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Federal Register / Vol. 71, No.

106 / Friday, June 2, 2006 / Rules and Regulations 31929

petition are available for inspection at through Friday. FDA will publish notice free from impurities other than those
the Center for Food Safety and Applied of the objections that the agency has named to the extent that such other
Nutrition by appointment with the received or lack thereof in the Federal impurities may be avoided by good
information contact person (see FOR Register. manufacturing practice:
FURTHER INFORMATION CONTACT). As (1) Lead (as Pb), not more than 4 parts
IX. References
provided in § 71.15, the agency will per million (ppm).
delete from the documents any The following references have been (2) Arsenic (as As), not more than 3
materials that are not available for placed on display in the Division of ppm.
public disclosure before making the Dockets Management (see ADDRESSES) (3) Mercury (as Hg), not more than 1
documents available for inspection. and may be seen by interested persons ppm.
between 9 a.m. and 4 p.m., Monday (c) Uses and restrictions. (1) The
VI. Environmental Impact through Friday. substance listed in paragraph (a) of this
The agency has previously considered 1. Memorandum from Jensen, Chemistry section may be safely used as a color
the environmental effects of this rule as Review Team, Division of Product additive in amounts up to 1.25 percent,
announced in the notice of filing and Manufacture and Use, to Orstan, Division of
Petition Control, January 22, 1999.
by weight, in the following foods:
amended filing notice for CAP 8C0262 (i) Cereals.
2. Memorandum from Lee, Chemistry
(63 FR 51359 and 64 FR 33097). No new (ii) Confections and frostings.
Review Group, Division of Petition Review,
information or comments have been to Orstan, Regulatory Group II, Division of (iii) Gelatin desserts.
received that would affect the agency’s Petition Review, April 16, 2003. (iv) Hard and soft candies (including
previous determination that there is no 3. Memorandum from Lee, Chemistry lozenges).
significant impact on the human Review Group, Division of Petition Review, (v) Nutritional supplement tablets and
environment and that an environmental to DeLeo, Regulatory Group II, Division of gelatin capsules.
impact statement is not required. Petition Review, March 1, 2005.
(vi) Chewing gum.
4. Memorandum from Lee, Chemistry
VII. Paperwork Reduction Act of 1995 Review Group, Division of Petition Review, (2) The color additive may not be
to Orstan, Regulatory Group II, Division of used to color foods for which standards
This final rule contains no collections
Petition Review, January 30, 2003. of identity have been issued under
of information. Therefore, clearance by
5. Memorandum from Park, Toxicology section 401 of the act, unless the use of
the Office of Management and Budget Review Group I, Division of Petition Review, the added color is authorized by such
under the Paperwork Reduction Act of to DeLeo, Division of Petition Review, standards.
1995 is not required. December 14, 2005. (d) Labeling. The label of the color
VIII. Objections List of Subjects in 21 CFR Part 73 additive and of any mixture prepared
This rule is effective as shown in the therefrom intended solely or in part for
Color additives, Cosmetics, Drugs,
DATES section of this document, except coloring purposes shall conform to the
Medical devices.
as to any provisions that may be stayed requirements of § 70.25 of this chapter.
■ Therefore, under the Federal Food, (e) Exemption from certification.
by the filing of proper objections. Any Drug, and Cosmetic Act (the act) and
person who will be adversely affected Certification of this color additive is not
under the authority delegated to the necessary for the protection of the
by this regulation may file with the Commissioner of Food and Drugs, 21
Division of Dockets Management (see public health and therefore batches
CFR part 73 is amended as follows: thereof are exempt from the certification
ADDRESSES) written or electronic
objections. Each objection shall be requirements of section 721(c) of the act.
PART 73—LISTING OF COLOR
separately numbered, and each ADDITIVES EXEMPT FROM Dated: May 25, 2006.
numbered objection shall specify with CERTIFICATION Jeffrey Shuren,
particularity the provisions of the Assistant Commissioner for Policy.
regulation to which objection is made ■ 1. The authority citation for 21 CFR [FR Doc. E6–8575 Filed 6–1–06; 8:45 am]
and the grounds for the objection. Each part 73 continues to read as follows:
BILLING CODE 4160–01–S
numbered objection on which a hearing Authority: 21 U.S.C. 321, 341, 342, 343,
is requested shall specifically so state. 348, 351, 352, 355, 361, 362, 371, 379e.
Failure to request a hearing for any
■ 2. Section 73.350 is added to subpart DEPARTMENT OF LABOR
particular objection shall constitute a
waiver of the right to a hearing on that A to read as follows:
Office of Labor-Management
objection. Each numbered objection for § 73.350 Mica-based pearlescent Standards
which a hearing is requested shall pigments.
include a detailed description and (a) Identity. (1) The color additive is 29 CFR Part 458
analysis of the specific factual formed by depositing titanium salts onto
information intended to be presented in RIN 1215–AB48
mica, followed by heating to produce
support of the objection in the event titanium dioxide on mica. Mica used to Standards of Conduct for Federal
that a hearing is held. Failure to include manufacture the color additive shall Sector Labor Organizations
such a description and analysis for any conform in identity to the requirements
particular objection shall constitute a of § 73.1496(a)(1). AGENCY: Office of Labor-Management
waiver of the right to a hearing on the (2) Color additive mixtures for food Standards, Employment Standards
objection. Three copies of all documents use made with mica-based pearlescent Administration, Department of Labor.
are to be submitted and are to be pigments may contain only those ACTION: Final rule.
identified with the docket number diluents listed in this subpart as safe
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found in brackets in the heading of this and suitable for use in color additive SUMMARY: The Department of Labor
document. Any objections received in mixtures for coloring food. (Department) proposed to revise the
response to the regulation may be seen (b) Specifications. Mica-based regulations applicable to Federal sector
in the Division of Dockets Management pearlescent pigments shall conform to labor organizations subject to the Civil
between 9 a.m. and 4 p.m., Monday the following specifications and shall be Service Reform Act of 1978 (CSRA), the

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31930 Federal Register / Vol. 71, No. 106 / Friday, June 2, 2006 / Rules and Regulations

Foreign Service Act of 1980 (FSA), and not a toll-free number). Individuals with Title III (compare 29 U.S.C. 461–466
the Congressional Accountability Act of hearing impairments may call 1–800– with 29 CFR 458.26–.28), the union
1995 (CAA) (referred to collectively as 877–8339 (TTY/TDD). democracy provisions of Title IV
‘‘these Acts’’). This document sets forth SUPPLEMENTARY INFORMATION: (compare 29 U.S.C. 481 with 29 CFR
the Department’s review of comments 458.29), and the fiduciary obligations of
submitted by the public on the proposal, I. Background Title V (compare 29 U.S.C. 501(a) with
the Department’s response to those On November 3, 2004, the Department 29 CFR 458.31), among others.
comments, and the changes from the issued a notice of proposed rulemaking Most pertinent here, the standards of
proposal that are embodied in a final (69 FR 64226) proposing revisions of the conduct regulations incorporate Title I
rule. regulations applicable to Federal sector of the LMRDA (Bill of Rights of
The Department will require each labor organizations subject to the Civil Members of Labor Organizations)
labor organization subject to these Acts Service Reform Act of 1978, 5 U.S.C. virtually verbatim. See 29 CFR 458.2.
to periodically inform their members of 7120 (CSRA), the Foreign Service Act of Union member rights protected by Title
their rights as union members as set 1980, 22 U.S.C. 4117(d) (FSA), and the I of the LMRDA include the right to:
forth in the standards of conduct Congressional Accountability Act of • Nominate candidates for union
provisions of these Acts and their 1995, 2 U.S.C. 1351(a)(1) (CAA). As the office;
implementing regulations.1 Labor notice explained, the purpose of the • Vote in elections or referenda;
organizations subject to this rule must revision is to require labor organizations • Attend membership meetings and
provide written notice to existing subject to these Acts to periodically vote upon the business of union
members within 90 days after the inform members of their democratic meetings;
effective date of the regulation and to rights as set forth in the standards of • Meet and assemble freely with other
new members within 90 days of their conduct provisions of the Acts and their members, and express views, arguments
joining the organization. Such implementing regulations. These rights and opinions;
notification must also be given to each include, among others, the right to • Participate in setting rates of dues,
member at three-year intervals. participate in union affairs, freedom of fees, and assessments;
Notification may be made by hand speech and assembly, and the right to • File a lawsuit;
delivery, regular mail, electronic mail nominate candidates for office and run • Receive notice and a fair hearing
(e-mail), or a combination of these for office. A summary description of before being disciplined; and
methods as long as the method selected these rights and other pertinent • Inspect or obtain copies of
is reasonably calculated to reach all standards of conduct provisions can be collective bargaining agreements
members. A labor organization is found in the Department of Labor between an agency-employer and the
permitted, but not required, to include publication Union Member Rights and member’s union (for members and other
such notice with the organization’s Officer Responsibilities under the Civil employees affected by the agreement).
notice of election of officers if such Service Reform Act, which is appended 29 U.S.C. 411–415. The standards of
notice is mailed to members at least to this Final Rule. conduct regulations do not, however,
every three years. If a labor organization Before issuing this proposal, incorporate the important protection
has a Web site, the site must contain a Department officials met with found in section 105 of the LMRDA.
link to the CSRA Union Member Rights, representatives of the regulated Compare 29 U.S.C. 411–415 with 29
or, alternatively, provide the community, including unions and CFR 458.2. This provision states that
organization’s own notice as long as the organizations advocating greater ‘‘every labor organization shall inform
notice accurately states all of the CSRA democracy within labor organizations, its members concerning the provisions
standards of conduct provisions. OLMS to hear their views on the need for the of this Act.’’ 29 U.S.C. 415. The
will use the existing administrative proposed rule and the likely impact of Department’s proposal would revise the
mechanism in the standards of conduct changes that might be proposed. The standards of conduct regulations to
regulations for resolving complaints Department’s proposal, developed with correct this omission.
related to this rule. Where OLMS these discussions in mind, requested When the comment period closed on
determines after investigation that a comments on numerous specific issues January 3, 2005, OLMS had received
violation has occurred and has not been in order to obtain the views of the over 750 comments, including 24
remedied, OLMS will institute parties affected by the proposal and to detailed, substantive comments from
enforcement proceedings against the fully inform the Department in labor organizations, individual union
labor organization before the developing the final rule. officials, public interest and trade
As noted in the Department’s
Department’s Office of Administrative groups, and a Member of Congress, and
proposal, this rule amends the
Law Judges. over 700 copies of a form letter
regulations for unions subject to the
DATES: Effective Date: This rule will be supporting the proposed rule. All the
standards of conduct provisions of the
effective on July 3, 2006. CSRA, FSA and CAA to require such comments have been carefully reviewed
FOR FURTHER INFORMATION CONTACT: Kay unions to inform members of the and considered. The Department’s
Oshel, Director, Office of Policy, standards of conduct provisions found analysis of the comments follows.
Reports, and Disclosure, Office of Labor- at 29 CFR parts 457–459. The CSRA II. Comments on the Proposal and
Management Standards (OLMS), U.S. standards of conduct regulations make Responses to the Comments
Department of Labor, 200 Constitution certain provisions of the Labor-
Avenue NW., Room N–5605, Management Reporting and Disclosure A. General Comments
Washington, DC 20210, olms- Act of 1959 (LMRDA), 29 U.S.C. 401 et In addition to many specific
public@dol.gov, (202) 693–1233 (this is seq. applicable to federal sector labor comments that are discussed in the
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organizations. The standards sections that follow, many of which
1 To avoid unnecessary repetition, this final rule
incorporate portions of the reporting were from unions in opposition to the
will refer to the standards of conduct provisions of
the CSRA, the FSA, and the CAA and the
provisions of the LMRDA’s Title II proposed regulation, the Department
Department’s regulations implementing these (compare 29 U.S.C. 431 with 29 CFR also received over 700 identical
provisions as the ‘‘CSRA standards of conduct.’’ 458.3), the trusteeship provisions of comments from individuals in support

