[Federal Register Volume 65, Number 151 (Friday, August 4, 2000)]
[Rules and Regulations]
[Pages 47830-47831]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-19772]


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OFFICE OF GOVERNMENT ETHICS

5 CFR Part 2640

RIN 3209-AA09


Exemption Under 18 U.S.C. 208(b)(2) for Financial Interests of 
Non-Federal Government Employers in the Decennial Census

AGENCY: Office of Government Ethics (OGE).

ACTION: Final rule.

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SUMMARY: The Office of Government Ethics is issuing a final rule, 
permitting certain temporary employees of the Department of Commerce 
Bureau of the Census (the Bureau) who have been hired under authority 
of 13 U.S.C. 23 to perform duties in connection with the decennial 
census, notwithstanding these employees' disqualifying financial 
interest under 18 U.S.C. 208(a) arising from the interests of their 
non-Federal employers.

EFFECTIVE DATE: September 5, 2000.

FOR FURTHER INFORMATION CONTACT: Karen Kimball, Associate General 
Counsel, Office of Government Ethics, telephone: 202-208-8000; TDD: 
202-208-8025; FAX: 202-208-8037.

SUPPLEMENTARY INFORMATION: Section 208(a) of title 18 of the United 
States Code prohibits Government employees from participating in an 
official capacity in particular Government matters in which, to their 
knowledge, they, or, inter alia, any organization in which they are 
serving as an employee, have a financial interest, if the particular 
matter would have a direct and predictable effect on that interest. 
Section 208(b)(2) of title 18 permits the Office of Government Ethics 
to promulgate branchwide regulations describing financial interests 
that are too remote or inconsequential to warrant disqualification 
pursuant to section 208(a).
    On March 29, 2000, the Office of Government Ethics (OGE) published 
an interim rule with a 30-day request for comments to provide for an 
additional exemption under 5 CFR 2640.203 from the prohibition in the 
conflict of interest statute at 18 U.S.C. 208(a). See 65 FR 16511-16513 
(March 29, 2000).
    The new exemption, to be codified at 5 CFR 2640.203(l), permits 
employees who work for State, local, or tribal governments to work 
temporarily as enumerators, crew leaders, and field operations 
supervisors in a Local Census Office or an Accuracy and Coverage 
Evaluation function at the Department of Commerce Bureau of the Census 
(the Bureau). These employees have been hired under authority of 18 
U.S.C. 23 to perform duties in connection with the decennial census, 
notwithstanding these employees' disqualifying interest under 18 U.S.C. 
208(a) arising from the interests of their non-Federal employers. 
However, the exemption does not cover employees who work for State, 
local, or tribal governments whose positions are filled through public 
election.
    The interim rule was published after obtaining the concurrence of 
the Department of Justice pursuant to section 201 of Executive Order 
12674. Also, as provided in section 402 of the Ethics in Government Act 
of 1978, as amended, 5 U.S.C. appendix, section 402, OGE has consulted 
with both the Department of Justice (as additionally required under 18 
U.S.C. 208(d)(2)) and the Office of Personnel Management on the interim 
rule. No further consultation with the Department of Justice or the 
Office of Personnel Management is required because the interim rule is 
being adopted without change.
    As noted, the interim rule provided for a 30-day comment period. 
Comments were received from two sources, one from the Department of 
Commerce and one from a private citizen. After carefully considering 
these comments, the Office of Government Ethics is adopting the interim 
rule as final without change.

