[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Rules and Regulations]
[Pages 35085-35088]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17115]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules
and Regulations
[[Page 35085]]
DEPARTMENT OF ENERGY
5 CFR Chapter XXIII
10 CFR Part 1010
RINs 1990-AA04, 3209-AA15
Supplemental Standards of Ethical Conduct for Employees of the
Department of Energy
AGENCY: Department of Energy (DOE).
ACTION: Interim final rule with invitation for comments.
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SUMMARY: The Department of Energy, with the concurrence of the Office
of Government Ethics (OGE), is issuing a regulation for employees of
DOE that supplements the Standards of Ethical Conduct for Employees of
the Executive Branch issued by OGE. This interim rule is a necessary
supplement to the Standards because it addresses ethical issues unique
to DOE. The supplemental regulation requires DOE employees to seek
approval from management prior to engaging in certain outside
activities. The supplemental regulation also requires employees to
document recusals in writing. DOE is also revising its residual
standards regulation in its own CFR title and adding a cross-reference
to the new provisions.
DATES: These regulations take effect July 5, 1996. Comments must be
received on or before September 3, 1996.
ADDRESSES: All comments concerning these regulations should be
addressed to Susan Beard (Deputy Assistant General Counsel for
Standards of Conduct), Office of the Assistant General Counsel for
General Law, GC-80, U.S. Department of Energy, 1000 Independence
Avenue, SW, Washington, DC 20585.
FOR FURTHER INFORMATION CONTACT: Susan Beard (Deputy Assistant General
Counsel for Standards of Conduct), Office of the Assistant General
Counsel for General Law, GC-80, U.S. Department of Energy, 1000
Independence Avenue, SW, Washington, DC 20585, telephone 202-586-1522.
SUPPLEMENTARY INFORMATION:
I. Background
On August 7, 1992, OGE published the Standards of Ethical Conduct
for Employees of the Executive Branch. See 57 FR 35006-35067, as
corrected at 57 FR 48557, 57 FR 52583, and 60 FR 51667, with additional
grace period extensions at 59 FR 4779-4780, 60 FR 6390-6391 and 60 FR
66857-66858. The Standards, codified at 5 CFR part 2635 and effective
February 3, 1993, establish uniform standards of ethical conduct
applicable to all executive branch personnel.
With the concurrence of OGE, 5 CFR 2635.105 authorizes executive
agencies to publish agency-specific supplemental regulations that are
necessary to implement an agency's ethics program. DOE, with OGE's
concurrence, has determined that the following supplemental rules,
being codified in new chapter XXIII of 5 CFR, consisting of part 3301,
are necessary for successful implementation of DOE's ethics program.
II. Analysis of the Regulations
Section 3301.101 General
Section 3301.101 explains that the regulations contained in the
interim rule apply to all employees of the Department of Energy, with
the exception of employees of the Federal Energy Regulatory Commission,
and are supplemental to the uniform executive branch standards at 5 CFR
part 2635. The Federal Energy Regulatory Commission was established as
part of DOE by sections 204 and 401 of the Department of Energy
Organization Act (Pub. L. 95-91, codified at 42 U.S.C. 7134 & 7171).
Section 401(d) of that Act specifies that employees of the Federal
Energy Regulatory Commission shall not be subject to supervision or
direction of any officer, employee, or agent of any other part of DOE.
Accordingly, employees of the Federal Energy Regulatory Commission are
not subject to these regulations.
This section also notes that DOE employees are subject to the
executive branch financial disclosure regulations at 5 CFR part 2634,
and additional rules of conduct published in 5 CFR part 735 and DOE's
Conduct of Employees Regulation at 10 CFR part 1010. In addition, this
section contains definitions of the terms used in this part. ``Agency
designee'' is defined as an employee's immediate supervisor. This
supplement to the definition of this term at 5 CFR 2635.102(b) is
needed so that DOE employees know how to contact their agency designee.
This section also defines the term ``counselor,'' a term that has
historically been used at DOE, to identify the persons primarily
responsible for providing counseling on ethics and standards of conduct
matters.
