Post-Employment Conflict of Interest Restrictions; Revision of Departmental Component Designations, 71644-71646 [2016-25054]
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71644
Proposed Rules
Federal Register
Vol. 81, No. 201
Tuesday, October 18, 2016
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
OFFICE OF GOVERNMENT ETHICS
5 CFR Part 2641
or Social Security numbers, should not
be included. Comments generally will
not be edited to remove any identifying
or contact information.
FOR FURTHER INFORMATION CONTACT:
Kimberly L. Sikora Panza, Associate
Counsel, Office of Government Ethics,
Suite 500, 1201 New York Avenue NW.,
Washington, DC 20005–3917;
Telephone: (202) 482–9300; TTY: (800)
877–8339; FAX: (202) 482–9237.
RIN 3209–AA14
SUPPLEMENTARY INFORMATION:
Post-Employment Conflict of Interest
Restrictions; Revision of Departmental
Component Designations
I. Substantive Discussion; Revocation
and Addition of Departmental
Components
Office of Government Ethics.
Proposed rule.
AGENCY:
ACTION:
The U.S. Office of
Government Ethics (OGE) is issuing a
proposed rule to revise the component
designations of two agencies for
purposes of the one-year postemployment conflict of interest
restriction for senior employees.
Specifically, OGE is proposing to revoke
two existing component designations
and add five new component
designations, based on the
recommendations of the agencies
concerned.
SUMMARY:
Written comments are invited
and must be received on or before
November 17, 2016.
ADDRESSES: You may submit comments,
in writing, to OGE on this proposed
rule, identified by RIN 3209–AA14, by
any of the following methods:
Email: usoge@oge.gov. Include the
reference ‘‘Proposed Rule Revising
Departmental Component Designations’’
in the subject line of the message.
Fax: (202) 482–9237.
Mail/Hand Delivery/Courier: Office of
Government Ethics, Suite 500, 1201
New York Avenue NW., Washington,
DC 20005–3917, Attention: ‘‘Proposed
Rule Revising Departmental Component
Designations.’’
Instructions: All submissions must
include OGE’s agency name and the
Regulation Identifier Number (RIN),
3209–AA14, for this proposed
rulemaking. All comments, including
attachments and other supporting
materials, will become part of the public
record and subject to public disclosure.
Comments may be posted on OGE’s Web
site, www.oge.gov. Sensitive personal
information, such as account numbers
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DATES:
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The Director of OGE (Director) is
authorized by 18 U.S.C. 207(h) to
designate distinct and separate
departmental or agency components in
the executive branch for purposes of 18
U.S.C. 207(c), the one-year postemployment conflict of interest
restriction for senior employees. The
representational bar of 18 U.S.C. 207(c)
usually extends to the whole of any
department or agency in which a former
senior employee served in any capacity
during the year prior to termination
from a senior employee position.
However, 18 U.S.C. 207(h) provides that
whenever the Director determines that
an agency or bureau within a
department or agency in the executive
branch exercises functions which are
distinct and separate from the remaining
functions of the department or agency
and there exists no potential for use of
undue influence or unfair advantage
based on past Government service, the
Director shall by rule designate such
agency or bureau as a separate
component of that department or
agency. As a result, a former senior
employee who served in a ‘‘parent’’
department or agency is not barred by
18 U.S.C. 207(c) from making
communications to or appearances
before any employees of any designated
component of that parent, but is barred
as to employees of that parent or of
other components that have not been
separately designated. Moreover, a
former senior employee who served in
a designated component of a parent
department or agency is barred from
communicating to or making an
appearance before any employee of that
component, but is not barred as to any
employee of the parent, of another
designated component, or of any other
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Sfmt 4702
agency or bureau of the parent that has
not been designated.
Under 18 U.S.C. 207(h)(2), component
designations do not apply to persons
employed at a rate of pay specified in
or fixed according to subchapter II of 5
U.S.C. chapter 53 (the Executive
Schedule). Component designations are
listed in appendix B to 5 CFR part 2641.
The Director regularly reviews the
component designations and
determinations and, in consultation
with the department or agency
concerned, makes such additions and
deletions as are necessary. Specifically,
the Director ‘‘shall, by rule, make or
revoke a component designation after
considering the recommendation of the
designated agency ethics official.’’ 5
CFR 2641.302(e)(3). Before designating
an agency component as distinct and
separate for purposes of 18 U.S.C.
