Supplemental Standards of Ethical Conduct for Employees, 20697-20700 [2012-8191]
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20697
Rules and Regulations
Federal Register
Vol. 77, No. 67
Friday, April 6, 2012
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
FOR FURTHER INFORMATION CONTACT:
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
I. Background
SPECIAL INSPECTOR GENERAL FOR
AFGHANISTAN RECONSTRUCTION
5 CFR Part 9303
RIN 3460–AA01
Supplemental Standards of Ethical
Conduct for Employees
Special Inspector General for
Afghanistan Reconstruction.
ACTION: Interim rule with request for
comments.
AGENCY:
The Special Inspector General
for Afghanistan Reconstruction (SIGAR),
with the concurrence of the Office of
Government Ethics (OGE), is issuing an
interim regulation for SIGAR employees
that will supplement the executive
branch-wide Standards of Ethical
Conduct (Standards) issued by OGE.
The supplemental regulation includes a
requirement that SIGAR employees
obtain prior approval for certain types of
outside activities.
DATES: Effective date: April 6, 2012.
Comment date: Comments are invited
and must be received by June 5, 2012.
ADDRESSES: You may submit comments,
in writing, to Hugo Teufel on this rule,
identified by RIN 3460–AA01, by any of
the following methods:
• Email: hugo.teufel.civ@mail.mil.
Include the reference ‘‘Supplemental
Standards of Ethical Conduct for
Employees of SIGAR’’ in the subject line
of the message.
• Mail: Special Inspector General for
Afghanistan Reconstruction, 2530
Crystal Drive, Arlington, VA 22202–
3940. Attention: Hugo Teufel,
Designated Agency Ethics Official
(DAEO).
• Hand Delivery/Courier: Special
Inspector General for Afghanistan
Reconstruction, 1550 Crystal Drive, 9th
Floor, Arlington, VA 22202. Attention:
Hugo Teufel, Designated Agency Ethics
Official (DAEO).
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SUMMARY:
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Christina Beach, Ethics Compliance
Officer, at 703–545–5994, email:
christina.k.beach.civ@mail.mil.
SUPPLEMENTARY INFORMATION:
In 1992, OGE published the Standards
of Ethical Conduct for Employees of the
Executive Branch, as codified at 5 CFR
part 2635 and effective February 3,
1993, which established uniform
standards of ethical conduct applicable
to all executive branch personnel.
The National Defense Authorization
Act (Pub. L. 110–181) established
SIGAR. The agency’s mission is to
provide independent oversight of the
treatment, handling, and expenditure of
funds appropriated or otherwise made
available for the reconstruction of
Afghanistan; detect and deter fraud,
waste, and abuse of U.S. funds; and
promote actions to increase program
economy, efficiency, and effectiveness.
Afghanistan reconstruction includes any
major contract, grant, agreement, or
other funding mechanism entered into
by any department or agency of the
United States government that involves
the use of amounts appropriated, or
otherwise made available for the
reconstruction of Afghanistan with any
private entity to: (1) Build or rebuild
physical infrastructure of Afghanistan,
(2) establish or reestablish political or
societal institutions of Afghanistan, (3)
build the Afghanistan National Security
Forces, and (4) provide products or
services to the people of Afghanistan.
Given the importance of the agency’s
mission and the need to maintain
objectivity and independence, SIGAR,
through the proposed provisions, would
require prior agency approval before
employees engage in certain outside
activities. Part 2635.105 authorizes
executive branch agencies, with the
concurrence of OGE, to publish such
agency-specific supplemental
regulations as may be necessary to
implement their respective ethics
programs. SIGAR, with OGE’s
concurrence, has determined that the
following supplemental regulation is
necessary, given SIGAR’s unique status
and mission, to implement the agency’s
ethics program.
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II. Analysis of the Regulations
Section 9303.101 General
Section 9303.101 explains that the
regulations apply to all SIGAR
employees and supplement the
executive branch-wide Standards in 5
CFR part 2635. Section 9303.101 also
provides a cross-reference to the
executive branch-wide financial
disclosure regulations contained in 5
CFR part 2634, the executive branchwide regulation regarding outside
employment at 5 CFR part 2636, and the
regulation concerning executive branch
financial interests contained in 5 CFR
part 2640.
Section 9303.102 Prior Approval for
Certain Outside Activities
Under 5 CFR 2635.803, agencies may,
by supplemental regulations, require
employees to obtain approval before
engaging in outside employment and
activities. SIGAR has determined that it
is necessary to the administration of its
ethics program to require its employees,
other than special Government
employees, to obtain prior approval for
certain types of outside employment
and activities. This approval
requirement will help to ensure that
potential ethical problems are resolved
before employees begin outside
employment or activities that could
involve a violation of applicable laws
and regulations.
Under § 9303.102(a)(1), SIGAR
employees must obtain prior approval
regarding the provision of professional
services that involve the application of
the same specialized skills or the same
educational background as performance
of the employee’s official duties. Such
outside activities may raise a strong risk
of a violation of the Standards. For
purposes of this section, the definition
of ‘‘professional services’’ in
§ 9303.102(d)(3) reflects the definition
of ‘‘profession’’ as provided at 5 CFR
2636.305(b)(1), and means the provision
of personal services by an employee,
including the rendering of advice or
consultation, which involves
application of the skills of a profession.