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Federal Register / Vol. 71, No. 106 / Friday, June 2, 2006 / Rules and Regulations 31931

of the Department’s proposed reform, 459. A summary description of their proposal is, therefore, ‘‘ill-conceived’’
stating: ‘‘[t]his requirement is sorely provisions can be found in the and ‘‘lack[s] statutory authority.’’ The
needed to prevent federal employee Department of Labor publication Union National Federation of Federal
unions from becoming personal Member Rights and Officer Employees (NFFE), an affiliate of IAM,
fiefdoms in which a few powerful union Responsibilities under the Civil Service advances IAM’s arguments in its
officials control the organization * * * Reform Act, which is appended to this comments.
[i]nforming union members of their Final Rule. The Final Rule adds another The IAM’s argument that Federal
rights is an essential part of provision to these regulations requiring sector union members possess only the
strengthening union democracy and federal sector unions to provide notice rights embodied in the unions’
protecting the federal civil service from to their member of the existing governance documents is unpersuasive.
corrupt union officials.’’ Although the Standards of Conduct provisions. Its related argument that section 105
value to the Department of these The International Association of exists only to provide notice of external,
comments was diminished by the Machinists (IAM) challenged the ‘‘free-standing’’ rights also is
individuals’ failure to articulate whether Secretary’s authority to issue the unconvincing. Contrary to the IAM’s
they are union members or federal proposed rule, asserting that section 105 suggestion, section 7120 provides, by
employees, the comments do show requires notice of rights that are held force of law, that unions representing
strong support among numerous only by private sector union members Federal employees ensure:
individuals for the proposed reform. and its application to federal sector The maintenance of democratic procedures
unions therefore falls outside of the and practices including provisions for
B. The Secretary’s Statutory and Secretary’s rulemaking authority.2 periodic elections to be conducted subject to
Regulatory Authority Specifically, the IAM argues that the recognized safeguards and provisions
Under the CSRA, a Federal agency CSRA does not grant public sector defining and securing the rights of individual
‘‘shall only accord recognition to a labor union members individual rights in the members to participate in the affairs of the
organization that is free from corrupt same manner as the LMRDA, and there organization, and to receive fair process in
influences and influences opposed to disciplinary proceedings.
are, thus, no rights of which union
basic democratic principles.’’ 5 U.S.C. members can be notified. In support of 5 U.S.C. 7120(a)(1). Congress chose to
7120(a). To avoid having to prove that its position, the IAM asserts: ensure such ‘‘rights of individual
it is free from corrupt influences, a members’’ by encouraging unions to
[T]he first sentence of Section 7120(a)
public sector union must adopt states a general requirement that Federal adopt these protections in their
governing documents that guarantee agencies shall only accord recognition to constitution rather than by direct
‘‘democratic procedures and practices Unions that are free from corrupt influences. regulation of the unions. But the result
including provisions for periodic The second sentence provides that unions do is precisely the same: every recognized
elections to be conducted subject to not have to prove freedom from corrupt public sector union member enjoys
recognized safeguards and provisions influences if their governing documents these protections by statute.
defining and securing the rights of incorporate the standards set out in In addition, section 7120 operates
subsections (a)(1) through (a)(4). Thus, directly to regulate unions in a manner
individual members to participate in the section 7120(a) effectively requires Federal-
affairs of the organization, and to sector Unions to build the enumerated
that preserves important union member
receive fair process in disciplinary LMRDA-type rights into their constitutions, rights. ‘‘A labor organization which has
proceedings.’’ Id. The provisions must bylaws, and governing policies. or seeks recognition as a representative
include the exclusion from union office of employees under this chapter shall
From the premise that a Federal
individuals ‘‘identified with corrupt file financial and other reports * * *,
employee’s rights derive solely from the provide for bonding of officials and
influences,’’ the prohibition of financial union’s governing documents, the IAM
conflicts of interests on the part of employees of the organization, and
concludes that public sector union comply with trusteeship and election
union officers and agents, and the members have no ‘‘free standing rights
maintenance of fiscal integrity in the standards.’’ 5 U.S.C. 7120(c). By direct
under Section 7120’’ and, therefore, operation of law, therefore, labor unions
conduct of the affairs of the
‘‘Section 105’s purpose of alerting representing federal employees must
organization. Id. A union seeking to be
Union members to such external rights comply with stringent standards
the bargaining representatives of Federal
is simply absent.’’ The Department’s concerning full and accurate financial
employees must file financial reports
with the Department, provide for 2 The legal authority for this notice of proposed
disclosure, responsible use of
bonding of union officials and rulemaking is the standards of conduct provisions
trusteeship authority, and fair and
employees, and adhere to trusteeship of the CSRA, 29 U.S.C. 7120(d), 7134, and the FSA, democratic elections. See 29 CFR 458.3
and election standards. 5 U.S.C. 7120(c). 22 U.S.C. 4117. These provisions expressly (reporting requirements), 29 CFR 458.26
The Secretary implements these authorize the Assistant Secretary of Labor for Labor (purposes for which a trusteeship may
Management Relations to issue regulations
provisions through a grant rulemaking implementing standards of conduct that conform
be established), and 29 CFR 458.29
authority that authorizes regulations as generally to the principles applicable to labor (election of officers). These
are ‘‘necessary to carry out the organizations in the private sector. This position no requirements by necessity vest union
purposes’’ section 7120. These longer exists and through a series of Secretary’s members with individual rights. For
Orders, most recently embodied in Order 4–2001,
regulations are to ‘‘conform generally to which was issued May 24, 2001, and published in
example, a union’s duty to hold a fair
the principles applied to labor the Federal Register on May 31, 2001 (66 FR election necessarily encompasses a
organizations in the private sector.’’ 5 29656), the Assistant Secretary for Employment union member’s right to speak freely,
U.S.C. 7120(d). A second grant of Standards has the authority and responsibility to express views, and support the
carry out the standards, programs and activities
rulemaking authority is found in section under the CSRA, FSA and CAA. In addition, under
candidate of his or her choice. If the
7134, which authorizes rules and election did not encompass these rights,
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the CAA, the Office of Compliance, U.S. Congress,
regulations to carry out the provisions of has issued regulations, expressly approved by the the union member may file a complaint
section 7120 just discussed. 5 U.S.C. House and Senate, providing that the Secretary is that, if validated by an investigation,
responsible for issuing decisions and orders on
7134. The Standard of Conduct standards of conduct matters. See 142 Cong. Rec.
could result in a new election,
regulations promulgated under these S12062–01, S12074 (October 1, 1996); 142 Cong. supervised by the Department of Labor.
grants are found in 5 CFR parts 457– Rec. H10369–06, 10382 (September 12, 1996). As a final note, accepting the argument

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31932 Federal Register / Vol. 71, No. 106 / Friday, June 2, 2006 / Rules and Regulations

