[Federal Register: March 8, 2007 (Volume 72, Number 45)]
[Rules and Regulations]
[Page 10339-10342]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08mr07-1]
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Rules and Regulations
Federal Register
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[[Page 10339]]
OFFICE OF GOVERNMENT ETHICS
5 CFR Part 2641
RIN 3209-AA14
Post-Employment Conflict of Interest Restrictions; Exemption of
Positions and Revision of Departmental Component Designations
AGENCY: Office of Government Ethics (OGE).
ACTION: Final rule, amendments.
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SUMMARY: The Office of Government Ethics is issuing this rule to
provide notice of the exemption of certain senior employees' positions
from the one-year post-employment restriction of 18 U.S.C. 207(c), to
revoke certain existing department component designations, and to
designate an additional component for purposes of that provision.
DATES: The amendment to appendix A to part 2641 (as set forth in
amendatory paragraph 2), is effective March 8, 2007.
The amendments to appendix B to part 2641 (as set forth in
amendatory paragraph 3) are effective March 8, 2007.
Finally, the removal of the entire listing for the Department of
Homeland Security in appendix B to part 2641 (as set forth in
amendatory paragraph 4) is effective June 6, 2007.
FOR FURTHER INFORMATION CONTACT: Shelley K. Finlayson, Attorney-
Advisor/Congressional Liaison Officer, or William E. Gressman, Senior
Associate General Counsel, Office of General Counsel and Legal Policy,
Office of Government Ethics, Telephone: 202-482-9300; TDD: 202-482-
9293; FAX: 202-482-9237.
SUPPLEMENTARY INFORMATION:
A. Substantive Discussion
Exemption of Positions
18 U.S.C. 207(c) prohibits a former ``senior employee'' for a
period of one year from knowingly making, with the intent to influence,
any communication to or appearance before an employee of the department
or agency in which he served in any capacity during the one-year period
prior to termination from senior service, if that communication or
appearance is made on behalf of any other person, except the United
States. For purposes of 18 U.S.C. 207, a ``senior employee'' is any
employee (other than an individual covered by the ``very senior
employee'' one-year restriction in 18 U.S.C. 207(d)) who was employed
in a position for which the rate of pay is specified in or fixed
according to the Executive Schedule, in a position for which the rate
of basic pay is equal to or greater than 86.5 percent of the rate of
basic pay payable for level II of the Executive Schedule, or in a
position which is held by an active duty commissioned officer of the
uniformed services who is serving in a grade or rank for which the pay
grade is O-7 or above. The term includes those individuals appointed by
the President to a position under 3 U.S.C. 105(a)(2)(B) or by the Vice
President to a position under 3 U.S.C. 106(a)(1)(B). The term also
includes any person who was assigned from a private sector organization
to an agency under the Information Technology Exchange Program, 5
U.S.C. chapter 37. An individual is subject to section 207(c) as a
result of service as a special Government employee only if the
individual served 60 or more days as a special Government employee
during the one-year period before terminating service as a senior
employee.
The representational bar of 18 U.S.C. 207(c) usually applies to all
senior positions. However, 18 U.S.C. 207(c)(2)(C) provides that
whenever the Director of OGE determines, after a review requested by
the department or agency concerned, that the imposition of the
restrictions with respect to a particular position or positions would
create an undue hardship on the department or agency in obtaining
qualified personnel to fill such position or positions, and granting
the waiver would not create the potential for use of undue influence or
unfair advantage, the position or category of positions is exempted
from the one-year representational prohibition.
Any senior employee position is eligible for exemption except
persons: Employed at a rate of pay specified in or fixed according to
subchapter II of 5 U.S.C. chapter 53 (the Executive Schedule); in
positions whose occupants are appointed by the President pursuant to 3
U.S.C. 105(a)(2)(B); in positions whose occupants are appointed by the
Vice President pursuant to 3 U.S.C. 106(a)(1)(B); or assigned by a
private sector organization to an agency under the Information
Technology Exchange Program. Positions exempted from 18 U.S.C. 207(c)
are listed in appendix A to 5 CFR part 2641, OGE's regulation governing
the executive branch post-employment conflict of interest restrictions.
The Director of OGE regularly reviews the position exemptions and,
in consultation with the department or agency concerned, makes such
additions and deletions as are necessary. As specified in 5 CFR
2641.201(d)(3)(iii), the Director shall respond to each initial
exemption request from agency ethics officials and annually publish a
compilation of all exempted positions or categories of positions.
