[Federal Register Volume 66, Number 231 (Friday, November 30, 2001)]
[Rules and Regulations]
[Pages 59673-59675]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-29800]



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  Federal Register / Vol. 66, No. 231 / Friday, November 30, 2001 / 
Rules and Regulations  

[[Page 59673]]



OFFICE OF GOVERNMENT ETHICS

5 CFR Part 2635

RIN 3209-AAO4


Standards of Ethical Conduct for Employees of the Executive 
Branch; Definition of Compensation for Purposes of Prohibition on 
Acceptance of Compensation in Connection With Certain Teaching, 
Speaking and Writing Activities

AGENCY: Office of Government Ethics (OGE).

ACTION: Final rule; amendment.

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SUMMARY: The Office of Government Ethics is adopting as final, with 
minor, nonsubstantive modifications, an interim rule amending the 
prohibition on employees' receipt of compensation for outside teaching, 
speaking and writing, as set forth in the Standards of Ethical Conduct 
for Employees of the Executive Branch. The amendment permits employees 
other than covered noncareer employees to accept travel expenses 
incurred in connection with covered teaching, speaking and writing 
activities.

EFFECTIVE DATE: December 31, 2001.

FOR FURTHER INFORMATION CONTACT: William E. Gressman, Senior Associate 
General Counsel, Office of Government Ethics; telephone: 202-208-8000; 
TDD: 202-208-8025; FAX: 202-208-8037.

SUPPLEMENTARY INFORMATION: On September 5, 2000, OGE published for 
comment an interim rule amending 5 CFR 2635.807(a) to allow employees 
other than covered noncareer employees to accept from outside sources 
travel expenses incurred in connection with certain outside teaching, 
speaking, and writing activities considered ``related to official 
duties'' under the rule. See 65 FR 53650-53652. As more fully explained 
in the preamble to the interim rule, id. at 53650-53651, the purpose of 
the amendment was to bring Sec. 2635.807(a) into conformity with the 
May 30, 1995, decision by the United States Court of Appeals for the 
District of Columbia Circuit in Sanjour v. Environmental Protection 
Agency, 56 F.3d 85 (en banc), as clarified in the April 14, 1998, 
decision on remand by the United States District Court for the District 
of Columbia, 7 F. Supp.2d 14 (D.D.C. 1998).
    The Office of Government Ethics received three sets of comments in 
response to publication of the interim rule. One agency, noting that 
Examples 1 and 2 conclude that the speaking activities there addressed 
are ``related to her duties'' or ``related to duties,'' suggested we 
clarify that the speaking activities are related to official duties. We 
have followed this suggestion. Including the word ``official'' provides 
clarity and is more consistent with the language defining teaching, 
speaking or writing as related ``to the employee's official duties'' 
(emphasis added) in the circumstances set forth in paragraphs (A) 
through (E) of Sec. 2635.807(a)(2)(i). The change also conforms to the 
language used at the conclusion of Example 3.
    The same agency also recommended that we delete the word ``career'' 
in the final sentence of Example 1, which currently provides, ``travel 
expenses incurred in connection with the speaking engagement * * * are 
not prohibited compensation for a career GS-15 employee.'' We have also 
adopted this recommendation. Under 5 CFR 2636.303(a), a GS-15 employee 
is not a ``covered noncareer employee'' because his/her rate of basic 
pay is not, by definition, ``equal to or greater than 120 percent of 
the minimum rate of basic pay payable for GS-15 of the General 
Schedule.'' The emphasis on the employee's ``career'' status is thus 
unnecessary and could have the unfortunate effect of misleading some 
readers into thinking that the travel expense reimbursements would be 
prohibited compensation for a noncareer employee paid at or below the 
GS-15 level.
    Two employees commenting together applauded the relaxation of the 
travel expenses ban as an opportunity to ``expand the dissemination of 
federal program information'' and, further, suggested that we expand 
the definition of ``teaching, speaking, or writing relate[d] * * * to 
duties'' to include less formal activities so that travel expenses may 
be accepted for travel to any ``function at which a Federal presence is 
desired.'' These commenters misunderstand the purpose of the amendment. 
The amendment is intended to allow employees, other than covered 
noncareer employees, who are involved in teaching, speaking and writing 
activities in their private capacities to accept travel reimbursements 
incurred in connection with those activities. The intent is not to 
facilitate official travel. In the absence of specific statutory 
authority such as 31 U.S.C. 1353, 5 U.S.C. 4111 or 7342, or agency gift 
acceptance statutes, augmentation of agency appropriations through 
acceptance of non-Federal contributions for agency travel is 
prohibited. Moreover, employee acceptance, in a private capacity, of 
non-Federal contributions of travel expenses incurred in connection 
with official speech could raise concerns under 18 U.S.C. 209. The 
first sentence of the note following paragraph (a)(2)(iii)(D) is 
intended to alert employees to the possible implications of section 209 
where travel expenses are incurred in connection with teaching, 
speaking, or writing undertaken as an employee, i.e., officially.
    An additional suggestion by these employees--``that sponsoring/
inviting organizations be allowed to contribute honorariums, which 
would otherwise be payable to an individual, to legitimate volunteer/
charitable organizations, without reference/designation to the Federal 
employee''--similarly misconstrues the reach of Sec. 2635.807. The 
compensation bar applies only to executive branch employees. Nothing in 
the rule prohibits outside organizations from any form of giving on 
their own to charitable or for-profit organizations.
    One agency recommended that we add to Sec. 2635.807 a ``definition 
of `travel expenses' in order to avoid any confusion about what this 
phrase is deemed to cover (transportation, lodging, incidentals, meals, 
etc.).'' We have not followed this suggestion. For purposes of the 
compensation prohibition, existing Sec. 2635.807(a)(2)(iii) makes clear 
that the term ``compensation'' is comprehensive of any ``consideration, 
remuneration or income * * * given for or in connection with the 
employee's teaching, speaking

