2010-22410. Supplemental Standards of Ethical Conduct for Employees of the Export-Import Bank of the United States

AGENCY:

Export-Import Bank of the United States (Ex-Im Bank).

ACTION:

Final rule.

SUMMARY:

The Ex-Im Bank, with the concurrence of the Office of Government Ethics (OGE), is issuing a final rule that supplements the Standards of Ethical Conduct for Employees of the Executive Branch (Standards). This final rule adopts prior interim regulations as final, with a revision deleting a section related to prohibited financial interests. This rule also adopts as final, without change, the Ex-Im Bank's residual cross-reference provision.

DATES:

Effective Date: September 15, 2010.

ADDRESSES:

Office of the General Counsel, Export-Import Bank of the United States, 811 Vermont Ave., NW., Washington, DC 20571.

FOR FURTHER INFORMATION CONTACT:

Faisal B. Siddiqui, Assistant General Counsel for Administration, Export-Import Bank of the United States, Phone: [phone]/Fax: [phone].

SUPPLEMENTARY INFORMATION:

I. Background

On April 7, 1995, Ex-Im Bank, with the concurrence of OGE, published an interim rule setting forth the Supplemental Standards of Ethical Conduct for Employees of the Export-Import Bank of the United States—5 CFR part 6201. See 60 FR 17625-17628. It is noted that no comments were received in response to the request for comments published in the Federal Register as part of the interim rule. In that rulemaking, Ex-Im Bank also issued a residual cross-reference provision in place of its older standards of conduct at 12 CFR part 400. The Ex-Im Bank, with OGE concurrence, now publishes as final, with the changes to the interim rule noted below, the Supplemental Standards of Ethical Conduct for Employees of the Export-Import Bank of the United States. Ex-Im Bank is also publishing as final, without change, its residual cross-reference provision.

II. Analysis of Revisions

The final rule amends the interim rule Ex-Im Bank Supplemental Standards by removing the section related to prohibited financial interests at 5 CFR 6201.102, and by re-designating § 6201.103—Prior Approval for Outside Employment as § 6201.102.

In light of over a decade of experience, Ex-Im Bank has determined that the provisions of § 6201.102 of the interim rule that prohibit Ex-Im Bank employees who are required to file public or confidential financial disclosure forms (SF278s or OGE Form 450s), as well their spouses and dependent children, from owning specified securities in “designated entities” with which Ex-Im Bank conducts business are unnecessary given the Bank's practice of screening employees for potential financial conflicts.

Ex-Im Bank has determined that its implementation of the government-wide statutory and regulatory scheme is sufficient to ensure that Ex-Im Bank employees do not take official agency action with regard to prohibited financial interests. Ex-Im Bank employees will continue to be bound by 5 CFR 2635.401-2635.403 (Standards of Ethical Conduct for the Employees of the Executive Branch, Subpart D: Conflicting Financial Interests) and related statutes and regulations, including 18 U.S.C. 208 and 5 CFR part 2640, with regard to their financial interests.

The revision will not impact Ex-Im Bank's ability to ensure that its employees do not engage in conduct that violates applicable conflict of interest statutes and regulations. Ex-Im Bank will continue to utilize its participant database—which lists the lenders, exporters, suppliers, borrowers and buyers that utilize Ex-Im Bank programs—to carefully screen all financial disclosure reports (both the public and confidential reports) and maintain regular contact with filers regarding the matters in which they are working to ensure that no conflicts arise.

Upon determining that an employee owns a security or has a financial interest that poses a potential conflict of interest, Ex-Im Bank's Designated Agency Ethics Official (DAEO) or his designated alternate, writes a memorandum to the employee advising him or her of the potential conflict and the applicable law and regulation regarding conflicts. If recusal or waiver is not appropriate, the employee is directed to divest the interest.

Ex-Im Bank is confident that the policy and practices noted above, carried out in accordance with the government-wide laws and regulations governing financial conflicts of interest, are a sufficient means of screening for and handling conflicts of interest with regard to securities ownership and ensure that a reasonable person would not question the impartiality and objectivity with which Ex-Im Bank administers its programs.

III. Matters of Regulatory Procedure

Administrative Procedure Act

Pursuant to 5 U.S.C. 553(b)(3)(A) and (B), (d)(1) and (d)(3), good cause exists for the waiver of a general notice of proposed rulemaking, the opportunity for public comment, and the 30-day delay in effectiveness of this final rule, which adopts as final a prior interim rule, with revisions. This determination is based on the fact that this rulemaking applies solely to agency practices and procedures, and relieves a restriction on certain financial interests of employees who file public or confidential financial disclosure reports, and their spouses and minor children, that Ex-Im Bank has determined is no longer needed. It is important and in the public interest that the revisions take effect as promptly as possible.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a “major rule,” as defined by the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets. 5 U.S.C. 804.

Unfunded Mandates Reform Act

For the purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. chapter 25), this rule will not significantly or uniquely affect small governments and will not result in increased expenditures by State, local, and tribal governments, or by the private sector, of $100 million or more (as adjusted for inflation).

List of Subjects in 5 CFR Part 6201 and 12 CFR Part 400

• Conflict of interests
• Government employees

Dated: August 25, 2010.

Jonathan J. Cordone,

General Counsel, Export-Import Bank of the United States.

Approved: August 30, 2010.

Robert I. Cusick,

Director, Office of Government Ethics.

Accordingly, for the reasons set forth in the preamble, the Export-Import Bank of the United States, with the concurrence of the Office of Government Ethics, is adopting the interim rule, adding 5 CFR part 6201 and revising 12 CFR part 400, which was publ ished at 60 FR 17625-17628, April 7, 1995, as a final rule with the following changes:

TITLE 5—ADMINISTRATIVE PERSONNEL

PART 6201—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE EXP ORT-IMPORT BANK OF THE UNITED STATES

1. The authority citation for part 6201 is revised to read as follows:

Authority: 5 U.S.C. 7301; 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; 5 CFR 2635.105, 2635.803.

§ 6201.102

[Removed]

2. Section 6201.102 is removed.

§ 6201.103

[Redesignated as § 6201.102]

3. Section 6201.103 is redesignated as § 6201.102.