[Federal Register Volume 62, Number 180 (Wednesday, September 17, 1997)]
[Rules and Regulations]
[Pages 48746-48748]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-24607]
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OFFICE OF GOVERNMENT ETHICS
5 CFR Parts 2634 and 2635
RINs 3209-AA00 and 3209-AA04
Removal of Superseded References to the Former Honorarium Ban,
Revisions to Conform With Procurement Integrity Changes and Conflict-
of-Interest Exemptions, and Other Updates
AGENCY: Office of Government Ethics (OGE).
ACTION: Final rule; technical amendments.
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SUMMARY: The Office of Government Ethics is removing superseded
references to the former statutory honorarium bar from the executive
branch regulations on standards of ethical conduct and financial
disclosure. In addition, revisions to the standards of conduct
regulation are being made to reflect statutory changes on procurement
integrity and a new regulation on conflict-of-interest exemptions.
Finally, OGE is removing outdated references in the standards of
conduct regulation to certain grandfathered agency regulations, and
making other minor updates to references and text.
EFFECTIVE DATE: September 17, 1997.
ADDRESSES: Office of Government Ethics, Suite 500, 1201 New York
Avenue, NW., Washington, DC 20005-3917, Attn.: Mr. G. Sid Smith. A copy
of the OGE Memorandum noted in the Supplementary Information section
below may be obtained from OGE's World Wide Web Site on the Internet at
http://www.usoge.gov, from OGE's ethics bulletin board TEBBS (``The
Ethics Bulletin Board System'') at 202-208-8030, or by contacting Mr.
Smith at OGE.
FOR FURTHER INFORMATION CONTACT: G. Sid Smith, Associate General
Counsel,
[[Page 48747]]
Office of Government Ethics, telephone: 202-208-8000; TDD: 202-208-
8025; FAX: 202-208-8037.
SUPPLEMENTARY INFORMATION: In National Treasury Employees Union v.
United States, 513 U.S. 454 (1995), the U.S. Supreme Court overturned,
as to most executive branch employees, the honorarium bar at 5 U.S.C.
app., section 501(b) which had been enacted as part of the Ethics
Reform Act of 1989. Subsequently, the Department of Justice determined
that because of the scope of the Supreme Court decision, the ban on
honoraria was inoperative as to all Government employees. See OGE
Memorandum of February 28, 1996, to Designated Agency Ethics Officials,
General Counsels and Inspectors General (#DO-96-012). This rulemaking
removes the regulatory provisions which refer to the now-overturned
honorarium bar in OGE's executive branchwide financial disclosure and
standards of ethical conduct regulations as codified at 5 CFR parts
2634 and 2635. In a separate rulemaking document to be issued later,
OGE will remove the primary (and now inoperative) executive branchwide
regulatory provisions which implemented the old honorarium bar, along
with various related provisions, in subpart B of 5 CFR part 2636.
The Office of Government Ethics is, in this current rulemaking
document, also updating or eliminating superseded citations and related
text in the OGE executive branchwide standards of ethical conduct
regulation which refer to procurement integrity provisions revised by
the National Defense Authorization Act for Fiscal Year 1996 (Pub. L.
104-106), and to the old Code of Ethics for Government Service (Pub. L.
96-303) which was repealed by Pub. L. 104-179. Additionally, OGE is
adding to the authority citation for the standards of conduct
regulation a reference to 5 U.S.C. 7301, which provides that the
President may prescribe regulations for the conduct of employees in the
executive branch.
This rulemaking updates or adds certain other references in the
standards of ethical conduct regulation, reflecting revisions to
regulations of the Office of Personnel Management and the General
Services Administration. Additionally, it includes several citations
and related text changes to account for the new OGE final regulation at
5 CFR part 2640, which implemented 18 U.S.C. 208 (official actions
affecting a personal financial interest) by providing general
interpretation, executive branchwide exemptions which have replaced any
agency regulatory exemptions, and assistance for agencies in granting
individual waivers. Finally, OGE is removing outdated notes and related
appendixes which refer to certain agency regulations that were
temporarily ``grandfathered'' when OGE first issued the executive
branchwide standards of conduct in 1992 (with subsequent grandfathering
extensions through November 1, 1996).
Matters of Regulatory Procedure
Administrative Procedure Act
Pursuant to 5 U.S.C. 553(b) and (d), as Director of the Office of
Government Ethics, I find good cause exists for waiving the general
notice of proposed rulemaking and 30-day delay in effectiveness as to
these revisions. The notice and delayed effective date are being waived
because these technical amendments to certain OGE regulations concern
matters of agency organization, practice and procedure. Furthermore, it
is in the public interest that the obsolete provisions be removed, the
other out-of-date citations be updated, and the few other passages be
clarified as soon as possible.
