Supplemental Standards of Ethical Conduct for Employees of the Department of Homeland Security, 63206-63210 [2011-26160]
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63206
Proposed Rules
Federal Register
Vol. 76, No. 197
Wednesday, October 12, 2011
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
DEPARTMENT OF HOMELAND
SECURITY
5 CFR Chapter XXXVI
[Docket No. DHS–2008–0168]
RIN 1601–AA17; 3209–AA15
Supplemental Standards of Ethical
Conduct for Employees of the
Department of Homeland Security
Office of the Secretary, DHS.
Notice of proposed rulemaking.
AGENCY:
ACTION:
The Department of Homeland
Security (DHS), with the concurrence of
the Office of Government Ethics (OGE),
is proposing supplemental standards of
ethical conduct for DHS employees. The
proposed regulations would supplement
the OGE Standards of Ethical Conduct
for Employees of the Executive Branch
(OGE Standards) and, among other
things, would set forth employee
restrictions on the purchase of certain
Government-owned property, require
employees to report allegations of waste,
fraud, and abuse, require employees to
seek prior approval for certain outside
employment and activities, prohibit
employees in some DHS components
from engaging in certain types of
outside employment and activities,
require designated components to
develop instructions regarding the
procedures for obtaining prior approval
for outside employment and activities,
and designate components within DHS
as a separate agency for purposes of
determining whether the donor of a gift
is a ‘‘prohibited source’’ and of
identifying an employee’s agency for the
regulations governing teaching,
speaking, and writing.
DATES: Comments on this proposed rule
are invited and must be received by
December 12, 2011.
ADDRESSES: You may submit comments,
in writing, to DHS on this proposed
rule, identified by docket number DHS–
2008–0168, by any of the following
methods:
• On-line: https://
www.regulations.gov.
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SUMMARY:
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• E-mail: ferne.mosley@dhs.gov.
Include the reference ‘‘Proposed DHS
Supplemental Standards’’ in the subject
line of the message.
• Fax: 202–282–9099.
• Mail: Ferne L. Mosley, Deputy
Ethics Official, OGC MAIL STOP 0485,
Department of Homeland Security, 245
Murray Lane, Washington, DC 20528–
0485.
FOR FURTHER INFORMATION CONTACT:
Ferne L. Mosley, Deputy Ethics Official,
Department of Homeland Security, 202–
447–3302.
SUPPLEMENTARY INFORMATION:
I. Background
On August 7, 1992, at 57 FR 35006–
35087, OGE issued a final rule setting
forth the uniform Standards of Ethical
Conduct for Employees of the Executive
Branch (the ‘‘OGE Standards’’), which,
as corrected and amended, are codified
at 5 CFR part 2635. Effective on
February 3, 1993, the OGE Standards
established uniform ethics rules
applicable to all executive branch
personnel.
Pursuant to 5 CFR 2635.105,
executive branch agencies are
authorized to publish, with the
concurrence of OGE, supplemental
regulations deemed necessary to
implement their respective ethics
programs. The following proposed
supplemental regulations are necessary
and appropriate in view of DHS
programs and operations, in view of the
consolidation of numerous legacy
agencies with varying or no
supplemental ethics regulations, and to
fulfill the purposes of the OGE
Standards. In addition, some outside
employment interests and activities, if
held by employees of certain DHS
components, could cause a reasonable
person to question an employee’s
impartiality and objectivity; this rule
would prohibit those outside
employment activities. DHS, with the
concurrence of OGE, would issue the
supplemental DHS regulations in a new
chapter XXXVI, consisting of part 4601
of 5 CFR.
II. Analysis of the Proposed Regulations
A. Proposed § 4601.101 General
This section would identify to whom
the supplemental regulations apply. It
would also cross-reference to other
ethics regulations and guidance
applicable to DHS employees—
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including regulations on financial
disclosure, financial interests, and
employee responsibilities and
conduct—and implementing DHS
guidance and procedures issued in
accordance with the OGE Standards.
This section would further define the
term ‘‘agency designee’’ as it appears in
§ 2635.102(b) of 5 CFR, to identify those
persons within DHS who are designated
to act on requests and make
determinations relating to 5 CFR part
2635 and this part. The section would
also define the term ‘‘outside
employment’’ and list the types of
employment and activities that would
require prior approval. It also lists
activities for which prior approval
would not be required, such as the
uncompensated activities on behalf of a
charitable or nonprofit organization
(other than the reimbursement of
expenses) that do not involve fiduciary
duties and do not relate to the
employee’s official duties as defined by
5 CFR 2635.802. In addition, this
section would define the term ‘‘Chief
Deputy Ethics Official’’ as the persons
within DHS who are delegated authority
by the DHS Designated Agency Ethics
Official (DAEO) to manage and
coordinate the ethics programs within
the Department’s components and
offices.
B. Proposed § 4601.102 Designation of
DHS Components as Separate Agencies
This section would identify certain
components within DHS as separate
agencies for the purposes of the
provisions governing prior approval for
outside activities, accepting gifts from
non-Federal sources, outside teaching,
speaking, and writing activities, and
issuing prior approval instructions. For
those specified purposes, DHS has
designated eight DHS components as
separate agencies and has designated
the remainder of the DHS components
as a single agency. For the limited
purpose of issuing prior approval
instructions, DHS has designated the
Office of the Inspector General as a
separate agency.
In addition, paragraph c of this
section explains the applicability of
these requirements to detailed
employees within the Department. An
employee on detail from his employing
agency to another agency for a period in
excess of 30 calendar days is subject to
the supplemental regulations and
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instructions of the agency to which he
is detailed rather than his employing
agency. For example, if a U.S. Customs
and Border Protection (CBP) employee
is detailed to U.S. Immigration and
Customs Enforcement (ICE) for 60 days,
the CBP employee will be subject to
ICE’s supplemental regulations and
instructions during the period of his
detail with ICE.
C. Proposed § 4601.103 Prior Approval
for Outside Employment and Activities
This section would require employees
to obtain written approval prior to
engaging in certain outside employment
and activities. This prior approval
requirement would be an integral part of
DHS’s ethics program. The prior
approval requirement is necessary to
ensure that an employee’s participation
in certain outside employment or
activities does not adversely affect
operations within the employing agency
or place the employee at risk of
violating applicable Federal conduct
statutes and regulations. In addition,
prior approval is necessary to avoid the
appearance that an outside employment
or activity was obtained through a
misuse of the employee’s official
position and to address a number of
other potential ethics concerns.
Because DHS provides millions of
dollars in grants and engages in
enforcement, regulatory, and security
functions across a multitude of industry
sectors, requiring prior approval is
necessary to ensure that a reasonable
person will not question the integrity of
DHS programs and operations. In
fulfilling its mission, DHS would be
hindered if members of the public did
not have confidence in DHS employees’
ability to act impartially while
performing their official duties.
