the prospective-i employer. (1)

An employee requesting a waiver to participate in such matters must set forth the relevant circumstances to the approving official in writing.

The approving official, as part of the required consultation with OGC, must provide OGC with a copy of the request. OGC will assist the approving official in drafting the response to the employee. (2)

{

4 Service as an Expert Witness (G) l An employee shall not serve, other than on behalf of the United States, as an expert witness, with or without compensation,in any proceeding before a court or agency of the United States in which the United States is a party or has a direct and substantial interest, unless the employee's participation is authorized by the NRC. (1)

' i In addition to the above requirement, a special Government employee who has served or is expected to serve for more than 60 days within a consecutive 365-day period shall not serve as an expert witness, with or without compensation, in any proceeding before a court or agency of the United States in which the NRC is a party or has a direct and substantial interest, unless the employee's participation has been j

authorized by the NRC. (2)

An employee seeking such authorization must submit the relevant j

e facts to OGC in writing. If a Federal agency other than the NRC is representing the Federal Government in the proceeding, the OGC must consult with that agency before making its determination. If the Federal Government is not a party to the proceeding, OGC must consult with the Department of Justice and the Federal agencywith the i

most direct and substantial interest in the matter. OGC will set forth its determinations in writing. (3) 4 Approved: (Draft February 3,1993)

m Volume 7, Irgal and Ethical Guidelines Ethics Approvals and Waivers llandbook 7.9 Service as an Expert Witness (o)(continued)

No approval is required when the employee has been subpoenaed as a fact witness by an appropriate authority. An appropriate authority would include a court or a State or local agency. (4)

Acceptance of Awards and Honorary Degrees (n)

An employee may accept a bona fide award for meritorious public senice or achievement valued at more than $200, or cash regardless of amount, only if the individual has received approval. These awards may be accepted only from persons who do not have interests that may be substantially affected by the performance or the nonperformance of the employee's official duties, or from an association or other organization, the majority of whose members do not have such interests. Before the award can be accepted, OGC must determine that the award is given as part of an established program of recognition. (1)

An employee may accept an honorary degree from an institution of higher education only after obtaining written approval from OGC.

OGC must determine that the timing of the award of the degree would not cause a reasonable person to question the employee's impartiality toward the institution. (2)

An employee seeking such approval to accept awards or honorary degrees must provide the relevant facts to OGC in writing. (3)

Acceptance of Perishable Gifts (1)

Employees are not required to return perishable items that cannot be accepted as gifts under OGE regulations. If the employee chooses not to return the item, he or she can, after obtaining approval from his or her immediate supenisor, donate the perishable item to charity, share the item within the office, or destroy the item.

Teaching for Compensation by Noncareer Employees (J)

~

Noncareer employees must receive approval before engaging in teaching for compensation. For purposes of this provision, teaching not only includes formal classroom presentations, but also extends to Approved: (Draft February 3,1993) 5 l

t Volume 7. Legal and Ethical Guidelines Ethics Approvals and Waivers l

Handbook 7.9 l

4 Teaching for Compensation by Noncareer Employees (J)(continued) l instruction on an individual basis or in an informal setting. A request i

for such approval setting forth the relevant facts should be submitted to OGC.

Acceptance of Extraordinary Payments (K)

Employees are disqualified for 2 years from participating in any i'

particular matter in which a former employer is a party or represents a party if the employee received an " extraordinary payment" from the entity before entering Government service. An extraordinary payment is defined as any item, including cash or an investment interest, with a value over $10,000. This disqualification period may be waived based on a finding that the amount of the payment was not so substantial as to cause a reasonable person to question the employee's ability to act impartially in a matter in which the former employer is a party or represents a party. (1)

An employee seeking a waiver must set forth the relevant facts to the approving official in writing. (2)

Representation by Special Government Employees (L) j Without authorization, special Government employees may not act as i

agent or attorney for another person in the performance of work under a grant by, or a contract with, or for the benefit of the United States.

The special Government employee may engage in such conduct upon a determination published in the Federal Register that the national mterest so requires.

l Post-Employment Representations by Former NRC Employees (M)

Under 18 U.S.C. 207, former NRC employees are subject to various post-employment restrictions that limit or preclude an individual from making certain representations to the NRC on behalf of persons other than the United States. These restrictions may be waived to permit a former employee to furnish scientific or technological information to the NRC. (1) 6 Approved: (Draft February 3,1993)

~

I Volume 7, Legal and Ethical Guidelines Ethics Approvals and Waivers f

11andbook 7.9 j

i i

Post-Employment Representations by j

Former NRC Employees (M)(continued)