Executive Order 12866
In promulgating these technical amendments to its regulations, OGE
has adhered to the regulatory philosophy and the applicable principles
of regulation set forth in section 1 of Executive Order 12866,
Regulatory Planning and Review. These amendments have also been
reviewed by the Office of Management and Budget under that Executive
order.
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 rulemaking
will not have a significant economic impact on a substantial number of
small entities because it primarily affects Federal executive branch
agencies and their employees.
Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply
because this technical amendments rulemaking does not contain any
information collection requirements that require the approval of the
Office of Management and Budget.
List of Subjects
5 CFR Part 2634
Administrative practice and procedure, Certificates of divestiture,
Conflict of interests, Financial disclosure, Government employees,
Penalties, Privacy, Reporting and record keeping requirements, Trusts
and trustees.
5 CFR Part 2635
Conflict of interests, Executive branch standards of ethical
conduct, Government employees.
Approved: July 18, 1997.
Stephen D. Potts,
Director, Office of Government Ethics.
For the reasons set forth in the preamble, the Office of Government
Ethics is amending parts 2634 and 2635 of chapter XVI of 5 CFR as
follows:
PART 2634--[AMENDED]
1. The authority citation for part 2634 continues to read as
follows:
Authority: 5 U.S.C. App. (Ethics in Government Act of 1978); 26
U.S.C. 1043; 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.
Sec. 2634.105 [Amended]
2. Section 2634.105 is amended by removing the last sentence of
paragraph (i).
PART 2635--[AMENDED]
3. The authority citation for part 2635 is revised to read as
follows:
Authority: 5 U.S.C. 7301, 7351, 7353; 5 U.S.C. App. (Ethics in
Government 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.
Sec. 2635.202 [Amended]
4. Section 2635.202 is amended by adding the word ``and'' following
the closing semicolon in paragraph (c)(4)(i), by removing the word
``and'' at the end of paragraph (c)(4)(ii) and adding in its place the
word ``or'', and by removing paragraph (c)(4)(iii).
Sec. 2635.204 [Amended]
5. Section 2635.204 is amended by removing Example 5 following
paragraph (a), and by removing at the end of paragraph (l)(1) the terms
``Secs. 410.701 through 410.706 of this title'' and adding in their
place the terms ``part 410 of this title''.
6. Section 2635.401 is amended by adding a sentence at the end of
the section, to read as follows:
Sec. 2635.401 Overview.
* * * See also part 2640 of this chapter, for additional guidance
amplifying Sec. 2635.402.
7. Section 2635.402 is amended by adding the words ``or determine
that an exemption applies'' before the comma after the word ``waiver''
in the second
[[Page 48748]]
sentence of the note following paragraph (a), by adding the words ``or
exemption'' following the word ``waiver'' in the first sentence of the
introductory text of paragraph (c), by adding the words ``or exemptions
from'' between the words ``of'' and ``disqualification'' in the heading
of paragraph (d), by adding the word ``exemption'' following the word
``regulatory'' in the introductory text of paragraph (d), by adding the
sentence ``See also subpart C of part 2640 of this chapter, for
additional guidance.'' at the end of paragraph (d)(2)(ii), by adding
the sentence ``See also subpart C of part 2640 of this chapter, for
additional guidance.'' at the end of paragraph (d)(3)(ii), and by
revising paragraph (d)(1) to read as follows:
Sec. 2635.402 Disqualifying financial interests.
* * * * *
(d) * * *
(1) Regulatory exemptions. Under 18 U.S.C. 208(b)(2), regulatory
exemptions of general applicability have been issued by the Office of
Government Ethics, based on its determination that particular interests
are too remote or too inconsequential to affect the integrity of the
services of employees to whom those exemptions apply. See the
regulations in subpart B of part 2640 of this chapter, which supersede
any preexisting agency regulatory exemptions.
* * * * *
Sec. 2635.403 [Amended]
8. Section 2635.403 is amended by adding the words ``issued after
February 3, 1993'' before the comma after the words ``supplemental
agency regulation'' in the first sentence of paragraph (a), and by
removing the note following paragraph (a).
