[Federal Register: December 1, 2008 (Volume 73, Number 231)]
[Proposed Rules]               
[Page 72748-72751]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01de08-21]                         

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DEPARTMENT OF ENERGY

10 CFR Part 1010

RIN 1990-AA31

 
Conduct of Employees and Former Employees; Exemption From Post-
Employment Restrictions for Communications; Furnishing Scientific or 
Technological Information

AGENCY: Office of the General Counsel, U.S. Department of Energy.

ACTION: Notice of proposed rulemaking and opportunity for comment.

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SUMMARY: The Department of Energy (DOE) today issues a proposed rule to 
establish procedures under which a former employee of the executive 
branch may obtain approval from DOE to make communications to DOE 
solely for the purpose of furnishing scientific or technological 
information during the period the former employee is subject to post-
employment restrictions set forth in 18 U.S.C. 207(a), (c), and (d). 
The proposed rule also would further define the term ``scientific or 
technological information,'' for which an exemption is provided by 18 
U.S.C. 207(j)(5).

DATES: Public comment on this proposed rule will be accepted until 
December 31, 2008.

ADDRESSES: You may submit comments, identified by RIN 1990-AA31, by any 
of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the instructions for submitting comments.
    2. E-mail to standardsofconduct@hq.doe.gov. Include RIN 1990-AA31 
in the subject line of the e-mail. Please include the full body of your 
comments in the text of the message or as an attachment.
    3. Mail: Address written comments to Sue E. Wadel, Deputy Assistant 
General Counsel for General Law, U.S. Department of Energy, Office of 
the General Counsel, Mailstop GC-77, Room 6A-211, 1000 Independence 
Avenue, SW., Washington, DC 20585.
    Due to potential delays in DOE's receipt and processing of mail 
sent through the U.S. Postal Service, we encourage respondents to 
submit comments electronically to ensure timely receipt. You may obtain 
copies of comments submitted in response to this notice of proposed 
rulemaking from the contact person.
    If you submit information that you believe to be exempt by law from 
public disclosure, you should submit one complete copy, as well as one 
copy from which the information claimed to be exempt by law from public 
disclosure

[[Page 72749]]

has been deleted. DOE is responsible for the final determination with 
regard to disclosure or nondisclosure of the information and for 
treating it accordingly under the DOE Freedom of Information 
regulations at 10 CFR 1004.11.

FOR FURTHER INFORMATION CONTACT: Sue E. Wadel, Deputy Assistant General 
Counsel for General Law, U.S. Department of Energy, Office of the 
General Counsel, Mailstop GC-77, Room 6A-211, 1000 Independence Avenue, 
SW., Washington, DC 20585; (202) 586-1522 or Sue.Wadel@hq.doe.gov.

SUPPLEMENTARY INFORMATION:

I. Background
II. Discussion of Proposed Rule
III. Regulatory Review

I. Background

    DOE proposes to revise the title of 10 CFR Part 1010 from ``Conduct 
of Employees'' to ``Conduct of Employees and Former Employees.'' In 
addition, a title will be added identifying 10 CFR section 1010.101 et 
seq. as ``Subpart A--Conduct of Employees.'' These proposed revisions 
are being made because DOE proposes to amend the Conduct of Employees 
regulations at 10 CFR Part 1010 to establish procedures under which a 
former employee of the executive branch may obtain approval to make 
communications to DOE solely for the purpose of furnishing scientific 
or technological information during the period the former employee is 
subject to post-employment restrictions set forth in 18 U.S.C. 207(a), 
(c), and (d). DOE also proposes a definition of the term ``scientific 
or technological information,'' used in 18 U.S.C. 207(j)(5), to provide 
former employees with guidance on the types of communications that 
would qualify for the exemption from otherwise applicable post-
employment restrictions.
    Pursuant to 18 U.S.C. 207(j)(5), former employees of the executive 
branch of the United States may make communications with an executive 
branch agency ``solely for the purpose of furnishing scientific or 
technological information,'' notwithstanding the post-employment 
restrictions at 18 U.S.C. 207(a), (c), and (d). Section 207(j)(5) 
provides that such communications must be made under procedures 
acceptable to the department to which the communication is directed, or 
the head of such department must consult with the Director of the 
Office of Government Ethics (OGE) and certify in the Federal Register 
that the former employee meets certain requirements to make such 
communications. The purpose of this proposed rule is to (1) establish 
the procedures acceptable to DOE for former executive branch employees 
making scientific or technological communications; and (2) provide, in 
a definition of the term ``scientific or technological information,'' 
the criteria for the types of communications of scientific or 
technological information that former executive branch employees may 
make to DOE pursuant to 18 U.S.C. 207(j)(5).
    The proposed rule defines scientific and technological information 
as that which is of a scientific or technological character, such as 
technical or engineering information relating to the natural sciences. 
This proposed definition does not extend to information associated 
solely with a nontechnical discipline such as law, economics, or 
political science.

