[Federal Register Volume 81, Number 108 (Monday, June 6, 2016)]
[Proposed Rules]
[Pages 36193-36211]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-13152]
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OFFICE OF GOVERNMENT ETHICS
5 CFR Part 2638
RIN 3209-AA42
Executive Branch Ethics Program Amendments
AGENCY: Office of Government Ethics.
ACTION: Proposed rule.
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SUMMARY: The Office of Government Ethics is proposing to amend the
[[Page 36194]]
regulation that sets forth the elements and procedures of the executive
branch ethics program. This comprehensive revision of 5 CFR part 2638
is informed by the experience gained over the last several decades
administering the program, and was developed in consultation with
agency ethics officials, the inspector general community, the Office of
Personnel Management, and the Department of Justice. The proposed
regulation defines and describes the executive branch ethics program,
delineates the responsibilities of various stakeholders, and enumerates
key executive branch ethics procedures.
DATES: Comments are invited and must be received on or before August
5, 2016.
ADDRESSES: You may submit comments, in writing, on this proposed rule,
identified by RIN 3209-AA42, by any of the following methods:
Email: [email protected]. Include the reference ``Proposed Amendment to
the Executive Branch Ethics Program Regulation, 3209-AA42'' in the
subject line of the message.
Fax: 202-482-9237.
Mail/Hand Delivery/Courier: Office of Government Ethics, Suite 500,
1201 New York Avenue NW., Washington, DC 20005-3917, Attention: Monica
Ashar, Assistant Counsel.
Instructions: All submissions must include the agency name of the
Office of Government Ethics and the Regulation Identifier Number (RIN),
3209-AA42, for this proposed rulemaking. All comments, including
attachments and other supporting materials, will become part of the
public record and be subject to public disclosure. Comments may be
posted at www.oge.gov. Sensitive personal information, such as account
numbers or Social Security numbers, should not be included. Comments
generally will not be edited to remove any identifying or contact
information.
FOR FURTHER INFORMATION CONTACT: Monica Ashar, Assistant Counsel;
Telephone: 202-482-9300; TTY: 800-877-8339; FAX: 202-482-9237.
SUPPLEMENTARY INFORMATION:
A. Background and Analysis of Proposed Rule Changes
Title IV of the Ethics in Government Act of 1978 as amended (the
Act), sets forth the responsibilities of the Director of the U.S.
Office of Government Ethics in providing overall direction of executive
branch policies related to preventing conflicts of interest on the part
of officers and employees of any executive agency. On January 9, 1981,
a final rule was published which set forth the elements of an agency's
ethics program, the responsibilities of an agency head with regard to
that program, and the duties of a Designated Agency Ethics Official. It
also established the formal advisory opinion service of the Office of
Government Ethics. See 46 FR 2582-2587 (January 9, 1981). These
provisions, which are now codified at subparts A through C of 5 CFR
part 2638, have remained largely unchanged since they were first
issued, despite having been developed when the executive branch-wide
ethics program was in its infancy.
The next substantive addition to part 2638 occurred in 1990. The
Office of Government Ethics Reauthorization Act of 1988, Public Law
100-598, granted the Director of the Office of Government Ethics the
authority to order corrective action on the part of individuals and
agencies, and to require certain reports from agencies. On January 18,
1990, the Office of Government Ethics issued interim regulations, as
later modified by the final rule, which established procedures to
correct deficiencies in executive branch ethics programs; to bring
individual agency employees into compliance with rules, regulations,
and executive orders relating to standards of conduct and conflicts of
interest; and to specify requirements for executive agency reports. See
55 FR 1665-1670 (January 18, 1990) and 55 FR 21845-21847 (May 30,
1990). These procedures, which are codified at subparts D through F of
part 2638, have remained unchanged since the final rule was issued 26
years ago.
That same year, the Office of Government Ethics issued a proposed
new subpart G to require executive branch ethics programs to maintain
ethics training programs for their employees. See 55 FR 38335-38337
(September 18, 1990). After the final rule was promulgated in 1992, the
Office of Government Ethics made several revisions to the training
regulations, based in part on feedback from agency ethics officials.
See 62 FR 11307 (March 12, 1997). The most recent amendment occurred 16
years ago, and was done to rewrite the regulation in plain language.
See 65 FR 7275-7281 (February 14, 2000).
The proposed revisions, which are described in further detail
below, draw upon the collective experience of agency ethics officials
across the executive branch and the Office of Government Ethics as the
supervising ethics office. They reflect the extensive input that the
executive branch ethics community provided throughout the drafting
process. In short, they present a comprehensive picture of the
executive branch ethics program, its responsibilities and its
procedures, as reflected through 35 years of interpreting and
implementing the Ethics in Government Act of 1978, as amended, as well
as other applicable statutes, regulations, executive orders and
authorities.
Mission and Responsibilities
The proposed subpart A, titled ``Mission and Responsibilities,''
presents an overarching view of the executive branch ethics program and
establishes context for part 2638. It opens by setting forth the
program's core principles: Its mission of preventing conflicts of
interest, the breadth of conflicts prevention, and the scope of a
conflicts-based program. Whereas the current regulation necessarily
focuses on the granular operations of the executive branch ethics
program, the proposed rule seeks also to articulate the core goals that
guide the program's work.
Subpart A then expands upon the regulations that currently exist at
subpart B and that have remained largely unchanged since their issuance
in 1981. The existing provisions, collected under the heading
``Designated Agency Ethics Official,'' enumerate the responsibilities
of the agency head, the duties of the Designated Agency Ethics Official
(DAEO), and the delegation of those duties by the DAEO to one or more
deputy agency ethics officials. However, as the Office of Government
Ethics and agency ethics officials have experienced in the time since
issuance of those provisions, there are several agency operations
outside of the DAEO's control that are nonetheless critical to the
success of an agency ethics program. Further, while the agency head is
ultimately responsible for the ethics program, the structure of the
existing subpart B serves to understate the agency head's role. The
proposed subpart A improves upon the current regulation by identifying
key constituencies individually and delineating their responsibilities.
Subpart A concludes by defining the role and responsibilities of
the Office of Government Ethics as the supervising ethics office for
the executive branch. It expands upon the provision presently located
at Sec. 2638.102 to provide a more comprehensive list of the
authorities and functions of the agency. It also institutionalizes
certain practices, such as convening quarterly meetings, that the
Office of Government Ethics otherwise plans to continue indefinitely.
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Procedures of the Executive Branch Ethics Program
The proposed subpart B centralizes the procedures of the executive
branch ethics program. At present, these procedures are found in the
existing subpart C (Formal Advisory Opinion Service), the existing
subpart F (Executive Branch Agency Reports), and in several advisories
that are available on the public-facing Web site of the Office of
Government Ethics. These procedures concern the furnishing of
information, records and reports to the Office of Government Ethics;
the executive branch's collection of financial disclosure reports; and
the issuance of formal advisory opinions and other written guidance by
the Office of Government Ethics. Further, the proposed subpart B will
include one new procedure, which pertains to ethics preparations for
presidential transitions.
With respect to financial disclosure reports, Sec. Sec. 2638.203
through 2638.205 establish the procedures that the executive branch
ethics program will use to collect public and confidential financial
disclosure reports. Part 2634 of this chapter addresses the substantive
requirements of public and confidential financial disclosure, as well
as the processes for individual agencies' review, maintenance, and,
where applicable, release of financial disclosure reports.
Government Ethics Education
Subpart C further modernizes the ethics training regulations
currently located at subpart G. This revision is one of several that
have occurred since the training regulations were first issued in 1992.
Most notably, it acknowledges the increased use of technology to
fulfill existing training requirements and updates the current
framework, which distinguishes between ``verbal training'' and
``written training,'' so that the key distinction will be between
``live training'' and ``interactive training.'' Interactive training
may take a variety of forms, and training that satisfies the
requirements for live training will also always satisfy the
requirements for interactive training.
Additionally, it creates greater flexibility for agency ethics
officials--who are in the best position to know their agencies'
programs and operations--to tailor the content of the training to meet
the needs of their employees. For example, for employees who are
required to receive annual training, the current subpart C has required
the agency's training to cover each of the principles of ethical
conduct, each of the standards of ethical conduct, and each of the
Federal conflict of interest statutes, in addition to any agency
supplemental standards of conduct. The proposed rule distills this
broad range of topics into four key topic areas and provides the DAEO
with broad discretion to determine how much of the training to devote
to each of these four topic areas. After covering these four required
topic areas, as briefly or extensively as the circumstances warrant, an
agency's training may focus on other government ethics topics that the
DAEO deems relevant to the audience being trained.
As part of this modernization, subpart C also makes adjustments to
the existing requirements for initial ethics orientation and annual
training. At the same time, it introduces a new requirement to brief
certain agency leaders around the time of appointment. This briefing
must occur after confirmation but no later than 15 days after
appointment, unless the DAEO grants a 15-day extension. A limited
exception permits the DAEO to grant an individual an additional
extension, but only in extraordinary circumstances. An individual's
workload, meeting schedule, or travel schedule will normally not,
without more, constitute extraordinary circumstances. Extraordinary
circumstances necessitating an additional extension might include a
natural or manmade disaster, an imminent threat to national security,
the individual's physical incapacity, the individual's absence from the
office in connection with the death of a family member, and other
circumstances of a similarly disruptive magnitude.
Subpart C also introduces requirements for agencies to inform
prospective employees, in any written employment offers, of the ethical
obligations associated with the positions being offered, and to notify
newly appointed supervisors of their unique role in the agency ethics
program. By taking advantage of existing personnel systems for issuing
written offers of employment and for training new supervisors, agencies
can, with little additional effort, inform employees of their newly
acquired ethical responsibilities. For example, the notice to new
supervisors that is required under Sec. 2638.306 could be provided to
new supervisors either in the written notice that they are subject to
the requirements of 5 CFR 412.202(b) or during the training they
receive pursuant to 5 CFR 412.202(b).
Subpart C acknowledges that ethics officials may coordinate with
other offices to fulfill certain programmatic requirements. For
example, an agency's Office of Human Resources may be delegated the
responsibility to inform prospective employees, in written employment
offers, of their ethical obligations. With respect to the tracking of
specified activities performed by offices that are not supervised by
the DAEO, as described in Sec. 2638.310, the Office of Government
Ethics requires only that the DAEO receive a written summary of the
established procedures, and a written confirmation that these
procedures are being properly implemented. Where Sec. 2638.310
applies, agencies need not track the completion of each particular
action taken with respect to individual employees.
Finally, subpart C eliminates the formal requirement for agencies
to develop training plans, which largely consist of inordinately
detailed estimates of various categories of employees required to
complete annual training in a particular year. In the experience of the
Office of Government Ethics, these plans appear to contribute little to
the success of agency training programs while requiring a
disproportionately large effort from agency ethics officials. The
requirement to engage in reasonable planning efforts still applies, but
the Office of Government Ethics will no longer prescribe the form these
efforts must take. See Executive Order 12674 of April 12, 1989, as
modified by Executive Order 12731 of October 17, 1990.
Correction of Executive Branch Agency Ethics Programs
The proposed subpart D modifies the current subpart D, which
establishes procedures for the correction of executive branch ethics
programs. These procedures are implemented when there are indications
that an agency ethics program is not in compliance with the
requirements set forth in applicable government ethics laws and
regulations. The proposed subpart D improves the current procedures by
enumerating several informal actions that the Director may take in
order to bring the agency into compliance. These informal procedures
reflect the practice of the Office of Government Ethics over the past
several decades. The Office of Government Ethics has found that
informal resolution is often an appropriate and effective alternative
to formal action because it involves agency ethics officials and other
stakeholders in actively crafting and implementing a resolution.
However, in the event that informal action does not resolve the
deficiency, the Director will take formal
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action with respect to the agency's ethics program, as required by the
Act.
