[Federal Register Volume 65, Number 58 (Friday, March 24, 2000)]
[Rules and Regulations]
[Pages 15825-15830]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-7275]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 65, No. 58 / Friday, March 24, 2000 / Rules
and Regulations
[[Page 15825]]
DEPARTMENT OF AGRICULTURE
5 CFR Chapter LXXIII
RIN 3209-AA15
Supplemental Standards of Ethical Conduct for Employees of the
Department of Agriculture
AGENCY: Department of Agriculture (Department or USDA).
ACTION: Interim rule.
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SUMMARY: The Department of Agriculture (Department or USDA), with the
concurrence of the Office of Government Ethics (OGE), is issuing
regulations for Department employees that supplement the Standards of
Ethical Conduct for Employees of the Executive Branch (Standards), as
issued by OGE. The regulations set forth both a general requirement for
certain Department employees to obtain prior approval before engaging
in outside employment and separate, more-extensive prior approval
requirements for employees of the USDA Farm Service Agency (FSA), Food
Safety and Inspection Service (FSIS), Office of the General Counsel
(OGC), and Office of Inspector General (OIG). They also contain certain
restrictions on financial interests applicable to FSA employees.
DATES: These regulations are effective March 24, 2000. Comments must be
received or postmarked on or before April 24, 2000.
ADDRESSES: Comments should be submitted to the Office of Ethics, U.S.
Department of Agriculture, Room 348--W--Stop 0122, 1400 Independence
Avenue, SW., Washington, DC 20250-0122, telephone (202) 720-2251,
Attention: John C. Surina, Director, Office of Ethics, or by e-mail at
the following address: daeo.ethics@usda.gov.
FOR FURTHER INFORMATION CONTACT: John C. Surina, Director, Office of
Ethics, U.S. Department of Agriculture, Room 348-W--Stop 0122, 1400
Independence Avenue, SW., Washington, DC 20250-0122, telephone (202)
720-2251.
SUPPLEMENTARY INFORMATION:
I. Background
On August 7, 1992, OGE published the new Standards, which became
effective on February 3, 1993. The standards, as corrected and amended,
are codified at 5 CFR part 2635. On October 3, 1997, the Department's
Employee Conduct and Responsibilities regulations were removed. See 62
FR 51759-51760.
5 CFR 2635.105 authorizes 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
concurrence, has determined that the following interim supplemental
rules being codified in a new chapter LXXIII of 5 CFR, consisting of
part 8301, are necessary to the success of its ethics program.
II. Analysis of the Regulations
Section 8301.101 General
Section 8301.101 explains that the regulations apply to all
Department employees and supplement the executive branchwide Standards.
In addition, this section notes that employees of the Department are
also subject to the Standards at 5 CFR part 2635, the executive branch
financial disclosure regulations at 5 CFR part 2634, and additional
regulations on employee responsibilities and conduct at 5 CFR part 735.
This section also notes that agencies and components of the Department,
with concurrence of the Designated Agency Ethics Official (DAEO), may
issue explanatory guidance, internal procedures, and delegations of
authority consistent with 5 CFR 2635.105. Finally, to facilitate agency
employees, across the Department, in accessing and utilizing applicable
agency-specific guidance and procedures, the section provides that the
Deputy Ethics Official for each USDA agency or component shall retain
copies of all such guidance issued by that agency or component.
Section 8301.102 General Prior Approval Requirement for Outside
Employment
The Standards, at 5 CFR 2635.803, specifically recognize that an
agency may find it necessary or desirable to issue a supplemental
regulation requiring its employees, or any category of employees, to
obtain approval before engaging in outside employment. Department
employees, pursuant to the Department's Employee Conduct and
Responsibilities regulations at 7 CFR part 0, long had been required to
seek prior approval before engaging in outside employment. This
regulatory requirement lapsed after November 1, 1996, upon the
expiration of the last grace period extension granted by OGE for agency
prior approval requirements and agency prohibitions on holding or
acquiring financial interests in effect prior to the effective date of
the Standards.
