[Federal Register Volume 62, Number 85 (Friday, May 2, 1997)]
[Rules and Regulations]
[Pages 23941-23943]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-11476]



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 Rules and Regulations
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  Federal Register / Vol. 62, No. 85 / Friday, May 2, 1997 / Rules and 
Regulations  

[[Page 23941]]


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DEPARTMENT OF JUSTICE

5 CFR Part 3801

28 CFR Part 45

RIN 3209-AA15


Supplemental Standards of Ethical Conduct for Employees of the 
Department of Justice

AGENCY: Department of Justice (Department).

ACTION: Final rule.

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SUMMARY: The Department of Justice, with the concurrence of the Office 
of Government Ethics (OGE), is issuing a final rule for Department 
employees as a supplement to the Uniform Standards of Ethical Conduct 
for Employees of the Executive Branch (Uniform Standards) issued by 
OGE. The regulations established by the final rule, which adopt the 
prior interim regulations as final with two minor changes, are a 
necessary supplement to the Uniform Standards because they address 
statutory requirements and issues that are unique to the Department. 
The Department is also finalizing the revision of its residual employee 
responsibilities regulation, with certain changes.

EFFECTIVE DATE: May 2, 1997.

FOR FURTHER INFORMATION CONTACT:
Mary Braden, U.S. Department of Justice, Justice Management Division, 
Departmental Ethics Office, (202) 514-8196.

SUPPLEMENTARY INFORMATION:

I. Rulemaking History

    On August 7, 1992, the Office of Government Ethics published the 
Uniform 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) and 61 FR 50689-50691 (interim rule revisions 
adopted as final at 62 FR 12531), with additional grace period 
extensions at 59 FR 4779-4780, 60 FR 6390-6391, 60 FR 66857-66858, and 
61 FR 40950-40952. The Uniform Standards, codified at 5 CFR part 2635 
and effective February 3, 1993, established uniform standards of 
ethical conduct for executive branch personnel. Pursuant to E.O. 12674 
(54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 
FR 42547, 3 CFR, 1990 Comp., p. 306) and 5 CFR 2635.105, executive 
branch agencies may issue agency-specific regulations, with the 
concurrence of OGE, that supplement the Uniform Standards. After 
considering its unique operations, the Department, with the concurrence 
of OGE, has determined that the regulations established by the final 
rule, based on the prior interim rule with two minor changes, are 
necessary to implement the Department's ethics program successfully.

II. Comments

    On November 25, 1996, the Department, with the concurrence of OGE, 
issued interim supplemental standards regulations. See 61 FR 59811-
59815, which provided for a 45-day comment period that ended January 9, 
1997. We received only one comment on the interim rule. The comment was 
in regard to 5 CFR 3801.106 of the interim rule dealing with outside 
employment. Section 3801.106(b)(1)(i) of the interim rule, which 
generally prohibits outside employment that involves the practice of 
law, contains an exception for the practice of law on behalf of certain 
family members, specifically, the employee, his parents, spouse, or 
minor children. The commenter noted that the regulation did not conform 
to the exceptions for representing family members found in 18 U.S.C. 
203(d) and 205(e). 18 U.S.C. 203 and 205 generally prohibit an employee 
from acting as agent or attorney for anyone, with or without 
compensation, before any agency or court of the United States on a 
matter in which the United States is a party or has a direct and 
substantial interest. Exceptions in these two statutes permit 
representations on behalf of the employee's parents, spouse, child and 
certain other persons. There is no qualification that the child must be 
a minor in the language of these statutes. Therefore, we agree with the 
commenter that the regulation should conform to the representational 
statutes and have been told that the Office of Government Ethics has no 
objection to our amending the rule by removing the word ``minor'' which 
appears before the word ``children'' in 5 CFR 3801.106(b)(1)(i). For 
ease of reference, the Department is publishing in this rulemaking 
document the part 3801 regulation in its entirety.

