Conduct of Employees and Former Employees; Exemption From Post-Employment Restrictions for Communications; Furnishing Scientific or Technological Information, 72748-72751 [E8-28267]
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72748
Federal Register / Vol. 73, No. 231 / Monday, December 1, 2008 / Proposed Rules
(b) Midsouth Region: Arkansas,
Louisiana, Mississippi, MissouriIllinois, and Tennessee-Kentucky; (c)
Southwest Region: Oklahoma and
Texas; (d) Western Region: Arizona,
California-Nevada, and New Mexico.’’
The amendments proposed herein
would allow the States of Kansas,
Virginia, and Florida to have at least one
member and an additional member for
each 1 million bales or major fraction
(more than half) thereof of cotton
produced in the state and marketed
above one million bales during the
period specified in the regulations for
determining Board membership.
Finally, AMS proposes to make any
such changes as may be necessary to the
Order to conform to any amendment
that may result from the hearing.
The hearing is called pursuant to the
provisions of the Cotton Act and the
applicable rules of practice and
procedure governing proceedings under
research, promotion, and information
programs (7 CFR part 1200). The public
hearing is held for the purpose of
determining whether the proposed
amendments or appropriate
modifications thereof will tend to
effectuate the declared policy of the Act,
as amended by the 2008 Farm Bill.
Evidence also will be taken to
determine whether emergency
conditions exist that would warrant
omission of a recommended decision
under the rules of practice and
procedure (7 CFR 1200.13(d)) with
respect to any proposed amendments.
Testimony is invited at the hearing on
the proposals contained in this notice.
All persons wishing to submit written
material as evidence at the hearing
should be prepared to submit four
copies of such material at the hearing
and should have prepared testimony
available for presentation at the hearing.
From the time the notice of hearing is
issued and until the issuance of a final
decision in this proceeding, USDA
employees involved in the decisional
process are prohibited from discussing
the merits of the hearing issues on an ex
parte basis with any person having an
interest in the proceeding. The
prohibition applies to employees in the
following organizational units: Office of
the Secretary of Agriculture; Office of
the Administrator, AMS; Office of the
General Counsel; and the Cotton and
Tobacco Programs, AMS.
Procedural matters are not subject to
the above prohibition and may be
discussed at any time.
List of Subjects in 7 CFR Part 1205
Advertising, Agricultural research,
Cotton, Marketing agreements,
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Reporting and recordkeeping
requirements.
DEPARTMENT OF ENERGY
10 CFR Part 1010
PART 1205—COTTON RESEARCH
AND PROMOTION
For the reasons set forth in the
preamble, 7 CFR part 1205 is proposed
to be amended as follows:
1. The authority citation for 7 CFR
part 1205 continues to read as follows:
Authority: 7 U.S.C. 2101–2118 and 7
U.S.C. 7401.
2. Testimony is invited on the
following proposals or appropriate
alternatives or modifications to the
proposal.
Proposals submitted by USDA:
Proposal Number 1
3. Revise § 1205.314 to read as
follows:
§ 1205.314
Cotton-producing State.
‘‘Cotton-producing State’’ means each
of the following States and combination
of States: Alabama; Arizona; Arkansas;
California-Nevada; Florida; Georgia;
Kansas; Louisiana; Mississippi;
Missouri-Illinois; New Mexico; North
Carolina; Oklahoma; South Carolina;
Tennessee-Kentucky; Texas; and
Virginia.
Proposal Number 2
4. Revise § 1205.319, to read as
follows:
§ 1205.319
Cotton-producing region.
‘‘Cotton-producing region’’ means
each of the following groups of cotton
producing States:
(a) Southeast Region: Alabama,
Florida, Georgia, North Carolina, South
Carolina, and Virginia;
(b) Midsouth Region: Arkansas,
Louisiana, Mississippi, MissouriIllinois, and Tennessee-Kentucky;
(c) Southwest Region: Kansas,
Oklahoma and Texas;
(d) Western Region: Arizona,
California-Nevada, and New Mexico.
Proposal Number 3
Make other such changes as may be
necessary to the order to conform with
any amendment thereto that may result
from the hearing.
Dated: November 24, 2008.
David R. Shipman,
Acting Administrator, Agricultural Marketing
Service.
[FR Doc. E8–28569 Filed 11–28–08; 8:45 am]
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RIN 1990–AA31
Conduct of Employees and Former
Employees; Exemption From PostEmployment Restrictions for
Communications; Furnishing Scientific
or Technological Information
Office of the General Counsel,
U.S. Department of Energy.
ACTION: Notice of proposed rulemaking
and opportunity for comment.
AGENCY:
SUMMARY: The Department of Energy
(DOE) today issues a proposed rule to
establish procedures under which a
former employee of the executive
branch may obtain approval from DOE
to make communications to DOE solely
for the purpose of furnishing scientific
or technological information during the
period the former employee is subject to
post-employment restrictions set forth
in 18 U.S.C. 207(a), (c), and (d). The
proposed rule also would further define
the term ‘‘scientific or technological
information,’’ for which an exemption is
provided by 18 U.S.C. 207(j)(5).
DATES: Public comment on this
proposed rule will be accepted until
December 31, 2008.
