[Federal Register Volume 75, Number 232 (Friday, December 3, 2010)]
[Rules and Regulations]
[Pages 75373-75376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-30398]


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DEPARTMENT OF ENERGY

10 CFR Part 1010

RIN 1990-AA31


Conduct of Employees and Former Employees; Exemption From Post-
Employment Restrictions for Communications Furnishing Scientific or 
Technological Information

AGENCY: Office of the General Counsel, U.S. Department of Energy.

ACTION: Final rule.

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SUMMARY: The Department of Energy (DOE) today publishes a final rule to 
establish procedures under which a former employee of the executive 
branch may obtain approval from DOE to make communications to DOE 
solely for the purpose of furnishing scientific or technological 
information during the period the former employee is subject to post-
employment restrictions set forth in 18 U.S.C. 207(a), (c), and (d). 
The final rule also provides a definition of the term ``scientific or 
technological information'' that is consistent with the definition 
provided by the Office of Government Ethics (OGE) in its regulations 
and for which an exemption is provided by 18 U.S.C. 207(j)(5).

DATES: This rule is effective January 3, 2011.

FOR FURTHER INFORMATION CONTACT: Sue E. Wadel, Deputy Assistant General 
Counsel for General Law, U.S. Department of Energy, Office of the 
General Counsel, Mailstop GC-77, Room 6A-211, 1000 Independence Avenue, 
SW., Washington, DC 20585; (202) 586-1522 or [email protected].

SUPPLEMENTARY INFORMATION:

I. Background
II. Summary of Rule and Changes to Proposed Rule
III. Regulatory Review

I. Background

    On December 1, 2008, the Department of Energy published for comment 
a proposed rule revising 10 CFR Part 1010 to establish in a new subpart 
B procedures under which a former employee of the executive branch may 
obtain approval to make communications to DOE solely for the purpose of 
furnishing scientific or technological information during the period 
the former employee is subject to post-employment restrictions set 
forth in 18 U.S.C. 207(a), (c), and (d). The proposed rule also defined 
the term ``scientific or technological information'' used in 18 U.S.C. 
207(j)(5) to provide former employees with guidance on the types of 
communications that would qualify for the exemption from otherwise 
applicable post-employment restrictions. See 73 FR 72748-72751 
(December 1, 2008).
    Pursuant to 18 U.S.C. 207(j)(5), former employees of the executive 
branch of the United States may make communications with an executive 
branch agency ``solely for the purpose of furnishing scientific or 
technological information,'' notwithstanding the post-employment 
restrictions at 18 U.S.C.

[[Page 75374]]

207(a), (c), and (d). Section 207(j)(5) provides that such 
communications must be made under procedures acceptable to the agency 
to which the communication is directed, or the head of such agency must 
consult with the Director of the Office of Government Ethics (OGE) and 
certify in the Federal Register that the former employee meets certain 
requirements to make such communications.
    As explained in the preamble, the purpose of the proposed rule was 
to (1) establish the procedures acceptable to DOE for former executive 
branch employees making scientific or technological communications; and 
(2) provide, in a definition of the term ``scientific or technological 
information,'' the criteria for the types of communications of 
scientific or technological information that former executive branch 
employees may make to DOE pursuant to 18 U.S.C. 207(j)(5). The proposed 
rule further defined scientific and technological information as that 
which is of a scientific or technological character, such as technical 
or engineering information relating to the natural sciences. The 
proposed definition did not extend to information associated solely 
with a nontechnical discipline such as law, economics, or political 
science.
    The proposed rule provided a 30-day comment period. No comments 
were received during this period.