The Department found its prior approval requirement particularly
useful in ensuring that the outside employment of USDA employees
conformed with all applicable laws and regulations. At the same time,
the former requirement for universal prior approval had been viewed as
unnecessarily burdensome and intrusive, particularly in those instances
in which the employee's outside employment posed little danger to the
interests of USDA and its agencies, or where there was little or no
nexus between the employee's official duties and his or her outside
employment.
In accordance with 5 CFR 2635.803, USDA has determined that it is
necessary to the administration of its departmentwide ethics program to
again require certain of its employees to seek approval before engaging
in any outside employment. The Department has determined that all USDA
employees who file either a public or confidential financial disclosure
report (SF 278 or OGE Form 450), or an alternative form of reporting
approved by OGE, must seek approval before engaging in any outside
employment. Financial disclosure report filers occupy high level
positions or otherwise hold positions that have a direct and
substantial effect on the interests of non-Federal entities.
Accordingly, prior approval of these employees' outside employment is
warranted. Approval, however, merely constitutes an
[[Page 15826]]
assessment that the employment, as described on the submission,
generally does not appear likely to violate any criminal statutes or
other ethics rules. It is not a determination that a criminal or
ethical conflict could not arise. Thus, Department employees should
remain sensitive to ethics issues and seek further ethics guidance
should their outside work circumstances or official duties
significantly change.
Included within the definition of employment, for purposes of this
regulation, is participation in teaching, speaking, writing or editing
that, irrespective of compensation, either relates to the employee's
official duties or is undertaken pursuant to an invitation extended by
any person who is a prohibited source to any employee of USDA. The
Department is obligated, under numerous statutes, to protect from
release to the public various types of information regarding its
programs. For example, numerous statutes restrict the premature release
of various types of information concerning the many different
commodities regulated by USDA. Premature release of such information,
or of other information from which such information could reasonably be
derived, could result in misuse of position through unfair speculation
in those commodity markets. The Department believes that its statutory
interests in avoiding this result may be protected, with a minimum of
interference to its employees, through the imposition of a prior
approval requirement limited solely to those situations where there is
a heightened potential for risk to USDA--where an employee engages in
outside speaking, teaching, writing, or editing that may result in the
release of protected information or where the invitation to engage in
the outside employment comes from one who has an interest in obtaining
such protected information.
In addition to the foregoing, departmentwide requirement for prior
approval of outside employment, other USDA component offices and
agencies have determined that prior approval is required for their
employees not covered under the departmentwide requirement. The
Department has determined that it is necessary to the administration of
its ethics program to implement the additional component-specific
requirements for obtaining prior approval for outside employment
specified in paragraph (f) of Sec. 8301.103, and in Secs. 8301.104
through 8301.106.
Section 8301.103 Additional Rules for Employees of the Farm Service
Agency
The Farm Service Agency has determined that certain additional
rules are necessary in order to protect the integrity of its programs.
Many FSA programs, particularly farm loan programs, are administered in
a highly decentralized manner. Many FSA employees reside in the same
small communities as the FSA loan applicants, borrowers, and program
participants they serve. At the same time, many FSA employees and/or
their family members are themselves farmers. Farm Service Agency
employees often are part of the very farm community being serviced by
the local FSA office. Given the opportunity and, in many cases, the
need for regular, non-official interaction between FSA employees and
those persons in their communities serviced by FSA, there is a need to
establish for FSA employees certain limitations upon outside employment
and to prohibit FSA employees from obtaining certain financial
holdings.
Paragraph (a) of Sec. 8301.103 specifies that the additional rules
in the section apply solely to FSA personnel who are Federal employees
within the meaning of 5 U.S.C. 2105. This specification is necessary to
distinguish that FSA community committee members, county committee
members, and county office personnel, who serve either by election, or
by being employed by a committee or county office, under 16 U.S.C.
590h, are not covered by the additional rules in this section. Such
personnel consistently have been deemed by Federal courts not to be
Federal employees under 5 U.S.C. 2105. See Hedman v. Department of
Agriculture, 915 F. 2d 1552 (Fed. Cir. 1990); Hamlet v. United States,
14 Cl. Ct. 62 (1988), vacated and remanded, 873 F.2d 1414 (Fed. Cir.
1989); Hargens v. U.S. Department of Agriculture, 865 F. Supp. 1314,
1320 (N.D. Iowa 1994). Also contained in this paragraph is a cross-
reference to rules that do apply to FSA community committee members,
county committee members, and county office personnel, at 7 CFR part 7.