Section 3301.102 Procedure for Accomplishing Disqualification
Section 3301.102 of the interim rule supplements the Standards for
disqualification contained in 5 CFR part 2635 by requiring written
notice of employee disqualifications under 5 CFR 2635.402(c),
2635.502(e) and 2635.604. In the past, it has been DOE's practice to
require a written notice of employee disqualification. DOE has
determined that it is necessary to the success of its ethics program to
continue its procedures for written notice of employee
disqualification. DOE recognizes the problems noted by the Office of
Government Ethics in adopting a requirement for written notice of
disqualification on an executive branch-wide basis. See 57 FR 35024. It
is not DOE's purpose to impose an overly technical requirement that
would result in disciplining an employee for failure to provide written
notice by some arbitrary deadline. Thus, the notice requirement imposed
by this regulation is phrased to give an employee flexibility in
determining precisely when the employee will give notice of
disqualification from a matter to which the employee has been assigned.
Notice is to be given when the employee determines that he or she will
not participate in the matter. In no way does the notice requirement
affect the employee's obligation not to participate in the matter.
Section 3301.103 Prior Approval for Outside Employment
The Standards, at 5 CFR 2635.803, recognize that individual
agencies may find it necessary or desirable to
[[Page 35086]]
supplement the executive branch-wide regulations with a requirement
that their employees obtain approval prior to engaging in outside
activities. Pursuant to 10 CFR 1010.204, which is being repealed in
this rulemaking document, the Department of Energy has long required
employees, other than special Government employees, to provide written
notification, and in some cases, to obtain written permission before
engaging in certain outside activities or employment. The Department
has found this requirement useful in ensuring that employees' outside
activities conform to all applicable laws and regulations, and, in
accordance with 5 CFR 2635.803, has determined that it is necessary to
the administration of its ethics program to require any employee of DOE
who wants to engage in outside employment to obtain prior approval of
such activity from the employee's supervisor and the counselor.
Accordingly, new Sec. 3301.103(a) imposes a requirement on
employees to obtain written approval from their immediate supervisors
before engaging in such activities, and describes what must be
contained in the approval form. To ensure that this provision is not
itself construed as authority to deny permission to engage in any
outside activity, Sec. 3301.103(b) specifies that approval will be
granted unless the activity is expected to involve conduct prohibited
by statute or regulation. Section 3301.103(c) defines outside
``employment'' to include any non- Federal employment involving the
provision of personal services by the employee.
III. Repeal and Revision of Department of Energy Conduct of
Employees Regulations
On November 30, 1993, the National Defense Authorization Act for
Fiscal Year 1994 was enacted. Pub. L. 103-160, sec. 3161. That statute
repealed certain statutory conflict-of-interest provisions applicable
to DOE employees. On February 10, 1996, the National Defense
Authorization Act for Fiscal Year 1996 was enacted. Public Law 104-106.
That statute repealed the remaining statutory conflict-of-interest
provisions that were unique to DOE. Accordingly, DOE is repealing the
regulatory provisions in 10 CFR part 1010 implementing the repealed
statutory provisions. This repeal also applies to those provisions of
part 1010 that were applicable to the Federal Energy Regulatory
Commission (FERC). The FERC is an independent regulatory commission
within the DOE and, to an extent, is subject to DOE rulemaking
authority. 42 U.S.C. Secs. 7134, 7171, & 7254. The FERC has agreed to
DOE's repeal of this provision, and FERC has indicated its intention to
publish its own supplemental regulations pursuant to its own regulatory
authority.
Because much of the remainder of 10 CFR part 1010, DOE's Conduct of
Employees regulation, is largely superseded by new chapter XXIII of
title 5, as added by this rulemaking, and the provisions of 5 CFR part
2635, DOE is herewith amending part 1010 to remove the existing
provisions, with the exception of the provisions concerning reporting
fraud, waste, abuse, and corruption, cooperation with the Inspector
General, and the conflict of interest waiver for widely diversified
mutual funds. The latter provision will only remain in effect until the
Office of Government Ethics publishes final regulations on 18 U.S.C.
