[Federal Register Volume 65, Number 30 (Monday, February 14, 2000)]
[Rules and Regulations]
[Pages 7275-7281]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-3346]



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  Federal Register / Vol. 65, No. 30 / Monday, February 14, 2000 / 
Rules and Regulations  

[[Page 7275]]



OFFICE OF GOVERNMENT ETHICS

5 CFR Part 2638

RIN 3209-AA07


Executive Agency Ethics Training Programs Regulation Amendments

AGENCY: Office of Government Ethics (OGE).

ACTION: Interim rule.

-----------------------------------------------------------------------

SUMMARY: In this interim rule, OGE has rewritten its executive branch 
agency ethics training regulation in plain language. This rule also 
addresses the comments OGE received regarding the two substantive 
changes made by the previous interim training regulation.
    The training regulation requires that covered employees who file 
public financial disclosure reports receive verbal ethics training 
every year presented by a qualified instructor who is available to 
respond to ethics questions. This rule clarifies that the instructor is 
not required to be at the training site. This rule, like the previous 
interim rule, also permits agencies to meet the annual ethics training 
requirement for all other covered employees with annual written 
training, provided these employees receive verbal ethics training at 
least one out of every three calendar years. Although the substance of 
this rule is nearly identical to the previous interim rule, the rule 
does make certain minor changes as a result of comments received by 
OGE.

DATES: This interim regulation is effective March 15, 2000. Comments by 
agencies and the public are invited and are due by May 15, 2000.

ADDRESSES: Send comments to the Office of Government Ethics, Suite 500, 
1201 New York Avenue, NW., Washington, DC 20005-3917, Attention: 
Arielle H. Grill. Comments may also be sent electronically to OGE's 
Internet E-mail address at [email protected]. For E-mail messages, the 
subject line should include the following reference--``Comments on the 
Executive Agency Ethics Training Programs Regulation Amendments.''

FOR FURTHER INFORMATION CONTACT: Arielle H. Grill, Attorney-Advisor, 
Office of the General Counsel and Legal Policy, Office of Government 
Ethics; telephone: 202-208-8000, extension 1219; TDD: 202-208-8025; 
FAX: 202-208-8037.

SUPPLEMENTARY INFORMATION:

I. Background

    On March 12, 1997, OGE published an interim rule amending subpart G 
of 5 CFR part 2638, ``Executive Agency Ethics Training Programs'' 
(Training Regulation). See 62 FR 11307-11314. Minor corrections to the 
rule were issued on March 19, 1997, 62 FR 13213, and March 27, 1997, 62 
FR 14737. Most provisions of the rule became effective on June 10, 
1997. Interested persons were asked to submit comments by April 11, 
1997.
    The most significant revisions that the 1997 interim rule 
amendments made to the Training Regulation were in the area of annual 
ethics training to be provided to certain covered employees. The prior 
version of the Training Regulation required agencies to provide annual 
verbal ethics training to all covered employees. However, the interim 
rule amendments permitted agencies to fulfill this requirement for most 
covered employees by means of written training, provided that the 
employees receive verbal training at least once every three calendar 
years. The interim rule did require agencies to continue to provide 
annual verbal training to employees who file public financial 
disclosure forms (``public filers''). On January 1, 1998, agencies 
became subject to a further requirement that a qualified instructor be 
present during and immediately following the annual ethics training 
provided to public filers.
    As stated in the preamble to the 1997 interim rule amendments, the 
changes made by the amendments were not intended to enable agencies to 
diminish the resources that they devote to ethics training. The interim 
rule was structured to minimize the impact of OGE-mandated training, 
focusing more intensive training on those employees in sensitive 
positions (public filers) while ensuring that all executive branch 
employees receive sufficient training to enable them to understand the 
ethical responsibilities concomitant with their Government positions. 
By lessening the level of OGE-mandated verbal ethics training, agencies 
are able to reallocate their ethics training resources for use in other 
parts of their ethics training programs.

