2011-26160. Supplemental Standards of Ethical Conduct for Employees of the Department of Homeland Security

AGENCY:

Office of the Secretary, DHS.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Department of Homeland Security (DHS), with the concurrence of the Office of Government Ethics (OGE), is proposing supplemental standards of ethical conduct for DHS employees. The proposed regulations would supplement the OGE Standards of Ethical Conduct for Employees of the Executive Branch (OGE Standards) and, among other things, would set forth employee restrictions on the purchase of certain Government-owned property, require employees to report allegations of waste, fraud, and abuse, require employees to seek prior approval for certain outside employment and activities, prohibit employees in some DHS components from engaging in certain types of outside employment and activities, require designated components to develop instructions regarding the procedures for obtaining prior approval for outside employment and activities, and designate components within DHS as a separate agency for purposes of determining whether the donor of a gift is a “prohibited source” and of identifying an employee's agency for the regulations governing teaching, speaking, and writing.

DATES:

Comments on this proposed rule are invited and must be received by December 12, 2011.

ADDRESSES:

You may submit comments, in writing, to DHS on this proposed rule, identified by docket number DHS-2008-0168, by any of the following methods:

• On-line: http://www.regulations.gov.
• E-mail: [e-mail]. Include the reference “Proposed DHS Supplemental Standards” in the subject line of the message.
• Fax: [phone].
• Mail: Ferne L. Mosley, Deputy Ethics Official, OGC MAIL STOP 0485, Department of Homeland Security, 245 Murray Lane, Washington, DC 20528-0485.

FOR FURTHER INFORMATION CONTACT:

Ferne L. Mosley, Deputy Ethics Official, Department of Homeland Security, 202-447-3302.

SUPPLEMENTARY INFORMATION:

I. Background

On August 7, 1992, at 57 FR 35006-35087, OGE issued a final rule setting forth the uniform Standards of Ethical Conduct for Employees of the Executive Branch (the “OGE Standards”), which, as corrected and amended, are codified at 5 CFR part 2635. Effective on February 3, 1993, the OGE Standards established uniform ethics rules applicable to all executive branch personnel.

Pursuant to 5 CFR 2635.105, executive branch agencies are authorized to publish, with the concurrence of OGE, supplemental regulations deemed necessary to implement their respective ethics programs. The following proposed supplemental regulations are necessary and appropriate in view of DHS programs and operations, in view of the consolidation of numerous legacy agencies with varying or no supplemental ethics regulations, and to fulfill the purposes of the OGE Standards. In addition, some outside employment interests and activities, if held by employees of certain DHS components, could cause a reasonable person to question an employee's impartiality and objectivity; this rule would prohibit those outside employment activities. DHS, with the concurrence of OGE, would issue the supplemental DHS regulations in a new chapter XXXVI, consisting of part 4601 of 5 CFR.

II. Analysis of the Proposed Regulations

A. Proposed § 4601.101 General

This section would identify to whom the supplemental regulations apply. It would also cross-reference to other ethics regulations and guidance applicable to DHS employees—including regulations on financial disclosure, financial interests, and employee responsibilities and conduct—and implementing DHS guidance and procedures issued in accordance with the OGE Standards.

This section would further define the term “agency designee” as it appears in § 2635.102(b) of 5 CFR, to identify those persons within DHS who are designated to act on requests and make determinations relating to 5 CFR part 2635 and this part. The section would also define the term “outside employment” and list the types of employment and activities that would require prior approval. It also lists activities for which prior approval would not be required, such as the uncompensated activities on behalf of a charitable or nonprofit organization (other than the reimbursement of expenses) that do not involve fiduciary duties and do not relate to the employee's official duties as defined by 5 CFR 2635.802. In addition, this section would define the term “Chief Deputy Ethics Official” as the persons within DHS who are delegated authority by the DHS Designated Agency Ethics Official (DAEO) to manage and coordinate the ethics programs within the Department's components and offices.

B. Proposed § 4601.102 Designation of DHS Components as Separate Agencies

This section would identify certain components within DHS as separate agencies for the purposes of the provisions governing prior approval for outside activities, accepting gifts from non-Federal sources, outside teaching, speaking, and writing activities, and issuing prior approval instructions. For those specified purposes, DHS has designated eight DHS components as separate agencies and has designated the remainder of the DHS components as a single agency. For the limited purpose of issuing prior approval instructions, DHS has designated the Office of the Inspector General as a separate agency.