Secretarial and clerical positions are
not, for purposes of this requirement,
considered to provide ‘‘professional
services.’’
Under § 9303.102(a)(2), SIGAR
employees must obtain prior approval
regarding teaching, speaking, or writing
that relates to the employee’s official
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duties. This section requires prior
approval of outside speaking and
writing, as well as outside teaching, but
only if it ‘‘relates to the employee’s
official duties.’’ Consistent with the
Standards, the term ‘‘relates to the
employee’s official duties’’ is defined in
§ 9303.102(d)(5) as having the meaning
provided in 5 CFR 2635.807(a)(2)(i)(B)
through (a)(2)(i)(E). To summarize that
definition, teaching, speaking, or
writing relates to the employee’s official
duties if the invitation to teach, speak,
or write is extended primarily because
of the employee’s official position; if the
invitation or the offer of compensation
(when the employee is to be
compensated for the activity) is
extended by a person whose interests
may be affected substantially by the
employee’s performance or
nonperformance of his or her official
duties; if the activity draws
substantially on ‘‘nonpublic
information,’’ a term which
§ 9303.102(d)(2) defines as having the
meaning set forth in § 2635.703(b) of the
Standards and which therefore includes
information that the employee gains by
reason of Federal employment and that
the employee knows or reasonably
should know has not been made
available to the general public; if the
subject of the activity deals in
significant part with SIGAR programs,
operations or policies, or with the
employee’s current or recent
assignments; or, in the case of a noncareer employee as defined in 5 CFR
2636.303(a), if the subject of the activity
deals in significant part with the general
subject matter area, industry, or
economic sector primarily affected by
the programs and operations of SIGAR.
Under § 9303.102(a)(3), SIGAR
employees must obtain prior approval
regarding certain services for a
‘‘prohibited source.’’ The term
‘‘prohibited source’’ is defined in
§ 9303.102(d)(4) as having the meaning
set forth in § 2635.203(d) of the
Standards, and therefore in summary
includes a person or organization, a
majority of whose members seek official
action by SIGAR, do or seek to do
business with SIGAR, are subject to
oversight by SIGAR pursuant to sections
1229 and 842 of the National Defense
Authorization Act for FY 2008, Pub. L.
No. 110–181, or who may be
substantially affected by the
performance or nonperformance of the
employee’s duties. The kind of services
for a prohibited source for which
§ 9303.102(a)(3) requires prior approval
are those that could raise a question of
conflicting financial interests under
subpart D of the Standards or a question
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of loss of impartiality in performing
official duties under subpart E of the
Standards. Those services include
service as an officer, director, trustee,
general partner, employee, agent,
attorney, consultant, contractor, or
‘‘active participant.’’ The term ‘‘active
participant’’ is defined in
§ 9303.102(d)(1) as having the meaning
set forth in subpart E of the Standards,
at 5 CFR 2635.502(b)(1)(v). In
accordance with that definition,
payment of dues to an organization, or
the donation or solicitation of financial
support, alone does not constitute active
participation.
An exception to the prior approval
requirement in § 9303.103(a)(3)
excludes from the prior approval
requirement therein a number of
uncompensated and volunteer activities
that are unlikely to raise issues under
the Standards. Specifically, employees
do not have to obtain approval before
providing the services listed in
§ 9303.102(a)(3), if the service is without
compensation (other than
reimbursement of expenses) and the
prohibited source for which the service
is to be provided is a nonprofit
charitable, religious, professional,
social, fraternal, educational,
recreational, public service, or civic
organization. However, prior approval
for such an activity is required if the
activity is covered by another of the
prior approval requirements in this
section.
Under § 9303.102(a)(4), SIGAR
employees must obtain prior approval
regarding the provision of services,
other than clerical services or service as
a fact witness, on behalf of any other
person in connection with a particular
matter in which the United States is a
party, in which the United States has a
direct and substantial interest, or if the
provision of services involves the
preparation of materials for submission
to, or representation before, a Federal
court or executive branch agency. Under
5 CFR 2635.805, employees are required
to obtain authorization before acting as
expert witnesses, other than on behalf of
the United States, in any proceeding
before a Federal court or agency in a
matter in which the United States is a
party or has a direct and substantial
interest. Paragraph (a)(4) of § 9303.102 is
intended to cover such testimony as an
outside activity, thus eliminating the
need to create a separate procedure for
the required authorization. In addition,
requiring prior approval under these
circumstances will help employees to
avoid violating the representational bars
in 18 U.S.C. 203 and 205.
Section 9303.102(b) sets forth the
procedures for submitting a request for
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approval of an outside activity,
specifying the information to be
included in the employee’s request, and
the contents of a certification the
employee is to submit with the request
for approval.
Section 9303.102(c) specifies the
standard for granting approval.
Approval shall be granted only upon a
determination by the agency official
who is the designated authority to make
such a determination that the outside
employment is not expected to involve
conduct prohibited by statute or Federal
regulation.