ADDRESSES: You may submit comments,
identified by RIN 1990–AA31, by any of
the following methods:
1. Federal eRulemaking Portal:
https://www.regulations.gov. Follow the
instructions for submitting comments.
2. E-mail to
standardsofconduct@hq.doe.gov.
Include RIN 1990–AA31 in the subject
line of the e-mail. Please include the full
body of your comments in the text of the
message or as an attachment.
3. Mail: Address written comments to
Sue E. Wadel, Deputy Assistant General
Counsel for General Law, U.S.
Department of Energy, Office of the
General Counsel, Mailstop GC–77,
Room 6A–211, 1000 Independence
Avenue, SW., Washington, DC 20585.
Due to potential delays in DOE’s
receipt and processing of mail sent
through the U.S. Postal Service, we
encourage respondents to submit
comments electronically to ensure
timely receipt. You may obtain copies of
comments submitted in response to this
notice of proposed rulemaking from the
contact person.
If you submit information that you
believe to be exempt by law from public
disclosure, you should submit one
complete copy, as well as one copy from
which the information claimed to be
exempt by law from public disclosure
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has been deleted. DOE is responsible for
the final determination with regard to
disclosure or nondisclosure of the
information and for treating it
accordingly under the DOE Freedom of
Information regulations at 10 CFR
1004.11.
FOR FURTHER INFORMATION CONTACT: Sue
E. Wadel, Deputy Assistant General
Counsel for General Law, U.S.
Department of Energy, Office of the
General Counsel, Mailstop GC–77,
Room 6A–211, 1000 Independence
Avenue, SW., Washington, DC 20585;
(202) 586–1522 or
Sue.Wadel@hq.doe.gov.
SUPPLEMENTARY INFORMATION:
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I. Background
II. Discussion of Proposed Rule
III. Regulatory Review
I. Background
DOE proposes to revise the title of 10
CFR Part 1010 from ‘‘Conduct of
Employees’’ to ‘‘Conduct of Employees
and Former Employees.’’ In addition, a
title will be added identifying 10 CFR
section 1010.101 et seq. as ‘‘Subpart A—
Conduct of Employees.’’ These
proposed revisions are being made
because DOE proposes to amend the
Conduct of Employees regulations at 10
CFR Part 1010 to establish procedures
under which a former employee of the
executive branch may obtain approval
to make communications to DOE solely
for the purpose of furnishing scientific
or technological information during the
period the former employee is subject to
post-employment restrictions set forth
in 18 U.S.C. 207(a), (c), and (d). DOE
also proposes a definition of the term
‘‘scientific or technological
information,’’ used in 18 U.S.C.
207(j)(5), to provide former employees
with guidance on the types of
communications that would qualify for
the exemption from otherwise
applicable post-employment
restrictions.
Pursuant to 18 U.S.C. 207(j)(5), former
employees of the executive branch of
the United States may make
communications with an executive
branch agency ‘‘solely for the purpose of
furnishing scientific or technological
information,’’ notwithstanding the postemployment restrictions at 18 U.S.C.
207(a), (c), and (d). Section 207(j)(5)
provides that such communications
must be made under procedures
acceptable to the department to which
the communication is directed, or the
head of such department must consult
with the Director of the Office of
Government Ethics (OGE) and certify in
the Federal Register that the former
employee meets certain requirements to
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make such communications. The
purpose of this proposed rule is to (1)
establish the procedures acceptable to
DOE for former executive branch
employees making scientific or
technological communications; and (2)
provide, in a definition of the term
‘‘scientific or technological
information,’’ the criteria for the types
of communications of scientific or
technological information that former
executive branch employees may make
to DOE pursuant to 18 U.S.C. 207(j)(5).
The proposed rule defines scientific
and technological information as that
which is of a scientific or technological
character, such as technical or
engineering information relating to the
natural sciences. This proposed
definition does not extend to
information associated solely with a
nontechnical discipline such as law,
economics, or political science.
II. Discussion of Proposed Rule
Proposed section 10 CFR 1010.202,
defines the statutory term ‘‘scientific or
technological information,’’ providing
criteria for program officials and the
Designated Agency Ethics Official
(DAEO) to use when evaluating requests
from former employees for approval to
communicate such information to DOE
offices and officials. The program office
official and DAEO shall consider the
former executive branch employee’s
qualifications, the information to be
conveyed, the former executive branch
employee’s Federal position, the extent
of the former executive branch
employee’s participation in the same
particular matter, and whether DOE’s
interest would be served by allowing
such communications. Section 1010.202
also proposes to define the term
‘‘authorized communication’’ as the
transmission of scientific or
technological information that has been
approved by DOE under the procedures
that would be established by this
rulemaking.
Proposed section 10 CFR 1010.203,
sets forth the procedures under which a
former employee of the executive
branch may obtain approval for
communicating scientific or
technological information to DOE
offices or officials. A former employee
of the executive branch must contact the
program office to which he or she
wishes to make such communications.
The Director of the program office, in
consultation with the DAEO, shall
advise the former executive branch
employee in writing whether he or she
may make such communications.
The proposed regulation does not
apply to testimony as an expert in an
adversarial proceeding in which the
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United States is a party or has an
interest. Restrictions on testimony, and
exceptions thereof, are prescribed in 18
U.S.C. 207(j)(6).
