[Federal Register Volume 62, Number 200 (Thursday, October 16, 1997)]
[Rules and Regulations]
[Pages 53713-53726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-27069]
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Rules and Regulations
Federal Register
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This section of the FEDERAL REGISTER contains regulatory documents
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Federal Register / Vol. 62, No. 200 / Thursday, October 16, 1997 /
Rules and Regulations
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DEPARTMENT OF THE INTERIOR
5 CFR Chapter XXV
43 CFR Part 20
RINs 1090-AA38, 3209-AA15
Supplemental Standards of Ethical Conduct for Employees of the
Department of the Interior
AGENCY: Department of the Interior (Department).
ACTION: Interim rule, with request for comments.
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SUMMARY: The Department of the Interior, with the concurrence of the
Office of Government Ethics (OGE), is issuing an interim rule for the
employees of the Department that supplements the Standards of Ethical
Conduct for Employees of the Executive Branch issued by OGE. This
interim rule is a necessary supplement to the Standards because it
addresses ethical issues unique to the Department. The interim rule
designates separate agency components for purposes of identifying
prohibited sources of gifts and applying the restrictions on
compensated outside teaching, speaking and writing that relate to an
employee's official duties; provides cross-references to certain
statutory prohibitions against the holding by some Department employees
of certain financial and other interests, and regulations implementing
those prohibitions; prohibits certain financial interests and outside
employment; and requires employees to obtain prior approval for certain
outside employment. The Department is also revising its employee
responsibilities and conduct regulations by adding a cross-reference to
ethics and other conduct-related regulations, removing superseded or
redundant provisions, and redesignating the provisions remaining in the
regulation.
DATES: This rule is effective on October 16, 1997. Comments on the
interim rule must be received on or before December 15, 1997.
ADDRESSES: Send comments to the Department Ethics Office, Department of
the Interior, 1849 C Street, NW., Room 5013, Washington, DC 20240.
FOR FURTHER INFORMATION CONTACT:
Gabe Paone or Mason Tsai, Department Ethics Office, 202-208-5916;
Internet E-mail address: mason__tsai@ios.doi.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On August 7, 1992, the Office of Government Ethics published the
Standards of Ethical Conduct for Employees of the Executive Branch
(Standards). See 57 FR 35006-35067, as corrected at 57 FR 48557, 57 FR
52583, and 60 FR 51667, and amended at 61 FR 42965-42970 (as corrected
at 61 FR 48733), 61 FR 50689-50691 (interim rule revisions adopted as
final at 62 FR 12531), and 62 FR 48746-48748, with additional grace
period extensions at 59 FR 4779-4780, 60 FR 6390-6391, 60 FR 66857-
66858, and 61 FR 40950-40952. The Standards, codified at 5 CFR part
2635 and effective February 3, 1993, establish uniform standards of
ethical conduct for executive branch personnel.
On June 10, 1993, the Department issued a final rule which removed
certain provisions of its employee responsibilities and conduct
regulations at 43 CFR part 20 that had been superseded by 5 CFR part
2635 or by OGE's executive branch financial disclosure regulations at 5
CFR part 2634. See 58 FR 32446-32449. Along with portions of 43 CFR
part 20 that the Department retained under authority separate from 5
CFR parts 2634 and 2635, the Department retained in 43 CFR part 20
provisions regarding prohibited financial interests and outside
employment which were temporarily preserved, respectively, by the notes
following 5 CFR 2635.403(a) and 2635.803, as extended at 59 FR 4779-
4780, 60 FR 6390-6391, 60 FR 66857-66858, and 61 FR 40950-40952.
The Standards, at 5 CFR 2635.105, authorize executive branch
agencies, with the concurrence of OGE, to publish agency-specific
supplemental regulations that are necessary to implement their
respective ethics programs. The Department, with OGE's concurrence, has
determined that the following supplemental regulations, being codified
in new chapter XXV of 5 CFR, are necessary to the success of its ethics
program. Also, upon issuance of the supplemental regulation, the
Department is removing those remaining provisions in 43 CFR part 20
that now have been superseded, and other provisions as explained in
part III of this supplementary information.
II. Analysis of the Regulations
Section 3501.101 General
Section 3501.101(a) provides that the regulations contained in the
interim rule apply to employees of the Department of the Interior and
supplement the executive branch-wide Standards in 5 CFR part 2635. This
section also notes that employees of the Department are subject to the
responsibilities and conduct regulations for executive branch
employees, at 5 CFR part 735; the executive branch financial disclosure
regulations, at 5 CFR 2634; and the Department's regulations regarding
employee responsibilities and conduct, at 43 CFR part 20.
Section 3501.101(b) includes definitions for various terms used in
the regulation, and provides information about ethics program
responsibilities within the Department.
Section 3501.101(c) authorizes the Designated Agency Ethics
Official (DAEO), or the Ethics Counselor for each major operating
component of the Department, to issue explanatory guidance and
implementing procedures to assist the employees in the Department to
understand and comply with the executive branch-wide Standards and
these supplemental regulations. In accordance with 5 CFR 2635.105(c),
these issuances themselves will neither supplement nor amend the
executive branch-wide Standards in 5 CFR part 2635 or this interim
rule.
Section 3501.102 Designation of Separate Agency Components
The Standards, at 5 CFR 2635.202(a), prohibit an employee from
soliciting or accepting a gift from a prohibited source. A prohibited
source is defined by 5 CFR 2635.203(d) to include a person who has a
specific relationship with an employee's agency. For purposes of
identifying an employee's agency, 5 CFR 2635.203(a) authorizes an
executive department, by supplemental regulation, to designate as
separate
[[Page 53714]]
agencies components of the department that exercise distinct and
separate functions. Designations made pursuant to Sec. 2635.203(a) are
used also for purposes of applying the restrictions in 5 CFR
2635.807(a) on receipt of compensation for teaching, speaking or
writing related to an employee's official duties. Since the Department
is establishing in Sec. 3501.105(c) a prior approval requirement for
outside employment with a prohibited source, the designations in this
section will also be used for purposes of applying the supplemental
regulation's requirement for prior approval of outside employment.
Section 3501.102(a) of the interim rule designates ten of the
Department's bureaus and offices as separate agencies. The Department
has determined that each of bureaus and offices exercises separate and
distinct functions. As further amplified in Sec. 3501.102(c), employees
of the Department not employed in one of the ten separate agency
components are deemed to be employees of the entire Department, which
for those employees includes any parts of the Department that are not
included in the ten separate agency components as well as those parts
that are so included.
Examples at the end of this section illustrate how the separate
agency designations are applied.
Section 3501.103 Prohibited Interests in Federal Lands
Section 3501.103(a) contains cross-references to the statutory
prohibitions at 43 U.S.C. 11 and 31(a), which provide respectively that
``[t]he officers, clerks, and employees of the Bureau of Land
Management are prohibited from directly or indirectly purchasing or
becoming interested in the purchase of any of the public land,'' and
``[t]he Director and members of the United States Geological Survey
shall have no personal or private interests in the lands or mineral
wealth of the region under survey * * *.'' The Department's
responsibilities and conduct rules, at 43 CFR 20.735-23(b)(1) (being
partially retained and redesignated by this interim rule-making as 43
CFR 20.401), implement these long standing statutory prohibitions and
also are cross-referenced in Sec. 3501.103(a).
The prohibitions at 43 U.S.C. 11 and 31(a) has been extended by the
Department's regulations in 43 CFR part 20 to employees of the Minerals
Management Service (MMS) and certain other Department employees. The
statutory prohibitions' regulatory extension to MMS employees followed
the establishment of MMS in October 1982. The MMS was initially staffed
with natural resource employees from the United States Geological
Survey (USGS) and the Bureau of Land Management (BLM). At the time,
many of the new MMS employees were to be performing duties regarding
Federal lands similar to those for which they were responsible when
they were USGS OR BLM employees. This created an ethics concern for MMS
and the Department, since the MMS employees transferring from USGS and
BLM would no longer be covered by the organic prohibitions of their
former bureaus. To address this concern the Department decided to
extend, in its employee responsibilities and conduct regulations at 43
CFR part 20, those organic prohibitions to MMS employees.
The other Department employees to whom the prohibitions at 43
U.S.C. 11 and 31(a) were extended in 43 CFR part 20 were the Secretary
and employees ``in pay grades equivalent to GS-16 and above or who are
in merit pay positions as described in 5 U.S.C. 5401(b)(1)'' in ``the
Office of the Secretary and other Departmental offices reporting
directly to a Secretarial officer.'' The Department determined that the
prohibitions needed to be extended to those additional personnel
because they were positions which could substantially influence the
actions and decisions made by employees of USGS, BLM, or MMS.
Under 5 CFR 2635.403(a), an agency may, by supplemental regulation,
prohibit or restrict the acquisition or holding by its employees of
financial interests that the agency determines would cause a reasonable
person to question the impartiality or objectivity with which agency
programs are administered. The Department has made this determination
with respect to the statutory prohibition's regulatory extensions
formerly found at 43 CFR 20.735-23, and is reinstituting those
regulatory extensions, in modified form to conform with the
requirements of 5 CFR part 2635, in Sec. 3501.103(b).
In addition to all MMS employees, Sec. 3501.103(b) describes the
employees to whom the regulatory prohibition therein applies as those
in ``positions classified at GS-15 and above'' in ``the Office of the
Secretary and other Departmental offices reporting directly to a
Secretarial officer,'' instead of in ``pay grades equivalent to GS-16
and above'' or in ``merit pay positions'' in those offices, as the
superseded provision had done. Grades 16 and above of the General
Schedule (GS) no longer exist, having been abolished by the Federal
Employees Pay Comparability Act of 1990, Pub. L. 101-509. Likewise, the
statutory basis for merit pay positions has expired. Although the
coverage of the former provision reached some employees in merit pay
positions at GS-13 and GS-14, the Department has determined that it is
not necessary for the prohibition to reach employees at those grade
levels in order to avoid the appearance of misuse of position or loss
of impartiality and objectivity with which Department programs and
administered.
