Post-Employment Conflict of Interest Restrictions; Departmental Component Designations, 7252-7254 [2020-02395]

Agencies

• Office of Government Ethics

[Federal Register Volume 85, Number 26 (Friday, February 7, 2020)]
[Proposed Rules]
[Pages 7252-7254]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-02395]


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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.

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Federal Register / Vol. 85, No. 26 / Friday, February 7, 2020 / 
Proposed Rules

[[Page 7252]]



OFFICE OF GOVERNMENT ETHICS

5 CFR Part 2641

RIN 3209-AA44


Post-Employment Conflict of Interest Restrictions; Departmental 
Component Designations

AGENCY: Office of Government Ethics.

ACTION: Proposed rule.

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SUMMARY: The U.S. Office of Government Ethics (OGE) is issuing a 
proposed rule to revise the component designations of three agencies 
for purposes of the one-year post-employment conflict of interest 
restriction for senior employees. Specifically, based on the 
recommendations of the agencies concerned, OGE is proposing to 
designate two new components in appendix B to 5 CFR part 2641, and to 
correct an inadvertent error in the current appendix B listing of a 
previously-designated component.

DATES: Written comments are invited and must be received on or before 
March 9, 2020.

ADDRESSES: You may submit comments, in writing, to OGE on this proposed 
rule, identified by RIN 3209-AA44, by any of the following methods:
    Email: [email protected]. 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-AA44, 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 website, 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; Correction to Existing Component Designation 
and Addition of Two New Departmental Components

    The Director of OGE (Director) is authorized 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. 18 U.S.C. 207(h). 
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). 18 U.S.C. 207(h)(2). Component 
designations are listed in appendix B to 5 CFR part 2641.
    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. Likewise, 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.
    The Director regularly reviews the component designations listed in 
appendix B to part 2641, 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), three 
agencies have forwarded written requests to OGE to amend their listings 
in appendix B to part 2641. 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.

Department of the Treasury

    The Department of the Treasury (Treasury) informed OGE that 
appendix B to part 2641 misstates the name of one of its long-
designated agency components. Specifically, appendix B lists 
``Financial Crimes Enforcement Center (FinCEN)'' as a Treasury 
component, but the name of the component that goes by the acronym 
FinCEN is, and always has been, Financial Crimes Enforcement Network. 
Although the full name of FinCEN was stated properly when the component 
was first designated and added to

[[Page 7253]]

appendix B, see 68 FR 4681 (Jan. 30, 2003), it appears that through an 
inadvertent error subsequent Federal Register notices (and accordingly, 
CFR publications) listed the name of the component incorrectly in 
appendix B as ``Financial Crimes Enforcement Center''--see, e.g., 68 FR 
7884 (Feb. 18, 2003), 73 FR 36168 (June 25, 2008), 79 FR 71955 (Dec. 4, 
2014). To appropriately resolve this situation, OGE proposes to make a 
technical correction to the Department of the Treasury listing in 
appendix B to part 2641 by deleting the word ``Center'' from the 
component listed as ``Financial Crimes Enforcement Center (FinCEN) 
(effective January 30, 2003)'' and replacing it with the word 
``Network''.

Department of Labor

    The Department of Labor has requested that OGE designate Veterans' 
Employment and Training Service in appendix B to part 2641 as a 
distinct and separate component of the Department of Labor for purposes 
of 18 U.S.C. 207(c). The Veterans' Education and Employment Assistance 
Act of 1976, Public Law 94-502, established within the Department of 
Labor a Deputy Assistant Secretary of Labor for Veterans' Employment, 
whose role was to be the principal advisor to the Secretary of Labor 
with respect to the formulation and implementation of all departmental 
policies and procedures to carry out employment, unemployment, and 
training programs at the Department of Labor relating to veterans. In 
October 1980, Public Law 96-466 elevated the Deputy Assistant Secretary 
of Labor for Veterans' Employment to an Assistant Secretary position, 
and Secretary of Labor's Order No. 5-81, issued in December 1981, 
established the Office of the Assistant Secretary for Veterans' 
Employment and Training (OASVET). In March 1983, Secretary of Labor's 
Order No. 4-83 redesignated OASVET as the Veterans' Employment and 
Training Service (VETS) and updated the Assistant Secretary title to be 
Assistant Secretary of Labor for Veterans' Employment and Training.
    VETS was created to give policy-level considerations to the unique 
needs and challenges of veterans. The office works to improve 
employment, training, and other workforce scenarios for veterans 
through a variety of avenues, including job counseling service 
programs, employment placement service programs, and job training 
placement service programs. In addition, VETS safeguards the employment 
rights of veterans and US service members and protects them from 
employment discrimination or retaliation on the basis of military 
service by enforcing the Uniform Services Employment and Reemployment 
Rights Act, 38 U.S.C. 4301-4335. According to the Department of Labor, 
the functions of VETS are distinct and separate from every other agency 
within the Department. The office was created by a discrete authority 
that is separate from the organic statute for the Department of Labor; 
has been explicitly delegated distinct responsibilities relating to 
veterans' training and employment; exercises distinct and separate 
functions to implement and enforce distinct and separate laws and 
programs related to veterans; is headed by an Assistant Secretary who 
reports directly to the Secretary of Labor; and is relatively the same 
size as other components designated by the Department of Labor in 
appendix B to part 2641. Given the manner in which VETS works 
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 amend the agency's listing in appendix B to 
part 2641 to add VETS as a new component for purposes of 18 U.S.C. 
207(c).