207(c), the Director must find that there
exists no potential for use of undue
influence or unfair advantage based on
past Government service, and that the
component is an agency or bureau,
within a parent agency, that exercises
functions which are distinct and
separate from the functions of the parent
agency and from the functions of other
components of that parent. 5 CFR
2641.302(c).
Pursuant to the procedures prescribed
in 5 CFR 2641.302(e), two agencies have
forwarded written requests to OGE to
amend their listings in appendix B.
After carefully reviewing the requested
changes in light of the criteria in 18
U.S.C. 207(h) as implemented in 5 CFR
2641.302(c), OGE is proposing to grant
these requests and amend appendix B as
explained below.
The Department of Labor has
requested that OGE revoke the
designation of the Employment
Standards Administration (ESA) in
appendix B to part 2641, and in the
place of ESA designate the Office of
Federal Contract Compliance Programs
(OFCCP), Office of Labor Management
Standards (OLMS), Office of Workers’
Compensation Programs (OWCP), and
the Wage and Hour Division (WHD) as
distinct and separate components of the
Department of Labor for purposes of 18
U.S.C. 207(c). These four entities were
the major program components of ESA
until November 8, 2009, when the
Secretary of the Department of Labor
dissolved ESA into its constituent
components. OFCCP, OLMS, OWCP,
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and WHD are each headed by a director
who now reports directly to the
Secretary of Labor.
OFCCP enforces, for the benefit of job
seekers and wage earners, the
contractual promise of affirmative
action and equal employment
opportunity required of those who do
business with the Federal Government
(Government contractors and
subcontractors). Specifically, OFCCP
administers and enforces three legal
authorities requiring equal employment
opportunity: Executive Order 11246, as
amended; Section 503 of the
Rehabilitation Act of 1973, as amended;
and the Vietnam Era Veterans’
Readjustment Assistance Act of 1974, as
amended, 38 U.S.C. 4212. These
authorities prohibit Federal contractors
and subcontractors from discriminating
on the basis of race, color, religion, sex,
sexual orientation, gender identity,
national origin, disability, and protected
veteran status, and also require Federal
contractors and subcontractors to take
affirmative action to ensure equal
employment opportunity in their
employment processes.
OLMS administers and enforces most
provisions of the Labor-Management
Reporting and Disclosure Act of 1959
(LMRDA). The LMRDA is a law that
promotes union democracy and
financial integrity in private sector labor
unions through standards for union
officer elections and union trusteeships
and safeguards for union assets, and
also promotes labor union and labormanagement transparency through
certain reporting and disclosure
requirements. In addition to the
LMRDA, OLMS administers provisions
of the Civil Service Reform Act of 1978
and the Foreign Service Act of 1980
relating to standards of conduct for
Federal employee organizations, which
are comparable to LMRDA
requirements. OLMS’ role as an
independent enforcement agency
overseeing unions gives it a unique and
critical role within the Department of
Labor with a key stakeholder.
OWCP administers four major
disability compensation programs that
provide wage replacement benefits,
medical treatment, vocational
rehabilitation, and other benefits to
certain workers or their dependents who
experience work-related injury or
occupational disease. Specifically, the
OWCP administers the Energy
Employees Occupational Illness
Compensation Program, the Federal
Employees’ Compensation Program, the
Longshore and Harbor Workers’
Compensation Program, and the Coal
Mine Workers’ Compensation Program,
each of which serve specific employee
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12:33 Oct 17, 2016
Jkt 241001
groups by mitigating the financial
burden resulting from workplace injury.
WHD enforces the federal minimum
wage, overtime pay, recordkeeping, and
child labor requirements of the Fair
Labor Standards Act. WHD also enforces
the Migrant and Seasonal Agricultural
Worker Protection Act, the Employee
Polygraph Protection Act, the Family
and Medical Leave Act, the wage
garnishment provisions of the Consumer
Credit Protection Act, and various
employment standards and worker
protections provided in several
immigration-related statutes. WHD also
administers and enforces the prevailing
wage requirements of the Davis Bacon
Act and the Service Contract Act, and
other statues applicable to federal
contracts for construction and the
provision of goods and services.