208 (at which time DOE will repeal the residual waiver provision at
Sec. 1010.105). A new cross-reference provision is also being added to
part 1010 to refer to the executive branch-wide Standards and financial
disclosure regulation as well as the new DOE supplemental standards
regulation.
Section 1010.101 General
Section 1010.101 explains that these regulations apply to DOE
employees, excluding employees of the Federal Energy Regulatory
Commission.
Section 1010.102 Cross Reference to Employee Ethical Conduct Standards
and Financial Disclosure Regulations
Section 1010.102 provides cross-references to the executive branch-
wide Standards at 5 CFR part 2635, to DOE's new supplemental regulation
at 5 CFR part 3301, to the executive branch financial disclosure
regulation at 5 CFR part 2634, and to the executive branch-wide
employee responsibilities and conduct regulation at 5 CFR part 735.
Section 1010.103 Reporting Fraud, Waste, Abuse, and Corruption
Section 1010.103 assists employees in adhering to the general
principle of ethical conduct at 5 CFR 2635.101(b)(11), under which an
employee shall disclose waste, fraud, abuse, and corruption to
appropriate authorities. It identifies the Department's Office of
Inspector General as an authority to which it would be appropriate for
an employee to disclose waste, fraud, abuse, and corruption. In
addition, this section institutes a procedure by which appropriate
authorities within the Department who receive such allegations that
involve the ethical restrictions cross-referenced in Sec. 1010.102 of
this part shall refer those allegations to the designated agency ethics
official or his delegatee, or the Inspector General.
Section 1010.104 Cooperation with the Inspector General
This section requires employees to cooperate with official
inquiries. Section 2(1) & (2) of the Inspector General Act, 5 U.S.C.
app. sec. 2, provides that the Inspector General shall be responsible
for conducting investigative activities relating to the promotion of
economy and efficiency in the administration of, or the detection and
prevention of fraud and abuse in, programs and operations of the
Department. This regulation is intended to facilitate such activities
and those activities provided for in section 6 of the Inspector General
Act, including accessing materials and information with respect to
agency programs and operations.
Section 1010.105 Conflict of Interest Waiver
This section grandfathers an existing exemption to the prohibition
of 5 CFR 2635.402(a). It exempts ownership of stock in a widely
diversified mutual fund or other regulated investment company that in
turn owns stock in, or bonds of, another enterprise. This provision
will be repealed by DOE when the Office of Government Ethics publishes
its final regulation on 18 U.S.C. 208.
IV. Matters of Regulatory Procedure
Review Under Executive Order 12866
Today's regulatory action has been determined by the Department of
Energy not to be a ``significant regulatory action'' under Executive
order 12866,
[[Page 35087]]
``Regulatory Planning and Review,'' (58 FR 51735, October 4, 1993).
Accordingly, today's action was not subject to review under the
Executive order by the Office of Information and Regulatory Affairs.
Review Under the Regulatory Flexibility Act
Pursuant to section 605 of the Regulatory Flexibility Act (Pub. L.
96-354), it is hereby certified that the interim final rule will not
have a significant economic impact on a substantial number of small
entities within the meaning of the Act. It is related solely to
internal agency organization, management, or personnel.
Review Under the National Environmental Policy Act
This rule revises DOE's regulations on standards of conduct. It
will not change the environmental effects of the regulations being
amended. The Department has therefore determined that the rule is
covered under the Categorical Exclusion found at paragraph A.5 of
appendix A to subpart D, 10 CFR part 1021, which applies to rulemakings
interpreting or amending an existing rule. Accordingly, neither an
environmental assessment nor an environmental impact statement is
required.
Review Under the Paperwork Reduction Act
This interim final rule does not impose a ``collection of
information'' requirement, as defined in 44 U.S.C. 3502(4).
Review Under Executive Order 12988
Section 3 of Executive order 12988 on Civil Justice Reform, 61 FR
4729 (February 7, 1996), instructs each agency to adhere to certain
requirements in promulgating new regulations. These requirements, set
forth in section 3(a) and (b), include eliminating drafting errors and
needless ambiguity, drafting the regulations to minimize litigation,
providing clear and certain legal standards for affected legal conduct,
and promoting simplification and burden reduction. Agencies are also
instructed to make every reasonable effort to ensure that regulation
describes any administrative proceeding to be available prior to
judicial review and any provisions for the exhaustion of administrative
remedies. The Department has determined that today's regulatory action
meets the requirements of sections 3(a) and (b) of Executive order
12988.