III. Regulatory Review
A. Executive Order 12866
This proposed rule has been
determined not to be a significant
regulatory action under Executive Order
12866, ‘‘Regulatory Planning and
Review,’’ 58 FR 51735 (October 4, 1993).
Accordingly, this action was not subject
to review under that Executive Order by
the Office of Information and Regulatory
Affairs of the Office of Management and
Budget.
B. National Environmental Policy Act
DOE has determined that this
proposed rule is covered under the
Categorical Exclusion found in DOE’s
National Environmental Policy Act
regulations at paragraph A.5 of
Appendix A to Subpart D, 10 CFR Part
1021, which applies to rulemakings
interpreting or amending an existing
rule that do not change the
environmental effect thereof.
Accordingly, neither an environmental
assessment nor an environmental
impact statement is required.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601, et seq.) requires preparation
of an initial regulatory flexibility
analysis for any rule that by law must
be proposed for public comment, unless
the agency certifies that the rule, if
promulgated, will not have a significant
economic impact on a substantial
number of small entities. As required by
Executive Order 13272, ‘‘Proper
Consideration of Small Entities in
Agency Rulemaking,’’ 67 FR 53461
(August 16, 2002), DOE published
procedures and policies on February 19,
2003, to ensure that the potential
impacts of its rules on small entities are
properly considered during the
rulemaking process (68 FR 7990). DOE
has made its procedures and policies
available on the Office of the General
Counsel’s Web site: https://
www.gc.doe.gov.
DOE has reviewed this proposed rule
under the provisions of the Regulatory
Flexibility Act and the procedures and
policies published on February 19,
2003. The proposed rule will only affect
individuals who were formerly
employed by the executive branch of the
Federal government if they want to
communicate with DOE on scientific or
technological matters. On the basis of
the foregoing, DOE certifies that this
proposed rule would not have a
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F. Treasury and General Government
Appropriations Act, 1999
significant economic impact on a
substantial number of small entities.
Accordingly, DOE has not prepared a
regulatory flexibility analysis for this
rulemaking. DOE’s certification and
supporting statement of factual basis
will be provided to the Chief Counsel
for Advocacy of the Small Business
Administration pursuant to 5 U.S.C.
605(b).
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D. Paperwork Reduction Act
No new record keeping requirements
subject to the Paperwork Reduction Act,
44 U.S.C. 3501, et seq., are imposed by
this proposed rule.
E. Unfunded Mandates Reform Act of
1995
The Unfunded Mandates Reform Act
of 1995, Public Law No. 104–4,
generally requires Federal agencies to
examine closely the impacts of
regulatory actions on State, local, and
tribal governments. Subsection 101(5) of
title I of that law defines a Federal
intergovernmental mandate to include
any regulation that would impose upon
State, local, or tribal governments an
enforceable duty, except a condition of
Federal assistance or a duty arising from
participating in a voluntary federal
program. Title II of that law requires
each Federal agency to assess the effects
of Federal regulatory actions on State,
local, and tribal governments, in the
aggregate, or to the private sector, other
than to the extent such actions merely
incorporate requirements specifically
set forth in a statute. Section 202 of that
title requires a Federal agency to
perform a detailed assessment of the
anticipated costs and benefits of any
rule that includes a Federal mandate
which may result in costs to State, local,
or tribal governments, or on the private
sector, of $100 million or more in any
one year (adjusted annually for
inflation). 2 U.S.C. 1532(a) and (b).
Section 204 of that title requires each
agency that proposes a rule containing
a significant Federal intergovernmental
mandate to develop an effective process
for obtaining meaningful and timely
input from elected officers of State,
local, and tribal governments. 2 U.S.C.
1534.
This proposed rule would apply only
to former executive branch employees
who want to communicate with DOE on
scientific or technological matters. It
would not result in the expenditure by
State, local, and tribal governments in
the aggregate, or by the private sector, of
$100 million or more in any one year.
Accordingly, this proposed rule would
not impose a Federal mandate on State,
local, or tribal governments or on the
private sector.
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Section 654 of the Treasury and
General Government Appropriations
Act of 1999, Public Law No. 105–277,
requires Federal agencies to issue a
Family Policymaking Assessment for
any proposed rule that may affect family
well being. The proposed rule would
not have any impact on the autonomy
or integrity of the family as an
institution. Accordingly, DOE has
concluded that it is unnecessary to
prepare a Family Policymaking
Assessment.
G. Executive Order 13132
Executive Order 13132, ‘‘Federalism,’’
64 FR 43255 (August 4, 1999), imposes
certain requirements on agencies
formulating and implementing policies
or regulations that preempt State law or
that have federalism implications.
Agencies are required to examine the
constitutional and statutory authority
supporting any action that would limit
the policymaking discretion of the
States and carefully assess the necessity
for such actions. DOE has examined this
proposed rule and has determined that
it would not preempt State law and
would not have a substantial direct
effect on the States, on the relationship
between the Federal government and
the States, or on the distribution of
power and responsibilities among the
various levels of government. No further
action is required by Executive Order
13132.