As defined in former Sec. 20.735-20(c) of 43 CFR, ``the Office of
the Secretary and other Departmental offices reporting directly to a
Secretarial officer'' included the Immediate Office of the Secretary
(except for the Office of Historically Black College and University
Programs and Job Corps); Office of the Solicitor; Office of the
Inspector General; Office of Hearings and Appeals; Office of
Congressional and Legislative Affairs; Office of Public Affairs; all
Assistant Secretaries, their immediate Office staff and heads of
bureaus which are subordinate to an Assistant Secretary, including the
following offices under the Office of the Assistant Secretary--Policy,
Management and Budget: Office of Acquisition & Property Management,
Office of Budget, Office of Environmental Affairs, and Office of
Program Analysis. This list, modified to reflect reorganizations and
restructuring at the Department, has been carried forward as the
definition of ``Office of the Secretary and other Departmental offices
reporting directly to a Secretary officer'' in this section.
Paragraph (b)(2) of Sec. 3501.103 contains exceptions to the
regulatory restriction in Sec. 3501.103(b)(1). These exceptions are
being carried forward from the former regulatory restriction in 43 CFR
part 20, and provide that the restriction does not apply to an
individual employed on an intermittent or seasonal basis for a period
not exceeding 180 working days in each calendar year, or a special
Government employee engaged in field work relating to land, range,
forest, and mineral conservation and management activities.
Section 3501.103(c)91) provides for an additional restriction on
employees' interests in Federal lands. Because the Department has
authority to grant claims, permits, leases, small tract entries, and
other rights in most of the country's nationally owned public lands and
natural resources, the Department's employee responsibilities and
conduct regulations long included a provision at 43 CFR 20.735-
23(b)(3), generally restricting all employees of the Department from
acquiring or retaining such rights for commercial or
[[Page 53715]]
investment purposes. This prohibition has been reinstituted, in
modified form to conform with the requirements of 5 CFR part 2635, as
Sec. 3501.103(b)(1). The Department has determined under 5 CFR
2635.403(a) that it is necessary to continue to restrict all employees
from acquiring or retaining, for commercial or investment purposes, any
claim, permit, lease, small tract entry, or other right in lands or
resources administered or controlled by the Department, in order to
maintain public confidence in the impartiality or objectivity with
which the Department's programs are administered. The Department has
made the additional determination under 5 CFR 2635.403(a) with respect
to this prohibition that it is necessary for the efficiency of the
service to extend the prohibition to employees' spouses and minor
children.
Paragraph (c)(2) of Sec. 3501.103 contains two exceptions to the
regulatory restriction in Sec. 3501.103(c)(1). Both exceptions had
applied to the former restriction in 43 CFR part 20. The first
exception is intended to make it clear that the prohibition does not
apply to acquiring or holding a right in Federal lands, administered or
controlled by the Department, for recreational purposes. The second
exception allows employees working in the Office of the Assistant
Secretary--Indian Affairs or in the Bureau of Indian Affairs to acquire
or retain interests in Federal lands controlled by the Department for
the benefit of Indians or Alaska Natives. Many of those employees are
Native Americans or Alaska Natives who may have an involuntary interest
in tribal lands simply because of their innate membership in their home
tribes. Generally, under the exception at 18 U.S.C. 208(b)(4) to the
prohibitions contained in 18 U.S.C. 208(a), such an interest would not
bar an employee's participation in a particular matter affecting the
interest.
Under Sec. 3501.103(d), the DAEO may require divestiture of an
interest in Federal lands that would otherwise be allowed to be
retained under the exceptions listed in Sec. 3501.103(b)(2), using the
standard of ``substantial conflict'' set forth in 5 CFR 2635.403(b).
Under Sec. 3501.103(e), the DAEO may grant a waiver from the regulatory
restrictions in paragraphs (b) and (c) of this section based on a
determination that the waiver is not inconsistent with 5 CFR part 2635
or otherwise prohibited by law and that, under the particular
circumstances, application of the restriction is not necessary to avoid
the appearance of misuse of position or loss or impartiality and
objectivity with which Department programs are administered. An
employee may be required under the waiver to disqualify himself from a
particular matter or take other appropriate action. Section 3501.103(f)
provides that existing waivers, issued under the Department's
regulations for employees to whom the regulatory prohibitions in
paragraphs (b) and (c) of this section applied under the former
provisions in 43 CFR part 20, remain in effect but may be withdrawn
subject to the standard for waivers in paragraph (e).
Section 3501.104 Prohibited Interests in Mining
Section 3501.104(a) provides a cross-reference to the prohibition
in the Surface Mining Control and Reclamation Act of 1977 (Surface
Mining Act), at 30 U.S.C. 1211(f), on employees of the Office of
Surface Mining Reclamation and Enforcement or any other employee who
performs functions or duties under the Surface Mining Act having any
financial interest in underground or surface coal mining operations,
and the Department's regulation at 30 CFR part 706 which implement the
prohibition. The Department has included this cross-reference in the
supplemental regulation at the request of OGE, because some of the
interests prohibited by the Surface Mining Act are financial interest
within the meaning of 5 CFR 2635.403(c).
Section 3501.104(b)(1) prohibits employees of the U.S. Geological
Survey and their spouses and minor children from having a direct or
indirect financial interest in mining activities conducted on
privately-owned lands within the United States. This provision is being
issued under the authority of 5 CFR 2635.403(a), based on the
Department's determinations that the acquisition or retention of such
interests would cause a reasonable person to question the impartiality
and objectivity with which USGS programs are administered, and that
there is a direct and appropriate nexus between the prohibition as
applied to employees' spouses and minor children and the ability of
USGS to carry out efficiently its mission related to the mineral
resources of the national domain. This provision is based upon the
former provision at 43 CFR 20.735-25(b)(2) (now superseded), under
which neither the Director nor any member of the USGS was allowed to
hold ``substantial'' personal or private interests, direct or indirect,
in any private mining activities in the United States. The Department
found this provision useful in avoiding conflicts of interest for USGS
employees.
As defined in paragraph (b)(2)(i) of Sec. 3501.104, ``financial
interest'' has the meaning given in the executive branch-wide Standards
at 5 CFR 2635.403(c). Also, as defined in paragraph (b)(2)(ii) of
Sec. 3501.104, ``private mining activities'' include exploration,
development and production of oil, gas and other minerals on privately-
owned lands in the United States. Lands owned by the Federal government
or by a State or local government are not privately-owned.
Paragraph (b)(3) of Sec. 3501.104 contains exceptions to the
regulatory restriction in Sec. 3501.104(b)(1). These exceptions are
intended to permit the acquisition or holding of financial interests
that the Department has determined are unlikely to raise questions
regarding the objective and impartial performance of USGS employees'
official duties or the efficient accomplishment of the Department's
mission. The exceptions permit interests of certain de minimis values.
These threshold amounts vary for employees of different organizational
elements of the USGS, depending on the extent of the elements' direct
connection to private mining activities in the United States. There is
also a de minimis amount set for mineral royalties and ``overriding
royalty interests'' (ORRI), i.e., an exclusive payment that is
generally given to a landowner by an oil exploration company in return
for the right to explore and produce oil and/or gas from privately-
owned lands. An ORRI is generally determined by the quantity of oil
and/or gas produced at the surface of an active well and does not
include production costs. The exceptions also permit interests in
publicly traded or publicly available investment funds and qualified
profit sharing, retirement, or similar plans, provided that, in the
case of such a fund, its prospectus does not indicate the objective or
practice of concentrating its investments in entities engaged in
private mining activities in the United States, or, in the case of such
a plan, the plan does not invest more than 25 percent of its funds in
debt or equity instruments of entities engaged in private mining
activities in the United States, and provided that the employee neither
exercises control nor has the ability to exercise control over the
financial interests held in the fund or plan. In addition, for the
spouses and minor children of USGS employees, the exceptions permit the
acquisition or retention of a financial interest in mining activities
conducted on privately-owned lands within the United States when the
interest was
[[Page 53716]]
obtained under certain circumstances unrelated to USGS employment.
Under Sec. 3501.104(b)(4), the Director of the USGS may require
divestiture of a financial interest that would otherwise be allowed to
be retained under the exceptions listed in Sec. 3501.104(b)(3), if he
or she determines under 5 CFR 2635.403(b) that the financial interest
will require the employee's disqualification to a debilitating extent
or will adversely affect the efficient accomplishment of the
Department's mission because another employee cannot be readily
assigned to perform work from which the employee would be disqualified
by reason of the financial interest. Under Sec. 3501.104(b)(5), the
Director of the USGS may grant a waiver from the regulatory
restrictions in paragraph (b)(1) of this section based on a
determination that the waiver is not inconsistent with 5 CFR part 2635
or otherwise prohibited by law and that, under the particular
circumstances, application of the restriction is not necessary to avoid
the appearance of misuse of position or loss of impartiality and
objectivity with which Department programs are administered. An
employee may be required under the waiver to disqualify himself from a
particular matter or take other appropriate action.
Section 3501.104(b)(6) provides that a spouse or minor child of an
employee may retain a financial interest otherwise prohibited by
paragraph (b)(1) of this section, if the interest was permitted under
criteria and procedures in effect before November 2, 1996 (pursuant to
provision at 43 CFR 20.735-25(b)(2) which expired at that time). The
Director of the USGS may, however, review those retained financial
interests for consistency with the standard for waivers in paragraph
(b)(5) of this section, and may disallow an interest if he or she
determines in writing that the waiver standard is not met.
Section 3501.105 Outside Employment and Activities
5 CFR 2635.802(a) provides that an employee shall not engage in
outside employment or activities if the outside employment or activity
is prohibited by, inter alia, an agency supplemental regulation. To
much the same effect, 5 CFR 2635.403 permits an agency, by supplemental
regulation, to prohibit compensated outside employment on the same
basis that it may prohibit employees from holding other financial
interests. The Department's employee responsibilities and conduct
regulation at 43 CFR part 20 had included various prohibitions on the
outside employment and activities of specific classes of Department
employees.
To the extent that prohibitions on employees' outside employment
and activities were issued by an agency under authority independent of
5 CFR part 2635, the prohibitions would not have to be included in the
agency's supplemental regulation. Nevertheless, the Department is
including in Sec. 3501.105(a)(1) a cross-reference to the statutory
prohibition at 43 U.S.C. 31(a), under which employees of the U.S.
Geological Survey shall execute no surveys or examinations for private
parties or corporations. The purpose of including this cross-reference
in the supplemental regulation is to provide further notice to
employees of the prohibition.