II. Discussion of Proposed Rule

    Proposed section 10 CFR 1010.202, defines the statutory term 
``scientific or technological information,'' providing criteria for 
program officials and the Designated Agency Ethics Official (DAEO) to 
use when evaluating requests from former employees for approval to 
communicate such information to DOE offices and officials. The program 
office official and DAEO shall consider the former executive branch 
employee's qualifications, the information to be conveyed, the former 
executive branch employee's Federal position, the extent of the former 
executive branch employee's participation in the same particular 
matter, and whether DOE's interest would be served by allowing such 
communications. Section 1010.202 also proposes to define the term 
``authorized communication'' as the transmission of scientific or 
technological information that has been approved by DOE under the 
procedures that would be established by this rulemaking.
    Proposed section 10 CFR 1010.203, sets forth the procedures under 
which a former employee of the executive branch may obtain approval for 
communicating scientific or technological information to DOE offices or 
officials. A former employee of the executive branch must contact the 
program office to which he or she wishes to make such communications. 
The Director of the program office, in consultation with the DAEO, 
shall advise the former executive branch employee in writing whether he 
or she may make such communications.
    The proposed regulation does not apply to testimony as an expert in 
an adversarial proceeding in which the United States is a party or has 
an interest. Restrictions on testimony, and exceptions thereof, are 
prescribed in 18 U.S.C. 207(j)(6).

III. Regulatory Review

A. Executive Order 12866

    This proposed rule has been determined not to be a significant 
regulatory action under Executive Order 12866, ``Regulatory Planning 
and Review,'' 58 FR 51735 (October 4, 1993). Accordingly, this action 
was not subject to review under that Executive Order by the Office of 
Information and Regulatory Affairs of the Office of Management and 
Budget.

B. National Environmental Policy Act

    DOE has determined that this proposed rule is covered under the 
Categorical Exclusion found in DOE's National Environmental Policy Act 
regulations at paragraph A.5 of Appendix A to Subpart D, 10 CFR Part 
1021, which applies to rulemakings interpreting or amending an existing 
rule that do not change the environmental effect thereof. Accordingly, 
neither an environmental assessment nor an environmental impact 
statement is required.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601, et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. As required 
by Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the rulemaking process (68 FR 7990). DOE has made its 
procedures and policies available on the Office of the General 
Counsel's Web site: http://www.gc.doe.gov.
    DOE has reviewed this proposed rule under the provisions of the 
Regulatory Flexibility Act and the procedures and policies published on 
February 19, 2003. The proposed rule will only affect individuals who 
were formerly employed by the executive branch of the Federal 
government if they want to communicate with DOE on scientific or 
technological matters. On the basis of the foregoing, DOE certifies 
that this proposed rule would not have a

[[Page 72750]]

significant economic impact on a substantial number of small entities. 
Accordingly, DOE has not prepared a regulatory flexibility analysis for 
this rulemaking. DOE's certification and supporting statement of 
factual basis will be provided to the Chief Counsel for Advocacy of the 
Small Business Administration pursuant to 5 U.S.C. 605(b).

D. Paperwork Reduction Act

    No new record keeping requirements subject to the Paperwork 
Reduction Act, 44 U.S.C. 3501, et seq., are imposed by this proposed 
rule.

E. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995, Public Law No. 104-4, 
generally requires Federal agencies to examine closely the impacts of 
regulatory actions on State, local, and tribal governments. Subsection 
101(5) of title I of that law defines a Federal intergovernmental 
mandate to include any regulation that would impose upon State, local, 
or tribal governments an enforceable duty, except a condition of 
Federal assistance or a duty arising from participating in a voluntary 
federal program. Title II of that law requires each Federal agency to 
assess the effects of Federal regulatory actions on State, local, and 
tribal governments, in the aggregate, or to the private sector, other 
than to the extent such actions merely incorporate requirements 
specifically set forth in a statute. Section 202 of that title requires 
a Federal agency to perform a detailed assessment of the anticipated 
costs and benefits of any rule that includes a Federal mandate which 
may result in costs to State, local, or tribal governments, or on the 
private sector, of $100 million or more in any one year (adjusted 
annually for inflation). 2 U.S.C. 1532(a) and (b). Section 204 of that 
title requires each agency that proposes a rule containing a 
significant Federal intergovernmental mandate to develop an effective 
process for obtaining meaningful and timely input from elected officers 
of State, local, and tribal governments. 2 U.S.C. 1534.
    This proposed rule would apply only to former executive branch 
employees who want to communicate with DOE on scientific or 
technological matters. It would not result in the expenditure by State, 
local, and tribal governments in the aggregate, or by the private 
sector, of $100 million or more in any one year. Accordingly, this 
proposed rule would not impose a Federal mandate on State, local, or 
tribal governments or on the private sector.