Department of Commerce

    The Department of Commerce has requested that OGE designate the 
Bureau of Economic Analysis (BEA) as a distinct and separate component 
of the Department of Commerce for purposes of 18 U.S.C. 207(c). The 
mission of BEA is to promote a better understanding of the U.S. economy 
by providing timely, relevant, and accurate economic accounts data, 
including reports about gross domestic product, and data concerning 
personal income, corporate profits, and Government spending. 
Statistical measures produced by BEA are used by Federal, state, and 
local governments for budget development and projections; by the 
Federal Reserve for monetary policy; by the business sector for 
planning and investment; and by the public to understand the 
performance of the American economy. BEA is under the supervision of 
the Department of Commerce's Under Secretary for Economic Affairs; the 
Bureau of the Census, which is already designated as a separate 
component in appendix B to part 2641, is the other bureau supervised by 
the Under Secretary for Economic Affairs.
    According to the Department of Commerce, BEA is responsible for 
exercising functions that are distinct and separate from the Department 
of Commerce and the function of other designated components within the 
agency. The office operates as a statistical agency, and the subject 
matter and activities of the office are distinct from that of every 
other component within the Department; other offices and components do 
not generate similar economic data. BEA is further insulated from other 
components of the Department of Commerce because much of the economic 
data collected by BEA is ``embargoed'' or closely-held until it is 
released at specified times. BEA is also comparable in size to other 
components that have been designated by the Department of Commerce in 
appendix B to part 2641. In light of the distinct and separate 
functions of BEA, there is no potential for the use of undue influence 
or unfair advantage based on based on past Government service.
    Accordingly, OGE is proposing to grant the request of the 
Department of Commerce and amend the listing in appendix B to part 2641 
to designate the Bureau of Economic Analysis as a new component for 
purposes of 18 U.S.C. 207(c).
    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--for VETS and BEA--
would be effective on the date the final rule is published in the 
Federal Register; the component designation of FinCEN remains in effect 
as of the original designation date, January 30, 2003.

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

[[Page 7254]]

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 13563 and 12866

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select the regulatory approaches that 
maximize net benefits (including economic, environmental, public health 
and safety effects, distributive impacts, and equity). Executive Order 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
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: February 3, 2020.
Emory Rounds,
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. Appendix B to part 2641 is amended by revising the listings for the 
Department of Commerce, the Department of Labor, and the Department of 
the Treasury to read as follows:

Appendix B to Part 2641--Agency Components for Purposes of 18 U.S.C. 
207(c)

* * * * *

Parent: Department of Commerce

Components:
    Bureau of the Census.
    Bureau of Economic Analysis (effective upon publication of the 
final rule in the Federal Register).
    Bureau of Industry and Security (formerly Bureau of Export 
Administration) (effective January 28, 1992).
    Economic Development Administration.
    International Trade Administration.
    Minority Business Development Agency (formerly listed as Minority 
Business Development Administration).
    National Institute of Standards and Technology (effective March 6, 
2008).
    National Oceanic and Atmospheric Administration.
    National Technical Information Service (effective March 6, 2008).
    National Telecommunications and Information Administration.
    United States Patent and Trademark Office (formerly Patent and 
Trademark Office).
* * * * *

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.
    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 December 
29, 2016).
    Office of Labor Management Standards (effective December 29, 2016).
    Office of Workers' Compensation Programs (effective December 29, 
2016).
    Pension Benefit Guaranty Corporation (effective May 25, 2011).
    Veterans' Employment and Training Service (effective upon 
publication of the final rule in the Federal Register).
    Wage and Hour Division (effective December 29, 2016).
* * * * *

Parent: Department of the Treasury

Components:
    Alcohol and Tobacco Tax and Trade Bureau (effective November 23, 
2004).
    Bureau of Engraving and Printing.
    Bureau of the Fiscal Service (effective December 4, 2014).
    Comptroller of the Currency.
    Financial Crimes Enforcement Network (FinCEN) (effective January 
30, 2003).
    Internal Revenue Service.
    United States Mint (formerly listed as Bureau of the Mint).

[FR Doc. 2020-02395 Filed 2-6-20; 8:45 am]
 BILLING CODE 6345-02-P