Corrective Action Involving Individual Employees
The proposed subpart E modifies the current subpart E, which
contains procedures for addressing potential violations of noncriminal
ethics laws and regulations by individual employees. These corrective
action procedures, which were established in 1990, have generated
considerable confusion among external stakeholders over the past 26
years. The proposed subpart E therefore seeks to clarify three
fundamental elements. First, it clarifies the meaning and effect of
subpart E, particularly with respect to the limits on the authority of
the Office of Government Ethics to direct employees to take corrective
action. Second, it emphasizes that, in practice, suspected violations
of noncriminal government ethics laws or regulations are generally
resolved without the need for formal action on the part of the Office
of Government Ethics. Third, it makes clear that, as a matter of law,
the formal procedures may be used only when no criminal law is or has
been implicated.
General Provisions
The proposed subpart F, which comprises general provisions, largely
incorporates subpart A of the current regulation. Additionally, the
proposed subpart F provides a comprehensive list of key ethics dates
and deadlines that are otherwise dispersed throughout this part and
other statutes and regulations.
B. Matters of Regulatory Procedure
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 proposed rule
would not have a significant economic impact on a substantial number of
small entities because it primarily affects current and former Federal
executive branch employees.
Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply
because this regulation does not contain information collection
requirements that require approval of the Office of Management and
Budget.
Unfunded Mandates Reform Act
For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
chapter 5, subchapter II), this proposed rule would 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) in any one year.
Executive Order 13563 and Executive Order 12866
Executive Orders 13563 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select the regulatory approaches that
maximize net benefits (including economic, environmental, public health
and safety effects, distributive impacts, and equity). Executive Order
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This rulemaking has been designated as a ``significant regulatory
action'' although not economically significant, under section 3(f) of
Executive Order 12866. Accordingly this proposed rule has been reviewed
by the Office of Management and Budget.
Executive Order 12988
As Director of the Office of Government Ethics, I have reviewed
this proposed rule in light of section 3 of Executive Order 12988,
Civil Justice Reform, and certify that it meets the applicable
standards provided therein.
List of Subjects in 5 CFR Part 2638
Administrative practice and procedure, Conflict of interests,
Government employees, Reporting and recordkeeping requirements.
Approved: May 31, 2016.
Walter M. Shaub, Jr.,
Director, Office of Government Ethics.
Accordingly, for the reasons set forth in the preamble, the Office
of Government Ethics proposes to revise 5 CFR part 2638 to read as
follows:
PART 2638--EXECUTIVE BRANCH ETHICS PROGRAM
Subpart A--Mission and Responsibilities
Sec.
2638.101 Mission.
2638.102 Government ethics responsibilities of employees.
2638.103 Government ethics responsibilities of supervisors.
2638.104 Government ethics responsibilities of agency ethics
officials.
2638.105 Government ethics responsibilities of lead human resources
officials.
2638.106 Government ethics responsibilities of responsibilities of
Inspectors General.
2638.107 Government ethics responsibilities of agency heads.
2638.108 Government ethics responsibilities of the Office of
Government Ethics.
Subpart B--Procedures of the Executive Branch Ethics Program
2638.201 In general.
2638.202 Furnishing records and information generally.
2638.203 Collection of public financial disclosure reports required
to be submitted to the Office of Government Ethics.
2638.204 Collection of other public financial disclosure reports.
2638.205 Collection of confidential financial disclosure reports.
2638.206 Notice to the Director of certain referrals to the
Department of Justice.
2638.207 Annual report on the agency's ethics program.
2638.208 Written guidance on the executive branch ethics program.
2638.209 Formal advisory opinions.
2638.210 Presidential transition planning.
Subpart C--Government Ethics Education
2638.301 In general.
2638.302 Definitions.
2638.303 Notice to prospective employees.
2638.304 Initial ethics training.
2638.305 Additional ethics briefing for certain agency leaders.
2638.306 Notice to new supervisors.
2638.307 Annual ethics training for confidential filers and certain
other employees.
2638.308 Annual ethics training for public filers.
2638.309 Agency-specific ethics education requirements.
2638.310 Coordinating the agency's ethics education program.
Subpart D--Correction of Executive Branch Agency Ethics Programs
2638.401 In general.
2638.402 Informal action.
2638.403 Formal action.
Subpart E--Corrective Action Involving Individual Employees
2638.501 In general.
2638.502 Violations of criminal provisions related to government
ethics.
2638.503 Recommendations and advice to employees and agencies.
2638.504 Violations of noncriminal provisions related to government
ethics.
Subpart F--General Provisions
2638.601 Authority and purpose.
2638.602 Agency regulations.
2638.603 Definitions.
2638.604 Key program dates.
Authority: 5 U.S.C. App. 101-505; 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 A--Mission and Responsibilities
Sec. 2638.101 Mission.
(a) Mission. The primary mission of the executive branch ethics
program is
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to prevent conflicts of interest on the part of executive branch
employees.
(b) Breadth. The executive branch ethics program works to ensure
that public servants make impartial decisions based on the interests of
the public when carrying out the governmental responsibilities
entrusted to them, serve as good stewards of public resources, and
loyally adhere to the Constitution and laws of the United States. The
program's mission includes preventing conflicts of interest that stem
from: Financial interests; business or personal relationships; misuses
of official position, official time, or public resources; and the
receipt of gifts. The mission is focused on both conflicts of interest
and the appearance of conflicts of interest.
(c) Conflicts-based program. The executive branch ethics program is
a conflicts-based program, rather than a solely disclosure-based
program. While transparency is an invaluable tool for promoting and
monitoring ethical conduct, the executive branch ethics program
requires more than transparency. This program seeks to ensure the
integrity of governmental decision-making and to promote public
confidence by preventing conflicts of interest. Taken together, the
systems in place to identify and address conflicts of interest
establish a foundation on which to build and sustain an ethical culture
in the executive branch.
Sec. 2638.102 Government ethics responsibilities of employees.
Consistent with the fundamental principle that public service is a
public trust, every employee in the executive branch plays a critical
role in the executive branch ethics program. As provided in the
Standards of Conduct at part 2635 of this chapter, employees must
endeavor to act at all times in the public's interest, avoid losing
impartiality or appearing to lose impartiality in carrying out official
duties, refrain from misusing their offices for private gain, serve as
good stewards of public resources, and comply with the requirements of
government ethics laws and regulations, including any applicable
financial disclosure requirements. Employees must refrain from
participating in particular matters in which they have financial
interests and, pursuant to Sec. 2635.402(f) of this chapter, should
notify their supervisors or ethics officials when their official duties
create the substantial likelihood of such conflicts of interest.
Collectively, the charge of employees is to make ethical conduct the
hallmark of government service.
Sec. 2638.103 Government ethics responsibilities of supervisors.
Every supervisor in the executive branch has a heightened personal
responsibility for advancing government ethics. It is imperative that
supervisors serve as models of ethical behavior for subordinates.
Supervisors have a responsibility to help ensure that subordinates are
aware of their ethical obligations under the Standards of Conduct and
that subordinates know how to contact agency ethics officials.
Supervisors are also responsible for working with agency ethics
officials to help resolve conflicts of interest and enforce government
ethics laws and regulations, including those requiring certain
employees to file financial disclosure reports. In addition,
supervisors are responsible, when requested, for assisting agency
ethics officials in evaluating potential conflicts of interest and
identifying positions subject to financial disclosure requirements.
Sec. 2638.104 Government ethics responsibilities of agency ethics
officials.
(a) Appointment of a Designated Agency Ethics Official. Each agency
head must appoint a Designated Agency Ethics Official (DAEO). The DAEO
is the employee with primary responsibility for directing the daily
activities of the agency's ethics program and coordinating with the
Office of Government Ethics.
(b) Qualifications necessary to serve as DAEO. The following are
necessary qualifications of an agency's DAEO:
(1) The DAEO must be an employee at an appropriate level in the
organization, such that the DAEO is able to coordinate effectively with
officials in relevant agency components and gain access to the agency
head when necessary to discuss important matters related to the
agency's ethics program.
(2) The DAEO must be an employee who has demonstrated the
knowledge, skills, and abilities necessary to manage a significant
agency program, to understand and apply complex legal requirements, and
to generate support for building and sustaining an ethical culture in
the organization.
(3) On an ongoing basis, the DAEO must demonstrate the capacity to
serve as an effective advocate for the executive branch ethics program,
show support for the mission of the executive branch ethics program,
prove responsive to the Director's requests for documents and
information related to the ethics program, and serve as an effective
liaison with the Office of Government Ethics.
(4) In any agency with 1,000 or more employees, any DAEO appointed
after the effective date of this regulation must be an employee at the
senior executive level or higher, unless the agency has fewer than 10
positions at that level.
(c) Responsibilities of the DAEO. Acting directly or through other
officials, the DAEO is responsible for taking actions authorized or
required under this subchapter, including the following:
(1) Serving as an effective liaison to the Office of Government
Ethics;
(2) Maintaining records of agency ethics program activities;
(3) Promptly and timely furnishing the Office of Government Ethics
with all documents and information requested or required under subpart
B of this part;
(4) Providing advice and counseling to prospective and current
employees regarding government ethics laws and regulations, and
providing former employees with advice and counseling regarding post-
employment restrictions applicable to them;
(5) Carrying out an effective government ethics education program
under subpart C of this part;
(6) Taking appropriate action to resolve conflicts of interest and
the appearance of conflicts of interest, through recusals, directed
divestitures, waivers, authorizations, reassignments, and other
appropriate means;
(7) Consistent with Sec. 2640.303 of this chapter, consulting with
the Office of Government Ethics regarding the issuance of waivers
pursuant to 18 U.S.C. 208(b);
(8) Carrying out an effective financial disclosure program, by:
(i) Establishing such written procedures as are appropriate
relative to the size and complexity of the agency's financial
disclosure program for the filing, review, and, when applicable, public
availability of financial disclosure reports;
(ii) Requiring public and confidential filers to comply with
deadlines and requirements for financial disclosure reports under part
2634 of this chapter and, in the event of noncompliance, taking
appropriate action to address such noncompliance;
(iii) Imposing late fees in appropriate cases involving untimely
filing of public financial disclosure reports;
(iv) Making referrals to the Inspector General or the Department of
Justice in appropriate cases involving knowing and willful
falsification of financial disclosure reports or knowing and willful
failure to file financial disclosure reports;
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(v) Reviewing financial disclosure reports, with an emphasis on
preventing conflicts of interest;
(vi) Consulting, when necessary, with financial disclosure filers
and their supervisors to evaluate potential conflicts of interest;
(vii) Timely certifying financial disclosure reports and taking
appropriate action with regard to financial disclosure reports that
cannot be certified; and
(viii) Using the information disclosed in financial disclosure
reports to prevent and resolve potential conflicts of interest.
(9) Assisting the agency in its enforcement of ethics laws and
regulations when agency officials:
(i) Make appropriate referrals to the Inspector General or the
Department of Justice;
(ii) Take disciplinary or corrective action; and
(iii) Employ other means available to them.
(10) Upon request of the Office of Inspector General, providing
that office with ready and active assistance with regard to the
interpretation and application of government ethics laws and
regulations, as well as the procedural requirements of the ethics
program;
(11) Ensuring that the agency has a process for notifying the
Office of Government Ethics upon referral, made pursuant to 28 U.S.C.
535, to the Department of Justice regarding a potential violation of a
conflict of interest law, unless such notification would be prohibited
by law;
(12) Providing agency officials with advice on the applicability of
government ethics laws and regulations to special Government employees;
(13) Requiring timely compliance with ethics agreements, pursuant
to part 2634, subpart H of this chapter;
(14) Conducting ethics briefings for certain agency leaders,
pursuant to Sec. 2638.305;
(15) Prior to any Presidential election, preparing the agency's
ethics program for a potential Presidential transition; and
(16) Periodically evaluating the agency's ethics program and making
recommendations to the agency regarding the resources available to the
ethics program.
(d) Appointment of an Alternate Designated Agency Ethics Official.
