Rules Regarding Equal Opportunity, 67641-67644 [05-22223]
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67641
Rules and Regulations
Federal Register
Vol. 70, No. 215
Tuesday, November 8, 2005
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 RESERVE SYSTEM
12 CFR Part 268
[Docket No. OP–1239]
Rules Regarding Equal Opportunity
Board of Governors of the
Federal Reserve System.
ACTION: Interim rule with request for
comments.
AGENCY:
SUMMARY: The Board of Governors of the
Federal Reserve System (the Board) is
soliciting comments on an interim rule
that would amend the section of its
Rules Regarding Equal Opportunity
(EEO Rules) which governs the
employment of persons who are not
United States citizens consistent with
the Board’s requirements for the
security of its information. The
amendments would clarify the
limitations on access to sensitive
information for non-citizen employees.
The amendment, which concerns the
internal management of the Board, is
issued as an immediately effective
interim rule, with opportunity for
public comment, to ensure that hiring
decisions facing the Board can be made
as soon as possible.
DATES: This interim rule is effective
November 8, 2005.
Applicability Date: This interim rule
is applicable to all decisions on access
to Sensitive Information of the Board as
of November 8, 2005.
Comment Date: Submit comments on
or before January 9, 2006.
ADDRESSES: You may submit comments,
identified by Docket No. OP–1239, by
any of the following methods:
• Agency Web site: https://
www.federalreserve.gov. Follow the
instructions for submitting comments at
https://www.federalreserve.gov/
generalinfo/foia/ProposedRegs.cfm.
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
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• E-mail:
regs.comments@federalreserve.gov.
Include docket number in the subject
line of the message.
• FAX: 202/452–3819 or 202/452–
3102.
• Mail: Jennifer J. Johnson, Secretary,
Board of Governors of the Federal
Reserve System, 20th Street and
Constitution Avenue, NW., Washington,
DC 20551.
All public comments are available from
the Board’s web site at
www.federalreserve.gov/generalinfo/
foia/ProposedRegs.cfm as submitted,
except as necessary for technical
reasons. Accordingly, your comments
will not be edited to remove any
identifying or contact information.
Public comments may also be viewed
electronically or in paper in Room MP–
500 of the Board’s Martin Building (20th
and C Streets, NW.) between 9 a.m. and
5 p.m. on weekdays.
FOR FURTHER INFORMATION CONTACT:
Alicia S. Foster, Senior Counsel (202–
452–5289), Legal Division, Board of
Governors of the Federal Reserve
System, 20th Street and Constitution
Avenue N.W., Washington, D.C., 20551.
For users of Telecommunications
Device for the Deaf (‘‘TDD’’) only,
contact 202/263–4869.
SUPPLEMENTARY INFORMATION:
The Board proposes to amend
§ 268.205 of its Rules Regarding Equal
Opportunity (12 CFR 268.205),
governing the employment of persons
who are not United States citizens in
accordance with the Board’s security
requirements. The amendments are
effective immediately, subject to
revision based on public comment.
Currently, § 268.205 permits the
employment of non-citizens in positions
that do not require access to sensitive
information, subject to a preference for
citizens over equally qualified noncitizens. Positions that require access to
sensitive information currently are
reserved for United States citizens or
‘‘intending citizens’’ (that is, noncitizens seeking U.S. citizenship). Under
the existing § 268.205, ‘‘sensitive
information’’ is defined to mean—(1)
Information of the Federal Open Market
Committee (FOMC); (2) national
security classified information; and (3)
confidential supervisory information of
the Board.
The framers of the Federal Reserve
Act made special provision for the
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Board to be free to hire staff
independent of other provisions of law
governing the federal government
service in order to ensure that the Board
is able to hire the highest possible
quality of staff to obtain the ‘‘special
talent’’ it needs to carry out its
important responsibilities. See,
comments of Senators Owen and Reed,
51 Cong. Rec. 1138, 1141 (1913). In
recent years, the Board, like employers
throughout the United States, has been
having greater difficulty identifying
qualified United States citizens,
nationals, or ‘‘intending citizens’’ as
candidates for positions in a number of
important job families. In particular, the
percentage of Ph.D economists
graduating from U.S. universities who
are citizens or permanent residents has
declined steadily from 73 percent in
1980, to 54 percent in 1990, to 43
percent in 2001. In order to perform its
statutory duties to implement monetary
policy and serve as the lender of last
resort (as well as its other statutory
responsibilities), the Board must hire a
significant number of Ph.D economists.
The shrinking pool of graduates with
Ph.D.’s in economics and other needed
skills who are U.S. citizens, nationals,
or ‘‘intending citizens’’ has prompted
the Board to reconsider its hiring
policies.
To address the diminishing number of
available graduates with Ph.Ds in
economics and other needed skills who
are U.S. citizens, the Board proposes to
revise its policy regarding hiring for
positions that require access to sensitive
information. This will allow the Board
to hire qualified non-citizens in certain
positions of importance to the Board’s
duties and for which a growing
proportion of qualified candidates in the
applicant pool are non-citizens.
Currently, the Board does not hire
individuals who are non-citizens into
positions that require access to certain
types of sensitive information unless the
non-citizen intends to obtain and does,
in fact, seek U.S. citizenship. The Board
proposes to amend its rule to allow it to
hire non-citizens without intention of
becoming U.S. citizens into positions
that require access to sensitive FOMC
information in certain circumstances.