II. Summary of Rule and Changes to Proposed Rule

    In today's final rule, section 10 CFR 1010.202, defines the 
statutory term ``scientific or technological information'' and provides 
criteria for program officials and the Designated Agency Ethics 
Official (DAEO) to use when evaluating requests from former employees 
for approval to communicate such information to DOE offices and 
officials. DOE consulted with OGE in developing this rule. As a result 
of that consultation, DOE adopted verbatim the definition of 
``scientific and technological information'' contained in OGE's 
regulations (5 CFR 2641.301(e)(2)), in lieu of the definition in the 
proposed rule. DOE views this as a non-substantive change, and one that 
may avoid potential confusion by the public regarding the meaning of 
this term. The program office official and DAEO shall consider the 
former executive branch employee's qualifications, the information to 
be conveyed, the former executive branch employee's Federal position, 
the extent of the former executive branch employee's participation in 
the same particular matter, and whether DOE's interest would be served 
by allowing such communications. Section 1010.202 also defines the term 
``authorized communication'' as the transmission of scientific or 
technological information that has been approved by DOE under the 
procedures that will be established by this rulemaking.
    Final section 10 CFR 1010.203, sets forth the procedures under 
which a former employee of the executive branch may obtain approval for 
communicating scientific or technological information to DOE offices or 
officials. A former employee of the executive branch must contact the 
program office to which he or she wishes to make such communications. 
The agency designee in the program office, in consultation with the 
DAEO, shall advise the former executive branch employee in writing 
whether he or she may make such communications. The agency designee is 
an individual serving in the office with cognizance over the matter and 
in a position requiring appointment by the President of the United 
States with the advice and consent of the Senate. The final rule 
clarifies that the agency designee cannot delegate this authority, 
unless the authority is delegated to another individual serving in a 
position in DOE requiring appointment by the President of the United 
States with the advice and consent of the Senate.
    The final rule does not apply to testimony as an expert in an 
adversarial proceeding in which the United States is a party or has an 
interest. Restrictions on testimony, and exceptions thereof, are 
prescribed in 18 U.S.C. 207(j)(6).

III. Regulatory Review

A. Executive Order 12866

    This final rule has been determined not to be a significant 
regulatory action under Executive Order 12866, ``Regulatory Planning 
and Review,'' 58 FR 51735 (October 4, 1993). Accordingly, this action 
was not subject to review under that Executive Order by the Office of 
Information and Regulatory Affairs (OIRA) of the Office of Management 
and Budget (OMB).

B. National Environmental Policy Act

    DOE has determined that this final rule is covered under the 
Categorical Exclusion found in DOE's National Environmental Policy Act 
regulations at paragraph A.5 of Appendix A to Subpart D, 10 CFR Part 
1021, which applies to rulemakings interpreting or amending an existing 
rule that do not change the environmental effect thereof. Accordingly, 
neither an environmental assessment nor an environmental impact 
statement is required.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601, et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. As required 
by Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the rulemaking process (68 FR 7990). DOE has made its 
procedures and policies available on the Office of the General 
Counsel's Web site: http://www.gc.doe.gov.
    DOE has reviewed this final rule under the provisions of the 
Regulatory Flexibility Act and the procedures and policies published on 
February 19, 2003. The final rule will only affect individuals who were 
formerly employed by the executive branch of the Federal government if 
they want to communicate with DOE on scientific or technological 
matters. On the basis of the foregoing, DOE certifies that this final 
rule will not have a significant economic impact on a substantial 
number of small entities. Accordingly, DOE has not prepared a 
regulatory flexibility analysis for this rulemaking. DOE's 
certification and supporting statement of factual basis will be 
provided to the Chief Counsel for Advocacy of the Small Business 
Administration pursuant to 5 U.S.C. 605(b).

D. Paperwork Reduction Act

    No new record keeping requirements subject to the Paperwork 
Reduction Act, 44 U.S.C. 3501, et seq., are imposed by this final rule.

E. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995, Public Law 104-4, 
generally requires Federal agencies to examine closely the impacts of 
regulatory actions on State, local, and tribal governments. Subsection 
101(5) of title I of that law defines a Federal intergovernmental 
mandate to include any regulation that would impose upon State, local, 
or tribal governments an enforceable duty, except a condition of 
Federal assistance or a duty arising from participating in a

[[Page 75375]]

voluntary federal program. Title II of that law requires each Federal 
agency to assess the effects of Federal regulatory actions on State, 
local, and tribal governments, in the aggregate, or to the private 
sector, other than to the extent such actions merely incorporate 
requirements specifically set forth in a statute. Section 202 of that 
title requires a Federal agency to perform a detailed assessment of the 
anticipated costs and benefits of any rule that includes a Federal 
mandate which may result in costs to State, local, or tribal 
governments, or on the private sector, of $100 million or more in any 
one year (adjusted annually for inflation). 2 U.S.C. 1532(a) and (b). 
Section 204 of that title requires each agency that proposes a rule 
containing a significant Federal intergovernmental mandate to develop 
an effective process for obtaining meaningful and timely input from 
elected officers of State, local, and tribal governments.
    This final rule will apply only to former executive branch 
employees who want to communicate with DOE on scientific or 
technological matters. The rule will not result in the expenditure by 
State, local, and tribal governments in the aggregate, or by the 
private sector, of $100 million or more in any one year. Accordingly, 
no assessment or analysis is required under the Unfunded Mandates 
Reform Act of 1995.