Proposed § 4601.103(a) would require
employees to obtain approval from the
DHS employee’s agency for certain
outside employment or activities, with
or without compensation, unless the
employing agency issues an instruction
or manual exempting such outside
employment or activities. Proposed
§ 4601.104(b) would describe the
standard the agency must follow for
approval of requests for outside
employment and activities. Proposed
§ 4601.103(c) would describe the
responsibilities of DHS agencies for
issuing instructions to employees on
how to request prior approval of outside
employment and activities.
Because Special Government
Employees may serve at the Department
only for a limited time during a 365-day
period and for a limited purpose (such
as service on a Federal Advisory
Committee or service as a consultant),
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the nature of their service to the
Department does not require that they
be subject to the prior approval
requirement for outside employment or
the additional restrictions applicable to
CBP, Federal Emergency Management
Agency (FEMA), or ICE employees.
employee is disqualified from
participating in an official capacity in
any particular matter involving such
person or the person’s employer unless
authorized to do so by the agency
designee, with the advice and clearance
of the ICE Chief Deputy Ethics Official.
D. Proposed § 4601.104 Additional
Rules for U.S. Customs and Border
Protection (CBP) Employees
This section would prohibit CBP
employees, except Special Government
Employees, from being employed by, or
from engaging in, activities in support of
or on behalf of, an entity that engages in
a trade or business performing specified
customs, immigration, or agriculture
activities or services. This section
would also require a CBP employee
with a spouse, a relative who is a
financial dependent or household
member, or another household member
or financial dependent who is employed
in a position that the CBP employee is
prohibited from occupying to notify his
or her agency designee in writing of the
above-described employment
circumstances. In addition, the
employee is disqualified from
participating in an official capacity in
any particular matter involving such
person or the person’s employer unless
authorized to do so by the agency
designee, with the advice and clearance
of the CBP Chief Deputy Ethics Official.
G. Proposed § 4601.107 Prohibited
Purchases of Property
This section would prohibit the
purchase by employees of certain
Government property under the control
of, seized by, forfeited, under the
direction of, or incident to, the
employee’s agency. It would also set
forth the exception and waiver
provisions under this section.
E. Proposed § 4601.105 Additional
Rules for Federal Emergency
Management Agency (FEMA) Employees
This section would prohibit certain
FEMA employees, except Special
Government Employees, both
intermittent and non-intermittent, from
working for a FEMA contractor. It also
provides the procedures for requesting a
waiver of these additional restrictions.
A. Executive Orders 12866 and 13563
This proposed rule is not a
‘‘significant regulatory action’’ under
section 3(f) of Executive Order 12866,
Regulatory Planning and Review, as
supplemented by Executive Order
13563, Improving Regulation and
Regulatory Review, and does not require
an assessment of potential costs and
benefits under section 6(a)(3) of that
Order. Accordingly, the Office of
Management and Budget has not
reviewed it.
F. Proposed § 4601.106 Additional
Rules for U.S. Immigration and Customs
Enforcement (ICE) Employees
This section would prohibit ICE
employees, except Special Government
Employees, from being employed by, or
from engaging in activities in support of
or on behalf of, an entity that engages in
a trade or business performing specified
customs, immigration, or agriculture
activities or services. This section
would also require an ICE employee
with a spouse, a relative who is a
financial dependent or household
member, or another household member
or financial dependent who is employed
in a position that the ICE employee is
prohibited from occupying to notify his
or her agency designee in writing of the
above-described employment
circumstances. In addition, the
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H. Proposed § 4601.108 Reporting
Waste, Fraud, Abuse, and Corruption
This section would require all DHS
employees to report allegations of waste,
fraud, abuse, or corruption to the
appropriate authorities within DHS,
such as the DHS Office of Inspector
General, the appropriate Office of
Internal Affairs, or Office of Professional
Responsibility. Employee
responsibilities for reporting suspicions
of violations of law or regulation to the
DHS Office of Inspector General are
found in DHS Directive 0810.1, and
these regulations complement but do
not displace those responsibilities.
III. Regulatory Analyses
B. Small Entities
Under the Regulatory Flexibility Act
(5 U.S.C. 601–612), DHS has considered
whether this proposed rule will have a
significant economic impact on a
substantial number of small entities.
The term ‘‘small entities’’ comprises
small businesses, not-for-profit
organizations that are independently
owned and operated and are not
dominant in their fields, and
governmental jurisdictions with
populations of less than 50,000. DHS
certifies that this proposed rule would
not have a significant economic impact
on a substantial number of small
entities, because it would only affect
DHS employees.
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List of Subjects in 5 CFR Part 4601
Conflict of interests, Government
employees.
For the reasons set forth in the
preamble, the Department of Homeland
Security, with the concurrence of the
Office of Government Ethics, is
proposing to amend title 5 of the Code
of Federal Regulations by adding a new
chapter XXXVI, consisting of part 4601,
to read as follows:
TITLE 5—ADMINISTRATIVE
PERSONNEL
CHAPTER XXXVI—DEPARTMENT OF
HOMELAND SECURITY
PART 4601—SUPPLEMENTAL
STANDARDS OF ETHICAL CONDUCT
FOR EMPLOYEES OF THE
DEPARTMENT OF HOMELAND
SECURITY
Sec.
4601.101 General.
4601.102 Designation of DHS components
as separate agencies.
4601.103 Prior approval for outside
employment and activities.
4601.104 Additional rules for United States
Customs and Border Protection (CBP)
employees.
4601.105 Additional rules for Federal
Emergency Management Agency (FEMA)
employees.
4601.106 Additional rules for United States
Immigration and Customs Enforcement
(ICE) employees.
4601.107 Prohibited purchases of property.
4601.108 Reporting waste, fraud, abuse and
corruption.
Authority: 5 U.S.C. 301, 7301, 7353; 5
U.S.C. App. (Ethics in Government Act of
1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989
Comp., p. 215, as modified by E.O. 12731, 55
FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR
2635.105, 2635.203(a), 2635.403(a), 2635.702,
2635.703, 2635.802(a), 2635.803,
2635.807(a)(2)(ii).
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§ 4601.101
General.
(a) Applicability. In accordance with 5
CFR 2635.105, the regulations in this
part apply to employees of the
Department of Homeland Security
(DHS) and supplement the Standards of
Ethical Conduct for Employees of the
Executive Branch (OGE Standards) in 5
CFR part 2635.
(b) Cross-references to other ethics
regulations and guidance. In addition to
the OGE Standards in 5 CFR part 2635
and this part, DHS employees are
subject to the executive branch financial
disclosure regulations contained in 5
CFR parts 2634, the executive branch
financial interests regulations contained
in 5 CFR part 2640, the executive
branch employee responsibilities and
conduct regulations contained in 5 CFR
part 735, and DHS guidance and
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procedures on employee conduct,
including those issued under paragraph
(c) of this section.
(c) DHS agency instructions. Prior to
publication, the DHS Designated
Agency Ethics Official (DAEO) must
approve any instructions or manuals
that DHS agencies, as designated in
§ 4601.102 of this part, issue to provide
explanatory ethics-related guidance and
to establish procedures necessary to
implement this part and part 2635 of
this title.