Section 9303.102(d) defines the terms
‘‘active participant,’’ ‘‘nonpublic
information,’’ ‘‘professional services,’’
‘‘prohibited source,’’ and ‘‘relates to the
employee’s official duties,’’ for purposes
of the section, as explained above,
consistent with the Standards and other
regulations issued by OGE.
Requiring prior approval will give
SIGAR managers the opportunity to
review the proposed employment or
activity in light of the employee’s
official duties and to consult with an
agency ethics official concerning the
applicability of Federal conflict of
interest statutes and ethics regulations
to the proposed activity. The executive
branch-wide Standards, at 5 CFR
2635.802, explain that an activity
conflicts with an employee’s official
duties if it is prohibited by statute or by
an agency supplemental regulation, or
if, under the standards set forth in
§§ 2635.402 and 2635.502 of the
Standards, it would require the
employee’s disqualification from
matters so central or critical to the
performance of the employee’s official
duties that the employee’s ability to
perform the duties of his or her position
would be materially impaired. Even
when prior approval is not required,
conflict of interest statutes and the
Standards may restrict the actions of
employees in connection with
participation in such activities or
organizations.
III. Matters of Regulatory Procedure
Administrative Procedure Act
Under 5 U.S.C. 1103(b)(1) and 1105,
these regulations are not subject to the
rulemaking requirements of the
Administrative Procedure Act, at 5
U.S.C. 553(b), (c), and (d), because they
apply solely to SIGAR or its employees.
Furthermore, SIGAR finds good cause
that it is in the public interest that these
internal regulations take effect as an
interim rule upon the date of
publication of this Federal Register
rulemaking document. In issuing a final
rule on this matter, SIGAR will consider
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all written comments on this rule that
are submitted by the June 5, 2012 due
date.
Regulatory Flexibility Act
As Acting Inspector General of
SIGAR, I have determined under the
Regulatory Flexibility Act (5 U.S.C.
chapter 6) that this rule will not have a
significant economic impact on a
substantial number of small entities
because it will primarily affect SIGAR
employees.
Paperwork Reduction Act
As Acting Inspector General of
SIGAR, I have determined that the
Paperwork Reduction Act (44 U.S.C.
chapter 35) does not apply to this rule,
because it does not contain any
information collection requirements that
would require the 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 25, subchapter II), this rule
would not significantly or uniquely
affect small governments and would not
result in increased expenditures by
State, local, and tribal governments, or
by the private sector, of $100 million or
more (as adjusted for inflation) in any
one year.
Congressional Review Act
SIGAR has determined that this rule
is not a rule as defined in 5 U.S.C. 804
and, thus, does not require review by
Congress.
Executive Order 12866
In promulgating this rule, SIGAR has
adhered to the regulatory philosophy
and the applicable principles of
regulation set forth in section 1 of
Executive Order 12866, Regulatory
Planning and Review. This rule has not
been reviewed by the Office of
Management and Budget under that
Executive order, since it deals with
agency organization, management, and
personnel matters and is not in any way
event deemed ‘‘significant’’ thereunder.
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Executive Order 12988
As Acting Inspector General of
SIGAR, I have reviewed this 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 9303
Conflict of interests, Government
employees.
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Authority and Issuance
For the reasons set forth in the
preamble, the Special Inspector General
for Afghanistan Reconstruction, with
the concurrence of the Office of
Government Ethics, is amending chapter
LXXXIII of title 5 of the Code of Federal
Regulations by adding part 9303 to read
as follows:
PART 9303—SUPPLEMENTAL
STANDARDS OF ETHICAL CONDUCT
FOR EMPLOYEES OF THE OFFICE OF
THE SPECIAL INSPECTOR GENERAL
FOR AFGHANISTAN
RECONSTRUCTION
Sec.
9303.101 General.
9303.102 Prior approval for certain outside
activities.
Authority: 5 U.S.C. Section 7301; 5 U.S.C.
App. (Ethics in Government Act of 1978, as
amended), 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, 2635.702, 2635.703,
2635.801, 2635.802, 2635.803, and 2635.805.
§ 9303.101
General.
In accordance with 5 CFR 2635.105,
the regulations in this part apply to
employees of the Office of the Special
Inspector General for Afghanistan
Reconstruction (SIGAR) and
supplement the Standards of Ethical
Conduct for Employees of the Executive
Branch contained in 5 CFR part 2635. In
addition to the regulations in 5 CFR part
2635 and this part, SIGAR employees
are subject to the executive branch-wide
financial disclosure regulations
contained in 5 CFR part 2634; the
executive branch regulations regarding
outside employment at 5 CFR part 2636;
and the regulations concerning
executive branch financial interests
contained in 5 CFR part 2640.
§ 9303.102 Prior approval for certain
outside activities.