The Board does not propose to change
its policy governing access to national
security information or confidential
supervisory information. Moreover,
while the Board’s rule governs hiring,
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access to FOMC information is
ultimately limited by the rules of the
FOMC.
The interim rule would retain the
Board’s preference for U.S. citizens and
U.S. nationals over equally qualified
non-citizens. Under both the current
and interim rule, U.S. citizens, U.S.
nationals, and intending citizens 1 (all of
whom are now referred to as ‘‘Protected
Individuals’’) may be hired into a
position requiring access to sensitive
information. The interim rule focuses
only on non-citizens who do not intend
to obtain U.S. citizenship and, in
particular, on the hiring of these noncitizens into positions requiring access
to FOMC information.
For purposes of hiring individuals
into positions that require access to
FOMC information, the interim rule
would distinguish between non-citizens
from a country on the Country List
contained in the annual federal
appropriations laws specifying
countries, including a general category
of ‘‘countries allied with the United
States in a current defense effort,’’
whose citizens are eligible to be hired as
federal employees using appropriated
funds and non-citizens from a country
that is not on the Country List.2 Because
the Board’s funds are not appropriated,
the Board is not subject to this
limitation on hiring. However, Congress
periodically affirms that other
government agencies may use
appropriated funds to hire non-citizens
from countries on the Country List. The
rule uses the term ‘‘Country List’’ as a
common point of reference.
Under the interim rule, the Board may
hire into a position that requires access
to Class III or Class II FOMC information
a non-citizen who does not intend to
obtain U.S. citizenship and who is from
a country that is on the Country List.3
In addition, if he or she meets three
conditions set forth in the rule, that
person may be granted access to Class
I FOMC information. Those conditions
are: (1) The employee’s Division
Director recommends the employee be
given access to Class I FOMC
information; (2) the employee has
resided in the United States for at least
six years and has been employed for at
least two years with the Board and/or
1 An intending citizen is an individual who is a
lawfully admitted permanent resident alien,
refugee, or asylum grantee and who has evidenced
an intention to become a U.S. citizen.
2 The appropriations ban that contains the
Country List is codified at 5 U.S.C. 3101 note.
Which countries are considered to be ‘‘allied with
the U.S. in a current defense effort,’’ is a decision
made by the Department of State, Office of the
Assistant Legal Adviser for Treaty Affairs.
3 FOMC information is classified as Class III, II,
and I information, in increasing order of sensitivity.
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with one or more of the Reserve Banks;
and (3) the employee has passed a
background investigation acceptable to
the Board. If the Country List changes so
that the employee’s country is no longer
on the Country List, the employee’s
access to Class II FOMC information
would not be affected by the change in
the Country List. Similarly, the
employee would continue to be eligible
for access to Class I information and
may be granted such access if he or she
meets the remaining conditions outlined
above for employees from a country on
the Country List.
Under the interim rule, the Board may
hire into a position that requires access
to Class III FOMC information a person
who is a non-citizen without intention
of becoming a U.S. citizen and who is
from a country that is not on the
Country List. Upon meeting the three
conditions discussed above, a noncitizen from such a country may also be
granted access to Class II information.
However, the Board would not provide
access to Class I information to a noncitizen from a country that is not on the
Country List.
The interim rule does not change
access by a non-citizen to confidential
supervisory information or classified
information. As result, the existing
limitations on who may have access to
this information would be continued.
Beyond the changes discussed above,
the interim rule includes a more
comprehensive definition of ‘‘FOMC
information’’ that contains a description
of the three internal security
designations that apply to this
information. The interim rule also
replaces the citation to Executive Order
11356 with the citation to Executive
Order 12958 entitled, ‘‘Classified
National Security Information,’’ as this
executive order, and its amendments,
control what information is considered
classified. The definition of
‘‘confidential supervisory information’’
remains unchanged.
The interim rule also separately
addresses what access is applicable to
each of the three types of sensitive
information, i.e., FOMC information,
classified information, and confidential
supervisory information. For example,
as discussed above, the interim rule
provides new parameters for access that
are applicable only to FOMC
information. The rule would also
change the present language on access
to classified information to provide that
access is determined by the applicable
executive orders and amendments. This
more general reference incorporates the
current rule’s exception for hiring a
non-citizen for a position requiring
access to classified information if he or
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she is able to obtain a security
clearance. Further, with respect to
confidential supervisory information,
the interim rule would specify that
access to this information is limited to
Protected Individuals (formerly citizens,
nationals and intending citizens) with a
need to know employed by the Board or
by a Federal Reserve Bank.
The interim rule would also update
some of the terminology used in the
current rule. In this respect, the interim
rule would substitute the term
‘‘Protected Individual’’ for ‘‘U.S.
citizens and intending citizens.’’ The
term ‘‘Protected Individual’’ covers U.S.
citizens, U.S. nationals, and aliens
meeting the requirements of 8 U.S.C.
1324(a)(3)(B) who have filed a
declaration of intention to become a
citizen of the United States. This more
inclusive term is consistent with
existing immigration law, which no
longer uses the term ‘‘intending citizen’’
but uses instead the term ‘‘Protected
Individual.’’
Further, where the current rule refers
only to ‘‘U.S. citizens,’’ the interim rule
would add the term ‘‘national’’ to make
clear that both U.S. citizens and U.S.
nationals are, in fact, similarly treated.