(d) Definitions. (1) Agency designee as
used in this part and in part 2635 of this
title, means an employee who has been
identified in an instruction or manual
issued by an agency under paragraph (c)
of this section to make a determination,
give an approval, or take other action
required or permitted by this part or
part 2635 of this title with respect to
another employee.
(2) Outside employment as used in
this part means any form of non-Federal
employment, activity, or business
relationship involving the provision of
personal services by the employee. It
includes, but is not limited to, personal
services as an officer, director,
employee, agent, attorney, advisor,
consultant, contractor, general partner,
trustee, teacher, or speaker. It includes
any writing when done under an
arrangement with another person for
production or publication of the written
product. It does not, however, include
participation in the activities of a
nonprofit charitable, religious,
professional, social, fraternal,
educational, recreational, public service,
or civic organization, unless the
participation involves acting in a
fiduciary capacity, providing
professional services or the rendering of
advice for compensation other than the
reimbursement of expenses, or the
activity relates to the employee’s official
duties within the meaning of 5 CFR
2635.802.
(3) Chief Deputy Ethics Official
(CDEO) as used in this part shall be the
persons delegated authority by the DHS
DAEO to manage and coordinate the
ethics programs within the DHS
components pursuant to the DAEO’s
authority in 5 CFR 2638.204.
§ 4601.102 Designation of DHS
components as separate agencies.
(a) Pursuant to 5 CFR 2635.203(a),
DHS designates each of the following
components as a separate agency for
purposes of the regulations in subpart B
of 5 CFR part 2635 governing gifts from
outside sources, including determining
whether the donor of a gift is a
prohibited source under 5 CFR
2635.203(d); for purposes of the
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regulations in § 4601.103(c) of this part
governing the establishment of
procedures for obtaining prior approval
for outside employment; for purposes of
the regulations in § 4601.103(c) of this
part governing the designation of
officials; and for the purposes of the
regulations in 5 CFR 2635.807 governing
teaching, speaking, and writing:
(1) Federal Emergency Management
Agency (FEMA);
(2) Federal Law Enforcement Training
Center;
(3) Transportation Security
Administration;
(4) United States Citizenship and
Immigration Services;
(5) United States Coast Guard;
(6) United States Customs and Border
Protection (CBP);
(7) United States Immigration and
Customs Enforcement (ICE); and
(8) United States Secret Service.
(b)(1) DHS will treat employees of
DHS components not designated as
separate agencies in paragraph (a) of this
section, including employees of the
Office of the Secretary, as employees of
the remainder of DHS. For purposes of
the regulations in subpart B of 5 CFR
part 2635 governing gifts from outside
sources, including determining whether
the donor of a gift is a prohibited source
under 5 CFR 2635.203(d); for purposes
of the regulations in § 4601.103(c) of
this part governing the establishment of
procedures for obtaining prior approval
for outside employment; for purposes of
the regulations in § 4601.103(c) of this
part governing the designation of
officials; and for purposes of the
regulations in 5 CFR 2635.807 governing
teaching, speaking, and writing, DHS
will treat the remainder of DHS as a
single agency that is separate from the
components designated as separate
agencies in paragraph (a) of this section.
(2) For the limited purposes of
establishing procedures for obtaining
prior approval for outside employment
and designating officials pursuant to
§ 4601.103 of this part, DHS will treat
the DHS Office of the Inspector General
as a separate agency.
(c) An employee on detail from his
employing agency to another agency for
a period in excess of 30 calendar days
is subject to the supplemental
regulations and instructions of the
agency to which he is detailed rather
than his employing agency.
§ 4601.103 Prior approval for outside
employment and activities.
(a) General requirement for approval.
A DHS employee, other than a Special
Government Employee, shall obtain
prior written approval before engaging
in any outside employment or activity,
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with or without compensation, unless
the employee’s agency has exempted the
employment, activity, or class of
employment or activities from this
requirement by an instruction or manual
issued pursuant to paragraph (c) of this
section.
(b) Standard for approval. Approval
shall be granted only upon a
determination that the outside
employment is not expected to involve
conduct prohibited by statute or Federal
regulation, including part 2635 of title 5
and this part.
(c) Agency responsibilities. (1) With
the approval of the DHS DAEO, each
agency as set forth in § 4601.102 of this
part shall issue instructions or a manual
governing the submission of requests for
approval of outside employment and
activities and designating appropriate
officials to act on such requests not later
than sixty (60) days after the effective
date of this part.
(2) The instructions or manual may
exempt particular employment or
activities or categories of employment or
activities from the prior approval
requirement of this section if such
employment or activities would
generally be approved and are not likely
to involve conduct prohibited by statute
or Federal regulation, including 5 CFR
part 2635 and this part. Agencies may
include in their instructions or manual
examples of outside employment or
activities that are permissible or
prohibited consistent with this part and
part 2635 of this title.
(3) In the absence of a manual or
instruction identifying a person
designated to act upon a request for
approval for outside employment, the
Chief Deputy Ethics Official at each
agency shall act upon a request.
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§ 4601.104 Additional rules for United
States Customs and Border Protection
(CBP) employees.
The following rules apply to
employees of CBP, except Special
Government Employees, and are in
addition to §§ 4601.101 through
4601.103 and §§ 4601.107 and 4601.108
of this part:
(a) Prohibitions on outside
employment and activities. (1) No CBP
employee shall be employed by or
engage in activities in support of or on
behalf of a customs broker, international
carrier, bonded warehouse, foreign trade
zone as defined in 15 CFR 400.2(e),
cartman, law firm engaged in the
practice of customs, immigration, or
agriculture law, entity engaged in the
enforcement of customs, immigration, or
agriculture law, importation department
of a business, or business or other entity
which assists aliens or engages in
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services related to customs,
immigration, or agriculture matters.
(2) No CBP employee shall, in any
private capacity, engage in employment
or an activity related to the importation
or exportation of merchandise or
agricultural products requiring
inspection, or the entry of persons into
or departure of persons from the United
States.
(b) Restrictions arising from
employment of the spouse, relatives,
members of the employee’s household,
or financial dependents. (1) A CBP
employee shall notify in writing his or
her agency designee when any of the
following circumstances exist:
(i) The spouse of the CBP employee is
employed in a position that the CBP
employee would be prohibited from
occupying by paragraph (a) of this
section;
(ii) A relative (as defined in 5 CFR
2634.105(o)), who is financially
dependent on or who is a member of the
household of the CBP employee, is
employed in a position that the CBP
employee would be prohibited from
occupying by paragraph (a) of this
section; or
(iii) Any person, other than the
spouse or relative of the CBP employee,
who is financially dependent on or who
is a member of the household of the CBP
employee, is employed in a position
that the CBP employee would be
prohibited from occupying by paragraph
(a) of this section.