II. Plain Language Modifications

    Executive Order 12866 and the President's Memorandum of June 1, 
1998 require Federal agencies to write all new rules in plain language. 
In keeping with the spirit of the President's Memorandum, we have 
attempted to rewrite this new interim rule in plain language by: 
organizing the material more logically; using shorter sentences; 
eliminating unnecessary technical language; stating the rule's 
requirements clearly; and using tables to summarize information. We 
invite your comments as to whether this interim rule is easier to 
understand and how we could further improve its clarity. This plain 
language version of the previous interim rule makes only nonsubstantive 
changes to the rule. The following discussion summarizes some of the 
more significant changes that the plain language revision has made.
    This interim rule is organized differently than the previous rule. 
We have avoided numbering subordinate paragraphs past the second level 
(except for the rows of the helpful tables at new Sec. 2638.706(c)). 
Thus, this rule has a Sec. 2638.703(a)(1) but not a 
Sec. 2638.703(a)(1)(i) or a Sec. 2638.703(a)(1)(i)(A). We believe this 
change makes it easier to follow the rule. We have, however, added two 
sections to the rule. One new section (Sec. 2638.702) provides 
definitions of terms used throughout this subpart. The other new 
section is a result of our dividing the annual training requirement 
into two sections: one for public filers (Sec. 2638.704) and one for 
all other covered employees (Sec. 2638.705). Because the training 
requirements are different for these two groups of employees, we 
believe this format clarifies the different requirements for each.
    While the previous interim rule referred to verbal and written 
ethics ``briefings,'' this rule uses the term ethics ``training.'' This 
substitution was made because briefing is a more technical, legal term 
and training is a

[[Page 7276]]

more commonly used and understood term.
    We have deleted the discussion in existing Sec. 2638.701 of the 
particular provisions of law that are to be covered by ethics training. 
We believe that this information is redundant as it is also stated in 
new Sec. 2638.704(b) which addresses the content of ethics training. 
Section 2638.704(b)(5) (and Sec. 2638.703(b)) requires that the agency 
provide covered employees with the office addresses and telephone 
numbers of the Designated Agency Ethics Official (DAEO) and other 
agency ethics officials. Although not required, the E-mail addresses of 
such persons may also be given to covered employees.
    This interim rule does not contain the discussion of the 
responsibilities of the DAEO found in previous Sec. 2638.702(a) and 
(b). The DAEO's responsibilities are clearly delineated earlier in part 
2638 at Sec. 2638.203. Section 2638.203(a)(3) states that the DAEO must 
initiate and maintain an ethics education and training program. We 
believe this section requires the DAEO to be responsible for all 
aspects of the agency's ethics training program. Aside from the 
discussion of the DAEO's duties, we are moving the remaining material 
(concerning the agency's written training plan) from the existing 
Sec. 2638.702(c) to the new rule's Sec. 2638.706. While the 
requirements for the agency's written training plan are identical in 
this rule, we have provided tables in Sec. 2638.706(c)(2)-(c)(4) to 
assist agencies in determining the number of employees they plan to 
train in each upcoming calendar year.
    We are eliminating the statement in existing Sec. 2638.702(c) that, 
in preparing its written training plan, an agency must ``coordinate 
with OGE where necessary.'' We believe that wording is unnecessary 
because agencies are always welcome to consult with OGE on any ethics-
related matter, regardless of a published regulation.
    We have renamed the person who is authorized to conduct ethics 
training. The previous interim rule referred to that person as a 
``qualified individual.'' This rule refers to that person as a 
``qualified instructor'' in order to make it clearer that the person 
must be qualified to teach, or prepare the material for, ethics 
training courses. In addition, this interim rule requires that the 
qualified instructor be ``available'' during and after the training 
provided to public filers. See Sec. 2638.704(d). The previous interim 
rule required the instructor's ``presence,'' which caused confusion as 
to whether the instructor must be physically present at the training 
site. Use of the term ``available'' clarifies that the instructor's 
physical presence is not required. As explained in the examples 
following Sec. 2638.704(d), an instructor is ``available'' if he or she 
is connected to the training site through a video or telephone link.
    The following distribution table shows where the material from the 
previous interim rule can be found in this new interim rule. It also 
indicates the sections from the previous rule that have been removed, 
as discussed above.

------------------------------------------------------------------------
               Old section                          New section
------------------------------------------------------------------------
2638.701 (1st sentence)..................  Removed.
2638.701 (2nd sentence)..................  2638.701.
2638.701 (3rd sentence)..................  2638.702 (Employee
                                            definition).
2638.702 introductory text...............  Removed.
2638.702(a)..............................  Removed.
2638.702(b)(1st sentence)................  Removed.
2638.702(b)(2nd sentence)................  2638.704(d).
2638.702(c)..............................  2638.706.
2638.703.................................  2638.703.
2638.704(a)-(b)..........................  2638.704(a); 2638.705(a).
2638.704(c)..............................  2638.704(b); 2638.705(b).
2638.704(d)(1)...........................  2638.704(c); 2638.705(c).
2638.704(d)(2)(i)........................  2638.704(c).
2638.704(d)(2)(ii) (& Examples 1-3 to      2638.704(d) & Examples 1-3 to
 para. (d)(2)(ii)).                         para. (d)).
                                           2638.704(d)(2)(iii) (&
                                            Example 1 to para.
                                            (d)(2)(iii)(A)) 2638.704(e)
                                            (& Example to para. (e)(1)).
2638.704(d)(3)(i)........................  2638.705(c)(2).
2638.704(d)(3)(ii).......................  2638.705(c)(1).
2638.704(d) (3)(iii).....................  2638.705(d).
  .......................................  2638.702 (new, except for
                                            Employee definition).
------------------------------------------------------------------------