According to the Department of Labor,
the functions of OFCCP, OLMS, OWCP,
and WHD are distinct and separate from
each other, and also distinct and
separate from every other agency within
the Department. This distinction was
previously recognized when OGE
designated the now-abolished parent
agency, ESA, as a separate component of
the Department of Labor for purposes of
18 U.S.C. 207(c). The action that
abolished the ESA left OFCCP, OLMS,
OWCP, and WHD in its place. The four
departments were each created by
distinct authorities that are separate not
only from each other but also from the
organic statute for the Department of
Labor; have been explicitly delegated
distinct responsibilities following
dissolution of the ESA; exercise distinct
and separate functions to implement
and enforce distinct and separate
statutes; as noted above, are each
headed by a political appointee who
reports directly to the Secretary of
Labor; and are relatively the same size
as other components designated by the
Department of Labor in appendix B to
part 2641. Given the manner in which
OFCCP, OLMS, OWCP, and WHD work
independently from other component
agencies and the general management of
the Department of Labor, there exists no
potential for the use of undue influence
or unfair advantage based on past
Government service.
Accordingly, OGE is proposing to
grant the request of the Department of
Labor and is proposing to amend the
agency’s listing in appendix B to part
2641 to remove the ESA from the
component designation list and to
designate OFCCP, OLMS, OWCP, and
WHD as new components for purposes
of 18 U.S.C. 207(c).
The Department of Transportation has
requested that OGE designate the
Pipeline and Hazardous Materials Safety
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71645
Administration (PHMSA) as a distinct
and separate component of the
Department of Transportation for
purposes of 18 U.S.C. 207(c). Created
pursuant to the Norman Y. Mineta
Research and Special Programs
Improvements Act of 2004, PHMSA is
responsible for regulating safety in
pipeline transportation and hazardous
materials transportation, see 49 U.S.C.
108, and administers the Natural Gas
Pipeline Safety Act of 1968, among
other authorities. PHMSA is headed by
an Administrator who reports directly to
the Secretary of Transportation. The
Administrator is statutorily authorized
to carry out the duties and powers
related to pipeline and hazardous
materials transportation and safety, as
well as other duties and powers
prescribed by the Secretary.
According to the Department of
Transportation, PHMSA is responsible
for exercising functions that are distinct
and separate from the Department of
Transportation and from the functions
of other Operating Administrations
within the agency. PHMSA is the only
mode within DOT charged with
regulating pipeline safety. It is also the
only mode with the primary delegated
authority to regulate hazardous material
packaging, and is responsible for
drafting all hazardous material
regulations. In light of the distinct and
separate functions of PHMSA, there is
no potential for the use of undue
influence or unfair advantage based on
based on past Government service.
PHMSA is comparable in size to several
other Department of Transportation
divisions that are currently designated
as separate components in appendix B
to part 2641, and with the designation
of PHMSA, each of the Operating
Administrations of the Department of
Transportation will be designated as
separate components for purposes of 18
U.S.C. 207(c).
Accordingly, OGE is proposing to
grant the request of the Department of
Transportation and amend the listing in
appendix B to part 2641 to designate the
Pipeline and Hazardous Materials Safety
Administration as a new component for
purposes of 18 U.S.C. 207(c).
The Department of Transportation
also has requested revocation of the
designation of the Surface
Transportation Board (STB) in appendix
B to part 2641. The STB, the successor
to the Interstate Commerce Commission,
was established in 1996 as an
independent entity within the
Department of Transportation. On
December 28, 2015, the Surface
Transportation Board Reauthorization
Act of 2015 (Pub. L. 114–110)
established the STB as a wholly-
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Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 / Proposed Rules
independent federal agency. Because
the STB is now an independent agency
and is no longer administratively
aligned with the Department of
Transportation, OGE is proposing to
grant the request of the Department of
Transportation and amend the listing in
appendix B to part 2641 to remove STB
from the component designation list.
As indicated in 5 CFR 2641.302(f), a
designation ‘‘shall be effective on the
date the rule creating the designation is
published in the Federal Register and
shall be effective as to individuals who
terminated senior service either before,
on or after that date.’’ Initial
designations in appendix B to part 2641
were effective as of January 1, 1991. The
effective date of subsequent
designations is indicated by means of
parenthetical entries in appendix B. The
new component designations made in
this proposed rule would be effective on
the date the final rule is published in
the Federal Register.
As also indicated in 5 CFR
2641.302(f), revocation of a component
designation is effective 90 days after the
publication in the Federal Register of
the rule that revokes the designation.
Accordingly, the component
designation revocations proposed in this
rule would take effect 90 days after the
publication of the final rule effectuating
these proposed changes. Revocations are
not effective as to any individual
terminating senior service prior to the
expiration of the 90-day period.
