[Federal Register: March 2, 1999 (Volume 64, Number 40)]
[Notices]
[Page 10151-10153]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02mr99-51]

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OFFICE OF GOVERNMENT ETHICS


Submission for OMB Review; Comment Request: Proposed Slightly
Revised OGE Form 450 Executive Branch Confidential Financial Disclosure
Report

AGENCY: Office of Government Ethics (OGE).

ACTION: Notice.

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SUMMARY: The Office of Government Ethics has submitted a slightly
revised version of its OGE Form 450 for confidential financial
disclosure reporting under its existing executive branch regulations
for review and three-year approval by the Office of Management and
Budget (OMB) under the Paperwork Reduction Act.

DATES: Comments by the agencies and the public on this proposal are
invited and should be received by April 1, 1999.

ADDRESSES: Comments should be sent to Mr. Joseph F. Lackey, Jr., Office
of Information and Regulatory Affairs, Office of Management and Budget,
725 17th Street, NW., Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT: Mr. William E. Gressman at the Office
of Government Ethics, telephone: 202-208-8000, ext. 1110; TDD: 202-208-
8025; FAX: 202-208-8037. A copy of the proposed slightly revised OGE
Form 450 and the rest of the OGE submission package to OMB may be
obtained, without charge, by contacting Mr. Gressman.

SUPPLEMENTARY INFORMATION: The Office of Government Ethics has
submitted a proposed slightly revised version of the OGE Form 450
Executive Branch Confidential Financial Disclosure Report for three-
year approval (reclearance) by OMB under the Paperwork Reduction Act of
1995, 44 U.S.C. chapter 35. The OGE Form 450 (OMB control # 3209-0006)
collects information from covered department and agency officials as
required under OGE's executive branchwide regulatory provisions in
subpart I of 5 CFR part 2634, which underlying provisions are also the
subject of this request for paperwork approval (reclearance). The
revised OGE Form 450 will serve as the uniform report form for
collection, on a confidential basis, of financial information required
by the OGE regulation from certain new entrant and incumbent regular
and special Government employees of the Federal Government executive
branch departments and agencies in order to allow ethics officials to
conduct conflict of interest reviews and to resolve any actual or
potential conflicts found.
    The basis for the OGE regulation and the report form is two-fold.
First, section 201(d) of Executive Order 12674 of April 12, 1989 (as
modified by Executive Order 12731 of October 17, 1990) makes OGE
responsible for the establishment of a system of nonpublic
(confidential) financial disclosure by executive branch employees to
complement the system of public financial disclosure under the Ethics
in Government Act of 1978 (the ``Ethics Act''), as amended, 5 U.S.C.
appendix. Second, section 107(a) of the Ethics Act, 5 U.S.C. appendix,
Sec. 107(a), further provides authority for OGE as the supervising
ethics office for the executive branch of the Federal Government to
require that appropriate executive agency employees file confidential
financial disclosure reports, ``in such form as the supervising ethics
office may prescribe.'' The current OGE Form 450, adopted in early
1996, together with the underlying OGE 5 CFR part 2634 regulation
issued in 1992 and modified since, constitute the basic format OGE has
prescribed for such confidential financial disclosure in the executive
branch.
    The relatively minor updating revisions OGE now proposes to make to
the OGE Form 450 will bring it up-to-date and will not require any rule
changes to accomplish. First, OGE proposes to make a couple of
revisions to the Privacy Act and public burden information statements
on page 3 of the instructions to the form. The proposed revisions
include addition to the Privacy Act statement of a reference to the
underlying executive branchwide Privacy Act system of records, OGE/
GOVT-2, for confidential disclosure reports that OGE issued in 1990
upon its separation from the Office of Personnel Management. See 55 FR
6327-6331 (February 22, 1990). Also, the indication of routine use six
for such reports in judicial or administrative proceedings would be
revised to more closely track the wording of the underlying routine use
``f'' in the OGE/GOVT-2 records system notice. Under the public burden
information statement, OGE proposes to