III. Analysis of the Comments Received on the Prior Interim Rule

    The Office of Government Ethics received 15 comments in response to 
the 1997 interim rule amendments. Of these 15 comments, 13 were from 
Federal executive branch agencies, one was from an individual executive 
branch employee, and one was from an interagency group of ethics 
officials. Generally, the comments received by OGE were in favor of the 
changes made by the interim rule amendments. In particular, the 
comments supported the provision permitting agencies to fulfill the 
annual ethics training requirement for most covered employees through 
the use of written ethics training in two of any three calendar years. 
The Office of Government Ethics also received several positive 
responses to the deletion of ``procurement officials'' (no longer a 
defined category in light of changes to the procurement integrity law) 
from the categories of covered employees. After careful consideration 
of the comments received, OGE has decided to retain the interim rule 
amendments with minor changes. We do, however, invite further 
suggestions as to improvements in the ethics training program. This new 
interim rule will give agencies an additional opportunity to make such 
suggestions, as well as to comment on the new plain language format of 
the rule.
    An analysis of the comments received follows.

Verbal Ethics Training for Public Filers

    In the preamble to the interim rule amendments, OGE specifically 
invited comment as to whether it is appropriate to have stricter 
training requirements for public filers than for other covered 
employees. One agency indicated that it felt the distinction was 
unnecessary because, generally, public filers better understand and are 
more sensitive to their ethical responsibilities than other employees. 
However, two other agencies and the interagency group of ethics 
officials endorsed the annual verbal training requirement for public 
filers. After considering these views, and for the reasons originally 
stated in the preamble to the interim rule amendments at 62 FR 11308, 
we have decided to retain the requirement that public filers receive 
verbal training every year.
    The provision of the 1997 interim rule amendments that generated 
the greatest amount of comment was the requirement that agencies, 
effective January 1, 1998, have a qualified instructor ``present'' 
during and immediately following the annual training provided to public 
filers. Nine of the commenters addressed this section, with comments 
ranging from supportive to sharply critical. For the reasons given 
below, OGE has decided to retain the ``presence'' requirement. Notably, 
this interim rule substitutes the term ``available'' for the previous 
rule's term ``present.'' See new Sec. 2638.704(d).
    New Sec. 2638.704(d), which states that a qualified instructor must 
be available during and immediately after verbal training, does not 
require the instructor's physical presence at the training session. As 
noted, OGE has replaced the word ``present'' with ``available'' to 
clarify that the instructor need not be physically present at the 
training site. It is sufficient if some mode of telecommunications 
enables the instructor to answer employees' questions during and after 
the training. As in the existing regulation, the

[[Page 7277]]