Administrative Procedure Act
Since these interim final regulations relate to agency management
and personnel, they are exempt from notice and comment rulemaking
requirements under the Administrative Procedure Act. 5 U.S.C.
Sec. 553(a). Accordingly, DOE is neither giving prior notice nor
providing for a 30-day hiatus between the date of publication and the
date the regulations take effect. However, DOE will consider public
comments made within 60 days after the publication of this interim
final rule.
Congressional Notification
The Small Business Regulatory Enforcement Fairness Act of 1996
requires agencies to report to Congress on the promulgation of certain
final rules prior to their effective dates. 5 U.S.C. 801. That
reporting requirement does not apply to the interim final rule in this
notice because it falls within a statutory exception for rules relating
to agency management personnel. 5 U.S.C. 804(3)(B).
List of Subjects
5 CFR Part 3301
Conflict of interests, Government employees, Energy Department,
Standards of conduct.
10 CFR Part 1010
Conflicts of interest, Government employees, Energy Department,
Standards of conduct.
Issued in Washington, DC, June 28, 1996.
Robert R. Nordhaus,
General Counsel, Department of Energy.
Approved: June 28, 1996.
F. Gary Davis,
Deputy Director, Office of Government Ethics.
For the reasons set forth in the preamble, title 5 and chapter X of
title 10 of the Code of Federal Regulations are amended as follows:
TITLE 5--[AMENDED]
1. A new chapter XXIII, consisting of part 3301, is added to title
5 of the Code of Federal Regulations to read as follows:
5 CFR Chapter XXIII--Department of Energy
PART 3301--SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES
OF THE DEPARTMENT OF ENERGY
Sec.
3301.101 General.
3301.102 Procedure for accomplishing disqualification.
3301.103 Prior approval for outside employment.
Authority: 5 U.S.C. 301, 7301; 5 U.S.C. App. (Ethics in
Government Act); 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, 2635.402(c), 2635.502(e), 2635.604, 2635.802,
2635.803.
Sec. 3301.101 General.
(a) Purpose. The regulations in this part apply to employees of the
Department of Energy (DOE), excluding employees of the Federal Energy
Regulatory Commission, and supplement the Standards of Ethical Conduct
for Employees of the Executive Branch contained in 5 CFR part 2635. DOE
employees are also subject to the regulations on financial disclosure
contained in 5 CFR part 2634, and to additional regulations on
responsibilities and conduct at 5 CFR part 735, and DOE specific
provisions contained in 10 CFR part 1010.
(b) Definitions. Unless a term is otherwise defined in this part,
the definitions set forth in 5 CFR part 2635 apply to terms used in
this part. In addition, for purposes of this part:
Agency designee, as used also in 5 CFR part 2635, means the
employee's immediate supervisor and, for purposes of the approval
required by Sec. 3301.103(a), includes the Counselor.
Counselor means the DOE's designated agency ethics official or his
delegates.
Sec. 3301.102 Procedure for accomplishing disqualification.
(a) Disqualifying financial interests. A DOE employee who is
required, in accordance with 5 CFR 2635.402(c), to disqualify himself
from participation in a particular matter to which he has been assigned
shall, notwithstanding the guidance in 5 CFR 2635.402(c)(1) and
[[Page 35088]]
(2), provide written notice of disqualification to his supervisor and
counselor upon determining that he will not participate in the matter.
(b) Disqualification to ensure impartiality. A DOE employee who is
required, in accordance with 5 CFR 2635.502(e), to disqualify himself
from participation in a particular matter involving specific parties to
which he has been assigned shall, notwithstanding the guidance in 5 CFR
2635.502(e)(1) and (2), provide written notice of disqualification to
his supervisor and counselor upon determining that he will not
participate in the matter.