(a) Prior approval requirement. An
employee, other than a special
Government employee, shall obtain
written approval before engaging—with
or without compensation—in the
following outside activities:
(1) Providing professional services
involving the application of the same
specialized skills or the same
educational background as performance
of the employee’s official duties;
(2) Teaching, speaking, or writing that
relates to the employee’s official duties;
(3) Serving as an officer, director,
trustee, general partner, employee,
agent, attorney, consultant, contractor,
or active participant for a prohibited
source, except that prior approval is not
required by this paragraph (a)(3) to
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20699
provide such service without
compensation (other than
reimbursement of expenses) for a
prohibited source that is a nonprofit
charitable, religious, professional,
social, fraternal, educational,
recreational, public service, or civic
organization, unless prior approval for
the activity is required by paragraph
(a)(1), (a)(2), or (a)(4) of this section; or
(4) Providing services, other than
clerical services or service as a fact
witness, on behalf of any other person
in connection with a particular matter:
(i) In which the United States is a
party;
(ii) In which the United States has a
direct and substantial interest; or
(iii) If the provision of services
involves the preparation of materials for
submission to, or representation before,
a Federal court or executive branch
agency.
(b) Submission of requests for
approval. (1) Requests for approval shall
be submitted in writing to SIGAR’s
Inspector General or Inspector General’s
designee through normal supervisory
channels. Such requests shall include,
at a minimum, the following:
(i) The employee’s name and position
title;
(ii) The name and address of the
person or organization for whom or for
which the outside activity is to be
performed;
(iii) A description of the proposed
outside activity, including the duties
and services to be performed while
engaged in the activity; and
(iv) The proposed hours that the
employee will engage in the outside
activity, and the approximate dates of
the activity.
(2) Together with the employee’s
request for approval, the employee shall
provide a certification that:
(i) The outside activity will not
depend in any way on nonpublic
information;
(ii) No official duty time or
Government property, resources, or
facilities not available to the general
public will be used in connection with
the outside activity; and
(iii) The employee has read subpart H
(‘‘Outside Activities’’) of 5 CFR part
2635.
(3) Upon a significant change in the
nature or scope of the outside activity or
in the employee’s official position, the
employee shall submit a revised request
for approval.
(c) Approval of requests. Approval
shall be granted only upon a
determination by SIGAR’s Inspector
General or Inspector General’s designee,
in consultation with the General
Counsel and the Director of Public
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Affairs, that the outside activity is not
expected to involve conduct prohibited
by statute or Federal regulation,
including 5 CFR part 2635.
(d) Definitions. For purposes of this
section:
(1) ‘‘Active participant’’ has the
meaning set forth in 5 CFR
2635.502(b)(1)(v).
(2) ‘‘Nonpublic information’’ has the
meaning set forth in 5 CFR 2635.703(b).
(3) ‘‘Professional services’’ means the
provision of personal services by an
employee, including the rendering of
advice or consultation, which involves
application of the skills of a profession
as defined in 5 CFR 2636.305(b)(1).
(4) ‘‘Prohibited source’’ has the
meaning set forth in 5 CFR 2635.203(d).
(5) ‘‘Relates to the employee’s official
duties’’ has the meaning set forth in 5
CFR 2635.807(a)(2)(i)(B) through
(a)(2)(i)(E).
DEPARTMENT OF LABOR
Mine Safety and Health Administration
30 CFR Part 75
RIN 1219–AB75
Examinations of Work Areas in
Underground Coal Mines for Violations
of Mandatory Health or Safety
Standards
Mine Safety and Health
Administration, Labor.
ACTION: Final rule.
AGENCY:
Airworthiness Directives; Airbus
Airplanes
The Mine Safety and Health
Administration (MSHA) is revising its
requirements for preshift, supplemental,
on-shift, and weekly examinations of
underground coal mines to require
operators to identify violations of health
or safety standards related to
ventilation, methane, roof control,
combustible materials, rock dust, other
safeguards, and guarding, as listed in
the final rule. Violations of these
standards create unsafe conditions for
underground coal miners. The final rule
also requires that the mine operator
record and correct violations of the nine
safety and health standards found
during these examinations. It also
requires that the operator review with
mine examiners on a quarterly basis all
citations and orders issued in areas
where preshift, supplemental, on-shift,
and weekly examinations are required.
The final rule will increase the
identification and correction of unsafe
conditions in mines earlier, and
improve protection for miners in
underground coal mines.
DATES: Effective date: August 6, 2012.
FOR FURTHER INFORMATION CONTACT:
George F. Triebsch, Director, Office of
Standards, Regulations, and Variances,
MSHA, at triebsch.george@dol.gov
(email), (202) 693–9440 (voice), or (202)
693–9441 (facsimile).
SUPPLEMENTARY INFORMATION:
Correction
Table of Contents
In rule document 2012–7008
appearing on pages 19071–19074 in the
issue of March 30, 2012, make the
following correction:
I. Executive Summary
II. Introduction
A. Statutory and Regulatory History
B. Background Information
III. General Discussion of Final Rule
IV. Section-by-Section Analysis
A. § 75.360 Preshift Examination at Fixed
Intervals
B. § 75.361 Supplemental Examination
C. § 75.362 On-Shift Examination
D. § 75.363 Hazardous Conditions and
Violations of Mandatory Health or Safety
Standards; Posting, Correcting, and
Recording
E. § 75.364 Weekly Examination
V. Executive Orders 12866 and 13563:
Regulatory Planning and Review
Dated: March 16, 2011.
