81 FR 61099 - Interpretation, Exemptions and Waiver Guidance Concerning the Federal Criminal Conflict of Interest Statute Prohibiting Acts Affecting a Personal Financial Interest; Amendment to Definition of “Employee”

OFFICE OF GOVERNMENT ETHICS

Federal Register Volume 81, Issue 172 (September 6, 2016)

The U.S. Office of Government Ethics is issuing this interim final rule to make a technical modification to the definition of ``employee'' in its regulations implementing the federal criminal conflict of interest statute concerning acts affecting a personal financial interest, in order to ensure their continued applicability to all individuals subject to requirements of the statute.

[Federal Register Volume 81, Number 172 (Tuesday, September 6, 2016)]
[Rules and Regulations]
[Pages 61099-61100]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-21293]



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Federal Register / Vol. 81, No. 172 / Tuesday, September 6, 2016 / 
Rules and Regulations

[[Page 61099]]



OFFICE OF GOVERNMENT ETHICS

5 CFR Part 2640

RIN 3209-AA09


Interpretation, Exemptions and Waiver Guidance Concerning the 
Federal Criminal Conflict of Interest Statute Prohibiting Acts 
Affecting a Personal Financial Interest; Amendment to Definition of 
``Employee''

AGENCY: Office of Government Ethics (OGE).

ACTION: Interim final rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: The U.S. Office of Government Ethics is issuing this interim 
final rule to make a technical modification to the definition of 
``employee'' in its regulations implementing the federal criminal 
conflict of interest statute concerning acts affecting a personal 
financial interest, in order to ensure their continued applicability to 
all individuals subject to requirements of the statute.

DATES: This interim regulation is effective September 6, 2016. Comments 
are invited and are due in writing by November 7, 2016.

ADDRESSES: You may submit comments, in writing, to OGE on this interim 
final rule, identified by RIN 3209-AA09, by any of the following 
methods:
    E-Mail: [email protected]. Include the reference ``Interpretation, 
Exemptions and Waiver Guidance Concerning 18 U.S.C. 208 (Acts Affecting 
A Personal Financial Interest); Amendment to Definition of `Employee' 
'' in the subject line of the message.
    Fax: (202) 482-9237.
    Mail/Hand Delivery/Courier: Office of Government Ethics, Suite 500, 
1201 New York Avenue NW., Washington, DC 20005-3917, Attention: 
``Interpretation, Exemptions and Waiver Guidance Concerning 18 U.S.C. 
208 (Acts Affecting A Personal Financial Interest); Amendment to 
Definition of `Employee.' ''
    Instructions: All submissions must include OGE's agency name and 
the Regulation Identifier Number (RIN), 3209-AA09, for this rulemaking. 
All comments, including attachments and other supporting materials, 
will become part of the public record and be subject to public 
disclosure. Comments may be posted on OGE's Web site, www.oge.gov. 
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: Christopher J. Swartz, Assistant 
Counsel, Office of Government Ethics, Suite 500, 1201 New York Avenue 
NW., Washington, DC 20005-3917; Telephone: 202-482-9300; TTY: 800-877-
8339; Fax: 202-482-9237.

SUPPLEMENTARY INFORMATION:

I. Background

    The U.S. Office of Government Ethics (OGE) is issuing this interim 
final rule making a technical modification to the definition of 
``employee'' in its regulations implementing 18 U.S.C. 208. Section 
208(a) prohibits participation in particular matters affecting a 
covered individual's personal and imputed financial interests. Section 
208(b)(2) authorizes OGE to promulgate regulatory exemptions describing 
financial interests that are ``too remote or too inconsequential'' to 
warrant disqualification pursuant to section 208(a). Pursuant to 5 
U.S.C. app. 402(b)(1) and Executive Order 12674 of April 12, 1989 (as 
modified by Executive Order 12731), OGE is responsible for providing 
uniform regulations interpreting section 208. In addition, section 
208(d)(2) specifically directs OGE to adopt ``uniform regulations for . 
. . exemptions'' from the applicability of section 208(a). Consistent 
with these authorities, in 1996 OGE issued uniform regulations at 5 CFR 
part 2640 interpreting 18 U.S.C. 208 and establishing exemptions for 
all individuals subject to section 208(a). 61 FR 66830 (Dec. 18, 1996).
    OGE established this uniform coverage by defining ``employee'' to 
mean ``an officer or employee of the executive branch of the United 
States, or of any independent agency of the United States, a Federal 
Reserve bank director, officer, or employee, or an officer or employee 
of the District of Columbia,'' including ``a special Government 
employee as defined in 18 U.S.C. 202.'' 5 CFR 2640.102(b). The language 
of this definition in 5 CFR part 2640 carefully covered all individuals 
then subject to the statute, including certain individuals who were not 
executive branch employees. Compare id. with 18 U.S.C. 208(a) (covering 
``an officer or employee of the executive branch of the United States 
Government, or of any independent agency of the United States, a 
Federal Reserve bank director, officer, or employee, or an officer or 
employee of the District of Columbia, including a special Government 
employee''). The applicability of 5 CFR part 2640 was, thus, 
coextensive with the applicability of section 208.
    Recently, however, a cross-reference in the organic statute of a 
newly created board has expanded the coverage of the requirements of 
section 208 to include the board's members and staff, who would not 
otherwise be subject to section 208. Public Law 114-187, section 109(a) 
(2016). In order to ensure the continued applicability of 5 CFR part 
2640 to all individuals subject to section 208, this interim regulation 
adds the phrase ``. . . , or any other individual subject to 
requirements of 18 U.S.C. 208'' at the end of the first sentence of the 
definition of ``employee.'' This technical amendment will guard against 
uncertainty as to the applicability of 5 CFR part 2640 to the members 
and staff of this board, as well as to others who may in the future 
become subject to section 208. Prior to issuing this regulation, OGE 
consulted with the Office of Personnel Management and the Department of 
Justice, and pursuant to section 201(c) of Executive Order 12674, as 
modified by Executive Order 12731, has obtained the concurrence of the 
Department of Justice.

