[Federal Register Volume 64, Number 51 (Wednesday, March 17, 1999)]
[Rules and Regulations]
[Pages 13063-13064]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-6492]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 64, No. 51 / Wednesday, March 17, 1999 /
Rules and Regulations
[[Page 13063]]
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OFFICE OF GOVERNMENT ETHICS
5 CFR Part 2635
RIN 3209-AA04
Standards of Ethical Conduct for Employees of the Executive
Branch
AGENCY: Office of Government Ethics (OGE).
ACTION: Final rule; amendments.
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SUMMARY: The Office of Government Ethics is amending portions of the
regulation governing standards of ethical conduct for executive branch
employees on seeking other employment, to conform with interpretive
advice and to improve clarity.
EFFECTIVE DATE: April 16, 1999.
FOR FURTHER INFORMATION CONTACT: G. Sid Smith, Senior Associate General
Counsel, Office of Government Ethics; telephone: 202-208-8000; TDD:
202-208-8025; FAX: 202-208-8037.
SUPPLEMENTARY INFORMATION: On August 26, 1998, the Office of Government
Ethics (OGE) published proposed minor amendments to the standards of
ethical conduct for executive branch employees (5 CFR part 2635), to
codify interpretive advice and clarify intended meaning in subpart F
(Seeking Other Employment) and in the definition of ``receive'' at
Sec. 2635.807 of subpart H (Outside Activities). See 63 FR 45415-45417.
We received only one comment, which related exclusively to the proposed
amendment to Sec. 2635.807. Upon further consideration, and in view of
separate concerns about other provisions of Sec. 2635.807, we have
decided not to make the proposed definitional revision in Sec. 2635.807
at this time. If, in the future, OGE decides to revive that proposal,
we will issue a new proposed rule revision, with opportunity for
comments.
No comments were received concerning subpart F, so OGE is herewith
publishing the proposed amendments to subpart F as a final rule, with
no changes, effective April 16, 1999. A summary of those amendments
follows.
Subpart F
Subpart F of the standards of ethical conduct regulation, as
promulgated for codification at 5 CFR part 2635 in 1992, implemented
certain provisions of a criminal statute and an Executive order,
specifically: (1) 18 U.S.C. 208, restricting employees' official
participation in matters wherein a person or organization with whom
they are negotiating for or have an arrangement concerning prospective
employment has a financial interest, and (2) sections 101(h) and 101(j)
of Executive Order 12674, directing employees to act impartially in
official matters and not to engage in seeking or negotiating for
outside employment that conflicts with official duties and
responsibilities. Because these provisions of the criminal statute and
Executive order are so closely related, they were combined for
implementation at subpart F, with a requirement generally for
disqualification from participation in certain matters when an employee
is ``seeking other employment,'' a term that encompasses both
negotiating and other specified lesser contacts.
The existing language of Sec. 2635.601 and Sec. 2635.602 in that
subpart suggests that coverage may be limited to situations where the
employee's ``performance or nonperformance of official duties will
affect'' the financial interests of a prospective employer. A somewhat
more accurate test, for purposes of 18 U.S.C. 208, is contained in the
existing Sec. 2635.604(a), Sec. 2635.605(a), and Sec. 2635.606(a),
which is that coverage extends to participation in ``a particular
matter that has a direct and predictable effect'' on those financial
interests. The criminal statute does not limit its application to
situations where one's performance of official duties will affect a
financial interest, but instead focuses on whether a matter in which
the employee participates will affect the financial interest. Further,
the statute is triggered only if the effect on the financial interest
will be direct and predictable.
This variation among sections of the regulation was an unintended
result of the process by which provisions on prospective employment in
the criminal statute and Executive order were implemented jointly. As
questions from ethics officials have arisen concerning these apparent
discrepancies, OGE has advised that the requirements of 18 U.S.C. 208
control. In order to more clearly align the provisions of subpart F
with that advice and the criminal statute, OGE is amending
Sec. 2635.601 and Sec. 2635.602 accordingly, by this current
rulemaking.
Additionally, amendments in this current rulemaking to
Sec. 2635.601, Sec. 2635.602, Sec. 2635.604, Sec. 2635.605, and
Sec. 2635.606 clarify initially in each section that the restrictions
apply only when the employee would be ``participating personally and
substantially'' in a particular matter. These modifications will
further ensure that subpart F is consistent with 18 U.S.C. 208 and in
conformance with OGE advice.
Matters of Regulatory Procedure
Executive Order 12866
In promulgating these final rule amendments, 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. These amendments have also
been reviewed by the Office of Management and Budget under that
Executive order.
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 rulemaking
will not have a significant economic impact on a substantial number of
small entities, because it primarily affects Federal executive branch
agencies and their employees.
Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply,
because this rulemaking does not contain any information collection
requirements that require the approval of the Office of Management and
Budget.
[[Page 13064]]
List of Subjects in 5 CFR Part 2635
Conflict of interests, Executive branch standards of ethical
conduct, Government employees.
Approved: December 7, 1998.
Stephen D. Potts,
Director, Office of Government Ethics.
For the reasons set forth in the preamble, the Office of Government
Ethics is amending part 2635 of subchapter B of chapter XVI of title 5
of the Code of Federal Regulations, as follows:
PART 2635--[AMENDED]
1. The authority citation for part 2635 continues to read as
follows:
Authority: 5 U.S.C. 7301, 7351, 7353; 5 U.S.C. App. (Ethics in
Government Act of 1978); 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.
Sec. 2635.601 [Amended]
2. Section 2635.601 is amended by removing the words ``who
otherwise would be affected by the performance or nonperformance of the
employees' official duties.'' from the end of the first sentence and
adding the words ``whose financial interests would be directly and
predictably affected by particular matters in which the employees
participate personally and substantially.'' in their place, and by
adding the new sentence ``See Sec. 2635.402 and Sec. 2640.103 of this
chapter.'' between the second and third sentences.
Sec. 2535.602 [Amended]
3. Section 2635.602 is amended by removing the words ``the
employee's official duties would affect'' from the first sentence of
the undesignated introductory text and adding the words ``particular
matters in which the employee will be participating personally and
substantially would directly and predictably affect'' in their place,
and by removing the words ``affected by the performance or
nonperformance of his official duties'' from the first sentence of the
note following the undesignated introductory text and adding the words
``affected directly and predictably by particular matters in which he
participates personally and substantially'' in their place.
4. Section 2635.603 is amended by revising paragraph (d) to read as
follows:
Sec. 2635.603 Definitions.
* * * * *
(d) Direct and predictable effect, particular matter, and personal
and substantial have the respective meanings set forth in
Sec. 2635.402(b)(1), (3), and (4).
Sec. 2635.604 [Amended]
5. Section 2635.604 is amended by adding the words ``personally and
substantially'' after the word ``participate'' in the first sentence of
paragraph (a).
Sec. 2635.605 [Amended]
6. Section 2635.605 is amended by adding the words ``personally and
substantially'' after the word ``participate'' in the first sentence of
paragraph (a), and by adding the words ``personally and substantially''
after the word ``participate'' in the first sentence of paragraph (b).
Sec. 2635.606 [Amended]
7. Section 2635.606 is amended by removing the words ``taking
official action'' from the first sentence of paragraph (a) and adding
the words ``participating personally and substantially'' in their
place.
[FR Doc. 99-6492 Filed 3-16-99; 8:45 am]
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