examples that follow new Sec. 2638.704(d) illustrate the flexibility of 
this provision. Examples 1 and 2 show that a qualified instructor is 
available when the public filer receiving the ethics training has 
access to the instructor through a video conference link or telephone 
line. These examples demonstrate how agencies may take advantage of 
existing and new communication technologies that provide greater access 
and can substitute for actual physical presence.
    Two commenters indicated that providing employees with a set time 
to contact a qualified instructor should satisfy the requirement that a 
qualified instructor be available. After careful consideration, OGE has 
not adopted this proposal. The delay in time between the receipt of the 
training and the answer to the employee's question could easily result 
in a lost educational opportunity. Also, the use of a separate set time 
for contacting a qualified instructor may discourage employees from 
contacting agency ethics officials at other times. The primary purpose 
of the Training Regulation is not necessarily to provide agency 
employees with a comprehensive knowledge of all of the conduct-related 
laws and regulations that govern them. Rather, the rule is intended to 
create an awareness of those laws and to introduce the point of contact 
where employees can obtain further ethics advice. Agency employees are, 
therefore, given the names and telephone numbers of their ethics 
officials at the start of their employment. See new Sec. 2638.703(b). 
Covered employees must receive annual updates of this information as 
part of their annual ethics training. See new Sec. Sec. 2638.704(b)(5); 
2638.705(b).
    One agency, and one individual from that agency, stated that the 
previous interim rule amendments undermine the agency's use of 
computers for annual training. The agency felt that the advantage of 
computer-based training, such as the computer game that it had 
developed, lies in its flexibility. The agency pointed out that its 
game makes ethics training available at the employee's convenience, 
including off-duty hours and weekends, and can easily be distributed 
worldwide. Having developed the game with OGE's assistance, the agency 
felt that the usefulness of the game was undercut by the interim rule 
amendments because the planned implementation of the game would not 
meet the requirements of the regulation. The agency therefore urged 
that the presence requirement be deleted or, at a minimum, changed to 
once every three to five years. The individual submitting comments, 
while acknowledging that an agency can waive the requirement of a 
qualified instructor in certain situations, stated that the main 
problem with the requirement would be the loss of flexibility in having 
to complete the training at a set time, rather than at the employee's 
convenience.
    The points articulated by these two commenters concern the verbal 
training that agencies must provide to public filers. In the case of a 
covered employee other than a public filer, the computer game developed 
by the agency should meet the requirements of new Sec. 2638.705(c)(1) 
which does not require that a qualified instructor be available. 
Computer-based methods of training are specifically mentioned as 
fulfilling the requirement for verbal training in new 
Sec. 2638.705(c)(1). Thus, the game (and similar computer-based 
training) remains an excellent tool to fulfill the verbal ethics 
training requirement for the approximately 93% of covered employees who 
are not public filers. Similarly, the use of computer-based training is 
also an appropriate way for agencies to provide verbal training to the 
approximately 7% of covered employees who are public filers, provided 
that a qualified instructor is available to answer questions. New 
Sec. 2638.704(c)(2) specifically lists computer presentation as a means 
for fulfilling the verbal training requirement for public filers. The 
two commenters, however, felt that making a qualified instructor 
available to public filers undermines the primary benefit of the 
computer game: its flexibility. For the following reasons, we disagree.
    First, as stated above, ethics training is most effective when 
employees are provided with spontaneous answers to their questions. A 
delay in time between question and answer could result in an employee 
forgetting to ask the question and could discourage the employee from 
taking the initiative to contact the instructor. In keeping with this 
philosophy, an agency could use a computer game to provide public 
filers with training through their workstation computers. Employees 
could be given a specific time reserved for accessing the computer game 
when a qualified instructor is standing by to respond to any questions 
concerning the game or other ethics issues. This specific scheduled 
time would not prevent the public filer from accessing the computer 
game at any other time but would ensure that the public filer receives 
the required one hour of official duty time for the training. The 
official duty time requirement is a long-standing one, having been in 
existence from the inception of the Training Regulation. Since the 1992 
promulgation of the original Training Regulation final rule, OGE 
program reviews have not indicated that agencies find it difficult to 
fulfill this requirement.
    One commenter urged OGE to defer to an agency's determination as to 
which circumstances make it impractical to provide verbal training with 
a qualified instructor available. This interim rule retains, at 
Sec. 2638.704(e)(1) (for public filers) and Sec. 2638.705(d)(1) (for 
other covered employees), the Training Regulation's long-standing 
exceptions providing the DAEO at each agency with the authority to use 
verbal training without a qualified instructor or to use only written 
training. Under these exceptions, where the DAEO or his or her designee 
makes a written determination that circumstances make it impractical to 
meet the verbal training requirement for a covered employee, a 
qualified instructor need not be available (for public filers) and 
written training can be provided for any covered employees (including 
public filers) in any year. The Office of Government Ethics realizes 
that each agency knows best the practical issues that it faces in 
providing training and, thus, OGE does give due deference to an 
agency's written determination that verbal training is impractical.
    The exception at Sec. 2638.704(e)(1) pertains to the comments from 
two agencies which have widely dispersed groups of public filers. One 
of these agencies expressed concern that some public filers may be 
unable to attend training at a group session and that makeup sessions 
would require significant resources because the entire ethics staff is 
centrally located. The other agency stated that it would be very 
difficult for them to establish even a scheduled telephone link. Where 
distance or difference in time zones makes such scheduling impractical, 
as in these cases, the agency has sufficient grounds to make a written 
determination waiving the requirement that a qualified instructor be 
available.
    Another commenter felt that OGE should provide a specific exception 
in the regulation for training that takes place outside of core duty 
hours or outside of the continental United States, thus saving DAEOs 
the necessity of making individual written determinations in these 
situations. No similar comment was received and no other agency has 
expressed this concern during OGE's reviews of agency ethics programs. 
We note that the exceptions in Secs. 2638.704(e) and 2638.705(d) do 
give DAEOs a fair amount of flexibility because DAEOs are permitted to 
make a single written determination for

[[Page 7278]]

multiple employees. For these reasons, OGE did not adopt this 
recommendation.