(2) The CBP employee shall be
disqualified from participating in an
official capacity in any particular matter
involving the individuals identified in
paragraph (b)(1) of this section, or the
employer thereof, unless the agency
designee, with the advice and clearance
of the CBP Chief Deputy Ethics Official,
authorizes the CBP employee to
participate in the matter using the
standard in 5 CFR 2635.502(d), or the
waiver provisions in 18 U.S.C. 208(b)(1),
as appropriate.
§ 4601.105 Additional rules for Federal
Emergency Management Agency (FEMA)
Employees.
The following rules apply to
employees of FEMA, except Special
Government Employees, and are in
addition to §§ 4601.101 through
4601.103 and §§ 4601.107 and 4601.108
of this part:
(a) Prohibited outside employment
(intermittent employees). Except as
provided in paragraph (c) of this
section, no intermittent FEMA
employees hired under the authority of
42 U.S.C. 5149, which includes all
Disaster Assistance Employees or
Stafford Act Employees and Cadre of
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On-Call Response Employees, shall
work for a current FEMA contractor
while a FEMA employee, whether or not
they are on activated status.
(b) Prohibited outside employment
(non-intermittent employees). Except as
provided in paragraph (c) of this
section, no non-intermittent FEMA
employee shall work for any current
FEMA contractor as an outside
employer.
(c) Waivers. The FEMA Chief Deputy
Ethics Official or his or her agency
designee may grant a written waiver of
any prohibition in paragraphs (a) and (b)
of this section with the DAEO’s
concurrence. To grant the waiver, the
FEMA Chief Deputy Ethics Official or
his or her agency designee must
determine that the waiver is consistent
with 5 CFR part 2635 and not otherwise
prohibited by law; that the prohibition
is not necessary to avoid the appearance
of misuse of position or loss of
impartiality; and that the waiver will
not undermine the public’s confidence
in the employee’s impartiality and
objectivity in administering FEMA
programs. A waiver under this
paragraph may impose appropriate
conditions, such as requiring execution
of a written disqualification statement.
§ 4601.106 Additional rules for United
States Immigration and Customs
Enforcement (ICE) employees.
The following rules apply to
employees of ICE, except Special
Government Employees, and are in
addition to §§ 4601.101 through
4601.103 and §§ 4601.107 and 4601.108
of this part:
(a) Prohibitions on outside
employment and activities. (1) No ICE
employee shall be employed by or
engage in activities in support of or on
behalf of a customs broker, international
carrier, bonded warehouse, foreign trade
zone as defined in 15 CFR 400.2(e),
cartman, law firm engaged in the
practice of customs, immigration or
agriculture law, entity engaged in the
enforcement of customs, immigration or
agriculture law, importation department
of a business, or business or other entity
which assists aliens or engages in
services related to customs, immigration
or agriculture matters.
(2) No ICE employee shall, in any
private capacity, engage in employment
or an activity related to the importation
or exportation of merchandise or
agricultural products requiring
inspection, or the entry of persons into
or the departure of persons from the
United States.
(b) Restrictions arising from
employment of spouse, relatives,
members of the employee’s household,
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circumstances to question the
employee’s impartiality, or create the
appearance that the employee has used
his official position or nonpublic
information for his personal gain.
§ 4601.107
property.
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or financial dependents. (1) An ICE
employee shall notify in writing his or
her agency designee when any of the
following circumstances exist:
(i) The spouse of the ICE employee is
employed in a position that the ICE
employee would be prohibited from
occupying by paragraph (a) of this
section;
(ii) A relative (as defined in 5 CFR
2634.105(o)) who is financially
dependent on or who is a member of the
household of the ICE employee is
employed in a position that the ICE
employee would be prohibited from
occupying by paragraph (a) of this
section; or
(iii) Any person, other than the
spouse or relative of the ICE employee,
who is financially dependent on or who
is a member of the household of the ICE
employee, is employed in a position
that the ICE employee would be
prohibited from occupying by paragraph
(a) of this section.
(2) The ICE employee shall be
disqualified from participating in an
official capacity in any particular matter
involving the individuals described in
paragraph (b)(1) of this section or the
employer thereof, unless the agency
designee, with the advice and clearance
of the ICE Chief Deputy Ethics Official,
authorizes the ICE employee to
participate in the matter using the
standard in 5 CFR 2635.502(d), or the
waiver provisions in 18 U.S.C. 208(b)(1),
as appropriate.
SUMMARY:
Prohibited purchases of
(a) General prohibition. Except as
provided in paragraph (c) of this
section, no DHS employee may
purchase, directly or indirectly,
property that is:
(1) Owned by the Federal Government
and under the control of the employee’s
agency, unless the sale of the property
is being conducted by the General
Services Administration; or
(2) Seized or forfeited under the
direction or incident to the functions of
the employee’s agency.
(b) For purposes of this section, the
employee’s agency is the relevant
separate agency component as set forth
in § 4601.102 of this part.
(c) Waiver. Employees may make a
purchase prohibited by paragraph (a) of
this section where a written waiver of
the prohibition is issued in advance by
the agency designee with the clearance
of the DAEO or his designee. A waiver
may only be granted if it is not
otherwise prohibited by law or
regulation and the purchase of the
property will not cause a reasonable
person with knowledge of the particular
VerDate Mar<15>2010
17:32 Oct 11, 2011
Jkt 223001
§ 4601.108 Reporting waste, fraud, abuse
and corruption.
Employees shall report immediately
any suspicions of violations of law or
regulation involving Department of
Homeland Security programs or
operations to appropriate authorities,
such as the Office of the Inspector
General.
Janet Napolitano,
Secretary, Department of Homeland Security.
Don W. Fox,
Acting Director, Office of Government Ethics.
[FR Doc. 2011–26160 Filed 10–11–11; 8:45 am]
BILLING CODE 9110–9B–P
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection
Service
9 CFR Parts 71, 77, 78, and 90
[Docket No. APHIS–2010–0125]
Secretary’s Advisory Committee on
Animal Health; Meeting
Animal and Plant Health
Inspection Service, USDA.
ACTION: Notice of public meeting.
AGENCY:
This is a notice to inform the
public of an upcoming meeting of the
Secretary’s Advisory Committee on
Animal Health. The meeting is
organized by the Animal and Plant
Health Inspection Service to discuss
matters of animal health.
DATES: The meeting will be held
November 1 and 2, 2011, from 9 a.m. to
5 p.m. each day.
ADDRESSES: The meeting will be held in
the United States Access Board
conference room, 1331 F Street, NW.,
Suite 800, Washington, DC 20004.
Opportunities for participation are
described in the Supplementary
Information section of this notice.
FOR FURTHER INFORMATION CONTACT:
Mr. Michael R. Doerrer, Chief Operating
Officer, Veterinary Services, APHIS,
USDA, 4700 River Road, Unit 37,
Riverdale, MD 20737; (301) 734–5034;
e-mail:
SACAH.Management@aphis.usda.gov.