that federal sector union members have enable the Assistant Secretary to of a provision in the CSRA comparable
no free-standing rights would require ‘‘effectuate’’ the statute, 5 U.S.C. 7120. to section 105 of the LMRDA. IFPTE
the Department to consider invalid its See S. Rep. 95–969, 107–108, 1978 implies that this omission evidences an
own regulation, 29 CFR 458.2, which U.S.C.C.A.N. 2723, 2829–30. The notion intention to relieve federal sector unions
vests Federal sector union members that sections 7120(a)(1)–(4) reflect the of any duty to notify their members of
with the same ‘‘Bill of Rights’’ afforded sole obligations of unions covered by the provisions of the CSRA. The
to private sector union members by the the CSRA would deny effect to section Department disagrees. IFPTE overlooks
LMRDA. The Department declines to do 7120(d), among other subsections, and the state of the law pertaining to union
so. ignore the interpretative maxim that a regulation at the time the CSRA was
Even if it were demonstrated that the statute should not be construed in a way enacted. In 1959, Congress enacted the
CSRA does not provide Federal sector that renders a provision superfluous. LMRDA, complete with multiple titles
union members ‘‘individual’’ or ‘‘free- See, e.g., United States v. Menasche, imposing numerous prohibitions and
standing rights,’’ the Department would 348 U.S. 528, 538 (1955). requirements on labor unions and other
still reject IAM’s argument because it is A rule that requires unions to provide entities. Public Law 86–257, September
erroneously premised on the belief that notice of the provisions of the CSRA is, 14, 1959, 73 Stat. 519–546. By the mid-
section 105 requires unions to notify to paraphrase the statute, necessary to 1960s, the Department had promulgated
their members only of individual rights. fully realize the purposes of the CSRA detailed regulations implementing and
On the contrary, section 105 provides and conforms generally to the principles interpreting the LMRDA. See generally
that ‘‘every labor organization shall applicable to private sector unions. 5 29 CFR Parts 401–453. Congress did not,
inform its members concerning the U.S.C. 7120(d). Notice is necessary and did not need to, codify in the CSRA
provisions of this Act.’’ 29 U.S.C. 415. because union member action is often detailed provisions already established
The language does not limit notice only required to ensure that unions comply in the LMRDA for private sector unions.
to ‘‘individual rights’’ but is much more with the provisions of the CSRA. A Instead, Congress chose to enact broad
encompassing. This provision of the botched or stolen election cannot be set standards, provide the Assistant
LMRDA includes, in addition to rights aside and rerun by the Department until Secretary with rulemaking authority,
that IAM would consider free-standing a union member files a complaint. 29 and instruct the Assistant Secretary to
(primarily relating to election and CFR 458.29, 458.65. A union member prescribe necessary regulations that
associational protections), numerous who believes that his or her local union conform generally to the principles
other substantive and procedural has been placed in trusteeship for a applied to private sector labor unions.
requirements and prohibitions. Thus, prohibited reason may file a complaint 29 U.S.C. 7120. Thus, the absence of any
even if IAM were right that the CSRA with OLMS, which, if well-founded, particular provision in the CSRA
provides union members with no free- will result in an enforcement action to comparable to section 105 in the
standing rights, this would not affect the lift the trusteeship. 29 CFR 458.26– LMRDA does not mean that Congress
Secretary’s statutory authority to require 458.28, 458.53, 458.66(a). The financial did not intend the notification
public sector unions to provide notice of reporting provisions are policed in part requirement to apply to unions covered
the relevant provisions of the CSRA. by union members who may, under by the CSRA.
The Department has ample statutory certain circumstances, examine the
authority to require unions subject to union’s books to verify the union’s IAM and NFFE also argued that the
the CSRA standards of conduct to notify financial reports. 29 CFR 458.3; 29 CFR proposed rule ‘‘upset[s] the balance of
their members of these provisions. By 403.8(a). The comments indicate that rights, duties and responsibilities that
including fundamental protections some unions do not adequately provide Congress enacted in the CSRA’’ by
within their governing documents, notice of the provisions of the CSRA to imposing a Federal obligation to
unions seeking to become a bargaining their members and that members are not highlight some CSRA rights over others.
representative of Federal employees versed in these provisions. Union As discussed above, the notification
satisfy their obligation to demonstrate members who are not aware of these required under the rule is within the
their freedom from corrupt influences. laws will not likely take the steps authority provided the Department to
Despite IAM’s suggestion to the needed to ensure that unions comply effectuate the CSRA’s standards of
contrary, it does not follow that with these laws. conduct. The Department acknowledges
Congress, in establishing this statutory The rule is also consistent with that the CSRA affords unions, their
framework, intended to deny the private sector principles. Private sector members, and Federal agencies
Secretary the authority to further unions have, since 1959, been required important rights and obligations not
regulate union governance. Indeed, the by statute to provide their members addressed by the rule; however, the
plain language of section 7120(d) with notice of the law applicable to Department does not have express
demonstrates just the opposite. Section them. Section 105 of the LMRDA authority to require unions to apprise
7120(d) reads: ‘‘The Assistant Secretary requires every covered union ‘‘to inform members of all their rights under the
shall prescribe such regulations as are its members concerning the provisions CSRA, but only those rights specifically
necessary to carry out the purposes of of the Act.’’ 29 U.S.C. 415. It is evident under the authority of the Assistant
this section. Such regulations shall from this section that a rule requiring Secretary, i.e., the standards of conduct
conform generally to the principles unions subject to the CSRA standards of for labor organizations. See 5 U.S.C.
applied to labor organizations in the conduct to inform members of their 7120(d) (Assistant Secretary has
private sector.’’ 5 U.S.C. 7120(d). rights as union members and the authority to carry out purposes of
Similarly, the Assistant Secretary is responsibilities of their union officers section 7120 by rules that conform
required by the CSRA to ‘‘prescribe ‘‘conforms generally to principles generally to private sector principles); 5
rules and regulations to carry out the applied to labor organizations in the U.S.C. 7134 (Assistant Secretary has
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provisions of’’ Chapter 71 (Labor- private sector.’’ authority to issue rules to carry out the
Management Relations) of Title 5 that In its comments, the International applicable provisions of Chapter 71
are administered by her. 5 U.S.C. 7134. Federation of Professional and (Labor-Management Relations) of Title
As the legislative history indicates, the Technical Engineers (IFPTE) stated that 5). Furthermore, the Department rejects
rulemaking authority was meant to the NPRM fails to explain the absence the notion that informing members

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Federal Register / Vol. 71, No. 106 / Friday, June 2, 2006 / Rules and Regulations 31933

about their rights as union members Assistant Secretary has been granted, as NFFE and the IFPTE asserted that
somehow diminishes the other rights discussed immediately above. The members already have adequate notice
and obligations imposed on unions, Department has also concluded that of their rights. Neither of these unions,
union members, and agency providing precise guidelines on the however, submitted copies of any
management under the CSRA. particulars of the notice merely information provided to their members,
The IFPTE notes that the Department effectuates the notice requirement and nor did they suggest that any such
proposes to prescribe the content of the constitutes a reasonable administrative information is similar to, or as
notice and the frequency and method of construction of the requirement. Clear comprehensive as that contained in, the
its distribution, thus imposing a greater instructions provide detail that will CSRA Union Member Rights notice.
burden on Federal unions than private assist unions in complying with the law. Other than IAM, no commenter
unions. The IFPTE asserts that the The Department rejects any implication included a copy of, quotation from, or
Department ‘‘offers no factual basis for that the final rule is invalid because no link to, any statement of members’
the imposition of these unique and court has heretofore imposed rights on a labor organization’s Web site
burdensome requirements upon Federal comparable terms on private sector (or other union resource).
sector unions.’’ The Department unions. The relevant statute requires On the other hand, the National Right
disagrees that the final rule lacks factual that CSRA regulations merely ‘‘conform to Work Legal Defense Foundation
or legal support. The comments provide generally to the principles applied to (NRTWF) stated that ‘‘the basic
factual support for the findings labor organizations in the private provisions of the NPRM are essential.’’
supporting the final rule, as does the sectors,’’ and nowhere requires that the The NRTWF asserted that ‘‘at least one
common sense proposition that regulations adhere precisely in every union believes its legal obligation was
increased notice leads to increased particular to each articulation of, or satisfied with notices issued to union
awareness. The particular requirements omission in, private sector members two generations ago.’’ The
of the rule are discussed below, along requirements. See 29 U.S.C. 7120(d). Association for Union Democracy
with the comments and reasoning that (AUD) argued that the proposed rule
support the Department’s decision. In C. The Need for Notice to Members
does not go far enough and that there
addition, the final rule also has ample should be a rule mandating inclusion of
The NPRM asked whether union
legal justification. In Thomas v. a rights notice in union constitutions.
members already receive adequate
International Ass’n of Machinists, 201 AUD also supported giving full written
notice of their rights as union members.
F.3d 517 (4th Cir. 2000), a labor notice to new union members. One
organization took the position that a The Department received relatively few
comments from unions on whether union official supported the regulation
notice it provided to its members forty
members already receive adequate because ‘‘members are not informed of
years ago, shortly after the passage of
notice of their rights. The IFPTE stated their rights.’’ Congressman Sam
the LMRDA, satisfied its section 105
that it ‘‘fully supports the principle that Johnson, Chairman of the Subcommittee
notice obligations. The Court of Appeals
it is important to educate union on Employer-Employee Relations of the
rejected this position, stating that the
members about their statutory rights, as Committee on Education and the
democratic principles in the statute ‘‘are
employees, citizens and union Workforce of the United States House of
meaningless * * * if members do not
members, and devotes appropriate Representatives (Congressman Johnson),
know of their existence [because] if a
resources to educate members about all stated that ‘‘too many of today’s union
member does not know of his rights, he
cannot exercise them.’’ Machinists, 201 these issues, including their rights and members are wholly unaware of these
F.3d at 520. As stated in the obligations as union members.’’ The rights, as too many unions have failed
Department’s proposal, at 69 FR 64227, IFPTE did not, however, describe the to provide their members with the
the reasoning in Machinists also applies extent of the ‘‘resources’’ it devotes to notice of their rights as contemplated in
to unions governed by the CSRA. this effort, the content of the section 105 of the LMRDA.’’ As noted,
Furnishing a notice of the CSRA information it provides to its members, the Department also received 700 form
standards of conduct provisions to or the frequency with which it provides comments, stating that the notice is
union members furthers the this notice. NFFE asserted that ‘‘most ‘‘sorely needed.’’
fundamental policies of Federal labor unions’’ give new members Many individuals and institutional
law. Union members aware of these ‘‘membership information’’ and that commenters claim that new members do
provisions are more likely to monitor ‘‘information is consistently and not receive adequate notice. A union
the conduct of their union and its continuously posted on union officer wrote that he had ‘‘held an office
officers as it affects their rights and websites.’’ NFFE did not, however, in a local union for over 25 years, [and]
interests as members; such information describe the content of the information not once during my tenure has my
also equips them to help remedy any it or other unions provide their organization provided notice or training
breach of the union’s obligations. Union members, or the frequency with which concerning my rights.’’ A union member
members who are not informed or aware this information is provided. A letter commented that members are ‘‘never’’
of their rights are less able and less from the IAM, provided as an apprised of their rights as union
likely to take such action. attachment to NFFE’s comments, members. The Americans for Tax
The Department acknowledges that asserted that it takes the following steps: Reform wrote that ‘‘[r]eminding
the final rule imposes on Federal sector ‘‘[W]e now supply DOL’s own summary ordinary union members that they own
unions more precise requirements of the LMRDA to each new member, the union they pay dues to is a great
concerning the timing and content of publish that summary in issues of our step for worker rights and democracy.’’
the notice than have been expressly set magazine, and carry it at all times on The AUD stated that by enacting the
forth in the law governing private sector our website (clearly accessed from our proposed regulation ‘‘the DOL will be
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labor organizations. The Department home page).’’ The Department notes, ensuring that federal sector union
believes that requiring unions of Federal however, that IAM may not be members receive the same information
employees to notify their members of representative of other unions in that its about their rights as private sector union
the provisions of the CSRA is squarely commendable practices stemmed from a members are already entitled to under
within the rulemaking authority the lawsuit against it by one of its members. [section] 105 of the [LMRDA].’’