Paragraph (b) defines the phrase ``FSA program participant'' to
include any person who is, or is an applicant to become, an FSA
borrower, FSA grantee, or recipient of any other form of FSA financial
assistance available under any farm credit, payment or other program
administered by FSA.
Section 8103.103 contains two prohibitions on FSA employees
acquiring certain financial interests. Paragraph (c) generally
prohibits an employee, or a spouse or minor child of an FSA employee,
from directly or indirectly obtaining FSA direct loans. Paragraph (d)
generally prohibits an employee, or a spouse or minor child of an FSA
employee, from directly or indirectly purchasing certain FSA-related
real properties. These prophylactic prohibitions reinstate similar
provisions that existed before the executive branchwide Standards
regulation superseded agency-specific rules.
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. Many FSA farm loan borrowers are recipients
of FSA direct loans which involve FSA as a ``lender-of-last-resort.''
Similarly, many FSA employees are themselves farmers. The Farm Service
Agency has found that permitting its employees to obtain FSA direct
loans creates a high-risk ethics environment for FSA employees. The
Department must shield the administration of the loan program against
self-dealing and a lack of impartiality. Moreover, the close proximity
of FSA employees to FSA program participants, generally, and the
dependence of FSA program participants on FSA, especially FSA loan
applicants, also warrant supplemental safeguards against any FSA
employee in a position to secure private gain for himself or herself,
or for any other person, by virtue of the public position he or she
holds. Further, the restrictions will avoid the potential for
disqualification of critical employees from official duties which might
result in FSA being unable to fulfill its mission.
The prohibitions under paragraphs (c) and (d) apply whether the
prohibited financial interest involved is obtained directly or
indirectly. Thus, for example, an FSA employee would violate paragraph
(c) should he or she obtain FSA direct loan funds through an agreement
with another person under which the other party poses as a ``front''
for the FSA employee (e.g., by applying for an FSA loan knowing that a
portion of the loan funds will be provided by him or her to the FSA
employee for the employee's personal use). The same would be true for
utilizing a ``front'' for the purchase of otherwise prohibited
property.
Because application of the prohibitions in paragraphs (c) and (d)
may result in undue financial hardship to various FSA employees in
certain
[[Page 15827]]
instances, the prohibitions are tempered in application by the
inclusion of various exceptions and waiver provisions. Paragraph (c) is
subject to an exception permitting retention of direct loans secured by
FSA employees either prior to the effective date of this regulation,
March 24, 2000, or secured after such date, but prior to the FSA
employee being appointed to, or nominated for appointment to an FSA
position. Also, this prohibition may be waived for FSA State Committee
members where the conditions stated in paragraph (c)(3) have been met.
As State Committee members are special Government employees,
application of the prohibition under paragraph (c) would result in an
undue financial hardship to those State Committee members who are
farmers by occupation. The exception for pre-existing loans and the
waiver for State Committee members are available for use by a
relatively small number of employees, to whom application of the
prohibition would pose an inordinate financial hardship when compared
to any perceived ethical dangers that they are likely to encounter
through having an FSA direct loan.
The prohibition under paragraph (d) is subject to waiver based on a
determination made by the FSA State Executive Director, in response to
a written waiver request submitted jointly to the FSA State Executive
Director by both the FSA employee and FSA program participant, that the
purchase is not inconsistent with part 2635 of this title; that it is
not otherwise prohibited by law, including, 7 U.S.C. 1986; and that,
under the circumstances, application of the prohibition is not
necessary to avoid the appearance of misuse of position or loss of
impartiality, nor otherwise needed to ensure confidence in the
impartiality and objectivity with which agency programs are
administered. FSA has chosen to employ a broad standard for exemption
to this prohibition because there exist numerous situations in which
the primary benefit from the exemption accrues not to the FSA employee
but rather to the FSA program participant. For example, in many small
farming communities, an FSA borrower may have difficulty in finding a
buyer for his or her property. Since flat application of this
prohibition could result in significant financial harm to the very
persons whom FSA programs are intended to serve, FSA believes that an
effective and fair solution involves a waiver procedure under which the
FSA State Executive Director would make a determination balancing
ethical considerations against the potential financial hardship to the
FSA program participant. This process provides flexibility and fairness
while raising the level of decision making visibility and
accountability.