~

A former NRC employee may seek such a waiver by submitting a written statement to the EDO that indicates he or she is a former employee subject to post-employment restrictions and that briefly f

summarizes the content of the proposed communication, describes his or her involvement,if any, as an NRC employee in the matter to be discussed, and certifies that the communication he or she desires to make is solely for the purpose of furnishing scientific or technological information. (2) l The primary factor that the EDO will consideris whether receipt of the l

scientific or technological information would further the NRC l

mission. (3) l 3

l l

i

.l i

i t

)

i

'l l

)

i 1

1 Approved: (Draft February 3,1993) 7 r

4 f

Ethics Approvals and i

Waivers

\\

4

, ~ -

3m ;;.; ~ +

g;,,

g;;;

7;g s

b i

B E

{

Directive 7.9

\\

p t

T l

h i

i s

l

]

a i

o r

b g

e 9

l 4

' "? '_

.;OOf

• mt' "T" ',

4 I

t I

Volume 7, Legal and Ethical Guidelincs l

Ethics Approvals and Waivers Directive 7.9 i

1 Contents Policy................................................................

1 l

t O bj ect i ves...........................................................

1

~

Organizational Responsibilities and Delegations of Authority..........

1 t

Th e Ch a i rm an......................................................

1 Th e Co mmi ssi on e rs..................................................

2 i

Th e G e n e ral Co u n sel................................................

2 I

The Executive Director for Operations (EDO)...........................

3 Office Directors and Regional Administrators............................

3 Supervisors.........................................................

4 j

A p plicab ili t y.........................................................

4 E mpl oye es.........................................................

4 D efi n i t i o n s...........................................................

4 H a n d b oo k............................................................

5 i

Re fe ren ces...........................................................

5 l

4 3

1 t

i l

i Approved: (Draft February 3.1993) i

s

'. nty j

U. S. Nuclear Regulatory Commission l

[

Volume: 7 Legal and Ethical Guidelines OGC

~

m 4 ll i

l i

l t

i Ethics Approvals and Waivers Directive 7.9 Policy l

(7.9-01)

[

It is the policy of the U.S. Nuclear Regulatory Commission (NRC) that j

NRC employees receive approval or a waiver before engaging in certain activities or accepting certain gifts or awards, in accordance

-l with ethics statutes or regulations promulgated, by the Office of f

Government Ethics (OGE). The NRC is required to designate l

individuals who can act upon requests for approvals or waivers. All l

approvals or waivers must be in writing unless otherwise specified in Handbook 7.9. The deciding official i:: to use sound judgment in determining whether to grant a request for an approval or a waiver, j

and has the discretion to deny a request, when warranted.

J Objectives (7.9-02)

To inform employees when prior' approval or a waiver is required. (021)

To inform employees which NRC officials have been delegated authority to grant the necessary approvals or waivers. (022)

Organizational Responsibilities and l

Delegations of Authority 1

(7.9-03)

The Chairman i

(031) 1 After consultation with the Office of the General Counsel l

(OGC)-(a)

- Waives stock ownership restrictions in accordance with Management Directive (MD) 7.7, " Security Ownership," (i) i 1-Approved: (Draft February 3,1993)

1 Volume 7, Legal and Ethical Guidelines Ethics Approvals and Waivers Directive 7.9 I

The Chairman (031) (continued)

- Issues waivers to members of advisory committees who are special Government employees to permit the members to work on mattem affecting a personal financial interest because of the agency's need for the individual's senices. (ii)

- Issues waivers and approvals addressed in this directive to Commissioners, or the heads of offices reporting to the Chairman or to the Commission, except for those waivers or approvals that must be given by the General Counsel. (iii)

- After consultation with the Director of OGE, determines whether post-employment restrictions can be waived for former NRC employees who have outstanding qualifications in a scientific, technological, or other technical discipline. (iv) j As appropriate, the Chairman will consult with the other e

Commissioners before acting upon a request for an approval or i

waiver. (b)

The Commissioners (032)

Approve their own attendance at widely attended gathenngs.