The
Secretary’s Advisory Committee on
Animal Health (the Committee) advises
the Secretary of Agriculture on matters
of animal health, including means to
SUPPLEMENTARY INFORMATION:
PO 00000
Frm 00005
Fmt 4702
Sfmt 4702
prevent, conduct surveillance on,
monitor, control, or eradicate animal
diseases of national importance. In
doing so, the Committee will consider
public health, conservation of natural
resources, and the stability of livestock
economies.
Tentative topics for discussion at the
upcoming meeting include:
• Proposed Rule on Traceability for
Livestock Moving Interstate
• Wildlife Diseases
• Foot-and-Mouth Disease Vaccination
• Tuberculosis Framework
• Update on CoreOne (SCS) Rollout
Additional topics may be added to an
updated agenda, which will be posted to
the Committee’s Web site at https://
www.aphis.usda.gov/animal_health/
acah/ no later than October 25, 2011.
The meeting will be open to the
public and attendees should plan to
arrive between 8 a.m. and 9 a.m.
Attendees should be prepared to
provide picture identification to enter
the United States Access Board
conference room. The Animal and Plant
Health Inspection Service (APHIS),
which is organizing the meeting, asks
that those planning to attend the
meeting inform APHIS by sending an
email through an access portal (SACAH
Signup button) on the Committee’s Web
site or directly to
SACAH.Management@aphis.usda.gov.
Please provide your name and
organizational affiliation (if any), state
which meeting date or dates you plan to
attend, and indicate whether you wish
to present an oral statement during the
meeting.
Other Public Participation
Members of the public may also join
the meeting via teleconference in
‘‘listen-only’’ mode. Participants who
wish to listen in on the teleconference
may do so by dialing 18887903291,
followed by a public passcode, 1411045.
Twitter users may join through
@USDA_APHIS and add #SACAH to
any tweet that mentions @USDA_APHIS
on the days of the meeting. If you do not
have a Twitter account, you may still
view live chats during the meeting on
November 1 and 2, 2011, at https://
www.twitter.com/USDA_APHIS.
Questions and written statements for
the meeting may be submitted up to 5
working days in advance of the meeting
for the Committee’s consideration.
Questions and written statements may
be sent via e-mail to
SACAH.Management@aphis.usda.gov or
mailed to the person listed under FOR
FURTHER INFORMATION CONTACT at the
beginning of this notice. Statements may
also be filed with the Committee after
E:\FR\FM\12OCP1.SGM
12OCP1
]]>Agencies
[Federal Register Volume 76, Number 197 (Wednesday, October 12, 2011)]
[Proposed Rules]
[Pages 63206-63210]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-26160]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 76, No. 197 / Wednesday, October 12, 2011 /
Proposed Rules
[[Page 63206]]
DEPARTMENT OF HOMELAND SECURITY
5 CFR Chapter XXXVI
[Docket No. DHS-2008-0168]
RIN 1601-AA17; 3209-AA15
Supplemental Standards of Ethical Conduct for Employees of the
Department of Homeland Security
AGENCY: Office of the Secretary, DHS.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Department of Homeland Security (DHS), with the
concurrence of the Office of Government Ethics (OGE), is proposing
supplemental standards of ethical conduct for DHS employees. The
proposed regulations would supplement the OGE Standards of Ethical
Conduct for Employees of the Executive Branch (OGE Standards) and,
among other things, would set forth employee restrictions on the
purchase of certain Government-owned property, require employees to
report allegations of waste, fraud, and abuse, require employees to
seek prior approval for certain outside employment and activities,
prohibit employees in some DHS components from engaging in certain
types of outside employment and activities, require designated
components to develop instructions regarding the procedures for
obtaining prior approval for outside employment and activities, and
designate components within DHS as a separate agency for purposes of
determining whether the donor of a gift is a ``prohibited source'' and
of identifying an employee's agency for the regulations governing
teaching, speaking, and writing.
DATES: Comments on this proposed rule are invited and must be received
by December 12, 2011.
ADDRESSES: You may submit comments, in writing, to DHS on this proposed
rule, identified by docket number DHS-2008-0168, by any of the
following methods:
On-line: https://www.regulations.gov.
E-mail: ferne.mosley@dhs.gov. Include the reference
``Proposed DHS Supplemental Standards'' in the subject line of the
message.
Fax: 202-282-9099.
Mail: Ferne L. Mosley, Deputy Ethics Official, OGC MAIL
STOP 0485, Department of Homeland Security, 245 Murray Lane,
Washington, DC 20528-0485.
FOR FURTHER INFORMATION CONTACT: Ferne L. Mosley, Deputy Ethics
Official, Department of Homeland Security, 202-447-3302.
SUPPLEMENTARY INFORMATION:
I. Background
On August 7, 1992, at 57 FR 35006-35087, OGE issued a final rule
setting forth the uniform Standards of Ethical Conduct for Employees of
the Executive Branch (the ``OGE Standards''), which, as corrected and
amended, are codified at 5 CFR part 2635. Effective on February 3,
1993, the OGE Standards established uniform ethics rules applicable to
all executive branch personnel.
Pursuant to 5 CFR 2635.105, executive branch agencies are
authorized to publish, with the concurrence of OGE, supplemental
regulations deemed necessary to implement their respective ethics
programs. The following proposed supplemental regulations are necessary
and appropriate in view of DHS programs and operations, in view of the
consolidation of numerous legacy agencies with varying or no
supplemental ethics regulations, and to fulfill the purposes of the OGE
Standards. In addition, some outside employment interests and
activities, if held by employees of certain DHS components, could cause
a reasonable person to question an employee's impartiality and
objectivity; this rule would prohibit those outside employment
activities. DHS, with the concurrence of OGE, would issue the
supplemental DHS regulations in a new chapter XXXVI, consisting of part
4601 of 5 CFR.
II. Analysis of the Proposed Regulations
A. Proposed Sec. 4601.101 General
This section would identify to whom the supplemental regulations
apply. It would also cross-reference to other ethics regulations and
guidance applicable to DHS employees--including regulations on
financial disclosure, financial interests, and employee
responsibilities and conduct--and implementing DHS guidance and
procedures issued in accordance with the OGE Standards.
This section would further define the term ``agency designee'' as
it appears in Sec. 2635.102(b) of 5 CFR, to identify those persons
within DHS who are designated to act on requests and make
determinations relating to 5 CFR part 2635 and this part. The section
would also define the term ``outside employment'' and list the types of
employment and activities that would require prior approval. It also
lists activities for which prior approval would not be required, such
as the uncompensated activities on behalf of a charitable or nonprofit
organization (other than the reimbursement of expenses) that do not
involve fiduciary duties and do not relate to the employee's official
duties as defined by 5 CFR 2635.802. In addition, this section would
define the term ``Chief Deputy Ethics Official'' as the persons within
DHS who are delegated authority by the DHS Designated Agency Ethics
Official (DAEO) to manage and coordinate the ethics programs within the
Department's components and offices.