II. Matters of Regulatory Procedure
Regulatory Flexibility Act
As Director of the Office of
Government Ethics, I certify under the
Regulatory Flexibility Act (5 U.S.C.
chapter 6) that this proposed rule will
not have a significant economic impact
on a substantial number of small entities
because it affects only Federal
departments and agencies and current
and former Federal employees.
Paperwork Reduction Act
Lhorne on DSK30JT082PROD with PROPOSALS
The Paperwork Reduction Act (44
U.S.C. chapter 35) does not apply to this
proposed rule because it does not
contain information collection
requirements that require the approval
of the Office of Management and
Budget.
Unfunded Mandates Reform Act
For purposes of the Unfunded
Mandates Reform Act of 1995 (2 U.S.C.
chapter 25, subchapter II), this proposed
rule would not significantly or uniquely
affect small governments and will not
result in increased expenditures by
State, local, and tribal governments, in
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12:33 Oct 17, 2016
Jkt 241001
the aggregate, or by the private sector, of
$100 million or more (as adjusted for
inflation) in any one year.
Congressional Review Act
The proposed rule is not a major rule
as defined in 5 U.S.C. chapter 8,
Congressional Review of Agency
Rulemaking.
REGISTER], remove the Surface
Transportation Board component from
the listing for Parent: Department of
Transportation.
The revisions read as follows:
Appendix B to Part 2641—Agency
Components for Purposes of 18 U.S.C.
207(c)
Executive Orders 12866 and 13563
*
In promulgating this rule, the Office
of Government Ethics has adhered to the
regulatory philosophy and the
applicable principles of regulation set
forth in Executive Orders 12866 and
13563. This proposed rule has not been
reviewed by the Office of Management
and Budget under Executive Order
12866 because it is not a ‘‘significant’’
regulatory action for the purposes of
that order.
Parent: Department of Labor
Executive Order 12988
As Director of the Office of
Government Ethics, I have reviewed this
proposed rule in light of section 3 of
Executive Order 12988, Civil Justice
Reform, and certify that it meets the
applicable standards provided therein.
List of Subjects in 5 CFR Part 2641
Conflict of interests, Government
employees.
Approved: October 12, 2016.
Walter M. Shaub, Jr.,
Director, Office of Government Ethics.
Accordingly, for the reasons set forth
in the preamble, the Office of
Government Ethics proposes to amend 5
CFR part 2641, as set forth below:
PART 2641—POST-EMPLOYMENT
CONFLICT OF INTEREST
RESTRICTIONS
1. The authority citation for part 2641
continues to read as follows:
■
Authority: 5 U.S.C. App. (Ethics in
Government Act of 1978); 18 U.S.C. 207; E.O.
12674, 54 FR 15159, 3 CFR, 1989 Comp., p.
215, as modified by E.O. 12731, 55 FR 42547,
3 CFR, 1990 Comp., p. 306.
2. Amend appendix B to part 2641 as
follows:
■ a. Revise the listings for Parent:
Department of Labor and Parent:
Department of Transportation.
■ b. Effective [DATE 90 DAYS AFTER
THE DATE OF PUBLICATION OF THE
FINAL RULE IN THE FEDERAL
REGISTER], remove the Employment
Standards Administration component
from the listing for Parent: Department
of Labor.
■ c. Effective [DATE 90 DAYS AFTER
THE DATE OF PUBLICATION OF THE
FINAL RULE IN THE FEDERAL
■
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*
*
*
*
Components:
Bureau of Labor Statistics.
Employee Benefits Security Administration
(formerly Pension and Welfare Benefits
Administration) (effective May 16, 1997).
Employment and Training Administration.
Employment Standards Administration
(expires 90 days after the date of publication
of the final rule in the Federal Register).
Mine Safety and Health Administration.
Occupational Safety and Health
Administration.
Office of Disability Employment Policy
(effective January 30, 2003).
Office of Federal Contract Compliance
Programs (effective upon publication of the
final rule in the Federal Register).
Office of Labor Management Standards
(effective upon publication of the final rule
in the Federal Register).
Office of Workers’ Compensation Programs
(effective upon publication of the final rule
in the Federal Register).
Pension Benefit Guaranty Corporation
(effective May 25, 2011).
Wage and Hour Division (effective upon
publication of the final rule in the Federal
Register).
*
*
*
*
*
Parent: Department of Transportation
Components:
Federal Aviation Administration.
Federal Highway Administration.