Each agency head must appoint an Alternate Designated Agency Ethics
Official (ADAEO). The ADAEO serves as the primary deputy to the DAEO in
the administration of the agency's ethics program. Together, the DAEO
and the ADAEO direct the daily activities of an agency's ethics program
and coordinate with the Office of Government Ethics. The ADAEO must be
an employee who has demonstrated the skills necessary to assist the
DAEO in the administration of the agency's ethics program.
(e) Program support by additional ethics officials and other
individuals. Subject to approval by the DAEO or the agency head, an
agency may designate additional ethics officials and other employees to
assist the DAEO in carrying out the responsibilities of the ethics
program, some of whom may be designated ``deputy ethics officials'' for
purposes of parts 2635 and 2636 of this chapter. The agency is
responsible for ensuring that these employees have the skills and
expertise needed to perform their assigned duties related to the ethics
program and must provide appropriate training to them for this purpose.
Although the agency may appoint such officials as are necessary to
assist in carrying out functions of the agency's ethics program, they
will be subject to the direction of the DAEO with respect to the
functions of the agency's ethics program described in this chapter. The
DAEO retains authority to make final decisions regarding the agency's
ethics program and its functions, subject only to the authority of the
agency head and the Office of Government Ethics.
(f) Ethics responsibilities that may be performed only by the DAEO
or ADAEO. In addition to any items reserved for action by the DAEO or
ADAEO in other parts of this chapter, only the DAEO or ADAEO may carry
out the following responsibilities:
(1) Request approval of supplemental agency regulations, pursuant
to Sec. 2635.105 of this chapter;
(2) Recommend a separate component designation, pursuant to Sec.
2641.302(e) of this chapter;
(3) Request approval of an alternative means for collecting certain
public financial disclosure reports, pursuant to Sec. 2638.204(c);
(4) Request determinations regarding public reporting requirements,
pursuant to Sec. Sec. 2634.202(c), 2634.203, 2634.205, and 2634.304(f)
of this chapter;
(5) Make determinations, other than exceptions in individual cases,
regarding the means the agency will use to collect public or
confidential financial disclosure reports, pursuant to Sec. Sec.
2638.204 and 2638.205;
(6) Request an alternative procedure for filing confidential
financial disclosure reports, pursuant to Sec. 2634.905(a) of this
chapter;
(7) Request a formal advisory opinion on behalf of the agency or a
prospective, current, or former employee of that agency, pursuant to
Sec. 2638.209(d); and
(8) Request a certificate of divestiture, pursuant to Sec.
2634.1005(b) of this chapter.
Sec. 2638.105 Government ethics responsibilities of lead human
resources officials.
(a) The lead human resources official, as defined in Sec.
2638.603, acting directly or through delegees, is responsible for:
(1) Promptly notifying the DAEO of all appointments to positions
that require incumbents to file public or confidential financial
disclosure reports, with the notification occurring prior to
appointment whenever practicable but in no case occurring more than 15
days after appointment; and
(2) Promptly notifying the DAEO of terminations of employees in
positions that require incumbents to file public financial disclosure
reports, with the notification occurring prior to termination whenever
practicable but in no case occurring more than 15 days after
termination.
(b) The lead human resources official may be assigned certain
additional ethics responsibilities by the agency.
(1) If an agency elects to assign such responsibilities to human
resources officials, the lead human resources official is responsible
for coordinating, to the extent necessary and practicable, with the
DAEO to support the agency's ethics program;
(2) If the lead human resources official is responsible for
conducting ethics training pursuant to subpart C of this part, that
official must follow the DAEO's directions regarding applicable
requirements, procedures, and the qualifications of any presenters,
consistent with the requirements of this chapter;
(3) If the lead human resources official is responsible for issuing
the required government ethics notices in written offers of employment,
pursuant to Sec. 2638.303, or providing supervisory ethics notices,
pursuant to Sec. 2638.306, that official must comply with any
substantive and procedural requirements established by the DAEO,
consistent with the requirements of this chapter; and
(4) To the extent applicable, the lead human resources official is
required to provide the DAEO with a written summary and confirmation
regarding procedures for implementing certain requirements of subpart C
of this part by January 15 each year, pursuant to Sec. 2638.310.
(c) Nothing in this section prevents an agency head from delegating
the duties described in paragraph (b) of this
[[Page 36199]]
section to another agency official. In the event that an agency head
delegates the duties described in paragraph (b) of this section to an
agency official other than the lead human resources official, the
requirements of paragraph (b) of this section will apply to that
official.
Sec. 2638.106 Government ethics responsibilities of Inspectors
General.
An agency's Inspector General has authority to conduct
investigations of suspected violations of conflict of interest laws and
other government ethics laws and regulations. An Inspector General is
responsible for giving serious consideration to a request made pursuant
to section 403 of the Ethics in Government Act of 1978 (the ``Act'') by
the Office of Government Ethics for investigation of a possible
violation of a government ethics law or regulation. In addition, an
Inspector General is responsible for providing the Office of Government
Ethics information about certain referrals to the Department of
Justice, pursuant to Sec. 2638.206. An Inspector General may consult
with the Director for legal guidance on the application of government
ethics laws and regulations, except that the Director may not make any
finding as to whether a provision of title 18, United States Code, or
any criminal law of the United States outside of such title, has been
or is being violated.
Sec. 2638.107 Government ethics responsibilities of agency heads.
The agency head is responsible for, and will exercise personal
leadership in, establishing and maintaining an effective agency ethics
program and fostering an ethical culture in the agency. The agency head
is also responsible for:
(a) Designating employees to serve as the DAEO and ADAEO and
notifying the Director in writing within 30 days of such designation;
(b) Providing the DAEO with sufficient resources, including
staffing, to sustain an effective ethics program;
(c) Requiring agency officials to provide the DAEO with the
information, support, and cooperation necessary for the accomplishment
of the DAEO's responsibilities;
(d) When action is warranted, enforcing government ethics laws and
regulations through appropriate referrals to the Inspector General or
the Department of Justice, investigations, and disciplinary or
corrective action;
(e) Requiring that violations of government ethics laws and
regulations, or interference with the functioning of the agency ethics
program, be appropriately considered in evaluating the performance of
senior executives;
(f) Requiring the Chief Information Officer and other appropriate
agency officials to support the DAEO in using technology, to the extent
practicable, to carry out ethics program functions such as delivering
interactive training and tracking ethics program activities;
(g) Requiring appropriate agency officials to submit to the Office
of Government Ethics, by May 31 each year, required reports of travel
accepted by the agency under 31 U.S.C. 1353 during the period from
October 1 through March 31;
(h) Requiring appropriate agency officials to submit to the Office
of Government Ethics, by November 30 each year, required reports of
travel accepted by the agency under 31 U.S.C. 1353 during the period
from April 1 through September 30; and
(i) Prior to any Presidential election, supporting the agency's
ethics program in preparing for a Presidential transition.
Sec. 2638.108 Government ethics responsibilities of the Office of
Government Ethics.
The Office of Government Ethics is the supervising ethics office
for the executive branch, providing overall leadership and oversight of
the executive branch ethics program designed to prevent and resolve
conflicts of interest. The Office of Government Ethics has the
authorities and functions established in the Act.
(a) Authorities and functions. Among other authorities and
functions, the Office of Government Ethics has the authorities and
functions described in this section.
(1) The Office of Government Ethics issues regulations regarding
conflicts of interest, standards of conduct, financial disclosure,
requirements for agency ethics programs, and executive branch-wide
systems of records for government ethics records. In issuing any such
regulations, the Office of Government Ethics will, to the full extent
required under the Act and any Executive Order, coordinate with the
Department of Justice and the Office of Personnel Management. When
practicable, the Office of Government Ethics will also consult with a
diverse group of selected agency ethics officials that represent a
cross section of executive branch agencies to ascertain representative
views of the DAEO community when developing substantive revisions to
this chapter.
(2) The Office of Government Ethics reviews and approves or
disapproves agency supplemental ethics regulations.
(3) The Office of Government Ethics issues formal advisory opinions
to interested parties, pursuant to Sec. 2638.209. When developing a
formal advisory opinion, the Office of Government Ethics will provide
interested parties with an opportunity to comment.
(4) The Office of Government Ethics issues guidance and informal
advisory opinions, pursuant to Sec. 2638.208. When practicable, the
Office of Government Ethics will consult with selected agency ethics
officials to ascertain representative views of the DAEO community when
developing guidance or informal advisory opinions that the Director
determines to be of significant interest to a broad segment of the DAEO
community.
(5) The Office of Government Ethics supports agency ethics
officials through such training, advice, and counseling as the Director
deems necessary.
(6) The Office of Government Ethics provides assistance in
interpreting government ethics laws and regulations to executive branch
Offices of Inspector General and other executive branch entities.
(7) When practicable, the Office of Government Ethics convenes
quarterly executive branch-wide meetings of key agency ethics
officials. When the Office of Government Ethics convenes a major
executive branch-wide training event, the event normally serves in
place of a quarterly meeting.
(8) Pursuant to sections 402(b)(10) and 403 of the Act, the
Director requires agencies to furnish the Office of Government Ethics
with all information, reports, and records which the Director
determines to be necessary for the performance of the Director's
duties, except when such a release is prohibited by law.
(9) The Office of Government Ethics conducts reviews of agency
ethics programs in order to ensure their compliance with program
requirements and to ensure their effectiveness in advancing the mission
of the executive branch-wide ethics program. The Office of Government
Ethics also conducts single-issue reviews of individual agencies,
groups of agencies, or the executive branch ethics program as a whole.
(10) The Office of Government Ethics reviews financial disclosure
reports filed by employees, former employees, nominees, candidates for
the Office of the President of the United States, and candidates for
the Office of the Vice President of the United States who are required
to file executive branch financial disclosure reports with the Office
of Government Ethics pursuant to
[[Page 36200]]
sections 101, 103(c), and 103(l) of the Act.
(11) By January 15 each year, the Office of Government Ethics
issues year-end reports to agencies regarding their compliance with the
obligations, pursuant to section 103(c) of the Act and part 2634 of
this chapter:
(i) To timely transmit the annual public financial disclosure
reports of certain high-level officials to the Office of Government
Ethics; and
(ii) To promptly submit such additional information as is necessary
to obtain the Director's certification of the reports.
(12) The Office of Government Ethics oversees the development of
ethics agreements between agencies and Presidential nominees for
positions in the executive branch requiring Senate confirmation and
tracks compliance with such agreements. The Office of Government Ethics
also maintains a guide that provides sample language for ethics
agreements of Presidential nominees requiring Senate confirmation.
(13) The Office of Government Ethics proactively assists
Presidential Transition Teams in support of effective and efficient
Presidential transitions and, to the extent practicable, may provide
Presidential campaigns with advice and counsel on preparing for
Presidential transitions.
(14) The Office of Government Ethics orders such corrective action
on the part of an agency as the Director deems necessary, pursuant to
subpart D of this part, and such corrective action on the part of
individual executive branch employees as the Director deems necessary,
pursuant to subpart E of this part.
(15) The Office of Government Ethics makes determinations regarding
public financial disclosure requirements, pursuant to Sec. Sec.
2634.202(c), 2634.203, 2634.205, and 2634.304(f) of this chapter.
(16) The Office of Government Ethics conducts outreach to inform
the public of matters related to the executive branch ethics program.
(17) The Director and the Office of Government Ethics take such
other actions as are necessary and appropriate to carry out their
responsibilities under the Act.
(b) Other authorities and functions. Nothing in this subpart or
this chapter limits the authority of the Director or the Office of
Government Ethics under the Act.
Subpart B--Procedures of the Executive Branch Ethics Program
Sec. 2638.201 In general.
This subpart establishes certain procedures of the executive branch
ethics program. The procedures set forth in this subpart are in
addition to procedures established elsewhere in this chapter and in the
program advisories and other issuances of the Office of Government
Ethics.
Sec. 2638.202 Furnishing records and information generally.
Consistent with sections 402 and 403 of the Act, each agency must
furnish to the Director all information and records in its possession
which the Director deems necessary to the performance of the Director's
duties, except to the extent prohibited by law. All such information
and records must be provided to the Office of Government Ethics in a
complete and timely manner.
