[Federal Register Volume 68, Number 20 (Thursday, January 30, 2003)]
[Rules and Regulations]
[Pages 4681-4684]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-2117]


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OFFICE OF GOVERNMENT ETHICS

5 CFR Part 2641

RIN 3209-AA07


Post-Employment Conflict of Interest Restrictions; Revision of 
Departmental Component Designations

AGENCY: Office of Government Ethics (OGE).

ACTION: Final rule.

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SUMMARY: The Office of Government Ethics is issuing this rule to 
designate

[[Page 4682]]

several departmental components, to revoke an existing component 
designation, and to change the names of two existing departmental 
components, for purposes of the one-year post-employment conflict of 
interest restriction at 18 U.S.C. 207(c).

EFFECTIVE DATES: This amendatory rule is effective January 30, 2003, 
except for the removal of the listing for the International Joint 
Commission, United States and Canada (American Section), as set forth 
in amendatory instruction 3, which is effective on April 30, 2003.

FOR FURTHER INFORMATION CONTACT: Richard M. Thomas, Associate General 
Counsel, Office of Government Ethics; telephone: 202-208-8000, 
extension 1152; TDD: 202-208-8025; FAX: 202-208-8037.

SUPPLEMENTARY INFORMATION: 

A. Substantive Discussion

    The Director of OGE (Director) is authorized by 18 U.S.C. 207(h) to 
designate distinct and separate departmental or agency components in 
the executive branch for purposes of 18 U.S.C. 207(c). 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, eligible senior employees may be permitted 
to communicate to or appear before parts of their former department or 
agency if one or more components of the department or agency have been 
designated as separate agencies or bureaus by OGE.
    As specified in 5 CFR 2641.201(e)(3)(iii), the Director of OGE 
``shall by rule make or revoke a component designation after 
considering the recommendation of the designated agency ethics 
official.'' Component designations are listed in appendix B of 5 CFR 
part 2641. Pursuant to the procedures prescribed in 5 CFR 2641.201(e), 
several departments have forwarded letters to OGE recommending the 
amendment of appendix B since it was last revised in 1999 (64 FR 5709-
5710 (February 5, 1999)). After carefully reviewing these 
recommendations in light of the criteria in 18 U.S.C. 207(h) as 
implemented in 5 CFR 2641.201(e)(6), the Director has determined to 
revise appendix B as explained below.
    At the recommendation of the Department of Defense (DOD), the 
Director is designating the National Reconnaissance Office (NRO) as a 
distinct and separate component of that Department. NRO is charged, 
under 50 U.S.C. 403-5(b)(3), with responsibility for the ``continued 
operation of an effective unified organization for the research and 
development, acquisition, and operation of overhead reconnaissance 
systems necessary to satisfy the requirements of all elements of the 
intelligence community.'' NRO is the sole designer, builder and 
operator of the United States' reconnaissance satellites. According to 
DOD, NRO was omitted from the Department's original list of recommended 
components in 1990 because the existence of the NRO was, at that time 
and for several years thereafter, a highly classified fact. That is no 
longer the case, and NRO can now be designated as a new component of 
the DOD.
    The Director is also granting the request of the Department of 
Labor to designate the Office of Disability Employment Policy (ODEP) as 
a distinct and separate component of that Department. ODEP is a new 
office established by legislation enacted on December 21, 2000, section 
1(a)(1), Pub. L. 106-554, as codified at 29 U.S.C. 557b. The office, 
which is headed by an Assistant Secretary, is charged to ``provide 
leadership, develop policy and initiatives, and award grants furthering 
the objective of eliminating barriers to the training and employment of 
people with disabilities.'' 29 U.S.C. 557b.
    As recommended by the Department of Transportation (DOT), the 
Director is designating the Federal Motor Carrier Safety Administration 
(FMCSA) as a distinct and separate component of that Department. The 
FMCSA commenced operations on January 2, 2000. It was created pursuant 
to the Motor Carrier Safety Improvement Act of 1999, section 101(a), 
Pub. L. 106-159, as codified at 49 U.S.C. 113, to perform functions 
relating to motor carriers and motor carrier safety. These functions 
were previously performed by DOT's Federal Highway Administration.
    Also pursuant to the recommendation of DOT, the Director is 
designating the Transportation Security Administration (TSA) as a 
distinct and separate component of that Department. Under the Aviation 
and Transportation Security Act, section 101(a), Pub. L. 107-71, as 
codified at 49 U.S.C. 114, TSA was created as an administration of DOT, 
with the responsibility for civil aviation security as well as the 
security of other modes of transportation. Although the functions of 
TSA are expected to be transferred to the new Department of Homeland 
Security at a later time during 2003, this separate component 
designation will define the relationship between DOT and TSA with 
respect to section 207(c) immediately.
    As requested by the Department of the Treasury (Treasury), the 
Director is designating the Financial Crimes Enforcement Network 
(FinCEN) as a distinct and separate component of that Department. Under 
31 U.S.C. 310, FinCEN is designated as a bureau in Treasury to provide 
trend analysis and threat assessments, regulate financial and other 
institutions under the Bank Secrecy Act, and foster international 
cooperation in efforts to deter and detect money laundering.
    Additionally, as recommended by the Department of State, the 
Director is revoking the designation of the International Joint 
Commission, United States and Canada (American Section) (IJC). Section 
207(h) of 18 U.S.C. authorizes the designation of agencies and bureaus 
``within'' a department or agency. Although the IJC receives funding 
from the Department of State and Federal employees serve in its 
American Section, IJC is not a part of the Department of State. Rather, 
it is an international organization in which the United States 
participates. See, e.g., 22 U.S.C. 288 (IJC is among the international 
organizations in which the United States participates which are 
entitled to certain privileges, exemptions, and immunities).
    Finally, the Department of Health and Human Services (HHS) has 
advised that the names of two HHS components currently listed in 
appendix B of part 2641 have been changed. According to HHS, the 
``Agency for Health Care Policy and Research'' is now the ``Agency for 
Healthcare Research and Quality,'' and the ``Health Care Financing 
Administration'' is now the ``Centers for Medicare and Medicaid 
Services.'' Accordingly, the Director is amending the HHS listing in 
appendix B to reflect the current names of these components.
    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. 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 
January 30, 2003. As also provided in 5 CFR 2641.201(e)(4), a 
revocation is effective 90 days after the