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31934 Federal Register / Vol. 71, No. 106 / Friday, June 2, 2006 / Rules and Regulations

After considering all the comments, Officer Responsibilities’’ better conveys 1156 (3rd Cir. 1973), cert. denied, 414
the Department has concluded that each the purpose of the notification than a U.S. 975 (1973)). The Department
labor organization subject to the CSRA title in which ‘‘standards of conduct’’ is believes that the statement in question
must inform its members of the relevant the focal point, as a commenter urged, accurately summarizes the restrictions
provisions of the CSRA. In the notwithstanding the longstanding use of on trusteeships under the CSRA, as
Department’s view, there is no the term in Federal sector labor articulated in the Department’s existing
persuasive argument that members of relations. regulations. See 29 CFR 458.26. The
federal sector unions are less deserving NFFE further stated that ‘‘the substantive requirements under the
of such information than members of requirement to provide copies of CSRA conform generally to the LMRDA.
unions solely representing private sector collective bargaining agreements to dues Only the enforcement mechanisms are
employees. The comments indicate that paying and non-dues paying members is different. As stated in Reed v.
unions subject to the proposed rule, as not a legal requirement under 5 U.S.C., Sturdivant, ‘‘After two circuits
a general matter, do not already provide Chapter 71.’’ The obligation that a union construed Title III [of the LMRDA] as
such information of their own volition provide copies of the collective not applying to trusteeships imposed
to their members. The comments also bargaining agreement on request to any upon local unions of federal employees,
indicate that union members, as a member of the bargaining unit has long Congress responded by enacting the
general matter, are not already aware of been established by this Department’s CSRA, which mandates the same
the provisions of the CSRA. The regulations. See 29 CFR 458.3. This rule substantive standards but is enforced by
Department has concluded that notice is was adopted in 1980, as part of an exclusively administrative
necessary to ensure that Federal sector overall effort to update the Department’s remedies.* * *’’ 176 F.3d at 1054. For
union members are provided a basic responsibilities following the CSRA’s these reasons, the Department has
understanding of their rights as union 1978 enactment. The obligation existed decided to retain unchanged the
members and the responsibilities of under regulations promulgated under statement that ‘‘[a] union may not be
their officers. E.O. 11491, as amended, the antecedent placed in trusteeship by a parent body
authority governing labor-management except for those reasons specified in the
D. Content of the Notice relations in the Federal service. See 29 standards of conduct regulations.’’
The NPRM asked whether the CSRA CFR 204.2(d) (1979) (indicating source The NRTWF and SUPA requested that
Member Rights publication clearly and as 40 FR 19992 (1975)). Moreover, this the Department include in the required
accurately states all union member requirement is the analog to the LMRDA notice that the union has a duty to fairly
democratic rights. The NPRM also asked section 104 obligation of unions ‘‘to represent all employees in the
what specific changes to the language forward a copy of each collective bargaining unit and to charge dues only
would improve the accuracy or clarity bargaining agreement * * * to any for ‘‘core’’ union purposes, i.e., for
of the notice. employee who requests such a copy matters such as collective bargaining,
The Department received comments * * *’’ 29 U.S.C. 415, 414. For these contract administration, and the
recommending specific changes to the reasons, the Department has determined adjustment of grievances. The duty of
document, including the following: the that the inclusion of this statement in fair representation is not a provision
Department should delete the listing of the members’ rights notification is within the authority of the Department.
union officer responsibilities, delete the appropriate. Although the duty is set forth in the
statement concerning trusteeships, and NFFE stated that the notice should CSRA, this duty arises independent of
delete the statement requiring unions to include a statement concerning an an employee’s membership in a union
provide copies of collective bargaining employee’s right to join a union. Three and the duty is enforced by the FLRA,
agreements. Other comments suggested organizations (NRTWF, Evergreen not this Department. For these reasons,
that the Department should add Freedom Foundation (EFF), and Stop the Department believes it would be
statements regarding a union’s duty of Union Political Abuse (SUPA)) inappropriate to include such
fair representation, an individual’s right recommended that the notice contain a statements in the required notice.
to join or not join a union, the asserted statement concerning an employee’s Similarly, the Department believes it
right to ‘‘limit membership’’ to financial right not to join a union. Without regard would be inappropriate to include a
core matters, the need to exhaust to any possible merit of including such statement concerning ‘‘core’’ union
internal union proceedings in order to statements in the notice, the right to join responsibilities. The Department is not
obtain redress for a violation of a or not join a Federal sector union is persuaded that the concept of financial
member’s rights, and the right to chiefly enforced by the Federal Labor core membership is applicable to
accurate information about union Relations Authority (FLRA) and is Federal sector union members because a
finances. We discuss each of these outside the jurisdiction of this union shop is not permitted under the
points in turn. Department. CSRA and, in any event, any claimed
NFFE stated union officer NFFE contended that the Department violation would fall within the authority
responsibilities should not be included lacked the authority to state that ‘‘[a] of the FLRA, not this Department.
because these duties concern internal union may not be placed in trusteeship For similar reasons, the Department
union policy, not ‘‘members’ rights.’’ by a parent body except for those rejects SUPA’s related recommendation
The Department disagrees. Members’ reasons stated in the standards of that the notice include the statement
rights include the obligations owed conduct regulations.’’ NFFE claimed that members possess the ‘‘right to clear,
members by the officers of their union. that this statement is inconsistent with concise, and accurate financial
Even if the term ‘‘members’ rights’’ three Federal courts of appeals information * * *, especially for * * *
could be construed in the narrow sense decisions (Reed v. Sturdivant, 176 F. 3d expenditures on ‘‘non-core’’ activities.’’
suggested by NFFE, the notification is 1051 (8th Cir. 1999); Smith v. Office & The Department believes that the CSRA
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designed to apprise members about all Professional Employees International Union Member Rights accurately
of the relevant CSRA standards of Union, 821 F.2d 355 (6th Cir. 1987); identifies a union’s obligation to
conduct, rather than simply New Jersey County & Mun. Council #61 provide financial information to its
membership rights. In the Department’s v. American Federation of State, County members as relevant to the CSRA
view, ‘‘Union Member Rights and and Municipal Employees, 478 F.2d provisions for which the Assistant

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Secretary has responsibility. And, even notice, a union may choose to apprise Department instead included the
assuming that there is a relevant members of their specific rights under following statement in the notice. ‘‘If
distinction between charges for ‘‘core’’ the union’s governing documents, and you need additional information * * *
and ‘‘non-core’’ activities in the Federal the duties owed by officers and the please contact OLMS * * *. You should
sector, the Department has not been members to the union and each other at also refer to 29 CFR 457.1–459.5, and
persuaded that it possesses the authority the same time it informs members of the your union’s constitution and bylaws
to require unions subject to this rule to provisions of the CSRA. Given the for information on union procedures,
provide any accounting to members Department’s authority to undertake its timelines, and remedies.’’ The
other than those that conform generally own investigation of union compliance Department’s view remains that this
to the principles already prescribed by with the notification requirement and approach is preferable to an attempt to
Title II of the LMRDA. its ability to prosecute violations, the include even a truncated statement of
The NRTWF also suggested that the Department believes that it can oversee the exhaustion principle in the notice.
notice should be denominated the union practices in devising language Furthermore, as NTEU noted, a union
‘‘Rights of Represented Employees and and, if proven necessary, quickly may choose to include such information
Union Officer Responsibilities under the undertake corrective action without any in a notice of its own devising. This
Civil Service Reform Act’’ because non- significant loss of information to approach would allow a union to
union member bargaining unit members. At the same time, the explain to its members the union’s
employees have the same rights to Department determined that it was particular procedures and time
representation as members. The NRTWF appropriate to make explicit that the constraints applicable to a member’s
would require unions to send the standards to be identified in a union- claims, a choice left available to unions
notices to all employees in the developed notice include, at a under the final rule.
bargaining unit it represents, members minimum, each of the standards listed
and nonmembers alike. Protecting E. Dissemination of the Notice
in the OLMS publication appended to
representation rights, however, is not this document. To accomplish this The NPRM proposed that labor
one of the purposes of section 7120 and result, the text of the final rule now organizations subject to the CSRA
not one of the provisions of Chapter 71 clarifies that the union-prepared notice standards of conduct may meet their
that is applicable to the Assistant must accurately state the CSRA duty to inform members about their
Secretary. 5 U.S.C. 7120(c), 7134. Thus, provisions as they appear in CSRA rights by any method as long as it was
there is no express rulemaking authority Union Member Rights. reasonably calculated to reach all
to issue such a regulation. The The NRTWF stated that the notice members. The NPRM also solicited
Department is not persuaded that should include statements that union comments from the public with regard
unions should be required either to members have the right to resign their to the following two issues: (i) Whether
include in a notice to their own membership and to revoke their dues a posting, either permanent or periodic,
members a statement that primarily authorization. Although the NRTWF at a union’s offices and on agency
concerns the rights of nonmembers or correctly states that union members bulletin boards to which the union has
that the union should be required to have these rights, the purpose of the access by virtue of its status as
bear the expense of providing notice is to inform members generally of bargaining representative would
information to nonmembers (even the standards of conduct provisions in adequately apprise members of their
assuming that the union had addresses the CSRA and the Department’s rights as union members; and (ii)
or an alternative means to mail notice to regulations, not to provide an whether a union which has a Web site
them). exhaustive list of union member rights, must be required to include a link to
The EFF recommended that unions as recognized by the courts or other CSRA Union Member Rights or the
should be required to use specific authorities. Similarly, as discussed union’s own notice.
language, developed by the Department, above, the Department was not A common theme in the comments
in order to ensure that members are expressly authorized by Congress to received by the Department was that
given proper notice of their rights. prescribe rules that would more unions should be required to use a
Another commenter, an officer of a generally require unions to apprise combination of methods to disseminate
Federal union, objected, ‘‘If you allow members of their collective bargaining notice of members’ rights. For example,
the unions to abbreviate the statement, and other rights and obligations under Congressman Johnson urged the
some would also abbreviate the rights.’’ the CSRA. Department to issue a rule that would
On the other hand, NTEU, and other NFFE and NTEU recommended that require unions to incorporate such
unions, urged the Department to permit the notice contain a statement that notices in their constitutions, post
unions to devise their own language in ‘‘employees should exhaust internal notices at union offices and on bulletin
order to correct perceived omissions in union administrative procedures prior boards, and deliver the notice by e-mail
the notice or provide information to seeking department relief regarding where possible. The SUPA
tailored to the unique needs of each the election of officers.’’ In crafting the recommended that a ‘‘combination of
union and its membership. After proposed rule, the Department communication methods’’ is preferable.
considering the comments, the considered the inclusion of a statement It suggested that unions should provide
Department concludes that it is specifically alerting union members that ‘‘(1) verbal and written notice during
appropriate to provide unions the they may be required to ‘‘exhaust’’ new member orientation; (2) a mailing
alternative opportunity to devise their internal procedures before obtaining to all members with election notices; (3)
own notice. Although use of the relief under the standards of conduct e-mail notification; and (4) bulletin
Department-prepared notice ensures provisions. The Department concluded board posting.’’
uniformity by providing a minimum that a relatively complete yet succinct The Department has concluded that
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compliance standard, uniformity is also statement of the exhaustion principle notification to individual members must
its weakness. Such a notice must of could not be accomplished through a be in writing. The Department also has
necessity be generic—without any tie to summary notice and that the very term concluded that a union must use
a union’s particular internal practices or ‘‘exhaustion’’ might be confusing to personal delivery, regular mail, or
procedures. By developing its own some individuals. For these reasons, the electronic mail, alone or in