The term ‘‘national’’ refers to certain
individuals who are not citizens of the
U.S. and typically are born in or are
descendants of individuals in the
outlying possessions of the U.S. Thus,
the interim rule provides that the hiring
preference is a preference for U.S.
citizens and U.S. nationals over equally
qualified non-citizens.
The Board also proposes to add a
definition of ‘‘employee’’ to clarify the
coverage of the rule and a definition of
‘‘national.’’ The interim rule includes a
revised definition of ‘‘non-citizen’’ that
more accurately reflects its meaning.
This rule relates solely to matters of
agency management or personnel, and,
therefore, is not subject to the public
notice and comment provisions of the
Administrative Procedures Act, 5 U.S.C.
553(a)(2). However, the Board has in the
past found public comment on this
matter to be helpful and invites
comment on this rule. While allowing
comment, the Board has determined
that it is unnecessary, and would be
impracticable, to defer the effective date
of this action until after notice and after
public comments have been received
and considered (5 U.S.C. 553(d)(3)).
Issuance of this rule as an interim rule
is appropriate, in any event, because the
rule concerns only the internal
management and personnel of the Board
and is not subject to statutory delay. In
addition, the Board is facing immediate
hiring decisions that would be subject to
this rule. The Board believes that
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issuance of the regulation as an interim
rule is necessary for the Board to
conduct its internal management in an
expeditious and efficient manner. The
Board will consider all public
comments received and make changes
in its procedures based on those
comments where appropriate. On these
bases, the Board has determined that
good cause exists to make this action
effective immediately. As this rule
concerns only agency management or
personnel, it is not a rule subject to the
Congressional Review Act (CRA), 5
U.S.C. 804(3)(B), and therefore an
analysis under the CRA is not required.
Regulatory Flexibility Act Analysis
Pursuant to section 605(b) of the
Regulatory Flexibility Act (Pub. L. 96–
354, 5 U.S.C. 601 et seq.), the Board
believes that this rule will not have a
significant economic impact on a
substantial number of small entities.
This rule governs the Board’s dealings
with its employees and applicants for
employment, and would not affect small
entities as defined for purposes of the
Regulatory Flexibility Act. Accordingly,
a regulatory flexibility analysis is not
required.
Paperwork Reduction Act
In accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C. ch.
3506; 5 CFR 1320 Appendix A.1), the
Board reviewed the proposal under the
authority delegated to the Board by the
Office of Management and Budget. No
collections of information pursuant to
the Paperwork Reduction Act are
contained in this proposal.
Plain Language
Section 722 of the Gramm-LeachBliley Act requires each federal banking
agency to use plain language in all rules
published after January 1, 2000. In light
of this requirement, the Board has
sought to present the interim rule in a
simple and straightforward manner. The
Board invites comment on whether the
Board could take additional steps to
make the rule easier to understand.
List of Subjects in 12 CFR Part 268
Administrative practice and
procedure, Aged, Civil rights, Equal
employment opportunity, Federal
buildings and facilities, Federal Reserve
System, Government employees,
Individuals with disabilities, Religious
discrimination, Sex discrimination,
Wages.
Authority and Issuance
For the reasons set out in the
preamble, the Board amends 12 CFR
part 268 as follows:
I
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PART 268—RULES REGARDING
EQUAL OPPORTUNITY
1. The authority citation for part 268
continues to read as follows:
I
Authority: 12 U.S.C. 244 and 248 (i), (k),
and (l).
I
2. Revise 268.205 to read as follows
§ 268.205 Employment of aliens; Access to
sensitive information
(a) Definitions. The definitions
contained in this paragraph (a) apply
only to this section:
(1) Classified Information means
information that is classified for
national security purposes under
Executive Order No. 12958, entitled
‘‘Classified National Security
Information,’’ including any
amendments or superseding orders that
the President of the United States may
issue from time to time.
(2) Confidential Supervisory
Information means confidential
supervisory information of the Board, as
defined in 12 CFR 261.2(c).
(3) Country List refers to the list
contained in the annual federal
appropriations laws of specific
countries, including a general category
of ‘‘countries allied with the United
States in a current defense effort,’’ and
the particular Non-Citizens from those
countries who are eligible to be hired as
Federal employees in the excepted
service or in the senior executive service
and be paid by appropriated funds. The
appropriation ban is codified at 5 U.S.C.
3101 note. The list of eligible countries
and Non-Citizens is subject to legislative
and other change.
(4) Employee means an individual
who works full-time or part-time and is
appointed into Board service for a
period of more than 90 days. The term
‘‘employee’’ does not include members
of the Board.
(5) FOMC Information means
confidential information of the Federal
Open Market Committee (FOMC)
regardless of the form or format in
which it is created, conveyed, or
maintained. FOMC information
includes information derived from
confidential FOMC materials. Three
internal security designations, which
are subject to change by the FOMC,
apply to FOMC Information as follows:
(i) Class I FOMC generally applies to
materials containing policymaker input,
such as that related to monetary policy
decisions at meetings, views expressed
by policy makers on future policy, and
identification of meeting participants
who express particular views. Examples
of Class I FOMC Information include,
but are not limited to, the ‘‘Bluebook,’’
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drafts of meeting minutes, unreleased
meeting transcripts, documents
reflecting the preparation of semiannual forecasts and related testimony,
and certain sensitive internal
memorandums and reports.
(ii) Class II FOMC covers information
that is less sensitive than Class I FOMC.