Federal Motor Carrier Safety
Administration (effective January 30, 2003).
Federal Railroad Administration.
Federal Transit Administration.
Maritime Administration.
National Highway Traffic Safety
Administration.
Pipeline and Hazardous Materials Safety
Administration (effective upon publication of
the final rule in the Federal Register).
Saint Lawrence Seaway Development
Corporation.
Surface Transportation Board (effective
May 16, 1997; expires 90 days after the date
of publication of the final rule in the Federal
Register).
*
*
*
*
*
[FR Doc. 2016–25054 Filed 10–17–16; 8:45 am]
BILLING CODE 6345–03–P
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Agencies
[Federal Register Volume 81, Number 201 (Tuesday, October 18, 2016)]
[Proposed Rules]
[Pages 71644-71646]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-25054]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 81, No. 201 / Tuesday, October 18, 2016 /
Proposed Rules
[[Page 71644]]
OFFICE OF GOVERNMENT ETHICS
5 CFR Part 2641
RIN 3209-AA14
Post-Employment Conflict of Interest Restrictions; Revision of
Departmental Component Designations
AGENCY: Office of Government Ethics.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Office of Government Ethics (OGE) is issuing a
proposed rule to revise the component designations of two agencies for
purposes of the one-year post-employment conflict of interest
restriction for senior employees. Specifically, OGE is proposing to
revoke two existing component designations and add five new component
designations, based on the recommendations of the agencies concerned.
DATES: Written comments are invited and must be received on or before
November 17, 2016.
ADDRESSES: You may submit comments, in writing, to OGE on this proposed
rule, identified by RIN 3209-AA14, by any of the following methods:
Email: usoge@oge.gov. Include the reference ``Proposed Rule
Revising Departmental Component Designations'' in the subject line of
the message.
Fax: (202) 482-9237.
Mail/Hand Delivery/Courier: Office of Government Ethics, Suite 500,
1201 New York Avenue NW., Washington, DC 20005-3917, Attention:
``Proposed Rule Revising Departmental Component Designations.''
Instructions: All submissions must include OGE's agency name and
the Regulation Identifier Number (RIN), 3209-AA14, for this proposed
rulemaking. All comments, including attachments and other supporting
materials, will become part of the public record and subject to public
disclosure. Comments may be posted on OGE's Web site, www.oge.gov.
Sensitive personal information, such as account numbers or Social
Security numbers, should not be included. Comments generally will not
be edited to remove any identifying or contact information.
FOR FURTHER INFORMATION CONTACT: Kimberly L. Sikora Panza, Associate
Counsel, Office of Government Ethics, Suite 500, 1201 New York Avenue
NW., Washington, DC 20005-3917; Telephone: (202) 482-9300; TTY: (800)
877-8339; FAX: (202) 482-9237.
SUPPLEMENTARY INFORMATION:
I. Substantive Discussion; Revocation and Addition of Departmental
Components
The Director of OGE (Director) is authorized by 18 U.S.C. 207(h) to
designate distinct and separate departmental or agency components in
the executive branch for purposes of 18 U.S.C. 207(c), the one-year
post-employment conflict of interest restriction for senior employees.
The representational bar of 18 U.S.C. 207(c) usually extends to the
whole of any department or agency in which a former senior employee
served in any capacity during the year prior to termination from a
senior employee position. However, 18 U.S.C. 207(h) provides that
whenever the Director determines that an agency or bureau within a
department or agency in the executive branch exercises functions which
are distinct and separate from the remaining functions of the
department or agency and there exists no potential for use of undue
influence or unfair advantage based on past Government service, the
Director shall by rule designate such agency or bureau as a separate
component of that department or agency. As a result, a former senior
employee who served in a ``parent'' department or agency is not barred
by 18 U.S.C. 207(c) from making communications to or appearances before
any employees of any designated component of that parent, but is barred
as to employees of that parent or of other components that have not
been separately designated. Moreover, a former senior employee who
served in a designated component of a parent department or agency is
barred from communicating to or making an appearance before any
employee of that component, but is not barred as to any employee of the
parent, of another designated component, or of any other agency or
bureau of the parent that has not been designated.
Under 18 U.S.C. 207(h)(2), component designations do not apply to
persons employed at a rate of pay specified in or fixed according to
subchapter II of 5 U.S.C. chapter 53 (the Executive Schedule).
Component designations are listed in appendix B to 5 CFR part 2641.