Sec. 2638.203 Collection of public financial disclosure reports
required to be submitted to the Office of Government Ethics.
The public financial disclosure reports of individuals, other than
candidates for elected office and elected officials, whose reports are
required by section 103 of the Act to be transmitted to the Office of
Government Ethics will be transmitted through the executive branch-wide
electronic filing system of the Office of Government Ethics, except in
cases in which the Director determines that using that system would be
impracticable.
Sec. 2638.204 Collection of other public financial disclosure
reports.
This section establishes the procedure that the executive branch
ethics program will use to collect, pursuant to section 101 of the Act,
public financial disclosure reports of individuals whose reports are
not required by section 103 of the Act to be transmitted to the Office
of Government Ethics.
(a) General. Subject to the exclusions and exceptions in paragraphs
(b) through (d) of this section, the public financial disclosure
reports required by part 2634 of this chapter will be collected through
the executive branch-wide electronic filing system of the Office of
Government Ethics.
(b) Exclusions. This section does not apply to persons whose
financial disclosure reports are covered by section 105(a)(1) or (2) of
the Act, persons whose reports are required by section 103 of the Act
to be transmitted to the Office of Government Ethics, or such other
persons as the Director may exclude from the coverage of this section
in the interest of the executive branch ethics program.
(c) Authorization to collect public reports in paper format or
through a legacy electronic filing system. Upon written request signed
by the DAEO or ADAEO and by the Chief Information Officer, the Director
of the Office of Government Ethics may authorize an agency in the
interest of the executive branch ethics program to collect public
financial disclosure reports in paper format or through a legacy
electronic filing system other than the executive branch-wide
electronic filing system of the Office of Government Ethics. The
Director may rescind any such authorization based on a written
determination that the rescission promotes the efficiency or
effectiveness of the executive branch ethics program, but only after
providing the agency with advance written notice and an opportunity to
respond. The rescission will become effective on January 1 of a
subsequent calendar year, but not less than 24 months after notice is
provided.
(d) Exceptions in cases of extraordinary circumstances or temporary
technical difficulties. Based on a determination that extraordinary
circumstances or temporary technical difficulties make the use of an
electronic filing system impractical, the DAEO or ADAEO may authorize
an individual to file a public financial disclosure report using such
alternate means of filing as are authorized in the program advisories
of the Office of Government Ethics. To the extent practicable, agencies
should limit the number of exceptions they grant under this paragraph
each year. The Director may suspend an agency's authority to grant
exceptions under this paragraph when the Director is concerned that the
agency may be granting exceptions unnecessarily or in a manner that is
inconsistent with Sec. 2638.601(c). Nothing in this paragraph limits
the authority of the agency to excuse an employee from filing
electronically to the extent necessary to provide reasonable
accommodations under the Rehabilitation Act of 1973 (Public Law 93-
112), as amended, or other applicable legal authority.
Sec. 2638.205 Collection of confidential financial disclosure
reports.
This section establishes the procedure that the executive branch
will use to collect confidential financial disclosure reports from
employees of the executive branch. To the extent not inconsistent with
part 2634 of this chapter or with the approved forms, instructions, and
other guidance of the Office of Government Ethics, the DAEO of each
agency will determine the means by
[[Page 36201]]
which the agency will collect confidential financial disclosure
reports, including a determination as to whether the agency will
collect such reports in either paper or electronic format. Nothing in
this paragraph limits the authority of the agency to provide reasonable
accommodations under the Rehabilitation Act of 1973 (Public Law 93-
112), as amended, or other applicable legal authority.
Sec. 2638.206 Notice to the Director of certain referrals to the
Department of Justice.
This section establishes procedures implementing the requirement to
provide the Director with notice of certain referrals, pursuant to
sections 402(e)(2) and 403(a)(2) of the Act.
(a) Upon any referral made by an agency pursuant to 28 U.S.C. 535
to the Department of Justice regarding a potential violation of a
conflict of interest law, the referring agency must notify the Director
of the referral by filing a completed OGE Form 202 with the Director,
as soon as practicable after the referral but in no case more than 30
days after the referral, unless prohibited by law.
(b) Thereafter, unless prohibited by law, the referring agency must
promptly provide the Director with such other information as requested
regarding the matter and any related prosecution, civil action,
disciplinary action, or other corrective measure.
(c) If an agency's procedures authorize an official outside the
Office of Inspector General to make a referral covered by this section,
that official must provide the Inspector General and the DAEO with
copies of documents provided to the Director pursuant this section,
unless prohibited by law. If an Inspector General makes a referral
covered by this section, the Inspector General should provide the DAEO
with copies of documents provided to the Director pursuant to this
section, unless the Inspector General determines that disclosure to the
DAEO would be inappropriate or prohibited by law.
Sec. 2638.207 Annual report on the agency's ethics program.
(a) By February 1 of each year, the agency must file with the
Office of Government Ethics, pursuant to section 402(e)(1) of the Act,
a report containing such information about the agency's ethics program
as is requested by the Office of Government Ethics. The report must be
filed electronically and in a manner consistent with the instructions
of the Office of Government Ethics.
(b) In order to facilitate the collection of required information
by agencies, the Office of Government Ethics will provide agencies with
advance notice regarding the contents of the report prior to the
beginning of the reporting period for information that would be
expected to be tracked over the course of the reporting period.
Otherwise, it will provide as much notice as practicable, taking in
consideration the effort required to collect the information.
Sec. 2638.208 Written guidance on the executive branch ethics
program.
This section describes several means by which the Office of
Government Ethics provides agencies, employees, and the public with
guidance regarding its legal interpretations, program requirements, and
educational offerings. Normally, guidance documents are published on
the official Web site of the Office of Government Ethics.
(a) Legal advisories. The Office of Government Ethics issues legal
advisories, which are memoranda regarding the interpretation of
government ethics laws and regulations. They are intended primarily to
provide education and notice to executive branch ethics officials;
prospective, current, and former executive branch employees; and
individuals who interact with the executive branch.
(b) Program advisories. The Office of Government Ethics issues
program advisories, which are memoranda regarding the requirements or
procedures applicable to the executive branch ethics program and
individual agency ethics programs. They are intended primarily to
instruct agencies on uniform procedures for the executive branch ethics
program.
(c) Informal advisory opinions. Upon request or upon its own
initiative, the Office of Government Ethics issues informal advisory
opinions. Informal advisory opinions address subjects that in the
opinion of the Director do not meet the criteria for issuance of formal
advisory opinions. They are intended primarily to provide guidance to
individuals and illustrate the application of government ethics laws
and regulations to specific circumstances.
Sec. 2638.209 Formal advisory opinions.
This section establishes the formal advisory opinion service of the
Office of Government Ethics.
(a) General. The Office of Government Ethics renders formal
advisory opinions pursuant to section 402(b)(8) of the Act. A formal
advisory opinion will be issued when the Director determines that the
criteria and requirements established in this section are met.
(b) Subjects of formal advisory opinions. Formal advisory opinions
may be rendered on matters of general applicability or important
matters of first impression concerning the application of the Act;
Executive Order 12674 of April 12, 1989, as modified by Executive Order
12731 of October 17, 1990; 18 U.S.C. 202-209; and regulations
interpreting or implementing these authorities. In determining whether
to issue a formal advisory opinion, the Director will consider:
(1) The unique nature of the question and its precedential value;
(2) The potential number of employees throughout the government
affected by the question;
(3) The frequency with which the question arises;
(4) The likelihood or presence of inconsistent interpretations on
the same question by different agencies; and
(5) The interests of the executive branch ethics program.
(c) Role of the formal advisory opinion service. The formal
advisory opinion service of the Office of Government Ethics is not
intended to replace the government ethics advice and counseling
programs maintained by executive branch agencies. Normally, formal
advisory opinions will not be issued with regard to the types of
questions appropriately directed to an agency's DAEO. If a DAEO
receives a request that the DAEO believes might appropriately be
answered by the Office of Government Ethics through a formal advisory
opinion, the DAEO will consult informally with the General Counsel of
the Office of Government Ethics for instructions as to whether the
matter should be referred to the Office of Government Ethics or
retained by the agency for handling. Except in unusual circumstances,
the Office of Government Ethics will not render formal advisory
opinions with respect to hypothetical situations posed in requests for
formal advisory opinions. At the discretion of the Director, however,
the Office of Government Ethics may render formal advisory opinions on
certain proposed activities or financial transactions.
(d) Eligible persons. Any person may request an opinion with
respect to a situation in which that person is directly involved, and
an authorized representative may request an opinion on behalf of that
person. However, an employee will normally be required to seek an
opinion from the agency's DAEO before requesting a formal advisory
opinion from the Office of Government Ethics. In addition, a DAEO may
request a formal advisory opinion
[[Page 36202]]
on behalf of the agency or a prospective, current, or former employee
of that agency.
(e) Submitting a request for a formal advisory opinion. The request
must be submitted either by electronic mail addressed to
[email protected] or by mail, through either the United States Postal
Service or a private shipment service, to the Director of the Office of
Government Ethics, Suite 500, 1201 New York Avenue NW., Washington, DC
20005-3917. Personal deliveries will not be accepted.
(f) Requirements for request. The request must include:
(1) An express statement indicating that the submission is a
request for a formal advisory opinion;
(2) The name, street address, and telephone number of the person
requesting the opinion;
(3) The name, street address, and telephone number of any
representative of that person;
(4) All material facts necessary for the Director to render a
complete and correct opinion;
(5) The date of the request and the signature of either the
requestor or the requestor's representative; and
(6) In the case of a request signed by a representative, a written
designation of the representative that is dated and signed by the
requestor.
(g) Optional materials. At the election of the requestor, the
request may also include legal memoranda or other material relevant to
the requested formal advisory opinion.
(h) Additional information. The Director may request such
additional information or documentation as the Director deems necessary
to the development of a formal advisory opinion, from either the
requestor or other sources. If the requestor or the requestor's
representative fails to cooperate with such a request, the Office of
Government Ethics normally will close the matter without issuing a
formal advisory opinion.
(i) Comments from interested parties. The Office of Government
Ethics will, to the extent practicable, solicit written comments on a
request by posting a prominent notice on its official Web site. Any
such notice will summarize relevant information in the request, provide
interested parties 30 days to submit written comments, and include
instructions for submitting written comments. Written comments
submitted after the deadline will be considered only at the discretion
of the Director.
(j) Consultation with the Department of Justice. Whenever the
Office of the Government Ethics is considering rendering a formal
advisory opinion, the Director will consult with the Office of Legal
Counsel of the Department of Justice sufficiently in advance to afford
that office an opportunity to review the matter. In addition, whenever
a request involves an actual or apparent violation of any provision of
18 U.S.C. 202-209, the Director will consult with the Criminal Division
of the Department of Justice. If the Criminal Division determines that
an investigation or prosecution will be undertaken, the Director will
take no further action on the request, unless the Criminal Division
makes a determination not to prosecute.
(k) Consultation with other executive branch officials. The
Director will consult with such other executive branch officials as the
Director deems necessary to ensure thorough consideration of issues and
information relevant to the request by the Office of Government Ethics.
In the case of a request submitted by a prospective or current
employee, the Director will share a copy of the request with the DAEO
of the employee's agency.
(l) Publication. The Office of Government Ethics will publish each
formal advisory opinion on its official Web site. Prior to publishing a
formal advisory opinion on its Web site, the Office of Government
Ethics will delete information that identifies individuals involved and
that is unnecessary to a complete understanding of the opinion.
(m) Reliance on formal advisory opinions. (1) Any formal advisory
opinion referred to in this section or any provisions or finding of a
formal advisory opinion involving the application of the Act or the
regulations promulgated pursuant to the Act or Executive Order may be
relied upon by:
(i) Any person directly involved in the specific transaction or
activity with respect to which such advisory opinion has been rendered;
and
(ii) Any person directly involved in any specific transaction or
activity which is indistinguishable in all its material aspects from
the transaction or activity with respect to which such formal advisory
opinion was rendered.
