Conduct of Employees and Former Employees; Exemption From Post-Employment Restrictions for Communications Furnishing Scientific or Technological Information, 75373-75376 [2010-30398]
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Federal Register / Vol. 75, No. 232 / Friday, December 3, 2010 / Rules and Regulations
§§ 630.402 through 630.406 [Redesignated
as §§ 630.404 through 630.408].
3a. Redesignate §§ 630.402 through
630.406 as §§ 630.404 through 630.408,
respectively.
■ 3b. Add new § 630.402 to read as
follows:
■
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§ 630.402
Advanced sick leave.
(a) At the beginning of a leave year or
at any time thereafter when required by
the exigencies of the situation, an
agency may grant advanced sick leave in
the amount of:
(1) Up to 240 hours to a full-time
employee—
(i) Who is incapacitated for the
performance of his or her duties by
physical or mental illness, injury,
pregnancy, or childbirth;
(ii) For a serious health condition of
the employee or a family member;
(iii) When the employee would, as
determined by the health authorities
having jurisdiction or by a health care
provider, jeopardize the health of others
by his or her presence on the job
because of exposure to a communicable
disease;
(iv) For purposes relating to the
adoption of a child; or
(v) For the care of a covered
servicemember with a serious injury or
illness, provided the employee is
exercising his or her entitlement under
5 U.S.C. 6382(a)(3).
(2) Up to 104 hours to a full-time
employee—
(i) When he or she receives medical,
dental or optical examination or
treatment;
(ii) To provide care for a family
member who is incapacitated by a
medical or mental condition or to attend
to a family member receiving medical,
dental, or optical examination or
treatment;
(iii) To provide care for a family
member who would, as determined by
the health authorities having
jurisdiction or by a health care provider,
jeopardize the health of others by that
family member’s presence in the
community because of exposure to a
communicable disease; or
(iv) To make arrangements
necessitated by the death of a family
member or to attend the funeral of a
family member.
(b) Two hundred forty hours is the
maximum amount of advanced sick
leave an employee may have to his or
her credit at any one time. For a parttime employee (or an employee on an
uncommon tour of duty), the maximum
amount of sick leave an agency may
advance must be prorated according to
the number of hours in the employee’s
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regularly scheduled administrative
workweek.
■ 3c. Add new § 630.403 to read as
follows:
§ 630.403 Substitution of sick leave for
unpaid family and medical leave to care for
a covered servicemember.
The amount of accumulated and
accrued sick leave an employee may
substitute for unpaid family and
medical leave under 5 U.S.C. 6382(a)(3)
for leave to care for a covered
servicemember may not exceed a total of
26 administrative workweeks in a single
12-month period (or, for a part-time
employee or an employee with an
uncommon tour of duty, an amount of
sick leave equal to 26 times the average
number of hours in his or her scheduled
tour of duty each week).
■ 4. Revise paragraphs (b) and (c) of
§ 630.502 to read as follows:
§ 630.502
Sick leave recredit.
*
*
*
*
*
(b) Except as provided in § 630.407
and in paragraph (c) of this section, an
employee who has had a break in
service is entitled to a recredit of sick
leave (without regard to the date of his
or her separation), if he or she returns
to Federal employment on or after
December 2, 1994, unless the sick leave
was forfeited upon reemployment in the
Federal Government before December 2,
1994.
(c) Except as provided in § 630.407,
an employee of the government of the
District of Columbia who was first
employed by the government of the
District of Columbia before October 1,
1987, and who has had a break in
service is entitled to a recredit of sick
leave (without regard to the date of his
or her separation) if he or she returns to
Federal employment on or after
December 2, 1994, unless the sick leave
was forfeited upon reemployment in the
Federal Government before December 2,
1994.
*
*
*
*
*
[FR Doc. 2010–30371 Filed 12–2–10; 8:45 am]
BILLING CODE 6325–39–P
DEPARTMENT OF ENERGY
10 CFR Part 1010
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.
AGENCY:
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ACTION:
75373
Final rule.