Steven J. Trent,
Acting Inspector General, Special Inspector
General for Afghanistan Reconstruction.
Approved: March 20, 2011.
Don W. Fox,
Acting Director, Office of Government Ethics.
[FR Doc. 2012–8191 Filed 4–5–12; 8:45 am]
BILLING CODE 3710–L9–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2012–0292; Directorate
Identifier 2011–NM–056–AD; Amendment
39–16991; AD 2012–06–10]
RIN 2120–AA64
§ 39.13
[Corrected]
On page 19073, in § 39.13, beginning
in the second column, in the 28th line
from the bottom, remove the duplicate
section ‘‘(g) Inspection and Corrective
Action in Fuel Tank Areas’’ which ends
in the third column, in the 24th line
from the top.
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■
[FR Doc. C1–2012–7008 Filed 4–5–12; 8:45 am]
BILLING CODE 1505–01–D
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SUMMARY:
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A. Population at Risk
B. Benefits
C. Compliance Costs
VI. Feasibility
A. Technological Feasibility
B. Economic Feasibility
VII. Regulatory Flexibility Act and Small
Business Regulatory Enforcement
Fairness Act
A. Definition of a Small Mine
B. Factual Basis for Certification
VIII. Paperwork Reduction Act of 1995
A. Summary
B. Details
IX. Other Regulatory Considerations
A. The Unfunded Mandates Reform Act Of
1995
B. Executive Order 13132: Federalism
C. The Treasury and General Government
Appropriations Act of 1999: Assessment
of Federal Regulations and Policies on
Families
D. Executive Order 12630: Government
Actions and Interference With
Constitutionally Protected Property
Rights
E. Executive Order 12988: Civil Justice
Reform
F. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
G. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
I. Executive Order 13272: Proper
Consideration of Small Entities in
Agency Rulemaking
X. References
I. Executive Summary
A. Purpose of the Regulatory Action
Effective preshift, supplemental, onshift, and weekly examinations are the
first line of defense to protect miners
working in underground coal mines.
After analyzing the Agency’s accident
reports and enforcement data for
underground coal mines covering a
5-year period, MSHA determined that
the same types of violations of health or
safety standards are found by MSHA
inspectors in underground coal mines
every year and that these violations
present some of the most unsafe
conditions for coal miners. These
repeated violations expose miners to
unnecessary safety and health risks that
should be found and corrected by mine
operators. The final rule will increase
the identification and correction of
unsafe conditions in mines earlier,
removing many of the conditions that
could lead to danger, and improve
protection for miners in underground
coal mines.
Section 303 of the Federal Mine
Safety and Health Act of 1977 (Mine
Act), which retained without change the
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]]>Agencies
- SPECIAL INSPECTOR GENERAL FOR AFGHANISTAN RECONSTRUCTION
[Federal Register Volume 77, Number 67 (Friday, April 6, 2012)]
[Rules and Regulations]
[Pages 20697-20700]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-8191]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 77, No. 67 / Friday, April 6, 2012 / Rules
and Regulations
[[Page 20697]]
SPECIAL INSPECTOR GENERAL FOR AFGHANISTAN RECONSTRUCTION
5 CFR Part 9303
RIN 3460-AA01
Supplemental Standards of Ethical Conduct for Employees
AGENCY: Special Inspector General for Afghanistan Reconstruction.
ACTION: Interim rule with request for comments.
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SUMMARY: The Special Inspector General for Afghanistan Reconstruction
(SIGAR), with the concurrence of the Office of Government Ethics (OGE),
is issuing an interim regulation for SIGAR employees that will
supplement the executive branch-wide Standards of Ethical Conduct
(Standards) issued by OGE. The supplemental regulation includes a
requirement that SIGAR employees obtain prior approval for certain
types of outside activities.
DATES: Effective date: April 6, 2012.
Comment date: Comments are invited and must be received by June 5,
2012.
ADDRESSES: You may submit comments, in writing, to Hugo Teufel on this
rule, identified by RIN 3460-AA01, by any of the following methods:
Email: hugo.teufel.civ@mail.mil. Include the reference
``Supplemental Standards of Ethical Conduct for Employees of SIGAR'' in
the subject line of the message.
Mail: Special Inspector General for Afghanistan
Reconstruction, 2530 Crystal Drive, Arlington, VA 22202-3940.
Attention: Hugo Teufel, Designated Agency Ethics Official (DAEO).
Hand Delivery/Courier: Special Inspector General for
Afghanistan Reconstruction, 1550 Crystal Drive, 9th Floor, Arlington,
VA 22202. Attention: Hugo Teufel, Designated Agency Ethics Official
(DAEO).
FOR FURTHER INFORMATION CONTACT: Christina Beach, Ethics Compliance
Officer, at 703-545-5994, email: christina.k.beach.civ@mail.mil.
SUPPLEMENTARY INFORMATION:
I. Background
In 1992, OGE published the Standards of Ethical Conduct for
Employees of the Executive Branch, as codified at 5 CFR part 2635 and
effective February 3, 1993, which established uniform standards of
ethical conduct applicable to all executive branch personnel.