Also with respect to prohibited outside employment and activities,
the Department is reinstituting in Sec. 3501.105(a)(2) the longstanding
prohibitions, which had been included in its former regulations at 43
CFR 20.735-22(c), against Bureau of Land Management employees working
as real estate agents and realty specialists. The Department has
determined this prohibition is necessary to ensure public confidence in
the impartiality and objectivity with which the Department's programs
are administered, and to avoid any public perception that Department
employees are using their official positions or Department connections
to advance their outside real estate careers. In order to lessen the
burden of this prohibition, such employees are not required to cancel a
real estate license, but may maintain the license on an inactive basis
as they were allowed to do under the former regulations.
Finally with respect to prohibited outside employment and
activities, the Department is reinstituting in Sec. 3501.105(a)(4) the
longstanding prohibition which had been included in its former
regulations, at 43 CFR 20.735-27(c)(1), against employees in the Office
of the Assistant Secretary--Indian Affairs, and in the Bureau of Indian
Affairs (BIA), holding a position on a tribal election board or on a
tribal school board which oversees BIA schools. The Department has
determined that this prohibition is needed to ensure public confidence
in the impartiality and objectivity with which the Department's
programs are administered.
Under 5 CFR 2635.803, an agency that determines it is necessary or
desirable for the purpose of administering its ethics program may, by
supplemental regulation, require its employees to obtain written
approval before engaging in outside employment. The Department's former
regulation at 43 CFR 20.735-22 provided that each major program
operating component of the Department and other Departmental offices
could require their employees to obtain approval to engage in outside
work by issuing supplementary requirements. The prior approval
requirements that were instituted pursuant to that authority remained
in effect through November 1, 1996, under the note following 5 CFR
2635.803, as extended, and appendix D to part 2635. Those requirements
served the Department well in ensuring that its employees avoided
violations of the standards of conduct and conflict of interest
statutes. In accordance with 5 CFR 2635.803, the Department has
determined that it is necessary to the administration of its ethics
program to require prior approval for certain types of outside
employment that pose a potential for employees to engage in conduct
that might violate applicable laws and regulations.
Therefore, Sec. 3501.105(b)(1)(i) requires an employee (other than
a U.S. Geological Survey employee--who would be subject to a broader
provision--or a special Government employee) who wishes to engage in
outside employment with a prohibited source to obtain prior written
approval from his servicing ethics counselor before engaging in such
outside employment. In identifying a ``prohibited source'' for purposes
of this prior approval requirement, the Department will apply the
definition of that term in the Standards at 5 CFR 2635.203(d), a
supplemented by the separate agency component designations in
Sec. 3501.102(a). Thus, an employee would have to obtain approval
before engaging in outside employment with any person (including an
organization more than half of whose members are persons) seeking
official action by the Department, or, in the case of an employee in
one of the separate agency components designated in Sec. 3501.102(a),
by that component; doing business or seeking to do business with the
Department, or, in the case of an employee in one of the separate
agency components designated in Sec. 3501.102(a), with that component;
conducting activities regulated by the Department, or, in the case of
an employee in one of the separate agency components designated in
Sec. 3501.102(a), by that component; or having interests that may be
substantially affected by the performance or nonperformance of the
employee's official duties. Section 3501.105(b)(1) provides further
that this
[[Page 53717]]
prior approval requirement applies without regard to whether the
outside employment is to be undertaken for compensation.
In view of the organic restrictions on outside activities that
apply to U.S. Geological Survey (USGS) employees, and USGS's success in
avoiding violations of those restrictions by having had a broad prior
approval requirement for its employees, Sec. 3501.105(b)(1)(ii)(A)
provides that notwithstanding the requirement for prior approval of
outside employment with a prohibited source in Sec. 3501.105(b)(1)(i),
USGS employees must obtain prior written approval for any outside
employment. Under Sec. 3501.105(b)(1)(ii)(B), however, categories of
outside employment could be exempted by USGS from the prior written
approval requirement, provided the employment exempted is not
prohibited by law, the Standards, or these supplemental regulations,
and would normally be approved if subject to the case-by-case
requirement for prior approval.
Section 3501.105(b)(2) lists the basic items that an employee must
include in an approval request. Section 3501.105(b)(3) sets forth the
standard to be used in evaluating approval requests. Section
3501.105(b)(4) provides definitions of terms used in this section.
Under Sec. 3501.105(b)(4)(i), ``employment'' is broadly defined to
cover any form of non-Federal employment or business relationship
involving the provision of personal services, including 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 nonprofit charitable, religious,
professional, social, fraternal and similar organizations, unless such
activities involve the provision of professional services or advice and
are for compensation other than reimbursement of expenses. Paragraph
(b)(4)(ii) of Sec. 3501.105 sets forth for ease of reference the
definition of ``prohibited source'' at 5 CFR 2635.203(d), as
supplemented by the designation of separate agency components at
Sec. 3501.102.
III. Repeal of Portions of the Department's Employee Responsibilities
and Conduct Regulations and Related Modifications
The interim rule removes those provisions in the regulations at 43
CFR part 20 governing Department employees' responsibilities and
conduct that had remained in effect through November 1, 1996, pursuant
to the notes following 5 CFR 2635.403(a) and 2635.803, as extended, and
the appendixes to part 2635. In addition, the interim rule removes a
provision dealing with use of official title, which was superseded when
the executive branch-wide Standards went into effect on February 3,
1993, but which inadvertently was not removed from 43 CFR part 20 when
the Department first amended that regulation in response to the
issuance of the Standards.
The interim rule also removes provisions in 43 CFR part 20 which,
based on the United States Bureau of Mines' organic legislation at 30
U.S.C. 6, prohibited certain interests in mining activities for certain
Department employees. Pub. L. 104-134, the Omnibus Consolidated
Rescissions and Appropriations Act of 1996, closed the United States
Bureau of Mines on April 26, 1996. Likewise, the interim rule removes
provisions in 43 CFR part 20 that were based on prohibitions in the
Trading with Indians Act, at 18 U.S.C. 437. Pub. L. 104-178 repealed 18
U.S.C. 437 on August 6, 1996.
Additionally, the Department is removing from 43 CFR part 20
various sections that are redundant, in light of other regulations.
Those sections, and the regulations which the Department has determined
make them unnecessary for inclusion in 43 CFR part 20, are Sec. 20.735-
2(c) regarding equal employment opportunity policy, and Sec. 20.735-
10(a) regarding sexual harassment, both unnecessary in light of
regulations at 29 CFR part 1614; Sec. 20.735-6 regarding gifts and
decoration from foreign governments, unnecessary in light of
regulations at 41 CFR part 101-49; Sec. 20.735-8 regarding nepotism,
unnecessary in light of regulations at 5 CFR part 310; Sec. 20.735-9
regarding political activity, unnecessary in light of regulations at 5
CFR part 734; and Sec. 20.735-10(h) regarding patents, unnecessary in
light of regulations at 43 CFR part 6.
These removals leave in 43 CFR part 20 only provisions which the
Department has authority to issue independent of 5 CFR part 2635 or
which for other reasons set forth in 5 CFR 2635.105 do not have to be
included in an agency's supplemental standards of ethical conduct
regulation. Among these provisions are rules regarding acceptance and
payment of travel and related expenses. Revisions to those provisions
are being made to inform employees of the Department's authority under
31 U.S.C. 1353 to accept payment from non-Federal sources for employees
who are on official travel to a meeting or similar function. Non-
substantive changes have been made to this and other preserved
provisions, to reflect changes in related authorities or for greater
clarity.
The provisions remaining in 43 CFR part 20 are being redesignated,
and are having added to them a cross-reference to the executive branch-
wide Standards at 5 CFR part 2635, the Department's supplemental
standards of ethical conduct being codified at 5 CFR part 3501, the
executive branch financial disclosure regulations at 5 CFR part 2634,
and the employee responsibilities and conduct regulations at 5 CFR part
735.
IV. Matters of Regulatory Procedure
Executive Order 12866
In promulgating this interim rule, the Department 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 not been reviewed by the Office of
Management and Budget under that Executive Order as it deals with
agency organization, management, and personnel matters and is not, in
any event, deemed ``significant'' thereunder.
Administrative Procedure Act
The Department has found good cause, pursuant to 5 U.S.C.
553(a)(2), (b), and (d)(3), for waiving, as unnecessary and contrary to
the public interest, the general notice of proposed rulemaking and the
30-day delay in effectiveness as to these interim rules and repeals.
The reason for this determination is that it is important to a smooth
transition from the Department's prior ethics rules to the new
executive branch-wide Standards that these rulemaking actions become
effective as soon as possible. Furthermore, this rulemaking is related
to the Department's organization, procedure and practice. Nonetheless,
this is an interim rulemaking, with provision for a 60-day public
comment period. The Department will review all comments received during
the comment period and will consider any modifications that appear
appropriate in adopting these rules as final, with the concurrence and
co-signature of the Office of Government Ethics.
Regulatory Flexibility Act
The Department has determined that these regulations will not have
a significant economic impact on a substantial number of small entities
within the meaning of the Regulatory Flexibility Act (5 U.S.C. 605).
[[Page 53718]]
Paperwork Reduction Act
The Department has determined that these regulations do not contain
any information collection requirements that require the approval of
the Office of Management and Budget pursuant to the Paperwork Reduction
Act (44 U.S.C. chapter 35).
List of Subjects in 5 CFR Part 3501 and 43 CFR Part 20
Conflict of interests, Government employees.
Dated: September 30, 1997.
John R. Garamendi,
Deputy Secretary, Department of the Interior.
Approved: October 7, 1997.
F. Gary Davis,
Deputy Director, Office of Government Ethics.
Accordingly, for the reasons set forth in the preamble, the
Department of the Interior is amending title 5 of the Code of Federal
Regulations with the concurrence of the Office of Government Ethics,
and is also amending title 43 of the Code of Federal Regulations as
follows:
TITLE 5--[AMENDED]
1. A new chapter XXV, consisting of part 3501, is added to title 5
of the Code of Federal Regulations to read as follows:
CHAPTER XXV--DEPARTMENT OF THE INTERIOR
PART 3501--SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES
OF THE DEPARTMENT OF THE INTERIOR
Sec.