III. Additional Changes to 28 CFR Part 45

    We are also making two additional changes to the Department's 
agency conduct regulations at 28 CFR part 45, as revised in the prior 
interim rule. First, in addition to the sections the Department 
repealed because they were superseded by the Uniform Standards, we are 
now also repealing previously redesignated and amended Sec. 45.3 (old 
Sec. 45.735-5(b)), because it was superseded by regulations at 5 CFR 
part 2640 which the Office of Government Ethics issued as a final rule 
on December 18, 1996, 61 FR 66830-66851 (part III), as corrected at 62 
FR 1361 (January 9, 1997), and which became effective January 17, 1997.
    Second, pursuant to 5 U.S.C. 301, we are publishing a Department 
rule at 28 CFR 45.4 which was issued earlier as policy on April 21, 
1995. This rule authorizes Department of Justice office and library 
equipment and facilities. This policy has actually been in effect in a 
modified form since 1989. We believe that it is reasonable to authorize 
employees to make certain limited personal use of Department property 
as long as managers have the right to limit or revoke such use should 
it interfere with the conduct of official business. We have also 
amended 5 CFR 3801.105 which refers employees to the Department policy 
authorizing certain use of Department property to refer instead to 28 
CFR 45.4.

IV. Matters of Regulatory Procedure

Executive Order 12866

    In promulgating this final regulation, the Department of Justice 
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 the Executive Order, it

[[Page 23942]]

deals with agency organizational, management, and personnel matters and 
is not in any event, deemed ``significant'' thereunder.

Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act, 5 U.S.C. chapter 6, as 
Assistant Attorney General for Administration of the Department of 
Justice, I have determined that this regulation will not have a 
significant economic impact on a substantial number of small entities, 
because it affects only Department of Justice employees.

Paperwork Reduction Act

    As Assistant Attorney General for Administration of the Department 
of Justice, I have determined that the Paperwork Reduction Act, 44 
U.S.C. chapter 35, does not apply to the regulation established by the 
final rule, because the regulation does not contain any information 
collection requirements that require the approval of the Office of 
Management and Budget.

List of Subjects in 5 CFR Part 3801 and 28 CFR Part 45

    Conflicts of interest, Executive branch standards of conduct, 
Government employees.

    Dated: April 23, 1997.
Stephen R. Colgate.
Assistant Attorney General for Administration, Department of Justice.

    Approved: April 25, 1997.
Stephen D. Potts,
Director, Office of Government Ethics.

    Accordingly, for the reasons set forth in the preamble, the 
Department of Justice, with the concurrence of the Office of Government 
Ethics, is amending title 5 of the Code of Federal Regulations and the 
Department is also amending title 28 of the Code of Federal Regulations 
as follows:

TITLE 5--[AMENDED]

CHAPTER XXVIII--DEPARTMENT OF JUSTICE

    1. Part 3801 is revised to read as follows:

PART 3801--SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES 
OF THE DEPARTMENT OF JUSTICE

Sec.
3801.101  General.
3801.102  Detailed or assigned special agents of certain 
Departmental components.
3801.103  Designation of separate Departmental components.
3801.104  Purchase or use of certain forfeited and other property.
3801.105  Personal use of Government property.
3801.106  Outside employment.

    Authority: 5 U.S.C. 301, 7301; 5 U.S.C. App. (Ethics in 
Government Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., 
p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., 
p. 306; E.O. 12988, 61 FR 4739; 5 CFR 2635.105, 2635.203(a), 
2635.403(a), 2635.701-2635.705, 2635.803, 2635.807(a)(2)(ii); and 
DOJ Order 1735.1.


Sec. 3801.101  General.

    In accordance with Sec. 2635.105 of this title, the regulations in 
this part apply to employees of the Department of Justice and 
supplement the Standards of Ethical Conduct for Employees of the 
Executive Branch in part 2635 of this title. In addition to the 
regulations contained in part 2635 of this title and in this part, 
employees are subject to the conduct regulations contained in part 735 
of this title and 28 CFR part 45.


Sec. 3801.102  Detailed or assigned special agents of certain 
Departmental components.

    Notwithstanding a detail or assignment to another entity, any 
special agent of the Federal Bureau of Investigation or Drug 
Enforcement Administration who is subject to the regulations or 
standards of ethical conduct of that entity pursuant to Sec. 2635.104 
of this title shall also remain subject to the regulations in this 
part.