The Department of Energy
(DOE) today publishes a final 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
final rule also provides a definition of
the term ‘‘scientific or technological
information’’ that is consistent with the
definition provided by the Office of
Government Ethics (OGE) in its
regulations and for which an exemption
is provided by 18 U.S.C. 207(j)(5).
DATES: This rule is effective January 3,
2011.
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. Summary of Rule and Changes to
Proposed Rule
III. Regulatory Review
SUMMARY:
I. Background
On December 1, 2008, the Department
of Energy published for comment a
proposed rule revising 10 CFR Part 1010
to establish in a new subpart B
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). The
proposed rule also defined 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. See 73 FR 72748–72751
(December 1, 2008).
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.
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207(a), (c), and (d). Section 207(j)(5)
provides that such communications
must be made under procedures
acceptable to the agency to which the
communication is directed, or the head
of such agency 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.
As explained in the preamble, the
purpose of the proposed rule was 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 further defined
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. The
proposed definition did not extend to
information associated solely with a
nontechnical discipline such as law,
economics, or political science.
The proposed rule provided a 30-day
comment period. No comments were
received during this period.
II. Summary of Rule and Changes to
Proposed Rule
In today’s final rule, section 10 CFR
1010.202, defines the statutory term
‘‘scientific or technological information’’
and provides 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. DOE consulted with OGE in
developing this rule. As a result of that
consultation, DOE adopted verbatim the
definition of ‘‘scientific and
technological information’’ contained in
OGE’s regulations (5 CFR
2641.301(e)(2)), in lieu of the definition
in the proposed rule. DOE views this as
a non-substantive change, and one that
may avoid potential confusion by the
public regarding the meaning of this
term. 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
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interest would be served by allowing
such communications. Section 1010.202
also defines the term ‘‘authorized
communication’’ as the transmission of
scientific or technological information
that has been approved by DOE under
the procedures that will be established
by this rulemaking.
Final 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 agency designee in 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
agency designee is an individual serving
in the office with cognizance over the
matter and in a position requiring
appointment by the President of the
United States with the advice and
consent of the Senate. The final rule
clarifies that the agency designee cannot
delegate this authority, unless the
authority is delegated to another
individual serving in a position in DOE
requiring appointment by the President
of the United States with the advice and
consent of the Senate.
The final rule 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 final 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 (OIRA) of the Office of
Management and Budget (OMB).
B. National Environmental Policy Act
DOE has determined that this final
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
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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 final rule
under the provisions of the Regulatory
Flexibility Act and the procedures and
policies published on February 19,
2003. The final 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
final rule will not have a 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 final rule.
E. Unfunded Mandates Reform Act of
1995
The Unfunded Mandates Reform Act
of 1995, Public Law 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
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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.
This final rule will apply only to
former executive branch employees who
want to communicate with DOE on
scientific or technological matters. The
rule will 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, no assessment or analysis
is required under the Unfunded
Mandates Reform Act of 1995.
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F. Treasury and General Government
Appropriations Act, 1999
Section 654 of the Treasury and
General Government Appropriations
Act, 1999 (Pub. L. 105–277) requires
Federal agencies to issue a Family
Policymaking Assessment for any
proposed rule that may affect family
well being. The final rule will 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
final rule and has determined that it
will not preempt State law and will not
have a substantial direct effect on the
States, on the relationship between the
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national 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 final rule
meets the relevant standards of
Executive Order 12988.
I. Treasury and General Government
Appropriations Act, 2001
The Treasury and General
Government Appropriations Act, 2001
(44 U.S.C. 3516 note) 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 final rule under the OMB
and DOE guidelines and has concluded
that it is consistent with applicable
policies in those guidelines.
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75375
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
OIRA 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.
Today’s regulatory action will not have
a significant adverse effect on the
supply, distribution, or use of energy
and is therefore not a significant energy
action. Accordingly, DOE has not
prepared a Statement of Energy Effects.
K. Congressional Notification
As required by 5 U.S.C. 801, DOE will
submit to Congress a report regarding
the issuance of today’s final rule prior
to the effective date set forth at the
outset of this notice. The report will
state that it has been determined that
the rule is not a ‘‘major rule’’ as defined
by 5 U.S.C. 801(2).