9. The note following paragraph (b) of section 2635.501 is amended
by adding the words ``or exemption'' before the comma after the word
``waiver'' in the fourth sentence, by removing the word
``respectively'' in the fourth sentence, and by adding a new sentence
at the end of that note, to read as follows:
Sec. 2635.501 Overview.
* * * * *
(b) * * *
Note: * * * Similarly, where the employee meets all
prerequisites for the application of one of the exemptions set forth
in subpart B of part 2640 of this chapter, that also constitutes a
determination that the interest of the Government in the employee's
participation outweighs the concern that a reasonable person may
question the integrity of agency programs and operations.
10. Section 2635.602 is amended by revising the last sentence of
the note following the introductory text and the last sentence of
paragraph (a)(2) to read as follows:
Sec. 2635.602 Applicability and related considerations.
* * * * *
Note: * * * An employee may, however, be subject to other
statutes which impose requirements on employment contacts or
discussions, such as 41 U.S.C. 423(c), applicable to agency
officials involved in certain procurement matters.
(a) * * *
(2) * * * Employees are cautioned that they may be subject to
additional statutory prohibitions on post-employment acceptance of
compensation from contractors, such as 41 U.S.C. 423(d).
* * * * *
11. Section 2635.605 is amended by adding at the end of paragraph
(a) two sentences to read as follows:
Sec. 2635.605 Waiver or authorization permitting participation while
seeking employment.
(a) * * * See also subpart C of part 2640 of this chapter. For
certain employees, a regulatory exemption under the authority of 18
U.S.C. 208(b)(2) may also apply (see subpart B of part 2640 of this
chapter).
* * * * *
Sec. 2635.606 [Amended]
12. Section 2635.606 is amended by adding the phrase ``, or by a
regulatory exemption under the authority of 18 U.S.C. 208 (b)(2)''
between the terms ``(b)(3)'' and the period at the end of the first
sentence of paragraph (a), by adding the phrase ``and exemptions''
between the words ``waivers'' and ``are'' in the second sentence of
paragraph (a), and by adding a new sentence ``See also subparts B and C
of part 2640 of this chapter.'' at the end of paragraph (a).
Sec. 2635.704 [Amended]
13. Section 2635.704 is amended by removing the citation term
``201-21.601'' in Example 1 following paragraph (b)(2) and adding in
place thereof the citation term ``101-35.201'', and by removing the
terms ``chapter 252 of the Federal Personnel Manual'' in Example 3
following paragraph (b)(2) and adding in their place the terms ``Office
of Personnel Management regulations at part 251 of this title''.
Sec. 2635.801 [Amended]
14. Section 2635.801 is amended by adding the word ``and'' after
the closing semicolon in paragraph (d)(7), by removing paragraph
(d)(8), and by redesignating paragraph (d)(9) as paragraph (d)(8).
Sec. 2635.803 [Amended]
15. Section 2635.803 is amended by adding the words ``issued after
February 3, 1993'' before the comma after the word ``regulation'' in
the first sentence, and by removing the note at the end of the section.
Sec. 2635.805 [Amended]
16. Section 2635.805 is amended by removing the phrase ``result in
compensation for an appearance in violation of Sec. 2636.201 of this
chapter or'' in the introductory text of paragraph (c).
Sec. 2635.807 [Amended]
17. Section 2635.807 is amended by removing paragraph (a)(1)(i), by
redesignating paragraphs (a)(1)(ii) and (a)(1)(iii) as paragraphs
(a)(1)(i) and (a)(1)(ii), respectively, by removing Example 1 following
newly designated paragraph (a)(1)(ii), and by removing the last
sentence of Example 1 following paragraph (a)(3)(ii).
18. Section 2635.902 is amended by removing and reserving
paragraphs (l) and (n), and by revising paragraphs (f), (h) and (bb) to
read as follows:
Sec. 2635.902 Related statutes.
* * * * *
(f) The prohibition on certain former agency officials' acceptance
of compensation from a contractor (41 U.S.C. 423(d)).
* * * * *
(h) The actions required of certain agency officials when they
contact, or are contacted by, offerors or bidders regarding non-Federal
employment (41 U.S.C. 423(c)).
* * * * *
(l) [Reserved]
* * * * *
(n) [Reserved]
* * * * *
(bb) The prohibitions on disclosing and obtaining certain
procurement information (41 U.S.C. 423(a) and (b)).
* * * * *
Appendixes A, B, C, and D [Removed]
19. Appendixes A, B, C and D to part 2635 are removed.
[FR Doc. 97-24607 Filed 9-16-97; 8:45 am]
BILLING CODE 6345-01-U