Annual Ethics Training for Other Covered Employees

    For covered employees who are not public filers, these interim rule 
amendments continue to enable agencies to meet the annual training 
requirement through verbal training once every three calendar years 
(the ``one in three'' rule). Unlike the rule for public filers, there 
is no requirement that a qualified instructor be available. For those 
calendar years where eligible covered employees do not receive verbal 
training, written training is required. Five commenters commended these 
changes for providing agencies with greater freedom to devote resources 
to desired ethics training goals. On the other hand, one commenter felt 
that the 1997 interim rule amendments went too far in liberalizing the 
ethics training requirements. This commenter stated that annual verbal 
training demonstrates the importance of the ethics program to employees 
and the one in three rule would diminish the importance of the ethics 
program (and possibly its resources) for the covered employees 
receiving written training.
    The Office of Government Ethics has retained this provision in this 
new interim rule. As noted earlier, the intent of the prior interim 
rule was not to diminish the emphasis or resources of agency ethics 
training programs. The intent was instead to reduce the level of OGE-
mandated verbal ethics training to better allow each agency to tailor 
its training program to its specific needs. Because the requirements 
are minimum standards, agencies are encouraged to go beyond them where 
they believe it is beneficial to their programs. In such cases, 
agencies can provide verbal training for all covered employees each 
year. As stated in the preamble to the interim rule amendments, OGE 
will reconsider the one in three rule if it finds that the result is a 
diminution of resources devoted to the ethics training program.
    One commenter stated that agencies would be unable to keep track of 
which covered employees had received verbal training within the past 
three years. In reviewing this comment, OGE considered its reviews of 
agency ethics programs performed since the effective date of the 1997 
interim rule amendments. These program reviews have not shown that 
agencies have had difficulty tracking their employees' training. An 
agency experiencing such tracking problems could simply provide verbal 
training to all covered employees every third year and provide written 
training to employees (other than public filers) in the other two 
calendar years. For these reasons, OGE has decided to retain this 
requirement in this new interim rule.
    Two commenters requested that OGE allow the written ethics training 
that they gave employees, other than public filers, before June 10, 
1997 (the effective date of the 1997 interim rule amendments) to 
satisfy the verbal training requirement for calendar year 1997. We note 
that it is generally unwise for an agency to change operating policies 
or procedures based upon a rule that is not yet effective. Indeed, OGE 
purposely delayed the effective date of the 1997 interim rule 
amendments for 90 days so that we could evaluate comments received from 
agencies prior to the effective date and determine whether it would be 
necessary to amend or cancel the interim rule amendments. The issue 
raised by these commenters is moot, however, since any opportunity to 
correct a problem in its 1997 annual ethics training expired on January 
1, 1998.
    On a similar point, OGE notes that verbal training provided under 
the former Training Regulation does count for the purposes of the one 
in three rule at new Sec. 2638.705(c)(1). Thus, agencies who gave all 
covered employees verbal training in 1997 would not have to provide 
verbal training again for covered employees (other than public filers) 
until 2000.

Other Issues

    Two commenters indicated their concerns with the requirement in 
Sec. 2638.702(c) (new Sec. 2638.706) that agencies develop a written 
training plan each year. Prior to the 1997 interim rule amendments, 
agencies were required to file these plans annually with OGE. The 
interim rule deleted this requirement and modified the information 
required in the plan, including the addition of a narrative description 
of the agency's annual ethics training. One agency indicated its 
opinion that OGE should move even farther to convert the annual 
training plan to a narrative-based document or, alternatively, that OGE 
should place no additional requirements on agencies but should allow 
them to develop their own plans in keeping with their internal needs. 
Although OGE may further modify the information required in the written 
plan based upon future experience, we have elected not to permit a mere 
narration. We believe that, to run an effective ethics training 
program, agencies need to plan ahead. The information required in the 
written training plan should serve as a useful tool to agencies as they 
prepare for each training cycle. The other comment regarding the 
written training plan argued that the plan served no purpose and should 
not be required. For the reasons given above, OGE does not agree with 
this comment. Furthermore, section 301(c) of Executive Order 12674, as 
modified by Executive Order 12731, requires agencies to develop written 
training plans.
    Two commenters requested that OGE allow agencies to satisfy both 
the requirements for initial ethics orientation and annual ethics 
training with one training session. This comment endorsed language in 
the preamble to the 1997 interim rule amendments, at 62 FR 11308, 
stating that OGE would permit the time spent in annual verbal ethics 
training during the first 90 days of an employee's service to count 
against the one hour of official duty time required for the initial 
ethics orientation. As indicated in the 1997 interim rule amendments, 
this offset is not new. Both the original proposed and final Training 
Regulations, in 1990 and 1992 respectively, included a provision for 
agencies to partially or completely offset the official duty time 
requirement for the initial ethics orientation by the amount of 
official duty time spent in annual verbal ethics training. See 55 FR 
38335, 38337 (September 18, 1990) and 57 FR 11886, 11888, 11890, 11891 
(April 7, 1992). The Office of Government Ethics believes that agencies 
should have an incentive to provide verbal training to new employees 
even though such training is not required. Therefore, whether the 
verbal training is labeled an initial ethics orientation or annual 
ethics training, it will count as both if it meets the requirements of 
both. Similarly, if a written initial ethics orientation is modified 
slightly so that it meets the requirements for written annual training, 
it will count as both.
    Finally, the previous interim rule amendments, at 
Sec. 2638.704(d)(3)(iii)(B), retained the exception from the prior 
Training Regulation allowing written training alone for special 
Government employees (SGE) who work fewer than 60 days in a calendar 
year. This exception (now at new Sec. 2638.705(d)(2)) permits agencies 
to meet the annual training requirement for these SGEs through written 
training only. This exception is included only in the section dealing 
with annual training for covered employees other than public filers 
since SGEs who work fewer than 60 days in a calendar year are not 
required to file public financial