IV. Approval of the Office of the
Secretary
The Secretary of Energy has approved
the issuance of this final rule.
List of Subjects in 10 CFR Part 1010
Conduct standards, Conflicts of
interest, Ethical conduct, Government
employees.
Issued in Washington, DC, on November
29, 2010.
Scott Blake Harris,
General Counsel.
For the reasons stated in the preamble,
DOE is amending 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:
■
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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
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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(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.
§ 1010.202
Definitions.
For purposes of this subpart:
(a) Agency designee means 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.
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(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 means the U.S. Department of
Energy.
(d) Scientific or technological
information means: Information of a
scientific or technological character,
such as technical or engineering
information relating to the natural
sciences. The exception does not extend
to information associated with a
nontechnical discipline such as law,
economics, or political science.
(e) Incidental references or remarks.
Provided the former employee’s
communication primarily conveys
information of a scientific or
technological character, the entirety of
the communication will be deemed
made solely for the purpose of
furnishing such information
notwithstanding an incidental reference
or remark:
(1) Unrelated to the matter to which
the post-employment restriction applies;
(2) Concerning feasibility, risk, cost,
speed of implementation, or other
considerations when necessary to
appreciate the practical significance of
the basic scientific or technological
information provided; or
(3) Intended to facilitate the
furnishing of scientific or technological
information, such as those references or
remarks necessary to determine the kind
and form of information required or the
adequacy of information already
supplied.
§ 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 be in
writing and 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 in the
office with cognizance over the matter
must advise the former employee in
writing whether the proposed
communication is an authorized
communication. This authority cannot
be delegated, except to another
individual serving in a position in DOE
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requiring appointment by the President
of the United States with the advice and
consent of the Senate.
(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 to both the former
employee’s current employer and DOE;
(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 relevant information.
[FR Doc. 2010–30398 Filed 12–2–10; 8:45 am]
BILLING CODE 6450–01–P
DEPARTMENT OF THE TREASURY
Community Development Financial
Institutions Fund
12 CFR Part 1807
RIN 1559–AA00
Capital Magnet Fund
Community Development
Financial Institutions Fund, Department
of the Treasury.
ACTION: Interim rule with request for
public comment.
AGENCY:
The Department of the
Treasury is issuing this interim rule
SUMMARY:
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]]>Agencies
[Federal Register Volume 75, Number 232 (Friday, December 3, 2010)]
[Rules and Regulations]
[Pages 75373-75376]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-30398]
=======================================================================
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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: Final rule.
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SUMMARY: The Department of Energy (DOE) today publishes a final 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 final rule also provides a definition of the term ``scientific or
technological information'' that is consistent with the definition
provided by the Office of Government Ethics (OGE) in its regulations
and for which an exemption is provided by 18 U.S.C. 207(j)(5).
DATES: This rule is effective January 3, 2011.
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. Summary of Rule and Changes to Proposed Rule
III. Regulatory Review
I. Background
On December 1, 2008, the Department of Energy published for comment
a proposed rule revising 10 CFR Part 1010 to establish in a new subpart
B 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). The proposed rule also defined
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. See 73 FR 72748-72751
(December 1, 2008).
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.
[[Page 75374]]
207(a), (c), and (d). Section 207(j)(5) provides that such
communications must be made under procedures acceptable to the agency
to which the communication is directed, or the head of such agency 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.
As explained in the preamble, the purpose of the proposed rule was
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 further defined 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. The
proposed definition did not extend to information associated solely
with a nontechnical discipline such as law, economics, or political
science.
The proposed rule provided a 30-day comment period. No comments
were received during this period.
II. Summary of Rule and Changes to Proposed Rule
In today's final rule, section 10 CFR 1010.202, defines the
statutory term ``scientific or technological information'' and provides
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. DOE consulted with OGE in developing this rule. As a result
of that consultation, DOE adopted verbatim the definition of
``scientific and technological information'' contained in OGE's
regulations (5 CFR 2641.301(e)(2)), in lieu of the definition in the
proposed rule. DOE views this as a non-substantive change, and one that
may avoid potential confusion by the public regarding the meaning of
this term. 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 defines the term
``authorized communication'' as the transmission of scientific or
technological information that has been approved by DOE under the
procedures that will be established by this rulemaking.
