[Federal Register Volume 69, Number 225 (Tuesday, November 23, 2004)]
[Rules and Regulations]
[Pages 68053-68056]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-25897]
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Rules and Regulations
Federal Register
________________________________________________________________________
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Federal Register / Vol. 69, No. 225 / Tuesday, November 23, 2004 /
Rules and Regulations
[[Page 68053]]
OFFICE OF GOVERNMENT ETHICS
5 CFR Part 2641
RIN 3209-AA14
Post-Employment Conflict of Interest Restrictions; 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 revising the component
designations of several departments, for purposes of the one-year post-
employment conflict of interest restriction for senior employees, at 18
U.S.C. 207(c). OGE is adding several new component designations,
revoking several existing component designations, and changing the
names of others, based upon the recommendations of the departments
concerned.
EFFECTIVE DATES: This final rule is effective November 23, 2004, except
for the removals of certain designated components from appendix B to
part 2641, as set forth in amendatory paragraph 3 below, which are
effective on February 22, 2005.
FOR FURTHER INFORMATION CONTACT: W. Gregg Burgess, Associate General
Counsel, Office of Government Ethics; telephone: (202) 482-9300; TDD:
(202) 482-9293; fax: (202) 482-9237.
SUPPLEMENTARY INFORMATION:
A. Substantive Discussion
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 individual whose rate of basic pay is equal to or
greater than 86.5 percent of the rate for level II of the Executive
Schedule.
The representational bar of 18 U.S.C. 207(c) 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
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 employee of any
designated component of that parent, but is barred as to employees of
that parent or of other components that have not been 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 of 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. As
specified in 5 CFR 2641.201(e)(3)(iii), the Director ``shall by rule
make or revoke a component designation after considering the
recommendation of the designated agency ethics official.'' Section
2641.201(e)(6) further provides that, 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.
Pursuant to the procedures prescribed in 5 CFR 2641.201(e), several
departments have forwarded written requests to OGE that their
department's listing in appendix B be amended. 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 current Acting
Director of OGE has determined to grant all the requests and amend
appendix B to 5 CFR part 2641 as explained below.
Department of Commerce
The Department of Commerce (DOC) has advised that the name of one
DOC component currently listed in appendix B of part 2641 has been
changed. According to DOC, the ``Bureau of Export Administration'' is
now the ``Bureau of Industry and Security.'' Therefore, the OGE Acting
Director is amending the DOC listing in appendix B to reflect the
current name of this component.
Department of Defense
The Department of Defense (DOD) has advised that the name of one
DOD designated component currently listed in appendix B of part 2641
has been changed. According to DOD, the ``National Imagery and Mapping
Agency'' is now the ``National Geospatial-Intelligence Agency.''
Therefore, the Acting Director is amending the DOD listing in appendix
B to reflect the current name of this component.
Department of Homeland Security
The Department of Homeland Security (DHS), which was created in the
Homeland Security Act of 2002, Public Law No. 107-296, 116 Stat. 2135,
has requested that the Director designate seven distinct and separate
components in DHS for purposes of 18 U.S.C. 207(c). DHS has requested
such designations
[[Page 68054]]
for its Directorates of ``Emergency Preparedness and Response'' (EPR),
Information Analysis and Infrastructure Protection (IAIP), and
``Science and Technology'' (S&T), as each was created by separate
statutory provision under the Homeland Security Act of 2002. Largely
composed of the Federal Emergency Management Agency (FEMA), the EPR was
established to ensure that the nation is prepared for catastrophes,
including natural disasters and terrorist assaults. The IAIP was
established to merge the capability to identify and to assess a broad
range of intelligence information from Federal, State, and local
authorities concerning threats to the homeland. The S&T functions to
serve as the primary research and development arm of DHS to organize
the scientific and technological resources of the nation to prevent or
mitigate the effects of catastrophic terrorism.
In addition to these Directorates, DHS has requested the following
distinct and separate component designations: the ``Federal Law
Enforcement Training Center'' (FLETC), the ``Transportation Security
Administration'' (TSA), the ``United States Coast Guard'' (USCG), and
the ``United States Secret Service'' (USSS), all four of which were
previously designated as distinct and separate components at other
departments. The Homeland Security Act of 2002 established that each of
these four entities shall be maintained as a distinct and separate
entity within DHS.