(c) Disqualification from matter effecting prospective employers. A
DOE employee who is required, in accordance with 5 CFR 2635.604(a), to
disqualify himself from participation in a particular matter to which
he has been assigned shall, notwithstanding the guidance in 5 CFR
2635.604(b) and (c), provide written notice of disqualification to his
supervisor and counselor upon determining that he will not participate
in the matter.
(d) Withdrawal of notification. A DOE employee may withdraw written
notice under paragraphs (a), (b), or (c) of this section upon deciding
that disqualification from participation in the matter is no longer
required. A withdrawal of notification shall be in writing and provided
to the employee's supervisor and counselor.
Sec. 3301.103 Prior approval for outside employment.
(a) Prior approval requirement. Before engaging in any outside
employment, whether or not for compensation, an employee, other than a
special Government employee, must obtain written approval of his
immediate supervisor and the Counselor. Requests for approval shall
include the name of the person, group or organization for whom the work
is to be performed; the type of work to be performed; and the proposed
hours of work and approximate dates of employment.
(b) Standard for approval. Approval shall be granted unless there
is a determination that the outside employment is expected to involve
conduct prohibited by statute or Federal regulation, including 5 CFR
part 2635.
(c) Definition of employment. For purposes of this section,
``employment'' means any form of non-Federal employment or business
relationship involving the provision of personal services by the
employee. It includes but is not limited to personal services as an
officer, director, trustee, general partner, agent, attorney,
consultant, contractor, employee, advisor, or teacher. It does not
include participating in the activities of a nonprofit, charitable,
religious, public service or civic organization, unless such activities
involve the provision of professional services or are for compensation.
TITLE 10--ENERGY
Chapter X--Department of Energy (General Provisions)
2. 10 CFR part 1010 is revised to read as follows:
PART 1010--CONDUCT OF EMPLOYEES
Sec.
1010.101 General.
1010.102 Cross-reference to employee ethical conduct standards and
financial disclosure regulations.
1010.103 Reporting wrongdoing.
1010.104 Cooperation with the Inspector General.
1010.105 Conflict of interest waiver.
Authority: 5 U.S.C. 301, 303; 5 U.S.C. App. (Inspector General
Act of 1978); 18 U.S.C. 208; and 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. 1010.101 General.
This part applies to employees of the Department of Energy (DOE),
excluding employees of the Federal Energy Regulatory Commission.
Sec. 1010.102 Cross-reference to employee ethical conduct standards
and financial disclosure regulations.
Employees of DOE are subject to the Standards of Ethical Conduct
for Employees of the Executive Branch at 5 CFR part 2635, the DOE
regulation at 5 CFR part 3301 which supplements the executive branch-
wide standards, the executive branch-wide financial disclosure
regulations at 5 CFR part 2634, and the executive branch-wide employee
responsibilities and conduct regulation at 5 CFR part 735.
Sec. 1010.103 Reporting wrongdoing.
(a) Employees shall, in fulfilling the obligation of 5 CFR
2635.101(b)(11), report fraud, waste, abuse, and corruption in DOE
programs, including on the part of DOE employees, contractors,
subcontractors, grantees, or other recipients of DOE financial
assistance, to the Office of Inspector General or other appropriate
Federal authority.
(b) All alleged violations of the ethical restrictions described in
section 1010.102 that are reported in accordance with (a) of this
section to an appropriate authority within the Department shall in turn
be referred by that authority to the designated agency ethics official
or his delegatee, or the Inspector General.
Sec. 1010.104 Cooperation with the Inspector General.
Employees shall respond to questions truthfully under oath when
required, whether orally or in writing, and must provide documents and
other materials concerning matters of official interest. An employee is
not required to respond to such official inquiries if answers or
testimony may subject the employee to criminal prosecution.
Sec. 1010.105 Conflict of interest waiver.
If a financial interest arises from ownership by an employee, or
other person or enterprise referred to in 5 CFR 2635.402(b)(2), of
stock in a widely diversified mutual fund or other regulated investment
company that in turn owns stock in, or bonds of, another enterprise,
that financial interest is exempt from the prohibition of 5 CFR
2635.402(a).
[FR Doc. 96-17115 Filed 7-3-96; 8:45 am]
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