(2) Any person who relies upon any provision or finding of any
formal advisory opinion in accordance with this paragraph and who acts
in good faith in accordance with the provisions and findings of such
opinion, will not, as a result of such act, be subject to prosecution
under 18 U.S.C. 202-209 or, when the opinion is exculpatory, be subject
to any disciplinary action or civil action based upon legal authority
cited in that opinion.
Sec. 2638.210 Presidential transition planning.
Prior to any Presidential election, each agency has a
responsibility to prepare its agency ethics program for a Presidential
transition. Such preparations do not constitute support for a
particular candidate and are not reflective of a belief regarding the
likely outcome of the election; rather, they reflect an understanding
that agencies are responsible for ensuring the continuity of
governmental operations.
(a) Preparing the ethics program for a transition. The agency head
or the DAEO must, not later than 12 months before any Presidential
election, evaluate whether the agency's ethics program has an adequate
number of trained agency ethics officials to effectively support a
Presidential transition.
(b) Support by the Office of Government Ethics. In connection with
any Presidential election, the Office of Government Ethics will:
(1) Prior to the election, offer training opportunities for agency
ethics officials on counseling departing noncareer appointees on post-
employment restrictions, reviewing financial disclosure reports,
drafting ethics agreements for Presidential nominees, and counseling
new noncareer appointees on conflict of interest laws and the Standards
of Conduct; and
(2) After the election, in the event of a Presidential transition,
proactively assist the Presidential Transition Team in preparing for
Presidential nominations, coordinate with agency ethics officials, and
develop plans to implement new initiatives related to government
ethics.
Subpart C--Government Ethics Education
Sec. 2638.301 In general.
Every agency must carry out a government ethics education program
to teach employees how to identify government ethics issues and obtain
assistance in complying with government ethics laws and regulations. An
agency's failure to comply with any of the education or notice
requirements set forth in this subpart does not exempt an employee from
applicable government ethics requirements.
Sec. 2638.302 Definitions.
The following definitions apply to the format of the various types
of training required in this subpart. The agency may deviate from these
prescribed formats to the extent necessary to provide reasonable
accommodations to participants under the Rehabilitation
[[Page 36203]]
Act of 1973 (Pub. L. 93-112), as amended, or other applicable legal
authority.
(a) Live. A training presentation is considered live if the
presenter personally communicates a substantial portion of the material
at the same time as the employees being trained are receiving the
material, even if part of the training is prerecorded or automated. The
training may be delivered in person or through video or audio
technology. The presenter must respond to questions posed during the
training and provide instructions for participants to submit questions
after the training.
Example 1. An agency ethics official provides a presentation
regarding government ethics and takes questions from participants
who are assembled in a training room with the ethics official. At
the end of the session, the ethics official provides contact
information for participants who wish to pose additional questions.
This training is considered live.
Example 2. An agency ethics official provides a presentation to
a group of employees in an auditorium. She presents an introduction
and a brief overview of the material that will be covered in the
training. She has participants watch a prerecorded video regarding
government ethics. She stops the video frequently to elaborate on
key concepts and offer participants opportunities to pose questions
before resuming the video. At the end of the session, she recaps key
concepts and answers additional questions. She then provides contact
information for employees who wish to pose additional questions.
This training is considered live.
Example 3. The ethics official in Example 2 arranges for several
Senate-confirmed public filers stationed outside of headquarters to
participate in the live training via streaming video or telephone.
For these remote participants, the ethics official also establishes
a means for them to pose questions during the training, such as by
emailing questions to her assistant. She also provides these remote
participants with instructions for contacting the ethics office to
pose additional questions after the training. This training is also
considered live for the remote participants.
Example 4. Agency ethics officials present training via a
telephone conference. A few dozen agency employees dial into the
conference call. The ethics officials take questions that are
submitted by email and provide contact information for employees who
wish to pose additional questions later. This training is considered
live.
Example 5. Several Senate-confirmed public filers required to
complete live training in a particular year are stationed at various
facilities throughout the country. For these filers, an ethics
official schedules a 20-minute conference call, emails them copies
of the written materials and a link to a 40-minute video on
government ethics, and instructs them to view the video before the
conference call. During the conference call, the ethics official
recaps key concepts, takes questions, and provides his contact
information in case participants have additional questions. The
public filers then confirm by email that they watched the video and
participated in the conference call. This training is considered
live because a substantial portion of the training was live.
(b) Interactive. A training presentation is considered interactive
if the employee being trained is required to take an action with regard
to the subject of the training. The required action must involve the
employee's use of knowledge gained through the training and may not be
limited to merely advancing from one section of the training to another
section. Training that satisfies the requirements of paragraph (a) of
this section will also satisfy the requirements of this paragraph.
Example 1. An automated system allows employees to view a
prerecorded video in which an agency ethics official provides
training. At various points, the system poses questions and an
employee selects from among a variety of possible answers. The
system provides immediate feedback as to whether the selections are
correct or incorrect. When the employee's selections are incorrect,
the system displays the correct answer and explains the relevant
concepts. This training is considered interactive.
Example 2. If, instead of a video, the training described in
Example 1 were to include animated or written materials interspersed
with questions and answers, the training would still be considered
interactive.
Example 3. A DAEO emails materials to employees who are
permitted under part 2638 to complete interactive training. The
materials include a written training presentation, questions, and
space for employees to provide written responses. Employees are
instructed to submit their answers to agency ethics officials, who
provide individualized feedback. This training is considered
interactive.
Example 4. A DAEO emails materials to employees who are
permitted under part 2638 to complete interactive training. The
materials include a written training presentation, questions, and an
answer key. The DAEO also distributes instructions for contacting an
ethics official with any questions about the subjects covered. This
training meets the minimum requirements to be considered
interactive, even though the employees are not required to submit
their answers for review and feedback. However, any DAEO who uses
this minimally interactive format is encouraged to provide employees
with other opportunities for more direct and personalized feedback.
Sec. 2638.303 Notice to prospective employees.
Written offers of employment for positions covered by the Standards
of Conduct must include the information required in this section to
provide prospective employees with notice of the ethical obligations
associated with the positions.
(a) Content. The written offer must include, in either the body of
the offer or an attachment:
(1) A statement regarding the agency's commitment to government
ethics;
(2) Notice that the individual will be subject to the Standards of
Conduct and the criminal conflict of interest statutes as an employee;
(3) Contact information for an appropriate agency ethics office or
an explanation of how to obtain additional information on applicable
ethics requirements;
(4) Where applicable, notice of the time frame for completing
initial ethics training; and
(5) Where applicable, a statement regarding financial disclosure
requirements and an explanation that new entrant reports must be filed
within 30 days of appointment.
(b) DAEO's authority. At the election of the DAEO, the DAEO may
specify the language that the agency will use in the notice required
under paragraph (a) of this section or may approve, disapprove, or
revise language drafted by other agency officials.
(c) Tracking. Each agency must establish written procedures, which
the DAEO must review each year, for issuing the notice required in this
section. In the case of an agency with 1,000 or more employees, the
DAEO must review any submissions under Sec. 2638.310 each year to
confirm that the agency has implemented an appropriate process for
meeting the requirements of this section.
Sec. 2638.304 Initial ethics training.
Each new employee of the agency subject to the Standards of Conduct
must complete initial ethics training that meets the requirements of
this section.
(a) Coverage. (1) This section applies to each employee appointed
to a position in an agency who was not an employee of the agency
immediately prior to that appointment. This section also permits
Presidential nominees for Senate-confirmed positions to complete the
initial ethics training prior to appointment.
(2) The DAEO may exclude a non-supervisory position at or below the
GS-8 grade level, or the equivalent, from the requirement to complete
the training presentation described in paragraph (e)(1) of this
section, provided that:
(i) The DAEO signs a written determination that the duties of the
position do not create a substantial likelihood that conflicts of
interest will arise;
[[Page 36204]]
(ii) The position does not meet the criteria set forth at Sec.
2634.904 of this chapter; and
(iii) The agency provides an employee described in paragraph (a)(1)
of this section who is appointed to the position with the written
materials required under paragraph (e)(2) of this section within 90
days of appointment.
(b) Deadline. Except as provided in this paragraph, each new
employee must complete initial ethics training within 3 months of
appointment.
(1) In the case of a Presidential nominee for a Senate-confirmed
position, the nominee may complete the ethics training before or after
appointment, but not later than 3 months after appointment.
(2) In the case of a special Government employee who is reasonably
expected to serve for less than 60 days in a calendar year on a board,
commission, or committee, the agency may provide the initial ethics
training at any time before, or at the beginning of, the employee's
first meeting of the board, commission, or committee.
(c) Duration. The duration of the training must be sufficient for
the agency to communicate the basic ethical obligations of Federal
service and to present the content described in paragraph (e) of this
section.
(d) Format. Employees covered by this section are required to
complete interactive initial ethics training.
(e) Content. The following content requirements apply to initial
ethics training.
(1) Training presentation. The training presentation must focus on
government ethics laws and regulations that the DAEO deems appropriate
for the employees participating in the training. The presentation must
address concepts related to the following subjects:
(i) Financial conflicts of interest;
(ii) Impartiality;
(iii) Misuse of position; and
(iv) Gifts.
(2) Written materials. In addition to the training presentation,
the agency must provide the employee with either the following written
materials or written instructions for accessing them:
(i) The summary of the Standards of Conduct distributed by the
Office of Government Ethics or an equivalent summary prepared by the
agency;
(ii) Provisions of any supplemental agency regulations that the
DAEO determines to be relevant or a summary of those provisions;
(iii) Such other written materials as the DAEO determines should be
included; and
(iv) Instructions for contacting the agency's ethics office.
(f) Tracking. Each agency must establish written procedures, which
the DAEO must review each year, for initial ethics training. In the
case of an agency with 1,000 or more employees, the DAEO must review
any submissions under Sec. 2638.310 each year to confirm that the
agency has implemented an appropriate process for meeting the
requirements of this section.
Example 1. The DAEO of a large agency decides that the agency's
ethics officials will conduct live initial ethics training for high-
level employees and certain procurement officials. The DAEO directs
ethics officials to cover concepts related to financial conflicts of
interest, impartiality, misuse of position, and gifts during the
live training sessions. She also coordinates with the agency's Chief
Information Officer to develop computerized training for all other
new employees, and she directs her staff to include concepts related
to financial conflicts of interest, impartiality, misuse of
position, and gifts in the computerized training. The computerized
training poses multiple-choice questions and provides feedback when
employees answer the questions. At the DAEO's request, the agency's
human resources officials distribute the required written materials
as part of the onboarding procedures for new employees. The
computerized training automatically tracks completion of the
training, and the ethics officials use sign-in sheets to track
participation in the live training. After the end of the calendar
year, the DAEO reviews the materials submitted by the Office of
Human Resources under Sec. 2638.310 to confirm that the agency has
implemented procedures for identifying new employees, distributing
the written materials, and providing their initial ethics training.
The agency's program for initial ethics training complies with the
requirements of Sec. 2638.304.
Example 2. The agency head, the DAEO, and the lead human
resources official of an agency with more than 1,000 employees have
agreed that human resources officials will conduct initial ethics
training. The DAEO provides the lead human resources official with
written materials for use during the training, approves the content
of the presentations, and trains the human resources officials who
will conduct the initial ethics training. After the end of the
calendar year, the lead human resources official provides the DAEO
with a copy of the agency's procedures for identifying new employees
and providing initial ethics training, and the lead human resources
official confirms that there is a reasonable basis for concluding
that the procedures have been implemented. The DAEO reviews these
procedures and finds them satisfactory. The agency has complied with
its tracking obligations with regard to initial ethics training.
Sec. 2638.305 Additional ethics briefing for certain agency leaders.
In addition to other applicable requirements, each individual
covered by this section must complete an ethics briefing to discuss the
individual's immediate ethics obligations. Although the ethics briefing
is separate from the initial ethics training, the agency may elect to
combine the ethics briefing and the initial ethics training, provided
that the requirements of both this section and Sec. 2638.304 are met.