3501.101 General.
3501.102 Designation of separate agency components.
3501.103 Prohibited interests in Federal lands.
3501.104 Prohibited interests in mining.
3501.105 Outside employment and activities.
Authority: 5 U.S.C. 301, 7301; 5 U.S.C. App. (Ethics in
Government Act of 1978); 30 U.S.C. 1211; 43 U.S.C. 11, 31(a); E.O.
12674, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 3 CFR,
1990 Comp., p. 306; 5 CFR 2635.105, 2635.203(a), 2635.403(a),
2635.803.
Sec. 3501.101 General.
(a) In accordance with 5 CFR 2635.105, the regulations in this part
apply to employees of the Department of the Interior and supplement the
Standards of Ethical Conduct for Employees of the Executive Branch
contained in 5 CFR part 2635. In addition to the regulations in 5 CFR
part 2635 and this part, employees of the Department are subject to the
employee responsibilities and conduct regulations at 5 CFR part 735;
the executive branch financial disclosure regulations at 5 CFR part
2634; and the Department's employee responsibilities and conduct
regulations at 43 CFR part 20.
(b) Definitions. As used in this part:
(1) Department means the U.S. Department of the Interior and any of
its components.
(2) Bureau means each major program operating component of the
Department, the Office of the Secretary, the Office of the Solicitor,
and the Office of the Inspector General.
(3) Designated Agency Ethics Official means the Assistant
Secretary--Policy, Management and Budget.
(4) Ethics Counselor means the head of each bureau, except that the
Deputy Assistant Secretary for Policy is the Ethics Counselor for
employees within the Office of the Secretary.
(5) Deputy Ethics Counselor means the bureau personnel officer or
other qualified headquarters employee who has been delegated
responsibility for the operational duties of the Ethics Counselor for
the bureau.
(c) Bureau instructions. With the concurrence of the Designated
Agency Ethics Official, each Ethics Counselor is authorized, consistent
with 5 CFR 2635.105(c), to issue explanatory guidance and establish
procedures necessary to implement this part and part 2635 of this title
for his or her bureau.
Sec. 3501.102 Designation of separate agency components.
(a) Each of the following ten components of the Department is
designated as an agency separate from each of the other nine listed
components and, for employees of that component, as an agency distinct
from the remainder of the Department, for purposes of the regulations
in subpart B of 5 CFR 2635 governing gifts from outside sources, 5 CFR
2635.807 governing teaching, speaking and writing, and Sec. 3501.105
requiring prior approval of outside employment. However, the following
ten components are not deemed to be separate agencies for purposes of
applying any provision of 5 CFR part 2635 or this part to employees of
the remainder of the Department:
(1) Bureau of Indian Affairs, including the Office of Indian
Education Programs;
(2) Bureau of Land Management;
(3) Bureau of Reclamation;
(4) Minerals Management Service;
(5) National Indian Gaming Commission;
(6) National Park Service;
(7) Office of Surface Mining Reclamation and Enforcement;
(8) Office of the Special Trustee for American Indians;
(9) U.S. Fish and Wildlife Service; and
(10) U.S. Geological Survey.
(b) Employees in components not listed in paragraph (a) of this
section (including employees within the immediate office of each
Assistant Secretary) are employees of the remainder of the Department,
which for those employees shall include the components designated in
this section as well as those parts of the Department not designated in
this section.
Example 1: A company that conducts activities regulated by the
Bureau of Land Management would not be a prohibited source of gifts
for an employee of the National Park Service (NPS), unless that
company seeks official action by the NPS; does business or seeks to
do business with the NPS; conducts activities that are regulated by
the NPS; or has interests that may be substantially affected by the
performance or nonperformance of that employee's official duties.
Example 2: A paralegal who works part-time in the Office of the
Solicitor wants to take an additional part-time job with a private
company that does business with the U.S. Geological Survey. The
company is a prohibited source for the paralegal, since the company
does business with a component of the Department from which his
component has not been listed as separate in Sec. 3501.102(a). The
paralegal must obtain prior approval for the outside employment,
because Sec. 3501.105 requires employees to obtain such approval
before engaging in outside employment with a prohibited source.
Sec. 3501.103 Prohibited interests in Federal lands.
(a) Cross-references to statutory prohibitions--(1) Prohibited
purchases of public land by Bureau of Land Management employees. As set
forth in 43 CFR 20.401, the officers, clerks, and employees in the
Bureau of Land Management are prohibited by 43 U.S.C. 11 from directly
or indirectly purchasing or becoming interested in the purchase of any
of the public lands.
(2) Prohibited interests in the lands or mineral wealth of the
region under survey for U.S. Geological Survey employees. As set forth
in 43 CFR 20.401, the Director and members of the U.S. Geological
Survey are prohibited by 43 U.S.C. 31(a) from having any personal or
private interests in the lands or mineral wealth of the region under
survey.
(b) Prohibited financial interests in Federal lands for Minerals
Management Service employees and for the Secretary and employees of the
Office of the
[[Page 53719]]
Secretary and other Departmental offices reporting directly to a
Secretarial officer who are in positions classified at GS-15 and above.
(1) Except as provided in paragraph (b)(2) of this section, the
following employees may not acquire or hold any direct or indirect
financial interest in Federal lands or resources administered or
controlled by the Department:
(i) All employees of the Minerals Management Service; and
(ii) The Secretary and employees of the Office of the Secretary and
other Departmental offices reporting directly to a Secretarial officer
who are in positions classified at GS-15 and above. As used in this
section, ``Office of the Secretary and other Departmental Offices
reporting directly to a Secretarial officer'' means the Immediate
Office of the Secretary; Office of the Solicitor; Office of the
Inspector General; Office of Communications; Office of Congressional
and Legislative Affairs; all Assistant Secretaries, their immediate
Office staff and heads of bureaus which are subordinate to an Assistant
Secretary. This includes the following offices under the Office of the
Assistant Secretary--Policy, Management and Budget: Office of Budget,
Office of Hearings and Appeals, Office of Acquisition & Property
Management, Office of Environmental Policy and Compliance, Office of
Policy Analysis, Office of Financial Management, and Office of
Information Resources Management.
(2) Exceptions. The prohibition in paragraph (b)(1) of this section
does not apply to:
(i) An individual employed on an intermittent or seasonal basis for
a period not exceeding 180 working days in each calendar year; or
(ii) A special Government employee engaged in field work relating
to land, range, forest, and mineral conservation and management
activities.
(c) Prohibition as to Department-granted rights in Federal lands.
(1) Except as provided in paragraph (c)(2) of this section, employees
and their spouses and their minor children are prohibited from
acquiring or retaining any claim, permit, lease, small tract entries,
or other rights that are granted by the Department in Federal lands.
(2) Exceptions. (i) Nothing in paragraph (c)(1) of this section
prohibits the recreational or other personal and noncommercial use of
Federal lands by an employee, or the employee's spouse or minor child,
on the same terms as use of Federal lands is available to the general
public.
(ii) Unless otherwise prohibited by law, employees in the Office of
the Assistant Secretary--Indian Affairs, or in the Bureau of Indian
Affairs, and the spouses and minor children of such employees, are not
prohibited by paragraph (c)(1) of this section from acquiring or
retaining rights in Federal lands controlled by the Department for the
benefit of Indians or Alaska Natives.
(d) Divestiture. The Designated Agency Ethics Official may require
an employee to divest an interest the employee is otherwise authorized
to retain under an exception listed in this section, based on a
determination of substantial conflict under Sec. 2635.403(b) of this
title.
(e) Waivers. The Designated Agency Ethics Official may grant a
written waiver from the prohibitions contained in paragraphs (b) and
(c) of this section, based on a determination that the waiver is not
inconsistent with 5 CFR part 2635 or otherwise prohibited by law and
that, under the particular circumstances, application of the
prohibition is not necessary to avoid the appearance of misuse of
position or loss of impartially, or otherwise to ensure confidence in
the impartiality and objectivity with which Department programs are
administered. A waiver under this paragraph may be accompanied by
appropriate conditions, such as acquiring execution of a written
statement of disqualification. Notwithstanding the grant of any waiver,
an employee remains subject to the disqualification requirements of 5
CFR 2635.402 and 2635.502.
(f) Pre-existing interests. An employee may retain a financial
interest otherwise prohibited by paragraph (b) or (c) of this section
which was approved in writing under criteria and procedures in effect
before November 2, 1996, unless the approval is withdrawn by the
Designated Agency Ethics Official, subject to the standards for waivers
in paragraph (e) of this section.
Sec. 3502.104 Prohibited interests in mining.
(a) Cross-referenced to statutory prohibition. As set forth in 30
CFR part 706 and 43 CFR 20.402, employees of the Office of Surface
Mining Reclamation and Enforcement and other employees who perform
functions or duties under the Surface Mining Control and Reclamation
Act of 1977, 30 U.S.C. 1201 et seq., are prohibited by 30 U.S.C.
1211(f) from having a direct or indirect financial interest in
underground or surface coal mining operations.
(b) Prohibited interests in private mining activities in the United
States for U.S. Geological Survey employees, their spouses, and minor
children. (1) Except as provided in this section, no employee of the
U.S. Geological Survey (USGS), or spouse or minor child of a USGS
employee, shall have a direct or indirect financial interest in private
mining activities in the United States.
(2) Definitions. For purposes of applying the prohibition in
paragraph (b)(1) of this section:
(i) Financial interest has the meaning set forth in 5 CFR
2635.403(c), and includes an employee's legal or beneficial interest in
a trust.
(ii) Private mining activities means exploration, development, and
production of oil, gas, and other minerals on land in the United States
that is not owned by the Federal government or by a State or local
government.