The National Defense Authorization Act (Pub. L. 110-181)
established SIGAR. The agency's mission is to provide independent
oversight of the treatment, handling, and expenditure of funds
appropriated or otherwise made available for the reconstruction of
Afghanistan; detect and deter fraud, waste, and abuse of U.S. funds;
and promote actions to increase program economy, efficiency, and
effectiveness. Afghanistan reconstruction includes any major contract,
grant, agreement, or other funding mechanism entered into by any
department or agency of the United States government that involves the
use of amounts appropriated, or otherwise made available for the
reconstruction of Afghanistan with any private entity to: (1) Build or
rebuild physical infrastructure of Afghanistan, (2) establish or
reestablish political or societal institutions of Afghanistan, (3)
build the Afghanistan National Security Forces, and (4) provide
products or services to the people of Afghanistan.
Given the importance of the agency's mission and the need to
maintain objectivity and independence, SIGAR, through the proposed
provisions, would require prior agency approval before employees engage
in certain outside activities. Part 2635.105 authorizes executive
branch agencies, with the concurrence of OGE, to publish such agency-
specific supplemental regulations as may be necessary to implement
their respective ethics programs. SIGAR, with OGE's concurrence, has
determined that the following supplemental regulation is necessary,
given SIGAR's unique status and mission, to implement the agency's
ethics program.
II. Analysis of the Regulations
Section 9303.101 General
Section 9303.101 explains that the regulations apply to all SIGAR
employees and supplement the executive branch-wide Standards in 5 CFR
part 2635. Section 9303.101 also provides a cross-reference to the
executive branch-wide financial disclosure regulations contained in 5
CFR part 2634, the executive branch-wide regulation regarding outside
employment at 5 CFR part 2636, and the regulation concerning executive
branch financial interests contained in 5 CFR part 2640.
Section 9303.102 Prior Approval for Certain Outside Activities
Under 5 CFR 2635.803, agencies may, by supplemental regulations,
require employees to obtain approval before engaging in outside
employment and activities. SIGAR has determined that it is necessary to
the administration of its ethics program to require its employees,
other than special Government employees, to obtain prior approval for
certain types of outside employment and activities. This approval
requirement will help to ensure that potential ethical problems are
resolved before employees begin outside employment or activities that
could involve a violation of applicable laws and regulations.
Under Sec. 9303.102(a)(1), SIGAR employees must obtain prior
approval regarding the provision of professional services that involve
the application of the same specialized skills or the same educational
background as performance of the employee's official duties. Such
outside activities may raise a strong risk of a violation of the
Standards. For purposes of this section, the definition of
``professional services'' in Sec. 9303.102(d)(3) reflects the
definition of ``profession'' as provided at 5 CFR 2636.305(b)(1), and
means the provision of personal services by an employee, including the
rendering of advice or consultation, which involves application of the
skills of a profession. Secretarial and clerical positions are not, for
purposes of this requirement, considered to provide ``professional
services.''
Under Sec. 9303.102(a)(2), SIGAR employees must obtain prior
approval regarding teaching, speaking, or writing that relates to the
employee's official
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duties. This section requires prior approval of outside speaking and
writing, as well as outside teaching, but only if it ``relates to the
employee's official duties.'' Consistent with the Standards, the term
``relates to the employee's official duties'' is defined in Sec.
9303.102(d)(5) as having the meaning provided in 5 CFR
2635.807(a)(2)(i)(B) through (a)(2)(i)(E). To summarize that
definition, teaching, speaking, or writing relates to the employee's
official duties if the invitation to teach, speak, or write is extended
primarily because of the employee's official position; if the
invitation or the offer of compensation (when the employee is to be
compensated for the activity) is extended by a person whose interests
may be affected substantially by the employee's performance or
nonperformance of his or her official duties; if the activity draws
substantially on ``nonpublic information,'' a term which Sec.
9303.102(d)(2) defines as having the meaning set forth in Sec.
2635.703(b) of the Standards and which therefore includes information
that the employee gains by reason of Federal employment and that the
employee knows or reasonably should know has not been made available to
the general public; if the subject of the activity deals in significant
part with SIGAR programs, operations or policies, or with the
employee's current or recent assignments; or, in the case of a non-
career employee as defined in 5 CFR 2636.303(a), if the subject of the
activity deals in significant part with the general subject matter
area, industry, or economic sector primarily affected by the programs
and operations of SIGAR.
Under Sec. 9303.102(a)(3), SIGAR employees must obtain prior
approval regarding certain services for a ``prohibited source.'' The
term ``prohibited source'' is defined in Sec. 9303.102(d)(4) as having
the meaning set forth in Sec. 2635.203(d) of the Standards, and
therefore in summary includes a person or organization, a majority of
whose members seek official action by SIGAR, do or seek to do business
with SIGAR, are subject to oversight by SIGAR pursuant to sections 1229
and 842 of the National Defense Authorization Act for FY 2008, Pub. L.