H. Executive Order 12988
With respect to the review of existing
regulations and the promulgation of
new regulations, section 3(a) of
Executive Order 12988, ‘‘Civil Justice
Reform,’’ 61 FR 4729 (February 7, 1996),
imposes on Executive agencies the
general duty to adhere to the following
requirements: (1) Eliminate drafting
errors and ambiguity; (2) write
regulations to minimize litigation; and
(3) provide a clear legal standard for
affected conduct rather than a general
standard and promote simplification
and burden reduction. With regard to
the review required by section 3(a),
section 3(b) of Executive Order 12988
specifically requires that Executive
agencies make every reasonable effort to
ensure that the regulation: (1) Clearly
specifies the preemptive effect, if any;
(2) clearly specifies any effect on
existing Federal law or regulation; (3)
provides a clear legal standard for
affected conduct while promoting
simplification and burden reduction; (4)
specifies the retroactive effect, if any; (5)
adequately defines key terms; and (6)
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addresses other important issues
affecting clarity and general
draftsmanship under any guidelines
issued by the Attorney General. Section
3(c) of Executive Order 12988 requires
Executive agencies to review regulations
in light of applicable standards in
section 3(a) and section 3(b) to
determine whether they are met or it is
unreasonable to meet one or more of
them. DOE has completed the required
review and determined that, to the
extent permitted by law, the proposed
rule meets the relevant standards of
Executive Order 12988.
I. Treasury and General Government
Appropriations Act, 2001
The Treasury and General
Government Appropriations Act, 44
U.S.C. 3516 note (2001), provides for
agencies to review most disseminations
of information to the public under
guidelines established by each agency
pursuant to general guidelines issued by
OMB.
OMB’s guidelines were published at
67 FR 8452 (February 22, 2002), and
DOE’s guidelines were published at 67
FR 62446 (October 7, 2002). DOE has
reviewed this proposed rule in
accordance with the OMB and DOE
guidelines and has concluded that it is
consistent with applicable policies in
those guidelines.
J. Executive Order 13211
Executive Order 13211, ‘‘Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use,’’ 66 FR 28355 (May
22, 2001), requires Federal agencies to
prepare and submit to the OMB a
Statement of Energy Effects for any
proposed significant energy action. A
‘‘significant energy action’’ is defined as
any action by an agency that
promulgated or is expected to lead to
promulgation of a final rule, and that:
(1) Is a significant regulatory action
under Executive Order 12866, or any
successor order; and (2) is likely to have
a significant adverse effect on the
supply, distribution, or use of energy, or
(3) is designated by the Administrator of
the Office of Information and Regulatory
Policy as a significant energy action. For
any proposed significant energy action,
the agency must give a detailed
statement of any adverse effects on
energy supply, distribution, or use
should the proposal be implemented,
and of reasonable alternatives to the
action and their expected benefits on
energy supply, distribution, and use.
This regulatory action would not have a
significant adverse effect on the supply,
distribution, or use of energy and is
therefore not a significant energy action.
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Accordingly, DOE has not prepared a
Statement of Energy Effects.
IV. Approval of the Office of the
Secretary
The Secretary of Energy has approved
the issuance of this notice of proposed
rulemaking.
List of Subjects in 10 CFR Part 1010
Conduct standards, Conflicts of
interest, Ethical conduct, Government
employees.
Issued in Washington, DC, on November
20, 2008.
David R. Hill,
General Counsel.
For the reasons stated in the
preamble, DOE proposes to amend
chapter X of Title 10 of the Code of
Federal Regulations as set forth below:
PART 1010—CONDUCT OF
EMPLOYEES AND FORMER
EMPLOYEES
1. The authority citation for part 1010
is revised to read as follows:
Authority: 5 U.S.C. 301, 303, 7301; 5
U.S.C. App. (Ethics in Government Act); 5
U.S.C. App. (Inspector General Act of 1978);
E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp.,
p. 215, as modified by E.O. 12731, 55 FR
42547, 3 CFR, 1990 Comp., p. 306; 5 CFR
2635.105; 18 U.S.C. 207, 208.
2. The heading to Part 1010 is revised
as set forth above.
3. Sections 1010.101 through
1010.104 are designated as Subpart A
and the heading is added to read as set
forth below:
Subpart A—Conduct of Employees
*
*
*
§ 1010.101
*
*
[Amended]
4. Section 1010.101 is amended by
removing the word ‘‘part,’’ and adding
the word ‘‘subpart’’ in its place.
5. A new Subpart B is added to Part
1010 to read as follows:
Subpart B—Procedures for Exemption
of Scientific and Technological
Information Communications From
Post-Employment Restrictions
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Sec.
1010.201 Purpose and scope.
1010.202 Definitions.
1010.203 Procedures for review and
approval of requests.
§ 1010.201
Purpose and scope.
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§ 1010.202
Definitions.
For purposes of this subpart:
(a) Agency designee refers to an
individual serving in a position in DOE
requiring appointment by the President
of the United States with the advice and
consent of the Senate.
(b) Authorized communication means
any transmission of scientific or
technological information to any DOE
office or official that is approved by
DOE under § 1010.203 of this subpart.
(c) DOE refers to the U.S. Department
of Energy.
(d) Scientific or technological
information includes:
(1) Information of a scientific or
technological nature, including, but not
limited to, technical or engineering
information relating to the natural
sciences;
(2) Information in meritorious or
convincing scientific or technological
proposals;
(3) Information that informs Federal
officials of the significance of other
scientific or technological alternatives
that could impact the validity,
usefulness, or ability to measure the
completeness of the data supplied on
those alternatives; or
(4) Information regarding the
feasibility, risk, cost, or speed of
implementation of a DOE project or
program when necessary to appreciate
fairly the practical significance of the
information.