[[Page 59674]]

or writing activities'' and explicitly includes ``transportation, 
lodgings and meals.'' The exception at paragraph (a)(2)(iii)(D) is 
equally clear, excluding from the definition of ``compensation'' 
``travel expenses, consisting of transportation, lodgings or meals, 
incurred in connection with the teaching, speaking or writing 
activity'' by employees other than covered noncareer employees.
    That agency also suggested that, in Example 1, we say that ``the 
speaking engagement'' rather than the ``speech'' is related to duties 
under Sec. 2635.807(a)(2)(i)(C) because the nexus to the employee's 
work is not the content of the speech but, rather, the fact that the 
employee is involved in drafting a regulation that will affect the 
organization that extended the speaking invitation. We have changed the 
wording to ``speaking activity,'' a phrase used elsewhere in the 
regulation.
    The same agency asked that we consider adding a note addressing the 
responsibility of employees who file financial disclosure forms to 
report on their forms any travel expenses they accept under the amended 
rule. We have added to the note following paragraph (a)(2)(iii)(D) a 
second sentence that alerts filers of financial disclosure reports of 
their obligation to report travel and travel reimbursements.
    Finally, OGE is updating the citation in Example 4 to the General 
Services Administration's regulation implementing 31 U.S.C. 1353.

Matters of Regulatory Procedure

Executive Order 12866

    In promulgating this final rule amendment, 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 Review and Planning. The amendment 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 final 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 amendatory 
rule will not have a significant economic impact on a substantial 
number of small entities because it primarily affects Federal executive 
branch employees.

Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply 
because this amendment does not contain information collection 
requirements that require the approval of the Office of Management and 
Budget.

Congressional Review Act

    The Office of Government Ethics has determined that this amendatory 
rulemaking is a nonmajor rule under the Congressional Review Act (5 
U.S.C. chapter 8) and has provided a report thereon to the United 
States Senate, House of Representatives and General Accounting Office 
in accordance with that law.

Unfunded Mandates Reform Act

    For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
chapter 25, subchapter II), this rule will not significantly or 
uniquely affect small governments and will not result in increased 
expenditures by State, local, and tribal governments, in the aggregate, 
or by the private sector, of $100 million or more (as adjusted for 
inflation).

List of Subjects in 5 CFR Part 2635

    Conflict of interests, Executive branch standards of ethical 
conduct, Government employees.

    Approved: September 18, 2001.
Amy L. Comstock,
Director, Office of Government Ethics.

    Accordingly, for the reasons set forth in the preamble, the Office 
of Government Ethics is adopting the interim rule amending 5 CFR part 
2635, which was published at 65 FR 53650-53652 on September 5, 2000, as 
final with the following changes:

PART 2635--STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE 
EXECUTIVE BRANCH

    1. The authority citation for part 2635 continues to read as 
follows:

    Authority: 5 U.S.C. 7301, 7351, 7353; 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 H--Outside Activities

    2. In Sec. 2635.807, paragraph (a)(2)(iii)(D) and Example 3 
following paragraph (a)(2)(iii)(D) are republished, and the Note and 
Examples 1, 2 and 4 following paragraph (a)(2)(iii)(D) are revised to 
read as follows:


Sec. 2635.807  Teaching, speaking and writing.