(3) Exceptions. The prohibition set forth in paragraph (b)(1) of
this section does not apply to:
(i)(A) Financial interests worth $5000 or less, for employees (or
their spouses and minor children) of the Office of the Director and the
Geologic Division, or
(B) A single financial interest worth $5000 or less or an aggregate
of financial interests worth $15,000 or less, for employees (or their
spouses and minor children) of all other USGS organizational elements;
(ii) Mineral royalties and overriding royalty interests of $600 per
year or less;
(iii) A publicly traded or publicly available investment fund
(e.g., a mutual fund) which, in its prospectus, does not indicate the
objective or practice of concentrating its investments in entities
engaged in private mining activities in the United States, if the
employee neither exercises control nor has the ability to exercise
control over the financial interests held in the fund;
(iv) A legal or beneficial interest in a qualified profit sharing,
retirement, or similar plan, provided that the plan does not invest
more than 25 percent of its funds in debt or equity instruments of
entities engaged in private mining activities in the United States, and
the employee neither exercise control nor has the ability to exercise
control over the financial interests held in the plan; or
(v) The ownership of a financial interest by an employee's spouse
or minor child where the spouse or minor child obtained the interest
through:
(A) A gift from someone other than the employee or a member of the
employee's household;
(B) Inheritance;
(C) Acquisition prior to the employee's becoming a USGS employee;
(D) Acquisition prior to marriage to a USGS employee; or
(E) A compensation package in connection with the employment of the
spouse or minor child.
[[Page 53720]]
(4) Divestiture. The Director of the U.S. Geological Survey may
require an employee to divest an interest the employee is otherwise
authorized to retain under an exception listed in paragraph (b)(3) of
this section, based on a determination of substantial conflict under
Sec. 2635.403(b) of this title.
(5) Waivers. The Director of the U.S. Geological Survey may grant a
written waiver from the prohibition contained in paragraph (b)(1) of
this section, based on a determination that the waiver is not
inconsistent with 5 CFR part 2635 or otherwise prohibited by law, and
that, under the particular circumstances, application of the
prohibition is not necessary to avoid the appearance of misuse of
position or loss of impartiality, or otherwise to ensure confidence in
the impartiality and objectivity with which Department programs are
administered. A waiver under this paragraph may be accompanied by
appropriate conditions, such as requiring execution of a written
statement of disqualification. Notwithstanding the granting of any
waiver, an employee remains subject to the disqualification
requirements of 5 CFR 2635.402 and 2635.502.
(6) Pre-existing interests. A spouse or minor child of an employee
may retain a financial interest otherwise prohibited by paragraph
(b)(1) of this section which was permitted under criteria and
procedures in effect before November 2, 1996, unless the Director of
the U.S. Geological Survey determines in writing that such retention is
inconsistent with the standards for waivers in paragraph (b)(5) of this
section.
Sec. 3501.105 Outside employment and activities.
(a) Prohibited outside employment and activities. (1) Under 43
U.S.C. 31(a), employees of the U.S. Geological Survey shall execute no
surveys or examinations for private parties or corporations.
(2) Employees in the Bureau of Land Management may not engage in
outside employment as real estate agents and realty specialists. Such
employees are not required to cancel a real estate license, but may
maintain the license on an inactive basis.
(3) Employees in the Office of the Assistant Secretary--Indian
Affairs, or in the Bureau of Indian Affairs (BIA), may not hold a
position on a tribal election board or on a tribal school board which
oversees BIA schools.
Note to paragraph (a)(3): Except for membership on a tribal
election board and a tribal school board which oversees BIA schools,
an eligible person employed in the Office of the Assistant
Secretary--Indian Affairs or in the BIA may become a candidate for
office in his local tribe or may be appointed as a representative of
his local tribe if prior approval is obtained from the Deputy
Assistant Secretary--Indian Affairs pursuant to paragraph (b) of
this section.
(b) Prior approval of outside employment--(1) Prior approval
requirement. (i) An employee of the Department, other than an employee
of the U.S. Geological Survey or a special Government employee, shall
obtain written approval from his ethics counselor or other agency
designee before engaging in outside employment with a prohibited
source.
(ii)(A) An employee of the U.S. Geological Survey (USGS), other
than a special Government employee, shall obtain written approval from
the USGS deputy ethics counselor before engaging in any outside
employment.
(B) The USGS may issue instructions exempting categories of
employment from the prior approval requirement in paragraph
(b)(1)(ii)(A) of this section, based on a determination that the
employment within those categories 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.
(2) Form of request for approval.
(i) A request for prior approval of outside employment shall
include, at a minimum, the following:
(A) The employee's name, occupational title, office address, and
office telephone number;
(B) A brief description of the employee's official duties;
(C) The nature of the outside employment, including a full
description of the specific duties or services to be performed;
(D) The name and address of the prospective outside employer; and
(E) A statement that the employee currently has no official duties
involving a matter that affects the outside employer and will
disqualify himself from future participation in matters that could
directly affect the outside employer.
(ii) Upon a significant change in the nature of the outside
employment or in the employee's official position, the employee shall
submit a revised request for approval.
(3) Standard for approval. Approval shall be granted unless a
determination is made that the outside employment is expected to
involve conduct prohibited by statute or Federal regulation, including
5 CFR part 2635 and this part.
(4) Definitions. As used in this section:
(i) Employment means any form of non-Federal business relationship
involving the provision of personal services by the employee, with or
without compensation. It includes but is not limited to personal
services as an officer, director, employee, agent, attorney,
consultant, contractor, general partner, trustee, teacher, or speaker.
It includes writing 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 the provision of professional services or advice for
compensation other than reimbursement for actual expenses.
(ii) Prohibited source has the meaning in 5 CFR 2635.203(d), as
supplemented by Sec. 3501.102, and includes any person who:
(A) Is seeking official action by the Department or, in the case of
an employee of one of the separate agency components designated in
Sec. 3501.102(a), by that component;
(B) Does business or seeks to do business with the Department, or
in the case of an employee of one of the separate agency components
designated in Sec. 3501.102(a), with that component;
(C) Conducts activities regulated by the Department or, in the case
of an employee of one of the separate agency components designated in
Sec. 3501.102(a), by that component;
(D) Has interests that may be substantially affected by the
performance or nonperformance of the employee's official duties; or
(E) Is an organization a majority of whose members are described in
paragraphs (c)(4)(ii) (A) through (D) of this section.
TITLE 43--[AMENDED]
SUBTITLE A--[AMENDED]
2. Part 20 of 43 CFR is revised to read as follows:
PART 20--EMPLOYEE RESPONSIBILITIES AND CONDUCT
Subpart A--General Provisions
Sec.
20.101 Cross-references to ethical conduct, financial disclosure
and other applicable regulations.
20.102 Definitions.
20.103 Employee responsibilities.
Subpart B--Department Ethics Program
20.201 Ethics officials.
20.202 Ethics program responsibilities.
20.203 Exclusion from confidential financial disclosure requirement
for certain special Government employees.
[[Page 53721]]
Subpart C--Acceptance and Payment of Travel and Related Expenses
20.301 General policy.
20.302 Exclusions.
Subpart D--Special Provisions Governing Financial and Other Outside
Interests of Certain Employees of the Department
20.401 Interests in Federal lands.
20.402 Interests in underground or surface coal mining operations.
20.403 Certificates of disclaimer.
Subpart E--Other Employee Conduct Provisions
20.501 General policy.
20.502 Conformance with policy and subordination to authority.
20.503 Scope of authority.
20.504 Selling or soliciting.
20.505 Habitual use of intoxicants.
20.506 Appropriations, legislation and lobbying.
20.507 Unlawful organizations.
20.508 Notary.
20.509 Penalty mail and official stationery.
20.510 Fraud or false statements in a Government matter.
20.511 Carrying of firearms.
20.512 Labor practices.
Subpart F--Disciplinary and Remedial Actions
20.601 General.
20.602 Remedial action.
20.603 Appealing an order for remedial action.
Authority: 5 U.S.C. 301; 5 U.S.C. App. (Reorganization Plan No.
3 of 1950); 30 U.S.C. 1211; 43 U.S.C. 11, 31; 5 CFR 2634.903,
2634.905.
Subpart A--General Provisions
Sec. 20.101 Cross-references to ethical conduct, financial disclosure
and other applicable regulations.
In addition to the rules in this part, employees of the Department
of the Interior also should refer to the Standards of Ethical Conduct
for Employees of the Executive Branch, at 5 CFR part 2635; the
Department's regulations that supplement those executive branch-wide
standards at 5 CFR part 3501; the employee responsibilities and conduct
regulations at 5 CFR part 735; and the executive branch financial
disclosure regulations at 5 CFR part 2634.
Sec. 20.102 Definitions.
(a) The following terms are used throughout this part and have the
following meanings:
(1) Department means the U.S. Department of the Interior and any of
its components.
(2) Secretary means the Secretary of the Interior.
(3) Bureau means each major program operating component of the
Department, the Office of the Secretary, the Office of the Solicitor,
and the Office of the Inspector General.
(4) Employee means a regular employee, a special Government
employee, and a contract education employee in the Office of the
Assistant Secretary--Indian Affairs or the Bureau of Indian Affairs,
unless the text of a particular subpart, section, or paragraph
indicates that either regular employees or special Government employees
are not intended to be covered by that subpart, section or paragraph.
Volunteers in National Parks whose services are accepted pursuant to 16
U.S.C. 18g are not employees.
(b) Specific definitions. Additional definitions of terms
specifically associated with a particular subpart, section, or
paragraph are found in that subpart, section, or paragraph.
Sec. 20.103 Employee responsibilities.
It is the responsibility of each employee:
(a) To be familiar with and to comply with all Federal statues,
Executive Orders, and regulations that govern his or her conduct.
Employees are expected to consult with their supervisors and servicing
ethics counselors on questions they may have regarding the
applicability of any ethics or other conduct provision. Ethics advice
may also be obtained from the Solicitor's Office and the Department
Ethics Office.
(b) To report directly or through appropriate channels to the
Office of Inspector General or other appropriate authority matters
coming to their attention which do or may involve violations of law or
regulation by employees, contractors, sub-contractors, grantees,
subgrantees, lessees, licensees or other persons having official
business with the Department.
Subpart B--Department Ethics Program
Sec. 20.201 Ethics officials.
(a) The Designated Agency Ethics Official is the Assistant
Secretary--Policy, Management and Budget. In accordance with 5 CFR
2638.203, the Designated Agency Ethics Official is responsible for the
coordination and management of the Department's ethics program.
(b) The head of each bureau is the ``Ethics Counselor'' for that
bureau, except that the Deputy Assistant Secretary for Policy is the
Ethics Counselor for employees in the Office of the Secretary and
related offices. The Solicitor is the Ethics Counselor for the Office
of the Solicitor and the Inspector General is the Ethics Counselor for
the Office of Inspector General.