[[Page 7279]]

disclosure reports. See 5 CFR 2634.201(a) and 2634.204.
    Because SGEs typically serve limited terms of employment and 
because the interim rule amendments permit agencies to meet the annual 
training requirement for all covered employees (other than public 
filers) through written training for two of any three years, OGE 
specifically requested in the 1997 interim rule amendments that 
agencies inform us if they have SGEs who served for three or more 
years. If there were no such long-term SGEs, we realized this exception 
would be unnecessary. Three agencies responded that they have SGEs who 
serve for terms of three or more years. Accordingly, OGE has retained 
the exception in this interim rule. One commenter indicated that the 
language in the exception should be changed to ``60 or fewer days in a 
calendar year'' to more precisely track the language in 5 CFR part 
2634. OGE has adopted this recommendation in the interim rule. See new 
Sec. 2638.705(d)(2).
    The Office of Government Ethics recently completed an agency survey 
to determine: whether agencies are aware of the changes to the Training 
Regulation made by the 1997 interim rule (the one in three rule and the 
fact that a qualified instructor's physical presence is not required); 
whether agencies have implemented the flexibility that the one in three 
rule allows; and whether the rule is effective. The survey was 
conducted as part of the regularly scheduled ethics program reviews 
performed in 57 agencies from December 1997 through November 1998. 
Sixty-one percent of the ethics officials said they have taken, or 
would be taking, advantage of the flexibility offered by the interim 
amendments. Eighty-nine percent of the ethics officials surveyed were 
satisfied that the interim rule amendments allowed their agencies to 
allocate ethics training resources in a more flexible and efficient 
manner and seventy-seven percent were satisfied with the effects of the 
changes on their agency's ethics training program. These officials 
believed that using written training allowed more time for ethics 
counseling, reduced the workload of the ethics office, and increased 
the number of topics covered by the training materials.
    The Office of Government Ethics invites further suggestions as to 
overall improvements in the ethics training program, as well as 
comments regarding the new plain language format of the Training 
Regulation.

IV. Matters of Regulatory Procedure

Administrative Procedure Act

    Pursuant to sections 553(b) and (d) of title 5 of the United States 
Code, I find good cause for waiving the general notice of proposed 
rulemaking. Because the plain language changes made by these interim 
rule amendments to the Training Regulation simply clarify the existing 
regulation, there is no need to solicit comments in advance. Moreover, 
this rule provides for a 90-day comment period. All interested persons 
are invited to submit written comments to OGE on these interim rule 
amendments. The Office of Government Ethics will review all comments 
received and consider any modifications which appear warranted in 
adopting a final rule on this matter.

Executive Order 12866

    In promulgating this interim rule amending the executive branchwide 
Government ethics training regulation, the Office of Government Ethics 
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 interim rule has also been 
reviewed by the Office of Management and Budget under that Executive 
order.

Executive Order 12988

    As Director of the Office of Government Ethics. I have reviewed 
this interim amendatory regulation in light of section 3 of Executive 
Order 12988, Civil Justice Reform, and certify that it meets the 
applicable standards provided therein.

Regulatory Flexibility Act

    As Director of the Office of Government Ethics, I certify under the 
Regulatory Flexibility Act (5 U.S.C. chapter 6) that this interim rule 
will not have a significant economic impact on a substantial number of 
small entities because it affects only Federal executive branch 
agencies and their employees.

Paperwork Reduction Act

    As Director of the Office of Government Ethics, I have determined 
that the Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply 
to this interim rule because it 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 2638

    Conflict of interests, Government employees, Reporting and 
recordkeeping requirements.

    Approved: November 5, 1999.
Stephen D. Potts,
Director, Office of Government Ethics.

