[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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  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.

-----------------------------------------------------------------------

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)
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

Executive Office for United States Trustees \3\ (effective January 
28, 1992)
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

Offices of the United States Trustee (21) \5\
---------------------------------------------------------------------------

    \5\ Each Office of the United States Trustee for a region shall 
be considered a separate component from each other such office.
---------------------------------------------------------------------------

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]
BILLING CODE 6345-02-P