The Acting Director is granting the requests of DHS and amending
appendix B to part 2641 to add a listing for DHS as a parent department
and to designate the requested seven distinct and separate components
in the DHS listing.
Department of Justice
The Department of Justice (DOJ) has requested revocation of the
``Immigration and Naturalization Service'' (INS) currently listed in
appendix B of part 2641 as a designated component of DOJ, because the
functions of INS have been transferred to the Department of Homeland
Security. In addition, in accordance with the Homeland Security Act of
2002, the ``Bureau of Alcohol, Tobacco, Firearms and Explosives'' (ATF)
has been established as a new distinct entity within DOJ. Therefore,
DOJ has also requested that this bureau be designated a distinct and
separate component of DOJ. The Acting Director is granting the DOJ
requests and therefore is amending the DOJ listing in appendix B to
part 2641 to revoke the component designation of INS and to designate
ATF as a new component.
Department of Labor
The Department of Labor (DOL) has advised that the name of one DOL
designated component currently listed in appendix B of part 2641 has
been changed. According to DOL, the ``Pension and Welfare Benefits
Administration'' is now the ``Employee Benefits Security
Administration.'' Therefore, the Acting Director is amending the DOL
listing in appendix B to part 2641 to reflect the current name of this
component.
Department of Transportation
The Department of Transportation (DOT) has advised that the
functions of the Transportation Security Administration (TSA) and the
United States Coast Guard (USCG) have been transferred to the
Department of Homeland Security in accordance with the Homeland
Security Act of 2002, and has therefore requested that the component
designations of TSA and USCG be revoked. The Acting Director is
granting the DOT requests and is accordingly revising the DOT listing
in appendix B to part 2641 to revoke the component designations of TSA
and USCG.
Department of the Treasury
In connection with the changes pursuant to the Homeland Security
Act of 2002, the Department of the Treasury (Treasury) has requested
that the following four component designations be revoked, since these
components no longer are a part of Treasury: ``Bureau of Alcohol,
Tobacco and Firearms'' (BATF), ``Federal Law Enforcement Training
Center'' (FLETC), ``United States Customs Service'' (USCG), and
``United States Secret Service'' (USSS). The Acting Director is
granting Treasury's requests and is accordingly revising the Treasury
listing in appendix B to part 2641 to revoke the component designations
of BATF, FLETC, USCG and USSS.
Further, Treasury has requested that the recently-established
Treasury bureau, the ``Alcohol and Tobacco Tax and Trade Bureau'' (TTB)
be designated a distinct and separate component of Treasury. TTB was
established under the Homeland Security Act of 2002. TTB has all the
authorities related to the administration and enforcement of the
provisions of the tax code relative to alcohol, tobacco, firearms and
certain other excise taxes. The Acting Director is granting this
additional Treasury request and is accordingly amending the Treasury
listing in appendix B to part 2641 to add TTB as a designated
component.
Effective Dates
As indicated in 5 CFR 2641.201(e)(4), a 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 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. The new component designations made by this rulemaking
document, as well as the component name changes being reflected herein
(which do not affect their underlying component designation dates), are
effective November 23, 2004.
As also provided in 5 CFR 2641.201(e)(4), 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 February 22, 2005. Revocations are not
effective as to any individual terminating senior service prior to the
expiration of the 90-day period.
B. Matters of Regulatory Procedure
Administrative Procedure Act
Pursuant to 5 U.S.C. 553, as the Acting Director of the Office of
Government Ethics, I find that good cause exists for waiving the
general requirements for notice of proposed rulemaking, opportunity for
public comment, and, except as to the component revocations (see the
preamble discussion above), a 30-day delayed effective date. It is
important and in the public interest that the designation or revocation
herein by OGE of the specified separate departmental components, as
well as the component name changes, all of which reflect the current
organization of the concerned departments and, as to the new component
designations, relieve a restriction, be published in the Federal
Register and take effect as promptly as possible.
Regulatory Flexibility Act
As Acting 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.
[[Page 68055]]
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 nonmajor 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 General Accounting 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 Acting 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: November 16, 2004.
