Proposed Rule2024-10995
Post-Employment Conflict of Interest Restrictions; Revision of Departmental Component Designations
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Published
May 28, 2024
Issuing agencies
Government Ethics Office
Abstract
The U.S. Office of Government Ethics (OGE) is issuing a proposed rule to revise the component designations of one agency for purposes of the one-year post-employment conflict of interest restriction for senior employees. Specifically, based on the recommendation of the Department of Health and Human Services, OGE is proposing to designate one new component in its regulations.
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<title>Federal Register, Volume 89 Issue 103 (Tuesday, May 28, 2024)</title>
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[Federal Register Volume 89, Number 103 (Tuesday, May 28, 2024)]
[Proposed Rules]
[Pages 46036-46038]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-10995]
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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. 89, No. 103 / Tuesday, May 28, 2024 /
Proposed Rules
[[Page 46036]]
OFFICE OF GOVERNMENT ETHICS
5 CFR Part 2641
RIN 3209-AA59
Post-Employment Conflict of Interest Restrictions; Revision of
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 one agency for
purposes of the one-year post-employment conflict of interest
restriction for senior employees. Specifically, based on the
recommendation of the Department of Health and Human Services, OGE is
proposing to designate one new component in its regulations.
DATES: Written comments are invited and must be received on or before
June 27, 2024.
ADDRESSES: You may submit comments, in writing, to OGE on this proposed
rule, identified by RIN 3209-AA59, by any of the following methods:
Email: <a href="/cdn-cgi/l/email-protection#3045435f5755705f57551e575f46"><span class="__cf_email__" data-cfemail="4530362a2220052a22206b222a33">[email protected]</span></a>. Include the reference ``Proposed Rule
Revising Departmental Component Designations'' in the subject line of
the message.
Mail, Hand Delivery/Courier: U.S. Office of Government Ethics, 250
E Street SW, Suite 750, Washington, DC 20024, Attention: Kimberly L.
Sikora Panza, Senior Associate Counsel.
Instructions: All submissions must include OGE's agency name and
the Regulation Identifier Number (RIN) for this proposed rulemaking,
RIN 3209-AA59. All comments, including attachments and other supporting
materials, will become part of the public record and be subject to
public disclosure. OGE may post comments on its website, <a href="http://www.oge.gov">www.oge.gov</a>.
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, Senior
Associate Counsel, U.S. Office of Government Ethics, 250 E Street SW,
Suite 750, Washington, DC 20024-3249; Telephone: 202-482-9300; TTY:
800-877-8339; FAX: 202-482-9237.
SUPPLEMENTARY INFORMATION:
I. Substantive Discussion; Addition of New Departmental Component
The Director of OGE (Director) is authorized by 18 U.S.C. 207(h) 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.
Under 18 U.S.C. 207(h)(2), 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).
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 that there exists no potential for use of
undue influence or unfair advantage based on past Government service,''
the Director shall by rule designate that agency or bureau as a
separate component of that department or agency. As a result, 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.
Likewise, 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.
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, pursuant to 5 CFR 2641.302(e)(3), the Director ``shall,
by rule, make or revoke a component designation after considering the
recommendation of the designated agency ethics official.'' Before
designating an agency component as distinct and separate for purposes
of 18 U.S.C. 207(c), the Director must find 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, and that there
exists no potential for use of undue influence or unfair advantage
based on past Government service. See 5 CFR 2641.302(c).
Pursuant to the procedures prescribed in 5 CFR 2641.302(e), one
agency provided a complete request to update its components listed in
appendix B to part 2641. After carefully reviewing the requested change
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 this request and amend appendix
B as explained below.
The Department of Health and Human Services (HHS) has requested
that OGE designate the Administration for Strategic Preparedness and
Response (ASPR) in appendix B to part 2641 as a separate component of
HHS for purposes of 18 U.S.C. 207(c) because it exercises functions
that are distinct and separate from the functions of the parent agency
and other components. ASPR--previously operated as the Office of the
Assistant Secretary for Preparedness and Response--was originally
created in December 2006 when Congress passed the Pandemic and All-
Hazards Preparedness Act, Public Law 109-417, 120 Stat. 2831. On July
22, 2022, HHS announced the reclassification of ASPR from a staff
division to an Operating Division at HHS, which elevated ASPR to a
standalone agency within HHS. All of the other Operating Divisions of
HHS are currently designated as separate agency components in 5 CFR
part 2641,
[[Page 46037]]
appendix B; accordingly, designation of ASPR would align this division
with all other HHS Operating Divisions for purposes of the senior
employee post-employment restriction, 18 U.S.C. 207(c).