§ 1010.203 Procedures for review and
approval of requests.
(a) This subpart sets forth criteria for
the types of communications on
scientific or technological matters
permitted under 18 U.S.C. 207(j)(5) by
defining the term ‘‘scientific or
technological information.’’ This
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subpart also establishes the procedures
for receiving and approving requests
from former employees of the executive
branch to make such communications to
DOE.
(b) This subpart applies to any former
employee of the executive branch
subject to the post-employment conflict
of interest restrictions in 18 U.S.C.
207(a), (c), and (d), who wishes to
communicate with DOE under the
exemption in 18 U.S.C. 207(j)(5) for the
purpose of furnishing scientific or
technological information to DOE
offices or officials.
(c) This subpart does not apply to a
former DOE employee’s testimony as an
expert in an adversarial proceeding in
which the United States is a party or has
a direct and substantial interest.
(a) Any former employee of the
executive branch subject to the
constraints of the post-employment
restrictions of 18 U.S.C. 207(a), (c), and
(d) who wishes to communicate
scientific or technological information
to DOE must contact the DOE office
with which the former employee wishes
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72751
to communicate and request
authorization to make such
communication. This request must
address, in detail, information regarding
each of the factors set forth in
paragraphs (c)(1) through (c)(6) and
(c)(8) of this section.
(b) In consultation with the
Designated Agency Ethics Official
(DAEO), the agency designee must
advise the former employee in writing
whether the proposed communication is
an authorized communication. This
authority cannot be delegated.
(c) In deciding whether a proposed
communication is an authorized
communication, the agency designee
receiving the request and the DAEO
must consider the following factors:
(1) Whether the former employee has
relevant scientific or technical
qualifications;
(2) Whether the former employee has
qualifications that are otherwise
unavailable;
(3) The nature of the scientific or
technological information to be
conveyed;
(4) The former employee’s position
prior to termination;
(5) The extent of the former
employee’s involvement in the matter at
issue during his or her employment,
including:
(i) The former employee’s
involvement in the same particular
matter involving specific parties;
(ii) The time elapsed since the former
employee’s participation in such matter;
and
(iii) The offices within the Federal
department or agency involved in the
matter both during the former
employee’s period of employment in the
executive branch and at the time the
request is being made;
(6) The existence of pending or
anticipated matters before the Federal
government from which the former
employee or his or her current employer
may financially benefit, including
contract modifications, grant
applications, and proposals; and
(7) Whether DOE’s interests would be
served by allowing the proposed
communication; and
(8) Any other information relevant to
deciding if there is an intent to
influence a decision or action of DOE.
[FR Doc. E8–28267 Filed 11–28–08; 8:45 am]
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[Federal Register Volume 73, Number 231 (Monday, December 1, 2008)]
[Proposed Rules]
[Pages 72748-72751]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-28267]
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DEPARTMENT OF ENERGY
10 CFR Part 1010
RIN 1990-AA31
Conduct of Employees and Former Employees; Exemption From Post-
Employment Restrictions for Communications; Furnishing Scientific or
Technological Information
AGENCY: Office of the General Counsel, U.S. Department of Energy.
ACTION: Notice of proposed rulemaking and opportunity for comment.
-----------------------------------------------------------------------
SUMMARY: The Department of Energy (DOE) today issues a proposed rule to
establish procedures under which a former employee of the executive
branch may obtain approval from DOE to make communications to DOE
solely for the purpose of furnishing scientific or technological
information during the period the former employee is subject to post-
employment restrictions set forth in 18 U.S.C. 207(a), (c), and (d).
The proposed rule also would further define the term ``scientific or
technological information,'' for which an exemption is provided by 18
U.S.C. 207(j)(5).
DATES: Public comment on this proposed rule will be accepted until
December 31, 2008.
ADDRESSES: You may submit comments, identified by RIN 1990-AA31, by any
of the following methods:
1. Federal eRulemaking Portal: https://www.regulations.gov. Follow
the instructions for submitting comments.
2. E-mail to standardsofconduct@hq.doe.gov. Include RIN 1990-AA31
in the subject line of the e-mail. Please include the full body of your
comments in the text of the message or as an attachment.
3. Mail: Address written comments to Sue E. Wadel, Deputy Assistant
General Counsel for General Law, U.S. Department of Energy, Office of
the General Counsel, Mailstop GC-77, Room 6A-211, 1000 Independence
Avenue, SW., Washington, DC 20585.
Due to potential delays in DOE's receipt and processing of mail
sent through the U.S. Postal Service, we encourage respondents to
submit comments electronically to ensure timely receipt. You may obtain
copies of comments submitted in response to this notice of proposed
rulemaking from the contact person.
If you submit information that you believe to be exempt by law from
public disclosure, you should submit one complete copy, as well as one
copy from which the information claimed to be exempt by law from public
disclosure
[[Page 72749]]
has been deleted. DOE is responsible for the final determination with
regard to disclosure or nondisclosure of the information and for
treating it accordingly under the DOE Freedom of Information
regulations at 10 CFR 1004.11.
