Post-Employment Conflict of Interest Regulations; Exempted Senior Employee Positions, 1-2 [2013-30668]
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Rules and Regulations
Federal Register
Vol. 79, No. 1
Thursday, January 2, 2014
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
OFFICE OF GOVERNMENT ETHICS
5 CFR Part 2641
RIN 3209–AA14
Post-Employment Conflict of Interest
Regulations; Exempted Senior
Employee Positions
AGENCY:
Office of Government Ethics
(OGE).
Final rule; revocation of
exemptions.
ACTION:
The Office of Government
Ethics is issuing this final rule to
provide notice of the revocation of
certain regulatory exemptions of senior
employee positions at the Securities and
Exchange Commission from certain
criminal post-employment restrictions.
DATES: This rule is effective without
further notice on April 2, 2014.
FOR FURTHER INFORMATION CONTACT:
Christopher J. Swartz, Assistant
Counsel, Ethics Law & Policy Branch,
Office of Government Ethics; telephone:
202–482–9300; TTY: 800–877–8339;
FAX: 202–482–9237.
SUPPLEMENTARY INFORMATION:
SUMMARY:
mstockstill on DSK4VPTVN1PROD with RULES
I. Substantive Discussion: Background
and Revocation of Exemptions for
Certain Positions
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 oneyear 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(c), a
‘‘senior employee’’ includes, inter alia,
any employee (other than an individual
covered by the ‘‘very senior employee’’
one-year restriction in 18 U.S.C. 207(d))
VerDate Mar<15>2010
17:09 Dec 31, 2013
Jkt 232001
who was employed in a position for
which the rate of pay is specified in or
fixed according to the Executive
Schedule, in a position for which the
rate of basic pay is equal to or greater
than 86.5 percent of the rate of basic pay
payable for level II of the Executive
Schedule, or in a position which is held
by an active duty commissioned officer
of the uniformed services who is serving
in a grade or rank for which the pay
grade is O–7 or above.
The representational bar of 18 U.S.C.
207(c) usually applies to all senior
positions. However, 18 U.S.C.
207(c)(2)(C) provides that the Director of
OGE may exempt any position or
category of positions from the one-year
prohibition under 18 U.S.C. 207(c) (and
consequently the prohibition of 18
U.S.C. 207(f)), if the Director
determines, after a review requested by
the department or agency concerned,
that the imposition of the restrictions
with respect to the particular position or
positions would create an undue
hardship on the department or agency
in obtaining qualified personnel to fill
such position or positions, and that
granting the waiver would not create the
potential for use of undue influence or
unfair advantage.
The Director of OGE regularly reviews
these position exemptions and, in
consultation with the department or
agency concerned, makes such
additions and deletions as are
necessary. As specified in 5 CFR
2641.301(j)(3)(ii), the Director must
respond to exemption and revocation
requests from agency ethics officials and
maintain a compilation of all exempted
positions or categories of positions.
Once an exemption has been granted,
the Designated Agency Ethics Official at
the relevant agency may, at any time,
request that the exemption be revoked.
See 5 CFR 2641.301(j)(3)(i). Under 5
CFR 2641.301(j)(4), the revocation of a
waiver becomes effective 90 days after
OGE has published notice of the
revocation in the Federal Register. If a
revocation is granted, all employees
occupying positions covered by the
exemption will become subject to the
prohibitions of 18 U.S.C. 207(c) and (f)
as of the effective date. However, any
‘‘[i]ndividual who formerly served in a
position for which a waiver of
restrictions was applicable will not
become subject to 18 U.S.C. 207(c) (or
section 207(f)) if the waiver is revoked
PO 00000
Frm 00001
Fmt 4700
Sfmt 4700
after [the employee’s] termination from
the position.’’ See 5 CFR 2641.301(j)(4)
(emphasis added).