[[Page 10152]]

add express mention of the OMB control number (3209-0006) and remove
the reference to OMB as an additional point of contact for information
collection comments on the OGE Form 450. In accordance with current
procedures, OGE will henceforth be indicated as the sole contact point
for such comments, on which OGE will coordinate with OMB if need be.
The Office of Government Ethics is also correcting a few minor
typographical errors on the form (including the instructions) and is
proposing a couple of minor stylistic edits as well. Since publication
of the first round paperwork notice last October (see below), OGE has
decided to make a few additional proposed editorial changes. Thus, the
form will provide for a block for numbering each page. In addition, OGE
is proposing to revise the caption of Part IV of the report form to
read ``Agreements or Arrangements'', as opposed to ``Agreements and
Arrangements'' and to make all the references on the form and
instructions thereto consistent. The mark-up copy of the form as
proposed for slight revision, available from OGE (see the FOR FURTHER
INFORMATION CONTACT section above), shows all of the changes that would
be made.
    No substantive changes to the OGE Form 450 are being proposed at
this time, though OGE does note (as also referenced on the mark-up copy
of the form) that the thresholds for reporting of gifts and
reimbursements in Part V of the OGE Form 450, currently $250 from any
one source with a $100 de minimis amount, may have to be adjusted
sometime later this year if the General Services Administration raises
``minimal value'' under the Foreign Gifts and Decorations Act, 5 U.S.C.
7342(a)(5), to more than $250. (Currently, the minimal value is set at
$245 pursuant to 41 CFR 101-49.001-5 of GSA's regulations.) Under
section 102(a)(2)(A) and (B) of the Ethics Act as amended, 5 U.S.C.
appendix, Sec. 102(a)(2)(A) and (B), the public financial disclosure
reporting thresholds are pegged to any such minimal value increase. The
Office of Government Ethics has, in 5 CFR 2634.304 and 2634.907(a)(3),
extended the statutory thresholds to confidential financial disclosure
reporting for the executive branch. If the thresholds do need to be
increased, OGE will revise the OGE Form 450, and the underlying part
2634 financial disclosure regulation. (Public financial disclosure
reporting would also be affected.) Moreover, OGE has requested
permission from OMB to make that ministerial change to the OGE Form 450
without a further paperwork submission, with notice to OMB. In that
case, OGE will also coordinate with OMB on the amendments needed to the
part 2634 regulation. In addition, OGE will advise the departments and
agencies of any such change and distribute the revised form with the
modified gifts/reimbursements reporting thresholds.
    The Office of Government Ethics expects that the currently
anticipated slightly revised form should be ready, after OMB clearance,
for dissemination to executive branch departments and agencies sometime
in the spring of this year. Once finally cleared, OGE will make the
newly revised form available to departments and agencies in paper, on
OGE's ethics CD-ROM and in the Ethics Resource Library section of the
OGE Internet World Wide Web site (Uniform Resource Locator (URL)
address: http://www.usoge.gov). In addition, when time and resources
permit, OGE will endeavor to make an updated electronic version of its
software for the OGE Form 450 available on the OGE Web site. This will
allow employees the option of preparing their forms on a computer,
although a printout and manual signature of the form are still required
unless specifically approved otherwise by OGE. Moreover, OGE also
permits departments and agencies to develop or utilize on their own
electronic versions of the OGE Form 450, provided they precisely
duplicate the paper original to the extent technically possible.
    Since 1992 various agencies have developed, with OGE review/
approval, alternative reporting formats, such as certificates of no
conflict, for certain classes of employees. Other agencies provide for
additional disclosures pursuant to independent organic statutes and in
certain other circumstances when authorized by OGE. In 1997, OGE itself
developed the new OGE Optional Form 450-A Confidential Certificate of
No New Interests for possible agency and employee use in certain years,
if applicable. However, the OGE Form 450 remains the uniform executive
branch report form for most of those executive branch employees who are
required by their agencies to report confidentially on their financial
interests. The OGE Form 450 is to be filed by each reporting individual
with the designated agency ethics official at the executive department
or agency where he or she is or will be employed.
    Reporting individuals are regular employees whose positions have
been designated by their agency under 5 CFR 2634.904 as requiring
confidential financial disclosure in order to help avoid conflicts with
their assigned responsibilities; additionally, all special Government
employees (SGE) are generally required to file. Agencies may, if
appropriate under the OGE regulation, exclude certain regular employees
or SGEs as provided in 5 CFR 2634.905. Reports are normally required to
be filed within 30 days of entering a covered position (or earlier if
required by the agency concerned), and again annually in the fall if
the employee serves for more than 60 days in the position. As indicated
in Sec. 2634.907 of the OGE regulation, the information required to be
collected includes assets and sources of income, liabilities, outside
positions, employment agreements and arrangements, and (for regular
incumbent filers only) gifts and travel reimbursements, subject to
certain thresholds and exclusions.
    Most of the persons who file this report form are current executive
branch Government employees at the time they complete the forms.
However, some filers are private citizens who are asked by their
prospective agency to file a new entrant report prior to entering
Government service in order to permit advance checking for any
potential conflicts of interest and resolution thereof by agreement to
recuse or divest, obtaining of a waiver, etc.
    Based on OGE's annual agency ethics program questionnaire responses
for 1996 and 1997, OGE estimates that an average of approximately
281,500 OGE 450 report forms will be filed each year for the next three
years throughout the executive branch. This estimate is based on the
average number of forms filed branchwide for the past two years, some
286,450 in 1996 and 276,444 in 1997, for a total of 562,894, with that
number then divided in half and rounded. With increased use of the
recent OGE Optional Form 450-A, the number of OGE Form 450 reports
filed throughout the executive branch may decrease further in the years
ahead; if so, OGE will adjust the branchwide estimate in three years
when it again seeks paperwork renewal of the OGE Form 450.
    Of the OGE Form 450 reports filed, OGE estimates that no more than
between 5% and 10%, or some 14,075 to 28,150 per year at most, will be
filed by private citizens, those potential (incoming) regular employees
whose positions are designated for confidential disclosure filing as
well as potential special Government employees whose agencies require
that they file their new entrant reports prior to assuming Government
responsibilities. No termination reports are required.
    Each filing is estimated to take an average of one and one-half
hours. The