Section 2641.201(d)(5) further provides that, before exempting a
position or positions from 18 U.S.C. 207(c), the Director must find:
(1) That granting the exemption would not create the potential for use
by former senior employees of undue influence or unfair advantage based
on past Government service; and (2) that the imposition of the
restriction would create an undue hardship on the particular department
or agency in obtaining qualified personnel to fill such positions.
Relevant factors for the second finding may include the payment of a
special rate of pay to the incumbent of the position pursuant to
specific statutory authority or a requirement that the incumbent of the
position have outstanding qualifications in a scientific,
technological, or other technical discipline.
Pursuant to the procedures prescribed in 5 CFR 2641.201(d), one
agency forwarded two written requests in 2003 to OGE requesting that
its listing in appendix A be amended.
[[Page 10340]]
Securities and Exchange Commission
In 2003, the Securities and Exchange Commission (SEC) requested
that the Director of OGE exempt various new positions (termed ``SK''
positions) from 18 U.S.C. 207(c). These positions previously had been
classified at GS-15 and below. However, when the SEC implemented ``pay
parity'' authority under Pub. L. 107-123 to improve recruitment and
retention, these positions then exceeded the pay threshold of 18 U.S.C.
207(c)(2)(A)(2) despite no increase in duties or responsibilities. Also
included in one of the SEC requests was the position of Deputy Chief
Litigation Counsel, Division of Enforcement, a position which itself is
supervised by a position that was already exempted by OGE effective on
October 29, 1991.
After carefully reviewing the changes requested by the SEC in light
of the criteria in 18 U.S.C. 207(c)(2)(C) as implemented in 5 CFR
2641.201(d)(5), the then-Director of OGE granted these requests by
letters dated November 10, 2003 and December 4, 2003. OGE is now
amending appendix A to part 2641 to include these additional exempted
SEC positions, retroactively effective to those respective dates (as
parenthetically indicated in the amended appendix listing for the SEC
positions concerned). An exemption ``shall be effective as of the
effective date of the Director's written response to the designated
agency ethics official indicating that the request for exemption has
been granted.'' 5 CFR 2641.201(d)(4). Once granted, the exemptions
inured to the benefit of the individuals who held the positions when
the exemptions took effect and their successors, but were not effective
as to employees who terminated senior service from such positions prior
to the effective date of the exemptions.
Revocation and Addition of Departmental Components
The representational bar of 18 U.S.C. 207(c) also usually extends
to the whole of any department or agency in which a former senior
employee served in any capacity during the year prior to termination
from a senior employee position. However, 18 U.S.C. 207(h) provides
that whenever the Director of OGE determines that an agency or bureau
within a department or agency in the executive branch exercises
functions which are distinct and separate from the remaining functions
of the department or agency and there exists no potential for use of
undue influence or unfair advantage based on past Government service,
the Director shall by rule designate such agency or bureau as a
separate component of that department or agency. As a result, a former
senior employee who served in a ``parent'' department or agency is not
barred by 18 U.S.C. 207(c) from making communications to or appearances
before any employees of any designated component of that parent, but is
barred as to employees of that parent or of other components that have
not been separately designated. Moreover, a former senior employee who
served in a designated component of a parent department or agency is
barred from communicating to or making an appearance before any
employee of that component, but is not barred as to any employee of the
parent or of any other component.
Under 18 U.S.C 207(h)(2), component designations do not apply to
persons employed at a rate of pay specified in or fixed according to
subchapter II of 5 U.S.C. chapter 53 (the Executive Schedule).
Component designations are listed in appendix B to 5 CFR part 2641.
The Director of OGE regularly reviews the component designations
and determinations and, in consultation with the department or agency
concerned, makes such additions and deletions as are necessary.
Specifically, the Director ``shall by rule make or revoke a component
designation after considering the recommendation of the designated
agency ethics official.'' 5 CFR 2641.201(e)(3)(iii). Before designating
an agency component as distinct and separate for purposes of 18 U.S.C.
207(c), the Director must find that there exists no potential for use
by former senior employees of undue influence or unfair advantage based
on past Government service, and that the component is an agency or
bureau within a department or agency that exercises functions which are
distinct and separate from the functions of the parent department or
agency and from the functions of other components of that parent. 5 CFR
2641.201(e)(6).