(c) The personnel officer for each bureau or other qualified
employee who has been delegated responsibility for the operational
duties of the Ethics Counselor for the bureau, it the ``Deputy Ethics
Counselor'' for that bureau.
(d) A bureau, regional, or area personnel officer or other
qualified employee may be assigned to serve as an ``Associate Ethics
Counselor'' or ``Assistant Ethics Counselor,'' with delegated
responsibility to perform the operational duties of the Ethics
Counselor at the field level. Associate Ethics Counselors or Assistant
Ethics Counselors may also be designated within the bureau
headquarters.
Sec. 20.202 Ethics program responsibilities.
(a) The Designated Agency Ethics Official (or the alternate agency
ethics official in his or her absence) shall coordinate and manage the
department's ethics program in accordance with 5 CFR 2638.203.
(b) Each Ethics Counselor shall, for his or her bureau:
(1) Order disciplinary or remedial action in accordance with the
provisions of subpart F of this part. This authority may not be
redelegated.
(2) Designate: (i) The Bureau Personnel Officer (or other qualified
headquarters employee) as Deputy Ethics Counselor to carry out
operational duties of the Ethics Counselor within their bureaus under
the general direction of the Ethics Counselor; and
(ii) Headquarters bureau, regional, or area personnel officers (or
other qualified employees) as Associate Ethics Counselors or Assistant
Ethics Counselors to perform ethics counseling and the collection and
review of financial disclosure reports.
(3) Ensure that vacancy announcements for positions which require a
public or confidential financial disclosure report alert applicants to
the filing requirement.
(4) Establish and maintain internal procedures and guidelines to
adequately and systematically inform employees of the content, meaning,
and importance of ethical conduct and other conduct regulations.
(c) All supervisors may make decisions as to whether conduct by
employees under their supervision would result in the appearance that
the employee would violate or is violating the ethical standards set
forth in 5 CFR 2635; all supervisors are expected, therefore, to be
familiar with those standards. In addition, any supervisor who grants
prior approval of an employee's outside employment under 5 CFR
3501.105(b) is expected, at a
[[Page 53722]]
minimum, to provide information to the employee about the prohibitions
in 18 U.S.C. 203, 205 and 208 at the time such approval is granted.
Sec. 20.203 Exclusion from confidential financial disclosure
requirement for certain special Government employees.
In an instance involving the proposed employment of a special
Government employee for highly specialized and limited duties, the head
of the bureau or office may propose to the Designated Agency Ethics
Official (DAEO) a reporting of financial interests restricted to such
interests as may be determined to be relevant to the duties the special
Government employee is to perform. The DAEO may, under the provisions
of 5 CFR 2634.905, exclude the special Government employee from all or
a portion of the confidential reporting requirements of the OGE Form
450. Any confidential financial disclosure requirement must be
satisfied by the special Government employee before he begins his
employment.
Subpart C--Acceptance and Payment of Travel and Related Expenses
Sec. 20.301 General policy.
(a) Except as specifically authorized by law, when an employee is
on official duty (no leave status), all travel and accommodations shall
be at Government expense and his or her acceptance of outside
reimbursement for travel expenses or services in kind from private
sources, either in his or her behalf or in behalf of the Government, is
not allowed.
(b) Under certain circumstances, the Department may charge a fee or
accept reimbursement for providing a service or thing of value to a
private source when the service or thing of value provided benefits to
both the Government and the particular private source (31 U.S.C. 9701).
In such instances only a portion of the costs can be accepted from the
private source. The Department must pay expenses associated with its
usual official business and for the benefits it receives from
participating in the event. The private source can be charged or may
reimburse the Department for that portion of the service provided that
exceeds the Department's usual expenses and the benefits to the
Government. Under this provision, payments from private sources must be
deposited in the U.S. Treasury unless the bureau receiving the payment
is authorized by statute to accept such payments.
(c) When a bureau is authorized by statute other than 31 U.S.C.
1353 to accept gifts, and 31 U.S.C. 1353 does not apply, the travel
expenses incurred by an employee directed to participate in a
convention, seminar, or similar meeting sponsored by a private source
for the mutual interest of the Government and the private source may be
reimbursed to the bureau and credited to its appropriation. The
employee shall be paid by the bureau in accordance with the law
relating to reimbursement for official travel and any accommodations
and goods or services in kind furnished an employee shall be treated as
a donation to the bureau and an appropriate reduction shall be made to
the employee's reimbursement (46 CG 689 (1967)).
(d) When participation at a function is not in an official
capacity, an employee may accept reimbursement of travel and
accommodation expenses from a private source, provided that such
acceptance is permitted by law and Federal regulations. Participation
as a private citizen must occur on one's own time, such as while on
leave. If participation should occur during the course of official
travel (i.e., evening or weekend hours during official travel status),
the travel voucher submitted for Government reimbursement of official
duty expenses must be adjusted to claim only that per diem and travel
attributable to official duty. Employees who are in positions for which
the rate of pay is specified in 5 U.S.C. 5311-5318 (the Executive
Schedule) are on 24-hour duty, and determinations of what constitutes
official duty and what is private participation should be carefully
made.
Sec. 20.302 Exclusions.
(a) Where employee travel is for attendance at a meeting or similar
function (31 U.S.C. 1353(a)), the Department may accept payment for the
employee and/or the employee's spouse's travel from a non-Federal
source when proper consideration is given to the conditions in
paragraph (a)(1) of this section and a written authorization to accept
payment is issued in advance of the travel.
(1) Conditions. Such travel expenses paid for by a non-Federal
source may be accepted by the Department only if all of the following
conditions are met:
(i) The travel relates to the employee's official duties;
(ii) The travel, subsistence and related expenses are with respect
to the attendance of an employee (and/or the accompanying spouse of
such employee when applicable) at a meeting or similar function. This
includes a conference, seminar, speaking engagement, symposium,
training course, or similar event that takes place away from the
employee's official station, and is sponsored or cosponsored by a non-
Federal source;
(iii) The non-Federal source is not disqualified because of a real
or apparent conflict of interest as determined under paragraph (a)(2)
of this section; and
(iv) The travel event is not required to carry out the Department's
statutory or regulatory functions. Examples of statutory or regulatory
functions that are essential to the Department's mission include
investigations, inspections, audits, site visits, compliance reviews or
program evaluations.
(2) Conflict of interest analysis. (i) The Department's acceptance
of any payment from a non-Federal source under the authority of 31
U.S.C. 1353 shall not be approved when an Authorized Approving
Official, identified in paragraph (a)(2)(iii) of this section,
determines that under the circumstances, acceptance of the travel
expenses would cause a reasonable person with knowledge of all relevant
facts to:
(A) Question the integrity of the work to be performed by the
employee receiving the benefit; or
(B) Question the integrity of the Department's other program
operations.
(ii) When making these determinations, an Authorized Approving
Official shall be guided by all relevant considerations including, but
not limited to:
(A) The identity of the non-Federal source and the source's
relationship to the Department;
(B) The purpose of the meeting or similar function and its
relationship to the Department's programs or operations;
(C) The identity of other expected participants and their
relationship to the Department;
(D) The nature and sensitivity of any pending Department matter
which, when decided, may affect the interests of the non-Federal
source;
(E) The significance of the employee's role in any such pending
matter;
(F) The monetary value and character of the travel benefits offered
by the non-Federal source; and
(G) The potential reaction from Department customers, including the
public, if the acceptance of travel expenses was made known to them.
(iii) An ``Authorized Approving Official'' means that Department
official who has been delegated authority to approve the usual travel
authorizations of the employee who will benefit from the non-Federal
travel payment.
[[Page 53723]]
(iv) The procedures stated below must be satisfied before the
employee (and/or the accompanying spouse) begin his or her travel:
(A) Each employee (and/or the accompanying spouse) must have an
approved Travel Authorization (Form DI-1020). Section 10 (``Purpose and
Remarks'') of this Form must contain a statement that the authority to
accept payment from a non-Federal source for the specified travel event
is 31 U.S.C. 1353, and the travel situation complies with the
conditions for acceptance under 41 CFR 304-1.4.
(B) The supplementary form entitled, ``Report of Payments Accepted
From Non-Federal Sources Under 31 U.S.C. 1353'' (Form DI-2000) must
also be completed and signed by the employee and the Authorized
Approving Official. A copy of Form DI-1020 and Form DI-2000 must be
filed with the employee's Deputy Ethics Counselor.
(C) Payment from a non-Federal source to cover the travel related
expenses of an employee may be made in the form of a check or similar
instrument made payable to the Department. Employees should not accept
cash or negotiate checks or similar instruments payable to them. Any
negotiable instruments received by an employee shall be transmitted
immediately to the appropriate accounting office.
(b) When on official duty, contributions and awards incident to
training in non-Government facilities, and payment of travel,
subsistence, and other expenses incident to attendance at meetings may
be accepted by an employee when the payment is made by a non-profit,
tax exempt organization as described in 26 U.S.C. 501(c)(3) and when no
real or apparent conflict of interest will result. Prior advice should
be obtained from the employee's ethics counselor in this circumstance
(5 U.S.C. 4111).
(c) Employees may accept reimbursement by the Department for travel
and related expenses when on detail under the Intergovernmental
Personnel Act, in accordance with 5 U.S.C. 3375.
(d) Should the Director of the United States Information Agency,
with the approval of the employing agency, assign an employee to a
foreign government, reimbursement for the employee's pay and allowances
shall be made to the United States in an amount equal to the
compensation, travel expenses, and allowances payable to such person
during the period of such assignment, in accordance with 22 U.S.C.
1451.
(e) Should an employee be detailed by the Secretary to an
international organization which requests services, the employee is
deemed to be (for the purpose of preserving his or her allowances,
privileges, rights, seniority, and other benefits) an employee of the
Department and the employee is entitled to pay, allowances, and
benefits from funds available to the Department. The international
organization may reimburse the Department for all or part of the pay,
travel expenses, and allowances payable during the detail; or, the
detailed employee may be paid or reimbursed directly by the
international organization for allowances or expenses incurred in the
performance of duties required by the detail without regard to 18
U.S.C. 209 (5 U.S.C. 3343).