Paragraph (e) of this section sets forth a general prohibition
against an FSA employee and a spouse or minor child of an FSA employee
engaging in certain transactions with persons whom the FSA employee
knows or reasonably should know to be a FSA program participant
directly affected by decisions made by the employee's FSA office,
unless certain exceptions apply. The transactions covered by this
general prohibition include sales of real property, leases of real or
personal property, the sale or purchase of personal property, and
engaging for personal services. The prohibition does not apply to
transactions involving goods available to the general public at posted
prices that are customary and usual within the community (e.g., sale of
a tractor through placing an advertisement in the local newspaper) or
to transactions involving the purchase or sale of property pursuant to
a public auction. The prohibition also does not apply where a
transaction is determined in advance by the appropriate FSA State
Executive Director, after consulting with the FSA Headquarters ethics
advisor, to be consistent with the Standards and otherwise not
prohibited by law. This general prohibition reflects, in large part, a
similar requirement that existed within those current segments of FSA
that formerly were part of Farmers Home Administration and which lapsed
upon publication of the Standards as a final rule.
Since farm leases and other transactions between FSA employees and
FSA program participants are so prevalent within the farming community,
FSA has determined that a prohibition without providing FSA employees
the opportunity to obtain an advance determination that the transaction
would be consistent with ethics requirements would work an undue
financial hardship upon both the FSA employees, their spouses and minor
children, and the FSA program participants. Requiring requests for
advance determinations to be submitted to the FSA State Executive
Director pursuant to the exception provides for the agency's need to
have control over these interactions without imposing undue financial
hardship. As a result, approved transactions will have the visibility
and accountability addressed previously with regard to the prohibition
in paragraph (d). Further, the determination of the FSA State Executive
Director is to be based upon the same standard employed in paragraph
(d).
Paragraph (f) of Sec. 8301.103 requires an FSA employee, not
otherwise required to do so under Sec. 8301.102, to obtain prior
approval from the agency before engaging in outside employment with a
person whom the FSA employee knows, or reasonably should know, to be an
FSA program participant directly affected by decisions made by the
particular FSA office in which the FSA employee serves. This
requirement reflects, in large part, a similar requirement that existed
within those segments of FSA that formerly were part of Farmers Home
Administration and which lapsed on November 1, 1996. While outside
interaction is vital to the FSA employees and to the community in which
they live, the potential for outside employment opportunities to lead
to favoritism and a loss of impartiality is significant enough to
justify agency concerns. Thus, FSA has determined that it is necessary
to require approval before any of its employees may engage in any
outside employment involving an FSA program participant directly
affected by decisions made by the office in which the FSA employees
serves.
Section 8301.104 Additional Rules for Employees of the Food Safety and
Inspection Service
The Food Safety and Inspection Service has determined that it is
necessary to require prior approval before any of its employees, not
otherwise required to do so under section 8301.102, may engage in any
outside employment. The implementation of Hazard Analysis and Critical
Control Points (HACCP) systems within the regulated industry, as well
as the anticipated creation of Consumer Safety Officer positions, means
that FSIS employees of all pay levels will be involved in ensuring food
safety and, therefore, will be facing increased exposure to the food
industry. Given the vital importance to public health of maintaining
high standards of food safety in light of the changing nature of FSIS
responsibilities through HACCP, FSIS believes that its long-standing
requirement of universal prior approval for outside employment is even
more necessary.
Section 8301.105 Additional Rules for Employees of the Office of the
General Counsel
The USDA Office of the General Counsel previously has required
lawyers serving within that office to
[[Page 15828]]
obtain prior approval before engaging in the outside practice of law.
