[Federal Register Volume 73, Number 45 (Thursday, March 6, 2008)]
[Rules and Regulations]
[Pages 12007-12009]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-4282]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 73, No. 45 / Thursday, March 6, 2008 / Rules
and Regulations
[[Page 12007]]
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.
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SUMMARY: The Office of Government Ethics is issuing this rule to revoke
the designation of a departmental component and to designate two
additional departmental components for purposes of the one-year post-
employment conflict of interest restriction at 18 U.S.C. 207(c), to
change the name of an existing departmental component, and to correct a
clerical error in the name of another existing departmental component.
DATES: The amendments to appendix B to part 2641 (as set forth in
amendatory paragraph 2) are effective March 6, 2008. The additional
removal of a designated component from the listing for the Department
of Commerce in appendix B to part 2641 (as set forth in amendatory
paragraph 3) is effective June 4, 2008.
FOR FURTHER INFORMATION CONTACT: Amy E. Braud, Attorney-Advisor, or
William E. Gressman, Senior Associate General Counsel, Office of
General Counsel and Legal Policy, Office of Government Ethics,
Telephone: 202-482-9300; TDD: 202-482-9293; FAX: 202-482-9237.
SUPPLEMENTARY INFORMATION:
A. Substantive Discussion
Revocation and Addition of Departmental Components
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, 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 component of that
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 employees of
any designated component of that parent, but is barred as to employees
of that parent or of other components that have not been separately
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 to 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.
Specifically, the Director ``shall by rule make or revoke a component
designation after considering the recommendation of the designated
agency ethics official.'' 5 CFR 2641.201(e)(3)(iii). 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. 5 CFR
2641.201(e)(6).
Department of Commerce
Pursuant to the procedures prescribed in 5 CFR 2641.201(e), one
department has forwarded a written request to OGE to amend its listing
in appendix B. 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 Director of OGE has determined to grant this
request and amend appendix B to 5 CFR part 2641 as explained below.
The Department of Commerce has requested that OGE remove the
Technology Administration from its list of component designations and
in its place designate the National Institute of Standards and
Technology (NIST) and the National Technical Information Service (NTIS)
as distinct and separate components of the Department of Commerce for
purposes of 18 USC 207(c). These two entities formerly were the two
institutes within the Technology Administration, which is currently a
designated component of the Department of Commerce. The Technology
Administration was abolished by the America COMPETES Act, Public Law
110-69 (August 9, 2007). NIST and NTIS are the entities that remain
after the dissolution of the Technology Administration.
NIST was the major component of the Technology Administration
during the latter's existence. NIST's mission is to promote U.S.
innovation and industrial competitiveness by advancing measurement
science, standards and technology in ways that enhance economic
security and improve quality of life. It functions as the lead national
laboratory for providing the measurements, calibrations, and quality
assurance techniques which underpin U.S. commerce, technological
progress, improved product reliability and manufacturing processes, and
public safety. Because the Technology Administration has been
abolished, the
[[Page 12008]]
Director of NIST now reports directly to the Secretary of Commerce.
NTIS is a small entity that performs a Government function
different from that of NIST. NTIS collects information on scientific,
technical, engineering, and business-related research conducted or
sponsored by the U.S. Government and creates a permanent archive that
the public can access. Because the Technology Administration has been
abolished, the Director of NTIS now reports directly to the Secretary
of Commerce.
According to the Department of Commerce, the functions of NIST and
NTIS are distinct and separate from each other and distinct and
separate from every other agency within the Department. This
distinction was previously recognized when OGE designated their parent
agency, the Technology Administration, as a component for purposes of
18 USC 207(c). The act that abolished the Technology Administration
left the NIST and the NTIS in its place.
Accordingly, the Director is granting the request of the Department
of Commerce and therefore is amending the Department of Commerce
listing in appendix B to part 2641 to remove the Technology
Administration from the component designation list and to designate
NIST and NTIS as new components as discussed.
The Department of Commerce has also advised that the name of one
component currently listed in appendix B of part 2641 has been changed.
According to the Department of Commerce, the ``Patent and Trademark
Office'' has been the ``United States Patent and Trademark Office''
since November 29, 1999. Accordingly, the Director is amending the
Department of Commerce listing in appendix B to reflect the current
name of this component.
The Department of Commerce has further noted that the name of one
of its existing components is incorrect. One of the existing components
is listed as the ``Minority Business Development Administration.''
According to the Department of Commerce, this component has never
carried this name. It has always been the ``Minority Business
Development Agency.'' The Director is therefore amending the listing in
appendix B to reflect the correct name of the component.
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 change and the name correction being
reflected herein (which do not affect their underlying component
designation dates), are effective March 6, 2008.
As also indicated in 2641.201(e)(4), revocation is effective 90
days after the effective date of the rule that revokes the designation.
Accordingly, the component designation revocation made in this
rulemaking will take effect June 4, 2008. 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 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 a 30-day delayed effective date. It is important
and in the public interest that the designations herein by OGE of the
specified separate departmental components, which reflect the current
organization of the concerned department, as well as the component name
change, the component name correction and the component revocation, 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 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 non-major 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 Government Accountability 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 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: February 24, 2008.
Robert I. Cusick,
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
[squf] 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.
[squf] 2. Effective March 6, 2008, appendix B to part 2641 is
amended by revising the listing for the Department of Commerce to read
as follows:
[[Page 12009]]
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 Agency (formerly listed as
Minority Business Development Administration)
National Institute of Standards and Technology (effective March
6, 2008)
National Oceanic and Atmospheric Administration
National Technical Information Service (effective March 6, 2008)
National Telecommunications and Information Administration
Technology Administration (effective January 28, 1992; expiring
June 4, 2008)
United States Patent and Trademark Office (formerly Patent and
Trademark Office)
* * * * *
[squf] 3. Effective June 4, 2008, appendix B to part 2641 is
further amended by removing the Technology Administration from the
listing for the Department of Commerce.
[FR Doc. E8-4282 Filed 3-5-08; 8:45 am]
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