[Federal Register Volume 71, Number 161 (Monday, August 21, 2006)]
[Rules and Regulations]
[Pages 48447-48449]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-13736]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 71, No. 161 / Monday, August 21, 2006 / Rules
and Regulations
[[Page 48447]]
DEPARTMENT OF ENERGY
5 CFR Part 3301
10 CFR Part 1010
RINs 1990-AA19 and 3209-AA15
Supplemental Standards of Ethical Conduct for Employees of the
Department of Energy and Residual Department Standards Regulation
AGENCY: Department of Energy.
ACTION: Final rule.
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SUMMARY: The Department of Energy (Department or DOE), with the
concurrence of the Office of Government Ethics (OGE), published an
interim final rule on July 5, 1996, to establish standards of ethical
conduct, applicable to employees of the Department, that supplement the
Standards of Ethical Conduct for Employees of the Executive Branch
issued by the Office of Government Ethics, and to revise the
Department's residual standards regulation. The rule requires
Department employees to document notices of disqualification and
withdrawals of such notices in writing. It also requires that
Department employees obtain the written approval of their immediate
supervisor and the Department's designated agency ethics official or
such official's designee prior to engaging in certain outside
employment. The Department now discusses comments received in response
to the interim final rule, and adopts that rule as final with certain
changes to the Department's residual standards previously issued.
DATES: This final rule is effective September 20, 2006.
FOR FURTHER INFORMATION CONTACT: Sue E. Wadel, Deputy Assistant General
Counsel for Standards of Conduct, Office of the Assistant General
Counsel for General Law, GC-77, U.S. Department of Energy, 1000
Independence Avenue, SW., Washington, DC 20585, telephone 202-586-1522.
SUPPLEMENTARY INFORMATION:
I. Rulemaking History
On August 7, 1992, the Office of Government Ethics published the
Standards of Ethical Conduct for Employees of the Executive Branch
(Standards) (57 FR 35006). The Standards, codified at 5 CFR Part 2635
and effective February 3, 1993, establish uniform standards of ethical
conduct applicable to all executive branch personnel.
With the concurrence of OGE, 5 CFR 2635.105 authorizes executive
agencies to publish agency-specific supplemental regulations that the
agency determines are necessary and appropriate, in view of its
programs and operations, to fulfill the purposes of the Standards.
The interim final rule published for comment on July 5, 1996 (61 FR
35085) by the Department, with OGE concurrence, established
supplemental DOE regulations under 5 CFR 2635.105, and the Department,
in the same rulemaking document, revised its residual standards
regulation at 10 CFR part 1010. The Department determined that the
supplemental rule was a necessary supplement to the Standards because
it addressed ethical issues unique to the Department, and was therefore
necessary and appropriate to fulfill the purposes of the Standards. The
rule, codified in new chapter XXIII of 5 CFR, consisting of part 3301,
provided a 60-day comment period and invited comments by agencies and
the public. Comments were received from two (2) sources. In a separate
rulemaking action, on June 3, 1998 (63 FR 30109), the Department
published a final rule that revised the part 1010 authority citation,
amended Sec. 1010.102, and deleted old Sec. 1010.105. The final
rulemaking today makes no further changes to the current regulations at
10 CFR part 1010 and 5 CFR part 3301.
On March 1, 2000, the National Nuclear Security Administration
(NNSA) was established as a separately organized entity within the
Department of Energy. This rule applies to all Department employees,
including those of NNSA.
II. Summary of Comments
Both sets of comments concerned 5 CFR 3301.103, which requires that
Department employees obtain the written approval of their immediate
supervisor and the Department's designated agency ethics official or
that official's designee (ethics counselor) prior to engaging in
certain outside employment. The comments addressed the prior approval
requirement (Sec. 3301.103(a)) and the definition of ``employment''
(Sec. 3301.103(c)). No comments were received on Sec. 3301.102
requiring Department employees to document notices of disqualification
and withdrawals of such notices in writing. Additionally, no comments
were received on the revisions to the Department's residual part 1010
standards regulation in its own CFR title and the addition of cross-
references to the new provisions.
Section 3301.103(a) Prior Approval Requirement
The comments suggested the rule is overly broad and unenforceable.
It was specifically stated that: (a) The rule should cover only those
employees in ``sensitive'' positions because they are the only
employees whom the rule affects, thus preventing an otherwise
unwarranted invasion of privacy; (b) the rule should not apply to
unpaid employment because unpaid employment would not ``prejudice'' an
employee; (c) the rule, interpreted broadly, would encompass many types
of employment that are not the type the rule seeks to prohibit; and (d)
the rule is unenforceable because there would be no way of ensuring
compliance with the rule.