In addition, paragraph c of this section explains the applicability of these requirements to detailed employees within the Department. An employee on detail from his employing agency to another agency for a period in excess of 30 calendar days is subject to the supplemental regulations and instructions of the agency to which he is detailed rather than his employing agency. For example, if a U.S. Customs and Border Protection (CBP) employee is detailed to U.S. Immigration and Customs Enforcement (ICE) for 60 days, the CBP employee will be subject to ICE's supplemental regulations and instructions during the period of his detail with ICE.

C. Proposed § 4601.103 Prior Approval for Outside Employment and Activities

This section would require employees to obtain written approval prior to engaging in certain outside employment and activities. This prior approval requirement would be an integral part of DHS's ethics program. The prior approval requirement is necessary to ensure that an employee's participation in certain outside employment or activities does not adversely affect operations within the employing agency or place the employee at risk of violating applicable Federal conduct statutes and regulations. In addition, prior approval is necessary to avoid the appearance that an outside employment or activity was obtained through a misuse of the employee's official position and to address a number of other potential ethics concerns.

Because DHS provides millions of dollars in grants and engages in enforcement, regulatory, and security functions across a multitude of industry sectors, requiring prior approval is necessary to ensure that a reasonable person will not question the integrity of DHS programs and operations. In fulfilling its mission, DHS would be hindered if members of the public did not have confidence in DHS employees' ability to act impartially while performing their official duties.

Proposed § 4601.103(a) would require employees to obtain approval from the DHS employee's agency for certain outside employment or activities, with or without compensation, unless the employing agency issues an instruction or manual exempting such outside employment or activities. Proposed § 4601.104(b) would describe the standard the agency must follow for approval of requests for outside employment and activities. Proposed § 4601.103(c) would describe the responsibilities of DHS agencies for issuing instructions to employees on how to request prior approval of outside employment and activities.

Because Special Government Employees may serve at the Department only for a limited time during a 365-day period and for a limited purpose (such as service on a Federal Advisory Committee or service as a consultant), the nature of their service to the Department does not require that they be subject to the prior approval requirement for outside employment or the additional restrictions applicable to CBP, Federal Emergency Management Agency (FEMA), or ICE employees.

D. Proposed § 4601.104 Additional Rules for U.S. Customs and Border Protection (CBP) Employees

This section would prohibit CBP employees, except Special Government Employees, from being employed by, or from engaging in, activities in support of or on behalf of, an entity that engages in a trade or business performing specified customs, immigration, or agriculture activities or services. This section would also require a CBP employee with a spouse, a relative who is a financial dependent or household member, or another household member or financial dependent who is employed in a position that the CBP employee is prohibited from occupying to notify his or her agency designee in writing of the above-described employment circumstances. In addition, the employee is disqualified from participating in an official capacity in any particular matter involving such person or the person's employer unless authorized to do so by the agency designee, with the advice and clearance of the CBP Chief Deputy Ethics Official.

E. Proposed § 4601.105 Additional Rules for Federal Emergency Management Agency (FEMA) Employees

This section would prohibit certain FEMA employees, except Special Government Employees, both intermittent and non-intermittent, from working for a FEMA contractor. It also provides the procedures for requesting a waiver of these additional restrictions.

F. Proposed § 4601.106 Additional Rules for U.S. Immigration and Customs Enforcement (ICE) Employees

This section would prohibit ICE employees, except Special Government Employees, from being employed by, or from engaging in activities in support of or on behalf of, an entity that engages in a trade or business performing specified customs, immigration, or agriculture activities or services. This section would also require an ICE employee with a spouse, a relative who is a financial dependent or household member, or another household member or financial dependent who is employed in a position that the ICE employee is prohibited from occupying to notify his or her agency designee in writing of the above-described employment circumstances. In addition, the employee is disqualified from participating in an official capacity in any particular matter involving such person or the person's employer unless authorized to do so by the agency designee, with the advice and clearance of the ICE Chief Deputy Ethics Official.

G. Proposed § 4601.107 Prohibited Purchases of Property

This section would prohibit the purchase by employees of certain Government property under the control of, seized by, forfeited, under the direction of, or incident to, the employee's agency. It would also set forth the exception and waiver provisions under this section.

H. Proposed § 4601.108 Reporting Waste, Fraud, Abuse, and Corruption

This section would require all DHS employees to report allegations of waste, fraud, abuse, or corruption to the appropriate authorities within DHS, such as the DHS Office of Inspector General, the appropriate Office of Internal Affairs, or Office of Professional Responsibility. Employee responsibilities for reporting suspicions of violations of law or regulation to the DHS Office of Inspector General are found in DHS Directive 0810.1, and these regulations complement but do not displace those responsibilities.

III. Regulatory Analyses

A. Executive Orders 12866 and 13563

This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. Accordingly, the Office of Management and Budget has not reviewed it.

B. Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), DHS has considered whether this proposed rule will have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. DHS certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities, because it would only affect DHS employees.

List of Subjects in 5 CFR Part 4601

• Conflict of interests
• Government employees

For the reasons set forth in the preamble, the Department of Homeland Security, with the concurrence of the Office of Government Ethics, is proposing to amend title 5 of the Code of Federal Regulations by adding a new chapter XXXVI, consisting of part 4601, to read as follows:

TITLE 5—ADMINISTRATIVE PERSONNEL

CHAPTER XXXVI—DEPARTMENT OF HOMELAND SECURITY

PART 4601—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE DEPARTMENT OF HOMELAND SECURITY

4601.101

General.

4601.102

Designation of DHS components as separate agencies.

4601.103

Prior approval for outside employment and activities.

4601.104

Additional rules for United States Customs and Border Protection (CBP) employees.

4601.105

Additional rules for Federal Emergency Management Agency (FEMA) employees.

4601.106

Additional rules for United States Immigration and Customs Enforcement (ICE) employees.

4601.107

Prohibited purchases of property.

4601.108

Reporting waste, fraud, abuse and corruption.

Authority: 5 U.S.C. 301, 7301, 7353; 5 U.S.C. App. (Ethics in Government 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, 2635.203(a), 2635.403(a), 2635.702, 2635.703, 2635.802(a), 2635.803, 2635.807(a)(2)(ii).

§ 4601.101

General.

(a) Applicability. In accordance with 5 CFR 2635.105, the regulations in this part apply to employees of the Department of Homeland Security (DHS) and supplement the Standards of Ethical Conduct for Employees of the Executive Branch (OGE Standards) in 5 CFR part 2635.

(b) Cross-references to other ethics regulations and guidance. In addition to the OGE Standards in 5 CFR part 2635 and this part, DHS employees are subject to the executive branch financial disclosure regulations contained in 5 CFR parts 2634, the executive branch financial interests regulations contained in 5 CFR part 2640, the executive branch employee responsibilities and conduct regulations contained in 5 CFR part 735, and DHS guidance and procedures on employee conduct, including those issued under paragraph (c) of this section.

(c) DHS agency instructions. Prior to publication, the DHS Designated Agency Ethics Official (DAEO) must approve any instructions or manuals that DHS agencies, as designated in § 4601.102 of this part, issue to provide explanatory ethics-related guidance and to establish procedures necessary to implement this part and part 2635 of this title.

(d) Definitions. (1) Agency designee as used in this part and in part 2635 of this title, means an employee who has been identified in an instruction or manual issued by an agency under paragraph (c) of this section to make a determination, give an approval, or take other action required or permitted by this part or part 2635 of this title with respect to another employee.

(2) Outside employment as used in this part means any form of non-Federal employment, activity, or business relationship involving the provision of personal services by the employee. It includes, but is not limited to, personal services as an officer, director, employee, agent, attorney, advisor, consultant, contractor, general partner, trustee, teacher, or speaker. It includes any writing when done under an arrangement with another person for production or publication of the written product. It does not, however, include participation in the activities of a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service, or civic organization, unless the participation involves acting in a fiduciary capacity, providing professional services or the rendering of advice for compensation other than the reimbursement of expenses, or the activity relates to the employee's official duties within the meaning of 5 CFR 2635.802.

(3) Chief Deputy Ethics Official (CDEO) as used in this part shall be the persons delegated authority by the DHS DAEO to manage and coordinate the ethics programs within the DHS components pursuant to the DAEO's authority in 5 CFR 2638.204.

§ 4601.102

Designation of DHS components as separate agencies.

(a) Pursuant to 5 CFR 2635.203(a), DHS designates each of the following components as a separate agency for purposes of the regulations in subpart B of 5 CFR part 2635 governing gifts from outside sources, including determining whether the donor of a gift is a prohibited source under 5 CFR 2635.203(d); for purposes of the regulations in § 4601.103(c) of this part governing the establishment of procedures for obtaining prior approval for outside employment; for purposes of the regulations in § 4601.103(c) of this part governing the designation of officials; and for the purposes of the regulations in 5 CFR 2635.807 governing teaching, speaking, and writing:

(1) Federal Emergency Management Agency (FEMA);

(2) Federal Law Enforcement Training Center;

(3) Transportation Security Administration;

(4) United States Citizenship and Immigration Services;

(5) United States Coast Guard;

(6) United States Customs and Border Protection (CBP);

(7) United States Immigration and Customs Enforcement (ICE); and

(8) United States Secret Service.