Summary of Comments

    The Department of Commerce recommended a change to the exemption to 
provide for a newly created position of ``crew leader assistant'' and 
to cover any future positions that the Department might create within 
the occupations of enumerator, crew leader, or field operations 
supervisor. These newly created positions would have similar duties and 
responsibilities as those occupations covered by the exemption, but 
would be performed at different activity levels, such as crew leader 
assistant. In OGE's view, it would not be necessary to amend the 
regulation to cover such newly created positions since all activity 
levels within those designated occupations in a Local Census Office or 
an Accuracy and Coverage Evaluation function would automatically be 
covered by the exemption.
    The second commenter, an elected member of a city council, raised 
two concerns. The commenter believes that the distinction between 
elected and nonelected officials is arbitrary and both too broad and, 
at the same time, too narrow in that some elected officials (e.g., 
coroners) would have no interest in the outcome of the census while 
some nonelected officials (e.g., city managers) serve in policy-making 
positions and would have an interest in the outcome of the census. The 
commenter recommends that the line be drawn to exclude those employees 
who serve in policy-making positions.
    As indicated in the preamble to the interim rule, the distinction 
between elected and nonelected officials was a general attempt to 
eliminate concerns about appearances arising from the greater interest 
that elected officials might have regarding the impact of the census 
count on their employers. The distinction represents the best line that 
could be drawn to include the greatest number of individuals who might 
be perceived as having an interest in the outcome of the census. It 
also serves the Department of Commerce's need to quickly and easily 
identify those

[[Page 47831]]

individuals whose non-Federal employment might present a conflict of 
interest or appearance thereof. It may be that, in drawing such a broad 
distinction, some individuals might be included who need not have been 
and that some few individuals might not have been excluded who perhaps 
could have been. However, the distinction represents OGE's best view of 
how the line should be drawn under the specified circumstances here.
    Drawing the distinction on the basis of whether an individual holds 
a policy-making position would be both cumbersome and unworkable. The 
exemption must set forth a bright-line distinction because both the 
Department of Commerce and the employees it hires need to know who is 
clearly covered by the exemption and who is not. Any incorrect 
decisions about who is covered by the exemption could potentially 
subject the employee to criminal penalties should 18 U.S.C. 208(a) be 
violated. In addition, attempting to define who does and does not serve 
in a policy-making position would seriously hamper and unnecessarily 
complicate and impede a truncated hiring process.
    The commenter also believes that the exemption would prevent the 
Department of Commerce from issuing individual waivers which would 
permit some elected officials to perform work on the decennial census. 
However, the exemption does not prevent the Department of Commerce from 
issuing waivers in individual cases in accordance with 18 U.S.C. 
208(b)(1) and the requirements set forth in OGE regulations at 5 CFR 
2640.301. An agency may issue such waivers in individual cases where it 
determines that a disqualifying financial interest in a particular 
matter is not so substantial as to be deemed likely to affect the 
integrity of the employee's services to the Government.
    Finally, the commenter believes that the exemption may not be 
necessary due to the nature of the work to be performed, the inability 
of the temporary employees to affect the census count to any 
significant degree, and the remoteness of the financial interests of 
their non-Federal government employers due to the number of various 
steps in the census process. However, on balance and in an abundance of 
caution, OGE believes that an exemption is in the best interest of the 
Department of Commerce which initiated the request for an exemption and 
in the best interest of individuals who will be employed by Commerce to 
work on the decennial census.

Matters of Regulatory Procedure

Executive Order 12866

    In promulgating this final regulation, 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. This regulation has also been 
reviewed by the Office of Management and Budget under that Executive 
order.

Executive Order 12988

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

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 final 
regulation will not have a significant economic impact on a substantial 
number of small entities because it primarily affects Federal executive 
branch employees.

Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply 
because this final regulation does not contain information collection 
requirements that require the approval of the Office of Management and 
Budget.

List of Subjects in 5 CFR Part 2640

    Conflict of interests, Government employees.

    Approved: June 1, 2000.
Stephen D. Potts,
Director, Office of Government Ethics.

    Accordingly, for the reasons set forth in the preamble, the Office 
of Government Ethics is adopting the interim rule amending 5 CFR part 
2640 which was published at 65 FR 16511-16513 on March 29, 2000, as a 
final rule without change.

[FR Doc. 00-19772 Filed 8-3-00; 8:45 am]
BILLING CODE 6345-01-P