    (a) * * *
    (2) * * *
    (iii) * * *
    (D) In the case of an employee other than a covered noncareer 
employee as defined in 5 CFR 2636.303(a), travel expenses, consisting 
of transportation, lodgings or meals, incurred in connection with the 
teaching, speaking or writing activity.

    Note to Paragraph (a)(2)(iii): Independent of Sec. 2635.807(a), 
other authorities, such as 18 U.S.C. 209, in some circumstances may 
limit or entirely preclude an employee's acceptance of travel 
expenses. In addition, employees who file financial disclosure 
reports should be aware that, subject to applicable thresholds and 
exclusions, travel and travel reimbursements accepted from sources 
other than the United States Government must be reported on their 
financial disclosure reports.

    Example 1 to paragraph (a)(2)(iii): A GS-15 employee of the 
Forest Service has developed and marketed, in her private capacity, 
a speed reading technique for which popular demand is growing. She 
is invited to speak about the technique by a representative of an 
organization that will be substantially affected by a regulation on 
land management which the employee is in the process of drafting for 
the Forest Service. The representative offers to pay the employee a 
$200 speaker's fee and to reimburse all her travel expenses. She may 
accept the travel reimbursements, but not the speaker's fee. The 
speaking activity is related to her official duties under 
Sec. 2635.807(a)(2)(i)(C) and the fee is prohibited compensation for 
such speech; travel expenses incurred in connection with the 
speaking engagement, on the other hand, are not prohibited 
compensation for a GS-15 employee.
    Example 2 to paragraph (a)(2)(iii): Solely because of her recent 
appointment to a Cabinet-level position, a Government official is 
invited by the Chief Executive Officer of a major international 
corporation to attend firm meetings to be held in Aspen for the 
purpose of addressing senior corporate managers on the importance of 
recreational activities to a balanced lifestyle. The firm offers to 
reimburse the official's travel expenses. The official may not 
accept the offer. The speaking activity is related to official 
duties under Sec. 2635.807(a)(2)(i)(B) and, because she is a covered 
noncareer employee as defined in Sec. 2636.303(a) of this chapter, 
the travel expenses are prohibited compensation as to her.
    Example 3 to paragraph (a)(2)(iii): A GS-14 attorney at the 
Federal Trade Commission (FTC) who played a lead role in a recently 
concluded merger case is invited to speak about the case, in his 
private capacity, at a conference in New York. The attorney has no 
public speaking responsibilities on behalf of the FTC apart from the 
judicial and administrative proceedings to which he is assigned. The 
sponsors of the conference offer to reimburse the attorney for 
expenses incurred in connection with his travel to

[[Page 59675]]

New York. They also offer him, as compensation for his time and 
effort, a free trip to San Francisco. The attorney may accept the 
travel expenses to New York, but not the expenses to San Francisco. 
The lecture relates to his official duties under paragraphs 
(a)(2)(i)(E)(1) and (a)(2)(i)(E)(2) of Sec. 2635.807, but because he 
is not a covered noncareer employee as defined in Sec. 2636.303(a) 
of this chapter, the expenses associated with his travel to New York 
are not a prohibited form of compensation as to him. The travel 
expenses to San Francisco, on the other hand, not incurred in 
connection with the speaking activity, are a prohibited form of 
compensation. If the attorney were a covered noncareer employee he 
would be barred from accepting the travel expenses to New York as 
well as the travel expenses to San Francisco.
    Example 4 to paragraph (a)(2)(iii): An advocacy group dedicated 
to improving treatments for severe pain asks the National Institutes 
of Health (NIH) to provide a conference speaker who can discuss 
recent advances in the agency's research on pain. The group also 
offers to pay the employee's travel expenses to attend the 
conference. After performing the required conflict of interest 
analysis, NIH authorizes acceptance of the travel expenses under 31 
U.S.C. 1353 and the implementing General Services Administration 
regulation, as codified under 41 CFR chapter 304, and authorizes an 
employee to undertake the travel. At the conference the advocacy 
group, as agreed, pays the employee's hotel bill and provides 
several of his meals. Subsequently the group reimburses the agency 
for the cost of the employee's airfare and some additional meals. 
All of the payments by the advocacy group are permissible. Since the 
employee is speaking officially and the expense payments are 
accepted under 31 U.S.C. 1353, they are not prohibited compensation 
under Sec. 2635.807(a)(2)(iii). The same result would obtain with 
respect to expense payments made by non-Government sources properly 
authorized under an agency gift acceptance statute, the Government 
Employees Training Act, 5 U.S.C. 4111, or the foreign gifts law, 5 
U.S.C. 7342.
* * * * *
[FR Doc. 01-29800 Filed 11-29-01; 8:45 am]
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