The Department has determined that it would not be prudent to
narrow the scope of the rule and that, in light of the purpose of the
rule, the fear it would be unenforceable is not valid. The rule is
designed to help ensure that Department employees do not inadvertently
violate the criminal statutes and Federal regulations governing outside
activities of Federal employees. Determining whether certain outside
employment is prohibited is very fact-specific, and does not depend
upon an employee's position or on whether outside employment is unpaid.
The Department does not believe it is possible to craft a
straightforward regulation that would plainly address, in advance, the
myriad of situations which could be considered to be employment and to
identify which of those situations would be prohibited
[[Page 48448]]
or in conflict with the Standards. It is the Department's view that
whatever burden the prior approval requirement may impose upon some
employees, it is more than compensated for by the prevention of
violations of the applicable statutes and Federal regulations. It
should be noted that the prior approval requirement is not designed to
arbitrarily deny Department employees permission to engage in outside
employment. In fact, the regulation makes clear that a request for
approval will be granted unless it is determined that the outside
employment involves conduct prohibited by statute or regulation. See 5
CFR 3301.103(b). In practice, since the interim final regulation has
been promulgated, the vast majority of requests for approval to engage
in outside employment have been routinely granted.
The comments also maintained that the approval process contained in
the rule, requiring approval to be in writing and obtained from an
employee's immediate supervisor and ethics counselor, is unduly
burdensome. It was specifically recommended that an employee's
immediate supervisor be authorized to provide the necessary approval,
and that verbal approval be allowed.
The Department has not adopted these recommendations. DOE's ethics
counselors are uniquely qualified to analyze, interpret, and apply the
relevant statutes and regulations. Supervisors generally will not be
able to make determinations regarding whether a specific fact situation
may violate a statute or regulation. Further, the involvement of
Department ethics counselors helps to ensure consistency in the
interpretation and application of those statutes and Federal
regulations. Written approval is the most effective way of documenting
the approval process and it protects both the Department and the
employee. Written approval can, as a practical matter, be more
effectively relied upon by the Department in the event an employee
seeks clarification about advice provided to him or her regarding
outside employment, and by the employee in the event there is a dispute
concerning the legality of an employee's outside employment activities.
Disciplinary action for violating the Standards or these supplemental
regulations will not be taken against an employee who has in good faith
relied upon the advice of an ethics counselor, provided the employee,
in seeking such advice, has made full disclosure of all relevant facts
and circumstances. Where the employee's conduct violates a criminal
statute, reliance on the advice of an ethics counselor cannot ensure
that the employee will not be prosecuted under that statute; however,
good faith reliance on the advice of an ethics counselor is a factor
that may be taken into account by the Department of Justice in the
selection of cases for prosecution. See 5 CFR 2635.107(b).
Finally, one of the comments noted professional employees are
governed by professional ethics rules and, therefore, the imposition of
additional limitations is unnecessary and likely to result in
conflicting ethical regulations. All employees of the executive branch,
whether or not professional, must comply with the Standards and any
other applicable statutes and regulations. Professional ethical
obligations an employee may be subject to may be considered by the
employee in addition to the applicable statutes and regulations, but
shall not, under any circumstances, relieve an employee of his or her
obligations under applicable statutes and regulations.
Section 3301.103(c) Definition of Employment
The regulation defines ``employment'' to exclude ``participating in
the activities of a nonprofit, charitable, religious, public service or
civic organization, unless such activities involve the provision of
professional services or are for compensation.'' One set of comments
objected to the exclusion of ``professional services'' from this
exception to the definition of ``employment'' for the following
reasons: (a) It would ``automatically eliminate all of our professional
workers from all public service work,'' creating a socially undesirable
outcome; (b) it ``constitutes an unfair labor practice, for, without
any negotiation, it bars the union from using its professional members
for standard collective bargaining activities;'' and (c) it is
``unnecessary'' because ``professional service provided by DOE
professionals to public organizations is not related at all to their
positions as government employees.''
Comments (a) and (b) exhibit a clear misunderstanding of the
language of the rule. The definition of employment does not prohibit
professionals from engaging in public service work or bar the union
from using its professional members for standard collective bargaining
activities; rather, it simply states that if an employee's involvement
in public service work includes the provision of professional services,
or is for compensation, then the employee may not rely on the exception
and must, as is required for any other type of outside employment,
receive prior written approval. Further, determining whether certain
outside employment is prohibited is very fact-specific and does not
necessarily depend upon the relationship between an employee's position
and an employee's outside activity.
III. Matters of Regulatory Procedure
Review Under Executive Order 12866
Today's regulatory action has been determined not to be a
significant regulatory action under Executive Order 12866, Regulatory
Planning and Review (58 FR 51735, October 4, 1993), as amended by
Executive Order 13258, Amending Executive Order 12866 on Regulatory
Planning and Review (67 FR 9385, February 28, 2002). Accordingly,
today's action was not subject to review under the Executive Order by
the Office of Information and Regulatory Affairs, Office of Management
and Budget.