(b)(1) DHS will treat employees of DHS components not designated as separate agencies in paragraph (a) of this section, including employees of the Office of the Secretary, as employees of the remainder of DHS. For purposes of the regulations in subpart B of 5 CFR part 2635 governing gifts from outside sources, including determining whether the donor of a gift is a prohibited source under 5 CFR 2635.203(d); for purposes of the regulations in § 4601.103(c) of this part governing the establishment of procedures for obtaining prior approval for outside employment; for purposes of the regulations in § 4601.103(c) of this part governing the designation of officials; and for purposes of the regulations in 5 CFR 2635.807 governing teaching, speaking, and writing, DHS will treat the remainder of DHS as a single agency that is separate from the components designated as separate agencies in paragraph (a) of this section.

(2) For the limited purposes of establishing procedures for obtaining prior approval for outside employment and designating officials pursuant to § 4601.103 of this part, DHS will treat the DHS Office of the Inspector General as a separate agency.

(c) An employee on detail from his employing agency to another agency for a period in excess of 30 calendar days is subject to the supplemental regulations and instructions of the agency to which he is detailed rather than his employing agency.

§ 4601.103

Prior approval for outside employment and activities.

(a) General requirement for approval. A DHS employee, other than a Special Government Employee, shall obtain prior written approval before engaging in any outside employment or activity, with or without compensation, unless the employee's agency has exempted the employment, activity, or class of employment or activities from this requirement by an instruction or manual issued pursuant to paragraph (c) of this section.

(b) Standard for approval. Approval shall be granted only upon a determination that the outside employment is not expected to involve conduct prohibited by statute or Federal regulation, including part 2635 of title 5 and this part.

(c) Agency responsibilities. (1) With the approval of the DHS DAEO, each agency as set forth in § 4601.102 of this part shall issue instructions or a manual governing the submission of requests for approval of outside employment and activities and designating appropriate officials to act on such requests not later than sixty (60) days after the effective date of this part.

(2) The instructions or manual may exempt particular employment or activities or categories of employment or activities from the prior approval requirement of this section if such employment or activities would generally be approved and are not likely to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635 and this part. Agencies may include in their instructions or manual examples of outside employment or activities that are permissible or prohibited consistent with this part and part 2635 of this title.

(3) In the absence of a manual or instruction identifying a person designated to act upon a request for approval for outside employment, the Chief Deputy Ethics Official at each agency shall act upon a request.

§ 4601.104

Additional rules for United States Customs and Border Protection (CBP) employees.

The following rules apply to employees of CBP, except Special Government Employees, and are in addition to §§ 4601.101 through 4601.103 and §§ 4601.107 and 4601.108 of this part:

(a) Prohibitions on outside employment and activities. (1) No CBP employee shall be employed by or engage in activities in support of or on behalf of a customs broker, international carrier, bonded warehouse, foreign trade zone as defined in 15 CFR 400.2(e), cartman, law firm engaged in the practice of customs, immigration, or agriculture law, entity engaged in the enforcement of customs, immigration, or agriculture law, importation department of a business, or business or other entity which assists aliens or engages in services related to customs, immigration, or agriculture matters.

(2) No CBP employee shall, in any private capacity, engage in employment or an activity related to the importation or exportation of merchandise or agricultural products requiring inspection, or the entry of persons into or departure of persons from the United States.

(b) Restrictions arising from employment of the spouse, relatives, members of the employee's household, or financial dependents. (1) A CBP employee shall notify in writing his or her agency designee when any of the following circumstances exist:

(i) The spouse of the CBP employee is employed in a position that the CBP employee would be prohibited from occupying by paragraph (a) of this section;

(ii) A relative (as defined in 5 CFR 2634.105(o)), who is financially dependent on or who is a member of the household of the CBP employee, is employed in a position that the CBP employee would be prohibited from occupying by paragraph (a) of this section; or

(iii) Any person, other than the spouse or relative of the CBP employee, who is financially dependent on or who is a member of the household of the CBP employee, is employed in a position that the CBP employee would be prohibited from occupying by paragraph (a) of this section.

(2) The CBP employee shall be disqualified from participating in an official capacity in any particular matter involving the individuals identified in paragraph (b)(1) of this section, or the employer thereof, unless the agency designee, with the advice and clearance of the CBP Chief Deputy Ethics Official, authorizes the CBP employee to participate in the matter using the standard in 5 CFR 2635.502(d), or the waiver provisions in 18 U.S.C. 208(b)(1), as appropriate.

§ 4601.105

Additional rules for Federal Emergency Management Agency (FEMA) Employees.