B. Proposed Sec. 4601.102 Designation of DHS Components as Separate
Agencies
This section would identify certain components within DHS as
separate agencies for the purposes of the provisions governing prior
approval for outside activities, accepting gifts from non-Federal
sources, outside teaching, speaking, and writing activities, and
issuing prior approval instructions. For those specified purposes, DHS
has designated eight DHS components as separate agencies and has
designated the remainder of the DHS components as a single agency. For
the limited purpose of issuing prior approval instructions, DHS has
designated the Office of the Inspector General as a separate agency.
In addition, paragraph c of this section explains the applicability
of these requirements to detailed employees within the Department. An
employee on detail from his employing agency to another agency for a
period in excess of 30 calendar days is subject to the supplemental
regulations and
[[Page 63207]]
instructions of the agency to which he is detailed rather than his
employing agency. For example, if a U.S. Customs and Border Protection
(CBP) employee is detailed to U.S. Immigration and Customs Enforcement
(ICE) for 60 days, the CBP employee will be subject to ICE's
supplemental regulations and instructions during the period of his
detail with ICE.
C. Proposed Sec. 4601.103 Prior Approval for Outside Employment and
Activities
This section would require employees to obtain written approval
prior to engaging in certain outside employment and activities. This
prior approval requirement would be an integral part of DHS's ethics
program. The prior approval requirement is necessary to ensure that an
employee's participation in certain outside employment or activities
does not adversely affect operations within the employing agency or
place the employee at risk of violating applicable Federal conduct
statutes and regulations. In addition, prior approval is necessary to
avoid the appearance that an outside employment or activity was
obtained through a misuse of the employee's official position and to
address a number of other potential ethics concerns.
Because DHS provides millions of dollars in grants and engages in
enforcement, regulatory, and security functions across a multitude of
industry sectors, requiring prior approval is necessary to ensure that
a reasonable person will not question the integrity of DHS programs and
operations. In fulfilling its mission, DHS would be hindered if members
of the public did not have confidence in DHS employees' ability to act
impartially while performing their official duties.
Proposed Sec. 4601.103(a) would require employees to obtain
approval from the DHS employee's agency for certain outside employment
or activities, with or without compensation, unless the employing
agency issues an instruction or manual exempting such outside
employment or activities. Proposed Sec. 4601.104(b) would describe the
standard the agency must follow for approval of requests for outside
employment and activities. Proposed Sec. 4601.103(c) would describe
the responsibilities of DHS agencies for issuing instructions to
employees on how to request prior approval of outside employment and
activities.
Because Special Government Employees may serve at the Department
only for a limited time during a 365-day period and for a limited
purpose (such as service on a Federal Advisory Committee or service as
a consultant), the nature of their service to the Department does not
require that they be subject to the prior approval requirement for
outside employment or the additional restrictions applicable to CBP,
Federal Emergency Management Agency (FEMA), or ICE employees.
D. Proposed Sec. 4601.104 Additional Rules for U.S. Customs and Border
Protection (CBP) Employees
This section would prohibit CBP employees, except Special
Government Employees, from being employed by, or from engaging in,
activities in support of or on behalf of, an entity that engages in a
trade or business performing specified customs, immigration, or
agriculture activities or services. This section would also require a
CBP employee with a spouse, a relative who is a financial dependent or
household member, or another household member or financial dependent
who is employed in a position that the CBP employee is prohibited from
occupying to notify his or her agency designee in writing of the above-
described employment circumstances. In addition, the employee is
disqualified from participating in an official capacity in any
particular matter involving such person or the person's employer unless
authorized to do so by the agency designee, with the advice and
clearance of the CBP Chief Deputy Ethics Official.
E. Proposed Sec. 4601.105 Additional Rules for Federal Emergency
Management Agency (FEMA) Employees
This section would prohibit certain FEMA employees, except Special
Government Employees, both intermittent and non-intermittent, from
working for a FEMA contractor. It also provides the procedures for
requesting a waiver of these additional restrictions.
F. Proposed Sec. 4601.106 Additional Rules for U.S. Immigration and
Customs Enforcement (ICE) Employees
This section would prohibit ICE employees, except Special
Government Employees, from being employed by, or from engaging in
activities in support of or on behalf of, an entity that engages in a
trade or business performing specified customs, immigration, or
agriculture activities or services. This section would also require an
ICE employee with a spouse, a relative who is a financial dependent or
household member, or another household member or financial dependent
who is employed in a position that the ICE employee is prohibited from
occupying to notify his or her agency designee in writing of the above-
described employment circumstances. In addition, the employee is
disqualified from participating in an official capacity in any
particular matter involving such person or the person's employer unless
authorized to do so by the agency designee, with the advice and
clearance of the ICE Chief Deputy Ethics Official.
G. Proposed Sec. 4601.107 Prohibited Purchases of Property
This section would prohibit the purchase by employees of certain
Government property under the control of, seized by, forfeited, under
the direction of, or incident to, the employee's agency. It would also
set forth the exception and waiver provisions under this section.
H. Proposed Sec. 4601.108 Reporting Waste, Fraud, Abuse, and
Corruption
This section would require all DHS employees to report allegations
of waste, fraud, abuse, or corruption to the appropriate authorities
within DHS, such as the DHS Office of Inspector General, the
appropriate Office of Internal Affairs, or Office of Professional
Responsibility. Employee responsibilities for reporting suspicions of
violations of law or regulation to the DHS Office of Inspector General
are found in DHS Directive 0810.1, and these regulations complement but
do not displace those responsibilities.
III. Regulatory Analyses
A. Executive Orders 12866 and 13563
This proposed rule is not a ``significant regulatory action'' under
section 3(f) of Executive Order 12866, Regulatory Planning and Review,
as supplemented by Executive Order 13563, Improving Regulation and
Regulatory Review, and does not require an assessment of potential
costs and benefits under section 6(a)(3) of that Order. Accordingly,
the Office of Management and Budget has not reviewed it.
B. Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), DHS has
considered whether this proposed rule will have a significant economic
impact on a substantial number of small entities. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. DHS certifies that this proposed rule would not have a
significant economic impact on a substantial number of small entities,
because it would only affect DHS employees.
[[Page 63208]]
List of Subjects in 5 CFR Part 4601
Conflict of interests, Government employees.
For the reasons set forth in the preamble, the Department of
Homeland Security, with the concurrence of the Office of Government
Ethics, is proposing to amend title 5 of the Code of Federal
Regulations by adding a new chapter XXXVI, consisting of part 4601, to
read as follows:
TITLE 5--ADMINISTRATIVE PERSONNEL
CHAPTER XXXVI--DEPARTMENT OF HOMELAND SECURITY
PART 4601--SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES
OF THE DEPARTMENT OF HOMELAND SECURITY
Sec.
4601.101 General.
4601.102 Designation of DHS components as separate agencies.
4601.103 Prior approval for outside employment and activities.
4601.104 Additional rules for United States Customs and Border
Protection (CBP) employees.