In 1991, the Securities and Exchange
Commission (SEC) requested, and was
granted, exemptions for the positions of
Solicitor, Office of the General Counsel
and Chief Litigation Counsel, Division
of Enforcement. In 2003, the SEC
requested and was granted additional
exemptions for the position of Deputy
Chief Litigation Counsel, Division of
Enforcement, SK–17 Positions, SK–16
and lower-graded SK positions
supervised by employees in SK–17
positions, and SK–16 and lower-graded
SK positions not supervised by
employees in SK–17 positions. These
exemptions were predicated on
recruitment and retention
considerations resulting from the
implementation of a new pay system
that converted many GS–15 positions
into ‘‘senior employee’’ positions above
the statutory pay threshold.
Pursuant to the procedures prescribed
in 5 CFR 2641.301(j), in June 2013, the
SEC requested that the Director of OGE
revoke the exemptions for these
positions. In support of its request, the
SEC explained that the original bases for
these exemptions no longer existed. In
particular, the SEC indicated that it was
no longer experiencing undue hardship
in obtaining qualified personnel to fill
the covered positions. Furthermore, the
SEC indicated that discontinuing the
exemptions would create parity between
SEC employees occupying the covered
positions and employees in similar
positions at other financial regulatory
agencies who are currently subject to
the one year cooling-off prohibitions of
18 U.S.C. 207(c) and (f). For these
reasons, the SEC no longer believed
these exemptions to be necessary or
desirable. Therefore, pursuant to 5 CFR
2641.301(j), OGE granted SEC’s request,
and on October 3, 2013, published
notice in the Federal Register, at 78 FR
61153, revoking those exemptions and
amending the listing of exempted
positions maintained by OGE in
Appendix A to part 2641 of title 5.
Following publication, but prior to
the effective date, the SEC requested
that OGE withdraw and rescind its
publication of October 3, 2013, to allow
the SEC more time to effectively educate
affected employees before the
exemption revocation took effect. OGE
agreed, and on November 25, 2013, OGE
E:\FR\FM\02JAR1.SGM
02JAR1
2
Federal Register / Vol. 79, No. 1 / Thursday, January 2, 2014 / Rules and Regulations
withdrew and rescinded the notice of
revocation and final rule amending
Appendix A to part 2641 of title 5. See
78 FR 70191. In the withdrawal notice,
OGE indicated that it planned to
republish this notice and final rule in
January 2014.
Accordingly, OGE is now
republishing that notice and final rule.
OGE hereby gives notice that the abovereferenced post-employment
exemptions, granted on October 29,
1991; November 10, 2003; and
December 4, 2003, respectively, will
expire and are revoked effective on
April 2, 2014. As of the effective date,
a person occupying any one of these
positions will become subject to the
post-employment restrictions of 18
U.S.C. 207(c) and (f) if the rate of basic
pay for the position is equal to or greater
than 86.5 percent of the rate of basic pay
payable for level II of the Executive
Schedule.
As stated in 5 CFR 2641.301(j)(3)(ii),
the Director of OGE is required to
‘‘maintain a listing of positions or
categories of positions in Appendix A to
[5 CFR part 2641] for which the 18
U.S.C. 207(c) restriction has been
waived.’’ As such, Appendix A of this
part is being amended to remove
references to those SEC positions that
are no longer exempt from the
restrictions of 18 U.S.C. 207(c) and (f).
These positions include: Solicitor,
Office of General Counsel; Chief
Litigation Counsel, Division of
Enforcement; Deputy Chief Litigation
Counsel, Division of Enforcement; SK–
17 Positions; SK–16 and lower-graded
SK positions supervised by employees
in SK–17 positions; and SK–16 and
lower-graded SK positions not
supervised by employees in SK–17
positions.
chapter 6) that this final rule would not
have a significant economic impact on
a substantial number of small entities
because it primarily affects current and
former Federal executive branch
employees.
II. Matters of Regulatory Procedure
List of Subjects in 5 CFR Part 2641
Conflict of interests, Government
employees.
mstockstill on DSK4VPTVN1PROD with RULES
Administrative Procedure Act
Pursuant to the Administrative
Procedure Act (APA), 5 U.S.C. 553(b),
OGE finds good cause to waive the
notice-and-comment requirements of
the APA, as the codification of OGE’s
revocation of exempted positions is
technical in nature, and it is important
and in the public interest that the
codification of OGE’s revocation of
exempted positions be published in the
Federal Register as promptly as
possible. For these reasons, OGE is
issuing this regulation as a final rule
effective 90 days after publication.