This designation generally applies to
staff forecasts prepared for the FOMC
and to information about open market
operations. Examples of Class II FOMC
Information include, but are not limited
to, Part I of the ‘‘Greenbook,’’ reports of
the Manager on domestic and foreign
open market operations, and other
materials on economic and financial
developments.
(iii) Class III FOMC covers
information that is less sensitive than
either Class II or Class I. This
designation generally applies to
background information supporting
policy discussions and includes, but is
not limited to, Part II of the Greenbook.
(6) National refers to any individual
who meets the requirements described
in 8 U.S.C. 1408.
(7) Non-Citizen refers to any
individual who is not a citizen (by birth
or naturalization) of the United States.
(8) Protected Individual means—
(i) A citizen or National of the United
States, or
(ii) An alien who:
(A) Meets the conditions set forth in
8 U.S.C. 1324b(a)(3)(B), as amended,
and
(B) Has filed with the Board or the
appropriate Federal Reserve Bank a
declaration of intention to become a
citizen of the United States.
(9) Sensitive Information means
FOMC Information; Classified
Information; and Confidential
Supervisory Information.
(b) Hiring.
(1) Prohibition against hiring
unauthorized aliens. An individual is
eligible for employment with the Board
only if he or she satisfies the
requirements of Section 101 of the
Immigration Reform and Control Act of
1986, 8 U.S.C. 1324a.
(2) Preference. Consistent with
applicable law, where two applicants
for employment at the Board are equally
qualified for a position, the Board shall
prefer the citizen or National of the
United States over the equally qualified
Non-Citizen.
(3) Protected Individuals access to
Sensitive Information. The Board may
hire a person to a position that requires
access to Sensitive Information if the
person is a Protected Individual.
(4) Non-Citizens access to Sensitive
Information. The Board shall not hire a
Non-Citizen, other than a Protected
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Individual, into a position that requires
access to Sensitive Information except
in accordance with paragraph (c) below.
(c) Access to Sensitive Information.
(1) Generally. The Board will grant
access to Sensitive Information only in
accordance with the Board’s rules and
policies regarding access to Sensitive
Information and, if applicable, the rules
and policies of the FOMC.
(2) FOMC Information.
(i) Access by a Non-Citizen from a
country on the Country List. An
Employee, other than a Protected
Individual, who is a Non-Citizen from a
country that is on the Country List on
the date the Employee begins
employment with the Federal Reserve
System shall be granted access to Class
I FOMC Information only upon the
recommendation of the Employee’s
Division Director after six years of
residence in the United States, at least
two of which include satisfactory
employment by the Board and/or one or
more of the Federal Reserve Banks, and
a background investigation acceptable to
the Board. If the Employee’s country is
deleted from the Country List after the
date the Employee begins employment
with the Federal Reserve System, the
Employee’s access to Class II FOMC
information will not be affected by the
change in the Country List. Similarly,
the Employee would continue to be
eligible for access to Class I information
and may be granted such access if he or
she meets the remaining conditions
outlined above for employees from a
country on the Country List.
(ii) Access by a Non-Citizen from a
country not on the Country List. An
Employee, other than a Protected
Individual, who, on the date the
Employee begins employment with the
Federal Reserve System, is a NonCitizen from a country that is not on the
Country List: (A) Shall not be granted
access to Class I FOMC Information, and
(B) shall be granted access to Class II
FOMC Information only upon the
recommendation of the Employee’s
Division Director after six years of
residence in the United States, at least
two of which include satisfactory
employment by the Board and/or one or
more of the Federal Reserve Banks, and
a background investigation acceptable to
the Board.
(3) Classified Information. Access to
Classified Information is limited to
those persons who are permitted access
to Classified Information pursuant to the
applicable executive orders and any
subsequent amendments or superseding
orders that the President of the United
States may issue from time to time.
(4) Confidential Supervisory
Information. Access to Confidential
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Supervisory Information is limited to
Protected Individuals with a need to
know employed by the Board or by a
Federal Reserve Bank.
By order of the Board of Governors of the
Federal Reserve System.
Dated: November 2, 2005.
Jennifer J. Johnson,
Secretary of the Board.
[FR Doc. 05–22223 Filed 11–7–05; 8:45 am]
BILLING CODE 6210–01–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2005–21975; Directorate
Identifier 2005–NM–122–AD; Amendment
39–14365; AD 2005–23–07]
RIN 2120–AA64
Airworthiness Directives; Boeing
Model 727 Airplanes
Federal Aviation
Administration (FAA), Department of
Transportation (DOT).
ACTION: Final rule.
AGENCY:
SUMMARY: The FAA is adopting a new
airworthiness directive (AD) for all
Boeing Model 727 airplanes. This AD
requires revising the Limitations section
of the airplane flight manual to prohibit
resetting a tripped circuit breaker for a
fuel pump. This AD results from fuel
system reviews conducted by the
manufacturer. We are issuing this AD to
prohibit the resetting of a tripped circuit
breaker for a fuel pump, which could
allow an electrical fault to override the
protective features of the circuit breaker,
and could result in sparks inside the
fuel tank, ignition of fuel vapors, and
consequent fire or explosion.
DATES: This AD becomes effective
December 13, 2005.
ADDRESSES: You may examine the AD
docket on the Internet at https://
dms.dot.gov or in person at the Docket
Management Facility, U.S. Department
of Transportation, 400 Seventh Street,
SW., Nassif Building, room PL–401,
Washington, DC.