FOR FURTHER INFORMATION CONTACT: Sue E. Wadel, Deputy Assistant General
Counsel for General Law, U.S. Department of Energy, Office of the
General Counsel, Mailstop GC-77, Room 6A-211, 1000 Independence Avenue,
SW., Washington, DC 20585; (202) 586-1522 or Sue.Wadel@hq.doe.gov.
SUPPLEMENTARY INFORMATION:
I. Background
II. Discussion of Proposed Rule
III. Regulatory Review
I. Background
DOE proposes to revise the title of 10 CFR Part 1010 from ``Conduct
of Employees'' to ``Conduct of Employees and Former Employees.'' In
addition, a title will be added identifying 10 CFR section 1010.101 et
seq. as ``Subpart A--Conduct of Employees.'' These proposed revisions
are being made because DOE proposes to amend the Conduct of Employees
regulations at 10 CFR Part 1010 to establish procedures under which a
former employee of the executive branch may obtain approval to make
communications to DOE solely for the purpose of furnishing scientific
or technological information during the period the former employee is
subject to post-employment restrictions set forth in 18 U.S.C. 207(a),
(c), and (d). DOE also proposes a definition of the term ``scientific
or technological information,'' used in 18 U.S.C. 207(j)(5), to provide
former employees with guidance on the types of communications that
would qualify for the exemption from otherwise applicable post-
employment restrictions.
Pursuant to 18 U.S.C. 207(j)(5), former employees of the executive
branch of the United States may make communications with an executive
branch agency ``solely for the purpose of furnishing scientific or
technological information,'' notwithstanding the post-employment
restrictions at 18 U.S.C. 207(a), (c), and (d). Section 207(j)(5)
provides that such communications must be made under procedures
acceptable to the department to which the communication is directed, or
the head of such department must consult with the Director of the
Office of Government Ethics (OGE) and certify in the Federal Register
that the former employee meets certain requirements to make such
communications. The purpose of this proposed rule is to (1) establish
the procedures acceptable to DOE for former executive branch employees
making scientific or technological communications; and (2) provide, in
a definition of the term ``scientific or technological information,''
the criteria for the types of communications of scientific or
technological information that former executive branch employees may
make to DOE pursuant to 18 U.S.C. 207(j)(5).
The proposed rule defines scientific and technological information
as that which is of a scientific or technological character, such as
technical or engineering information relating to the natural sciences.
This proposed definition does not extend to information associated
solely with a nontechnical discipline such as law, economics, or
political science.
II. Discussion of Proposed Rule
Proposed section 10 CFR 1010.202, defines the statutory term
``scientific or technological information,'' providing criteria for
program officials and the Designated Agency Ethics Official (DAEO) to
use when evaluating requests from former employees for approval to
communicate such information to DOE offices and officials. The program
office official and DAEO shall consider the former executive branch
employee's qualifications, the information to be conveyed, the former
executive branch employee's Federal position, the extent of the former
executive branch employee's participation in the same particular
matter, and whether DOE's interest would be served by allowing such
communications. Section 1010.202 also proposes to define the term
``authorized communication'' as the transmission of scientific or
technological information that has been approved by DOE under the
procedures that would be established by this rulemaking.
Proposed section 10 CFR 1010.203, sets forth the procedures under
which a former employee of the executive branch may obtain approval for
communicating scientific or technological information to DOE offices or
officials. A former employee of the executive branch must contact the
program office to which he or she wishes to make such communications.
The Director of the program office, in consultation with the DAEO,
shall advise the former executive branch employee in writing whether he
or she may make such communications.
The proposed regulation does not apply to testimony as an expert in
an adversarial proceeding in which the United States is a party or has
an interest. Restrictions on testimony, and exceptions thereof, are
prescribed in 18 U.S.C. 207(j)(6).
III. Regulatory Review
A. Executive Order 12866
This proposed rule has been determined not to be a significant
regulatory action under Executive Order 12866, ``Regulatory Planning
and Review,'' 58 FR 51735 (October 4, 1993). Accordingly, this action
was not subject to review under that Executive Order by the Office of
Information and Regulatory Affairs of the Office of Management and
Budget.
B. National Environmental Policy Act
DOE has determined that this proposed rule is covered under the
Categorical Exclusion found in DOE's National Environmental Policy Act
regulations at paragraph A.5 of Appendix A to Subpart D, 10 CFR Part
1021, which applies to rulemakings interpreting or amending an existing
rule that do not change the environmental effect thereof. Accordingly,
neither an environmental assessment nor an environmental impact
statement is required.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601, et seq.) requires
preparation of an initial regulatory flexibility analysis for any rule
that by law must be proposed for public comment, unless the agency
certifies that the rule, if promulgated, will not have a significant
economic impact on a substantial number of small entities. As required
by Executive Order 13272, ``Proper Consideration of Small Entities in
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published
procedures and policies on February 19, 2003, to ensure that the
potential impacts of its rules on small entities are properly
considered during the rulemaking process (68 FR 7990). DOE has made its
procedures and policies available on the Office of the General
Counsel's Web site: https://www.gc.doe.gov.
DOE has reviewed this proposed rule under the provisions of the
Regulatory Flexibility Act and the procedures and policies published on
February 19, 2003. The proposed rule will only affect individuals who
were formerly employed by the executive branch of the Federal
government if they want to communicate with DOE on scientific or
technological matters. On the basis of the foregoing, DOE certifies
that this proposed rule would not have a
[[Page 72750]]
significant economic impact on a substantial number of small entities.