Paperwork Reduction Act
The Paperwork Reduction Act (44
U.S.C. chapter 35) does not apply
because this regulation does not contain
information collection requirements that
require 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 5, subchapter II), this final 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.
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 is not
‘‘significant’’ under the order.
Executive Order 12988
As Director of the Office of
Government Ethics, I have reviewed this
final rule in light of section 3 of
Executive Order 12988, Civil Justice
Reform, and certify that it meets the
applicable standards provided therein.
Approved: December 18, 2013.
Walter M. Shaub, Jr.,
Director, Office of Government Ethics.
Accordingly, for the reasons set forth
in the preamble, the Office of
Government Ethics is amending part
2641 of subchapter B of chapter XVI of
title 5 of the Code of Federal
Regulations as follows:
PART 2641—POST-EMPLOYEMENT
CONFLICT OF INTEREST
RESTRICTIONS
Regulatory Flexibility Act
■
As Director of the Office of
Government Ethics, I certify under the
Regulatory Flexibility Act (5 U.S.C.
Authority: 5 U.S.C. App. (Ethics in
Government Act of 1978); 18 U.S.C. 207; E.O.
VerDate Mar<15>2010
18:52 Dec 31, 2013
Jkt 232001
1. The authority citation for part 2641
continues to read as follows:
PO 00000
Frm 00002
Fmt 4700
Sfmt 4700
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.
Appendix A to Part 2641 [Amended]
2. Appendix A to part 2641 is
amended by removing the listing for the
Securities and Exchange Commission
(and all positions thereunder).
■
[FR Doc. 2013–30668 Filed 12–31–13; 8:45 am]
BILLING CODE 6345–03–P
DEPARTMENT OF HOMELAND
SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS–2013–0041]
Privacy Act of 1974: Implementation of
Exemptions; Department of Homeland
Security Transportation Security
Administration, DHS/TSA–021, TSA
Pre✓TM Application Program System
of Records
Department of Homeland
Security.
ACTION: Final rule.
AGENCY:
The Department of Homeland
Security is issuing a final rule to amend
its regulations to exempt portions of a
newly established system of records
titled, ‘‘Department of Homeland
Security/Transportation Security
Administration–021, TSA Pre✓TM
Application Program System of
Records,’’ from one or more provisions
of the Privacy Act because of criminal,
civil, and administrative enforcement
requirements.
SUMMARY:
DATES:
Effective January 2, 2014.
For
general questions please contact: Peter
Pietra, TSA Privacy Officer, TSA–036,
601 South 12th Street, Arlington, VA
20598–6036; or email at TSAprivacy@
dhs.gov. For privacy questions, please
contact: Karen L. Neuman, (202) 343–
1717, Chief Privacy Officer, Privacy
Office, Department of Homeland
Security, Washington, DC 20528.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
Background
The Department of Homeland
Security (DHS)/Transportation Security
Administration (TSA) published a
Notice of Proposed Rulemaking (NPRM)
in the Federal Register, 78 FR 55657
(Sept. 11, 2013), proposing to exempt
portions of the newly established ‘‘DHS/
TSA–021, TSA Pre✓TM Application
Program System of Records’’ from one
or more provisions of the Privacy Act
E:\FR\FM\02JAR1.SGM
02JAR1
Agencies
[Federal Register Volume 79, Number 1 (Thursday, January 2, 2014)]
[Rules and Regulations]
[Pages 1-2]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-30668]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 79, No. 1 / Thursday, January 2, 2014 / Rules
and Regulations
[[Page 1]]
-----------------------------------------------------------------------
OFFICE OF GOVERNMENT ETHICS
5 CFR Part 2641
RIN 3209-AA14
Post-Employment Conflict of Interest Regulations; Exempted Senior
Employee Positions
AGENCY: Office of Government Ethics (OGE).