[[Page 4683]]

effective date of the rule that revokes the designation. Accordingly, 
the component designation revocation made in this rulemaking will take 
effect April 30, 2003. 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 Director of OGE, 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 revocation (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 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 would not significantly or 
uniquely affect small governments and would 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 has submitted a report thereon to the U.S. Senate, House 
of Representatives and General Accounting Office in accordance with the 
law.

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: January 23, 2003.
Amy L. Comstock,
Director, Office of Government Ethics.

    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

    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.


    2. Effective January 30, 2003, appendix B to part 2641 is amended 
by revising the listings for the Department of Defense, the Department 
of Health and Human Services, the Department of Labor, the Department 
of Transportation, and the Department of the Treasury to read as 
follows:

Appendix B to Part 2641--Agency Components for Purposes of 18 U.S.C. 
207(c)

* * * * *

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 Imagery and Mapping Agency (effective May 16, 1997)
National Reconnaissance Office (effective January 30, 2003)
National Security Agency

Parent: Department of Health and Human Services

Components

Administration on Aging (effective May 16, 1997)
Administration for Children and Families (effective January 28, 
1992)
Agency for Healthcare Research and Quality (formerly Agency for 
Health Care Policy and Research) (effective May 16, 1997)
Agency for Toxic Substances and Disease Registry (effective May 16, 
1997)
Centers for Disease Control and Prevention (effective May 16, 1997)
Centers for Medicare and Medicaid Services (formerly Health Care 
Financing Administration)
Food and Drug Administration
Health Resources and Services Administration (effective May 16, 
1997)
Indian Health Service (effective May 16, 1997)
National Institutes of Health (effective May 16, 1997)
Substance Abuse and Mental Health Services Administration (effective 
May 16, 1997)

* * * * *

Parent: Department of Labor

Components:

Bureau of Labor Statistics
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)
Pension and Welfare Benefits Administration (effective May 16, 1997)
* * * * *

Parent: Department of Transportation

Components:

Federal Aviation Administration
Federal Highway Administration
Federal Motor Carrier Safety Administration (effective January 30, 
2003)
Federal Railroad Administration
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)

[[Page 4684]]

United States Coast Guard

Parent: Department of the Treasury

Components

Bureau of Alcohol, Tobacco and Firearms
Bureau of Engraving and Printing
Bureau of the Mint
Bureau of the Public Debt
Comptroller of the Currency
Federal Law Enforcement Training Center
Financial Crimes Enforcement Network (FinCEN) (effective January 30, 
2003)
Financial Management Service
Internal Revenue Service
Office of Thrift Supervision
United States Customs Service
United States Secret Service


    3. Effective April 30, 2003, appendix B to part 2641 is further 
amended by removing the word and colon ``Components:'' and adding in 
place thereof the word and colon ``Component:'' in the listing for the 
Department of State and by removing the ``International Joint 
Commission, United States and Canada (American Section)'' from that 
listing.

[FR Doc. 03-2117 Filed 1-29-03; 8:45 am]
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