Accordingly, DOE has not prepared a regulatory flexibility analysis for
this rulemaking. DOE's certification and supporting statement of
factual basis will be provided to the Chief Counsel for Advocacy of the
Small Business Administration pursuant to 5 U.S.C. 605(b).
D. Paperwork Reduction Act
No new record keeping requirements subject to the Paperwork
Reduction Act, 44 U.S.C. 3501, et seq., are imposed by this proposed
rule.
E. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995, Public Law No. 104-4,
generally requires Federal agencies to examine closely the impacts of
regulatory actions on State, local, and tribal governments. Subsection
101(5) of title I of that law defines a Federal intergovernmental
mandate to include any regulation that would impose upon State, local,
or tribal governments an enforceable duty, except a condition of
Federal assistance or a duty arising from participating in a voluntary
federal program. Title II of that law requires each Federal agency to
assess the effects of Federal regulatory actions on State, local, and
tribal governments, in the aggregate, or to the private sector, other
than to the extent such actions merely incorporate requirements
specifically set forth in a statute. Section 202 of that title requires
a Federal agency to perform a detailed assessment of the anticipated
costs and benefits of any rule that includes a Federal mandate which
may result in costs to State, local, or tribal governments, or on the
private sector, of $100 million or more in any one year (adjusted
annually for inflation). 2 U.S.C. 1532(a) and (b). Section 204 of that
title requires each agency that proposes a rule containing a
significant Federal intergovernmental mandate to develop an effective
process for obtaining meaningful and timely input from elected officers
of State, local, and tribal governments. 2 U.S.C. 1534.
This proposed rule would apply only to former executive branch
employees who want to communicate with DOE on scientific or
technological matters. It would not result in the expenditure by State,
local, and tribal governments in the aggregate, or by the private
sector, of $100 million or more in any one year. Accordingly, this
proposed rule would not impose a Federal mandate on State, local, or
tribal governments or on the private sector.
F. Treasury and General Government Appropriations Act, 1999
Section 654 of the Treasury and General Government Appropriations
Act of 1999, Public Law No. 105-277, requires Federal agencies to issue
a Family Policymaking Assessment for any proposed rule that may affect
family well being. The proposed rule would not have any impact on the
autonomy or integrity of the family as an institution. Accordingly, DOE
has concluded that it is unnecessary to prepare a Family Policymaking
Assessment.
G. Executive Order 13132
Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4,
1999), imposes certain requirements on agencies formulating and
implementing policies or regulations that preempt State law or that
have federalism implications. Agencies are required to examine the
constitutional and statutory authority supporting any action that would
limit the policymaking discretion of the States and carefully assess
the necessity for such actions. DOE has examined this proposed rule and
has determined that it would not preempt State law and would not have a
substantial direct effect on the States, on the relationship between
the Federal government and the States, or on the distribution of power
and responsibilities among the various levels of government. No further
action is required by Executive Order 13132.
H. Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on
Executive agencies the general duty to adhere to the following
requirements: (1) Eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction. With regard to the review
required by section 3(a), section 3(b) of Executive Order 12988
specifically requires that Executive agencies make every reasonable
effort to ensure that the regulation: (1) Clearly specifies the
preemptive effect, if any; (2) clearly specifies any effect on existing
Federal law or regulation; (3) provides a clear legal standard for
affected conduct while promoting simplification and burden reduction;
(4) specifies the retroactive effect, if any; (5) adequately defines
key terms; and (6) addresses other important issues affecting clarity
and general draftsmanship under any guidelines issued by the Attorney
General. Section 3(c) of Executive Order 12988 requires Executive
agencies to review regulations in light of applicable standards in
section 3(a) and section 3(b) to determine whether they are met or it
is unreasonable to meet one or more of them. DOE has completed the
required review and determined that, to the extent permitted by law,
the proposed rule meets the relevant standards of Executive Order
12988.
I. Treasury and General Government Appropriations Act, 2001
The Treasury and General Government Appropriations Act, 44 U.S.C.
3516 note (2001), provides for agencies to review most disseminations
of information to the public under guidelines established by each
agency pursuant to general guidelines issued by OMB.
OMB's guidelines were published at 67 FR 8452 (February 22, 2002),
and DOE's guidelines were published at 67 FR 62446 (October 7, 2002).
DOE has reviewed this proposed rule in accordance with the OMB and DOE
guidelines and has concluded that it is consistent with applicable
policies in those guidelines.
J. Executive Order 13211
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355
(May 22, 2001), requires Federal agencies to prepare and submit to the
OMB a Statement of Energy Effects for any proposed significant energy
action. A ``significant energy action'' is defined as any action by an
agency that promulgated or is expected to lead to promulgation of a
final rule, and that: (1) Is a significant regulatory action under
Executive Order 12866, or any successor order; and (2) is likely to
have a significant adverse effect on the supply, distribution, or use
of energy, or (3) is designated by the Administrator of the Office of
Information and Regulatory Policy as a significant energy action. For
any proposed significant energy action, the agency must give a detailed
statement of any adverse effects on energy supply, distribution, or use
should the proposal be implemented, and of reasonable alternatives to
the action and their expected benefits on energy supply, distribution,
and use. This regulatory action would not have a significant adverse
effect on the supply, distribution, or use of energy and is therefore
not a significant energy action.