The General Counsel (033) l Approves the acceptance of non-NRC awards and honorary degrees awarded to NRC employees. (a)

.l Approves senice as an expert witness on behalf of a private party in Federal court litigation in which the United States has an inte.est. (b)

Authorizes noncareer employees to engage in teaching for e

compensation. (c)

May delegate the above authority to the designated alternate i

ethics official or to a deputy counselor. (d) j 2

Approved: (Draft February 3,1993)

Volume 7, Legal and Ethical Guidelines Ethics Approvals and Waivers Directive 7.9 The Executive Director for Operations (EDO)

(034)

After consulting with OGC-Approves outside employment and outside activity requests for employees in offices reporting to the EDO in accordance with MD 7.8. "Outside Employment and Other Outside Activities"(a)

Authorizes former NRC employees subject to certain post-employment restrictions to furnish technical or scientific information to the NRC. (b)

Authorizes employees in offices reporting to the EDO to participate in particular matters affecting an entity that awarded t

the individual an extraordinary payment upon termination of employment with that entity. (c)

Authorizes special Government employees to act as agent or j

attorney for another person in the performance of work under a grant by or a contract with the United States or for the benefit of the United States. (d)

Issues waivers or approvals addressed in this directive to office directors and regional administrators who report to the EDO. (e)

Oflice Directors and Regional Administrators (035)

After consultation with OGC, issue waivers that will allow employees to participate in particular matters affecting the financialinterests of persons or entities in which the employee or certain members of his or her family have a financial interest. (a)

Authorize employees to attend widely attended gatherings. This authority may be exercised by an office director, a deputy office director, a regional administrator, or a deputy regional administrator. Although approval may be given orally, in most cases written approval is preferable. (b)

After consultation with OGC, authorize employees to participate in matters in which such participation could constitute an appearance of impropriety. (c) t Approved: (Draft February 3,1993) 3

y i

' Volume 7 legal and Ethical Guidehnes 0

Ethics Approvals and Waivers j

Directive 7.9 i

Office Directors and Regional Administrators j

(035)(continued) j i

After consultation with OGC, Commission-level office directors e

approve outside employment and outside activity requests for employees in their offices in accordance with MD 7.8. (d) 1 After consultation with OGC, Commission-level office directors authorize employees in their offices to participate in particular matters affecting an entity that awarded the individual an extraordinary payment upon termination of employment with that entity. (e) j Supervisors (036) i Authorize employees to donate to charity, provide for office consumption, or destroy perishable gifts that the employee is not authorized to accept. This approval may be given orally, although in many cases it is prudent to obtain written approval for the disposal.

i Applicability (7.9.-04)

Employees (041)

{

This directive applies to all current and former NRC employees and l

special Government employees.

j i

Definitions (7.5-05) j Employee. An NRC officer or employee, a member of the Commission, a special Government employee (unless otherwise indicated), or an employee of another Government agency assigned or detailed to the NRC.

t Former Employee. A former NRC officer or employee as defined m

" Employee" of this section, a former special Government employee as defined in "Special Government Employee" of this section, or a former member of the Commission.

j 1

l 4

Approved: (Draft February 3,1993)

Volume 7, Ixgal and Ethical Guidelines i

Ethics Approvals and Waivers j

Directive 7.9 j

i a

1 Definitions i

(7.5-05) (continued)

Special Government Employee. An NRC officer or employee who is retained, designated, appointed, or employed to perform temporary l

duties either on a full-time or an intermittent basis, with or without compensation, for a period not to exceed 130 days during any period of 365 consecutive days. The term includes NRC consultants, experts, and members of advisory boards but does not include a member of the j

uniformed services.

l Handbook 4

(7.9-06)

Detailed descriptions of the various activities, awards, and gifts that l

require prior approval and the procedures for obtaining such approval i

are contained in Handbook 7.9.

i References (7.9.-07)

1. " Activities of Officers and Employees in Claims Against and Other l

Matters Affecting the Government," 18 U.S.C. 205.=

2. " Disqualification of Former Officers and Employees; l

Disqualification of Parmers of Current Officers and Employees,"

l 18 U.S.C. 207.

l

3. " Acts Affecting a Personal Financial Interest," 18 U.S.C. 208.

5

4. "Sa!ary of Government Officials and Employees Payable Only by United States," 18 U.S.C. 209.

I

5. Office of Government Ethics, " Principles of Ethical Conduct,"

1 5 CFR Part 2635.

6. Office of Government Ethics, "Umitations on Outside Employment and Prohibition on Honoraria; Confidential Reporting of Payments to Charities in Lieu of Honoraria," 5 CFR Part 2636.

7. Office of Government Ethics, " Regulations Concerning Post-Employment Conflict of Interest," 5 CFR Parts 2637 and 2641.

i Approved: (Draft February 3,1993) 5 l

Volume 7, Legal and Ethical Guidelines Ethics Approvals and Waivers Directive 7.9 References (7.9.-07) (continued) t

8. NRC Management Deective 7.7, " Security Ownership."

9. NRC Management Directive 7.8, "Outside Employment and i

Other Outside Activities."

10. NRC Management Directive 10.62, " Leave Administration" l

(formerly MC 4145).

t i

t' 7

l t

I P

6 Approved: (Draft February 3,1993)