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combination, to provide notification to adequately apprised of their rights. As affirmed that ‘‘Web site notice has the
members. Further, if a union has a Web discussed below, a mailing to individual advantage of being continuing in nature,
site it must also include such members is far more likely to reach readily accessible, and inexpensive for
notification on the Web site or provide individual members than a posting. The the union to maintain.’’ Similarly,
a link to the CSRA Union Member Department has also considered and another commenter indicated that Web
Rights. The Department believes that rejected the comment suggesting site posting would ‘‘keep administrative
providing such information on a Web bulletin board posting as an alternative costs at a minimum while still
site and posting it on bulletin boards to Web site posting when the union informing members of their rights.’’
will prove beneficial to members; does not maintain a Web site. The On the other hand, one comment
however, in the Department’s view, commenter proposed this idea while stated that Web site posting denies
these resources, either alone or in arguing that Web site notice was information to members without
combination, are inadequate as the sole sufficient alone, and that bulletin board Internet access and members who
means of informing members about their posting would be required only for belong to unions that do not maintain a
membership rights. Each of these points unions without a Web site. The Web site. Another indicated that his
is discussed in greater detail below. Department has chosen to require direct, union’s Web site is difficult to navigate,
individual notice to members, and it is and another noted his union’s difficulty
1. Bulletin Board Posting
doubtful that the commenter would in keeping its Web site current.
The NPRM asked whether a posting at support bulletin board posting as a While Web posting is continuous and
a union’s offices and on agency bulletin supplemental measure. In any event, the would supplement periodic mailing of
boards would adequately apprise drawbacks of bulletin board posting in notice to members, the Department has
members of their rights as union terms of location, accessibility, visual concluded that Web posting is not
members. Most of the comments clutter, and compliance monitoring adequate as the sole means for
received on this issue expressed the make this an ineffective means for disseminating notice to members.
general view that such posting would be disseminating notice. Despite the growing availability of
inadequate as a primary method of
2. Web Site Posting Internet access and the public’s
providing notice. NTEU indicated that
familiarity with this technology, it
posting alone would not reach members The Department proposed that if a
appears that there still may be a
who spend most or all of their time at union maintains a Web site, it must
significant number of members who
third-party worksites or other sites include as part of the site a notification
separate from their employer’s premises. to members of their rights as union lack access to their union’s Web site or
NTEU stated that Web site posting alone members. Under the proposal, a union possess only a limited ability to navigate
is adequate notice to members and could choose to develop its own notice the site. Each member of a union should
stated that unions without Web sites or include a link to CSRA Union receive notification of his or her rights,
should be required to post notices in Member Rights. The comments a purpose that cannot be achieved if
union offices and on agency bulletin expressed general support for the Web posting is the only source of this
boards. proposal, but noted some concerns. information.
Other comments identified flaws in IFPTE argued that its Web site ‘‘plays Even though the Department rejects
using posting as a primary means of a pivotal role’’ in communications with Web posting as the sole means of
providing notice. One commenter its members: ‘‘It’s reasonable to expect disseminating notice to members, the
argued that ‘‘all too often the union that Web site notification will be Department believes that Web site
bulletin board is not placed in a extremely effective at keeping members posting is an effective, efficient, and
strategic location, because management informed of their rights as union inexpensive means to provide members
often has control over exactly where members.’’ IFPTE, as well as NTEU, with supplemental and continuing
that bulletin board is placed.’’ The AUD argued that notification on the union’s notice of their rights. Furthermore, the
noted that it would be too easy for a Web site, by itself, is adequate to Department recognizes that union
notice to be covered up or removed from apprise members of their rights as union members, like other citizens,
a cluttered bulletin board. This members. increasingly turn to the Internet to
organization further noted that The AUD supported the Web site obtain basic information from, and
‘‘monitoring union compliance with the posting as one method of notification, transact business with, organizations to
requirements of the final rule would be stating that ‘‘the financial burden these which they belong or otherwise interact.
difficult, if not impossible, given the requirements would impose on affected Accordingly, the Department has
number of bulletin boards in countless unions would be minimal, amounting to concluded that if a labor organization
government offices and union halls.’’ mere pennies per union member has a Web site it must include a notice
One comment stated the concern that if covered.’’ AUD cited Arthur B. Shostak, of members’ rights on the Web site. Web
such notices were posted in or near The Cyberunion Handbook: site posting is only a requirement for
union offices members observed reading Transforming Labor Through Computer unions who maintain Web sites; unions
such notices could become ‘‘prime Technology 4 (2002) for the proposition without Web sites will not be required
targets for retaliation.’’ The comments, that ‘‘by January 2000, some 60 percent to develop them in order to satisfy the
however, generally supported posting as of union homes already had at least one notice requirement.
a supplement to other methods. For computer * * * and that percentage is Finally, one comment suggested that
example, the EFF suggested that a undoubtedly much higher five years the Department should include on its
permanent posting would be a good later.’’ Another commenter stated that Web site ‘‘questions and answers’’ that
supplement to individual notice to information is ‘‘consistently and would more fully address union
members. continuously’’ posted on his union’s members’ rights. The Department will
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The Department has concluded that Web site. One union urged the be providing compliance assistance to
posting the members’ rights notice on Department to ‘‘allow federal sector unions and members and plans to add
bulletin boards to which a union has unions to comply by providing notice to the OLMS Web site a ‘‘Frequently
access is less likely than other methods via the parent union Web site or the Asked Questions’’ section relating to the
to ensure that members will be subordinate body Web site.’’ It further CSRA standards of conduct.

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3. Reproducing Notice in the Union’s and continue to know or be aware of availability to some members, the
Constitution and Bylaws their right[s].’’ This commenter impermanency of individual e-mail
The NPRM solicited comments on the suggested that a union could comply addresses, and the difficulty of
following issues: (i) Whether a with the notice requirement if it ‘‘gave documenting the transmission and
statement of members’ rights should be out copies of the constitution once every receipt of messages. Congressman
required as an appendix to a union’s three years, and alternated that with just Johnson and EFF urged that e-mail is
constitution and bylaws, (ii) whether a mailed notice.’’ acceptable only as a supplement, not an
The Department is not persuaded that alternative, to formal written notice by
and how a union’s constitution and
it would be appropriate to require regular mail. To avoid some potential
bylaws are now made available to
unions to include a statement of problems, a commenter suggested use of
members, and (iii) whether including
members’ rights as an appendix to a the employer-agency’s e-mail system
the notice in a union’s constitution and
union’s constitution and bylaws. In the because of its ability to provide receipt
bylaws and maintaining proof that each
Department’s view, such a requirement, of delivery.
member had received a copy should absent a more compelling showing than The Department believes that e-mail
provide a ‘‘safe harbor.’’ supplied by the comments, would be an provides an acceptable method by
Comments were generally supportive
unwarranted intrusion in the union’s which a union may provide notification
of a rule requiring unions to incorporate
internal affairs. The constitution and to its members. E-mail can be an
the statement of a union member’s
bylaws provide the foundation for the effective, efficient, and inexpensive
rights in union constitutions and union’s existence and reflect the views means for providing members with
bylaws. Two organizations (SUPA and of its founders and governing body on notice of their rights. Just as a union that
AUD) urged the Department to adopt the the essential terms of the union’s chooses to provide notice by U.S. mail
requirement that a summary of governance. The Department believes must maintain a current list of member
members’ rights and officers’ that these considerations counsel addresses, a union that chooses to send
responsibilities be included as an against a Department-mandated notice by e-mail must maintain an
appendix to the constitutions of covered requirement that unions include a updated list of members’ e-mail
labor organizations. The AUD explained statement of member rights in their addresses. A labor organization that
that whenever members have problems constitutions. Furthermore, the relies on e-mail to provide notice has
with their unions, they turn to the comments about the utility and the burden of proving that notice has
constitution for guidance, and that availability of the constitution have been sent to an operational e-mail
requiring the inclusion of such rights raised some questions about the sole address of the member to whom the
would be a simple, effective, and reliance on an appendix to a union’s message is directed. For this reason, the
inexpensive way to comply with the constitution to apprise members of their Department encourages unions to
notice requirement. Other comments, rights. The Department is concerned maintain records in electronic or other
although supporting the incorporation about the assertions that union members format to show when and to whom the
of the member’s rights notice as an have difficulty in obtaining copies of e-mails have been sent and notification
appendix to a union’s constitution, their union’s constitution. The that the e-mail has been received, or is
expressed concern that union members Department, however, is not persuaded undeliverable. Where a union does not
encounter difficulty in obtaining copies by the argument that a union’s choice to have a member’s e-mail address on file
of the union’s constitution and bylaws. include a statement of rights as an or an e-mail is ‘‘returned’’ as
Other comments rejected any rule appendix to its constitution would be undeliverable, it must provide
requiring unions to incorporate the infirm because of the length of the notification to the member by hand
statement of a union member’s rights in constitution or the impracticality of delivery or regular mail.
union constitutions and bylaws. NTEU relying on it as a statement of a union The Department does not require that
expressed concern that requiring unions member’s rights. In the Department’s a union utilize a member’s personal e-
to include the notice in this manner view, a union would satisfy its mail address to provide notification. If
‘‘interfere[s] with the union’s internal obligation under the final rule if it an agency permits the union to use the
affairs.’’ NTEU also observed that ‘‘such chooses to mail the constitution with a agency e-mail system for this purpose,
a requirement would probably not prove statement of rights as an appendix to its the union may choose to utilize this
very effective in informing members of members as the means of providing the avenue of communication. If the union
their rights as union members’’; in its required individual notification. chooses to use the agency’s system, it
view, members are more likely to learn Furthermore, the Department has not must document—either by its own
their rights by ‘‘clicking on a button on been persuaded that the final rule means or the agency’s—when and to
the union’s Web site that leads them should provide a ‘‘safe harbor’’ for whom the e-mails have been sent and
directly to a statement of union unions that include notice of member that the e-mail has been received, or was
members’ rights.’’ Other comments rights in their constitutions or bylaws. ‘‘returned’’ as undeliverable. The
suggested that a union constitution was As noted, the inclusion of a statement Department, however, lacks the
inappropriate as a resource to educate in a union’s constitution, by itself, does authority to direct an agency to permit
members about their rights because the not guarantee that the information has the use of its e-mail system for such
documents may be lengthy and difficult been conveyed to union members. purpose, and the Department offers no
to follow. view on whether an agency may or
Four comments generally opposed a 4. E-Mailing Notice to Union Members
should permit such use.
regulation that would allow unions a The NPRM asked whether sending a
‘‘safe harbor’’ by including a members’ notice by e-mail would be acceptable if F. Timing of the Notice
rights notice in their constitutions. One members have provided their e-mail The NPRM asked: (i) Whether notice
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commenter argued that ‘‘[t]o give addresses to the union or the union is should be given to each member within
someone a copy of the constitution and permitted to use an agency e-mail a certain period of time after the
then expect the union to be relieved of system to contact its members. The effective date of the rule, (ii) how soon
its obligation forever is not a practical comments expressed three concerns notice should be given to new members,
method of ensur[ing] that people know about the use of e-mail: Its lack of (iii) how frequently a periodic notice

