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Rules and Regulations Federal Register

61143

Vol. 69, No. 199

Friday, October 15, 2004

OFFICE OF PERSONNEL 

MANAGEMENT 

5 CFR Part 730 

RIN 3206–AK60 

Notification of Post-Employment 

Restrictions

AGENCY: Office of Personnel 

Management.

ACTION: Interim rule with request for 

comments. 

SUMMARY: The Office of Personnel 

Management is issuing interim 

regulations requiring agencies to notify 

members of the Senior Executive 

Service (SES) and other employees in 

senior positions of certain postemployment conflict-of-interest 

restrictions. Agencies must provide 

written notification to affected 

employees of the new salary-based 

threshold for determining the 

applicability of the post-employment 

conflict-of-interest restrictions.

DATES: Effective Date: January 1, 2004. 

Applicability Date: The regulations 

apply on the first day of the first 

applicable pay period beginning on or 

after October 15, 2004. 

Comment Date: Comments must be 

received on or before December 14, 

2004.

ADDRESSES: Send or deliver comments 

to Donald J. Winstead, Deputy Associate 

Director for Pay and Performance 

Policy, Office of Personnel Management, 

Room 7H31, 1900 E Street, NW., 

Washington, DC 20415–8200; by FAX at 

(202) 606–0824; or by e-mail at payperformance-policy@opm.gov.

FOR FURTHER INFORMATION CONTACT: For 

information, please contact Jo Ann 

Perrini by telephone at (202) 606–2858; 

by FAX at (202) 606–0824; or by e-mail 

at pay-performance-policy@opm.gov.

SUPPLEMENTARY INFORMATION: Section 

1125(b) of Public Law 108–136 

established a new salary-based 

threshold for determining the 

applicability of certain postemployment conflict-of-interest 

restrictions under 18 U.S.C. 207(c). The 

new salary-based threshold became 

effective on the first day of the first 

applicable pay period beginning on or 

after January 1, 2004 (January 11, 2004, 

for most employees). As a result of the 

higher rates of basic pay established for 

members of the Senior Executive 

Service (SES) upon conversion to the 

new performance-based SES pay system 

in January 2004, the vast majority of 

SES members are now subject to the 

post-employment restrictions in 18 

U.S.C. 207(c). 

SES Performance-Based Pay System 

Section 1125(a) of Public Law 108–

136 (November 24, 2003) amended 5 

U.S.C. 5382 to establish a new 

performance-based pay system for the 

SES that became effective on the first 

day of the first pay period beginning on 

or after January 1, 2004 (January 11, 

2004, for most employees). On January 

13, 2004, the Office of Personnel 

Management (OPM) issued interim 

regulations (69 FR 2048) to establish the 

new SES performance-based pay 

system, prescribe the rules for 

conversion to the new SES pay system, 

and outline the criteria for providing 

pay adjustments to SES members on or 

after the first applicable pay period 

beginning on or after January 1, 2004 

(January 11, 2004, for most employees). 

Generally, the employee’s newly 

converted SES rate of basic pay is equal 

to the rate of basic pay plus any 

applicable locality payment to which 

the employee was entitled on January 

10, 2004. (In cases where the SES 

member’s rate of basic pay, plus any 

applicable locality-based comparability 

payment under 5 U.S.C. 5304 to which 

the employee was entitled on November 

24, 2003, was higher, the employee was 

entitled to that higher rate upon 

conversion to the new SES pay system.) 

Post-Employment Restrictions 

Section 1125(b)(1) amended 18 U.S.C. 

207(c)(2)(A)(ii) to require SES members 

and other individuals who are paid at a 

rate of basic pay that is equal to or 

greater than 86.5 percent of the rate for 

level II of the Executive Schedule (i.e., 

equal to or greater than $136,757 in 

2004) to be subject to the postemployment restrictions in 18 U.S.C. 