Sec. 3801.103  Designation of separate Departmental components.

    (a) Pursuant to Sec. 2635.203(a) of this title, each of the 
following components is designated as a separate agency for purposes of 
the regulations contained in subpart B of part 2635 of this title 
governing gifts from outside sources, and, accordingly, Sec. 2635.807 
of this title governing teaching, speaking, and writing:

Antitrust Division
Bureau of Prisons
    (including Federal Prison Industries, Inc.)
Civil Division
Civil Rights Division
Community Relations Service
Criminal Division
Drug Enforcement Administration
Environment and Natural Resources Division
Executive Office for Immigration Review
Executive Office for United States Attorneys
    (The Executive Office for United States Attorneys shall not be 
considered separate from any Office of the United States Attorney 
for a judicial district, but only from other designated components 
of the Department of Justice.)
Executive Office for United States Trustees
    (The Executive Office for United States Trustees shall not be 
considered separate from any Office of the United States Trustee for 
a region, but only from other designated components of the 
Department of Justice.)
Federal Bureau of Investigation
Foreign Claims Settlement Commission
Immigration and Naturalization Service
Independent Counsel appointed by the Attorney General
INTERPOL
National Drug Intelligence Center
Justice Management Division
Office of Information and Privacy
Office of Intelligence Policy and Review
Office of Community Oriented Policing Services
Office of Justice Programs
Office of the Pardon Attorney
Office of Policy Development
Offices of the United States Attorney (94)
    (Each Office of the United States Attorney for a judicial 
district shall be considered a separate component from each other 
such office.)
Offices of the United States Trustee (21)
    (Each Office of the United States Trustee for a region shall be 
considered a separate component from each other such office.)
Tax Division
United States Marshals Service
United States Parole Commission

    (b) Employees serving in positions within the Department but 
outside of the components designated in paragraph (a) of this section 
must continue to treat the entire Department of Justice as their 
employing agency for purposes of the gift rules of subpart B of part 
2635 of this title and the application of the teaching, speaking and 
writing provisions found in Sec. 2635.807 of this title.


Sec. 3801.104  Purchase or use of certain forfeited and other property.

    (a) In the absence of prior approval by the agency designee, no 
employee shall purchase, directly or indirectly, from the Department of 
Justice or its agents property forfeited to the United States and no 
employee shall use property forfeited to the United States which has 
been purchased, directly or indirectly, from the Department of Justice 
or its agents by his spouse or minor child. Approval may be granted 
only on the basis of a written determination by the agency designee 
that in the mind of a reasonable person with knowledge of the 
circumstances, purchase or use by the employee of the asset will not 
raise a question as to whether the employee has used his official 
position or nonpublic information to obtain or assist in an 
advantageous purchase or create an appearance of loss of impartiality 
in the performance of the employee's duties. A copy of the written 
determination shall be filed with the Deputy Attorney General.
    (b) No employee of the United States Marshals Service, Federal 
Bureau of Investigation, or Drug Enforcement

[[Page 23943]]

Administration shall purchase, directly or indirectly, from his 
component, the General Services Administration, or the agent of either, 
property formerly used by that component and no such employee shall use 
property formerly used by his component which has been purchased, 
directly or indirectly, by his spouse or minor child from his 
component, the General Services Administration, or to the agent of 
either.


Sec. 3801.105  Personal use of Government property.

    Employees are prohibited by part 2635 of this title from using 
Government property for other than authorized purposes. The Department 
rule authorizing limited personal use of Department of Justice office 
and library equipment and facilities by its employees is at 28 CFR 
45.4.


Sec. 3801.106  Outside employment.