No. 110-181, or who may be substantially affected by the performance or
nonperformance of the employee's duties. The kind of services for a
prohibited source for which Sec. 9303.102(a)(3) requires prior
approval are those that could raise a question of conflicting financial
interests under subpart D of the Standards or a question of loss of
impartiality in performing official duties under subpart E of the
Standards. Those services include service as an officer, director,
trustee, general partner, employee, agent, attorney, consultant,
contractor, or ``active participant.'' The term ``active participant''
is defined in Sec. 9303.102(d)(1) as having the meaning set forth in
subpart E of the Standards, at 5 CFR 2635.502(b)(1)(v). In accordance
with that definition, payment of dues to an organization, or the
donation or solicitation of financial support, alone does not
constitute active participation.
An exception to the prior approval requirement in Sec.
9303.103(a)(3) excludes from the prior approval requirement therein a
number of uncompensated and volunteer activities that are unlikely to
raise issues under the Standards. Specifically, employees do not have
to obtain approval before providing the services listed in Sec.
9303.102(a)(3), if the service is without compensation (other than
reimbursement of expenses) and the prohibited source for which the
service is to be provided is a nonprofit charitable, religious,
professional, social, fraternal, educational, recreational, public
service, or civic organization. However, prior approval for such an
activity is required if the activity is covered by another of the prior
approval requirements in this section.
Under Sec. 9303.102(a)(4), SIGAR employees must obtain prior
approval regarding the provision of services, other than clerical
services or service as a fact witness, on behalf of any other person in
connection with a particular matter in which the United States is a
party, in which the United States has a direct and substantial
interest, or if the provision of services involves the preparation of
materials for submission to, or representation before, a Federal court
or executive branch agency. Under 5 CFR 2635.805, employees are
required to obtain authorization before acting as expert witnesses,
other than on behalf of the United States, in any proceeding before a
Federal court or agency in a matter in which the United States is a
party or has a direct and substantial interest. Paragraph (a)(4) of
Sec. 9303.102 is intended to cover such testimony as an outside
activity, thus eliminating the need to create a separate procedure for
the required authorization. In addition, requiring prior approval under
these circumstances will help employees to avoid violating the
representational bars in 18 U.S.C. 203 and 205.
Section 9303.102(b) sets forth the procedures for submitting a
request for approval of an outside activity, specifying the information
to be included in the employee's request, and the contents of a
certification the employee is to submit with the request for approval.
Section 9303.102(c) specifies the standard for granting approval.
Approval shall be granted only upon a determination by the agency
official who is the designated authority to make such a determination
that the outside employment is not expected to involve conduct
prohibited by statute or Federal regulation.
Section 9303.102(d) defines the terms ``active participant,''
``nonpublic information,'' ``professional services,'' ``prohibited
source,'' and ``relates to the employee's official duties,'' for
purposes of the section, as explained above, consistent with the
Standards and other regulations issued by OGE.
Requiring prior approval will give SIGAR managers the opportunity
to review the proposed employment or activity in light of the
employee's official duties and to consult with an agency ethics
official concerning the applicability of Federal conflict of interest
statutes and ethics regulations to the proposed activity. The executive
branch-wide Standards, at 5 CFR 2635.802, explain that an activity
conflicts with an employee's official duties if it is prohibited by
statute or by an agency supplemental regulation, or if, under the
standards set forth in Sec. Sec. 2635.402 and 2635.502 of the
Standards, it would require the employee's disqualification from
matters so central or critical to the performance of the employee's
official duties that the employee's ability to perform the duties of
his or her position would be materially impaired. Even when prior
approval is not required, conflict of interest statutes and the
Standards may restrict the actions of employees in connection with
participation in such activities or organizations.
III. Matters of Regulatory Procedure
Administrative Procedure Act
Under 5 U.S.C. 1103(b)(1) and 1105, these regulations are not
subject to the rulemaking requirements of the Administrative Procedure
Act, at 5 U.S.C. 553(b), (c), and (d), because they apply solely to
SIGAR or its employees. Furthermore, SIGAR finds good cause that it is
in the public interest that these internal regulations take effect as
an interim rule upon the date of publication of this Federal Register
rulemaking document. In issuing a final rule on this matter, SIGAR will
consider
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all written comments on this rule that are submitted by the June 5,
2012 due date.
Regulatory Flexibility Act
As Acting Inspector General of SIGAR, I have determined under the
Regulatory Flexibility Act (5 U.S.C. chapter 6) that this rule will not
have a significant economic impact on a substantial number of small
entities because it will primarily affect SIGAR employees.
Paperwork Reduction Act
As Acting Inspector General of SIGAR, I have determined that the
Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply to this
rule, because it does not contain any information collection
requirements that would require the 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 25, subchapter II), this rule would not significantly or
uniquely affect small governments and would not result in increased
expenditures by State, local, and tribal governments, or by the private
sector, of $100 million or more (as adjusted for inflation) in any one
year.
Congressional Review Act
SIGAR has determined that this rule is not a rule as defined in 5
U.S.C. 804 and, thus, does not require review by Congress.
Executive Order 12866
In promulgating this rule, SIGAR has adhered to the regulatory
philosophy and the applicable principles of regulation set forth in
section 1 of Executive Order 12866, Regulatory Planning and Review.