Marilyn L. Glynn,
Acting 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 November 23, 2004, appendix B to part 2641 is amended by
revising the listings for the Department of Commerce, the Department of
Defense, the Department of Justice, the Department of Labor, the
Department of Transportation and the Department of the Treasury, and by
adding a listing for the Department of Homeland Security, to read as
follows:
Appendix B to Part 2641--Agency Components for Purposes of 18 U.S.C.
207(c)
* * * * *
Parent: Department of Commerce
Components
Bureau of the Census
Bureau of Industry and Security (formerly Bureau of Export
Administration) (effective January 28, 1992)
Economic Development Administration
International Trade Administration
Minority Business Development Administration
National Oceanic and Atmospheric Administration
National Telecommunications and Information Administration
Patent and Trademark Office
Technology Administration (effective January 28, 1992)
Parent: Department of Defense
Components
Department of the Air Force
Department of the Army
Department of the Navy
Defense Information Systems Agency
Defense Intelligence Agency
Defense Logistics Agency
Defense Threat Reduction Agency (effective February 5, 1999)
National Geospatial-Intelligence Agency (formerly National Imagery
and Mapping Agency) (effective May 16, 1997)
National Reconnaissance Office (effective January 30, 2003)
National Security Agency
* * * * *
Parent: Department of Homeland Security
Components
Directorate of Emergency Preparedness and Response (effective
November 23, 2004.)
Directorate of Information Analysis and Infrastructure Protection
(effective November 23, 2004.)
Directorate of Science and Technology (effective November 23, 2004.)
Federal Law Enforcement Training Center (effective November 23,
2004.)
Transportation Security Administration (effective November 23,
2004.)
United States Secret Service (effective November 23, 2004.)
United States Coast Guard (effective November 23, 2004.)
* * * * *
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
Immigration and Naturalization Service (expiring February 22, 2005.)
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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Tax Division
United States Marshals Service (effective May 16, 1997)
United States Parole Commission
Parent: Department of Labor
Components
Bureau of Labor Statistics
Employee Benefits Security Administration (formerly Pension and
Welfare Benefits Administration) (effective May 16, 1997)
Employment and Training Administration
Employment Standards Administration
Mine Safety and Health Administration
Occupational Safety and Health Administration
Office of Disability Employment Policy (effective January 30, 2003)
* * * * *
[[Page 68056]]
Parent: Department of Transportation
Components
Federal Aviation Administration
Federal Highway Administration
Federal Motor Carrier Safety Administration (effective January 30,
2003)
Federal Railroad Administration [FEDREG][VOL]*[/VOL][NO]*[/
NO][DATE]*[/DATE][RULES][RULE][PREAMB][AGENCY]*[/AGENCY][SUBJECT]*[/
SUBJECT][/PREAMB][SUPLINF][HED]*[/HED][REGTEXT][EXTRACT][P]*[/P]
Federal Transit Administration
Maritime Administration
National Highway Traffic Safety Administration
Saint Lawrence Seaway Development Corporation
Surface Transportation Board (effective May 16, 1997)
Transportation Security Administration (effective January 30, 2003,
expiring February 22, 2005.)
United States Coast Guard (expiring February 22, 2005.)
Parent: Department of the Treasury
Components
Alcohol and Tobacco Tax and Trade Bureau (effective November 23,
2004.)
Bureau of Alcohol, Tobacco and Firearms (expiring February 22,
2005.)
Bureau of Engraving and Printing
Bureau of the Mint
Bureau of the Public Debt
Comptroller of the Currency
Federal Law Enforcement Training Center (expiring February 22,
2005.)
Financial Crimes Enforcement Network (FinCEN) (effective January 30,
2003)
Financial Management Service
Internal Revenue Service
Office of Thrift Supervision
United States Custom Service (expiring February 22, 2005.)
United States Secret Service (expiring February 22, 2005.)
0
3. Effective February 22, 2005, appendix B to part 2641 is further
amended by:
0
A. Removing the Immigration and Naturalization Service from the listing
for the Department of Justice;
0
B. Removing the Transportation Security Agency and the United States
Coast Guard from the listing for the Department of Transportation; and
0
C. Removing the Bureau of Alcohol, Tobacco and Firearms, the Federal
Law Enforcement Training Center, the United States Custom Service and
the United States Secret Service from the listing for the Department of
the Treasury.
[FR Doc. 04-25897 Filed 11-22-04; 8:45 am]
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