    Accordingly, for the reasons set forth in the preamble, the Office 
of Government Ethics is amending subpart G of 5 CFR part 2638 as 
follows:

PART 2638--OFFICE OF GOVERNMENT ETHICS AND EXECUTIVE AGENCY ETHICS 
PROGRAM RESPONSIBILITIES

    1. The authority citation for part 2638 continues to read as 
follows:
    2. Subpart G of part 2638 is revised to read as follows:


    Authority:  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.
Subpart G--Executive Agency Ethics Training Programs
Sec.
2638.701   Overview.
2638.702   Definitions.
2638.703   Initial agency ethics orientation for all employees.
2638.704   Annual ethics training for public filers.
2638.705   Annual ethics training for other employees.
2638.706   Agency's written plan for annual ethics training.

Subpart G--Executive Agency Ethics Training Programs


Sec. 2638.701  Overview.

    Each agency must have an ethics training program to teach employees 
about ethics laws and rules and to tell them where to go for ethics 
advice. The training program must include, at least, an initial agency 
ethics orientation for all employees and annual ethics training for 
covered employees.


Sec. 2638.702  Definitions.

    For purposes of this subpart:
    Agency supplemental standards means those regulations published by 
an agency in concurrence with the Office of Government Ethics under 5 
CFR 2635.105.
    Employee includes officers of the uniformed services and special 
Government employees, as defined in 18 U.S.C. 202(a).
    Federal conflict of interest statutes means 18 U.S.C. 202-203, 205, 
and 207-209.
    Principles means the Principles of Ethical Conduct, Part I of 
Executive Order 12674, as modified by Executive Order 12731.

[[Page 7280]]

    Standards means the Standards of Ethical Conduct for Employees of 
the Executive Branch, 5 CFR part 2635.


Sec. 2638.703  Initial agency ethics orientation for all employees.

    Within 90 days from the time an employee begins work for an agency, 
the agency must do the following:
    (a) Ethics materials. The agency must give the employee:
    (1) The Standards and any agency supplemental standards to keep or 
review; or
    (2) Summaries of the Standards, any agency supplemental standards, 
and the Principles to keep.

    Note to paragraph (a):  If the agency does not give the employee 
the Standards and any agency supplemental standards to keep, the 
complete text of both must be readily available in the employee's 
immediate office area.

    (b) Contact persons. The agency must give the employee the names, 
titles, and office addresses and telephone numbers of the designated 
agency ethics official and other agency officials available to advise 
the employee on ethics issues.
    (c) One hour to review. The agency must give the employee at least 
one hour of official duty time to review the items described above. 
This one-hour requirement may be reduced by any amount of time the 
employee receives verbal ethics training in the same 90-day period.


Sec. 2638.704  Annual ethics training for public filers.

    (a) Covered employees. Each calendar year, agencies must give 
verbal ethics training to employees who are required by 5 CFR part 2634 
to file public financial disclosure reports.
    (b) Content of training. Agencies are encouraged to vary the 
content of verbal training from year to year but the training must 
include, at least, a review of:
    (1) The Principles;
    (2) The Standards;
    (3) Any agency supplemental standards;
    (4) The Federal conflict of interest statutes; and
    (5) The names, titles, and office addresses and telephone numbers 
of the designated agency ethics official and other agency ethics 
officials available to advise the employee on ethics issues.
    (c) Length and presentation of training. Employees must be given at 
least one hour of official duty time for verbal training. The training 
must be:
    (1) Presented by a qualified instructor; or
    (2) Prepared by a qualified instructor and presented by 
telecommunications, computer, audiotape, or videotape.
    (d) Availability of qualified instructor. A qualified instructor 
must be available during and immediately after the training. Qualified 
instructors are:
    (1) The designated agency ethics official;
    (2) The alternate agency ethics official;
    (3) A deputy agency ethics official;
    (4) Employees of the Office of Government Ethics (OGE) designated 
by OGE; and
    (5) Persons whom the designated agency ethics official (or his or 
her designee) determines are qualified to respond to ethics questions 
raised during the training.

    Example 1 to paragraph (d): An agency provides annual ethics 
training for public filers in a regional office by establishing a 
video conference link between the regional office and a qualified 
instructor in the headquarters office. The video link provides for 
direct and immediate communication between the qualified instructor 
and the employees receiving the training. Even though the qualified 
instructor is not physically located in the room where the training 
occurs, the qualified instructor is available.
    Example 2 to paragraph (d): The agency described in the 
preceding example provides videotaped training instead of training 
through a video conference link. The employees viewing the videotape 
are provided with a telephone at the training site and the telephone 
number of a qualified instructor who is standing by during and 
immediately after the training to answer any questions. Under these 
circumstances, a qualified instructor is available.
    Example 3 to paragraph (d): In the preceding example, if no 
telephone had been provided at the training site or if a qualified 
instructor was not standing by to respond to any questions raised, 
there would not be a qualified instructor available. Merely 
providing the phone number of the qualified instructor would not 
satisfy the requirement that a qualified instructor be available.

