[Federal Register Volume 67, Number 169 (Friday, August 30, 2002)]
[Notices]
[Pages 55844-55845]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-22204]


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OFFICE OF GOVERNMENT ETHICS


Issuance and Revocation of Temporary Post-Employment Waiver

AGENCY: Office of Government Ethics (OGE).

ACTION: Notice; revocation of waiver.

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SUMMARY: The Office of Government Ethics is giving notice of the 
termination, effective in 90 days, of a short-term post-Government 
employment waiver of certain ``senior employee'' restrictions, which 
OGE is granting today to a class of employee positions at the 
Securities and Exchange Commission (SEC).

EFFECTIVE DATE: October 29, 2002.

FOR FURTHER INFORMATION CONTACT: Richard M. Thomas, Associate General 
Counsel, Office of Government Ethics, Suite 500, 1201 New York Avenue, 
NW., Washington, DC 20005-3917; telephone: 202-208-8000, extension 
1152; TDD: 202-208-8025; FAX: 202-208-8037.

SUPPLEMENTARY INFORMATION: Pursuant to its authority under 18 U.S.C. 
207(c)(2)(C), the Office of Government Ethics today is granting a 
temporary waiver, effective until November 29, 2002, from the senior 
employee'' post-Government employment restrictions of 18 U.S.C. 207(c), 
and consequently also section 207(f), with respect to a class of 
positions at the SEC. Under 5 CFR 2641.201(d) of OGE's executive branch 
post-employment regulations, the waiver determination is not required 
to be published in the Federal Register. However, Sec. 2641.201(d)(4) 
of OGE's regulations does require that OGE publish a notice of 
revocation in the Federal Register at least 90 days prior to the 
effective date of the termination of any such waiver, which is the 
purpose of this notice.
    The waiver was requested by the designated agency ethics official 
of the SEC. The waiver pertains to all positions at the Securities and 
Exchange Commission for which the rate of basic pay, immediately prior 
to May 19, 2002, had been less than the rate of basic pay payable for 
level 5 of the Senior Executive Service (SES). On May 19, 2002, the SEC 
instituted a new ``pay parity plan.'' Such a plan was authorized by 
Congress in January of 2002, pursuant to Pub. L. 107-123, but was not 
funded by appropriations until some time later. The new pay plan 
eliminated the SES at SEC and placed all former SES employees, 
including many who were below level 5 of the SES, in new pay grades all 
of which have rates of basic pay greater than that payable for SES 
level 5. Consequently, a number of employees who had not been ``senior 
employees'' under section 207(c) immediately became subject to the 
restrictions of that provision, pursuant to 18 U.S.C. 207(c)(2)(ii). 
According to information provided by the SEC, this change in rate of 
basic pay occurred without any change in the duties of the affected 
employees. Furthermore, the SEC indicated that notice of many of the 
most important details of the new plan (e.g., amounts of pay) was not 
provided to affected employees until May 17, 2002, so that employees 
were not able to plan for any post-employment consequences.
    The Securities and Exchange Commission requested a temporary waiver 
to allow a fair amount of time for new senior employees to make plans 
and to allow the agency the time to

[[Page 55845]]

identify any specific positions for which it may believe that a 
permanent waiver would be appropriate in the future. The Securities and 
Exchange Commission cited as precedent the decision of OGE in 1996 to 
grant a temporary waiver under 18 U.S.C. 207(c)(2)(C) covering all SES 
level 4 employees in the executive branch who were unexpectedly placed 
in ``senior employee'' status, without any change in the duties of 
their positions, under the version of section 207(c)(2)(A)(ii) as then 
worded, as a result of a pay raise under Executive Order 12984. See DO-
96-001 (January 4, 1996) (original six month waiver); 61 FR 14326-14328 
(April 1, 1996) (notice of forthcoming termination of original six 
month waiver); DO-96-030 (June 6, 1996) (three month extension of 
waiver); 61 FR 28908-28910 (June 6, 1996) (notice of extension and 
revocation of waiver after period of extension); all of which are 
available on OGE's Web site at http://www.usoge.gov.
    The Office of Government Ethics agreed that the information 
provided by the SEC satisfied the two-part test for granting waivers 
under section 207(c)(2)(C). In order to grant a waiver, the Director of 
OGE must determine both that the imposition of the restrictions of 
section 207(c) ``would create an undue hardship on the department or 
agency in obtaining qualified personnel to fill such position or 
positions'' and that ``granting the waiver would not create the 
potential for use of undue influence or unfair advantage.'' 18 U.S.C. 
207(c)(2)(C)(i) and (ii). The Office of Government Ethics found the 
hardship requirement to be satisfied because the information provided 
by the SEC indicated that the very purpose of the new Congressionally 
authorized pay plan was to reverse that agency's historical 
difficulties in recruiting and retaining qualified experts in fields 
related to the mission of the agency. As OGE provides in its 
implementing regulations, hardship may be shown by the ``payment of a 
special rate of pay to the incumbent of the position pursuant to 
specific statutory authority.'' 5 CFR 2641.201(d)(5)(ii)(A). The Office 
of Government Ethics also found that the granting of a waiver would not 
create the potential for undue influence or unfair advantage: the new 
increase in pay is not accompanied by ``any accretion of duties or 
responsibilities,'' DO-96-001, and there is no reason to expect that 
the incumbents at the present time would have any more potential for 
influence or advantage than they had immediately prior to the pay 
increase.
    Pursuant to 5 CFR 2641.201(d)(4), the effective date of the waiver 
is the ``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). That written response is being 
issued today. The regulations also specifically state that any waiver 
``shall not benefit individuals who terminated senior service prior to 
the effective date of the exemption.'' Id. Consequently, the benefit of 
the waiver does not extend to any individuals who terminated senior 
service prior to the date of waiver.
    Finally, although the SEC requested that the waiver be effective 
only until November 19, 2002, OGE is granting a waiver that will extend 
until November 29, 2002. Under 5 CFR 2641.201(d)(4), the revocation of 
a waiver cannot be effective until 90 days after the publication in the 
Federal Register of a notice of revocation.
    Therefore, pursuant to 5 CFR 2641.201(d)(4), OGE hereby gives 
notice that the above-referenced post-employment waiver, granted on 
August 30, 2002, will expire and is revoked effective on November 29, 
2002.

    Approved: August 26, 2002.
Amy L. Comstock,
Director, Office of Government Ethics.
[FR Doc. 02-22204 Filed 8-29-02; 8:45 am]
BILLING CODE 6345-02-P