F. Treasury and General Government Appropriations Act, 1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any proposed rule that may affect family 
well being. The final rule will not have any impact on the autonomy or 
integrity of the family as an institution. Accordingly, DOE has 
concluded that it is unnecessary to prepare a Family Policymaking 
Assessment.

G. Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4, 1999) 
imposes certain requirements on agencies formulating and implementing 
policies or regulations that preempt State law or that have federalism 
implications. Agencies are required to examine the constitutional and 
statutory authority supporting any action that would limit the 
policymaking discretion of the States and carefully assess the 
necessity for such actions. DOE has examined this final rule and has 
determined that it will not preempt State law and will not have a 
substantial direct effect on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government. No further 
action is required by Executive Order 13132.

H. Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on 
Executive agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. With regard to the review 
required by section 3(a), section 3(b) of Executive Order 12988 
specifically requires that Executive agencies make every reasonable 
effort to ensure that the regulation: (1) Clearly specifies the 
preemptive effect, if any; (2) clearly specifies any effect on existing 
Federal law or regulation; (3) provides a clear legal standard for 
affected conduct while promoting simplification and burden reduction; 
(4) specifies the retroactive effect, if any; (5) adequately defines 
key terms; and (6) addresses other important issues affecting clarity 
and general draftsmanship under any guidelines issued by the Attorney 
General. Section 3(c) of Executive Order 12988 requires Executive 
agencies to review regulations in light of applicable standards in 
section 3(a) and section 3(b) to determine whether they are met or it 
is unreasonable to meet one or more of them. DOE has completed the 
required review and determined that, to the extent permitted by law, 
the final rule meets the relevant standards of Executive Order 12988.

I. Treasury and General Government Appropriations Act, 2001

    The Treasury and General Government Appropriations Act, 2001 (44 
U.S.C. 3516 note) provides for agencies to review most disseminations 
of information to the public under guidelines established by each 
agency pursuant to general guidelines issued by OMB. OMB's guidelines 
were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines 
were published at 67 FR 62446 (October 7, 2002). DOE has reviewed this 
final rule under the OMB and DOE guidelines and has concluded that it 
is consistent with applicable policies in those guidelines.

J. Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001) requires Federal agencies to prepare and submit to the 
OMB, a Statement of Energy Effects for any proposed significant energy 
action. A ``significant energy action'' is defined as any action by an 
agency that promulgated or is expected to lead to promulgation of a 
final rule, and that: (1) Is a significant regulatory action under 
Executive Order 12866, or any successor order; and (2) is likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy, or (3) is designated by the Administrator of OIRA as a 
significant energy action. For any proposed significant energy action, 
the agency must give a detailed statement of any adverse effects on 
energy supply, distribution, or use should the proposal be implemented, 
and of reasonable alternatives to the action and their expected 
benefits on energy supply, distribution, and use. Today's regulatory 
action will not have a significant adverse effect on the supply, 
distribution, or use of energy and is therefore not a significant 
energy action. Accordingly, DOE has not prepared a Statement of Energy 
Effects.

K. Congressional Notification

    As required by 5 U.S.C. 801, DOE will submit to Congress a report 
regarding the issuance of today's final rule prior to the effective 
date set forth at the outset of this notice. The report will state that 
it has been determined that the rule is not a ``major rule'' as defined 
by 5 U.S.C. 801(2).

IV. Approval of the Office of the Secretary

    The Secretary of Energy has approved the issuance of this final 
rule.

List of Subjects in 10 CFR Part 1010

    Conduct standards, Conflicts of interest, Ethical conduct, 
Government employees.

    Issued in Washington, DC, on November 29, 2010.
Scott Blake Harris,
General Counsel.

0
For the reasons stated in the preamble, DOE is amending chapter X of 
Title 10 of the Code of Federal Regulations as set forth below:

PART 1010--CONDUCT OF EMPLOYEES AND FORMER EMPLOYEES

0
1. The authority citation for part 1010 is revised to read as follows:


[[Page 75376]]


    Authority:  5 U.S.C. 301, 303, 7301; 5 U.S.C. App. (Ethics in 
Government Act); 5 U.S.C. App. (Inspector General 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; 5 CFR 2635.105; 18 
U.S.C. 207, 208.


0
2. The heading to Part 1010 is revised as set forth above.

0
3. Sections 1010.101 through 1010.104 are designated as Subpart A and 
the heading is added to read as set forth below:

Subpart A--Conduct of Employees

* * * * *


Sec.  1010.101  [Amended]

0
4. Section 1010.101 is amended by removing the word ``part,'' and 
adding the word ``subpart'' in its place.