    (e) Exceptions. Verbal training without a qualified instructor 
available or written training prepared by a qualified instructor will 
satisfy the verbal training requirement for a public filer (or group of 
public filers) if one hour of official duty time is provided for the 
training and:
    (1) The designated agency ethics official (or his or her designee) 
makes a written determination that it would be impractical to provide 
verbal training with a qualified instructor available; or
    (2) The employee is a special Government employee.

    Example to paragraph (e)(1): The only public filer in the 
American Embassy in Ulan Bator, Mongolia is the Ambassador. Because 
of the difference in time zones and the uncertainty of the 
Ambassador's schedule, the designated agency ethics official for the 
State Department is justified in making a written determination that 
it would be impractical to provide the Ambassador with verbal 
training. In this case, the Ambassador may receive written training 
prepared by a qualified instructor.


Sec. 2638.705  Annual ethics training for other employees.

    (a) Covered employees. Each calendar year, agencies must train the 
following employees:
    (1) Employees appointed by the President;
    (2) Employees of the Executive Office of the President;
    (3) Employees defined as confidential filers in 5 CFR 2634.904;
    (4) Employees designated by their agency under 5 CFR 2634.601(b) to 
file confidential financial disclosure reports;
    (5) Contracting officers, as defined in 41 U.S.C. 423(f)(5); and
    (6) Other employees designated by the head of the agency or his or 
her designee based on their official duties.

    Note to paragraph (a): Employees described above who are also 
public filers must receive ethics training as provided in 
Sec. 2638.704.

    (b) Content of training. The requirements for the contents of 
annual training are the same as the requirements in Sec. 2638.704(b).
    (c) Length and presentation of training. The training for covered 
employees must consist of:
    (1) A minimum of one hour of official duty time for verbal training 
at least once every three years. The verbal training must be presented 
by a qualified instructor or prepared by a qualified instructor and 
presented by telecommunications, computer, audiotape, or videotape; and
    (2) An amount of official duty time the agency determines is 
sufficient for written training in the years in which the employee does 
not receive verbal training. The written training must be prepared by a 
qualified instructor. The employee's initial ethics orientation may 
satisfy the written training requirement for the same calendar year.
    (d) Exceptions. Written ethics training prepared by a qualified 
instructor will satisfy the verbal training requirement for a covered 
employee (or group of covered employees) if sufficient official duty 
time is provided for the training and:
    (1) The designated agency ethics official (or his or her designee) 
makes a written determination that verbal training would be 
impractical;
    (2) The employee is a special Government employee expected to work 
60 or fewer days in a calendar year;
    (3) The employee is an officer in the uniformed services serving on 
active

[[Page 7281]]

duty for 30 or fewer consecutive days; or
    (4) The employee is designated under paragraph (a)(6) of this 
section to receive training.


Sec. 2638.706  Agency's written plan for annual ethics training.

    (a) The designated agency ethics official (or his or her designee) 
is responsible for directing the agency's ethics training program. The 
designated agency ethics official (or his or her designee) must develop 
a written plan each year for the agency's annual training program.
    (b) The written plan must be completed by the beginning of each 
calendar year.
    (c) The written plan must contain:
    (1) A brief description of the agency's annual training.
    (2) Estimates of the number of employees who will receive verbal 
training according to the following table:

------------------------------------------------------------------------
         Employees who will receive verbal training             Number
------------------------------------------------------------------------
(i) Public filers..........................................
(ii) Employees other than public filers....................
------------------------------------------------------------------------

    (3) An estimate of the number of employees who will receive written 
training according to the following table:

------------------------------------------------------------------------
        Employees who will receive written training             Number
------------------------------------------------------------------------
Employees other than public filers who will receive
 training under Sec.  2638.705(c)(2).......................
------------------------------------------------------------------------

    (4) Estimates of the number of employees who will receive written 
training instead of verbal training according to the following table:

------------------------------------------------------------------------
   Employees who will receive written training instead of
                      verbal training                           Number
------------------------------------------------------------------------
(i) Public filers who qualify for the exception in Sec.
 2638.704(e)(1)............................................
(ii) Public filers who qualify for the exception in Sec.
 2638.704(e)(2)............................................
(iii) Employees other than public filers who qualify for
 the exception in Sec.  2638.705(d)(1).....................
(iv) Employees other than public filers who qualify for the
 exception in Sec.  2638.705(d)(2).........................
(v) Employees other than public filers who qualify for the
 exception in Sec.  2638.705(d)(3).........................
(vi) Employees other than public filers who qualify for the
 exception in Sec.  2638.705(d)(4).........................
------------------------------------------------------------------------

    (d) The written plan may contain any other information that the 
designated agency ethics official believes will assist the Office of 
Government Ethics in reviewing the agency's training program.
[FR Doc. 00-3346 Filed 2-11-00; 8:45 am]
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