The Director regularly reviews the component designations and
determinations and, in consultation with the department or agency
concerned, makes such additions and deletions as are necessary.
Specifically, the Director ``shall, by rule, make or revoke a component
designation after considering the recommendation of the designated
agency ethics official.'' 5 CFR 2641.302(e)(3). Before designating an
agency component as distinct and separate for purposes of 18 U.S.C.
207(c), the Director must find that there exists no potential for use
of undue influence or unfair advantage based on past Government
service, and that the component is an agency or bureau, within a parent
agency, that exercises functions which are distinct and separate from
the functions of the parent agency and from the functions of other
components of that parent. 5 CFR 2641.302(c).
Pursuant to the procedures prescribed in 5 CFR 2641.302(e), two
agencies have forwarded written requests to OGE to amend their listings
in appendix B. After carefully reviewing the requested changes in light
of the criteria in 18 U.S.C. 207(h) as implemented in 5 CFR
2641.302(c), OGE is proposing to grant these requests and amend
appendix B as explained below.
The Department of Labor has requested that OGE revoke the
designation of the Employment Standards Administration (ESA) in
appendix B to part 2641, and in the place of ESA designate the Office
of Federal Contract Compliance Programs (OFCCP), Office of Labor
Management Standards (OLMS), Office of Workers' Compensation Programs
(OWCP), and the Wage and Hour Division (WHD) as distinct and separate
components of the Department of Labor for purposes of 18 U.S.C. 207(c).
These four entities were the major program components of ESA until
November 8, 2009, when the Secretary of the Department of Labor
dissolved ESA into its constituent components. OFCCP, OLMS, OWCP,
[[Page 71645]]
and WHD are each headed by a director who now reports directly to the
Secretary of Labor.
OFCCP enforces, for the benefit of job seekers and wage earners,
the contractual promise of affirmative action and equal employment
opportunity required of those who do business with the Federal
Government (Government contractors and subcontractors). Specifically,
OFCCP administers and enforces three legal authorities requiring equal
employment opportunity: Executive Order 11246, as amended; Section 503
of the Rehabilitation Act of 1973, as amended; and the Vietnam Era
Veterans' Readjustment Assistance Act of 1974, as amended, 38 U.S.C.
4212. These authorities prohibit Federal contractors and subcontractors
from discriminating on the basis of race, color, religion, sex, sexual
orientation, gender identity, national origin, disability, and
protected veteran status, and also require Federal contractors and
subcontractors to take affirmative action to ensure equal employment
opportunity in their employment processes.
OLMS administers and enforces most provisions of the Labor-
Management Reporting and Disclosure Act of 1959 (LMRDA). The LMRDA is a
law that promotes union democracy and financial integrity in private
sector labor unions through standards for union officer elections and
union trusteeships and safeguards for union assets, and also promotes
labor union and labor-management transparency through certain reporting
and disclosure requirements. In addition to the LMRDA, OLMS administers
provisions of the Civil Service Reform Act of 1978 and the Foreign
Service Act of 1980 relating to standards of conduct for Federal
employee organizations, which are comparable to LMRDA requirements.
OLMS' role as an independent enforcement agency overseeing unions gives
it a unique and critical role within the Department of Labor with a key
stakeholder.
OWCP administers four major disability compensation programs that
provide wage replacement benefits, medical treatment, vocational
rehabilitation, and other benefits to certain workers or their
dependents who experience work-related injury or occupational disease.
Specifically, the OWCP administers the Energy Employees Occupational
Illness Compensation Program, the Federal Employees' Compensation
Program, the Longshore and Harbor Workers' Compensation Program, and
the Coal Mine Workers' Compensation Program, each of which serve
specific employee groups by mitigating the financial burden resulting
from workplace injury.
WHD enforces the federal minimum wage, overtime pay, recordkeeping,
and child labor requirements of the Fair Labor Standards Act. WHD also
enforces the Migrant and Seasonal Agricultural Worker Protection Act,
the Employee Polygraph Protection Act, the Family and Medical Leave
Act, the wage garnishment provisions of the Consumer Credit Protection
Act, and various employment standards and worker protections provided
in several immigration-related statutes. WHD also administers and
enforces the prevailing wage requirements of the Davis Bacon Act and
the Service Contract Act, and other statues applicable to federal
contracts for construction and the provision of goods and services.
According to the Department of Labor, the functions of OFCCP, OLMS,
OWCP, and WHD are distinct and separate from each other, and also
distinct and separate from every other agency within the Department.