0
5. A new Subpart B is added to Part 1010 to read as follows:

Subpart B--Procedures for Exemption of Scientific and Technological 
Information Communications From Post-Employment Restrictions

Sec.
1010.201 Purpose and scope.
1010.202 Definitions.
1010.203 Procedures for review and approval of requests.


Sec.  1010.201  Purpose and scope.

    (a) This subpart sets forth criteria for the types of 
communications on scientific or technological matters permitted under 
18 U.S.C. 207(j)(5) by defining the term ``scientific or technological 
information.'' This subpart also establishes the procedures for 
receiving and approving requests from former employees of the executive 
branch to make such communications to DOE.
    (b) This subpart applies to any former employee of the executive 
branch subject to the post-employment conflict of interest restrictions 
in 18 U.S.C. 207(a), (c), and (d), who wishes to communicate with DOE 
under the exemption in 18 U.S.C. 207(j)(5) for the purpose of 
furnishing scientific or technological information to DOE offices or 
officials.
    (c) This subpart does not apply to a former DOE employee's 
testimony as an expert in an adversarial proceeding in which the United 
States is a party or has a direct and substantial interest.


Sec.  1010.202  Definitions.

    For purposes of this subpart:
    (a) Agency designee means an individual serving in a position in 
DOE requiring appointment by the President of the United States with 
the advice and consent of the Senate.
    (b) Authorized communication means any transmission of scientific 
or technological information to any DOE office or official that is 
approved by DOE under Sec.  1010.203 of this subpart.
    (c) DOE means the U.S. Department of Energy.
    (d) Scientific or technological information means: Information of a 
scientific or technological character, such as technical or engineering 
information relating to the natural sciences. The exception does not 
extend to information associated with a nontechnical discipline such as 
law, economics, or political science.
    (e) Incidental references or remarks. Provided the former 
employee's communication primarily conveys information of a scientific 
or technological character, the entirety of the communication will be 
deemed made solely for the purpose of furnishing such information 
notwithstanding an incidental reference or remark:
    (1) Unrelated to the matter to which the post-employment 
restriction applies;
    (2) Concerning feasibility, risk, cost, speed of implementation, or 
other considerations when necessary to appreciate the practical 
significance of the basic scientific or technological information 
provided; or
    (3) Intended to facilitate the furnishing of scientific or 
technological information, such as those references or remarks 
necessary to determine the kind and form of information required or the 
adequacy of information already supplied.


Sec.  1010.203  Procedures for review and approval of requests.

    (a) Any former employee of the executive branch subject to the 
constraints of the post-employment restrictions of 18 U.S.C. 207(a), 
(c), and (d) who wishes to communicate scientific or technological 
information to DOE must contact the DOE office with which the former 
employee wishes to communicate and request authorization to make such 
communication. This request must be in writing and address, in detail, 
information regarding each of the factors set forth in paragraphs 
(c)(1) through (c)(6) and (c)(8) of this section.
    (b) In consultation with the Designated Agency Ethics Official 
(DAEO), the agency designee in the office with cognizance over the 
matter must advise the former employee in writing whether the proposed 
communication is an authorized communication. This authority cannot be 
delegated, except to another individual serving in a position in DOE 
requiring appointment by the President of the United States with the 
advice and consent of the Senate.
    (c) In deciding whether a proposed communication is an authorized 
communication, the agency designee receiving the request and the DAEO 
must consider the following factors:
    (1) Whether the former employee has relevant scientific or 
technical qualifications;
    (2) Whether the former employee has qualifications that are 
otherwise unavailable to both the former employee's current employer 
and DOE;
    (3) The nature of the scientific or technological information to be 
conveyed;
    (4) The former employee's position prior to termination;
    (5) The extent of the former employee's involvement in the matter 
at issue during his or her employment, including:
    (i) The former employee's involvement in the same particular matter 
involving specific parties;
    (ii) The time elapsed since the former employee's participation in 
such matter; and
    (iii) The offices within the Federal department or agency involved 
in the matter both during the former employee's period of employment in 
the executive branch and at the time the request is being made;
    (6) The existence of pending or anticipated matters before the 
Federal government from which the former employee or his or her current 
employer may financially benefit, including contract modifications, 
grant applications, and proposals; and
    (7) Whether DOE's interests would be served by allowing the 
proposed communication; and
    (8) Any other relevant information.

[FR Doc. 2010-30398 Filed 12-2-10; 8:45 am]
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