The factors set forth in 5 CFR 2641.302(c) support designation of
ASPR as a separate agency component in appendix B. As discussed above,
the office was originally created by statute in 2006, and its
reclassification as an Operating Division became effective on February
11, 2023. See Statement of Organization, Functions, and Delegations of
Authority, 88 FR 10125 (Feb. 16, 2023). The subject matter of ASPR is
largely distinct and separate from other operations of HHS.
Specifically, it has the core responsibility for the Department to
plan, prepare, and mobilize in response to future disasters and
emergencies, public health issues, and public health emergencies.
Although the office at times works with other HHS Operating Divisions
and other agencies in its efforts, ASPR's significant responsibilities
are performed independently of other Operating Divisions, and many of
its most important activities do not cut across organizational lines
within the Department. In furtherance of its mission, ASPR has
independent authority to publish rules and notices in the Federal
Register.
In absolute terms, ASPR is a small component that has just over
1,200 employees and a budget of $3.63 billion in fiscal year (FY) 2024;
the entirety of HHS employs over 87,000 individuals. In relative terms,
ASPR is larger than 3 of the 11 HHS components currently designated in
appendix B, and smaller than the other 8.
According to HHS, designation of ASPR as a separate agency
component would not create the potential for undue influence or unfair
advantage based on the past Government service of ASPR employees. As
discussed above, ASPR is unique in that its mission focuses on
assisting the country to prepare for, respond to, and recover from
public health emergencies and disasters, and in furtherance of this
mission, ASPR engages in work that differentiates it from other HHS
components and the larger agency.
OGE therefore is proposing to grant the request of HHS and amend
the agency's listing in appendix B to part 2641 to add ASPR as a new
component for purposes of 18 U.S.C. 207(c). ASPR is separate and
distinct from its parent organization and other HHS components, and
given the manner in which ASPR works independently from other Operating
Divisions and the entirety of the agency, there exists no potential for
the use of undue influence or unfair advantage based on past Government
service.
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 designation of ASPR made in this proposed rule will be
effective on the date the final rule is published in the Federal
Register.
II. Matters of Regulatory Procedure
Regulatory Flexibility Act
As Acting 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 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 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 proposed rule is not a major rule as defined in 5 U.S.C.
chapter 8, Congressional Review of Agency Rulemaking.
Executive Orders 12866, 13563 and 14094
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 Order 12866, Regulatory Planning and
Review (58 FR 51735, Oct. 4, 1993); Executive Order 13563, Improving
Regulation and Regulatory Review (76 FR 3821, Jan. 21, 2011); and
Executive Order 14094, Modernizing Regulatory Review (88 FR 21879, Apr.
11, 2023). 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.
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 Acting 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.
Executive Order 13715
The Office of Government Ethics has evaluated this proposed rule
under the criteria set forth in Executive Order 13175 and determined
that tribal consultation is not required as this proposed rule has no
substantial direct effect on one or more Indian tribes, on the
relationship between the Federal Government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian tribes.
List of Subjects in 5 CFR Part 2641
Conflict of interests, Government employees.
Approved: May 15, 2024.
Shelley K. Finlayson,
Acting Director, Office of Government Ethics.
Accordingly, for the reasons set forth in the preamble, the U.S.
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 is revised to read as follows:
Authority: 5 U.S.C. ch. 131; 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.
[[Page 46038]]
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2. Appendix B to part 2641 is amended by revising the listings for the
Department of Health and Human Services to read as follows:
Appendix B to Part 2641--Agency Components for Purposes of 18 U.S.C.
207(c)
* * * * *
Parent: Department of Health and Human Services
Components:
Administration for Children and Families (effective January 28,
1992).
Administration for Community Living (effective December 4,
2014).
Administration for Strategic Preparedness and Response
(effective upon publication of the final rule in the Federal
Register).
Agency for Healthcare Research and Quality (formerly Agency for
Health Care Policy and Research) (effective May 16, 1997).
Agency for Toxic Substances and Disease Registry (effective May
16, 1997).
Centers for Disease Control and Prevention (effective May 16,
1997).
Centers for Medicare and Medicaid Services (formerly Health Care
Financing Administration).
Food and Drug Administration.
Health Resources and Services Administration (effective May 16,
1997).
Indian Health Service (effective May 16, 1997).
National Institutes of Health (effective May 16, 1997).
Substance Abuse and Mental Health Services Administration
(effective May 16, 1997).
* * * * *
[FR Doc. 2024-10995 Filed 5-24-24; 8:45 am]
BILLING CODE 6345-03-P
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