Subpart D--Special Provisions Governing Financial and Other Outside
Interests of Certain Employees of the Department
Sec. 20.401 Interests in Federal lands.
(a) Statutory prohibition applicable to employees of the Bureau of
Land Management. (1) In accordance with 43 U.S.C. 11, employees of the
Bureau of Land Management are prohibited from voluntarily acquiring a
direct or indirect interest in Federal lands.
(2) Definitions. For purposes of applying the prohibition in 43
U.S.C. 11:
(i) Federal lands. means public lands or resources or an interest
in lands or resources administered or controlled by the Department,
including, but not limited to, all submerged lands lying seaward
outside of the area of ``lands beneath navigable water'' as defined in
43 U.S.C. 1301(a), and of which the subsoil and seabed appertain to the
United States and are subject to its jurisdiction and control.
(ii) Direct interest in Federal lands means any employee ownership
or part ownership in Federal lands or any participation in the earnings
therefrom, or the right to occupy or use the property or to take any
benefits there from, based upon a contract, grant, lease, permit,
easement, rental agreement, or application. Direct interest in Federal
lands also includes:
(A) Membership or outside employment in a business which has
interests in Federal lands; and.
(B) Ownership of stock or other securities in corporations
determined by the Department to have an interest in Federal lands
directly or through a subsidiary.
(iii) Indirect interest in Federal lands means any ownership or
part ownership of an interest in Federal lands by an employee in the
name of another where the employee still reaps the benefits. Indirect
interest in Federal lands also includes:
(A) Holdings in land, mineral rights, grazing rights or livestock
which in any manner are connected with or involve the substantial use
of the resources or facilities of the Federal lands; or
(B) Substantial holdings of a spouse or minor child.
(b) Statutory prohibition applicable to employees of the U.S.
Geological Survey. (1) In accordance with 43 U.S.C. 31(a), the Director
and members of the U.S. Geological Survey are prohibited from having
any personal or private interests in the lands or mineral wealth of the
region under survey.
(2) Definitions. For purposes of applying the prohibition in 43
U.S.C. 31(a):
(i) Personal or private interest means ownership of an interest in,
or employment with a person or enterprise which leases or uses, Federal
lands for commercial purposes.
(ii) Region under survey means Federal lands which are administered
or controlled by the Department.
(c) Exclusions. (1)(i) Except for U.S. mineral surveyors, an
individual employed on an intermittent or seasonal basis for a period
not exceeding 180 working days in each calendar year, and a special
Government employee (SGE) engaged in field work relating to land,
range, forest, and mineral conservation and management activities, and
the spouse of such an individual or SGE, shall not be precluded from
retaining any interest, including renewal or continuation of existing
rights, in Federal lands, provided that such individual or SGE or
spouse shall not acquire any additional interest in Federal lands
during employment.
(ii) A U.S. mineral surveyor is a person appointed under the
authority of 30 U.S.C. 39, and as such is included within the term
``officers, clerks, and employees'' of the Bureau of Land Management as
that term is used in 43 U.S.C. 11 and construed in Waskey v. Hammer,
223 U.S. 85 (1912). U.S. mineral surveyors are also considered to be
special government employees.
(2) A Bureau of Land Management employee or any member of the
employee's family may acquire wild free-roaming horses or burros from
Federal lands for maintenance and protection through a cooperative
agreement entered into in accordance with 43 CFR part 4700.
(3) A Bureau of Land Management employee may retain a direct or
indirect interest in Federal lands when:
[[Page 53724]]
(i) There is little or no relationship between the employee's
functions or duties and the particular interest in Federal lands, and
(ii) The employee, or the spouse or dependent child of the
employee, acquired such an interest:
(A) By gift, devise, bequest, or court award or settlement, or
(B) Prior to the time the employee entered on duty in the
Department.
(4) Pursuant to 43 U.S.C. 1621(d), 43 U.S.C. 11 does not apply to
any land grants or other rights granted under 43 U.S.C. chapter 33.
(5) The recreational or other personal and noncommercial use of the
Federal lands by an employee, the employee's spouse or dependent child,
on the same terms as use of the Federal lands is available to the
general public, is not prohibited.
(6) Advisory councils. Nothing in 43 U.S.C. 11 shall disqualify
individuals appointed pursuant to the Federal Land Policy and
Management Act of 1976, 43 U.S.C. 1739, as members of advisory boards
or councils, from acquiring or retaining grazing licenses or permits
issued pursuant to section 3 of the Taylor Grazing Act (43 U.S.C.
315b), or any other interest in land or resources administered by the
Bureau of Land Management: Provided, that in no case shall the member
of any such board or council participate in any advice or
recommendation concerning such license or permit in which such member
is directly or indirectly interested.
(d) Request for advice. When an employee is in doubt as to whether
the acquisition or retention of any interest in lands or resources
administered by the Department would violate the provisions of this
section, a statement of the facts should be submitted promptly by the
individual involved to his or her servicing ethics counselor for
guidance.
Sec. 20.402 Interests in underground or surface coal mining
operations.
(a) Definitions. As used in this section:
(1) Direct financial interest in underground or surface coal mining
operations means ownership or part ownership by an employee of lands,
stocks, bonds, debentures, warrants, partnership shares, or other
holdings and also means any other arrangement where the employee may
benefit from his or her holding in or salary from coal mining
operation. Direct financial interests also include employment,
pensions, creditor, real property and other financial relationships.
(2) Indirect financial interest in underground or surface coal
mining operations means the same financial relationships as for direct
ownership, but where the employee reaps the benefits of such interests
including interests held by his or her spouse, dependent child and
other relatives, including in-laws, residing in the employee's home.
The employee will not be deemed to have an indirect financial interest
if there is no relationship between the employee's functions or duties
and the coal mining operation in which the spouse, dependent child or
other resident relative holds a financial interest.
(3) Coal mining operation means the business of developing,
producing, preparing or loading bituminous coal, subbituminous coal,
anthracite or lignite or of reclaiming the areas upon which such
activities occur.
(4) Performing any function or duty under the Surface Mining
Control and Reclamation Act of 1977 means those decisions or actions,
which if performed or not performed by an employee, affect the programs
under the Act.
(b) Prohibitions. (1) Neither the Director nor any other employee
of the Office of Surface Mining Reclamation and Enforcement or any
other employee who performs functions or duties under the Surface
Mining Control and Reclamation Act of 1977, 30 U.S.C. 1201 et seq.,
shall have a direct or indirect financial interest in underground or
surface coal mining operations.
(2) The Surface Mining Control and Reclamation Act of 1977, at 30
U.S.C. 1211(f), provides that anyone who knowingly violates the
prohibitions in that Act shall, upon conviction, be punished by a fine
of not more than $2,500, or by imprisonment for not more than one year,
or both.
(c) Employees are encouraged to review regulations contained in 30
CFR part 706 which pertain to the prohibitions restated in this
section.
Sec. 20.403 Certificates of disclaimer.
(a) Each employee of the U.S. Geological Survey, Bureau of Land
Management, Minerals Management Service, and Office of Surface Mining
Reclamation and Enforcement shall sign a certificate of disclaimer upon
entrance to or upon transfer to a position within any of these bureaus.
The employee's signature will indicate that he or she:
(1) Is aware of the specific restrictions pertinent to his or her
employment; and
(2) Is in compliance with such restrictions.
(b) If an employee is unable to sign the certificate, he or she
must submit a statement of facts to the appropriate ethics counselor
for review and appropriate action.
(c) Signed certificates of disclaimer shall be filed and maintained
by the employee's deputy ethics counselor.
Subpart E--Other Employee Conduct Provisions
Sec. 20.501 General policy.
Employees of the Department are expected to maintain especially
high standards of honesty, integrity, impartiality, and conduct to
ensure the proper performance of Government business and the continual
trust and confidence of citizens in their Government. Employees are
expected to comply with all Federal statutes, Executive Orders, Office
of Government Ethics and Office of Personnel Management regulations,
and Departmental regulations. The conduct of employees should reflect
the qualities of courtesy, consideration, loyalty to the United States,
a deep sense of responsibility for the public trust, promptness in
dealing with and serving the public, and a standard of personal
behavior which will be a credit to the individual and the Department.
These principles apply to official conduct and to private conduct which
affects in any way the ability of the employee or the Department to
effectively accomplish the work of the Department.
Sec. 20.502 Conformance with policy and subordination to authority.
Employees are required to carry out the announced policies and
programs of the Department and to obey proper requests and directions
or supervisors. While policies related to one's work are under
consideration employees may, and are expected to, express their
professional opinions and points of view. Once a decision has been
rendered by those in authority, each employee is expected to comply
with the decision and work to ensure the success of programs or issues
affected by the decision. An employee is subject to appropriate
disciplinary action, including removal, if he or she fails to:
(a) Comply with any lawful regulations, orders, or policies; or
(b) Obey the proper requests of supervisors having responsibility
for his or her performance.
Sec. 20.503 Scope of authority.
Employes shall not engage in any conduct or activity which is in
excess of his or her authority, or is otherwise contrary to any law or
announced Departmental policy.
Sec. 20.504 Selling or soliciting.
Employees and other persons are prohibited from selling or
soliciting for personal gain within any building or on
[[Page 53725]]
any lands occupied or used by the Department. Exception is granted for
Department-authorized operations, including, but not limited to, the
Interior Department Recreation Association, the Indian Arts and Crafts
store, and for cafeteria, newsstand, snack bar and vending machine
operations which are authorized by the Department of the benefit of
employees or the public.
Sec. 20.505 Habitual use of intoxicants.
An employee who habitually uses intoxicants to excess may be
subject to removal (5 U.S.C. 7352).
Sec. 20.506 Appropriations, legislation and lobbying.
(a) Unless expressly authorized by Congress, employees are
prohibited from using any part of the money appropriated by any
enactment of Congress to pay for any personal service, advertisement,
telegram, telephone, letter, printed or written matter, or other
device, intended or designed to influence in any manner a Member of
Congress, to favor or oppose, by vote or otherwise, any legislation or
appropriation by Congress, whether before or after the introduction of
any bill or resolution proposing such legislation or appropriation;
this prohibition does not prevent any employee from communicating to
Members of Congress on the request of any Member or through proper
official channels, requests for legislation or appropriations which
they deem necessary for the efficient conduct of the public business
(18 U.S.C. 1913).