207(c). In addition, a grandfather 

provision in section 1125(b)(1) applies 

to certain SES members and other 

individuals for a period of 2 years, 

through November 24, 2005. If such 

individuals, on November 23, 2003, 

were subject to 18 U.S.C. 207(c) and 

were employed in positions whose rate 

of basic pay, exclusive of locality 

payments under 5 U.S.C. 5304, was 

equal to or greater than the rate of basic 

pay payable for level 5 of the SES (i.e., 

$134,000), they will be subject to the 1-

year post-employment restrictions in 18 

U.S.C. 207(c) until November 24, 2005, 

without regard to any subsequent 

changes in position or pay. If at the end 

of the extended coverage period 

(November 24, 2005), a covered 

employee is paid at a rate of basic pay 

that is equal to or greater than 86.5 

percent of the rate for level II of the 

Executive Schedule, he or she will 

continue to be subject to the postemployment restrictions in 18 U.S.C. 

207(c). 

The post-employment restrictions in 

18 U.S.C. 207(c) require that for 1 year 

after service in a covered position ends, 

no former employee may knowingly 

make, with the intent to influence, any 

communication to or appearance before 

an employee of a department or agency 

in which he or she served in any 

capacity during the 1-year period prior 

to ending service in that position, if that 

communication or appearance is made 

on behalf of any other person (except 

the United States) in connection with 

any matter concerning which he or she 

seeks official action by that employee. 

Employees subject to 18 U.S.C. 207(c) 

also are subject to 18 U.S.C. 207(f), 

which imposes additional restrictions 

on representing, aiding, or advising 

certain foreign entities with the intent to 

influence any officer or employee of any 

department or agency of the United 

States. 

Agency Notification Requirements 

Section 1125(b) also added a new 

section 7302 to chapter 73 of title 5, 

United States Code, to require OPM, in 

consultation with the Attorney General 

and the Office of Government Ethics, to 

promulgate regulations requiring each 

executive branch agency to provide 

written notification to an employee of 

that agency who is subject to the postemployment conflict-of-interest 

61144 Federal Register / Vol. 69, No. 199 / Friday, October 15, 2004 / Rules and Regulations 

restrictions in 18 U.S.C. 207(c)(1) as a 

result of the amendment to 18 U.S.C. 

207(c)(2)(A)(ii). 

On January 6, 2004, OPM issued a 

memorandum providing additional 

guidance on the new salary-based 

threshold for determining the 

applicability of certain postemployment conflict-of-interest 

restrictions to SES members. (See 

‘‘Notification of Changes in PostEmployment Restrictions Coverage for 

Members of the Senior Executive 

Service (SES)’’ at http://www.opm.gov/

oca/compmemo/2004/2004-01.asp.) In 

that memorandum, OPM encouraged 

agencies to identify and notify those 

SES members who would be covered by 

the post-employment restrictions as of 

January 11, 2004. We also provided 

written sample notices that agencies 

could use to notify their employees. 

In these interim regulations, we have 

added a new 5 CFR part 730, which 

requires agencies to provide written 

notice to affected employees before, or 

as part of, any action that affects the 

employee’s coverage under 18 U.S.C. 

207(c)(1), including when employment 

or service in a covered position is 

terminated. A copy of the written notice 

must be provided simultaneously to the 

Designated Agency Ethics Official (or a 

delegate) for the agency involved. The 

notices are to be retained for the 

particular individual as part of the OGE/

GOVT–1 Governmentwide System of 

Records. (See 68 FR 3098 (January 22, 

2003) (Privacy Act system notice).) 

However, post-employment restrictions 

apply to covered employees whether or 

not they receive a written notice from 

their agencies. 

Regulatory Flexibility Act 

I certify that these regulations will not 

have a significant economic impact on 

a substantial number of small entities 

because they will apply only to Federal 

agencies and employees. 

Waiver of Notice of Proposed 

Rulemaking 

Pursuant to sections 553(b)(3)(B) and 

(d)(3), of title 5, United States Code, I 

find that good cause exists for waiving 

the general notice of proposed 

rulemaking and for making this rule 

effective in less than 30 days. These 

regulations implement section 1125(b) 

of Public Law 108–136, which requires 

OPM, in consultation with the Attorney 

General and the Office of Government 

Ethics, to promulgate regulations no 

later than 180 days after the law’s 

effective date (by May 24, 2004). The 

waiver of the two requirements in 

sections 553(b)(3)(B) and (d)(3) is 

necessary in order for OPM to comply 

with the law by consulting with the 

designated officials and promulgating 

regulations by the deadline imposed by 

Congress. 