(a) Coverage. This section applies to public filers who are Senate-
confirmed Presidential nominees and appointees, except for those in
positions identified in Sec. 2634.201(c)(2) of this chapter.
(b) Deadline. The following deadlines apply to the ethics briefing.
(1) Except as provided in paragraph (b)(2) of this section, each
individual covered by this section must complete the ethics briefing
after confirmation but not later than 15 days after appointment. The
DAEO may grant an extension of the deadline not to exceed 30 days after
appointment.
(2)(i) In extraordinary circumstances, the DAEO may grant an
additional extension to an individual by issuing a written
determination that an extension is necessary. The determination must
describe the extraordinary circumstances necessitating the extension,
caution the individual to be vigilant for conflicts of interest created
by any newly acquired financial interests, remind the individual to
comply with any applicable ethics agreement, and be accompanied by a
copy of the ethics agreement(s). The DAEO must send a copy of the
determination to the individual before expiration of the time period
established in paragraph (b)(1) of this section. The agency must
conduct the briefing at the earliest practicable date thereafter. The
written determination must be retained with the record of the
individual's briefing.
(ii) In the case of a special Government employee who is expected
to serve for less than 60 days in a calendar year on a board,
commission, or committee, the agency must provide the ethics briefing
before the first meeting of the board, commission, or committee.
(c) Qualifications of presenter. The employee conducting the
briefing must have knowledge of government ethics laws and regulations
and must be qualified, as the DAEO deems appropriate, to answer the
types of basic and advanced questions that are likely to arise
regarding the required content.
(d) Duration. The duration of the ethics briefing must be
sufficient for the
[[Page 36205]]
agency to communicate the required content.
(e) Format. The ethics briefing must be conducted live.
(f) Content. The ethics briefing must include the following
activities.
(1) If the individual acquired new financial interests reportable
under section 102 of the Act after filing the nominee financial
disclosure report, the agency ethics official must appropriately
address the potential for conflicts of interest arising from those
financial interests.
(2) The agency ethics official must counsel the individual on the
basic recusal obligation under 18 U.S.C. 208(a).
(3) The agency ethics official must explain the recusal obligations
and other commitments addressed in the individual's ethics agreement
and ensure that the individual understands what is specifically
required in order to comply with each of them, including any deadline
for compliance. The ethics official and the individual must establish a
process by which the recusals will be achieved, which may consist of a
screening arrangement or, when the DAEO deems appropriate, vigilance on
the part of the individual with regard to recusal obligations as they
arise in particular matters.
(4) The agency ethics official must provide the individual with
instructions and the deadline for completing initial ethics training,
unless the individual completes the initial ethics training either
before or during the ethics briefing.
(g) Tracking. The DAEO must maintain a record of the date of the
ethics briefing for each current employee covered by this section.
Example 1. A group of ethics officials conducts initial ethics
training for six Senate-confirmed Presidential appointees within 15
days of their appointments. At the end of the training, ethics
officials meet individually with each of the appointees to conduct
their ethics briefings. The agency and the appointees have complied
with both Sec. 2638.304 and Sec. 2638.305.
Example 2. The Senate confirms a nominee for a position as an
Assistant Secretary. After the nominee's confirmation but several
days before her appointment, the nominee completes her initial
ethics briefing during a telephone call with an agency ethics
official, and the ethics official records the date of the briefing.
The agency and the nominee have complied with Sec. 2638.305. During
the telephone call, the ethics official also discusses the content
required for initial ethics training and provides the nominee with
instructions for accessing the required written materials online.
The agency and the nominee have also complied with Sec. 2638.304.
Sec. 2638.306 Notice to new supervisors.
The agency must provide each employee upon initial appointment to a
supervisory position with the written information required under this
section.
(a) Coverage. This requirement applies to each civilian employee
who is required to receive training pursuant to 5 CFR 412.202(b).
(b) Deadline. The agency must provide the written materials
required by this section within one year of the employee's initial
appointment to the supervisory position.
(c) Written materials. The written materials must include contact
information for the agency's ethics office and the text of Sec.
2638.103. In addition, a copy of, a hyperlink to, or the address of a
Web site containing the Principles of Ethical Conduct must be included,
as well as such other information as the DAEO deems necessary for new
supervisors.
(d) Tracking. Each agency must establish written procedures, which
the DAEO must review each year, for supervisory ethics notices. In the
case of an agency with 1,000 or more employees, the DAEO must review
any submissions under Sec. 2638.310 each year to confirm that the
agency has implemented an appropriate process for meeting the
requirements of this section.
Sec. 2638.307 Annual ethics training for confidential filers and
certain other employees.
Each calendar year, employees covered by this section must complete
ethics training that meets the following requirements.
(a) Coverage. In any calendar year, this section applies to the
following employees, unless they are public filers:
(1) Each employee who is required to file an annual confidential
financial disclosure report pursuant to Sec. 2634.904 of this chapter
during that calendar year, except an employee who ceases to be a
confidential filer before the end of the calendar year;
(2) Employees appointed by the President and employees of the
Executive Office of the President;
(3) Contracting officers described in 41 U.S.C. 2101; and
(4) Other employees designated by the head of the agency.
(b) Deadline. The employee must complete required annual ethics
training before the end of the calendar year.
(c) Duration. Agencies must provide employees with one hour of duty
time to complete interactive training and review any written materials.
(d) Format. The following formatting requirements apply.
(1) Except as provided in paragraph (d)(2) of this section,
employees covered by this section are required to complete interactive
training.
(2) If the DAEO determines that it is impracticable to provide
interactive training to a special Government employee covered by this
section who is expected to work no more than 60 days in a calendar
year, or to an employee who is an officer in the uniformed services
serving on active duty for no more 30 consecutive days, only the
requirement to provide the written materials required by this section
will apply to that employee each year. The DAEO may make the
determination as to individual employees or a group of employees.
(e) Content. The following content requirements apply to annual
ethics training for employees covered by this section.
(1) Training presentation. The training presentation must focus on
government ethics laws and regulations that the DAEO deems appropriate
for the employees participating in the training. The presentation must
address concepts related to the following subjects:
(i) Financial conflicts of interest;
(ii) Impartiality;
(iii) Misuse of position; and
(iv) Gifts.
(2) Written materials. In addition to the training presentation,
the agency must provide the employee with either the following written
materials or written instructions for accessing them:
(i) The summary of the Standards of Conduct distributed by the
Office of Government Ethics or an equivalent summary prepared by the
agency;
(ii) Provisions of any supplemental agency regulations that the
DAEO determines to be relevant or a summary of those provisions;
(iii) Such other written materials as the DAEO determines should be
included; and
(iv) Instructions for contacting the agency's ethics office.
(f) Tracking. The following tracking requirements apply to training
conducted pursuant to this section. An employee covered by this section
must confirm in writing the completion of annual ethics training and
must comply with any procedures established by the DAEO for such
confirmation. If the DAEO or other presenter has knowledge that an
employee completed required training, that individual may record the
employee's completion of the training, in lieu of requiring the
employee to provide written confirmation. In the case of an automated
system that delivers interactive training, the DAEO
[[Page 36206]]
may deem the employee to have confirmed the completion of the training
if the system tracks completion automatically.
Sec. 2638.308 Annual ethics training for public filers.
Each calendar year, public filers and other employees specified in
this section must complete ethics training that meets the following
requirements.
(a) Coverage. In any calendar year, this section applies to each
employee who is required to file an annual public financial disclosure
report pursuant to Sec. 2634.201(a) of this chapter during that
calendar year, except for an employee who ceases to be a public filer
during that calendar year.
(b) Deadline. A public filer must complete required annual ethics
training before the end of the calendar year.
(c) Qualifications of presenter. The employee conducting any live
training presentation must have knowledge of government ethics laws and
regulations and must be qualified, as the DAEO deems appropriate, to
answer the types of basic and advanced questions that are likely to
arise regarding the required content.
(d) Duration. The duration of training must be sufficient for the
agency to communicate the required content, but at least one hour.
Agencies must provide employees with one hour of duty time complete
interactive training and review any written materials.
(e) Format. The annual ethics training must meet the following
formatting requirements.
(1) Employees whose pay is set at Level I or Level II of the
Executive Schedule must complete one hour of live training each year,
unless a matter of vital national interest makes it necessary for an
employee to complete interactive training in lieu of live training in a
particular year.
(2) Other civilian employees identified in section 103(c) of the
Act who are stationed in the United States must complete live training
once every 2 years and interactive training in alternate years. In
extraordinary circumstances, the DAEO may grant written authorization
for an employee who is required to complete live training in a
particular year to complete interactive training.
(3) All other employees covered by this section must complete
interactive training.
(f) Content. The following content requirements apply to annual
ethics training for employees covered by this section.
(1) Training presentation. The training presentation must focus on
government ethics laws and regulations that the DAEO deems appropriate
for the employees participating in the training. The presentation must
address concepts related to the following subjects:
(i) Financial conflicts of interest;
(ii) Impartiality;
(iii) Misuse of position; and
(iv) Gifts.
(2) Written materials. In addition to the training presentation,
the agency must provide the employee with either the following written
materials or written instructions for accessing them:
(i) The summary of the Standards of Conduct distributed by the
Office of Government Ethics or an equivalent summary prepared by the
agency;
(ii) Provisions of any supplemental agency regulations that the
DAEO determines to be relevant or a summary of those provisions;
(iii) Such other written materials as the DAEO determines should be
included; and
(iv) Instructions for contacting the agency's ethics office.
(g) Tracking. The following tracking requirements apply to training
conducted pursuant to this section. An employee covered by this section
must confirm in writing the completion of annual ethics training and
must comply with any procedures established by the DAEO for such
confirmation. If the DAEO or other presenter has knowledge that an
employee completed required training, that individual may record the
employee's completion of the training, in lieu of requiring the
employee to provide written confirmation. In the case of an automated
system that delivers interactive training, the DAEO may deem the
employee to have confirmed the completion of the training if the system
tracks completion automatically.
Example 1. The DAEO of a small agency distributes the written
materials for annual training by emailing a link to a Web site that
contains the required materials. He then conducts a live training
session for all of the agency's public filers. He spends the first
15 minutes of the training addressing concepts related to financial
conflicts of interest, impartiality, misuse of position, and gifts.
Because several participants are published authors, he spends the
next 15 minutes covering restrictions on compensation for speaking,
teaching, and writing. He then spends 20 minutes discussing
hypothetical examples related to the work of the agency and 10
minutes answering questions. The training meets the content
requirements of this section. Further, because live training
satisfies the requirements for interactive training, this training
meets the formatting requirements for all public filers, including
those required to complete interactive training.
Example 2. An ethics official personally appears at each
monthly senior staff meeting to conduct a 10-minute training session
on government ethics. Across the year, he addresses concepts related
to financial conflicts of interest, impartiality, misuse of
position, gifts, and other subjects related to government ethics
laws and regulations, although no one session covers all of these
subjects. During each meeting, he distributes a one-page handout
summarizing the key points of his presentation, takes questions, and
provides contact information for employees who wish to pose
additional questions. He records the names of the public filers in
attendance at each meeting. Once a year, he emails them the required
written materials, as well as the one-page summaries. While many of
these public filers do not attend all 12 meetings, each attends at
least six sessions during the calendar year. Although some of the
filers missed the sessions that addressed gifts, they all received
the handout summarizing the presentation on gifts. The training
satisfies the annual training requirement for the public filers who
attended the meetings, including those required to complete
interactive training. Moreover, because the ethics official recorded
the names of the public filers who attended, the filers are not
required to separately confirm their completion of the training.
Example 3. One of the Presidentially appointed, Senate-confirmed
employees in Example 2 was required to complete live training that
year. Because she attended only four senior staff meetings during
the year, she completed only 40 minutes of annual ethics training.
The DAEO allows the employee to spend 20 minutes reviewing the
handouts and written materials and send an email confirming that she
completed her review before the end of the calendar year. This
arrangement satisfies the requirements for live annual training
because a substantial portion of the training was live.