Given the fiduciary duties performed for the Department by OGC, such a
requirement has been particularly useful in ensuring that the outside
practice of law does not interfere or conflict with the official duties
of attorneys within that Office. Accordingly, the Department has
determined that it is necessary to require that all attorneys serving
in OGC seek prior approval before engaging in outside employment
involving the practice of law.
Section 8301.106 Additional Rules for Employees of the Office of
Inspector General
The Office of Inspector General has determined that it is necessary
to require prior approval before any of its employees may engage in
outside employment involving law enforcement, investigation, security,
firearms training, defensive tactics training, protective services,
auditing, accounting, tax preparation, practice of law, and employment
involving personnel, procurement, budget, computer, or equal employment
opportunity services. The OIG had long relied upon the departmental
prior approval requirement. The OIG has a wide range of
responsibilities for investigation and auditing of departmental
operations. These mission activities are of a highly sensitive nature.
The aforementioned types of outside employment involve duties that,
under certain circumstances, are similar to the mission activities of
OIG, and therefore are more likely to create an actual or apparent
conflict of interest. The Department has determined that it is
necessary to the administration of its ethics program to require prior
approval for the identified types of outside employment that pose a
potential for OIG employees to engage in conduct that might violate
applicable laws and regulations.
III. Matters of Regulatory Procedure
Administrative Procedure Act
The Department has found that good cause exists under 5 U.S.C.
553(b) and (d) for waiving, as unnecessary and contrary to public
interest, the general notice of proposed rulemaking, opportunity for
comment and the 30-day delay in effectiveness as to this interim rule.
This rulemaking contains statements of policy, interpretive rules, and
conduct regulations related solely to Department personnel and, in
significant part, reissues in revised form the outside employment rules
previously published in 7 CFR part 0. Delaying the effectiveness of
this rule could also result in an effort by some employees likely to be
affected by the rules on outside employment and prohibited financial
interests to engage in covered outside employment or to obtain covered
financial interests prior to the effective date of this rule.
However, because this rule may be improved, comments may be
submitted on or before April 24, 2000. All comments will be analyzed
and any appropriate changes to the rule will be incorporated in the
subsequent publication of the final rule.
Congressional Review
The Department has found that this rulemaking is not a rule as
defined in 5 U.S.C. 804, and, thus, does not require review by
Congress. This rulemaking is related to Department personnel.
Executive Orders Nos. 12866 and 12988
Since this rule relates to Department personnel, it is exempt from
the provisions of Executive Orders Nos. 12866 and 12988.
Regulatory Flexibility Act
The Department has determined under the Regulatory Flexibility Act
(5 U.S.C. chapter 6) that this regulation will not have a significant
economic impact on a substantial number of small entities because it
affects only Department employees.
Paperwork Reduction Act
The Department has determined that the Paperwork Reduction Act (44
U.S.C. chapter 35) does not apply because this regulation does not
contain any information collection requirements that require the
approval of the Office of Management and Budget.
Environmental Impact
This decision will not have a significant impact upon the quality
of the human environment or the conservation of energy resources.
List of Subjects in 5 CFR Part 8301
Conflict of interests, Executive branch standards of conduct,
Government employees.
Dated: March 16, 2000.
Dan Glickman,
Secretary of Agriculture.
Approved: March 17, 2000.
Stephen D. Potts,
Director, Office of Government Ethics.
For the reasons set forth in the preamble, the Department of
Agriculture, with the concurrence of the Office of Government Ethics,
is amending Title 5 of the Code of Federal Regulations by adding a new
chapter LXXIII, consisting of Part 8301, to read as follows:
CHAPTER LXXIII--DEPARTMENT OF AGRICULTURE
PART 8301--SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES
OF THE DEPARTMENT OF AGRICULTURE
Sec.
8301.101 General.
8301.102 Prior approval for outside employment.
8301.103 Additional rules for employees of the Farm Service
Agency.
8301.104 Additional rules for employees of the Food Safety and
Inspection Service.
8301.105 Additional rules for employees of the Office of the
General Counsel.