E.O. 12866, Regulatory Review 

This rule has been reviewed by the 

Office of Management and Budget in 

accordance with E.O. 12866.

List of Subjects in 5 CFR Part 730 

Government employees.

Office of Personnel Management. 

Kay Coles James, 

Director.

■ Accordingly, OPM is adding a new 

part 730 to read as follows:

PART 730—NOTIFICATION OF POSTEMPLOYMENT RESTRICTIONS

Sec. 

730.101 Purpose. 

730.102 Definitions. 

730.103 Coverage. 

730.104 Notification. 

730.105 Savings provision.

Authority: 5 U.S.C. 7302 and sec. 1125(b) 

of the National Defense Authorization Act for 

FY 2004, Pub. L. 108–136, 117 Stat. 1392.

§ 730.101 Purpose. 

This part implements 5 U.S.C. 7302, 

which requires agencies to provide 

written notice to senior executives and 

other individuals covered by 18 U.S.C. 

207(c)(2)(A)(ii) that they are subject to 

certain post-employment conflict-ofinterest restrictions in 18 U.S.C. 207(c).

§ 730.102 Definitions. 

Agency means an Executive agency as 

defined in 5 U.S.C. 105, but does not 

include the General Accounting Office. 

Senior executive means a member of 

the Senior Executive Service (SES).

§ 730.103 Coverage. 

(a) The following individuals are 

subject to the post-employment conflictof-interest restrictions in 18 U.S.C. 

207(c), as amended by section 

1125(b)(1) of the National Defense 

Authorization Act for FY 2004: 

(1) Any individual, including a senior 

executive, who is paid at a rate of basic 

pay equal to or greater than 86.5 percent 

of the rate for level II of the Executive 

Schedule; and 

(2) Any individual, including a senior 

executive, who as of November 23, 

2003, was paid at a rate of basic pay, 

exclusive of any locality-based 

comparability payments under 5 U.S.C. 

5304, equal to or greater than the rate of 

basic pay for level 5 of the Senior 

Executive Service on that date (i.e., 

$134,000). These employees are subject 

to the post-employment restrictions 

through November 24, 2005, without 

regard to any subsequent changes in 

position or pay. 

(b) Nothing in this part affects 

individuals serving in positions 

described in 18 U.S.C. 207(c)(2)(A)(i), 

(iii), (iv), or (v).

§ 730.104 Notification. 

(a) Agencies must provide written 

notification to senior executives and 

other individuals covered by the 

amendment to 18 U.S.C. 207(c)(2)(A)(ii) 

that they are subject to the postemployment conflict-of-interest 

restrictions in 18 U.S.C. 207, before, or 

as part of, any personnel action that 

affects the employee’s coverage under 

18 U.S.C. 207(c)(1), including when 

employment or service in a covered 

position is terminated. A copy of the 

written notice must be provided 

simultaneously to the Designated 

Agency Ethics Official (or his or her 

delegate). The written notice must 

include information on the applicable 

penalties or injunctions that may be 

imposed under 18 U.S.C. 216(a), (b), and 

(c) for violations of the postemployment restrictions in 18 U.S.C. 

207(c). The notice also must indicate 

that employees covered by 18 U.S.C. 

207(c) are subject to 18 U.S.C. 207(f), 

which imposes additional postemployment restrictions on 

representing, aiding, or advising certain 

foreign entities. 

(b) Notwithstanding paragraph (a) of 

this section, the post-employment 

restrictions in 18 U.S.C. 207(c) apply to 

covered employees without regard to 

whether they receive written notice 

from their employing agency.

§ 730.105 Savings provision. 

Any post-employment restrictions 

established under 18 U.S.C. 207 and 

applicable prior to the first day of the 

first pay period beginning on or after 

January 1, 2004, remain in effect.

[FR Doc. 04–23194 Filed 10–14–04; 8:45 am] 

BILLING CODE 6325–39–P

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. 2003–NE–68–AD; Amendment 

39–13825; AD 2004–21–04] 

RIN 2120–AA64 

Airworthiness Directives; Becker 

Flugfunkwerk GmbH AR 4201 VHF AM 

Transceivers

AGENCY: Federal Aviation 

Administration (FAA), DOT.