Contact Boeing Commercial
Airplanes, P.O. Box 3707, Seattle,
Washington 98124–2207, for service
information identified in this AD.
FOR FURTHER INFORMATION CONTACT:
Sulmo Mariano, Aerospace Engineer,
Propulsion Branch, ANM–140S, FAA,
Seattle Aircraft Certification Office,
1601 Lind Avenue, SW., Renton,
Washington 98055–4056; telephone
(425) 917–6501; fax (425) 917–6590.
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SUPPLEMENTARY INFORMATION:
Examining the Docket
You may examine the airworthiness
directive (AD) docket on the Internet at
https://dms.dot.gov or in person at the
Docket Management Facility office
between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
The Docket Management Facility office
(telephone (800) 647–5227) is located on
the plaza level of the Nassif Building at
the street address stated in the
ADDRESSES section.
Discussion
The FAA issued a notice of proposed
rulemaking (NPRM) to amend 14 CFR
part 39 to include an AD that would
apply to all Boeing Model 727 airplanes.
That NPRM was published in the
Federal Register on July 29, 2005 (70 FR
43802). That NPRM proposed to require
revising the Limitations section of the
airplane flight manual to prohibit
resetting a tripped circuit breaker for a
fuel pump.
Comments
We provided the public the
opportunity to participate in the
development of this AD. We have
considered the one comment received.
The commenter supports the NPRM.
Clarification of Alternative Method of
Compliance (AMOC) Paragraph
We have revised this action to clarify
the appropriate procedure for notifying
the principal inspector before using any
approved AMOC on any airplane to
which the AMOC applies.
Conclusion
We have carefully reviewed the
available data, including the comment
received, and determined that air safety
and the public interest require adopting
the AD with the change described
previously. We have determined that
this change will neither increase the
economic burden on any operator nor
increase the scope of the AD.
Costs of Compliance
There are about 600 airplanes of the
affected design in the worldwide fleet.
This AD affects about 300 airplanes of
U.S. registry. The action in this AD
takes about 1 work hour per airplane, at
an average labor rate of $65 per work
hour. Based on these figures, the
estimated cost of the AD for U.S.
operators is $19,500, or $65 per
airplane.
Authority for This Rulemaking
Title 49 of the United States Code
specifies the FAA’s authority to issue
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]]>Agencies
[Federal Register Volume 70, Number 215 (Tuesday, November 8, 2005)]
[Rules and Regulations]
[Pages 67641-67644]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-22223]
========================================================================
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.
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Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 /
Rules and Regulations
[[Page 67641]]
FEDERAL RESERVE SYSTEM
12 CFR Part 268
[Docket No. OP-1239]
Rules Regarding Equal Opportunity
AGENCY: Board of Governors of the Federal Reserve System.
ACTION: Interim rule with request for comments.
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SUMMARY: The Board of Governors of the Federal Reserve System (the
Board) is soliciting comments on an interim rule that would amend the
section of its Rules Regarding Equal Opportunity (EEO Rules) which
governs the employment of persons who are not United States citizens
consistent with the Board's requirements for the security of its
information. The amendments would clarify the limitations on access to
sensitive information for non-citizen employees.
The amendment, which concerns the internal management of the Board,
is issued as an immediately effective interim rule, with opportunity
for public comment, to ensure that hiring decisions facing the Board
can be made as soon as possible.
DATES: This interim rule is effective November 8, 2005.
Applicability Date: This interim rule is applicable to all
decisions on access to Sensitive Information of the Board as of
November 8, 2005.
Comment Date: Submit comments on or before January 9, 2006.
ADDRESSES: You may submit comments, identified by Docket No. OP-1239,
by any of the following methods:
Agency Web site: https://www.federalreserve.gov. Follow the
instructions for submitting comments at https://www.federalreserve.gov/
generalinfo/foia/ProposedRegs.cfm.
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail: regs.comments@federalreserve.gov. Include docket
number in the subject line of the message.
FAX: 202/452-3819 or 202/452-3102.
Mail: Jennifer J. Johnson, Secretary, Board of Governors
of the Federal Reserve System, 20th Street and Constitution Avenue,
NW., Washington, DC 20551.
All public comments are available from the Board's web site at
www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm as submitted,
except as necessary for technical reasons. Accordingly, your comments
will not be edited to remove any identifying or contact information.
Public comments may also be viewed electronically or in paper in Room
MP-500 of the Board's Martin Building (20th and C Streets, NW.) between
9 a.m. and 5 p.m. on weekdays.
FOR FURTHER INFORMATION CONTACT: Alicia S. Foster, Senior Counsel (202-
452-5289), Legal Division, Board of Governors of the Federal Reserve
System, 20th Street and Constitution Avenue N.W., Washington, D.C.,
20551. For users of Telecommunications Device for the Deaf (``TDD'')
only, contact 202/263-4869.
SUPPLEMENTARY INFORMATION:
The Board proposes to amend Sec. 268.205 of its Rules Regarding
Equal Opportunity (12 CFR 268.205), governing the employment of persons
who are not United States citizens in accordance with the Board's
security requirements. The amendments are effective immediately,
subject to revision based on public comment.
Currently, Sec. 268.205 permits the employment of non-citizens in
positions that do not require access to sensitive information, subject
to a preference for citizens over equally qualified non-citizens.
Positions that require access to sensitive information currently are
reserved for United States citizens or ``intending citizens'' (that is,
non-citizens seeking U.S. citizenship). Under the existing Sec.