This rule has not been reviewed by the Office of Management and Budget
under that Executive order, since it deals with agency organization,
management, and personnel matters and is not in any way event deemed
``significant'' thereunder.
Executive Order 12988
As Acting Inspector General of SIGAR, I have reviewed this 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 9303
Conflict of interests, Government employees.
Authority and Issuance
For the reasons set forth in the preamble, the Special Inspector
General for Afghanistan Reconstruction, with the concurrence of the
Office of Government Ethics, is amending chapter LXXXIII of title 5 of
the Code of Federal Regulations by adding part 9303 to read as follows:
PART 9303--SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES
OF THE OFFICE OF THE SPECIAL INSPECTOR GENERAL FOR AFGHANISTAN
RECONSTRUCTION
Sec.
9303.101 General.
9303.102 Prior approval for certain outside activities.
Authority: 5 U.S.C. Section 7301; 5 U.S.C. App. (Ethics in
Government Act of 1978, as amended), 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, 2635.702, 2635.703, 2635.801,
2635.802, 2635.803, and 2635.805.
Sec. 9303.101 General.
In accordance with 5 CFR 2635.105, the regulations in this part
apply to employees of the Office of the Special Inspector General for
Afghanistan Reconstruction (SIGAR) and supplement the Standards of
Ethical Conduct for Employees of the Executive Branch contained in 5
CFR part 2635. In addition to the regulations in 5 CFR part 2635 and
this part, SIGAR employees are subject to the executive branch-wide
financial disclosure regulations contained in 5 CFR part 2634; the
executive branch regulations regarding outside employment at 5 CFR part
2636; and the regulations concerning executive branch financial
interests contained in 5 CFR part 2640.
Sec. 9303.102 Prior approval for certain outside activities.
(a) Prior approval requirement. An employee, other than a special
Government employee, shall obtain written approval before engaging--
with or without compensation--in the following outside activities:
(1) Providing professional services involving the application of
the same specialized skills or the same educational background as
performance of the employee's official duties;
(2) Teaching, speaking, or writing that relates to the employee's
official duties;
(3) Serving as an officer, director, trustee, general partner,
employee, agent, attorney, consultant, contractor, or active
participant for a prohibited source, except that prior approval is not
required by this paragraph (a)(3) to provide such service without
compensation (other than reimbursement of expenses) for a prohibited
source that is a nonprofit charitable, religious, professional, social,
fraternal, educational, recreational, public service, or civic
organization, unless prior approval for the activity is required by
paragraph (a)(1), (a)(2), or (a)(4) of this section; or
(4) Providing services, other than clerical services or service as
a fact witness, on behalf of any other person in connection with a
particular matter:
(i) In which the United States is a party;
(ii) In which the United States has a direct and substantial
interest; or
(iii) If the provision of services involves the preparation of
materials for submission to, or representation before, a Federal court
or executive branch agency.
(b) Submission of requests for approval. (1) Requests for approval
shall be submitted in writing to SIGAR's Inspector General or Inspector
General's designee through normal supervisory channels. Such requests
shall include, at a minimum, the following:
(i) The employee's name and position title;
(ii) The name and address of the person or organization for whom or
for which the outside activity is to be performed;
(iii) A description of the proposed outside activity, including the
duties and services to be performed while engaged in the activity; and
(iv) The proposed hours that the employee will engage in the
outside activity, and the approximate dates of the activity.
(2) Together with the employee's request for approval, the employee
shall provide a certification that:
(i) The outside activity will not depend in any way on nonpublic
information;
(ii) No official duty time or Government property, resources, or
facilities not available to the general public will be used in
connection with the outside activity; and
(iii) The employee has read subpart H (``Outside Activities'') of 5
CFR part 2635.
(3) Upon a significant change in the nature or scope of the outside
activity or in the employee's official position, the employee shall
submit a revised request for approval.
(c) Approval of requests. Approval shall be granted only upon a
determination by SIGAR's Inspector General or Inspector General's
designee, in consultation with the General Counsel and the Director of
Public
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Affairs, that the outside activity is not expected to involve conduct
prohibited by statute or Federal regulation, including 5 CFR part 2635.
(d) Definitions. For purposes of this section:
(1) ``Active participant'' has the meaning set forth in 5 CFR
2635.502(b)(1)(v).
(2) ``Nonpublic information'' has the meaning set forth in 5 CFR
2635.703(b).
(3) ``Professional services'' means the provision of personal
services by an employee, including the rendering of advice or
consultation, which involves application of the skills of a profession
as defined in 5 CFR 2636.305(b)(1).
(4) ``Prohibited source'' has the meaning set forth in 5 CFR
2635.203(d).
(5) ``Relates to the employee's official duties'' has the meaning
set forth in 5 CFR 2635.807(a)(2)(i)(B) through (a)(2)(i)(E).
Dated: March 16, 2011.
Steven J. Trent,
Acting Inspector General, Special Inspector General for Afghanistan
Reconstruction.
Approved: March 20, 2011.
Don W. Fox,
Acting Director, Office of Government Ethics.
[FR Doc. 2012-8191 Filed 4-5-12; 8:45 am]
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