The following rules apply to employees of FEMA, except Special Government Employees, and are in addition to §§ 4601.101 through 4601.103 and §§ 4601.107 and 4601.108 of this part:

(a) Prohibited outside employment (intermittent employees). Except as provided in paragraph (c) of this section, no intermittent FEMA employees hired under the authority of 42 U.S.C. 5149, which includes all Disaster Assistance Employees or Stafford Act Employees and Cadre of On-Call Response Employees, shall work for a current FEMA contractor while a FEMA employee, whether or not they are on activated status.

(b) Prohibited outside employment (non-intermittent employees). Except as provided in paragraph (c) of this section, no non-intermittent FEMA employee shall work for any current FEMA contractor as an outside employer.

(c) Waivers. The FEMA Chief Deputy Ethics Official or his or her agency designee may grant a written waiver of any prohibition in paragraphs (a) and (b) of this section with the DAEO's concurrence. To grant the waiver, the FEMA Chief Deputy Ethics Official or his or her agency designee must determine that the waiver is consistent with 5 CFR part 2635 and not otherwise prohibited by law; that the prohibition is not necessary to avoid the appearance of misuse of position or loss of impartiality; and that the waiver will not undermine the public's confidence in the employee's impartiality and objectivity in administering FEMA programs. A waiver under this paragraph may impose appropriate conditions, such as requiring execution of a written disqualification statement.

§ 4601.106

Additional rules for United States Immigration and Customs Enforcement (ICE) employees.

The following rules apply to employees of ICE, except Special Government Employees, and are in addition to §§ 4601.101 through 4601.103 and §§ 4601.107 and 4601.108 of this part:

(a) Prohibitions on outside employment and activities. (1) No ICE employee shall be employed by or engage in activities in support of or on behalf of a customs broker, international carrier, bonded warehouse, foreign trade zone as defined in 15 CFR 400.2(e), cartman, law firm engaged in the practice of customs, immigration or agriculture law, entity engaged in the enforcement of customs, immigration or agriculture law, importation department of a business, or business or other entity which assists aliens or engages in services related to customs, immigration or agriculture matters.

(2) No ICE employee shall, in any private capacity, engage in employment or an activity related to the importation or exportation of merchandise or agricultural products requiring inspection, or the entry of persons into or the departure of persons from the United States.

(b) Restrictions arising from employment of spouse, relatives, members of the employee's household, or financial dependents. (1) An ICE employee shall notify in writing his or her agency designee when any of the following circumstances exist:

(i) The spouse of the ICE employee is employed in a position that the ICE employee would be prohibited from occupying by paragraph (a) of this section;

(ii) A relative (as defined in 5 CFR 2634.105(o)) who is financially dependent on or who is a member of the household of the ICE employee is employed in a position that the ICE employee would be prohibited from occupying by paragraph (a) of this section; or

(iii) Any person, other than the spouse or relative of the ICE employee, who is financially dependent on or who is a member of the household of the ICE employee, is employed in a position that the ICE employee would be prohibited from occupying by paragraph (a) of this section.

(2) The ICE employee shall be disqualified from participating in an official capacity in any particular matter involving the individuals described in paragraph (b)(1) of this section or the employer thereof, unless the agency designee, with the advice and clearance of the ICE Chief Deputy Ethics Official, authorizes the ICE employee to participate in the matter using the standard in 5 CFR 2635.502(d), or the waiver provisions in 18 U.S.C. 208(b)(1), as appropriate.

§ 4601.107

Prohibited purchases of property.

(a) General prohibition. Except as provided in paragraph (c) of this section, no DHS employee may purchase, directly or indirectly, property that is:

(1) Owned by the Federal Government and under the control of the employee's agency, unless the sale of the property is being conducted by the General Services Administration; or

(2) Seized or forfeited under the direction or incident to the functions of the employee's agency.

(b) For purposes of this section, the employee's agency is the relevant separate agency component as set forth in § 4601.102 of this part.

(c) Waiver. Employees may make a purchase prohibited by paragraph (a) of this section where a written waiver of the prohibition is issued in advance by the agency designee with the clearance of the DAEO or his designee. A waiver may only be granted if it is not otherwise prohibited by law or regulation and the purchase of the property will not cause a reasonable person with knowledge of the particular circumstances to question the employee's impartiality, or create the appearance that the employee has used his official position or nonpublic information for his personal gain.

§ 4601.108

Reporting waste, fraud, abuse and corruption.

Employees shall report immediately any suspicions of violations of law or regulation involving Department of Homeland Security programs or operations to appropriate authorities, such as the Office of the Inspector General.

Janet Napolitano,

Secretary, Department of Homeland Security.

Don W. Fox,

Acting Director, Office of Government Ethics.