Final 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 agency designee in 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 agency designee is
an individual serving in the office with cognizance over the matter and
in a position requiring appointment by the President of the United
States with the advice and consent of the Senate. The final rule
clarifies that the agency designee cannot delegate this authority,
unless the authority is delegated to another individual serving in a
position in DOE requiring appointment by the President of the United
States with the advice and consent of the Senate.
The final rule 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 final 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 (OIRA) of the Office of Management
and Budget (OMB).
B. National Environmental Policy Act
DOE has determined that this final 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 final rule under the provisions of the
Regulatory Flexibility Act and the procedures and policies published on
February 19, 2003. The final 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 final
rule will not have a 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 final rule.
E. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995, Public Law 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
[[Page 75375]]
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.
This final rule will apply only to former executive branch
employees who want to communicate with DOE on scientific or
technological matters. The rule will 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,
no assessment or analysis is required under the Unfunded Mandates
Reform Act of 1995.
F. Treasury and General Government Appropriations Act, 1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family
Policymaking Assessment for any proposed rule that may affect family
well being. The final rule will 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 final rule and has
determined that it will not preempt State law and will not have a
substantial direct effect on the States, on the relationship between
the national 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 final rule meets the relevant standards of Executive Order 12988.
I. Treasury and General Government Appropriations Act, 2001
The Treasury and General Government Appropriations Act, 2001 (44
U.S.C. 3516 note) 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
final rule under 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 OIRA 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. Today's regulatory
action will not have a significant adverse effect on the supply,
distribution, or use of energy and is therefore not a significant
energy action. Accordingly, DOE has not prepared a Statement of Energy
Effects.
K. Congressional Notification
As required by 5 U.S.C. 801, DOE will submit to Congress a report
regarding the issuance of today's final rule prior to the effective
date set forth at the outset of this notice. The report will state that
it has been determined that the rule is not a ``major rule'' as defined
by 5 U.S.C. 801(2).
IV. Approval of the Office of the Secretary
The Secretary of Energy has approved the issuance of this final
rule.
List of Subjects in 10 CFR Part 1010
Conduct standards, Conflicts of interest, Ethical conduct,
Government employees.
Issued in Washington, DC, on November 29, 2010.
Scott Blake Harris,
General Counsel.
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For the reasons stated in the preamble, DOE is amending chapter X of
Title 10 of the Code of Federal Regulations as set forth below:
PART 1010--CONDUCT OF EMPLOYEES AND FORMER EMPLOYEES
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1. The authority citation for part 1010 is revised to read as follows:
[[Page 75376]]
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.
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2. The heading to Part 1010 is revised as set forth above.
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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]
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4. Section 1010.101 is amended by removing the word ``part,'' and
adding the word ``subpart'' in its place.
0
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 means 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 means the U.S. Department of Energy.
(d) Scientific or technological information means: Information of a
scientific or technological character, such as technical or engineering
information relating to the natural sciences. The exception does not
extend to information associated with a nontechnical discipline such as
law, economics, or political science.
(e) Incidental references or remarks. Provided the former
employee's communication primarily conveys information of a scientific
or technological character, the entirety of the communication will be
deemed made solely for the purpose of furnishing such information
notwithstanding an incidental reference or remark:
(1) Unrelated to the matter to which the post-employment
restriction applies;
(2) Concerning feasibility, risk, cost, speed of implementation, or
other considerations when necessary to appreciate the practical
significance of the basic scientific or technological information
provided; or
(3) Intended to facilitate the furnishing of scientific or
technological information, such as those references or remarks
necessary to determine the kind and form of information required or the
adequacy of information already supplied.
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 be in writing and 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 in the office with cognizance over the
matter must advise the former employee in writing whether the proposed
communication is an authorized communication. This authority cannot be
delegated, except to another individual serving in a position in DOE
requiring appointment by the President of the United States with the
advice and consent of the Senate.
(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 to both the former employee's current employer
and DOE;
(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 relevant information.
[FR Doc. 2010-30398 Filed 12-2-10; 8:45 am]
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