8301.106 Additional rules for employees of the Office of Inspector
General.
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; 5 CFR 2635.105, 2635.403(a), 2635.803, 2635.807(a)(2)(ii).
Sec. 8301.101 General.
(a) In accordance with 5 CFR 2635.105, the regulations in this part
apply to employees of the Department of Agriculture (Department or
USDA) and supplement the Standards of Ethical Conduct for Employees of
the Executive Branch contained in 5 CFR part 2635.
(b) In addition to 5 CFR part 2635 and this part, employees also
are required to comply with the executive branch financial disclosure
regulations at 5 CFR part 2634, the regulations on responsibilities and
conduct contained in 5 CFR part 735, and Department guidance and
procedures established pursuant to paragraph (c) of this section.
(c) With the concurrence of the Designated Agency Ethics Official
(DAEO), agencies and components of the Department may, in accordance
with 5 CFR 2635.105(c), issue explanatory guidance for their employees
and establish procedures necessary to implement this part and part 2635
of this title. The Deputy Ethics Official for each agency or component
shall retain copies of all such guidance issued by that agency or
component.
Sec. 8301.102 Prior approval for outside employment.
(a) Prior approval requirement. An employee, other than a special
Government employee, who is required to file either a public or
confidential financial disclosure report (SF 278 or OGE Form 450), or
an alternative form of reporting approved by the Office of Government
Ethics, shall, before
[[Page 15829]]
engaging in outside employment, obtain written approval in accordance
with the procedures set forth in paragraph (c) of this section.
(b) Definition of employment. For purposes of this section,
``employment'' means any form of non-Federal employment or business
relationship or activity involving the provision of personal services
by the employee for direct, indirect, or deferred compensation other
than reimbursement of actual and necessary expenses. It also includes,
irrespective of compensation, the following outside activities:
(1) Providing personal services as a consultant or professional,
including service as an expert witness or as an attorney;
(2) Engaging in teaching, speaking, writing, or editing that:
(i) Relates to the employee's official duties within the meaning of
5 CFR 2635.807(a)(2)(i)(B) through (E); or
(ii) Would be undertaken as a result of an invitation to engage in
the activity that was extended by a person who is a prohibited source
within the meaning of 5 CFR 2635.203(d); and
(3) Providing personal services to a non-Federal entity as an
officer, director, employee, agent, attorney, consultant, contractor,
general partner, or trustee, which involves decision making or
policymaking for the non-Federal entity, or the provision of advice,
counsel, consultation, unless such personal services are provided:
(i) To a political, religious, employee, social, fraternal, or
recreational organization; and (ii) Without compensation other than
reimbursement of expenses.
(c) Submission of requests for approval. An employee seeking to
engage in employment for which advance approval is required shall
submit a written request for approval to the employee's supervisor a
reasonable time before the employee proposes to begin the employment.
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. The supervisor will forward written requests for
approval to the agency designee, or to the DAEO where no agency
designee exists, through normal supervisory channels. All requests for
prior approval shall include the following information:
(1) The employee's name, organizational location, occupational
title, grade, and salary;
(2) The nature of the proposed outside employment, including a full
description of the specific duties or services to be performed;
(3) A description of the employee's official duties that relate in
any way to the proposed employment;
(4) The name and address of the person or organization for whom or
with which the employee is to be employed, including the location where
the services will be performed;
(5) The estimated total time that will be devoted to the outside
employment. If the proposed outside employment is to be performed on a
continuing basis, a statement of the estimated number of hours per
year; for other employment, a statement of the anticipated beginning
and ending dates;
(6) A statement as to whether the work can be performed entirely
outside of the employee's regular duty hours and, if not, the estimated
number of hours of absence from work that will be required;
(7) The method or basis of any compensation (e.g., fee, per diem,
honorarium, royalties, stock options, travel and expenses, or other);
(8) A statement as to whether the compensation is derived from a
USDA grant, contract, cooperative agreement, or other source of USDA
funding;
(9) For employment involving the provision of consultative or
professional services, a statement indicating whether the client,
employer, or other person on whose behalf the services are performed is
receiving, or intends to seek, a USDA grant, contract, cooperative
agreement, or other funding relationship; and
(10) For employment involving teaching, speaking, writing or
editing, the proposed text of any disclaimer required by 5 CFR
2635.807(b).