[[Page 72751]]
Accordingly, DOE has not prepared a Statement of Energy Effects.
IV. Approval of the Office of the Secretary
The Secretary of Energy has approved the issuance of this notice of
proposed rulemaking.
List of Subjects in 10 CFR Part 1010
Conduct standards, Conflicts of interest, Ethical conduct,
Government employees.
Issued in Washington, DC, on November 20, 2008.
David R. Hill,
General Counsel.
For the reasons stated in the preamble, DOE proposes to amend
chapter X of Title 10 of the Code of Federal Regulations as set forth
below:
PART 1010--CONDUCT OF EMPLOYEES AND FORMER EMPLOYEES
1. The authority citation for part 1010 is revised to read as
follows:
Authority: 5 U.S.C. 301, 303, 7301; 5 U.S.C. App. (Ethics in
Government Act); 5 U.S.C. App. (Inspector General Act of 1978); E.O.
12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O.
12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105; 18
U.S.C. 207, 208.
2. The heading to Part 1010 is revised as set forth above.
3. Sections 1010.101 through 1010.104 are designated as Subpart A
and the heading is added to read as set forth below:
Subpart A--Conduct of Employees
* * * * *
Sec. 1010.101 [Amended]
4. Section 1010.101 is amended by removing the word ``part,'' and
adding the word ``subpart'' in its place.
5. A new Subpart B is added to Part 1010 to read as follows:
Subpart B--Procedures for Exemption of Scientific and Technological
Information Communications From Post-Employment Restrictions
Sec.
1010.201 Purpose and scope.
1010.202 Definitions.
1010.203 Procedures for review and approval of requests.
Sec. 1010.201 Purpose and scope.
(a) This subpart sets forth criteria for the types of
communications on scientific or technological matters permitted under
18 U.S.C. 207(j)(5) by defining the term ``scientific or technological
information.'' This subpart also establishes the procedures for
receiving and approving requests from former employees of the executive
branch to make such communications to DOE.
(b) This subpart applies to any former employee of the executive
branch subject to the post-employment conflict of interest restrictions
in 18 U.S.C. 207(a), (c), and (d), who wishes to communicate with DOE
under the exemption in 18 U.S.C. 207(j)(5) for the purpose of
furnishing scientific or technological information to DOE offices or
officials.
(c) This subpart does not apply to a former DOE employee's
testimony as an expert in an adversarial proceeding in which the United
States is a party or has a direct and substantial interest.
Sec. 1010.202 Definitions.
For purposes of this subpart:
(a) Agency designee refers to an individual serving in a position
in DOE requiring appointment by the President of the United States with
the advice and consent of the Senate.
(b) Authorized communication means any transmission of scientific
or technological information to any DOE office or official that is
approved by DOE under Sec. 1010.203 of this subpart.
(c) DOE refers to the U.S. Department of Energy.
(d) Scientific or technological information includes:
(1) Information of a scientific or technological nature, including,
but not limited to, technical or engineering information relating to
the natural sciences;
(2) Information in meritorious or convincing scientific or
technological proposals;
(3) Information that informs Federal officials of the significance
of other scientific or technological alternatives that could impact the
validity, usefulness, or ability to measure the completeness of the
data supplied on those alternatives; or
(4) Information regarding the feasibility, risk, cost, or speed of
implementation of a DOE project or program when necessary to appreciate
fairly the practical significance of the information.
Sec. 1010.203 Procedures for review and approval of requests.
(a) Any former employee of the executive branch subject to the
constraints of the post-employment restrictions of 18 U.S.C. 207(a),
(c), and (d) who wishes to communicate scientific or technological
information to DOE must contact the DOE office with which the former
employee wishes to communicate and request authorization to make such
communication. This request must address, in detail, information
regarding each of the factors set forth in paragraphs (c)(1) through
(c)(6) and (c)(8) of this section.
(b) In consultation with the Designated Agency Ethics Official
(DAEO), the agency designee must advise the former employee in writing
whether the proposed communication is an authorized communication. This
authority cannot be delegated.
(c) In deciding whether a proposed communication is an authorized
communication, the agency designee receiving the request and the DAEO
must consider the following factors:
(1) Whether the former employee has relevant scientific or
technical qualifications;
(2) Whether the former employee has qualifications that are
otherwise unavailable;
(3) The nature of the scientific or technological information to be
conveyed;
(4) The former employee's position prior to termination;
(5) The extent of the former employee's involvement in the matter
at issue during his or her employment, including:
(i) The former employee's involvement in the same particular matter
involving specific parties;
(ii) The time elapsed since the former employee's participation in
such matter; and
(iii) The offices within the Federal department or agency involved
in the matter both during the former employee's period of employment in
the executive branch and at the time the request is being made;
(6) The existence of pending or anticipated matters before the
Federal government from which the former employee or his or her current
employer may financially benefit, including contract modifications,
grant applications, and proposals; and
(7) Whether DOE's interests would be served by allowing the
proposed communication; and
(8) Any other information relevant to deciding if there is an
intent to influence a decision or action of DOE.
[FR Doc. E8-28267 Filed 11-28-08; 8:45 am]
BILLING CODE 6450-01-P