4601.105 Additional rules for Federal Emergency Management Agency
(FEMA) employees.
4601.106 Additional rules for United States Immigration and Customs
Enforcement (ICE) employees.
4601.107 Prohibited purchases of property.
4601.108 Reporting waste, fraud, abuse and corruption.
Authority: 5 U.S.C. 301, 7301, 7353; 5 U.S.C. App. (Ethics in
Government Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp.,
p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp.,
p. 306; 5 CFR 2635.105, 2635.203(a), 2635.403(a), 2635.702,
2635.703, 2635.802(a), 2635.803, 2635.807(a)(2)(ii).
Sec. 4601.101 General.
(a) Applicability. In accordance with 5 CFR 2635.105, the
regulations in this part apply to employees of the Department of
Homeland Security (DHS) and supplement the Standards of Ethical Conduct
for Employees of the Executive Branch (OGE Standards) in 5 CFR part
2635.
(b) Cross-references to other ethics regulations and guidance. In
addition to the OGE Standards in 5 CFR part 2635 and this part, DHS
employees are subject to the executive branch financial disclosure
regulations contained in 5 CFR parts 2634, the executive branch
financial interests regulations contained in 5 CFR part 2640, the
executive branch employee responsibilities and conduct regulations
contained in 5 CFR part 735, and DHS guidance and procedures on
employee conduct, including those issued under paragraph (c) of this
section.
(c) DHS agency instructions. Prior to publication, the DHS
Designated Agency Ethics Official (DAEO) must approve any instructions
or manuals that DHS agencies, as designated in Sec. 4601.102 of this
part, issue to provide explanatory ethics-related guidance and to
establish procedures necessary to implement this part and part 2635 of
this title.
(d) Definitions. (1) Agency designee as used in this part and in
part 2635 of this title, means an employee who has been identified in
an instruction or manual issued by an agency under paragraph (c) of
this section to make a determination, give an approval, or take other
action required or permitted by this part or part 2635 of this title
with respect to another employee.
(2) Outside employment as used in this part means any form of non-
Federal employment, activity, or business relationship involving the
provision of personal services by the employee. It includes, but is not
limited to, personal services as an officer, director, employee, agent,
attorney, advisor, consultant, contractor, general partner, trustee,
teacher, or speaker. It includes any writing when done under an
arrangement with another person for production or publication of the
written product. It does not, however, include participation in the
activities of a nonprofit charitable, religious, professional, social,
fraternal, educational, recreational, public service, or civic
organization, unless the participation involves acting in a fiduciary
capacity, providing professional services or the rendering of advice
for compensation other than the reimbursement of expenses, or the
activity relates to the employee's official duties within the meaning
of 5 CFR 2635.802.
(3) Chief Deputy Ethics Official (CDEO) as used in this part shall
be the persons delegated authority by the DHS DAEO to manage and
coordinate the ethics programs within the DHS components pursuant to
the DAEO's authority in 5 CFR 2638.204.
Sec. 4601.102 Designation of DHS components as separate agencies.
(a) Pursuant to 5 CFR 2635.203(a), DHS designates each of the
following components as a separate agency for purposes of the
regulations in subpart B of 5 CFR part 2635 governing gifts from
outside sources, including determining whether the donor of a gift is a
prohibited source under 5 CFR 2635.203(d); for purposes of the
regulations in Sec. 4601.103(c) of this part governing the
establishment of procedures for obtaining prior approval for outside
employment; for purposes of the regulations in Sec. 4601.103(c) of
this part governing the designation of officials; and for the purposes
of the regulations in 5 CFR 2635.807 governing teaching, speaking, and
writing:
(1) Federal Emergency Management Agency (FEMA);
(2) Federal Law Enforcement Training Center;
(3) Transportation Security Administration;
(4) United States Citizenship and Immigration Services;
(5) United States Coast Guard;
(6) United States Customs and Border Protection (CBP);
(7) United States Immigration and Customs Enforcement (ICE); and
(8) United States Secret Service.
(b)(1) DHS will treat employees of DHS components not designated as
separate agencies in paragraph (a) of this section, including employees
of the Office of the Secretary, as employees of the remainder of DHS.
For purposes of the regulations in subpart B of 5 CFR part 2635
governing gifts from outside sources, including determining whether the
donor of a gift is a prohibited source under 5 CFR 2635.203(d); for
purposes of the regulations in Sec. 4601.103(c) of this part governing
the establishment of procedures for obtaining prior approval for
outside employment; for purposes of the regulations in Sec.
4601.103(c) of this part governing the designation of officials; and
for purposes of the regulations in 5 CFR 2635.807 governing teaching,
speaking, and writing, DHS will treat the remainder of DHS as a single
agency that is separate from the components designated as separate
agencies in paragraph (a) of this section.
(2) For the limited purposes of establishing procedures for
obtaining prior approval for outside employment and designating
officials pursuant to Sec. 4601.103 of this part, DHS will treat the
DHS Office of the Inspector General as a separate agency.
(c) An employee on detail from his employing agency to another
agency for a period in excess of 30 calendar days is subject to the
supplemental regulations and instructions of the agency to which he is
detailed rather than his employing agency.
Sec. 4601.103 Prior approval for outside employment and activities.
(a) General requirement for approval. A DHS employee, other than a
Special Government Employee, shall obtain prior written approval before
engaging in any outside employment or activity,
[[Page 63209]]
with or without compensation, unless the employee's agency has exempted
the employment, activity, or class of employment or activities from
this requirement by an instruction or manual issued pursuant to
paragraph (c) of this section.
(b) Standard for approval. Approval shall be granted only upon a
determination that the outside employment is not expected to involve
conduct prohibited by statute or Federal regulation, including part
2635 of title 5 and this part.
(c) Agency responsibilities. (1) With the approval of the DHS DAEO,
each agency as set forth in Sec. 4601.102 of this part shall issue
instructions or a manual governing the submission of requests for
approval of outside employment and activities and designating
appropriate officials to act on such requests not later than sixty (60)
days after the effective date of this part.
(2) The instructions or manual may exempt particular employment or
activities or categories of employment or activities from the prior
approval requirement of this section if such employment or activities
would generally be approved and are not likely to involve conduct
prohibited by statute or Federal regulation, including 5 CFR part 2635
and this part. Agencies may include in their instructions or manual
examples of outside employment or activities that are permissible or
prohibited consistent with this part and part 2635 of this title.
(3) In the absence of a manual or instruction identifying a person
designated to act upon a request for approval for outside employment,
the Chief Deputy Ethics Official at each agency shall act upon a
request.
Sec. 4601.104 Additional rules for United States Customs and Border
Protection (CBP) employees.