Sec. 2638.309 Agency-specific ethics education requirements.
The DAEO may establish additional requirements for the agency's
ethics education program, with or without a supplemental agency
regulation under Sec. 2635.105 of this chapter.
(a) Groups of employees. The DAEO may establish specific government
ethics training requirements for groups of agency employees.
(b) Employees performing ethics duties. The DAEO has an obligation
to ensure that employees performing assigned ethics duties have the
necessary expertise with regard to government ethics laws and
regulations. If the DAEO determines that employees engaged in any
activities described in Sec. Sec. 2638.104 and 2638.105 require
training, the DAEO may establish specific training requirements for
them either as a group or individually.
[[Page 36207]]
(c) Procedures. The DAEO may establish specific procedures for
training that the DAEO requires under paragraph (a) or (b) of this
section, including any certification procedures the DAEO deems
necessary. Agency employees must comply with the requirements and
procedures that the DAEO establishes under this section.
Sec. 2638.310 Coordinating the agency's ethics education program.
In an agency with 1,000 or more employees, any office that is not
under the supervision of the DAEO but has been delegated responsibility
for issuing notices, pursuant to Sec. 2638.303 or Sec. 2638.306, or
conducting training, pursuant to Sec. 2638.304, must submit the
following materials to the DAEO by January 15 each year:
(a) A written summary of procedures that office has established to
ensure compliance with this subpart; and
(b) Written confirmation that there is a reasonable basis for
concluding that the procedures have been implemented.
Subpart D--Correction of Executive Branch Agency Ethics Programs
Sec. 2638.401 In general.
The Office of Government Ethics has authority, pursuant to sections
402(b)(9) and 402(f)(1) of the Act, to take the action described in
this subpart with respect to deficiencies in agency ethics programs.
Agency ethics programs comprise the matters described in this
subchapter for which agencies are responsible.
Sec. 2638.402 Informal action.
If the Director has information indicating that an agency ethics
program is not compliant with the requirements set forth in applicable
government ethics laws and regulations, the Director is authorized to
take any or all of the measures described in this section. The Director
may:
(a) Contact agency ethics officials informally to identify the
relevant issues and resolve them expeditiously;
(b) Issue a notice of deficiency to make the agency aware of its
possible noncompliance with an applicable government ethics law or
regulation;
(c) Require the agency to respond in writing to the notice of
deficiency;
(d) Require the agency to provide such additional information or
documentation as the Director determines to be necessary;
(e) Issue an initial decision with findings as to the existence of
a deficiency in the agency's ethics program;
(f) Require the agency to correct or, at the Director's discretion,
satisfactorily mitigate any deficiency in its ethics program;
(g) Provide the agency with guidance on measures that would correct
or satisfactorily mitigate any program deficiency;
(h) Monitor the agency's efforts to correct or satisfactorily
mitigate the deficiency and require the agency to submit progress
reports; or
(i) Take other actions authorized under the Act to resolve the
matter informally.
Sec. 2638.403 Formal action.
If the Director determines that informal action, pursuant to Sec.
2638.402, has not produced an acceptable resolution, the Director may
issue an order directing the agency to take specific corrective action.
(a) Before issuing such an order, the Director will:
(1) Advise the agency in writing of the deficiency in its ethics
program;
(2) Describe the action that the Director is considering taking;
(3) Provide the agency with 30 days to respond in writing; and
(4) Consider any timely written response submitted by the agency.
(b) If the Director is satisfied with the agency's response, no
order will be issued.
(c) If the Director decides to issue an order, the order will
describe the corrective action to be taken.
(d) If the agency does not comply with the order within a
reasonable time, the Director will:
(1) Notify the head of the agency of intent to furnish a report of
noncompliance to the President and the Congress;
(2) Provide the agency 14 calendar days within which to furnish
written comments for submission with the report of noncompliance; and
(3) Report the agency's noncompliance to the President and to the
Congress.
Subpart E--Corrective Action Involving Individual Employees
Sec. 2638.501 In general.
This subpart addresses the Director's limited authority, pursuant
to sections 402(b)(9) and 402(f)(2) of the Act, to take certain actions
with regard to individual employees if the Director suspects a
violation of a noncriminal government ethics law or regulation. Section
402(f)(5) of the Act prohibits the Director from making any finding
regarding a violation of a criminal law. Therefore, the Director will
refer possible criminal violations to an Inspector General or the
Department of Justice, pursuant to Sec. 2638.502. If, however, the
Director is concerned about a possible violation of a noncriminal
government ethics law or regulation by an employee, the Director may
notify the employee's agency, pursuant to Sec. 2638.503. In the rare
circumstance that an agency does not address a matter after receiving
this notice, the Director may use the procedures in Sec. 2638.504 to
issue a nonbinding recommendation of a disciplinary action or an order
to terminate an ongoing violation. Nothing in this subpart relieves an
agency of its primary responsibility to ensure compliance with
government ethics laws and regulations.
Sec. 2638.502 Violations of criminal provisions related to government
ethics.
Consistent with section 402(f) of the Act, nothing in this subpart
authorizes the Director or any agency official to make a finding as to
whether a provision of title 18, United States Code, or any other
criminal law of the United States outside of such title, has been or is
being violated. If the Director has information regarding the violation
of a criminal law by an individual employee, the Director will notify
an Inspector General or the Department of Justice.
Sec. 2638.503 Recommendations and advice to employees and agencies.
The Director may make such recommendations and provide such advice
to employees or agencies as the Director deems necessary to ensure
compliance with applicable government ethics laws and regulations. The
Director's authority under this section includes the authority to
communicate with agency heads and other officials regarding government
ethics and to recommend that the agency investigate a matter or
consider taking disciplinary or corrective action against individual
employees.
Sec. 2638.504 Violations of noncriminal provisions related to
government ethics.
In the rare case that consultations made pursuant to Sec. 2638.503
have not resolved the matter, the Director may use the procedures in
this section if the Director has reason to believe that an employee is
violating, or has violated, any noncriminal government ethics law or
regulation. Any proceedings pursuant to this section will be conducted
in accordance with applicable national security requirements.
(a) Agency investigation. The Director may recommend that the
agency head or the Inspector General conduct an investigation. If the
Director determines that an investigation has not been
[[Page 36208]]
conducted within a reasonable time, the Director will notify the
President.
(b) Initiating further proceedings. Following an investigation
pursuant to paragraph (a) of this section or a determination by the
Director that an investigation has not been conducted within a
reasonable time, the Director may either initiate further proceedings
under this section or close the matter.
(1) If the Director initiates further proceedings, the Director
will notify the employee in writing of the suspected violation, the
right to respond orally and in writing, and the right to be
represented. The notice will include instructions for submitting a
written response and requesting an opportunity to present an oral
response, copies of this section and sections 401-403 of the Act, and
copies of the material relied upon by the Office of Government Ethics.
(2) If the Director is considering issuing an order directing the
employee to take specific action to terminate an ongoing violation, the
Director will also provide notice of the potential issuance of an order
and the right to request a hearing, pursuant to paragraph (f) of this
section.
(c) Employee's response. The employee will be provided with a
reasonable opportunity to present an oral response to the General
Counsel of the Office of Government Ethics within 30 calendar days of
the date of the employee's receipt of the notice described in paragraph
(b) of this section. If the employee fails to timely request an
opportunity to present an oral response or fails to cooperate with
reasonable efforts to schedule the oral response, only a timely
submitted written response will be considered.
(d) General Counsel's recommendation. After affording the employee
30 calendar days to respond, the General Counsel will provide the
Director with a written recommendation as to the action warranted by
the circumstances. However, if the employee has timely exercised an
applicable right to request a hearing pursuant to paragraph (g) of this
section, the provisions of paragraph (g) will apply instead of the
provisions of this paragraph.
(1) If the employee has not had an opportunity to comment on any
newly obtained material relied upon for the recommendation, the General
Counsel will provide the employee with an opportunity to comment on
that material before submitting the recommendation to the Director.
(2) The recommendation will include findings of fact and a
conclusion as to whether it is more likely than not that a violation
has occurred. The General Counsel will provide the Director with copies
of the material relied upon for the recommendation, including any
timely written response and a transcript of any oral response of the
employee.
(3) In the case of an ongoing violation, the General Counsel may
recommend an order directing the employee to take specific action to
terminate the violation, provided that the employee has been afforded
the notice required under paragraph (f) of this section and an
opportunity for a hearing.
(e) Decisions and orders of the Director. After reviewing the
recommendation of the General Counsel pursuant to paragraph (d) of this
section or, in the event of a hearing, the recommendation of the
administrative law judge pursuant to paragraph (g)(7) of this section,
the Director may issue a decision and, if applicable, an order. The
authority of the Director to issue decisions and orders under this
paragraph may not be delegated to any other official. The Director's
decision will include written findings and conclusions with respect to
all material issues and will be supported by substantial evidence of
record.
(1) A copy of the decision and order will be furnished to the
employee and, if applicable, the employee's representative. Copies will
also be provided to the DAEO and the head of the agency or, where the
employee is the head of an agency, to the President. The Director's
decision and any order will be posted on the official Web site of the
Office of Government Ethics, except to the extent prohibited by law.
(2) The Director's decision may include a nonbinding recommendation
that appropriate disciplinary or corrective action be taken against the
employee. If the agency head does not take the action recommended
within a reasonable period of time, the Director may notify the
President.
(3) In the case of an ongoing violation, the Director may issue an
order directing the employee to take specific action to terminate the
violation, provided that the employee has been afforded the notice
required under paragraph (f) of this section and an opportunity for a
hearing.
(f) Notice of the right to request a hearing regarding an order to
terminate a violation. Before an order to terminate an ongoing
violation may be recommended or issued under this section, the employee
must be provided with written notice of the potential issuance of an
order, the right to request a hearing, and instructions for requesting
a hearing.
(1) If the employee submits a written request for a hearing within
30 calendar days of the date of the employee's receipt of the notice,
the hearing will be conducted pursuant to paragraph (g) of this
section;
(2) If the employee does not submit a written request for a hearing
within 30 days of receipt of the notice, the General Counsel may issue
a recommendation, pursuant to paragraph (d) of this section, in lieu of
a hearing after first considering any timely response of the employee,
pursuant to paragraph (c) of this section; and
(3) If the employee timely submits written requests for both a
hearing, pursuant to paragraph (f) of this section, and an oral
response, pursuant to paragraph (c) of this section, only a hearing
will be conducted, pursuant to paragraph (g).
(g) Hearings. If, after receiving a notice required pursuant to
paragraph (f) of this section, the employee submits a timely request
for a hearing, an administrative law judge who has been appointed under
5 U.S.C. 3105 will serve as the hearing officer, and the following
procedures will apply to the hearing. An employee of the Office of
Government Ethics will be assigned to provide the administrative law
judge with logistical support in connection with the hearing.
(1) The General Counsel of the Office of Government Ethics will
designate attorneys to present evidence and argument at the hearing in
support of a possible finding that the employee is engaging in an
ongoing violation. The General Counsel will serve as Advisor to the
Director and will not, in connection with the presentation of evidence
and argument against the employee, direct or supervise these attorneys.
Any attorney who presents evidence, argument, or testimony against the
employee at the hearing will be recused from assisting the Director or
the General Counsel in connection with the contemplated order.
(2) The administrative law judge will issue written instructions
for the conduct of the hearing, including deadlines for submitting
lists of proposed witnesses and exchanging copies of documentary
evidence. The hearing will be conducted informally, and the
administrative law judge may make such rulings as are necessary to
ensure that the hearing is conducted equitably and expeditiously.
(3) The parties to the hearing will be the employee and the
attorneys of the Office of Government Ethics designated to present
evidence and arguments supporting a finding that a violation is
ongoing, respectively. The parties will
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not engage in ex parte communications with the administrative law
judge, unless the administrative law judge authorizes limited ex parte
communications regarding scheduling and logistical matters.