268.205, ``sensitive information'' is defined to mean--(1) Information
of the Federal Open Market Committee (FOMC); (2) national security
classified information; and (3) confidential supervisory information of
the Board.
The framers of the Federal Reserve Act made special provision for
the Board to be free to hire staff independent of other provisions of
law governing the federal government service in order to ensure that
the Board is able to hire the highest possible quality of staff to
obtain the ``special talent'' it needs to carry out its important
responsibilities. See, comments of Senators Owen and Reed, 51 Cong.
Rec. 1138, 1141 (1913). In recent years, the Board, like employers
throughout the United States, has been having greater difficulty
identifying qualified United States citizens, nationals, or ``intending
citizens'' as candidates for positions in a number of important job
families. In particular, the percentage of Ph.D economists graduating
from U.S. universities who are citizens or permanent residents has
declined steadily from 73 percent in 1980, to 54 percent in 1990, to 43
percent in 2001. In order to perform its statutory duties to implement
monetary policy and serve as the lender of last resort (as well as its
other statutory responsibilities), the Board must hire a significant
number of Ph.D economists. The shrinking pool of graduates with Ph.D.'s
in economics and other needed skills who are U.S. citizens, nationals,
or ``intending citizens'' has prompted the Board to reconsider its
hiring policies.
To address the diminishing number of available graduates with Ph.Ds
in economics and other needed skills who are U.S. citizens, the Board
proposes to revise its policy regarding hiring for positions that
require access to sensitive information. This will allow the Board to
hire qualified non-citizens in certain positions of importance to the
Board's duties and for which a growing proportion of qualified
candidates in the applicant pool are non-citizens. Currently, the Board
does not hire individuals who are non-citizens into positions that
require access to certain types of sensitive information unless the
non-citizen intends to obtain and does, in fact, seek U.S. citizenship.
The Board proposes to amend its rule to allow it to hire non-citizens
without intention of becoming U.S. citizens into positions that require
access to sensitive FOMC information in certain circumstances. The
Board does not propose to change its policy governing access to
national security information or confidential supervisory information.
Moreover, while the Board's rule governs hiring,
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access to FOMC information is ultimately limited by the rules of the
FOMC.
The interim rule would retain the Board's preference for U.S.
citizens and U.S. nationals over equally qualified non-citizens. Under
both the current and interim rule, U.S. citizens, U.S. nationals, and
intending citizens \1\ (all of whom are now referred to as ``Protected
Individuals'') may be hired into a position requiring access to
sensitive information. The interim rule focuses only on non-citizens
who do not intend to obtain U.S. citizenship and, in particular, on the
hiring of these non-citizens into positions requiring access to FOMC
information.
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\1\ An intending citizen is an individual who is a lawfully
admitted permanent resident alien, refugee, or asylum grantee and
who has evidenced an intention to become a U.S. citizen.
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For purposes of hiring individuals into positions that require
access to FOMC information, the interim rule would distinguish between
non-citizens from a country on the Country List contained in the annual
federal appropriations laws specifying countries, including a general
category of ``countries allied with the United States in a current
defense effort,'' whose citizens are eligible to be hired as federal
employees using appropriated funds and non-citizens from a country that
is not on the Country List.\2\ Because the Board's funds are not
appropriated, the Board is not subject to this limitation on hiring.
However, Congress periodically affirms that other government agencies
may use appropriated funds to hire non-citizens from countries on the
Country List. The rule uses the term ``Country List'' as a common point
of reference.
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\2\ The appropriations ban that contains the Country List is
codified at 5 U.S.C. 3101 note. Which countries are considered to be
``allied with the U.S. in a current defense effort,'' is a decision
made by the Department of State, Office of the Assistant Legal
Adviser for Treaty Affairs.
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Under the interim rule, the Board may hire into a position that
requires access to Class III or Class II FOMC information a non-citizen
who does not intend to obtain U.S. citizenship and who is from a
country that is on the Country List.\3\ In addition, if he or she meets
three conditions set forth in the rule, that person may be granted
access to Class I FOMC information. Those conditions are: (1) The
employee's Division Director recommends the employee be given access to
Class I FOMC information; (2) the employee has resided in the United
States for at least six years and has been employed for at least two
years with the Board and/or with one or more of the Reserve Banks; and
(3) the employee has passed a background investigation acceptable to
the Board. If the Country List changes so that the employee's country
is no longer on the Country List, the employee's access to Class II
FOMC information would not be affected by the change in the Country
List. Similarly, the employee would continue to be eligible for access
to Class I information and may be granted such access if he or she
meets the remaining conditions outlined above for employees from a
country on the Country List.
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\3\ FOMC information is classified as Class III, II, and I
information, in increasing order of sensitivity.
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Under the interim rule, the Board may hire into a position that
requires access to Class III FOMC information a person who is a non-
citizen without intention of becoming a U.S. citizen and who is from a
country that is not on the Country List. Upon meeting the three
conditions discussed above, a non-citizen from such a country may also
be granted access to Class II information. However, the Board would not
provide access to Class I information to a non-citizen from a country
that is not on the Country List.
The interim rule does not change access by a non-citizen to
confidential supervisory information or classified information. As
result, the existing limitations on who may have access to this
information would be continued.
Beyond the changes discussed above, the interim rule includes a
more comprehensive definition of ``FOMC information'' that contains a
description of the three internal security designations that apply to
this information. The interim rule also replaces the citation to
Executive Order 11356 with the citation to Executive Order 12958
entitled, ``Classified National Security Information,'' as this
executive order, and its amendments, control what information is
considered classified. The definition of ``confidential supervisory
information'' remains unchanged.
