[Federal Register Volume 85, Number 231 (Tuesday, December 1, 2020)]
[Proposed Rules]
[Pages 77014-77016]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25750]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 85, No. 231 / Tuesday, December 1, 2020 / 
Proposed Rules  

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OFFICE OF GOVERNMENT ETHICS

5 CFR Part 2641

RIN 3209-AA58


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

AGENCY: Office of Government Ethics.

ACTION: Proposed rule.

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SUMMARY: The U.S. Office of Government Ethics (OGE) is issuing a 
proposed rule to revise the component designations of one agency for 
purposes of the one-year post-employment conflict of interest 
restriction for senior employees. Specifically, based on the 
recommendation of the Department of Defense, OGE is proposing to 
designate one new component to its regulations.

DATES: Written comments are invited and must be received on or before 
December 31, 2020.

ADDRESSES: You may submit comments, in writing, to OGE on this proposed 
rule, identified by RIN 3209-AA58, by any of the following methods:
    Email: [email protected]. Include the reference ``Proposed Rule 
Revising Departmental Component Designations'' in the subject line of 
the message.
    Instructions: All submissions must include OGE's agency name and 
the Regulation Identifier Number (RIN), 3209-AA58, for this proposed 
rulemaking. All comments, including attachments and other supporting 
materials, will become part of the public record and be subject to 
public disclosure. OGE may post comments on its website, www.oge.gov. 
Sensitive personal information, such as account numbers or Social 
Security numbers, should not be included. Comments generally will not 
be edited to remove any identifying or contact information.

FOR FURTHER INFORMATION CONTACT: Kimberly L. Sikora Panza, Associate 
Counsel, Office of Government Ethics, Suite 500, 1201 New York Avenue 
NW, Washington, DC 20005-3917; Telephone: (202) 482-9300; TTY: (800) 
877-8339.

SUPPLEMENTARY INFORMATION: 

I. Substantive Discussion; Addition of New Departmental Component

    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 one-year 
post-employment conflict of interest restriction for senior employees. 
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 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 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 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, of another designated component, or of any other agency or 
bureau of the parent that has not been designated. Likewise, 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.
    The Director regularly reviews the component designations listed in 
appendix B to part 2641, 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 2641.302(e)(3). 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 
of undue influence or unfair advantage based on past Government 
service, and that the component is an agency or bureau within a parent 
agency that exercises functions which are distinct and separate from 
the functions of the parent agency and from the functions of other 
components of that parent. 5 CFR 2641.302(c).
    Pursuant to the procedures prescribed in 5 CFR 2641.302(e), one 
agency has forwarded a written request to OGE to amend its listing in 
appendix B to part 2641. After carefully reviewing the requested change 
in light of the criteria in 18 U.S.C. 207(h) as implemented in 5 CFR 
2641.302(c), OGE is proposing to grant this request and amend appendix 
B as explained below.
    The Department of Defense (DoD) has requested that OGE designate 
the Defense Advanced Research Projects Agency (DARPA) in appendix B to 
part 2641 as a separate component of DoD for purposes of 18 U.S.C. 
207(c) because it exercises functions that are distinct and separate 
from the functions of the parent agency and other components. DARPA was 
created under the statutory authority of the Secretary of Defense in 
1958, see DoD Directive No. 5105.15 (Feb. 7, 1958), in response to the 
unforeseen launch of the world's first satellite by the Soviet Union. 
DARPA ``serves as the research and development (R&D) organization in 
DoD with a primary responsibility of maintaining U.S. technological 
superiority over our adversaries.'' See DoD Directive 5134.10 (May 7, 
2013, as amended Sept. 22, 2017) (outlining DARPA's roles and 
responsibilities). Directive 5134.10 provides independent authority for 
DARPA to carry out its uniquely-focused mission using its imagination 
and innovativeness to project what capabilities the military might want 
in the future, and sponsor high-risk, high payoff research to deliver