ACTION: Final rule; revocation of exemptions.
-----------------------------------------------------------------------
SUMMARY: The Office of Government Ethics is issuing this final rule to
provide notice of the revocation of certain regulatory exemptions of
senior employee positions at the Securities and Exchange Commission
from certain criminal post-employment restrictions.
DATES: This rule is effective without further notice on April 2, 2014.
FOR FURTHER INFORMATION CONTACT: Christopher J. Swartz, Assistant
Counsel, Ethics Law & Policy Branch, Office of Government Ethics;
telephone: 202-482-9300; TTY: 800-877-8339; FAX: 202-482-9237.
SUPPLEMENTARY INFORMATION:
I. Substantive Discussion: Background and Revocation of Exemptions for
Certain Positions
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(c), a ``senior employee''
includes, inter alia, any employee (other than an individual covered by
the ``very senior employee'' one-year restriction in 18 U.S.C. 207(d))
who was employed in a position for which the rate of pay is specified
in or fixed according to the Executive Schedule, in a position for
which the rate of basic pay is equal to or greater than 86.5 percent of
the rate of basic pay payable for level II of the Executive Schedule,
or in a position which is held by an active duty commissioned officer
of the uniformed services who is serving in a grade or rank for which
the pay grade is O-7 or above.
The representational bar of 18 U.S.C. 207(c) usually applies to all
senior positions. However, 18 U.S.C. 207(c)(2)(C) provides that the
Director of OGE may exempt any position or category of positions from
the one-year prohibition under 18 U.S.C. 207(c) (and consequently the
prohibition of 18 U.S.C. 207(f)), if the Director determines, after a
review requested by the department or agency concerned, that the
imposition of the restrictions with respect to the particular position
or positions would create an undue hardship on the department or agency
in obtaining qualified personnel to fill such position or positions,
and that granting the waiver would not create the potential for use of
undue influence or unfair advantage.
The Director of OGE regularly reviews these position exemptions
and, in consultation with the department or agency concerned, makes
such additions and deletions as are necessary. As specified in 5 CFR
2641.301(j)(3)(ii), the Director must respond to exemption and
revocation requests from agency ethics officials and maintain a
compilation of all exempted positions or categories of positions. Once
an exemption has been granted, the Designated Agency Ethics Official at
the relevant agency may, at any time, request that the exemption be
revoked. See 5 CFR 2641.301(j)(3)(i). Under 5 CFR 2641.301(j)(4), the
revocation of a waiver becomes effective 90 days after OGE has
published notice of the revocation in the Federal Register. If a
revocation is granted, all employees occupying positions covered by the
exemption will become subject to the prohibitions of 18 U.S.C. 207(c)
and (f) as of the effective date. However, any ``[i]ndividual who
formerly served in a position for which a waiver of restrictions was
applicable will not become subject to 18 U.S.C. 207(c) (or section
207(f)) if the waiver is revoked after [the employee's] termination
from the position.'' See 5 CFR 2641.301(j)(4) (emphasis added).
In 1991, the Securities and Exchange Commission (SEC) requested,
and was granted, exemptions for the positions of Solicitor, Office of
the General Counsel and Chief Litigation Counsel, Division of
Enforcement. In 2003, the SEC requested and was granted additional
exemptions for the position of Deputy Chief Litigation Counsel,
Division of Enforcement, SK-17 Positions, SK-16 and lower-graded SK
positions supervised by employees in SK-17 positions, and SK-16 and
lower-graded SK positions not supervised by employees in SK-17
positions. These exemptions were predicated on recruitment and
retention considerations resulting from the implementation of a new pay
system that converted many GS-15 positions into ``senior employee''
positions above the statutory pay threshold.