    (a) Definition. For purposes of this section, outside employment 
means any form of employment, business relationship or activity, 
involving the provision of personal services whether or not for 
compensation, other than in the discharge of official duties. It 
includes, but is not limited to, services as a lawyer, officer, 
director, trustee, employee, agent, consultant, contractor, or general 
partner. Speaking, writing and serving as a fact witness are excluded 
from this definition, so long as they are not combined with the 
provision of other services that do fall within this definition, such 
as the practice of law. Employees who wish to engage in compensated 
speaking and writing should review Sec. 2635.807 of this title.
    (b) Prohibitied outside employment. (1) No employee may engage in 
outside employment that involves:
    (i) The practice of law, unless it is uncompensated and in the 
nature of community service, or unless it is on behalf of himself, his 
parents, spouse, or children;
    (ii) Any criminal or have as corpus matter, be it Federal, State, 
or local; or
    (iii) Litigation, investigations, grants or other matters in which 
the Department of Justice is or represents a party, witness, litigant, 
investigator or grant-maker.
    (2) Where application of the restrictions of paragraph (b)(1) of 
this section will cause undue personal or family hardship; unduly 
prohibit an employee from completing a professional obligation entered 
into prior to Government service; or unduly restrict the Department 
from securing necessary and uniquely specialized services, the 
restrictions may be waived in writing based upon a determination that 
the activities covered by the waiver are not expected to involve 
conduct prohibited by statute or Federal regulation. Employees should 
refer to DOJ Order 1735.1 on obtaining waivers. The Order is available 
from the agency designee which, for purposes of this rule, shall be the 
Deputy Designated Agency Ethics Official for the component.
    (c) Prior approval for outside employment. (1) An employee must 
obtain written approval before engaging in outside employment, not 
otherwise prohibited by paragraph (b) of this section that involves:
    (i) The practice of law; or
    (ii) A subject matter, policy,or program that is in his component's 
area of responsibility.
    (2) Employees should refer to DOJ Order 1735.1 for procedures on 
obtaining prior approval. A waiver granted pursuant to paragraph (b)(2) 
of this section will be sufficient to satisfy this prior approval 
requirement.
    (3) Approval shall be granted only upon a determination that the 
outside employment is not expected to involve conduct that is 
prohibited by statute or Federal regulation.

TITLE 28--[AMENDED]

CHAPTER I--DEPARTMENT OF JUSTICE

PART 45--[AMENDED]

    2. The authority citation for part 45 is revised to read as 
follows:

    Authority: 5 U.S.C. 301, 7301; 18 U.S.C. 207; 28 U.S.C. 503, 
528; DOJ Order 1735.1.

    3. Section 45.1 is republished to read as follows:


Sec. 45.1  Cross-reference to ethical standards and financial 
disclosure regulations.

    Employees of the Department of Justice are subject to the executive 
branch-wide Standards of Ethical Conduct at 5 CFR part 2635, the 
Department of Justice regulations at 5 CFR part 3801 which supplement 
the executive branch-wide standards, the executive branch-wide 
financial disclosure regulations at 5 CFR part 2634 and the executive 
branch-wide employee responsibilities and conduct regulations at 5 CFR 
part 735.


Sec. 45.3  [Removed]


Sec. 45.4  [Redesignated as Sec. 45.3]

    4. Section 45.3 is removed and Sec. 45.4 is redesignated as 
Sec. 45.3.
    5. A new Sec. 45.4 is added to read as follows:


Sec. 45.4  Personal use of Government property.

    (a) Employees may use Government property only for official 
business or as authorized by the Government. See 5 CFR 2635.101(b)(9), 
2635.704(a). The following uses of Government office and library 
equipment and facilities are hereby authorized:
    (1) Personal uses that involve only negligible expense (such as 
electricity, ink, small amounts of paper, and ordinary wear and tear); 
and
    (2) Limited personal telephone/fax calls to locations within the 
office's commuting area, or that are charged to non-Government 
accounts.
    (b) The foregoing authorization does not override any statutes, 
rules, or regulations governing the use of specific types of Government 
property (e.g. internal Departmental policies governing the use of 
electronic mail; and 41 CFR (FPMR) 101-35.201, governing the authorized 
use of long-distance telephone services), and may be revoked or limited 
at any time by any supervisor or component for any business reason.
    (c) In using Government property, employees should be mindful of 
their responsibility to protect and conserve such property and to use 
official time in an honest effort to perform official duties. See 5 CFR 
2635.101(b)(9), 2635.704(a), 2635.705(a).

[FR Doc. 97-11476 Filed 5-1-97; 8:45 am]
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