(b) When acting in their official capacity, employees are required
to refrain from promoting or opposing legislation relating to programs
of the Department without the official sanction of the property
Departmental authority.
(c) The rights of employees, individually or collectively, to
otherwise petition Congress, or to a Committee or Member thereof, shall
not be interfered with or denied (5 U.S.C. 7211).
Sec. 20.507 Unlawful organizations.
An employee may not advocate the violent overthrow of our
constitutional form of government nor may an employee be a member of an
organization that he or she knows advocates the violent overthrow of
our constitutional form of government (5 U.S.C. 7311).
Sec. 20.508 Notary.
An employee is prohibited from charging fees for performance of any
notarial act for any employee of the Federal Government who is acting
in his or her official capacity, or for any person during the hours of
such notary's service to the Government (E.O. 977, Nov. 24, 1908).
Sec. 20.509 Penalty mail and official stationery.
(a) An employee is prohibited from using any official envelope,
label, or indorsement authorized by law, to avoid the payment of
postage or registry fee on his or her private letter, packet, package,
or other matter in the mail (18 U.S.C. 1719).
(b) Official Government envelopes and official letterhead
stationery are Government property that may only be used for authorized
purposes. Employees' use of Government envelopes to mail their own
personal job applications is not authorized.
Sec. 20.510 Fraud or false statements in a Government matter.
An employees shall not, in any matter within the jurisdiction of
any department or agency of the United States, knowingly or willfully
falsify, conceal or cover up by any trick, scheme, or device a material
fact, or make any false, fictitious, fraudulent statements or
representations, or make or use any false writing or document knowing
the same to contain any false, fictitious or fraudulent statement or
entry (18 U.S.C. 1001). Special attention is required in the
certification of time and attendance reports, applications for
employment, request for travel reimbursement, and purchase orders and
receiving forms.
Sec. 20.511 Carrying of firearms.
Employees, except those specifically designated to perform
enforcement, police or other official duties requiring the use of
firearms, are prohibited from carrying or having in their possession
firearms on property under the control of the Secretary. Employees who
are officially stationed in parks, refuges, Indian reservations, other
Tribal lands or other wilderness areas which are known to be inhabited
by wild animals, are permitted, when on those lands, to carry and use
firearms for personal protection as permitted by existing policy or as
authorized by the park, refuge or area supervisor. Notwithstanding this
paragraph, employees who are not on official duty may carry firearms on
Departmental lands under the same conditions and in accordance with
procedures and authorizations established for members of the general
public.
Sec. 20.512 Labor practices.
Employees are prohibited from striking against the Government of
the United States (5 U.S.C. 7311). Additional information regarding
affiliation with employee organizations is found in the Department
Manual, Part 370, Chapter 711, Labor Management Relations.
Subpart F--Disciplinary and Remedial Actions
Sec. 20.601 General.
This subpart deals with disciplinary actions and remedial actions
for violations, or potential violations, of conflict of interest laws
or of the regulations in this part or in 5 CFR part 2635 or 5 CFR part
3501. Disciplinary action may include oral or written warning or
admonishment, reprimand, suspension, reduction in grade or pay, removal
from position or removal from office. Such action shall be taken in
accordance with Departmental policies and procedures, applicable
statutes, Executive Orders, regulations, and any applicable collective
bargaining agreement provisions. Disciplinary action may be imposed
independently from and without prior application of remedial actions,
including those remedial actions listed in Sec. 20.602.
Sec. 20.602 Remedial action.
(a)(1) Remedial action should normally be considered only after
attempts to obtain voluntary resolution have failed. Voluntary
resolution may include:
(i) Voluntary divestiture;
(ii) Voluntary conversion to securities which are not prohibited,
or the holding of which would not violate law or regulation; or
(iii) Voluntary reassignment to another position.
(2) If the bureau Ethics Counselor decides that remedial action is
required, such action shall be initiated within a reasonable time,
usually 90 days.
(b) Remedial action may include:
(1) Reassignment or disqualification of the employee. It may be
possible for the employee to be reassigned to another job, or to be
disqualified from performing particular duties. Although the number of
cases where this remedy can be used should be rare, the possibility
should be explored before divestiture of an interest is ordered.
(2) Waiver. (i) The Designated Agency Ethics Official (DAEO) is
authorized to make a written advance determination pursuant to 18
U.S.C. 208(b)(1) waiving the prohibitions of 18 U.S.C. 208(a) for any
Department employee except the Secretary and those employees in the
same organization as the DEAO, i.e., the Department's Office of Policy,
Management and Budget. The Secretary
[[Page 53726]]
or the Deputy Secretary shall issue individual waivers pursuant to 18
U.S.C. 208(b)(1) for employees in the Office of Policy, Management and
Budget.
(ii) In the case of a special Government employee serving on an
advisory committee within the meaning of the Federal Advisory Committee
Act, 5 U.S.C. App. (including an individual being considered for an
appointment to such a position), the DAEO, after review of the
financial disclosure report filed by the individual pursuant to the
Ethics in Government Act of 1978, 5 U.S.C. App., is authorized to
certify in writing that the need for the individual's services
outweighs the potential for a conflict of interest created by the
financial interest involved.
(iii) The DAEO may grant a waiver under 5 CFR 3501.103(e) from the
regulatory restrictions at 5 CFR 3501.103 (b) and (c).
(3) Divestiture of the interest. An employee may be required to
divest an interest, including outside employment, that is prohibited by
law or regulation. Divestiture of the interest shall be ordered in all
situations where it is determined by the appropriate official that
there is no other satisfactory remedy. Evidence of divestiture must be
provided in the form of broker's sale receipt or other appropriate
document.
Note to paragraph (b)(3): It may be possible in certain cases
for the tax consequences of divestiture to be delayed, if the
interest is sold pursuant to a certificate of divestiture issued
before the sale by the Director, U.S. Office of Government Ethics.
See 5 CFR part 2634, subpart J.
(c) Authority to order remedial action. (1) Each bureau Ethics
Counselor is authorized to order remedial actions within his or her
bureau. The advice of the appropriate Regional Solicitor, the Associate
Solicitor--Division of General Law, or the Designated Agency Ethics
Official or his or her designee may be sought before such an order is
issued. This authority to order remedial action may not be redelegated.
(2) The Deputy Assistant Secretary for Policy is authorized to
order remedial actions for employees within the Office of the
Secretary, except that the Secretary shall order remedial actions in
situations involving the Deputy Secretary.
(d) An employee who fails to comply with an order for remedial
action is considered to be in violation of this part and shall be
subject to disciplinary action.
Sec. 20.603 Appealing an order for remedial action.
(a) When and how to appeal. An employee has the right to appeal an
order for remedial action under Sec. 20.602, and shall have 30 days
from the date of the remedial action order to exercise this right
before any disciplinary action may be initiated. For appeals of
remedial orders issued under Sec. 20.602, the procedures described in
370 DM 771 may not be used in lieu of or in addition to those of this
section. Each appeal shall be in writing and shall contain:
(1) The basis for appeal;
(2) Fact(s) supporting the basis; and
(3) The telephone number where appellant can be reached to discuss
facts pertinent to the appeal.
(b) Where to appeal. (1) Orders for remedial action issued by an
Ethics Counselor may be appealed to the Deputy Secretary, whose
decision shall be final.
(2) Orders for remedial action issued by the Deputy Secretary may
be appealed to the Secretary, whose decision shall be final.
(c) Review Board analysis and recommendations. (1)(i) Each appeal
shall be considered by a Review Board consisting of:
(A) A program Assistant Secretary selected by the Designated Agency
Ethics Official;
(B) The Associate Solicitor or the Deputy Associate Solicitor,
Division of General law; and
(C) The Director or Deputy Director of the Departmental Office of
Personnel within the Department.
(ii) Assistant Secretaries may delegate authority to serve on the
Review Board to a Deputy Assistant Secretary who has not been involved,
and who has not advised or made a decision on the issue or on the order
for remedial action.
(2) The Deputy Agency Ethics Official or his or her assistant shall
serve as secretary to the Review Board, except for cases in which he or
she has previously participated. In such cases, the Review Board shall
designate an employee who has not previously been involved with the
case to serve as secretary.
(3) The Review Board members shall: (i) Obtain from the appropriate
ethics counselor a full statement of actions and considerations which
led to the order for remedial action including any supporting
documentation or files used by the Ethics Counselor.
(ii) Obtain from the employee all facts, information, exhibits for
documents which he or she feels should be considered before a final
decision is made.
(iii) The secretary to the Review Board shall prepare a summary of
the facts pertinent to the appeal. When appropriate, the Review Board
may provide for personal appearance by the appellant before the Review
Board if necessary to ascertain the circumstances concerning the appeal
or may designate the Review Board secretary or another employee to
conduct further fact finding, or may do both. Fact finding procedures
shall be carried out by a person(s) who:
(A) Has not been involved in the matter being appealed; and
(B) Does not occupy a position subordinate to any official who
recommended, advised, made a decision on, or who otherwise is or was
involved in, the matter being appealed.
(iv) Establish a file containing all documents related to the
appeal, which shall be available to the appellant and his or her
representative.
(v) Provide to the official who will decide the appeal an advisory
recommendation on the appeal. The views of dissenting members of the
Review Board shall also be provided.
(d) Assurances to the appellant. Each appellant is assured of:
(1) Freedom from restraint, interference, coercion, discrimination
or reprisal in presenting an appeal;
(2) A reasonable amount of official time to present the appeal if
the employee is otherwise in a duty status;
(3) The right to obtain counseling from an ethics counselor of the
Department; and
(4) The right to be accompanied, represented, and advised by a
representative of his or her own choosing, except that the Review Board
may disallow the choice of an individual as a representative if such
representation would result in a conflict of interest or position,
would conflict with the priority needs of the Department, or which
would give rise to unreasonable costs to the Government.
(e) Assurances to the appellant's representative. Each person
chosen to represent an appellant is assured of:
(1) Freedom from restraint, interference, coercion, discrimination
or reprisal; and
(2) A reasonable amount of official time to present the appeal if
the representative is an employee of the Department and is otherwise in
a duty status.
[FR Doc. 97-27069 Filed 10-15-97; 8:45 am]
BILLING CODE 4310-10-M