Pursuant to the procedures prescribed in 5 CFR 2641.201(e), two
departments have forwarded written requests to OGE to amend their
respective listings in appendix B. After carefully reviewing the
requested changes in light of the criteria in 18 U.S.C. 207(h) as
implemented in 5 CFR 2641.201(e)(6), the Director of OGE has determined
to grant these requests and amend appendix B to 5 CFR part 2641 as
explained below.
Department of Homeland Security
The Department of Homeland Security (DHS) has requested that OGE
remove all separate components from the DHS listing as designated at 69
FR 68053-68056 (November 23, 2004). The Department has determined that
a single, undifferentiated organization for purposes of 18 U.S.C.
207(c) is in the best interest of DHS, the Government, and the public
as DHS strives to establish a single, unified workforce.
Accordingly, because the former components no longer exercise
functions which are distinct and separate, the OGE Director is granting
the request of DHS and is amending appendix B to part 2641 to remove
the entire listing for DHS, including all of the DHS components.
As 5 CFR 2641.201(e)(4) provides, a component designation ``shall
be effective as of the effective date of the rule that creates the
designation, but shall not be effective as to employees who terminated
senior service prior to that date.'' Initial component designations
were effective as of January 1, 1991. The effective date of subsequent
designations is indicated by means of parenthetical entries in appendix
B to part 2641, November 23, 2004 in the case of DHS components as
noted above.
A revocation is effective 90 days after the effective date of the
rule that revokes the designation. Accordingly, the component
designation revocations made in this rulemaking will take effect June
6, 2007. Revocations are not effective as to any individual terminating
senior service prior to the expiration of the 90-day period.
Department of Justice
The Department of Justice has requested that OGE designate the
Office on Violence Against Women (OVW) as a distinct and separate
component of the Department of Justice (DOJ) except as to the Office of
Justice Programs (OJP) for purposes of 18 U.S.C. 207(c). Legislation
passed in 2002 established OVW as a separate and distinct office within
DOJ. Pub. L. 107-273, codified at 42 U.S.C. 3796gg-0(b). However,
because OVW continues to work closely with OJP on a number of
initiatives, DOJ has not requested that OVW be considered separate from
OJP, but only from other designated DOJ components.
Accordingly, the Director is granting the request of DOJ and
therefore is amending the DOJ listing in appendix B to part 2641 to
designate OVW as a new component as discussed.
B. Matters of Regulatory Procedure
Administrative Procedure Act
Pursuant to 5 U.S.C. 553, as the Director of the Office of
Government Ethics, I find that good cause exists for
[[Page 10341]]
waiving the general requirements for notice of proposed rulemaking,
opportunity for public comment, and, except as to the component
designation revocations (see the preamble discussion above), a 30-day
delayed effective date. It is important and in the public interest that
the codification of OGE's previous designations of additional exempted
positions as well as the designation revocations and new designation
herein by OGE of the specified separate departmental components, which
reflect the current organization of the concerned departments, be
published in the Federal Register and take effect as promptly as
possible.
Regulatory Flexibility Act
As Director of the Office of Government Ethics, I certify under the
Regulatory Flexibility Act (5 U.S.C. chapter 6) that this rule will not
have a significant economic impact on a substantial number of small
entities because it affects only Federal departments and agencies and
current and former Federal employees.
Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply
to this rule because it does not contain information collection
requirements that require the approval of the Office of Management and
Budget.
Unfunded Mandates Reform Act
For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
chapter 25, subchapter II), the final rule will not significantly or
uniquely affect small governments and will not result in increased
expenditures by State, local and tribal governments, in the aggregate,
or by the private sector, of $100 million or more (as adjusted for
inflation) in any one year.
Congressional Review Act
The Office of Government Ethics has determined that this rulemaking
involves a non-major rule under the Congressional Review Act (5 U.S.C.
chapter 8) and will submit a report thereon to the U.S. Senate, House
of Representatives and Government Accountability Office in accordance
with that law at the same time this rulemaking document is sent to the
Office of the Federal Register for publication in the Federal Register.
Executive Order 12866
In promulgating this final rule, the Office of Government Ethics
has adhered to the regulatory philosophy and the applicable principles
of regulation set forth in section 1 of Executive Order 12866,
Regulatory Planning and Review. This rule has not been reviewed by the
Office of Management and Budget under that Executive order since it
deals with agency organization, management, and personnel matters and
is not ``significant'' under the order.