Review Under Executive Order 12988
Section 3 of Executive Order 12988, Civil Justice Reform, (61 FR
4729, February 7, 1996) instructs each agency to adhere to certain
requirements in promulgating new regulations. These requirements, set
forth in section 3(a) and (b), include eliminating drafting errors and
needless ambiguity, drafting the regulations to minimize litigation,
providing clear and certain legal standards for affected legal conduct,
and promoting simplification and burden reduction. Agencies are also
instructed to make every reasonable effort to ensure that regulations
describe any administrative proceeding to be available prior to
judicial review and any provisions for the exhaustion of administrative
remedies. The Department has determined that today's regulatory action
meets the requirements of section 3(a) and (b) of Executive Order
12988.
Review Under Executive Order 13132
Executive Order on Federalism 13132 (64 FR 43255, August 10, 1999)
imposes certain requirements on agencies formulating and implementing
policies or regulations that preempt State law or that have federalism
implications. Agencies are required to examine the constitutional and
statutory authority supporting any action that would limit the
policymaking discretion of the States and carefully assess the
necessity for such actions. DOE has examined this rule and has
determined that it would not preempt State law and would not have a
substantial direct effect on the States, on the relationship between
the national government and the States, or
[[Page 48449]]
on the distribution of power and responsibilities among the various
levels of government. No further action is required by Executive Order
13132.
Review Under Executive Order 13084
Under Executive Order 13084 on Consultation and Coordination with
Indian Tribal Governments (63 FR 27655, May 19, 1998), DOE may not
issue a discretionary rule that significantly or uniquely affects
Indian tribal governments and imposes substantial direct compliance
costs. This rule would not have such effects. Accordingly, Executive
Order 13084 does not apply to this rulemaking.
Review Under the Administrative Procedure Act and the Regulatory
Flexibility Act
The authorizing legislation for this rulemaking does not require
notice and comment rulemaking. Moreover, this final rule relates solely
to internal agency organization, management, or personnel, and as such,
is not subject to the requirement for a general notice of proposed
rulemaking under the Administrative Procedure Act (5 U.S.C. 553).
Consequently, this rulemaking is exempt from the requirements of the
Regulatory Flexibility Act (5 U.S.C. 603).
Review Under the National Environmental Policy Act
This final rule adopts as final the Department's interim
regulations on standards of conduct. It will not change the
environmental effects of the regulations being amended. The Department
has therefore determined that the rule is covered under the Categorical
Exclusion found at paragraph A.5 of appendix A to subpart D, 10 CFR
part 1021, which applies to rulemakings interpreting or amending an
existing rule that do not change the environmental effect thereof.
Accordingly, neither an environmental assessment nor an environmental
impact statement is required.
Review Under the Treasury and General Government Appropriations Act,
2001
The Treasury and General Government Appropriations Act, 2001 (44
U.S.C. 3516, note) provides for executive agencies to review most
disseminations of information to the public under guidelines
established by each agency pursuant to general guidelines issued by the
Office of Management and Budget (OMB). OMB's guidelines were published
at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published
at 67 FR 62446 (October 7, 2002). DOE has reviewed today's final rule
under the OMB and DOE guidelines, and has concluded that it is
consistent with applicable policies in those guidelines.
Review Under the Paperwork Reduction Act
This final rule does not impose a ``collection of information''
requirement, as defined in 44 U.S.C. 3502(3).
Review Under the Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 requires each
Agency to assess the effects of Federal regulatory action on State,
local, and tribal governments and the private sector. The Department
has determined that today's regulatory action does not impose a Federal
mandate on State, local, or tribal governments or on the private
sector.
Congressional Notification
The Small Business Regulatory Enforcement Fairness Act of 1996
requires agencies to report to Congress on the promulgation of certain
final rules prior to their effective dates. 5 U.S.C. 801. That
reporting requirement does not apply to this final rule because it
falls within a statutory exception for rules relating to agency
management or personnel. 5 U.S.C. 804(3)(B).
List of Subjects
5 CFR Part 3301
Conduct standards, Conflicts of interests, Ethical conduct,
Government employees.
10 CFR Part 1010
Conduct standards, Conflicts of interests, Ethical conduct,
Government employees.
Issued in Washington, DC, on August 2, 2006.
David R. Hill,
General Counsel, Department of Energy.
Approved: August 10, 2006.
Robert I. Cusick,
Director, Office of Government Ethics.
0
Accordingly, the interim final rule adding 5 CFR part 3301 and revising
10 CFR part 1010, that was published at 61 FR 35085 on July 5, 1996, is
adopted as a final rule with the changes published at 63 FR 30109 on
June 3, 1998.
[FR Doc. E6-13736 Filed 8-18-06; 8:45 am]
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