II. Matters of Regulatory Procedure

Administrative Procedure Act

    Pursuant to sections 553(b) and 553(d)(3) of title 5 of the United 
States Code, the Director of the Office of Government Ethics has found 
good cause for dispensing with the usual requirements of notice and 
comment

[[Page 61100]]

and a 30-day delay in the rule's effective date. Because this minor 
amendment is strictly technical in nature, providing notice and comment 
and delaying the effective date are unnecessary. Moreover, in 
clarifying the meaning of ``employee,'' this rule is an interpretative 
rule and thus exempt from notice and comment and a delay in effective 
date pursuant to 5 U.S.C. 553(b) and 553(d)(2), respectively. Finally, 
this rule recognizes exemptions, which exempts the rule from the 30-day 
delayed effective date pursuant to 5 U.S.C. 553(d)(1). Nonetheless, 
this interim final rule provides a 60-day comment period for agencies 
and the public. The Office of Government Ethics will review any 
comments received during the comment period and consider any 
modifications to this rule that appear warranted.

Regulatory Flexibility Act

    As Director of the Office of Government Ethics, I certify under the 
Regulatory Flexibility Act (5 U.S.C. chapter 6) that this interim final 
rule would not have a significant economic impact on a substantial 
number of small entities because it primarily affects covered 
employees.

Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply 
because this regulation does not contain information collection 
requirements that require 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 interim final rule would 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 Office of Government Ethics has determined that this rulemaking 
involves a nonmajor rule under the Congressional Review Act (5 U.S.C. 
chapter 8) and will, before the interim final rule takes effect, submit 
a report thereon to the U.S. Senate, House of Representatives and 
General Accounting Office in accordance with that law.

Executive Order 12866

    In promulgating this rule amendment, the Office of Government 
Ethics has adhered to the regulatory philosophy and the applicable 
principles of regulation set forth in section 1 of Executive Order 
12866, Regulatory Planning and Review. The Office of Management and 
Budget has determined that this technical rule amendment is not 
``significant'' under Executive Order 12866.

Executive Order 12988

    As Director of the Office of Government Ethics, I have reviewed 
this interim final rule in light of section 3 of Executive Order 12988, 
Civil Justice Reform, and certify that it meets the applicable 
standards provided therein.

List of Subjects in 5 CFR Part 2640

    Conflict of interests, Government employees.

    Approved: August 30, 2016.
Walter M. Shaub, Jr.,
Director, Office of Government Ethics.

    Accordingly, for the reasons set forth in the preamble, the Office 
of Government Ethics amends 5 CFR part 2640 as follows:

PART 2640--INTERPRETATION, EXEMPTIONS AND WAIVER GUIDANCE 
CONCERNING 18 U.S.C. 208 (ACTS AFFECTING A PERSONAL FINANCIAL 
INTEREST)

0
1. The authority citation for part 2640 continues to read as follows:

    Authority: 5 U.S.C. App. (Ethics in Government Act of 1978); 18 
U.S.C. 208; 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.


0
2. Revise the first sentence of Sec.  2640.102(b) to read as follows:


Sec.  2640.102  Definitions.

* * * * *
    (b) Employee means an officer or employee of the executive branch 
of the United States, or of any independent agency of the United 
States, a Federal Reserve bank director, officer, or employee, an 
officer or employee of the District of Columbia, or any other 
individual subject to requirements of 18 U.S.C. 208. * * *
* * * * *
[FR Doc. 2016-21293 Filed 9-2-16; 8:45 am]
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