Executive Order 12988
As Director of the Office of Government Ethics, I have reviewed
this rule in light of section 3 of Executive Order 12988, Civil Justice
Reform, and certify that it meets the applicable standards provided
therein.
List of Subjects in 5 CFR Part 2641
Conflict of interests, Government employees.
Approved: March 1, 2007.
Robert I. Cusick,
Director, Office of Government Ethics.
0
Accordingly, for the reasons set forth in the preamble, the Office of
Government Ethics is amending 5 CFR part 2641 as follows:
PART 2641--POST-EMPLOYMENT CONFLICT OF INTEREST RESTRICTIONS
0
1. The authority citation for part 2641 continues to read as follows:
Authority: 5 U.S.C. App. (Ethics in Government Act of 1978); 18
U.S.C. 207; E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as
modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306.
0
2. Effective March 8, 2007, appendix A to part 2641 is amended by
revising the listing for the Securities and Exchange Commission to read
as follows:
Appendix A to Part 2641--Positions Exempted From 18 U.S.C. 207(c)
* * * * *
Agency: Securities and Exchange Commission
Positions:
Solicitor, Office of General Counsel (effective October 29, 1991).
Chief Litigation Counsel, Division of Enforcement (effective
October 29, 1991).
Deputy Chief Litigation Counsel, Division of Enforcement (effective
November 10, 2003).
SK-17 positions (effective November 10, 2003).
SK-16 and lower-graded SK positions supervised by employees in SK-
17 positions (effective November 10, 2003).
SK-16 and lower-graded SK positions not supervised by employees in
SK-17 positions (effective December 4, 2003).
0
3. Effective March 8, 2007, appendix B to part 2641 is amended by
revising the listings for the Department of Homeland Security and the
Department of Justice to read as follows:
Appendix B to Part 2641--Agency Components for Purposes of 18 U.S.C.
207(c)
* * * * *
Parent: Department of Homeland Security
Components:
Directorate of Emergency Preparedness and Response (effective
November 23, 2004; expiring June 6, 2007).
Directorate of Information Analysis and Infrastructure Protection
(effective November 23, 2004; expiring June 6, 2007).
Directorate of Science and Technology (effective November 23, 2004;
expiring June 6, 2007).
Federal Law Enforcement Training Center (effective November 23,
2004; expiring June 6, 2007).
Transportation Security Administration (effective November 23,
2004; expiring June 6, 2007).
United States Secret Service (effective November 23, 2004; expiring
June 6, 2007).
United States Coast Guard (effective November 23, 2004; expiring
June 6, 2007).
* * * * *
Parent: Department of Justice
Components:
Antitrust Division.
Bureau of Alcohol, Tobacco, Firearms and Explosives (effective
November 23, 2004).
Bureau of Prisons (including Federal Prison Industries, Inc.).
Civil Division.
Civil Rights Division.
Community Relations Service.
Criminal Division.
Drug Enforcement Administration.
Environment and Natural Resources Division.
Executive Office for United States Attorneys \2\ (effective January
28, 1992).
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\2\ The Executive Office for United States Attorneys shall not
be considered separate from any Office of the United States Attorney
for a judicial district, but only from other designated components
of the Department of Justice.
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Executive Office for United States Trustees \3\ (effective January
28, 1992).
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\3\ The Executive Office for United States Trustees shall not be
considered separate from any Office of the United States Trustee for
a region, but only from other designated components of the
Department of Justice.
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Federal Bureau of Investigation.
Foreign Claims Settlement Commission.
[[Page 10342]]
Independent Counsel appointed by the Attorney General.
Office of Justice Programs.
Office of the Pardon Attorney (effective January 28, 1992).
Offices of the United States Attorney (94).\4\
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\4\ Each Office of the United States Attorney for a judicial
district shall be considered a separate component from each other
such office.
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Offices of the United States Trustee (21).\5\
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\5\ Each Office of the United States Trustee for a region shall
be considered a separate component from each other such office.
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Office on Violence Against Women \6\ (effective March 8, 2007).
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\6\ The Office on Violence Against Women shall not be considered
separate from the Office of Justice Programs, but only from other
designated components of the Department of Justice.
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Tax Division.
United States Marshals Service (effective May 16, 1997).
United States Parole Commission.
* * * * *
0
Effective June 6, 2007, appendix B to part 2641 is further amended by
removing the listing for the Department of Homeland Security (and all
of the components thereunder).
[FR Doc. E7-4167 Filed 3-7-07; 8:45 am]
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