Post-Employment Conflict of Interest Restrictions; Revision of Departmental Component Designations, 12007-12009 [E8-4282]

Agencies

• Office of Government Ethics
• Government Ethics Office

[Federal Register Volume 73, Number 45 (Thursday, March 6, 2008)]
[Rules and Regulations]
[Pages 12007-12009]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-4282]



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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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