The following rules apply to employees of CBP, except Special
Government Employees, and are in addition to Sec. Sec. 4601.101
through 4601.103 and Sec. Sec. 4601.107 and 4601.108 of this part:
(a) Prohibitions on outside employment and activities. (1) No CBP
employee shall be employed by or engage in activities in support of or
on behalf of a customs broker, international carrier, bonded warehouse,
foreign trade zone as defined in 15 CFR 400.2(e), cartman, law firm
engaged in the practice of customs, immigration, or agriculture law,
entity engaged in the enforcement of customs, immigration, or
agriculture law, importation department of a business, or business or
other entity which assists aliens or engages in services related to
customs, immigration, or agriculture matters.
(2) No CBP employee shall, in any private capacity, engage in
employment or an activity related to the importation or exportation of
merchandise or agricultural products requiring inspection, or the entry
of persons into or departure of persons from the United States.
(b) Restrictions arising from employment of the spouse, relatives,
members of the employee's household, or financial dependents. (1) A CBP
employee shall notify in writing his or her agency designee when any of
the following circumstances exist:
(i) The spouse of the CBP employee is employed in a position that
the CBP employee would be prohibited from occupying by paragraph (a) of
this section;
(ii) A relative (as defined in 5 CFR 2634.105(o)), who is
financially dependent on or who is a member of the household of the CBP
employee, is employed in a position that the CBP employee would be
prohibited from occupying by paragraph (a) of this section; or
(iii) Any person, other than the spouse or relative of the CBP
employee, who is financially dependent on or who is a member of the
household of the CBP employee, is employed in a position that the CBP
employee would be prohibited from occupying by paragraph (a) of this
section.
(2) The CBP employee shall be disqualified from participating in an
official capacity in any particular matter involving the individuals
identified in paragraph (b)(1) of this section, or the employer
thereof, unless the agency designee, with the advice and clearance of
the CBP Chief Deputy Ethics Official, authorizes the CBP employee to
participate in the matter using the standard in 5 CFR 2635.502(d), or
the waiver provisions in 18 U.S.C. 208(b)(1), as appropriate.
Sec. 4601.105 Additional rules for Federal Emergency Management
Agency (FEMA) Employees.
The following rules apply to employees of FEMA, except Special
Government Employees, and are in addition to Sec. Sec. 4601.101
through 4601.103 and Sec. Sec. 4601.107 and 4601.108 of this part:
(a) Prohibited outside employment (intermittent employees). Except
as provided in paragraph (c) of this section, no intermittent FEMA
employees hired under the authority of 42 U.S.C. 5149, which includes
all Disaster Assistance Employees or Stafford Act Employees and Cadre
of On-Call Response Employees, shall work for a current FEMA contractor
while a FEMA employee, whether or not they are on activated status.
(b) Prohibited outside employment (non-intermittent employees).
Except as provided in paragraph (c) of this section, no non-
intermittent FEMA employee shall work for any current FEMA contractor
as an outside employer.
(c) Waivers. The FEMA Chief Deputy Ethics Official or his or her
agency designee may grant a written waiver of any prohibition in
paragraphs (a) and (b) of this section with the DAEO's concurrence. To
grant the waiver, the FEMA Chief Deputy Ethics Official or his or her
agency designee must determine that the waiver is consistent with 5 CFR
part 2635 and not otherwise prohibited by law; that the prohibition is
not necessary to avoid the appearance of misuse of position or loss of
impartiality; and that the waiver will not undermine the public's
confidence in the employee's impartiality and objectivity in
administering FEMA programs. A waiver under this paragraph may impose
appropriate conditions, such as requiring execution of a written
disqualification statement.
Sec. 4601.106 Additional rules for United States Immigration and
Customs Enforcement (ICE) employees.
The following rules apply to employees of ICE, except Special
Government Employees, and are in addition to Sec. Sec. 4601.101
through 4601.103 and Sec. Sec. 4601.107 and 4601.108 of this part:
(a) Prohibitions on outside employment and activities. (1) No ICE
employee shall be employed by or engage in activities in support of or
on behalf of a customs broker, international carrier, bonded warehouse,
foreign trade zone as defined in 15 CFR 400.2(e), cartman, law firm
engaged in the practice of customs, immigration or agriculture law,
entity engaged in the enforcement of customs, immigration or
agriculture law, importation department of a business, or business or
other entity which assists aliens or engages in services related to
customs, immigration or agriculture matters.
(2) No ICE employee shall, in any private capacity, engage in
employment or an activity related to the importation or exportation of
merchandise or agricultural products requiring inspection, or the entry
of persons into or the departure of persons from the United States.
(b) Restrictions arising from employment of spouse, relatives,
members of the employee's household,
[[Page 63210]]
or financial dependents. (1) An ICE employee shall notify in writing
his or her agency designee when any of the following circumstances
exist:
(i) The spouse of the ICE employee is employed in a position that
the ICE employee would be prohibited from occupying by paragraph (a) of
this section;
(ii) A relative (as defined in 5 CFR 2634.105(o)) who is
financially dependent on or who is a member of the household of the ICE
employee is employed in a position that the ICE employee would be
prohibited from occupying by paragraph (a) of this section; or
(iii) Any person, other than the spouse or relative of the ICE
employee, who is financially dependent on or who is a member of the
household of the ICE employee, is employed in a position that the ICE
employee would be prohibited from occupying by paragraph (a) of this
section.
(2) The ICE employee shall be disqualified from participating in an
official capacity in any particular matter involving the individuals
described in paragraph (b)(1) of this section or the employer thereof,
unless the agency designee, with the advice and clearance of the ICE
Chief Deputy Ethics Official, authorizes the ICE employee to
participate in the matter using the standard in 5 CFR 2635.502(d), or
the waiver provisions in 18 U.S.C. 208(b)(1), as appropriate.
Sec. 4601.107 Prohibited purchases of property.
(a) General prohibition. Except as provided in paragraph (c) of
this section, no DHS employee may purchase, directly or indirectly,
property that is:
(1) Owned by the Federal Government and under the control of the
employee's agency, unless the sale of the property is being conducted
by the General Services Administration; or
(2) Seized or forfeited under the direction or incident to the
functions of the employee's agency.
(b) For purposes of this section, the employee's agency is the
relevant separate agency component as set forth in Sec. 4601.102 of
this part.
(c) Waiver. Employees may make a purchase prohibited by paragraph
(a) of this section where a written waiver of the prohibition is issued
in advance by the agency designee with the clearance of the DAEO or his
designee. A waiver may only be granted if it is not otherwise
prohibited by law or regulation and the purchase of the property will
not cause a reasonable person with knowledge of the particular
circumstances to question the employee's impartiality, or create the
appearance that the employee has used his official position or
nonpublic information for his personal gain.
Sec. 4601.108 Reporting waste, fraud, abuse and corruption.
Employees shall report immediately any suspicions of violations of
law or regulation involving Department of Homeland Security programs or
operations to appropriate authorities, such as the Office of the
Inspector General.
Janet Napolitano,
Secretary, Department of Homeland Security.
Don W. Fox,
Acting Director, Office of Government Ethics.
[FR Doc. 2011-26160 Filed 10-11-11; 8:45 am]
BILLING CODE 9110-9B-P