The interim rule also separately addresses what access is
applicable to each of the three types of sensitive information, i.e.,
FOMC information, classified information, and confidential supervisory
information. For example, as discussed above, the interim rule provides
new parameters for access that are applicable only to FOMC information.
The rule would also change the present language on access to classified
information to provide that access is determined by the applicable
executive orders and amendments. This more general reference
incorporates the current rule's exception for hiring a non-citizen for
a position requiring access to classified information if he or she is
able to obtain a security clearance. Further, with respect to
confidential supervisory information, the interim rule would specify
that access to this information is limited to Protected Individuals
(formerly citizens, nationals and intending citizens) with a need to
know employed by the Board or by a Federal Reserve Bank.
The interim rule would also update some of the terminology used in
the current rule. In this respect, the interim rule would substitute
the term ``Protected Individual'' for ``U.S. citizens and intending
citizens.'' The term ``Protected Individual'' covers U.S. citizens,
U.S. nationals, and aliens meeting the requirements of 8 U.S.C.
1324(a)(3)(B) who have filed a declaration of intention to become a
citizen of the United States. This more inclusive term is consistent
with existing immigration law, which no longer uses the term
``intending citizen'' but uses instead the term ``Protected
Individual.''
Further, where the current rule refers only to ``U.S. citizens,''
the interim rule would add the term ``national'' to make clear that
both U.S. citizens and U.S. nationals are, in fact, similarly treated.
The term ``national'' refers to certain individuals who are not
citizens of the U.S. and typically are born in or are descendants of
individuals in the outlying possessions of the U.S. Thus, the interim
rule provides that the hiring preference is a preference for U.S.
citizens and U.S. nationals over equally qualified non-citizens.
The Board also proposes to add a definition of ``employee'' to
clarify the coverage of the rule and a definition of ``national.'' The
interim rule includes a revised definition of ``non-citizen'' that more
accurately reflects its meaning.
This rule relates solely to matters of agency management or
personnel, and, therefore, is not subject to the public notice and
comment provisions of the Administrative Procedures Act, 5 U.S.C.
553(a)(2). However, the Board has in the past found public comment on
this matter to be helpful and invites comment on this rule. While
allowing comment, the Board has determined that it is unnecessary, and
would be impracticable, to defer the effective date of this action
until after notice and after public comments have been received and
considered (5 U.S.C. 553(d)(3)). Issuance of this rule as an interim
rule is appropriate, in any event, because the rule concerns only the
internal management and personnel of the Board and is not subject to
statutory delay. In addition, the Board is facing immediate hiring
decisions that would be subject to this rule. The Board believes that
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issuance of the regulation as an interim rule is necessary for the
Board to conduct its internal management in an expeditious and
efficient manner. The Board will consider all public comments received
and make changes in its procedures based on those comments where
appropriate. On these bases, the Board has determined that good cause
exists to make this action effective immediately. As this rule concerns
only agency management or personnel, it is not a rule subject to the
Congressional Review Act (CRA), 5 U.S.C. 804(3)(B), and therefore an
analysis under the CRA is not required.
Regulatory Flexibility Act Analysis
Pursuant to section 605(b) of the Regulatory Flexibility Act (Pub.
L. 96-354, 5 U.S.C. 601 et seq.), the Board believes that this rule
will not have a significant economic impact on a substantial number of
small entities. This rule governs the Board's dealings with its
employees and applicants for employment, and would not affect small
entities as defined for purposes of the Regulatory Flexibility Act.
Accordingly, a regulatory flexibility analysis is not required.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
ch. 3506; 5 CFR 1320 Appendix A.1), the Board reviewed the proposal
under the authority delegated to the Board by the Office of Management
and Budget. No collections of information pursuant to the Paperwork
Reduction Act are contained in this proposal.
Plain Language
Section 722 of the Gramm-Leach-Bliley Act requires each federal
banking agency to use plain language in all rules published after
January 1, 2000. In light of this requirement, the Board has sought to
present the interim rule in a simple and straightforward manner. The
Board invites comment on whether the Board could take additional steps
to make the rule easier to understand.
List of Subjects in 12 CFR Part 268
Administrative practice and procedure, Aged, Civil rights, Equal
employment opportunity, Federal buildings and facilities, Federal
Reserve System, Government employees, Individuals with disabilities,
Religious discrimination, Sex discrimination, Wages.
Authority and Issuance
0
For the reasons set out in the preamble, the Board amends 12 CFR part
268 as follows:
PART 268--RULES REGARDING EQUAL OPPORTUNITY
0
1. The authority citation for part 268 continues to read as follows:
Authority: 12 U.S.C. 244 and 248 (i), (k), and (l).
0
2. Revise 268.205 to read as follows
Sec. 268.205 Employment of aliens; Access to sensitive information
(a) Definitions. The definitions contained in this paragraph (a)
apply only to this section:
(1) Classified Information means information that is classified for
national security purposes under Executive Order No. 12958, entitled
``Classified National Security Information,'' including any amendments
or superseding orders that the President of the United States may issue
from time to time.
(2) Confidential Supervisory Information means confidential
supervisory information of the Board, as defined in 12 CFR 261.2(c).
