[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]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
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.
-----------------------------------------------------------------------
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]
BILLING CODE 6345-01-U