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should be given, and (iv) whether estimated to be approximately 15 area is to conform generally with private
inclusion of a members’ rights notice in minutes, and thus does not materially sector principles, 5 U.S.C. 7120(c).
the notice of nominations and elections affect the selection of a timeframe. Two commenters referred to the
for 3, 4, and 5-year election cycles completion of the Form SF 1187 by a
2. Notice to New Members prospective union member as a possible
would be sufficient notice.
The NPRM sought comment opportunity to apprise members of their
1. Initial Notice After the Rule Becomes concerning how soon a union would be rights. The SF 1187 has been developed
Effective required to provide notice to new by the Office of Personnel Management
The NPRM sought comment members. Only one comment was for use by federal employees, their
concerning what would constitute a received on this issue. Congressman employer, and unions to authorize a
reasonable amount of time to allow Johnson suggested 90 days was a federal agency, at the employee’s
unions to provide the first notification reasonable timeframe. The Department written direction, to deduct union dues
to members under the proposed rule. has determined that unions must from the employee’s pay. One
Congressman Johnson and the AUD provide notice to new members within commenter noted that the form does not
supported initial notice within a 90-day 90 days of becoming a member. contain a statement of such rights and
period after the effective date. The EFF As a matter of administrative practice, does not ask an employee to provide an
stated that 30 to 60 days would be a unions often choose to provide new e-mail address. The other commenter
sufficient time. While IFPTE and NFFE members orientation materials relating expressed concern that if the union used
argued against any notice, they to the union at or near the time of a a handout that combined the Form SF
recommended that if the rule was issued member’s formal admission to the 1187 and a notification of members’
that unions should be given one year to union. It would be a reasonable practice rights that the individual member
develop a notification method. An for a union to provide notification of the would not retain a copy of the handout
individual union official stated that member’s union rights at that time. In for his or her files. Notwithstanding
unions should be allowed one year to other cases, a union might reasonably these concerns, the Department believes
provide notice. Neither the unions nor choose to leave this task to the national that the signing of the Form SF 1187
the union official explained why unions or international union to which it may provide a good opportunity to
needed this amount of time. NTEU also belongs, if any. In such case, there may notify individuals of their rights as
recommended that unions be allowed be some time lag involved in national or union members. By keeping copies of
one year to provide such notice; it international unions receiving new the completed form and instructions the
explained that this amount of time member information from a local, the individual has a summary of his rights
would enable the union to establish an processing of the information by the as a union member and the union has
appropriate schedule for providing the parent organization, and the mailing of a record of providing notification of
notice at three-year intervals. a membership package to the new such rights to the individual.
While some commenters supported a member. Ninety days should provide Individuals are competent to make their
shorter period, in the Department’s ample time for a union to provide the own choice about what documents to
view, a provision that unions provide required notification to its new retain, and the Department cannot
initial notification to members within members. require a union to act as a guarantor that
90 days of the rule’s effective date The NPRM also sought comment on members actually retain a copy of
allows unions a reasonable amount of possible alternatives to providing documents provided to them. Thus, a
time to prepare for, and comply with, individuals with a full statement of their union that chooses to distribute the
the new requirement. Since the rule rights at the time they become members. required notice in conjunction with the
does not take effect until 30 days after One commenter suggested that all Form SF 1187 will be deemed to have
publication, unions actually will have members of a bargaining unit be met its requirement to provide notice to
120 days within which to prepare the provided a statement of the rights of new members, despite the individual’s
notice to their members, determine the union members. The Department status as a nonmember at the time of
distribution method or methods, and declines this suggestion. There are only receipt. Because it is important to both
update the necessary address lists. This one or two provisions of the CSRA the individual and the union that they
timeframe allows national unions, if Union Member Rights notice that would have a common understanding of their
they so choose, sufficient time to arguably be of more than passing rights and obligations at or about the
prepare notice language, either to be interest to nonmembers of the union. time the individual joins the union, the
mailed directly to their affiliates’ The added benefit gained by providing Department also will treat similar
members or to serve as a model for their information to nonmembers would be information provided by a union to a
affiliates’ use in providing notice to greatly outweighed by the costs to potential member, where properly
members. Moreover, if a union chooses unions in identifying, locating, and documented, to satisfy its notification
to use the Department’s model notice, providing notice to these individuals. obligation.
there will be no time involved in this Furthermore, the portions of the CSRA
step of the process. Unions are already for which the Assistant Secretary has 3. Periodic Notice
required to maintain home addresses of responsibility concern requirements and The NPRM proposed that unions must
union members in order to comply with prohibitions on unions in relation to inform members of their rights at least
the rules governing notice of elections. their members, the membership’s once every three years. The NRTWF
29 CFR 458.29. Unions that maintain a moneys, and affiliated unions. 5 U.S.C. argued that three years was too long an
Web site must comply with the 7120. These portions do not address a interval between notices because
additional requirement of posting the union’s relationship with nonmembers members do not exercise their rights on
statement of members’ rights on the in any substantial way. In addition, the a three-year timetable. The NRTWF,
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Web site or provide a link to the notice analogous private sector requirement EFF, and an individual union officer
posted on the OLMS Web site. The requires every labor organization to argued that notice should be given every
amount of time involved in inform its members of the provisions of year. The NRTWF noted that
accomplishing this task, as distinct from the LMRDA, see 29 U.S.C. 415, and the management in the Federal sector must
preparing the text of the notice, is Assistant Secretary’s rulemaking in this inform employees of certain rights on an