F. Treasury and General Government Appropriations Act, 1999

    Section 654 of the Treasury and General Government Appropriations 
Act of 1999, Public Law No. 105-277, requires Federal agencies to issue 
a Family Policymaking Assessment for any proposed rule that may affect 
family well being. The proposed rule would not have any impact on the 
autonomy or integrity of the family as an institution. Accordingly, DOE 
has concluded that it is unnecessary to prepare a Family Policymaking 
Assessment.

G. Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4, 
1999), imposes certain requirements on agencies formulating and 
implementing policies or regulations that preempt State law or that 
have federalism implications. Agencies are required to examine the 
constitutional and statutory authority supporting any action that would 
limit the policymaking discretion of the States and carefully assess 
the necessity for such actions. DOE has examined this proposed rule and 
has determined that it would not preempt State law and would not have a 
substantial direct effect on the States, on the relationship between 
the Federal government and the States, or on the distribution of power 
and responsibilities among the various levels of government. No further 
action is required by Executive Order 13132.

H. Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on 
Executive agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. With regard to the review 
required by section 3(a), section 3(b) of Executive Order 12988 
specifically requires that Executive agencies make every reasonable 
effort to ensure that the regulation: (1) Clearly specifies the 
preemptive effect, if any; (2) clearly specifies any effect on existing 
Federal law or regulation; (3) provides a clear legal standard for 
affected conduct while promoting simplification and burden reduction; 
(4) specifies the retroactive effect, if any; (5) adequately defines 
key terms; and (6) addresses other important issues affecting clarity 
and general draftsmanship under any guidelines issued by the Attorney 
General. Section 3(c) of Executive Order 12988 requires Executive 
agencies to review regulations in light of applicable standards in 
section 3(a) and section 3(b) to determine whether they are met or it 
is unreasonable to meet one or more of them. DOE has completed the 
required review and determined that, to the extent permitted by law, 
the proposed rule meets the relevant standards of Executive Order 
12988.

I. Treasury and General Government Appropriations Act, 2001

    The Treasury and General Government Appropriations Act, 44 U.S.C. 
3516 note (2001), provides for agencies to review most disseminations 
of information to the public under guidelines established by each 
agency pursuant to general guidelines issued by OMB.
    OMB's guidelines were published at 67 FR 8452 (February 22, 2002), 
and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). 
DOE has reviewed this proposed rule in accordance with the OMB and DOE 
guidelines and has concluded that it is consistent with applicable 
policies in those guidelines.

J. Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001), requires Federal agencies to prepare and submit to the 
OMB a Statement of Energy Effects for any proposed significant energy 
action. A ``significant energy action'' is defined as any action by an 
agency that promulgated or is expected to lead to promulgation of a 
final rule, and that: (1) Is a significant regulatory action under 
Executive Order 12866, or any successor order; and (2) is likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy, or (3) is designated by the Administrator of the Office of 
Information and Regulatory Policy as a significant energy action. For 
any proposed significant energy action, the agency must give a detailed 
statement of any adverse effects on energy supply, distribution, or use 
should the proposal be implemented, and of reasonable alternatives to 
the action and their expected benefits on energy supply, distribution, 
and use. This regulatory action would not have a significant adverse 
effect on the supply, distribution, or use of energy and is therefore 
not a significant energy action.

[[Page 72751]]

Accordingly, DOE has not prepared a Statement of Energy Effects.

IV. Approval of the Office of the Secretary

    The Secretary of Energy has approved the issuance of this notice of 
proposed rulemaking.

List of Subjects in 10 CFR Part 1010

    Conduct standards, Conflicts of interest, Ethical conduct, 
Government employees.

    Issued in Washington, DC, on November 20, 2008.
David R. Hill,
General Counsel.

    For the reasons stated in the preamble, DOE proposes to amend 
chapter X of Title 10 of the Code of Federal Regulations as set forth 
below:

PART 1010--CONDUCT OF EMPLOYEES AND FORMER EMPLOYEES

    1. The authority citation for part 1010 is revised to read as 
follows:

    Authority: 5 U.S.C. 301, 303, 7301; 5 U.S.C. App. (Ethics in 
Government Act); 5 U.S.C. App. (Inspector General 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; 18 
U.S.C. 207, 208.