This distinction was previously recognized when OGE designated the now-
abolished parent agency, ESA, as a separate component of the Department
of Labor for purposes of 18 U.S.C. 207(c). The action that abolished
the ESA left OFCCP, OLMS, OWCP, and WHD in its place. The four
departments were each created by distinct authorities that are separate
not only from each other but also from the organic statute for the
Department of Labor; have been explicitly delegated distinct
responsibilities following dissolution of the ESA; exercise distinct
and separate functions to implement and enforce distinct and separate
statutes; as noted above, are each headed by a political appointee who
reports directly to the Secretary of Labor; and are relatively the same
size as other components designated by the Department of Labor in
appendix B to part 2641. Given the manner in which OFCCP, OLMS, OWCP,
and WHD work independently from other component agencies and the
general management of the Department of Labor, there exists no
potential for the use of undue influence or unfair advantage based on
past Government service.
Accordingly, OGE is proposing to grant the request of the
Department of Labor and is proposing to amend the agency's listing in
appendix B to part 2641 to remove the ESA from the component
designation list and to designate OFCCP, OLMS, OWCP, and WHD as new
components for purposes of 18 U.S.C. 207(c).
The Department of Transportation has requested that OGE designate
the Pipeline and Hazardous Materials Safety Administration (PHMSA) as a
distinct and separate component of the Department of Transportation for
purposes of 18 U.S.C. 207(c). Created pursuant to the Norman Y. Mineta
Research and Special Programs Improvements Act of 2004, PHMSA is
responsible for regulating safety in pipeline transportation and
hazardous materials transportation, see 49 U.S.C. 108, and administers
the Natural Gas Pipeline Safety Act of 1968, among other authorities.
PHMSA is headed by an Administrator who reports directly to the
Secretary of Transportation. The Administrator is statutorily
authorized to carry out the duties and powers related to pipeline and
hazardous materials transportation and safety, as well as other duties
and powers prescribed by the Secretary.
According to the Department of Transportation, PHMSA is responsible
for exercising functions that are distinct and separate from the
Department of Transportation and from the functions of other Operating
Administrations within the agency. PHMSA is the only mode within DOT
charged with regulating pipeline safety. It is also the only mode with
the primary delegated authority to regulate hazardous material
packaging, and is responsible for drafting all hazardous material
regulations. In light of the distinct and separate functions of PHMSA,
there is no potential for the use of undue influence or unfair
advantage based on based on past Government service. PHMSA is
comparable in size to several other Department of Transportation
divisions that are currently designated as separate components in
appendix B to part 2641, and with the designation of PHMSA, each of the
Operating Administrations of the Department of Transportation will be
designated as separate components for purposes of 18 U.S.C. 207(c).
Accordingly, OGE is proposing to grant the request of the
Department of Transportation and amend the listing in appendix B to
part 2641 to designate the Pipeline and Hazardous Materials Safety
Administration as a new component for purposes of 18 U.S.C. 207(c).
The Department of Transportation also has requested revocation of
the designation of the Surface Transportation Board (STB) in appendix B
to part 2641. The STB, the successor to the Interstate Commerce
Commission, was established in 1996 as an independent entity within the
Department of Transportation. On December 28, 2015, the Surface
Transportation Board Reauthorization Act of 2015 (Pub. L. 114-110)
established the STB as a wholly-
[[Page 71646]]
independent federal agency. Because the STB is now an independent
agency and is no longer administratively aligned with the Department of
Transportation, OGE is proposing to grant the request of the Department
of Transportation and amend the listing in appendix B to part 2641 to
remove STB from the component designation list.
As indicated in 5 CFR 2641.302(f), a designation ``shall be
effective on the date the rule creating the designation is published in
the Federal Register and shall be effective as to individuals who
terminated senior service either before, on or after that date.''
Initial designations in appendix B to part 2641 were effective as of
January 1, 1991. The effective date of subsequent designations is
indicated by means of parenthetical entries in appendix B. The new
component designations made in this proposed rule would be effective on
the date the final rule is published in the Federal Register.
As also indicated in 5 CFR 2641.302(f), revocation of a component
designation is effective 90 days after the publication in the Federal
Register of the rule that revokes the designation. Accordingly, the
component designation revocations proposed in this rule would take
effect 90 days after the publication of the final rule effectuating
these proposed changes. Revocations are not effective as to any
individual terminating senior service prior to the expiration of the
90-day period.