(d) Standard for approval. Approval shall be granted by the agency
designee (or the DAEO, when there is not an agency designee) unless it
is determined that the outside employment is expected to involve
conduct prohibited by statute or Federal regulation, including 5 CFR
part 2635 or this part.
(e) Responsibilities of the Designated Agency Ethics Official and
component agencies. (1) The DAEO or, with the concurrence of the DAEO,
each separate agency or component of USDA may issue an instruction or
manual issuance exempting categories of employment from a requirement
of prior written approval based on a determination that employment
within those categories would generally be approved and is not likely
to involve conduct prohibited by Federal statutes or regulations,
including 5 CFR part 2635 and this part.
(2) Department components may specify internal procedures governing
the submission of prior approval requests and designate appropriate
officials to act on such requests. The instructions or manual issuances
may include examples of outside employment that are permissible or
impermissible consistent with 5 CFR part 2635 and this part. With
respect to employment involving teaching, speaking, writing, or
editing, the instructions or manual issuances may specify pre-clearance
procedures and/or require disclaimers indicating that the views
expressed do not necessarily represent the views of the agency, USDA or
the United States.
(3) The officials within the respective USDA agencies or components
responsible for the administrative aspects of these regulations and the
maintenance of records shall make provisions for the filing and
retention of requests for approval of outside employment and copies of
the notification of approval or disapproval.
Sec. 8301.103 Additional rules for employees of the Farm Service
Agency.
(a) Application. This section applies only to Farm Service Agency
(FSA) personnel who are Federal employees within the meaning of 5
U.S.C. 2105. This section does not apply to FSA community committee
members, county committee members, and county office personnel, who are
either elected to their positions or are employees of community or
county committees established under 16 U.S.C. 590h. For rules
applicable to FSA community committee members, county committee
members, and county office personnel, see 7 CFR part 7.
(b) Definition of FSA program participant. For purposes of this
section, the phrase ``FSA program participant,'' includes any person
who is, or is an applicant to become, an FSA borrower, FSA grantee, or
recipient of any other form of FSA financial assistance available under
any farm credit, payment or other program administered by FSA.
(c) Prohibited borrowing. (1) No FSA employee, or spouse or minor
child of an FSA employee, may directly or indirectly seek or obtain a
``direct loan'' under paragraph (a)(9) of section 343 of the
Consolidated Farm and Rural Development Act, 7 U.S.C. 1991(a)(9).
(2) Nothing in this section bars an FSA employee, or spouse or
minor child of an FSA employee, from retaining a direct loan secured
prior to March 24, 2000 or, if subsequent to March 24, 2000, such
direct loan is secured prior to the FSA employee being appointed to, or
nominated for appointment to an FSA position. Any FSA employee who
either personally has such a pre-existing loan, or whose spouse or
minor child has such a pre-existing loan, must
[[Page 15830]]
submit a written disqualification from taking any official action on
any such loan. Other than through the application of normal FSA loan
servicing options set forth under FSA regulations, the terms of any
such pre-existing loans shall remain fixed and shall not be subject to
renegotiation or renewal unless pursuant to policy decision(s) made by
the USDA Secretary or the FSA Administrator.
(3) Waiver for FSA State Committee members. A request for an
exception to the general prohibition of paragraph (c)(1) of this
section may be submitted by an FSA State Committee member (whether on
his or her own behalf, or on behalf the FSA State Committee member's
spouse or minor child), to the FSA Deputy Administrator for Farm Loans.
The Deputy Administrator for Farm Loans may grant a written waiver from
this prohibition based on a determination made with the concurrence of
the DAEO and the FSA headquarters ethics advisor that:
(i) The applicant is a current FSA State Committee member or the
spouse or minor child of a current FSA State Committee member;
(ii) The applicant meets the statutory qualification requirements
for obtaining a direct loan; and
(iii) A waiver is not inconsistent with part 2635 of this title nor
7 U.S.C. 1986 nor 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, including the
appearance of misuse of non-public information, or loss of
impartiality, or otherwise to ensure confidence in the impartiality and
objectivity with which agency programs are administered.