    2. The heading to Part 1010 is revised as set forth above.
    3. Sections 1010.101 through 1010.104 are designated as Subpart A 
and the heading is added to read as set forth below:

Subpart A--Conduct of Employees

* * * * *


Sec.  1010.101  [Amended]

    4. Section 1010.101 is amended by removing the word ``part,'' and 
adding the word ``subpart'' in its place.
    5. A new Subpart B is added to Part 1010 to read as follows:

Subpart B--Procedures for Exemption of Scientific and Technological 
Information Communications From Post-Employment Restrictions

Sec.
1010.201 Purpose and scope.
1010.202 Definitions.
1010.203 Procedures for review and approval of requests.


Sec.  1010.201  Purpose and scope.

    (a) This subpart sets forth criteria for the types of 
communications on scientific or technological matters permitted under 
18 U.S.C. 207(j)(5) by defining the term ``scientific or technological 
information.'' This subpart also establishes the procedures for 
receiving and approving requests from former employees of the executive 
branch to make such communications to DOE.
    (b) This subpart applies to any former employee of the executive 
branch subject to the post-employment conflict of interest restrictions 
in 18 U.S.C. 207(a), (c), and (d), who wishes to communicate with DOE 
under the exemption in 18 U.S.C. 207(j)(5) for the purpose of 
furnishing scientific or technological information to DOE offices or 
officials.
    (c) This subpart does not apply to a former DOE employee's 
testimony as an expert in an adversarial proceeding in which the United 
States is a party or has a direct and substantial interest.


Sec.  1010.202  Definitions.

    For purposes of this subpart:
    (a) Agency designee refers to an individual serving in a position 
in DOE requiring appointment by the President of the United States with 
the advice and consent of the Senate.
    (b) Authorized communication means any transmission of scientific 
or technological information to any DOE office or official that is 
approved by DOE under Sec.  1010.203 of this subpart.
    (c) DOE refers to the U.S. Department of Energy.
    (d) Scientific or technological information includes:
    (1) Information of a scientific or technological nature, including, 
but not limited to, technical or engineering information relating to 
the natural sciences;
    (2) Information in meritorious or convincing scientific or 
technological proposals;
    (3) Information that informs Federal officials of the significance 
of other scientific or technological alternatives that could impact the 
validity, usefulness, or ability to measure the completeness of the 
data supplied on those alternatives; or
    (4) Information regarding the feasibility, risk, cost, or speed of 
implementation of a DOE project or program when necessary to appreciate 
fairly the practical significance of the information.


Sec.  1010.203  Procedures for review and approval of requests.

    (a) Any former employee of the executive branch subject to the 
constraints of the post-employment restrictions of 18 U.S.C. 207(a), 
(c), and (d) who wishes to communicate scientific or technological 
information to DOE must contact the DOE office with which the former 
employee wishes to communicate and request authorization to make such 
communication. This request must address, in detail, information 
regarding each of the factors set forth in paragraphs (c)(1) through 
(c)(6) and (c)(8) of this section.
    (b) In consultation with the Designated Agency Ethics Official 
(DAEO), the agency designee must advise the former employee in writing 
whether the proposed communication is an authorized communication. This 
authority cannot be delegated.
    (c) In deciding whether a proposed communication is an authorized 
communication, the agency designee receiving the request and the DAEO 
must consider the following factors:
    (1) Whether the former employee has relevant scientific or 
technical qualifications;
    (2) Whether the former employee has qualifications that are 
otherwise unavailable;
    (3) The nature of the scientific or technological information to be 
conveyed;
    (4) The former employee's position prior to termination;
    (5) The extent of the former employee's involvement in the matter 
at issue during his or her employment, including:
    (i) The former employee's involvement in the same particular matter 
involving specific parties;
    (ii) The time elapsed since the former employee's participation in 
such matter; and
    (iii) The offices within the Federal department or agency involved 
in the matter both during the former employee's period of employment in 
the executive branch and at the time the request is being made;
    (6) The existence of pending or anticipated matters before the 
Federal government from which the former employee or his or her current 
employer may financially benefit, including contract modifications, 
grant applications, and proposals; and
    (7) Whether DOE's interests would be served by allowing the 
proposed communication; and
    (8) Any other information relevant to deciding if there is an 
intent to influence a decision or action of DOE.

[FR Doc. E8-28267 Filed 11-28-08; 8:45 am]

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