[[Page 10153]]

number of private citizens whose reports are filed each year with OGE
is less than 10, but pursuant to 5 CFR 1320.3(c)(4)(i), the lower limit
for this general regulatory-based requirement is set at 10 private
persons (OGE-processed reports). This yields an annual reporting burden
of 15 hours, the same as in OGE's current OMB inventory for this
information collection. The remainder of the private citizen reports
are filed with other departments and agencies throughout the executive
branch.
    On October 21 1998, OGE published its first round notice of the
forthcoming request for paperwork clearance for the proposed revised
OGE Form 450. See 63 FR 56189-56191. The Office of Government Ethics
received a few outside requests, from a couple of departments and an
agency, for copies of the proposed revised OGE Form 450. In addition,
OGE received one comment from one of the departments regarding the
Privacy Act statement of routine uses in the instructions to the OGE
Form 450.
    In response to the comment, OGE notes that the routine uses are,
under exemption (b)(3) of the Privacy Act, 5 U.S.C. 552a(b)(3), and
OGE's OGE/GOVT-2 system of records, permissible situations in which the
form may be divulged without the advance written consent or pursuant to
the written request of the individual filer concerned. In addition,
exemption (b)(1) of the Privacy Act, 5 U.S.C. 552a(b)(1), allows access
to OGE Form 450 reports by officers and employees of the agency that
maintains the report files (including OGE) who have a need for the
records in the performance of their official duties. These uses and
other permitted releases under the other Privacy Act exemptions do not
themselves require the divulging of the OGE Form 450 reports. To
determine whether to make a routine use or other permitted Privacy Act
release of an OGE Form 450 report, a department or agency should look
at all the circumstances, including other pertinent authorities, in
order to determine whether release is authorized and otherwise
appropriate.
    In that regard, OGE emphasizes that, under section 107 of the
Ethics Act, section 201(d) of E.O. 12674 (as modified by E.O. 12731)
and 5 CFR 2634.604 and 2634.901(d) of OGE's implementing regulations,
the OGE Form 450 is a confidential report form which is not to be
disclosed to the public. However, as noted, the Government can make
certain uses, including limited permitted releases, of the reports in
accordance with the Privacy Act and other pertinent laws and
regulations. In some cases, release may be required by some other
authority, such as pursuant to an order of a court of competent
jurisdiction. If so, the agency should still examine the Privacy Act
exemptions, including the published routine uses, to determine if
release is authorized under that law. Thus, in the case of such a court
order, exemption (b)(11) of the Privacy Act, 5 U.S.C. 552a(b)(11),
authorizes the release, though a protective order may be sought.
    In this second notice, public comment is again invited on the
proposed slightly revised OGE Form 450 as set forth in this notice,
including specifically views on: the need for and practical utility of
this proposed modified collection of information; the accuracy of OGE's
burden estimate; the enhancement of quality, utility and clarity of the
information collected; and the minimization of burden (including the
use of information technology). The Office of Government Ethics, in
consultation with OMB, will consider all comments received, which will
become a matter of public record.

    Approved: February 24, 1999.
Marilyn L. Glynn,
General Counsel, Office of Government Ethics.
[FR Doc. 99-5045 Filed 3-1-99; 8:45 am]
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