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annual basis under 5 U.S.C. 7114(a)(3). officer election notices, the Department H. Mechanism for Enforcing the
Congressman Johnson and the AUD has determined that unions should be Members’ Rights Notice Requirement
supported the three-year notice interval, permitted, but not required, to include The NPRM proposed enforcement of
while noting that a shorter period might the notice of members’ rights with the the notice requirement solely by OLMS
be appropriate. An individual statutorily-required notice of election. with or without a complaint by a union
commenter thought that notifying The Department is not persuaded that member. The proposal also asked for
members every four or five years was mailing the rights notice with the comment on whether enforcement
sufficient provided that notices were election notice will be less effective should be vested in individual union
required to be given in advance of union than notice provided by other means. members. Relatively few comments
nomination and election periods. Membership in an organization entails were received on this point. NTEU
Interwoven with the question regarding some obligations, and among them is endorsed the proposed method of
the frequency of notification is the the duty to read documents mailed to enforcement. One union member noted
question of whether notification should them by the organization. that some people could not afford the
be permitted or required as part of a The Department is not persuaded by expense of bringing a case, thus
union’s required mailings in connection a suggestion that a union should be requiring that OLMS undertake
with its elections for officers. For local unable to satisfy its CSRA Union prosecution as a matter of fairness.
unions, such elections must be Member Rights notice obligation by The SUPA urged that enforcement
conducted not less often than every including a statement of rights in a authority should be vested in both
three years. 29 CFR 458.29. union newsletter, distributed to all OLMS and union members and
The comments support a finding that members. In the Department’s view, suggested that members should be
union members should be informed and notice included in a union publication permitted to bring an action in U.S.
reminded of their rights on a recurring is adequate as long as it is presented District Court in a manner similar to
basis. The Department has determined with sufficient prominence to attract the
to retain the requirement in the proposal that permitted under section 201(c) of
attention of a member receiving the the LMRDA. 29 U.S.C. 431(c). NFFE
that notice shall be provided to publication. This is consistent with the
members not less than every three years. commented that the new rule would
Department’s experience in place additional demands on the
While some comments urged the administering a regulation permitting
Department to require annual notice, resources of OLMS at a time when, in
notice of elections to be included in the union’s ‘‘understanding,’’ OLMS is
others stated that there should be no union newspapers. See 29 CFR. 452.75.
periodic notice requirement but, if unable to undertake ‘‘malfeasance
required, intervals should be longer G. Notice Provided by Another Labor investigations’’ in a timely manner.
than three years. Many agreed that the Organization NFFE acknowledged, however, that
three-year interval is administratively enforcement should reside with OLMS,
The Department proposed that a not individuals, because litigation by
convenient because local unions may
union’s duty to provide notification may individuals unnecessarily increases
choose to mail the notice at the same
be satisfied by notice provided to its litigation costs for unions because of the
time they mail notices of union officer
members by another labor organization. potential for unsubstantiated lawsuits.
elections. In the Department’s view,
For example, if Member A is a member The CSRA, unlike the LMRDA, does
three years is an appropriate interval to
of Federal Union, Local 1, the obligation not confer jurisdiction on Federal
remind members of their rights; it
ensures that members will receive of his local to provide notification is district courts. The Department cannot
notice at least once during the satisfied if it is provided by either Local by regulation extend a private right of
maximum timeframe allowed for local 1, the Council of East Coast Locals (an action to union members in Federal
union officer elections, but does not intermediate body to which it is district court to vindicate their
carry the burden of yearly notification. affiliated), or the National Federal regulatory right to notice of the CSRA
One commenter argued that the Union. No objections to this proposal provisions. Furthermore, to the extent
period of notice should correlate with were received. The Department has that SUPA’s position would be satisfied
the union’s national election cycle. On concluded that a union may by allowing a union member to
that issue, the EFF supported sending demonstrate compliance with the notice prosecute an alleged violation in an
out a rights notice along with the notice requirement if another union has adjudicatory proceeding before the
of elections, but only if members also provided the appropriate notice to all its Department, the Department believes
received notice by some other method. members. that any benefit that may be gained is
The AUD noted that administrative One comment suggested that a union outweighed by the potential cost to
convenience was served by allowing the should not be required to include a link unions and the Department’s
notice to be sent with the election notice on its Web site if the appropriate notice adjudicative resources from having to
given the typical three-year election is posted on its parent or other affiliated adjudicate claims that have not been
cycle. It added, however, that providing union’s Web site. The Department preliminarily screened for merit by
notice in this manner was not an disagrees. As discussed, the Web site OLMS. Supporting this is the fact that
effective way to reach union members posting is required only of unions that although NFFE opposed vesting
who lack an active interest in the choose to maintain Web sites. Where enforcement authority in OLMS on the
union’s election. Congressman Johnson, such Web sites exist, it is reasonable for ground that the Department ‘‘appears to
the EFF, the AUD, and an individual union members to rely on those sites for be incapable of completing financial
commenter argued that a union should basic information relating to their malfeasance investigations in a timely
not be permitted to rely on this method, union. Therefore, a union that maintains manner,’’ NFFE also pointed out that
especially in the case of the four or five- a Web site must include notification on unions’ litigation costs likely will be
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year election cycles typical for national its site without regard to whether an reduced by keeping enforcement solely
or intermediate bodies. affiliated union has provided written in the control of OLMS because any
With regard to the question whether notification to its members or such frivolous complaints are ‘‘weeded out’’
notification should be required or affiliate has published the notification at a cost savings to the unions and the
permitted in connection with a union’s on its Web site. Department’s adjudicative resources.

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31940 Federal Register / Vol. 71, No. 106 / Friday, June 2, 2006 / Rules and Regulations

In this same vein, a different comment Moreover, as discussed above, there is a significant regulatory action and was
argued that both an individual and no persuasive reason to provide reviewed by the Office of Management
OLMS should be able to prosecute an members a right to prosecute a and Budget.
alleged violation of the notification complaint without an initial Prior to issuing the proposed rule, the
requirement. The commenter would determination by OLMS that there exists Department sought the involvement of
have the individual bring an allegation a reasonable basis to the complaint. those individuals and organizations that
before an Administrative Law Judge Finally, in response to NFFE’s will be affected by the rule, including
(ALJ) as opposed to in U.S. District assertion that there is an officers and members of labor
Court, as expressed by SUPA. Once ‘‘understanding that the Department organizations that would be subject to
again, the Department is not persuaded appears to be incapable of completing the rule. It was determined that the rule
that individual enforcement is financial malfeasance investigations in a will impose certain burdens associated
appropriate as an adjunct to OLMS timely manner,’’ the Department notes with the requirement that labor
prosecution. Under the proposed that NFFE has provided no organizations representing Federal
enforcement scheme, OLMS can substantiation for its claim, which, in employees must inform their members
proceed without a complaint, or a union any event, is unfounded. Moreover, of the CSRA standards of conduct
member can file a complaint with Congress has recently allocated provisions and the regulations
OLMS about the failure of their union increased resources to OLMS, which promulgated to carry out the purposes
to comply with the notice requirement. should alleviate any concern that OLMS of the CSRA, 29 CFR 458.1–458.38.
The enforcement procedure already is investigations will be delayed by taking According to the latest available Office
set out in the Department’s regulations. on additional enforcement of Personnel Management figures, as of
An OLMS District Director may responsibilities under this rule. January 1, 2001, there were 1,043,479
investigate pursuant to 29 CFR 458.50(b) The Department has determined to federal employees in bargaining units,
when he or she believes it necessary in retain the proposed enforcement and these units were represented by
order to determine whether a violation procedure. OLMS will use the existing 2,199 local unions. Not all of these
has occurred or is about to occur. If a administrative mechanism in the employees belong to a union, but that
violation of this rule is discovered, the standards of conduct regulations (29 number can be used as the maximum
OLMS District Director will notify the CFR 458.66–459.5) for resolving theoretical number of members who
union pursuant to 29 CFR 458.66(b) and complaints related to this rule. Where must be informed of their rights. Since
will attempt to secure an agreement for OLMS determines after investigation unions are free to add the rights notice
appropriate remedial action pursuant to that a violation has occurred and has to the mandatory election notice that
29 CFR 458.66(c), which ordinarily will not been remedied, OLMS will institute locals by law must mail to their
be the union’s compliance with the enforcement proceedings against the members every three years, the
notification requirement. If no labor organization before the Department assumes that unions will
agreement is reached with the union, Department’s Office of Administrative take advantage of this cost-effective
the District Director will file a Law Judges. method of distributing the notice. Under
complaint with the DOL Chief such circumstances, the cost to unions
Administrative Law Judge. The III. Regulatory Procedures would, at most, entail the cost of
proceedings before the ALJ will be Executive Order 12866 1,043,479 photocopies of the notice, at
governed by sections 458.67 through $.15 per page, resulting in an
458.93, 29 CFR 458.67 through 458.93. This final rule has been drafted and expenditure of $156,521 every three
The Standards of Conduct provisions of reviewed in accordance with Executive years, for annualized costs borne by all
the CSRA (5 U.S.C. 7120) do not Order 12866. The Department has public sector unions of $52,174.
authorize monetary penalties or determined that this final rule is not an It is conceivable that the required
debarments for violations of its ‘‘economically significant’’ regulatory notice will increase the weight of each
provisions. The practice under the action under section 3(f)(1) of Executive piece of mail to the next highest ounce,
CSRA is similar to the procedure under Order 12866. Because compliance with thus resulting in a $.24 fee for an extra
the LMRDA where the Secretary files an the rule can be achieved at low cost to ounce of first class postage for each
enforcement action in a U.S. District covered labor organizations, the rule is envelope. This additional mailing cost
Court against a union that fails to file its not likely to: (1) Have an annual effect would amount at most to $250,435
required annual financial report. If the on the economy of $100 million or more every three years, for an annualized cost
action is successfully prosecuted, the or adversely affect in a material way the of $83,478. Summing the maximum
district court will issue an order economy, a sector of the economy, copying costs and the maximum
requiring the union to file the report. productivity, competition, jobs, the additional postage costs results in an
If members were given direct environment, public health or safety, or additional $406,956 expenditure every
enforcement rights such as provided by state, local, or tribal governments or three years, and a maximum total
section 458.54 of the regulations, 29 communities; (2) create a serious annualized cost for all unions of
CFR 458.54, to lodge a bill of rights inconsistency or otherwise interfere $135,652. Stated otherwise, the
action, they would still have to file a with an action taken or planned by annualized cost to unions would be $.13
complaint with an OLMS District another agency; (3) materially alter the per member. Intermediate and national
Director, who would have to ‘‘obtain budgetary impact of entitlements, labor organizations would not have to
such additional information as he grants, user fees, or loan programs or the provide separate notice as, pursuant to
deems necessary’’ and then would refer rights and obligations of recipients purposed section 458.4(b), they could
the matter to the Chief ALJ if he found thereof; or (4) raise novel legal or policy rely on mailings made by their
‘‘a reasonable basis for the complaint.’’ issues. As a result, the Department has subordinate locals. (Or conversely, it
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The member would have the burden concluded that a full economic impact could be the national or international
and expense of proving his or her and cost/benefit analysis is not required that chooses to undertake the
allegations in a hearing before an ALJ. for the rule under section 6(a)(3) of the notification and bear the costs
This scenario is avoided in the Order. Because of its importance to the associated with it either directly or by
enforcement scheme selected here. public, however, the rule was treated as charging the cost back to the affiliates).

