2010-23564. Supplemental Standards of Ethical Conduct for Employees of the Special Inspector General for Iraq Reconstruction

AGENCY:

Special Inspector General for Iraq Reconstruction.

ACTION:

Final rule.

SUMMARY:

The Special Inspector General for Iraq Reconstruction (SIGIR), with the concurrence of the Office of Government Ethics (OGE), is publishing a final regulation for employees of the SIGIR that supplements the executive-branch-wide Standards of Ethical Conduct (Standards) issued by OGE. With certain exceptions, this supplemental regulation requires SIGIR employees, except special Government employees, to obtain approval before engaging in outside employment.

DATES:

This final rule is effective September 22, 2010.

FOR FURTHER INFORMATION CONTACT:

Michael H. Mobbs, Deputy General Counsel, Telephone- 703-604-0429; e-mail—[e-mail].

SUPPLEMENTARY INFORMATION:

Background

In 1992, OGE published Standards of Ethical Conduct for Employees of the Executive Branch (Standards) which became effective on February 3, 1993. The Standards, as corrected and amended, are codified at 5 CFR part 2635. The Standards set uniform ethical conduct standards applicable to all executive branch personnel. Section 2635.105 of the Standards authorizes agencies, with the concurrence of OGE, to publish agency-specific supplemental regulations that are necessary to properly implement their respective ethics programs. The SIGIR, with OGE's concurrence, published an interim rule in the Federal Register on June 24, 2010, requesting comments to be received by August 23, 2010. The SIGIR received no comments. Accordingly, SIGIR has adopted the interim rule as final.

Analysis of the Regulations

Section 9201.101 General

Section 9201.101 explains that the regulations in part 9201 apply to employees of the SIGIR and supplement the OGE Standards. This section also includes cross-references to other issuances applicable to SIGIR employees, including the regulations concerning executive branch financial disclosure, financial interests, and employee responsibilities and conduct, as well as implementing SIGIR guidance and procedures issued in accordance with OGE Standards.

Section 9201.102 Prior Approval for Outside Employment and Other Outside Activities

In accordance with 5 CFR 2635.803, the SIGIR has determined it is necessary for the purpose of administering its ethics program to require its employees to obtain approval before engaging in outside employment or activities. This approval requirement will help to ensure that potential ethical problems are resolved before employees begin outside employment or activities that could involve a violation of applicable statutes and standards of conduct.

Section 9201.102(a) provides that a SIGIR employee, other than a special Government employee, must obtain advance written approval from the employee's supervisor and the concurrence of the Designated Agency Ethics Official (DAEO) or alternate DAEO before engaging in any outside employment except to the extent that the SIGIR DAEO or alternate DAEO has issued an instruction or manual pursuant to paragraph (e) of this section exempting an activity or class of activities from this requirement.

Section 9201.102(b) broadly defines outside employment to cover any form of non-Federal employment or business relationship involving the provision of personal services, whether or not for compensation, other than the discharge of official duties. It includes writing when done under an arrangement with another person or entry for production or publication of the written product. It does not, however, include participation in the activities of non-profit charitable, religious, professional, social, fraternal, educational, recreational, public service, or civic organizations, unless such activities are for compensation other than reimbursement of expense, the organization's activities are devoted substantially to matters relating to the employee's official duties as defined in 5 CFR 2635.807(a)(2)(i)(B) through (E) and the employee will serve as an officer or director of the organization, or the activities will involve the provision of consultative or professional services. Consultative services means the provision of personal services by an employee, including the rendering of advice or consultation, which requires advanced knowledge in a field of science or learning customarily acquired by a course of specialized instruction and study in an institution of higher education, hospital, or similar facility. Professional services means the provision of personal services by an employee, including the rendering of advice or consultation, which involves application of the skills of a profession as defined in 5 CFR 2636.305(b)(1) or involves a fiduciary relationship as defined in 5 CFR 2636.305(b)(2). A note following paragraph (b) of § 9201.102 pertains to the special approval requirement set out in both 18 U.S.C. 203(d) and 205(e) respectively, for certain representational activities otherwise covered by the conflict of interest restrictions on compensation and activities of employees in claims against and other matters affecting the Government. The note explains that an employee who wishes to act as agent or attorney for, or otherwise represent his parents, spouse, child, or any person for whom, or any estate for which, he is serving as guardian, executor, administrator, trustee or other personal fiduciary in such matters must obtain the approval required by law of the Government official responsible for the employee's appointment in addition to the regulatory approval required in § 9201.102.

Section 9201.102(c) sets out the procedures for requesting prior approval to engage in outside employment initially, or within seven calendar days of a significant change in the nature or scope of the outside employment or the employee's official position.

Section 9201.102(d) sets out the standard to be applied by the employee's supervisor and the DAEO or alternate DAEO in acting on requests for prior approval of outside employment as broadly defined by 9201.102(b). Approval shall be granted only upon a determination that the outside employment is not expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635.

Section 9201.102(e) provides that the SIGIR DAEO or alternate DAEO can issue instructions or manual issuances governing the submission of requests for approval of outside employment, which may exempt categories of employment from the prior approval requirement of this section based on a determination that employment within those categories would generally be approved and is not likely to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635. The instructions or issuances may include examples of outside employment that are permissible or impermissible consistent with this part and 5 CFR part 2635.

Administrative Procedure Act

Pursuant to 5 U.S.C. 553(b) the SIGIR found good cause existed for waiving the general notice of proposed rulemaking and opportunity for public comment as to the interim rule. Notice and comment before the effective date were waived because the rule concerns matters of agency organization, practice and procedure. Written comments were invited to be submitted prior to August 24, 2010, 60 days after the publication of the interim rule; however no comments were received.

Executive Orders 12866 and 12988

Because this rule relates to SIGIR personnel, it is exempt from the provisions of Executive Orders Nos. 12866 and 12988.

Regulatory Flexibility Act

SIGIR has determined, pursuant to the Regulatory Flexibility Act, 5 U.S.C. chapter 6, that this rulemaking will not have a significant economic impact on a substantial number of small entities because it primarily affects SIGIR employees.

Paperwork Reduction Act

The Paperwork Reduction Act, 44 U.S.C. chapter 35, does not apply because this rulemaking does not contain information collection requirements subject to the approval of the Office of Management and Budget.

Congressional Review Act

SIGIR has determined that this rule is not a rule as defined in 5 U.S.C. 804, and thus, does not require review by Congress.

List of Subjects in 5 CFR Part 9201

• Conflict of interest
• Government employees

Accordingly, for the reasons set forth in the preamble, the Special Inspector General for Iraq Reconstruction, with the concurrence of the Office of Government Ethics, is adopting the interim rule published at 75 FR 35957 on June 24, 2010, as final without change.

Stuart W. Bowen, Jr.,

Special Inspector General for Iraq Reconstruction.

Approved: June 10, 2010.

Robert I. Cusick,

Director, Office of Government Ethics.