Pursuant to the procedures prescribed in 5 CFR 2641.301(j), in June
2013, the SEC requested that the Director of OGE revoke the exemptions
for these positions. In support of its request, the SEC explained that
the original bases for these exemptions no longer existed. In
particular, the SEC indicated that it was no longer experiencing undue
hardship in obtaining qualified personnel to fill the covered
positions. Furthermore, the SEC indicated that discontinuing the
exemptions would create parity between SEC employees occupying the
covered positions and employees in similar positions at other financial
regulatory agencies who are currently subject to the one year cooling-
off prohibitions of 18 U.S.C. 207(c) and (f). For these reasons, the
SEC no longer believed these exemptions to be necessary or desirable.
Therefore, pursuant to 5 CFR 2641.301(j), OGE granted SEC's request,
and on October 3, 2013, published notice in the Federal Register, at 78
FR 61153, revoking those exemptions and amending the listing of
exempted positions maintained by OGE in Appendix A to part 2641 of
title 5.
Following publication, but prior to the effective date, the SEC
requested that OGE withdraw and rescind its publication of October 3,
2013, to allow the SEC more time to effectively educate affected
employees before the exemption revocation took effect. OGE agreed, and
on November 25, 2013, OGE
[[Page 2]]
withdrew and rescinded the notice of revocation and final rule amending
Appendix A to part 2641 of title 5. See 78 FR 70191. In the withdrawal
notice, OGE indicated that it planned to republish this notice and
final rule in January 2014.
Accordingly, OGE is now republishing that notice and final rule.
OGE hereby gives notice that the above-referenced post-employment
exemptions, granted on October 29, 1991; November 10, 2003; and
December 4, 2003, respectively, will expire and are revoked effective
on April 2, 2014. As of the effective date, a person occupying any one
of these positions will become subject to the post-employment
restrictions of 18 U.S.C. 207(c) and (f) if the rate of basic pay for
the position is equal to or greater than 86.5 percent of the rate of
basic pay payable for level II of the Executive Schedule.
As stated in 5 CFR 2641.301(j)(3)(ii), the Director of OGE is
required to ``maintain a listing of positions or categories of
positions in Appendix A to [5 CFR part 2641] for which the 18 U.S.C.
207(c) restriction has been waived.'' As such, Appendix A of this part
is being amended to remove references to those SEC positions that are
no longer exempt from the restrictions of 18 U.S.C. 207(c) and (f).
These positions include: Solicitor, Office of General Counsel; Chief
Litigation Counsel, Division of Enforcement; Deputy Chief Litigation
Counsel, Division of Enforcement; SK-17 Positions; SK-16 and lower-
graded SK positions supervised by employees in SK-17 positions; and SK-
16 and lower-graded SK positions not supervised by employees in SK-17
positions.
II. Matters of Regulatory Procedure
Administrative Procedure Act
Pursuant to the Administrative Procedure Act (APA), 5 U.S.C.
553(b), OGE finds good cause to waive the notice-and-comment
requirements of the APA, as the codification of OGE's revocation of
exempted positions is technical in nature, and it is important and in
the public interest that the codification of OGE's revocation of
exempted positions be published in the Federal Register as promptly as
possible. For these reasons, OGE is issuing this regulation as a final
rule effective 90 days after publication.
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 final rule
would not have a significant economic impact on a substantial number of
small entities because it primarily affects current and former Federal
executive branch employees.
Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply
because this regulation does not contain information collection
requirements that require 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 5, subchapter II), this final 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.
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 is
not ``significant'' under the order.
Executive Order 12988
As Director of the Office of Government Ethics, I have reviewed
this final 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: December 18, 2013.
Walter M. Shaub, Jr.,
Director, Office of Government Ethics.
Accordingly, for the reasons set forth in the preamble, the Office
of Government Ethics is amending part 2641 of subchapter B of chapter
XVI of title 5 of the Code of Federal Regulations as follows:
PART 2641--POST-EMPLOYEMENT 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.
Appendix A to Part 2641 [Amended]
0
2. Appendix A to part 2641 is amended by removing the listing for the
Securities and Exchange Commission (and all positions thereunder).
[FR Doc. 2013-30668 Filed 12-31-13; 8:45 am]
BILLING CODE 6345-03-P