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Federal Register / Vol. 71, No. 106 / Friday, June 2, 2006 / Rules and Regulations 31941

The approximately 2,199 local unions have ‘‘federalism implications.’’ The clearly the effect of the rule on existing
would be subject to an annualized economic effects of the rule are not rules and the provisions affected.
average maximum cost of $61.68. substantial, and it has no ‘‘direct effects
Executive Order 13084: Consultation
Finally, unions that maintain a Web site on the States, on the relationship
and Coordination With Indian Tribal
would be required to create a link to between the national government and Governments
Union Member Rights and Officer the States, or on the distribution of
Responsibilities under the Civil Service power and responsibilities among the The Department certifies that this
Reform Act or the union’s own notice. various levels of government.’’ final rule does not impose substantial
The Department has no data on the direct compliance costs on Indian tribal
number of unions that maintain a Web Regulatory Flexibility Act governments.
site. In addition to the 2,199 local The final rule would not have a Executive Order 12630: Governmental
unions, the Office of Personnel significant economic impact on a Actions and Interference With
Management reports 80 national and substantial number of small business Constitutionally Protected Property
international unions and associations entities. The rule will have only an Rights
that have, directly or through local insignificant impact on any covered
units, exclusive recognition with This final rule is not subject to
labor organization. The Secretary has Executive Order 12630, Governmental
departments and agencies of the certified to the Chief Counsel for
Executive Branch. Thus it is Actions and Interference With
Advocacy of the Small Business Constitutionally Protected Property
theoretically possible that 2,279 unions Administration that the rule has no
would be required to create such a link. Rights, because it does not interfere
substantial impact on any small with private property rights protected
Assuming that the median annual salary business entity and, therefore, a
of a webmaster is $80,000 and the under the Fifth Amendment of the
regulatory flexibility analysis is not Constitution.
creation of a link would take 15 required.
minutes, the one-time labor cost of this Environmental Impact Assessment
requirement would be $22,790, or $10 Unfunded Mandates Reform
The Department has reviewed the
per union. For purposes of the Unfunded
None of the commenters disputed the final rule in accordance with the
Mandates Reform Act of 1995, this rule requirements of the National
accuracy of the burden estimates set does not include a Federal mandate that
forth in the NPRM. NFFE claimed that Environmental Policy Act (NEPA) of
might result in increased expenditures 1969 (42 U.S.C. 4321 et seq.), the
the new rule would place an undue
by state, local, and tribal governments, regulations of the Council on
burden on unions but did not document
or increased expenditures by the private Environmental Quality (40 U.S.C. part
this general claim and did not dispute
sector of more than $100 million in any 1500), and the Department’s NEPA
the accuracy of the OLMS projections.
one year. procedures (29 CFR part 11). The final
By contrast, the AUD commented that
rule will not have a significant impact
the financial burden imposed by the Paperwork Reduction Act
on the quality of the human
rule would amount to ‘‘mere pennies’’
This final rule will impose certain environment, and, thus, the Department
per union member covered. And the
minimal burdens associated with has not conducted an environmental
form comments received stated:
informing members of their rights. As assessment or an environmental impact
‘‘[w]hatever small amount it costs the
noted in proposed section 458.4, a labor statement.
unions to perform this vital function is
organization may satisfy its obligation
a small price to pay for the benefit Executive Order 13211 (Actions
by either using language supplied by the
[obtained].’’ Concerning Regulations That
Department or devising its own
Significantly Affect Energy Supply,
Small Business Regulatory Enforcement language as long as the notice accurately
Distribution, or Use)
Fairness Act states all of the CSRA standards of
conduct provisions. Under the This final rule is not subject to
The Department has concluded that
regulations implementing the Executive Order 13211, because it will
this final rule is not a ‘‘major’’ rule
Paperwork Reduction Act, ‘‘[t]he public not have a significant adverse effect on
under the Small Business Regulatory
disclosure of information originally the supply, distribution, or use of
Enforcement Fairness Act of 1996 (5
supplied by the Federal government to energy.
U.S.C. 801, et seq.). It will not likely
result in (1) an annual effect on the [a] recipient for the purpose of List of Subjects in 29 CFR Part 458
economy of $100 million or more; (2) a disclosure to the public’’ is not
considered a ‘‘collection of information’’ Administrative practice and
major increase in costs or prices for procedure, Labor unions, Democratic
consumers, individual industries, under the Act. 5 CFR 1320.3(c)(2).
Therefore, the notice is not subject to rights of labor organization members,
Federal, state or local government Reporting and recordkeeping
agencies, or geographic regions; or (3) the Paperwork Reduction Act.
requirements, Standards of conduct for
significant adverse effects on Executive Order 12988: Civil Justice labor organizations.
competition, employment, investment, Reform
productivity, innovation, or on the Text of Final Rule
ability of United States-based This final rule has been drafted and
■ Accordingly, the Department amends
enterprises to compete with foreign- reviewed in accordance with Executive
29 CFR Chapter IV as set forth below.
based enterprises in domestic or export Order 12988, Civil Justice Reform, and
markets. will not unduly burden the federal court PART 458—STANDARDS OF
system. The rule has been written so as
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Executive Order 13132: Federalism CONDUCT
to minimize litigation and provide a
The Department has reviewed this clear legal standard for affected conduct, ■ 1. The authority citation of part 458 is
final rule in accordance with Executive and has been reviewed carefully to revised to read as follows:
Order 13132, regarding federalism, and eliminate drafting errors and Authority: 5 U.S.C. 7105, 7111, 7120, 7134;
has determined that the rule does not ambiguities. The proposal specifies 22 U.S.C. 4107, 4111, 4117; 2 U.S.C.

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31942 Federal Register / Vol. 71, No. 106 / Friday, June 2, 2006 / Rules and Regulations

1351(a)(1); Secretary’s Order No. 4–2001, 66 Signed at Washington, DC, this 24th day of I. Overview of the Rule
FR 29,656, May 31, 2001. May 2006.
Victoria A. Lipnic,
Opportunity for Young Child Dependent
■ 2. A new § 458.4 is added to read as of Deceased Member To Become Eligible
Assistant Secretary for Employment
follows: Standards.
for Enrollment in a TRICARE Dental
Plan
Signed at Washington, DC, this 24th day of
§ 458.4 Informing members of the May 2006. Currently, military members may
standards of conduct provisions. enroll dependent children of any age in
Don Todd,
(a) Every labor organization subject to Deputy Assistant Secretary for Labor- the TRICARE Dental Program (TDP), but
the requirements of the CSRA, the FSA, Management Programs. many members choose not to enroll
or the CAA shall inform its members [FR Doc. E6–8626 Filed 6–1–06; 8:45 am] young children until they are
concerning the standards of conduct automatically enrolled at four years of
BILLING CODE 4510–CP–P
provisions of the Acts and the age. Unfortunately, when a member on
active duty for a period of more than
regulations in this subchapter. Labor
thirty days or a member of the Ready
organizations shall provide such notice
DEPARTMENT OF DEFENSE Reserve (i.e., Selected Reserve and
to members by October 2, 2006 and Individual Ready Reserve) dies,
thereafter to all new members within 90 dependent children less than four years
days of the time they join and to all [DOD–2006–HA–0089]
of age who are not enrolled in the TDP
members at least once every three years. at the time of the member’s death are
32 CFR Part 199
Notice must be provided by hand ineligible for enrollment for the three-
delivery, U.S. mail or e-mail or a year TDP survivor’s benefit. The NDAA
RIN 0720–AA93
combination of the three as long as the for FY05 corrects this inequity by giving
method is reasonably calculated to Office of the Secretary; TRICARE; young dependent children of deceased
reach all members. Such notice may be Changes Included in the National Service members the opportunity to
included with the required notice of Defense Authorization Act for Fiscal become eligible for enrollment in the
local union elections. Where a union Year 2005; TRICARE Dental Program TDP although they were not previously
newspaper is used to provide notice, the enrolled due to their age.
notice must be conspicuously placed on AGENCY: Office of the Secretary, DoD.
Professional Accreditation of Military
the front page of the newspaper, or the ACTION: Final rule. Dentists
front page should have a conspicuous
SUMMARY: The Department is publishing Currently, § 199.13(a)(2)(iii) of this
reference to the inside page where the
this final rule to implement sections 711 part excludes dependents of active duty,
notice appears, so that the inclusion of Selected Reserve and Individual Ready
and 715 of the Ronald W. Reagan
the notice in a particular issue is readily Reserve members enrolled in the
National Defense Authorization Act for
apparent to each member. Fiscal Year 2005 (NDAA for FY05), TRICARE Dental Program (TDP) from
(b) A labor organization may Public Law 108–375. Specifically, that obtaining benefit services provided by
demonstrate compliance with the legislation makes young dependents of the TDP in military dental care facilities
requirements of paragraph (a) of this deceased Service members eligible for except for emergency treatment, dental
section by showing that another labor enrollment in the TRICARE Dental care provided outside the United States,
organization provided an appropriate program when the child was not and services incidental to non-covered
notice to all of its members during the previously enrolled because of age, and services. Due to insufficient numbers of
necessary time frame. authorizes post-graduate dental pediatric patients available for treatment
residents in a dental treatment facility of in DoD’s training facilities, the
(c) Labor organizations may use the uniformed services faced significant
the uniformed services under a graduate
Department of Labor publication Union problems with program accreditation
dental education program accredited by
Member Rights and Officer and pediatric dental training. The
the American Dental Association to
Responsibilities under the Civil Service provide dental treatment to dependents Services had difficulty maintaining
Reform Act (available on the OLMS Web who are 12 years of age or younger and accreditation of post-graduate training
site at http://www.dol.gov/esa/regs/ who are covered by a dental plan programs because of a lack of pediatric
compliance/olms/CSRAFactSheet.pdf established under 10 U.S.C. 1076a. This dental patients with the proper dental
for the pdf version and http:// adopts the interim rule published on case mix required for training. In
www.dol.gov/esa/regs/compliance/ September 21, 2005 (70 FR 55251). addition, without adequate case
olms/CSRAFactSheet.htm for the html DATES: Effective Date: June 2, 2006. numbers and case complexity, residents
version) or may devise their own who at completion of their training were
ADDRESSES: TRICARE Management
language as long as the notice accurately assigned overseas were not always fully
Activity, TRICARE Operations/Dental
states all of the CSRA standards of trained to manage and treat pediatric
Division, Skyline 5, Suite 810, 5111
conduct provisions as set forth in the dental patients.
Leesburg Pike, Falls Church, VA 22041– Section 715 of the NDAA for FY05
fact sheet. 3206. provides the uniformed services with
(d) If a labor organization has a Web FOR FURTHER INFORMATION CONTACT: Col. authority to maintain American Dental
site, the site must contain a conspicuous Gary C. Martin, Office of the Assistant Association accreditation standards for
link to Union Member Rights and Secretary of Defense (Health Affairs), certain military dental specialty training
Officer Responsibilities under the Civil TRICARE Management Activity, programs that require treatment of
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Service Reform Act or, alternatively, to telephone (703) 681–0039. Questions pediatric patients and to provide
the labor organization’s own notice regarding payment of specific claims pediatric training to meet requirements
prepared in accordance with paragraph should be addressed to the appropriate for the delivery of authorized dental
(c) of this section. TRICARE contractor. care to children accompanying sponsors
SUPPLEMENTARY INFORMATION: at OCONUS locations. The statute

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