II. Matters of Regulatory Procedure
Regulatory Flexibility Act
As Director of the Office of Government Ethics, I certify under the
Regulatory Flexibility Act (5 U.S.C. chapter 6) that this proposed rule
will not have a significant economic impact on a substantial number of
small entities because it affects only Federal departments and agencies
and current and former Federal employees.
Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply
to this proposed rule because it does not contain information
collection requirements that require the approval of the Office of
Management and Budget.
Unfunded Mandates Reform Act
For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
chapter 25, subchapter II), this proposed rule would not significantly
or uniquely affect small governments and will not result in increased
expenditures by State, local, and tribal governments, in the aggregate,
or by the private sector, of $100 million or more (as adjusted for
inflation) in any one year.
Congressional Review Act
The proposed rule is not a major rule as defined in 5 U.S.C.
chapter 8, Congressional Review of Agency Rulemaking.
Executive Orders 12866 and 13563
In promulgating this rule, the Office of Government Ethics has
adhered to the regulatory philosophy and the applicable principles of
regulation set forth in Executive Orders 12866 and 13563. This proposed
rule has not been reviewed by the Office of Management and Budget under
Executive Order 12866 because it is not a ``significant'' regulatory
action for the purposes of that order.
Executive Order 12988
As Director of the Office of Government Ethics, I have reviewed
this proposed rule in light of section 3 of Executive Order 12988,
Civil Justice Reform, and certify that it meets the applicable
standards provided therein.
List of Subjects in 5 CFR Part 2641
Conflict of interests, Government employees.
Approved: October 12, 2016.
Walter M. Shaub, Jr.,
Director, Office of Government Ethics.
Accordingly, for the reasons set forth in the preamble, the Office
of Government Ethics proposes to amend 5 CFR part 2641, as set forth
below:
PART 2641--POST-EMPLOYMENT CONFLICT OF INTEREST RESTRICTIONS
0
1. The authority citation for part 2641 continues to read as follows:
Authority: 5 U.S.C. App. (Ethics in Government Act of 1978); 18
U.S.C. 207; E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as
modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306.
0
2. Amend appendix B to part 2641 as follows:
0
a. Revise the listings for Parent: Department of Labor and Parent:
Department of Transportation.
0
b. Effective [DATE 90 DAYS AFTER THE DATE OF PUBLICATION OF THE FINAL
RULE IN THE FEDERAL REGISTER], remove the Employment Standards
Administration component from the listing for Parent: Department of
Labor.
0
c. Effective [DATE 90 DAYS AFTER THE DATE OF PUBLICATION OF THE FINAL
RULE IN THE FEDERAL REGISTER], remove the Surface Transportation Board
component from the listing for Parent: Department of Transportation.
The revisions read as follows:
Appendix B to Part 2641--Agency Components for Purposes of 18 U.S.C.
207(c)
* * * * *
Parent: Department of Labor
Components:
Bureau of Labor Statistics.
Employee Benefits Security Administration (formerly Pension and
Welfare Benefits Administration) (effective May 16, 1997).
Employment and Training Administration.
Employment Standards Administration (expires 90 days after the
date of publication of the final rule in the Federal Register).
Mine Safety and Health Administration.
Occupational Safety and Health Administration.
Office of Disability Employment Policy (effective January 30,
2003).
Office of Federal Contract Compliance Programs (effective upon
publication of the final rule in the Federal Register).
Office of Labor Management Standards (effective upon publication
of the final rule in the Federal Register).
Office of Workers' Compensation Programs (effective upon
publication of the final rule in the Federal Register).
Pension Benefit Guaranty Corporation (effective May 25, 2011).
Wage and Hour Division (effective upon publication of the final
rule in the Federal Register).
* * * * *
Parent: Department of Transportation
Components:
Federal Aviation Administration.
Federal Highway Administration.
Federal Motor Carrier Safety Administration (effective January
30, 2003).
Federal Railroad Administration.
Federal Transit Administration.
Maritime Administration.
National Highway Traffic Safety Administration.
Pipeline and Hazardous Materials Safety Administration
(effective upon publication of the final rule in the Federal
Register).
Saint Lawrence Seaway Development Corporation.
Surface Transportation Board (effective May 16, 1997; expires 90
days after the date of publication of the final rule in the Federal
Register).
* * * * *
[FR Doc. 2016-25054 Filed 10-17-16; 8:45 am]
BILLING CODE 6345-03-P