[[Page 77015]]

those capabilities. DARPA has special hiring authorities and separate 
and distinct contracting authorities that help it exercise this 
mission.
    DARPA is a small component, both in absolute terms and in relative 
terms as compared to the DoD as a whole. DARPA currently has about 220 
employees, while the DoD civilian workforce is approximately 750,000 
individuals and the entirety of DoD has almost 3 million individuals. 
Although the Director of DARPA reports to the DoD Undersecretary of 
Defense for Research and Engineering, the Director of DARPA is 
delegated broad authority and responsibility to act independently and 
with minimal supervision in carrying out the organization's mission and 
directing its research strategy and execution. Directive 5134.10 
delegates to the Director of DARPA the fiscal, contracting, and 
acquisition authority necessary to carry out the organization's 
responsibilities, as well as authority to communicate directly with 
other domestic and foreign entities. See Directive 5134.10, paragraph 
7. DARPA has a separate and distinct budget, and conducts its budgeting 
process independently of the Office of the Secretary of Defense or any 
DoD component, including decisions regarding which programs to fund 
that support the development of breakthrough technologies and 
capabilities for national security. DARPA's budget independence 
demonstrates that it does not exercise significant responsibilities 
that cut across organizational lines within DoD.
    According to DoD, designating DARPA as a separate component will 
not create the potential for undue influence or unfair advantage based 
on past government service. DARPA independently determines what R&D 
projects to pursue, and those projects are separate and unique from the 
rest of DoD and do not cut across organizational lines. Other DoD 
components do not typically get involved in DARPA's R&D work because 
the component's mission contemplates developing radically new 
technologies that do not exist at present and are not known to other 
DoD components. The typical senior employee who departs DARPA has 
worked on projects that are entirely outside of and beyond the work of 
the Office of the Secretary of Defense and other DoD components.
    OGE is proposing to grant the request of DoD and amend the agency's 
listing in appendix B to part 2641 to add DARPA as a new component for 
purposes of 18 U.S.C. 207(c). DARPA is separate and distinct from its 
parent organization and other DoD components, and given the manner in 
which DARPA works independently from other component agencies and the 
general management of the DoD, there exists no potential for the use of 
undue influence or unfair advantage based on past Government service.
    As indicated in 5 CFR 2641.302(f), a designation ``shall be 
effective on the date the rule creating the designation is published in 
the Federal Register and shall be effective as to individuals who 
terminated senior service either before, on or after that date.'' 
Initial designations in appendix B to part 2641 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 designation of DARPA made in this proposed rule would be 
effective on the date the final rule is published in the Federal 
Register.

II. Matters of Regulatory Procedure

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 proposed 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 proposed 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), this proposed rule would 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 proposed rule is not a major rule as defined in 5 U.S.C. 
chapter 8, Congressional Review of Agency Rulemaking.

Executive Orders 13563 and 12866

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select the regulatory approaches that 
maximize net benefits (including economic, environmental, public health 
and safety effects, distributive impacts, and equity). Executive Order 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
In promulgating this proposed rule, the Office of Government Ethics has 
adhered to the regulatory philosophy and the applicable principles of 
regulation set forth in Executive Orders 12866 and 13563. This proposed 
rule has not been reviewed by the Office of Management and Budget under 
Executive Order 12866 because it is not a ``significant'' regulatory 
action for the purposes of that order.

Executive Order 12988

    As Director of the Office of Government Ethics, I have reviewed 
this proposed 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 17, 2020.
Emory Rounds,
Director, Office of Government Ethics.

    Accordingly, for the reasons set forth in the preamble, the Office 
of Government Ethics proposes to amend 5 CFR part 2641, as set forth 
below:

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. Amend appendix B to part 2641 by adding the listings for the 
Department of Defense 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
    Defense Advanced Research Projects Agency (DARPA) (EFFECTIVE UPON 
PUBLICATION OF THE FINAL RULE IN THE Federal Register).
    Department of the Air Force.
    Department of the Army.
    Department of the Navy.

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    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.
* * * * *
[FR Doc. 2020-25750 Filed 11-30-20; 8:45 am]
BILLING CODE 6345-03-P