(d) Prohibited real estate purchases. (1) No FSA employee, or
spouse or minor child of an FSA employee, may directly or indirectly
purchase real estate held in the FSA inventory, for sale under
forfeiture to FSA, or from an FSA program participant.
(2) Waiver. A request for an exception to the prohibition found in
paragraph (l)(1) of this section may be submitted jointly by the FSA
program participant and FSA employee (whether on his or her own behalf,
or on behalf of the employee's own spouse or minor child), to the FSA
State Executive Director. The FSA State Executive Director may grant a
written waiver from this prohibition based on a determination made with
the advice and clearance of the DAEO and the FSA headquarters ethics
advisor that the waiver is not inconsistent with part 2635 of this
title nor 7 U.S.C. 1986 nor 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 agency programs are administered. A waiver under
this paragraph may impose appropriate conditions, such as requiring
execution of a written disqualification.
(e) Prohibited transactions with FSA program participants. (1)
Except as provided in paragraph (e)(2) of this section, no FSA employee
or spouse or minor child of an FSA employee may directly or indirectly:
Sell real property to; lease real property to or from; sell to, lease
to or from, or purchase personal property from; or employ for
compensation a person whom the FSA employee knows or reasonably should
know is an FSA program participant directly affected by decisions of
the particular FSA office in which the FSA employee serves.
(2) Exceptions. Paragraph (e)(1) of this section does not apply to:
(i) A sale, lease, or purchase of personal property, if it
involves:
(A) Goods available to the general public at posted prices that are
customary and usual within the community; or
(B) Property obtained pursuant to public auction; or
(ii) Transactions listed in paragraph (e)(1) of this section
determined in advance by the appropriate FSA State Executive Director,
after consulting with the FSA Headquarters ethics advisor, to be
consistent with part 2635 of this title and otherwise not prohibited by
law.
(f) Additional prior approval requirement for outside employment.
Any FSA employee not otherwise required to obtain approval for outside
employment under Sec. 8301.102 shall obtain written approval in
accordance with the procedures set forth in paragraph (c) of
Sec. 8301.102 before engaging in outside employment, as that term is
defined by paragraph (b) of Sec. 8301.102, with or for a person:
(1) Whom the FSA employee knows, or reasonably should know, is an
FSA program participant; and
(2) Who is directly affected by decisions made by the particular
FSA office in which the FSA employee serves.
Sec. 8301.104 Additional rules for employees of the Food Safety and
Inspection Service.
Any employee of the Food Safety and Inspection Service not
otherwise required to obtain approval for outside employment under
Sec. 8301.102, shall, before engaging in any form of outside
employment, obtain written approval in accordance with the procedures
set forth in paragraph (c) of Sec. 8301.102.
Sec. 8301.105 Additional rules for employees of the Office of the
General Counsel.
Any attorney serving within the Office of the General Counsel, not
otherwise required to obtain approval for outside employment under
Sec. 8301.102, shall obtain written approval, in accordance with the
procedures set forth in paragraph (c) of Sec. 8301.102, before engaging
in the outside practice of law, whether compensated or not.
Sec. 8301.106 Additional rules for employees of the Office of
Inspector General.
Any employee of the Office of Inspector General, not otherwise
required to obtain approval for outside employment under Sec. 8301.102,
shall obtain written approval, in accordance with the procedures set
forth in paragraph (c) of Sec. 8301.102, before engaging in any form of
outside employment that involves the following:
(a) Law enforcement, investigation, security, firearms training,
defensive tactics training, and protective services;
(b) Auditing, accounting, bookkeeping, tax preparation, and other
services involving the analysis, use, or interpretation of financial
records;
(c) The practice of law, whether compensated or not; or
(d) Employment involving personnel, procurement, budget, computer,
or equal employment opportunity services.
[FR Doc. 00-7275 Filed 3-23-00; 8:45 am]
BILLING CODE 3410-01-U