(3) Country List refers to the list contained in the annual federal
appropriations laws of specific countries, including a general category
of ``countries allied with the United States in a current defense
effort,'' and the particular Non-Citizens from those countries who are
eligible to be hired as Federal employees in the excepted service or in
the senior executive service and be paid by appropriated funds. The
appropriation ban is codified at 5 U.S.C. 3101 note. The list of
eligible countries and Non-Citizens is subject to legislative and other
change.
(4) Employee means an individual who works full-time or part-time
and is appointed into Board service for a period of more than 90 days.
The term ``employee'' does not include members of the Board.
(5) FOMC Information means confidential information of the Federal
Open Market Committee (FOMC) regardless of the form or format in which
it is created, conveyed, or maintained. FOMC information includes
information derived from confidential FOMC materials. Three internal
security designations, which are subject to change by the FOMC, apply
to FOMC Information as follows:
(i) Class I FOMC generally applies to materials containing
policymaker input, such as that related to monetary policy decisions at
meetings, views expressed by policy makers on future policy, and
identification of meeting participants who express particular views.
Examples of Class I FOMC Information include, but are not limited to,
the ``Bluebook,'' drafts of meeting minutes, unreleased meeting
transcripts, documents reflecting the preparation of semi-annual
forecasts and related testimony, and certain sensitive internal
memorandums and reports.
(ii) Class II FOMC covers information that is less sensitive than
Class I FOMC. This designation generally applies to staff forecasts
prepared for the FOMC and to information about open market operations.
Examples of Class II FOMC Information include, but are not limited to,
Part I of the ``Greenbook,'' reports of the Manager on domestic and
foreign open market operations, and other materials on economic and
financial developments.
(iii) Class III FOMC covers information that is less sensitive than
either Class II or Class I. This designation generally applies to
background information supporting policy discussions and includes, but
is not limited to, Part II of the Greenbook.
(6) National refers to any individual who meets the requirements
described in 8 U.S.C. 1408.
(7) Non-Citizen refers to any individual who is not a citizen (by
birth or naturalization) of the United States.
(8) Protected Individual means--
(i) A citizen or National of the United States, or
(ii) An alien who:
(A) Meets the conditions set forth in 8 U.S.C. 1324b(a)(3)(B), as
amended, and
(B) Has filed with the Board or the appropriate Federal Reserve
Bank a declaration of intention to become a citizen of the United
States.
(9) Sensitive Information means FOMC Information; Classified
Information; and Confidential Supervisory Information.
(b) Hiring.
(1) Prohibition against hiring unauthorized aliens. An individual
is eligible for employment with the Board only if he or she satisfies
the requirements of Section 101 of the Immigration Reform and Control
Act of 1986, 8 U.S.C. 1324a.
(2) Preference. Consistent with applicable law, where two
applicants for employment at the Board are equally qualified for a
position, the Board shall prefer the citizen or National of the United
States over the equally qualified Non-Citizen.
(3) Protected Individuals access to Sensitive Information. The
Board may hire a person to a position that requires access to Sensitive
Information if the person is a Protected Individual.
(4) Non-Citizens access to Sensitive Information. The Board shall
not hire a Non-Citizen, other than a Protected
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Individual, into a position that requires access to Sensitive
Information except in accordance with paragraph (c) below.
(c) Access to Sensitive Information.
(1) Generally. The Board will grant access to Sensitive Information
only in accordance with the Board's rules and policies regarding access
to Sensitive Information and, if applicable, the rules and policies of
the FOMC.
(2) FOMC Information.
(i) Access by a Non-Citizen from a country on the Country List. An
Employee, other than a Protected Individual, who is a Non-Citizen from
a country that is on the Country List on the date the Employee begins
employment with the Federal Reserve System shall be granted access to
Class I FOMC Information only upon the recommendation of the Employee's
Division Director after six years of residence in the United States, at
least two of which include satisfactory employment by the Board and/or
one or more of the Federal Reserve Banks, and a background
investigation acceptable to the Board. If the Employee's country is
deleted from the Country List after the date the Employee begins
employment with the Federal Reserve System, the Employee's access to
Class II FOMC information will not be affected by the change in the
Country List. Similarly, the Employee would continue to be eligible for
access to Class I information and may be granted such access if he or
she meets the remaining conditions outlined above for employees from a
country on the Country List.
(ii) Access by a Non-Citizen from a country not on the Country
List. An Employee, other than a Protected Individual, who, on the date
the Employee begins employment with the Federal Reserve System, is a
Non-Citizen from a country that is not on the Country List: (A) Shall
not be granted access to Class I FOMC Information, and (B) shall be
granted access to Class II FOMC Information only upon the
recommendation of the Employee's Division Director after six years of
residence in the United States, at least two of which include
satisfactory employment by the Board and/or one or more of the Federal
Reserve Banks, and a background investigation acceptable to the Board.
(3) Classified Information. Access to Classified Information is
limited to those persons who are permitted access to Classified
Information pursuant to the applicable executive orders and any
subsequent amendments or superseding orders that the President of the
United States may issue from time to time.
(4) Confidential Supervisory Information. Access to Confidential
Supervisory Information is limited to Protected Individuals with a need
to know employed by the Board or by a Federal Reserve Bank.
By order of the Board of Governors of the Federal Reserve
System.
Dated: November 2, 2005.
Jennifer J. Johnson,
Secretary of the Board.
[FR Doc. 05-22223 Filed 11-7-05; 8:45 am]
BILLING CODE 6210-01-P
