E6-13087. Standards of Ethical Conduct for Employees of the Executive Branch; Amendments To Clarify the Coverage of Detailees to an Agency Under the Intergovernmental Personnel Act

AGENCY:

Office of Government Ethics (OGE).

ACTION:

Final rule; amendments.

SUMMARY:

The Office of Government Ethics is amending the regulation governing standards of ethical conduct for executive branch employees of the Federal Government, to clarify the coverage of employees of State or local governments or other organizations detailed to an agency under the Intergovernmental Personnel Act.

DATES:

Effective Date: September 11, 2006.

FOR FURTHER INFORMATION CONTACT:

Richard M. Thomas, Associate General Counsel, Office of Government Ethics; telephone: [phone]; TDD: 202-482-9293; FAX: [phone].

SUPPLEMENTARY INFORMATION:

On May 11, 2006, the Office of Government Ethics (OGE) published proposed amendments to the Standards of Ethical Conduct for Employees of the Executive Branch (Standards), 5 CFR part 2635, to make clear that detailees from State and local governments and other organizations to an agency, pursuant to the Intergovernmental Personnel Act (IPA), 5 U.S.C. 3374, are subject to the Standards. 71 FR 27427-27429. OGE proposed amending the definition of “employee,” in § 2635.102(h) of the Standards, expressly to include “[e]mployees of a State or local government or other organization who are serving on detail to an agency, pursuant to 5 U.S.C. 3371, et seq.” OGE also proposed adding a new paragraph (d) to § 2635.105 of the Standards, which deals with agency supplemental regulations, to provide that IPA detailees would be subject to any requirements in agency supplemental standards of conduct regulations to the extent that such regulations expressly provide.

OGE received two comments on the proposed amendatory rule, both from agency ethics officials. The first commenter simply concurred in the proposed rule. The second commenter did not raise any substantive issues with respect to the coverage of IPA detailees under the Standards, but instead noted that the commenter's agency was having difficulty applying the post-employment restrictions of 18 U.S.C. 207 to certain IPA detailees. This commenter requested “that when the OGE clarifies 5 CFR part 2635, [it] also address the post-employment restrictions at 18 U.S.C. 207 as it applies to IPA detailees.”

OGE did not change the proposed rule in response to this request. Part 2635 is not OGE's post-employment regulation. OGE's regulations addressing the post-employment restrictions of 18 U.S.C. 207 are found at 5 CFR part 2641, which is not the subject of this rulemaking. We note, moreover, that OGE already has proposed amendments to part 2641, some of which deal specifically with IPA detailees. See 68 FR 7845 (February 18, 2003), at 7870 (proposed definition of “employee” includes IPA detailees); and 7881 (application of 18 U.S.C. 207(c) to IPA detailees). Therefore, OGE is publishing the previously proposed amendments to part 2635 in the Federal Register as a final rule, with no changes.

As noted in the preamble to the proposed rule, 71 FR 27428, OGE is aware that some agencies already have required certain IPA detailees to agree to follow restrictions in agency supplemental regulations. Such agencies may continue to recognize any agreements in force as of the effective date of the final rule. Moreover, agencies that wish to amend their supplemental regulations to cover IPA detailees, consistent with new § 2635.105(d), may continue to use IPA agreements to obtain commitments to follow current supplemental regulations, pending the promulgation of amendments, for a reasonable period determined in consultation with OGE.

Matters of Regulatory Procedure

Regulatory Flexibility Act

As Director of OGE, I certify under the Regulatory Flexibility Act (5 U.S.C. chapter 6) that this rule will not have a significant economic impact on a substantial number of small entities because it primarily affects 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 an information collection requirement that requires 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 amendatory rule will 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 Office of Government Ethics has determined that this rulemaking involves a nonmajor rule under the Congressional Review Act (5 U.S.C. chapter 8) and will submit a report thereon to the U.S. Senate, House of Representatives and Government Accountability Office in accordance with that law at the same time that it transmits this final rule to the Office of the Federal Register for publication.

Executive Order 12866

In promulgating this rule, 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. This final rule has not been reviewed by the Office of Management and Budget under that Executive order, since it deals with agency organization, management and personnel matters, and is not deemed to be “significant” thereunder.

Executive Order 12988

As Director of the Office of Government Ethics, I have reviewed this amendatory regulation 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 2635

• Conflict of interests
• Executive branch standards of ethical conduct
• Government employees

Approved: August 3, 2006.

Robert I. Cusick,

Director, Office of Government Ethics.

Accordingly, for the reasons set forth in the preamble, the Office of Government Ethics is amending 5 CFR part 2635 as follows:

PART 2635—STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE EXECUTIVE BRANCH

1. The authority citation for part 2635 continues 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.

Subpart A—General Provisions

2. Section 2635.102 is amended by adding a new sentence after the second sentence of paragraph (h) to read as follows:

§ 2635.102

Definitions.

* * * * *

(h) * * * It includes employees of a State or local government or other organization who are serving on detail to an agency, pursuant to 5 U.S.C. 3371, et seq. * * *

* * * * *

3. Section 2635.105 is amended by adding a new paragraph (d) to read as follows:

§ 2635.105

Supplemental agency regulations.

* * * * *

(d) Employees of a State or local government or other organization who are serving on detail to an agency, pursuant to 5 U.S.C. 3371, et seq., are subject to any requirements, in addition to those in this part, established by a supplemental agency regulation issued under this section to the extent that such regulation expressly provides.