(4) If either party requests assistance in securing the appearance
of an approved witness who is an employee, the administrative law judge
may, at his or her discretion, notify the General Counsel, who will
assist the Director in requesting that the head of the employing agency
produce the witness, pursuant to section 403(a)(1) of the Act. The
Director will notify the President if an agency head fails to produce
the approved witness.
(5) The hearing will be conducted on the record and witnesses will
be placed under oath and subject to cross-examination. Following the
hearing, the administrative law judge will provide each party with a
copy of the hearing transcript.
(6) Hearings will generally be open to the public, but the
administrative law judge may issue a written order closing, in whole or
in part, the hearing in the best interests of national security, the
employee, a witness, or an affected person. The order will set forth
the reasons for closing the hearing and, along with any objection to
the order by a party, will be made a part of the record. Unless
specifically excluded by the administrative law judge, the DAEO of the
employee's agency will be permitted to attend a closed hearing. If the
administrative law judge denies a request by a party or an affected
person to close the hearing, in whole or in part, that denial will be
immediately appealable by the requester. The requester must file a
notice of appeal with the Director within 3 working days. In the event
that such a notice is filed, the hearing will be held in abeyance
pending resolution of the appeal. The notice of appeal, exclusive of
attachments, may not exceed 10 pages of double-spaced type. The
Director will afford the parties and, if not a party, the requester the
opportunity to make an oral presentation in person or via
telecommunications technology within 3 working days of the filing of
the appeal. The oral presentation will be conducted on the record. If
the appellant or either party is unavailable to participate in the oral
presentation within the 3-working-day period, the Director will convene
the oral presentation without that party or affected person. The
Director will issue a decision on the appeal within 3 working days of
the oral presentation. If the Director is unavailable during this time
period, the Director may designate a senior executive of the Office of
Government Ethics to hear the oral presentation and decide the appeal.
The notice of appeal, the record of the oral presentation, the decision
on the appeal, and any other document considered by the Director or the
Director's designee in connection with the appeal will be made a part
of the record of the hearing.
(7) After closing the record, the administrative law judge will
certify the entire record to the Director for decision. When so
certifying the record, the administrative law judge will make a
recommended decision, which will include his or her written findings of
fact and conclusions of law with respect to material issues. After
considering the certified record, the Director may issue a decision and
an order, pursuant to paragraph (e) of this section.
(h) Dismissal. The Director may dismiss a proceeding under this
section at any time, without a finding as to the alleged violation,
upon a finding that:
(1) The employee or the agency has taken appropriate action to
address the Director's concerns;
(2) The employee has undertaken, or agreed in writing to undertake,
measures the Director deems satisfactory; or
(3) A question has arisen involving the potential application of a
criminal law.
(i) Notice procedure. The notices required by paragraphs (b)(1) and
(f) of this section may be delivered by U.S. mail, electronic mail or
personal delivery. There will be a rebuttable presumption that notice
sent by U.S. mail is received within 5 working days. If the agency does
not promptly provide the Office of Government Ethics with an employee's
contact information upon request, the notice may be sent to the
agency's DAEO, who will bear responsibility for promptly delivering
that notice to the employee and promptly notifying the Director after
its delivery.
Subpart F--General Provisions
Sec. 2638.601 Authority and purpose.
(a) Authority. The regulations of this part are issued pursuant to
the authority of titles I and IV of the Ethics in Government Act of
1978 (Pub. L. 95-521, as amended) (``the Act'').
(b) Purpose. These executive branch regulations supplement and
implement titles I, IV and V of the Act and set forth more specifically
certain procedures provided in those titles, and furnish examples,
where appropriate.
(c) Agency authority. Subject only to the authority of the Office
of Government Ethics as the supervising ethics office for the executive
branch, all authority conferred on agencies in this subchapter B of
chapter XVI of title 5 of the Code of Federal Regulations is sole and
exclusive authority.
Sec. 2638.602 Agency regulations.
Each agency may, subject to the prior approval of the Office of
Government Ethics, issue regulations not inconsistent with this part
and this subchapter, using the procedures set forth in Sec. 2635.105
of this chapter.
Sec. 2638.603 Definitions.
For the purposes of this part:
Act means the Ethics in Government Act of 1978 (Pub. L. 95-521, as
amended).
ADAEO or Alternate Designated Agency Ethics Official means an
officer or employee who is designated by the head of the agency as the
primary deputy to the DAEO in coordinating and managing the agency's
ethics program in accordance with the provisions of Sec. 2638.104.
Agency or agencies means any executive department, military
department, Government corporation, independent establishment, board,
commission, or agency, including the United States Postal Service and
Postal Regulatory Commission, of the executive branch.
Agency head means the head of an agency. In the case of a
department, it means the Secretary of the department. In the case of a
board or commission, it means the Chair of the board or commission.
Confidential filer means an employee who is required to file a
confidential financial disclosure report pursuant to Sec. 2634.904 of
this chapter.
Conflict of interest laws means 18 U.S.C. 202-209, and conflict of
interest law means any provision of 18 U.S.C. 202-209.
Corrective action means any action necessary to remedy a past
violation or prevent a continuing violation of this part, including but
not limited to restitution, change of assignment, disqualification,
divestiture, termination of an activity, waiver, the creation of a
qualified diversified or blind trust, or counseling.
DAEO or Designated Agency Ethics Official means an officer or
employee who is designated by the head of the agency to coordinate and
manage the agency's ethics program in accordance with the provisions of
Sec. 2638.104.
Department means a department of the executive branch.
Director means the Director of the Office of Government Ethics.
Disciplinary action means those disciplinary actions referred to in
Office
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of Personnel Management regulations and instructions implementing
provisions of title 5 of the United States Code or provided for in
comparable provisions applicable to employees not subject to title 5,
including but not limited to reprimand, suspension, demotion, and
removal. In the case of a military officer, comparable provisions may
include those in the Uniform Code of Military Justice.
Employee means any officer or employee of an agency, including a
special Government employee. It includes officers but not enlisted
members of the uniformed services. It includes employees of a state or
local government or other organization who are serving on detail to an
agency, pursuant to 5 U.S.C. 3371, et seq. It does not include the
President or Vice President. Status as an employee is unaffected by pay
or leave status or, in the case of a special Government employee, by
the fact that the individual does not perform official duties on a
given day.
Executive branch includes each executive agency as defined in 5
U.S.C. 105 and any other entity or administrative unit in the executive
branch. However, it does not include any agency, entity, office, or
commission that is defined by or referred to in 5 U.S.C. app. sections
109(8)-(11) of the Act as within the judicial or legislative branch.
Government ethics laws and regulations include, among other
applicable authorities, the provisions related to government ethics or
financial disclosure of the following authorities:
(1) Chapter 11 of title 18 of the United States Code;
(2) The Ethics in Government Act of 1978 (Pub. L. 95-521, as
amended);
(3) The Stop Trading on Congressional Knowledge Act of 2012 (STOCK
Act) (Public Law 112-105, as amended);
(4) Executive Order 12674 (Apr. 12, 1989) as amended by Executive
Order 12731 (Oct. 17, 1990); and
(5) Subchapter B of this chapter.
Lead human resources official means the agency's chief policy
advisor on all human resources management issues who is charged with
selecting, developing, training, and managing a high-quality,
productive workforce. For agencies covered by the Chief Human Capital
Officers Act of 2002 (Pub. L. 107-296), the Chief Human Capital Officer
is the lead human resources official.
Person includes an individual, partnership, corporation,
association, government agency, or public or private organization.
Principles of Ethical Conduct means the collection of general
principles set forth in Sec. 2635.101(b) of this chapter.
Public filer means an employee, former employee, or nominee who is
required to file a public financial disclosure report, pursuant to
Sec. 2634.202 of this chapter.
Senior Executive means a career or noncareer appointee in the
Senior Executive Service or equivalent Federal executive service. It
also includes employees in Senior Level (SL) and Senior Technical (ST)
positions. In addition, it includes equivalent positions in agencies
that do not have a Federal executive service.
Special Government employee means an employee who meets the
definition at 18 U.S.C. 202(a). The term does not relate to a specific
category of employee, and 18 U.S.C. 202(a) is not an appointment
authority. The term describes individuals appointed to positions in the
executive branch, the legislative branch, any independent agency of the
United States, or the District of Columbia who are covered less
expansively by conflict of interest laws at 18 U.S.C. 202-209. As a
general matter, an individual appointed to a position in the
legislative or executive branch who is expected to serve for 130 days
or less during any period of 365 consecutive days is characterized as a
special Government employee. The appointment of special Government
employees is not administered or overseen by the Office of Government
Ethics but is carried out under legal authorities administered by the
Office of Personnel Management and other agencies.
Standards of Conduct means the Standards of Ethical Conduct for
Employees of the Executive Branch set forth in part 2635 of this
chapter.
Sec. 2638.604 Key program dates.
Except as amended by program advisories of the Office of Government
Ethics, the following list summarizes key deadlines of the executive
branch ethics program:
(a) January 15 is the deadline for:
(1) The Office of Government Ethics to issue its year-end status
reports, pursuant to Sec. 2638.108(a)(11); and
(2) In an agency with 1,000 or more employees, any office not under
the supervision of the DAEO that provides notices or training required
under subpart C of this part to provide a written summary and
confirmation, pursuant to Sec. 2638.310.
(b) February 1 is the deadline for the DAEO to submit the annual
report on the agency's ethics program, pursuant to Sec. 2638.207.
(c) February 15 is the deadline for employees to file annual
confidential financial disclosure reports, pursuant to Sec.
2634.903(a) of this chapter.
(d) May 15 is the deadline for employees to file annual public
financial disclosure reports, pursuant to Sec. 2634.201(a) of this
chapter.
(e) May 31 is the deadline for the agency to submit required travel
reports to the Office of Government Ethics, pursuant to Sec.
2638.107(g).
(f) July 1 is the deadline for the DAEO to submit a letter stating
whether components currently designated should remain designated,
pursuant to Sec. 2641.302(e)(2) of this chapter.
(g) November 30 is the deadline for the agency to submit required
travel reports to the Office of Government Ethics, pursuant to Sec.
2638.107(h).
(h) December 31 is the deadline for completion of annual ethics
training for employees covered by Sec. Sec. 2638.307 and 2638.308.
(i) By the deadline specified in the request is the deadline,
pursuant to Sec. 2638.202, for submission of all documents and
information requested by the Office of Government Ethics in connection
with a review of the agency's ethics program, except when the
submission of the information or reports would be prohibited by law.
(j) Prior to appointment whenever practicable but in no case more
than 15 days after appointment is the deadline, pursuant to Sec.
2638.105(a)(1), for the lead human resources official to notify the
DAEO that the agency has appointed a confidential or public financial
disclosure filer.
(k) Prior to termination whenever practicable but in no case more
than 15 days after termination is the deadline, pursuant to Sec.
2638.105(a)(2), for the lead human resources official to notify the
DAEO of the termination of a public financial disclosure filer.
(l) Within 15 days of appointment is the deadline for certain
agency leaders to complete ethics briefings, pursuant to Sec.
2638.305(b).
(m) Within 30 days of designation is the deadline for the agency
head to notify the Director of the designation of any DAEO or ADAEO,
pursuant to Sec. 2638.107(a).
(n) Within 30 days of referral is the deadline for the Inspector
General or the DAEO to submit notice to the Director of certain
referrals to the Department of Justice, pursuant to Sec. 2638.206(a).
(o) Within 3 months of appointment is the deadline for new
employees to complete initial ethics training, pursuant to Sec.
2638.304(b).
(p) Within 1 year of appointment is the deadline for new
supervisors to
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receive supervisory ethics notices, pursuant to Sec. 2638.306(b).
(q) Not later than 12 months before any Presidential election is
the deadline for the agency head or the DAEO to evaluate whether the
agency's ethics program has an adequate number of trained agency ethics
officials to deliver effective support in the event a Presidential
transition, pursuant to Sec. 2638.210(a).
[FR Doc. 2016-13152 Filed 6-3-16; 8:45 am]
BILLING CODE 6345-03-P